Hariri Court—Lebanon JM, UN Legal Advisor Design Tribunal

High‑level preparatory meetings are taking place this week in anticipation of the upcoming report to the United Nations regarding the creation of special‑purpose international criminal tribunal to investigate and prosecute the alleged assassination of former Lebanese Prime Minister Rafiq al‑Hariri.^[1] The next report from the U.N.‑commissioned International Independent Investigation Commission (IIIC), headed by former International Criminal Court(ICC) investigator Serge Brammertz, is expected on or about September 29, 2006.^[2]

Nicolas Michel, U.N. Undersecretary General for Legal Affairs, met with Lebanese Justice Minister Charles Rizk and Prime Minister Fouad Seniora yesterday in Beirut to discuss the design of the Hariri tribunal.^[3] According to Justice Minister Rizk, the court will be located outside Lebanon for security reasons and will be comprised of two chambers, one for trials and one for appeals.^[4] The trial chamber will be comprised of three judges, one of them Lebanese, and the appeals chamber will be comprised of five judges, two of them Lebanese.^[5] In accord with existing international criminal courts, the Hariri tribunal will not have the authority to impose a penalty of death.^[6]

This proposed structure, especially the limited number of judges per chamber, indicates that the tribunal will be used to hear a very limited number of cases. The structural plans also differ from the example of the ICC and the U.N. ad hoc courts in that there is no mention of commissioning a pre‑trial chamber to deal specifically with issues of investigation, jurisdiction, admissibility, or other pre‑trial matters.

Justice Minister Rizk also announced his plans to seek official support for the tribunal from the Lebanese parliament.^[7] The Minister stated that he would be “receiving the UN's conditions to be followed, after which I will present the draft to the Cabinet who will later present it as a draft bill for Parliament to endorse."^[8] Regarding the actual plan for the tribunal, Minister Rizk noted that "[t]he draft remains a draft and when the Cabinet endorses it we will make it public."^[9] Talks between the U.N. legal advisor and Lebanese officials continue today.^[10]

The IIIC has been working on the establishment of a Hariri tribunal since April 2005 and is scheduled to continue through June 15, 2007.^[11] Recent setbacks have included the temporary flight of IIIC staff from an explosive Beirut earlier this summer and the recent assassination attempt of a senior police intelligence officer assigned to the investigation.^[12]

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[1] UN Legal Team in Beirut Planning Court to Try Hariri Case, Deutsche Presse Agentur, Sep. 7, 2006 [hereinafter DPA].
[2] Id.
[3] UN Legal Counsel in Beirut to Shape Hariri Tribunal, Reuters, Sep. 7, 2006 [hereinafter Reuters].
[4] Id.
[5] DPA supra note 1.
[6] International Court in Hariri Case Ongoing, UPI, Sep. 7, 2006.
[7] DPA supra note 1.
[8] Leila Hatoum, UN to Hand Over Hariri Tribunal Plan, Daily Star, Sep. 7, 2006.
[9] Leila Hatoum, Officials Silent on Details of UN Draft for Hariri Tribunal, Daily Star, Sep. 8, 2006.
[10] Reuters supra note 3.
[11] UN Legal Counsel Arrives in Lebanon to Discuss Tribunal Over Killing of Former Leader, UN News Centre, Sep. 6. 2006.
[12] Lebanese Link Attempted Killing to al‑Hariri Probe, Media Line, Sep. 6, 2006. See also Brammertz Bring Probe Back to Beirut, Daily Star, Aug. 30, 2006.

International Criminal Court (ICC)—DRC/Lubanga: Defense Appeal “Deemed Abandoned”

This week the Appeals Chamber at the International Criminal Court (ICC), sitting in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo), rejected a defense request to refer a jurisdictional appeal to the Pre‑Trial Chamber and dismissed the appeal effort as “abandoned.”^[1]

Last April, the defense challenged the admissibility of the case against Mr. Lubanga by raising the issue at the initial appearance and by appealing the Pre‑Trial Chamber decision granting the arrest warrant.^[2] In July 2006, the Appeals Chamber declared that it was not competent to hear that appeal.^[3] Subsequently, the defense filed a request for referral of the appeal to the Pre‑Trial Chamber or, alternatively, the right to discontinue the appeal rather than waive its right to contest this issue.^[4] Rule 157 of the Rules of Procedure and Evidence permits an appellant to discontinue an appeal at any time by submitting notice to the Registrar.^[5]

