McNabb in the News (6/23/06)

Senior Principal Douglas McNabb has been quoted in an article in London’s Independent newspaper about the recent refusal of the House of Lords to hear the appeals by Ian Norris and the NatWest Three.

Lawyers point out that Britain has a different legal culture when it comes to white-collar crime and fines are far more common here than jail sentences. The highest corporate sentence of 14 years in prison went to Abbas Gokal, who was found guilty in 1997 for his role in the collapse of BCCI. In the US, sentences of 164 years are possible in theory (though 35 years would be served).

…

Douglas McNabb, a US extradition specialist, said the NatWest trio could face 23 years in jail if their final appeal fails and they are extradited to Houston, and even if they were found not guilty on fraud charges, they could be tried on related money-laundering charges.^[1]

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[1] Julia Kollewe, Fast-Track Extradition Treaty in the Dock Over ‘Imbalances’, The Independent (UK), Jun. 23, 2006.

ICC—Situations Update

Noting the coincidental timing between the lag in judicial activities at the International Criminal Court (ICC) in The Hague and the commencement of the World Cup soccer tournament this month, the following is an update of ongoing Court investigations and judicial proceedings.

Democratic Republic of the Congo (DRC)
In the case against Thomas Dyilo Lubanga, the Prosecution was scheduled to provide a second review of “inspection” evidence under the System of Disclosure yesterday.^[1] The first review was held on June 19 and included nine documents and one video.^[2] The period of inspection is scheduled to continue until September 18, 2006.^[3]

The Pre‑Trial Chamber I will hold a public status conference on the case tomorrow, June 23, 2006, at 11 am (10 am GMT).^[4]

Uganda
The Office of the Prosecutor conducted an “informational” workshop for local governments affected by the Court’s investigation into the activities of the Lords Resistance Army (LRA).^[5] The participants included 5 representatives from 11 Districts: Gulu, Kitgum, Adjumani, Pader, Lira, Apac, Kaberamaido, Amuria, Amolatar, Katakwi and Soroti.^[6]

ICC representatives presented information about the ICC and its procedures with regard to the situation in Uganda.^[7] Other topics included “outreach” to local resources and information about “how victims can participate in Court proceedings.”^[8] A second workshop of similar ilk was held in Lango, Northern Uganda.^[9]

Darfur, Sudan
The Chief Prosecutor of the ICC, Luis Moreno Ocampo delivered a report to the United Nations Security Council in which he reported on progress made in the evidence‑gathering phase of this investigation.^[10] We discussed this report in a previous post.

Central African Republic
This investigation is still in an exploratory phase. Judge Sylvia Steiner was appointed Presiding Judge of the Pre‑Trial Chamber III in March 2006.^[11]

This situation was referred by the government of the Central African Republic.^[12] The Republic has been a State Party to the Rome Statute since it deposited an instrument of ratification with the Secretary General of the United Nations on October 3, 2001.^[13]

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[1] Submission of Evidentiary Materials, Previously Disclosed to Counsel for the Defence, Pursuant to Article 61(3)(b) of the Rome Statute, ICC‑01/04‑01/06‑152, June 14, 2006.
[2] Id. See also Decision on the Final System of Disclosure and the Establishment of a Timetable, 15 May 2006 [hereinafter Timetable].
[3] Timetable supra note 2.
[4] Pre Trial Chamber I to Hold Public Hearing on 23 June 2006 at 11.00 a.m., ICC Press Release ICC‑20060622-141-En, June 22, 2006.
[5] ICC Holds Workshop in Northern Uganda with New Local Government Leaders, ICC-20060621-141-En, June 21, 2006.
[6] Id.
[7] Id.
[8] Id.
[9] ICC Holds Informative Workshop in Northern Uganda with Lango Cultural Leaders, ICC-20060621-142-En, June 20, 2006.
[10] Third Report of the Prosecutor of The International Criminal Court To The UN Security Council Pursuant to UNSCR 1593 (2005), June 14, 2006.
[11] Election of the Presiding Judge of the Pre‑Trial Chamber III, ICC-01/05-4, Mar. 28, 2006.
[12] Prosecutor Receives Referral Concerning Central African Republic, ICC‑OTP‑20050107‑86-En, Jan. 7, 2005.
[13] States Parties: Central African Republic (African States), available on the ICC website.

Charles Taylor—Where are the Defense Attorneys?

We noted last Thursday that the United Kingdom agreed to house accused Liberian former President Charles Taylor in the event that he is convicted on charges of war crimes and crimes against humanity by the Special Court for Sierra Leone.^[1] This move opened the way for Mr. Taylor’s transfer to The Hague for the duration of his trial.

