McNabb in the News (6-10-06)

Senior Principal Douglas McNabb has been quoted in the Las Vegas Review-Journal concerning potential perjury sentencing enhancements for Dario Herrera and May Kincaid-Chauncey.

One expert predicted the adjustment would add at least eight months to the defendants' potential sentences. Without the adjustment, he said, both defendants face prison sentences of at least 33 months under the federal guidelines.

…

Douglas McNabb, … who specializes in federal criminal cases, said after their convictions that Herrera and Kincaid-Chauncey faced prison terms of at least 33 months under the federal sentencing guidelines.

…

If the judge finds that the bribes amounted to less than $120,000, the defendants' sentencing range will be between 33 and 41 months, McNabb said. The attorney said that range will be between 41 and 51 months if Hicks grants the adjustment prosecutors are seeking.

McNabb predicted that prosecutors will push for a sentence at the upper end of the guideline range.

"It doesn't make sense to argue for anything less than that if you're the government," he said.

McNabb said Hicks can hold the defendants responsible for the amount of all the bribes involved in the conspiracy.

…

McNabb said that amount results in a sentencing range of 51 to 63 months without the adjustment prosecutors are seeking and a range of 63 to 78 months with the adjustment.

McNabb said Hicks also could choose to increase the sentences if he finds that the defendants' conduct "was part of a systematic or pervasive corruption of a governmental function, process or office that may cause loss of public confidence in the government."^[1]

---

[1] Carri Geer Thevenot, Prosecutors Want Ex-Commissioners’ Sentences Increased, Las Vegas Review-Journal, Jun. 10, 2006.

Ad Hoc Tribunals—Completion Strategy Updates

This week, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) presented reports on their completion strategies to the United Nations Security Council.

The ICTR reported that it remains on course to complete its trial work by the end of 2008.^[1] The ICTY did not make any statement about progress toward its proposed completion date of 2008, but instead discussed new initiatives designed to bring greater efficiency to proceedings at the Tribunal and efforts to obtain the arrest and surrender of ICTY indictees still at large.^[2]

ICTR
ICTR President Erik Møse reported that judgments are expected in two cases this summer and that the Tribunal is on track to complete its trial work by the end of 2008.^[3] President Møse presented the following snapshot of Tribunal activity:

• Trials completed: 28
• Indictees currently on trial: 27
• Indictees awaiting trial: 14
• New trials beginning in the second half of 2006: 3
• Trials to be completed by 2008: 68-70
• Indictees at large:18 (of these, 12 or so will be transferred to national courts for trial)

President Møse called on member states to cooperate in apprehending any remaining indictees at large and in accommodating individuals who have been acquitted by the Tribunal and released.^[4]

ICTY
Chief Prosecutor Carla Del Ponte’s report to the Security Council supported her assertion that “[s]peeding up the proceedings is a top priority of my Office,” by detailing many specific initiatives designed to create greater efficiency at the Tribunal.^[5] However, the bottom line was this: “[I]t is inconceivable that the ICTY closes its doors with Radovan Karadzic and Ratko Mladic at large.”^[6]

The report did not provide any estimate of when the Tribunal’s trial work will be completed. Instead, the Chief Prosecutor discussed efficiency initiatives and blasted Serbia, Montenegro, the Republika Srpska in Bosnia, and even Russia for failing to produce six missing ICTY indictees including Mladic and Karadzic.^[7] Ms. Del Ponte also warned that if fugitive Vlastimir Djordevic is not surrendered within the next few weeks, he will require a trial separate from his six co‑defendants—another likely extension of the original completion date for the Tribunal.^[8]

The Chief Prosecutor’s report to the Security Council ended with a vaguely menacing advisory. Ms. Del Ponte stated that, given a seeming lack of political will among the Balkan states to capture and surrender the remaining indictees, “I will have not choice but to seek from the Council the powers to arrest fugitives where ever (sic) they are and to allocate to my Office the necessary resources for this.”^[9] What she proposes to allocate to her Office, and from where, is a mystery.