This week, the Appeals Chamber rejected the request to transfer the matter to the Pre‑Trial Chamber, stating that the “jurisdiction of the Appeals Chamber is different and distinct from that of the Pre‑Trial Chamber. It is a contradiction in terms to suggest that an appellate issue may be referred to the Pre‑Trial Chamber for adjudication in these circumstances.”^[6] The Appeal Chamber expressly left untouched the related question of whether or not the ex parte nature of a decision, like the decision granting the arrest warrant, affects a party’s right to appeal an admissibility decision under Article 82(1)(a) of the Rome Statute.^[7]

Second, the Appeals Chamber held that an “unconditional” request for discontinuance made in the alternative was contradictory and noncompliant with Rule 157.^[8] Moreover, it held that the request was noncompliant with the Chamber’s order to “define the appealable issues and clarify his submissions in support of them.”^[9]

Having made these findings, the Chamber noted that Regulation 29(1) of the Regulations of the Court permits the Chamber to address noncompliance with “any order that is deemed necessary in the interests of justice.”^[10] The Appeals Chamber stated that “because it is evident that the Appellant is disinclined to proceed with his appeal…[t]he Appellant’s conduct leads to the irresistible conclusion that the Appellant has abandoned the appeal.”^[11] The question for the defense now is how to deal with the admissibility challenge in the wake of the demise of this appeal effort.

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[1] Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre‑Trial Chamber/in the Alternative, Discontinuance of the Appeal, ICC‑01/04‑01/06‑393, Sep. 6, 2006 [hereinafter Decision].
[2] Appeal by Duty Counsel for the Defence against Pre-Trial Chamber I's Decision of 10 February 2006 on the Prosecutor's Application for a Warrant of Arrest, Article 58, ICC-01/04-01/06-57-Corr, Mar. 24, 2006.
[3] Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal, ICC-01/04-01/06-176, July 3, 2006.
[4] Demande de Renvoi à la Chambre Préliminaire/Désistement d’Appel en Ordre Subsidiare, ICC‑01/04‑01/06-189, July 10, 2006.
[5] ICC Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3, Rule 157.
[6] Decision supra note 1 at para. 9.
[7] Decision supra note 1 at para. 10.
[8] Decision supra note 1 at para. 12.
[9] Decision supra note 1 at para. 13.
[10] Decision supra note 1 at para. 13.
[11] Decision supra note 1 at para. 13.

International Criminal Court (ICC)—DRC/Lubanga Charges Update

Last month, we noted that the Office of the Prosecutor (OTP) has filed formal charges in its case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo (DRC)) at the International Criminal Court (ICC).^[1] The international crimes charges, outlined in a charging document, will be confirmed, denied, or sent back for amendments this month at a confirmation hearing before the Pre‑Trial Chamber I.^[2]

Mr. Lubanga is charged with individual responsibility as a “co‑perpetrator” for committing war crimes by “enlisting and conscripting children under the age of fifteen years and using them to participate actively in hostilities” between July 1, 2002 and December 31, 2003 in the North Eastern Ituri district of the DRC.^[3] The core offenses are charged in the context of a non‑international armed conflict under Article 8(2)(e)(vii) of the Rome Statute, read in conjunction with the Elements of Crimes.^[4] The mode of liability is specified in Article 25(3)(a).^[5]

This particular crime has never been charged before in an international criminal court. In fact, the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) do not include offenses against children or forced conscription as war crimes at all.^[6] Moreover, the Rome Statute is the first international criminal statute to codify war crimes committed during an internal armed conflict. The legal precedent was set in the historic decision by the Appeals Chamber at the ICTY in the Tadic case.^[7]

The objective elements of the crimes charged include the following:

1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.
2. Such person or persons were under the age of 15 years.
3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.
4. The conduct took place in the context of and was associated with an armed conflict not of an international character.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.^[8]

The confirmation hearing is scheduled for Thursday, September 28, 2006.

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[1] Pre-Trial Chamber I Receives Documents Containing the Charges and List of Evidence Against Mr. Thomas Lubanga Dyilo, ICC Press Release ICC-20060828-156-En, Aug. 28, 2006.
[2] Id.
[3] Document Containing the Charges, Article 61(3)(a), ICC‑01/04‑01/06‑356‑Anx2, Aug. 28, 2006.
[4] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 8(2)(e)(vii).
[5] Rome Statute, Art. 25(3)(a).
[6] Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/RES/827, Art. 3 (“The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; and (e) plunder of public or private property.”). See also Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955, Art. 3 (“These violations shall include, but shall not be limited to: (a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b) Collective punishments; (c) Taking of hostages; (d) Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Pillage; (g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples; (h) Threats to commit any of the foregoing acts.”)
[7] Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadic, IT‑94‑1‑AR72, Oct. 2, 1995 at paras. 71-78.
[8] Elements of Crimes, ICC‑ASP/1/3, Article 8(2)(e)(vii).