In short order, the United Nations Security Council unanimously adopted Resolution 1688 (2006) to permit the Special Court to hear the case outside of its tribunal seat in Sierra Leone.^[2] The Resolution contains specific terms, including acceptance of the Netherlands as host country, provisions for broadcast of the trial proceedings in Sierra Leone, and so forth.^[3]

Yesterday, Mr. Taylor arrived in the custody of the United Nations in The Hague.^[4] He is now ensconced in the International Criminal Court (ICC) detention facility in the town of Scheviningen. With the transfer complete, no doubt the defense has its hands full preparing for the trial.^[5]

But it is disturbing that the defense seems to be completely unprepared to fight, if the court of public opinion is any measure. The Special Court—comprised of the Chambers that will sit in judgment of Mr. Taylor, the Prosecutor that seeks his conviction, and the Registry that is charged with administering the proceedings—has been unrestrained in presenting its version of the facts to the world.

Yesterday, to mark the historic transfer to The Hague, the Court that must attempt to render a fair and judicious verdict in this case, posted a dozen digital photos and video footage showing Mr. Taylor in handcuffs and in the custody of heavily armed U.N. guards.^[6] The statement at the bottom of the page states that, “Photos may be used freely, attributed to the Special Court for Sierra Leone.”

Remarkably, there have been no reports of objections filed by the defense to this highly prejudicial move by the Court. Defense attorneys have not pointed out to the hungry press that the photos and their shameless global publication indicate that the Court has dispensed with the statutory presumption of innocence until proven guilty.^[7]

David Crane, the former Chief Prosecutor at the Special Court, has also been all over the media coverage of this trial. His statements, all conveying the assumption of Mr. Taylor’s guilt, have gone unanswered as well. Today Mr. Crane has had the opportunity to interpret for us the Court’s photos and the media coverage of the transfer: “For [the people of West Africa] to see Charles Taylor—who was so feared—humbled before the law, it is special because justice is being done."^[8] If this is what “justice” means, why bother with a trial and a defense at all?

Mr. Crane, who is credited with compiling the original indictment added, “I wouldn't have signed the indictment unless I was convinced beyond a reasonable doubt."^[9]

The Special Court, like the International Criminal Court and the International Criminal Tribunals for the Former Yugoslavia and Rwanda, is composed of three organs that presumably work together in the search for truth. However, Mr. Crane has been quoted as saying that the Court is for the victims. If this bias is so deeply embedded, defense attorneys must challenge it as a threat to the fairness of the Special Court early and often.

Finally, we noted last week that the conditions precedent to moving Mr. Taylor’s trial to The Hague were declared met when the U.K. agreed to provide post-conviction accommodations rather than the conviction‑or‑acquittal commitment that was required initially.

Leaving aside the correctness of providing a confined safe haven for an acquitted person, the acceptance is noteworthy for completely leaving out the possibility that Mr. Taylor will not be found guilty. Again, there has been no public response or objections filed by the defense representing Mr. Taylor’s rights and interests. Do Mr. Taylor's defense attorneys find this activity acceptable and just?

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[1] Amended Indictment, Prosecutor v. Taylor, SCSL‑2003‑1‑I, Mar. 16, 2006.
[2] UNSC Res. 1688 (2006) printed in U.N. Security Council Press Release, June 16, 2006.
[3] Id.
[4] Rory Carroll, Charles Taylor Flown to The Hague to Face War Crimes Trial, Guardian Unlimited, June 21, 2006.
[5] Taylor in Hague, Prepares Defense for Trial, Reuters, June 21, 2006.
[6] Photos of Charles Taylor Transfer from Freetown, Special Court for Sierra Leone Court Journal, June 20, 2006.
[7] Statute of the Special Court for Sierra Leone, art. 17(3).
[8] Former Liberian Leader Awaits War Crimes Trial, Associated Press, June 21, 2006.
[9] Arthur Max, Taylor Trial Could ‘Name and Shame’ Gadaffi, Associated Press, June 20, 2006.

ICC—U.S. Changing Position?

The United States has been steadfast in its objections to the jurisdiction of the International Criminal Court (ICC) since 2002.^[1] However, recent reports in the news and other sources indicate that the United States is running a little hot and cold with regard to the ICC, at least with regard to the prosecution of non‑U.S. citizens. Whether this trend indicates a genuine shift in policy or is the simply the necessary result of positions that would be otherwise internally inconsistent remains to be seen.