---

[1] ICTR President and Prosecutor Address the Security Council, ICTR Press Release ICTR/INFO‑9‑2‑479.EN, June 8, 2006 [hereinafter ICTR Press Release].
[2] Tribunal’s Prosecutor Addresses Security Council on Completion Strategy Progress, ICTY Press Release, AN/MOW/1085e, June 7, 2006. (The press release shows a publication date of “May 7, 2006.”)
[3] ICTR Press Release supra note 1.
[4] ICTR Press Release supra note 1.
[5] Statement by Tribunal’s Prosecutor Carla Del Ponte to the Security Council 7 June 2006, ICTY Statement, June 7, 2006.
[6] Id. (emphasis mine)
[7] Id.
[8] Id.
[9] Id.

War Crimes—Dutch Court Acquits Kouwenhoven

A Dutch court announced yesterday that it has acquitted the former “Godfather of Liberia,” Guus Kouwenhoven, of war crimes. Kouwenhoven was a business partner of former Liberian president Charles Taylor in the so‑called “blood timber” trade in Liberia between 2001 and 2003.^[1]

On a separate count, “Big Gus” Kouwenhoven was found guilty of arms smuggling and received the maximum sentence of 8 years in prison for that crime.^[2] Kouwenhoven’s lawyer has affirmed that an appeal of the verdict is likely. Prosecutors—who asked for a penalty of 20 years in jail plus a €450,000 ($570,000) fine—may appeal the sentence as well.^[3] If Mr. Kouwenhoven had been found guilty of war crimes, he could have faced a term of life in prison under Dutch law.

In winning the acquittal, Mr. Kouwenhoven’s lawyers were able to convince the judges that witness statements were too contradictory and biased to meet the burden of proof necessary for conviction. Although the prosecution was able to show that Mr. Kouwenhoven used his timber company to smuggle arms into Liberia, they were unable to establish the link between those weapons, or the private militias hired to protect the company, with alleged atrocities in the region.^[4]

In our April 24 post, we noted the possibility that Charles Taylor could be called to testify for the defense at Mr. Kouwenhoven’s trial. However, it appears that the defense was able to prevail on the war crimes charge simply on the weakness of the prosecution’s case without having to resort to such a risky move. Mr. Taylor’s attorneys also may have been averse to having their client speak on the record, even though in another jurisdiction, before his own trial gets underway.

Because the acquittal turned so much on the factual case, it is not likely that this outcome will have much effect on the Special Court proceedings. However, Mr. Kouwenhoven could still be called as witness at Mr. Taylor’s trial by either side. David Crane, a former chief prosecutor at the Sierra Leone Special Court who authored the indictment against Mr. Taylor, has confirmed that his office assisted Dutch prosecutors form the case and that he sees “clear evidence” of collaboration in funding arms and soldiers between the two defendants.^[5]

Charles Taylor currently is in being held in Freetown while he awaits his trial at the United Nations‑backed Special Court for Sierra Leone on charges of war crimes and crimes against humanity. As we noted in this past Tuesday’s post, despite some progress toward locating a post‑trial host state, Mr. Taylor’s trial is still in venue limbo.

---

[1] Wendel Broere, Dutchman Gets Eight Years for Arms Smuggling, Reuters, June 7, 2006 [hereinafter Reuters].
[2] Id.
[3] Id.
[4] Dutchman Guilty of Violating Arms Ban, Associated Press, June 8, 2006.
[5] Marlise Simons, 8‑Year Sentence for Businessman Who Smuggled Arms to Liberia, New York Times, June 8, 2006.

Crimes Against Humanity—ICC Uses Interpol Red Notices in Uganda Cases

As we speculated last month, the International Criminal Court (ICC) has made its first request for the issuance of Interpol Red Notices in connection with its investigation into the situation in Uganda.^[1] The Red Notices were issued in the support of ICC arrest warrants for five members of the Lords Resistance Army (LRA): Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen.^[2] The ICC Chief Prosecutor, Luis Moreno Ocampo stated that the five are charged with international crimes including crimes against humanity and war crimes.^[3]

The investigation was opened in July 2004 by referral from Uganda and the arrest warrants, the first ever issued by the ICC, were issued in 2005. In July 2005, the Pre‑Trial Chamber II, Judge Tuiloma Neroni Slade presiding, decided to issue the warrants apart from national requests for arrest and surrender.^[4] It also denied the Prosecutor’s request to transmit the requests to each of the states parties individually.^[5]

After the arrest warrants were unsealed in November 2005, the European Union Council issued a strong statement calling for the immediate detention and surrender of the five indictees. The issuance of the Red Notices this month means that police in any of the 184 Interpol member states, especially those states among the hub‑and‑spoke network anchored by Interpol that are also states party to the ICC Rome Statute, may capture and detain the suspects at any time on the authority of the ICC warrants.