International Criminal Court (ICC)—Darfur: Expert Observations No. 1 (Antonio Cassese)

Last month the Pre‑Trial Chamber I in the investigation into the Situation in Darfur, Sudan, requested comments from two experts in the field of international criminal law on the issue of “the protection of victims and the preservation of evidence in Darfur.”^[1] This week, the ICC has made public the amicus brief filed by legal scholar and former Chair of the International Commission of Inquiry on Darfur, Professor Antonio Cassese.^[2] The second expert, United Nations Human Rights High Commissioner Louise Arbour, has requested a 30‑day extension of the filing deadline.^[3]

The obligation of the Court to protect alleged victims and potential witnesses is stated in Article 68 of the Rome Statute.^[4] In analyzing this provision, Prof. Cassese describes the motivation behind the statute as two‑fold: to place alleged victims in a position to testify, if they wish to do so, and to “forestall or impede the perpetration of crimes” concerning the individuals and the alleged acts under investigation.^[5] Prof. Cassese also notes that the continuing turmoil in the region has been reported by the Court to the United Nations Security Council as being “prohibitive of effective investigations.”^[6]

In light of his assessment of the risk of ongoing harm to individuals in the region, especially women and children, and the risk of degradation or destruction of the evidence, both testamentary and documentary, Prof. Cassese offers some specific and some general recommendations for how to go about the delicate task of protecting and collecting evidence. Ultimately, the viability of each recommended measure relies on the power of the United Nations Security Council, as the referring entity, to stand behind the Court’s requests for Sudanese compliance with its Chapter VII powers.^[7]

While this scheme is a procedurally necessary consequence of the fact that the ICC has no enforcement capabilities of its own and that Darfur, as a non‑State Party to the Rome Statute, is not bound by a legal obligation to cooperate with the requests of the ICC, there may be more far‑reaching implications. It is possible that the combination of an aggressive program of investigative requests by the Office of the Prosecutor, issued by the Chambers, could become an independent impetus for U.N. actions in Darfur. For instance, if the ongoing mistreatment of alleged victims in Darfur threatens both individuals and evidence, the Chambers could request, under the authority of Articles 56 (unique investigative opportunities) and 57 (functions and powers of the ­Pre‑Trial Chamber) to “take such measures as may be necessary” and to authorize the Prosecutor to take “specific investigative steps” as well.^[8]

Noncompliance with the Court’s measures may be reported to the Security Council for further action under Article 87(5)(b).^[9] Taken to this level, the request could result in an increased presence of U.N. “peacekeepers” in the region.

This proposal raises interesting questions. By invoking the power of the U.N. and its monitoring authorities in the course of an investigation, does the ICC become a driving force for international intervention in the conflict‑ridden area of Darfur? Could this procedural entry into the political arena have an effect on the collection of evidence beyond mere preservation? If so, would the benefits to individuals still affected by the continuing conflict outweigh judicial considerations? After all, the admissibility of the evidence collected is still a matter for the Court to decide at trial.

As Prof. Cassese carefully points out, Article 68 permits the Court to take measures to protect alleged victims only “to the extent that such measures ‘shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’.”^[10] In Darfur especially, this mandate is a tricky one to follow.

After all observations are received by the Court, the prosecution and ad hoc defense counsel assigned to this situation will have an opportunity to submit written responses to the recommendations.^[11] On August 25, 2006, the Registrar named Mr. Hadi Shalluf to serve as ad hoc defense counsel for the investigation in Darfur.^[12]

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[1] Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC‑02/05‑10, July 24, 2006 [hereinafter Invitation].
[2] Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending Before the ICC, ICC‑02/05‑14, Aug. 25, 2006 [hereinafter Brief]. Mr. Cassese noted that he did not rely on any unpublished information or oral briefings from the Court’s investigation in preparing his report.
[3] Application on Behalf of the United Nations High Commissioner for Human Rights, for Variation of Time, Pursuant to Regulation 35, in Respect of a Decision of Pre‑Trial Chamber I Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05-11, Aug. 18, 2006 (posted Aug. 21, 2006)
[4] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 68.
[5] Brief supra note 2 at para. 2.
[6] Brief supra note 2 at para. 3, citing Third Report to the UN Security Council
[7] Brief supra note 2 at paras. 4(b), 6(b), 7, and 8.
[8] Id. See also Rome Statute, Arts. 56(1)(b) and 57(3(d).
[9] Rome Statute, Art. 87(5)(b).
[10] Brief supra note 2 at para. 2, citing Rome Statue, Art. 68(1).
[11] Invitation supra note 1 at pg. 5.
[12] Decision of the Registrar Appointing Mr. Hadi Shalluf as ad hoc Counsel for the Defence, ICC-02/05-12, Aug. 25, 2006.