The following are statements from U.S. officials in various capacities:

• On the one hand: Official U.S. reservations to the pro‑ICC position taken in the Organization of American States General Assembly Resolution AG/RES 2176 entitled “Promotion of the International Criminal Court,” June 6, 2006:
  
  “The United States has long been concerned about the persistent violations of international humanitarian law and international human rights law throughout the world. The United States will continue to be a forceful advocate for the principle of accountability for war crimes, genocide and crimes against humanity, but cannot support the flawed International Criminal Court. Thus, the United States has not ratified the Rome Statute and has no intention of doing so. In light of this position, the United States cannot join in the consensus on an OAS resolution that promotes the Court."^[2]
  
  
• On the other hand: John Bellinger, lead attorney for the U.S. State Department, stated that the U.S. does “acknowledge that [the ICC] has a role to play in the overall system of international justice” (reported June 14, 2006).^[3]
  
  The article also reported that United States ambassador to the U.N. John Bolton went so far as to send a deputy to last Thursdays report to the U.N. by ICC Chief Prosecutor Luis Moreno Ocampo.^[4]
  
  
• And: U.S. officials, including President Bush in a commencement address yesterday, have labeled the events occurring in Darfur as a “genocide” and have proposed creating a special criminal tribunal to prosecute individuals for alleged international crimes committed in the Sudan.^[5]
  
  However, after the massive amounts of money already spent on the U.N.‑backed tribunals for the Former Yugoslavia, Rwanda, and Sierra Leone—not to mention the two tribunals just getting started for Cambodia and Lebanon—the idea of yet another court, especially since the ICC has already initiated an investigation into the region, is unlikely.
  
  To complicate things further, because the Sudan is not a State Party to the Rome Statute the matter in Darfur must be referred by either the U.N. Security Council or the ICC Prosecutor himself.
  
  So, pushed into either giving up the mission in Darfur (essentially giving tacit approval to a “genocide”) or allowing the Security Council to refer the matter in Darfur for prosecution, the U.S. acquiesced by abstention in this vote.^[6]

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[1] Overview to the United States’ Opposition to the International Criminal Court, Coalition for the International Criminal Court (last visited Jun. 20, 2006).
[2] OAS Calls for Ratification of the Rome Statute, Jus in Bello (Pace University Law School blog), June 13, 2006. See also OAS AG/RES 2176, ftnt. 1, June 6, 2006.
[3] Jess Bravin, US Warms to Hague Tribunal, Wall Street Journal, June 14, 2006 [hereinafter WSJ].
[4] Id.
[5] Id. See also Remarks by President Bush in Commencement Address at the United States Merchant Marine Academy, White House Press Office, June 19, 2006.
[6] WSJ supra note 3.

ICC—DRC: Ad Hoc Defense Counsel

The International Criminal Court (ICC) has appointed two ad hoc counsel for the defense to represent the interests of the defense generally, in the situation in the Democratic Republic of the Congo (DRC). These special advocates are appointed by the Pre‑Trial Chamber under the authority of the Rome Statute, the Regulations of the Court (Regulations), and the Rules of Procedure and Evidence (Rules).^[1] Ad hoc counsel are paid through the Court’s Legal Assistance program.^[2]

Regulation 76: Appointment of Defence Counsel by a Chamber
(1) A Chamber, following consultation with the Registrar, may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests of justice so require.

Rule 89: Application for Participation of Victims in the Proceedings
(1) …Victims shall make written application to the Registrar…the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply…

Article 56: Role of the Pre‑Trial Chamber in Relation to a Unique Investigative Opportunity
(1) (a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony…collect or test evidence, which may not be available subsequently for the purposes of trial…
(b) …the Pre‑Trial Chamber may…take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defense.

On August 1, 2005, Tjarda van der Spoel received his “solemn undertaking” to serve as ad hoc counsel “to represent the general interest of the defence for the purpose of the forensic examinations.”^[3] Mr. van der Spoel’s purview specifically concerns the review of the confidential report on the DRC situation that was commissioned by the Office of the Prosecutor from the Netherlands Forensic Institute (NFI).^[4]

On May 18, 2006, the Pre‑Trial Chamber I appointed Joseph Tsimanga to serve as ad hoc defense counsel for the purpose of interfacing with the applications of alleged victims who wish to participate in the investigation and trial process for the situation in the DRC under Rule 89 of the Rules of Procedure and Evidence.^[5] Mr. Tsimanga’s role will be to receive and reply to the applications on behalf of the defense, not only in the case of Thomas Dyilo Lubanga, but in other cases that may be brought as a result of the investigation of this situation.^[6]

In this role, the ad hoc counsel serves as a layer of distance between alleged victims and the defense. The policy underlying the insertion of layer of protection, which also includes redaction of the identity of the alleged victims, is to encourage individuals to come forward with evidence. The alleged victims are also represented by their own legal counsel.^[7]

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[1] Regulations of the Court, Reg. 76(1). See also Rome Statute, art. 56(1) and 56(2). See also Rules of Procedure and Evidence, Rule 89.
[2] Appointment Of Mr. Tjarda Van Der Spoel As Ad Hoc Counsel For The Defence Pursuant To The Decision Of Pre-Trial Chamber I Dated 26 April 2005, ICC‑01/04, Aug. 1, 2005 [hereinafter van der Spoel].
[3] Id.
[4] Decision on the Prosecutor’s Request for Measures Under Article 56, ICC‑01/04, Apr. 26, 2005.
[5] Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06, ICC‑01/04, May 18, 2006.
[6] Id.
[7] Id.