The timing of the Red Notices, in spite of the political heat, may be questionable. Currently, by agreement with the Ugandan President Yoweri Museveni, Joseph Kony has almost a month in which to voluntarily bring a peaceful end to the LRA‑led rebellion and to resume peace talks with the government.^[6] It is unlikely that a manhunt, arrest, and trial of rebel leaders will be an inspiration to the possibility of a peace process.

Process of Surrender
Although the mechanism of surrender pursuant to an arrest warrant issued by the ICC is not subject to the same intricate laws regarding extradition between nations, it is important to know how to respond to this consent‑based request and how it can be challenged. In fact, provisional arrest presents one of the earliest opportunities for an individual to challenge the jurisdiction of the ICC.

After the subject of a Red Notice is provisionally arrested by a member state’s local police force, that state can surrender the individual from the state jurisdiction to the jurisdiction of the ICC when either of two criteria are met:

1. When the detainee consents to the surrender; or
2. When the ICC provides a request for surrender and supporting documentation within 60 days of the arrest.^[7]

If the detaining state is not also a state party to the ICC’s Rome Statute, the surrendering state is not legally bound to comply with the ICC request for surrender.^[8] In addition, the Court must respect any existing legal and diplomatic obligations of the surrendering nation when a second or third country is involved.^[9]

A detained individual may contest the surrender request on the grounds that the case is not admissible at the ICC, for instance, under the principle of ne bis in idem.^[10] For this particular challenge, the question of admissibility must be resolved before the state may execute the request for surrender.^[11]

Given the conflicting political pressures among the various parties, it will be interesting to see how the Red Notice effect is felt in this case and how the targeted individuals respond.

---

[1] Interpol Issues First ICC Red Notices, ICC Press Release, ICC-OTP-20060601-138-En, June 1, 2006 [hereinafter ICC Press Release]. See also Interpol Issues First Red Notices on Behalf of International Criminal Court, Interpol Press Release, June 1, 2006 [hereinafter Interpol].
[2] Interpol Issues Notices for Ugandan Rebel Leaders, Sudan Tribune, June 4, 2006 [hereinafter ST]. Persistent reports that Dominic Ongwen was killed last year in combat had not been confirmed at the time of this post.
[3] ICC Press Release supra note 1.
[4] Decision on the Prosecutor’s Applications for Warrant of Arrest Under Article 58, ICC‑02/04, July 8, 2005.
[5] Id. at pg. 8.
[6] ST supra note 2.
[7] ICC Rules of Procedure and Evidence, Rule 188.
[8] Rome Statute, art. 89(1).
[9] Id. at art. 98.
[10] Id. at arts. 89 and art. 20. The principle of ne bis in idem is similar to the "double jeopardy" bar against reprosecution in American criminal law. Article 20(3) states that “no person who has been tried by another court…shall be tried by the Court with respect to the same conduct…”
[11] Id. at art. 89(2).

War Crimes—Charles Taylor Venue Update

Last week, the Appeals Chamber at the Special Court for Sierra Leone dismissed Charles Taylor’s third challenge to the Court’s jurisdiction when it held that his motion to stay the change of venue was inadmissible.^[1]

Taylor’s defense attorneys had asked that the incoming Court President, George Gelaga King, put aside his predecessor’s request to move the trial to sponsored facilities in The Hague.^[2] Defense attorneys have maintained that it will be impossible for Taylor to receive a fair trial away from Freetown. In a previous post, we also discussed some of the security concerns that underlie the Court’s impetus to relocate Mr. Taylor’s trial proceedings outside Sierra Leone.

The Appeal Chamber rejected the motion, holding that the venue decision is entirely within the “administrative and diplomatic mandate” of the Court President.^[3] In essence, they refused to consider the motion as a proper challenge to the Court’s jurisdiction under Rule 72(b)(i) of the Rules of Procedure and Evidence, construing the decision instead as a purely administrative matter.^[4] If you buy the premise behind the ruling, the outcome makes perfect sense.

The possibility of moving the trial to The Hague also relies on the willingness of a third nation to act as host country for Mr. Taylor after he is either acquitted or sentenced. Denmark and Austria have already passed on the opportunity to provide jail space or asylum for the former Liberian leader.

Sweden was a no‑go as well, until the Swedish Parliament approved a special agreement last week with the Special Court that will permit it to act as host.^[5] Although the Parliamentary action has the effect of law, the government of Sweden has not yet decided whether the legislative enablement will cause it to change its response to the request.

At this point, Sweden holds all the cards. All of the other parties—the Special Court, the United Nations, the Kingdom of the Netherlands—are in agreement that the trial should take place outside Sierra Leone. However, the Netherlands’ agreement to host the trial proceedings hinges on the agreement of a third country to act as post‑trial host and the United Nations resolution that will permit its Special Court to conduct hearings off campus hinges on the Netherlands’ agreement to receive the Court.

Until the venue issue is resolved, the trial is likely to remain on hold. Last week, Special Court spokeman Peter Anderson told reporters that "The trial definitely is not expected to start before the end of this year."^[6]

---

[1] Sierra Leone: Decision on Taylor Trial Venue Rests with Head of Special Court, IRIN, June 1, 2006.
[2] Id.
[3] Decision on Urgent Defence Motion Against Change of Venue, Prosecutor v. Taylor, SCSL‑2003‑01‑R72, May 29, 2006.
[4] Id. See also Special Court of Sierra Leone Rules of Procedure and Evidence, Rule 72(b)(i).
[5] Charles Taylor Could Serve Prison Sentence in Sweden, Associated Press, June 3, 2006.
[6] Clarence Roy-Macaulay, Trial of Charles Taylor Unlikely to Proceed This Year, Associated Press, June 2, 2006.

Tibetan Genocide—Universal Jurisdiction Update

Last January, we discussed the High National Court of Spain’s decision to hear a suit filed by the non‑governmental human rights group Committee to Support Tibet. In the suit, the group asked that Spain bring charges of genocide and other international crimes against several former Chinese leaders for alleged crimes committed against Tibetan citizens in the 1950s. Although neither the alleged perpetrators nor the purported victims are Spanish citizens, and none of the alleged acts were committed on Spanish soil, Spain may bring charges under the principle of universal jurisdiction.

Today—nearly six months after accepting the case—the first hearings began at the High Court, Judge Ismael Moreno presiding, with witness testimony. ^[1] First to testify was Thubten Wangchen, a Tibetan refugee and naturalized Spanish citizen.^[2]

The suit was filed by the human rights group to convince Spain to assert universal jurisdiction over several individuals—including former Chinese President Jiang Zemin, former Prime Minister Li Peng, and other political and military leaders—for alleged crimes including genocide, crimes against humanity, torture, and terrorism.^[3] This principle of universal jurisdiction is rooted in the idea that no country should be able to offer safe haven to the perpetrators of the most heinous crimes. Therefore, any countries may assert jurisdiction over individuals accused of, for example, genocide rather than let this “crime of crimes” go unpunished.

Although the initial hearings are expected to be confined to witness testimony, Judge Moreno is also said to have requested documentary evidence held by the United States, Great Britain, and the United Nations that may relate to the location of possible victims and to records of international policies toward the 1951 occupation of Tibet by China.^[4]

If the Spanish High Court is convinced by the evidence presented in the hearings this week, it may decide to bring criminal charges against the accused individuals, most now in their 70s and 80s.^[5] The Court has not stated how long the hearings will last.

---

[1] Spain Opens Proceedings Against China for Treatment of Tibet, EITB, June 5, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Spanish Court Begins Proceedings in Lawsuit Over Alleged Abuses in Tibet, Mainichi Daily News, June 5, 2005.