International Criminal Court (ICC)—Darfur: Publicity and Pressure

In a nice coda to Wednesday’s blog posting about the International Criminal Court (ICC) investigation into the Situation in Darfur, Sudan, there has been a huge amount of publicity surrounding celebrity statements to the United Nations urging strong action against the “genocide” in Darfur.^[1] Although the publicity is no doubt helpful in directing global attention to a part of the world that is awash in human suffering at the moment, the “genocide” buzz does not necessarily have a beneficial effect on the ongoing judicial process that is a vital part of the international response to conditions in Darfur.

In his humanitarian zeal, actor George Clooney told the United Nations yesterday that the crisis in Darfur is ''the first genocide of the 21st century,” well in advance of any legal finding of that nature.^[2] Ironically, Mr. Clooney also asserted that "[Hollywood celebrities] are fairly good at getting cameras to show up, so you try to be informed on some of the issues that you take on."^[3] Unfortunately, once those cameras start rolling, precision seems to bow to salesmanship.

Holocaust survivor and Nobel laureate Elie Wiesel, on the other hand, recognized the wider legal implications of using genocide rhetoric when he stated that ''I call it a process of genocide…I am usually very, very careful in using that word.”^[4] Last year, the United Nations Security Council referred the situation in Darfur to the ICC for investigation of possible international crimes occurring in the area.^[5] No charges have been brought yet as a result of the ongoing investigation.^[6]

Stoking the public’s emotions about Darfur may serve a useful political purpose, but it creates a degree of risk for the Court’s effort to end impunity for “the most serious crimes of concern to the international community.”^[7] Yesterday, we noted strong resistance from the ICC Office of the Prosecutor to a suggestion by expert Antonio Cassese that the Court’s investigation should assume a more interventionist or political role in Darfur.^[8] To do so would jeopardize the objectivity of the investigation and the possibility of a meaningful judicial process.

Although Mr. Clooney did not directly suggest that the ICC become involved with humanitarian missions, in light of the fact the investigation in Darfur was initiated by the U.N. Security Council, additional pressure in response to escalating popular opinion may require a significant expense of energy for the Court to resist. Moreover, the cost of inspiring the intended public response is the introduction of prejudice in future proceedings.

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[1] A search of Google news this morning turned up well over 500 articles about yesterday’s press conference.
[2] Evelyn Leopold, Clooney, Wiesel Tell UN Time Running Out in Darfur, Reuters, Sept. 14, 2006.
[3] Id.
[4] Leyla Linton, Clooney Urges U.N. Action on Darfur, Associated Press, Sept. 15, 2006. See also Geneva Convention on the Prevention and Punishment of Genocide (1948). See also U.S. v. Greifelt et al, 8 I.L.R. 1 (U. S. Military Tribunal at Nuremburg 1948). In the era of international criminal courts, there have been legal findings of genocide in cases concerning events in Rwanda and the former Yugoslavia. See also Judgement, Prosecutor v. Akayesu, ICTR‑96‑4‑T, Sept. 2, 1998. See also Judgement, Prosecutor v. Jelisic, IT‑95‑10, Dec. 14, 1999.
[5] UNSC Resolution 1593, S/RES/1593, (2005). See also The Prosecutor of the ICC Opens Investigation in Darfur, ICC-OTP-0606-104-En, June 6, 2005.
[6] Court documents and public information about the Situation in Darfur are available on the ICC website.
[7] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Preamble.
[8] Prosecutor’s Response to Cassese’s Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending Before the ICC, ICC‑02/05‑16, Sep. 11, 2006.

McNabb in the News (9/15/06)

Senior Principal Douglas McNabb has been quoted in a Las Vegas Review-Journal article about former Clark County Commissioner Lance Malone’s plea agreement.

Douglas McNabb, an … attorney who specializes in federal criminal cases, said Malone received a good deal.

"The advantage of pleading guilty for him is that he will do less time than if he were to go to trial and lose," McNabb said. "The downside is that he has to say that he did it, and he is still going to jail."

The government also is asking the court for a money judgment of up to $750,000. [District Judge Larry] Hicks must decide how much Malone paid elected officials to reach a figure for the judgment.

One avenue of collecting the money judgment is to identify fraudulent transfers. McNabb said the plea agreement suggests the government might go after assets Malone transferred to his ex-wife, Rosemary Palacios-Malone.^[1]

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[1] Adrienne Packer, Political Corruption: Malone Plea Deal Avoids Trial, Las Vegas Review-Journal, Sep. 15, 2006.

War Crimes (and Not War Crimes)—Charles Taylor Sr. and Jr. Updates

Former Liberian President Charles Taylor will appear in Courtroom I at the International Criminal Court (ICC) next Friday, September 22, for a status conference in his international crimes case.^[1] As we discussed previously, Mr. Taylor has been charged with 11 counts of war crimes and crimes against humanity by the United Nations' Special Court for Sierra Leone. He was transferred to The Hague in June 2006 after the Special Court determined that he could not get a fair trial in the capital city of Freetown, Sierra Leone.^[2]

It is likely that Mr. Taylor’s defense attorneys will raise issues concerning the conditions of his detention.^[3] Counsel argued at the last status conference that Mr. Taylor had been denied certain conditions ordered by the Special Court regarding his post‑transfer access to communication, counsel, and information. This month the Association for the Legal Defense of Charles Taylor demanded an official review of what they term “continued abuse and disregard for the inalienable rights."^[4]

Meanwhile, Mr. Taylor’s son Charles “Chuckie” Taylor has agreed to enter a plea of guilty to passport fraud charges in Miami, Florida, U.S.A.^[5] Mr. Taylor Jr. is scheduled to enter his plea before U.S. District Judge Donald Graham on Friday, September 15, 2006.^[6] Mr. Taylor Jr. has also been placed on a United Nations restricted travel list and is subject to business restrictions imposed by the United States Treasury Department.^[7]

If convicted of making false statements on his passport application, a violation of 18 U.S.C. § 1542, Mr. Taylor could face up to 10 years in prison. This statute permits more harsh penalties if the falsification was committed “to facilitate” an act of terrorism, drug trafficking, or other illegal activity.^[8]

Unfortunately, number of media sources carrying reports of Mr. Taylor, Jr.’s case as it moves through the federal system are also leveling allegations about events that Mr. Taylor may or may not have been involved in outside the United States and suggesting that he should be tried in the United States under its War Crimes Act (18 U.S.C. § 2441).^[9] These allegations have been resurfacing ever since Mr. Taylor’s arrest last March.^[10] So far, no new charges have been brought.

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[1] ICC Hearing Schedule, Week 38, September 2006.
[2] Special Court President Requests Charles Taylor to be Tried in The Hague, SCSL Press Release, March 30, 2006.
[3] Decision on Defence Oral for Orders Pertaining to the Transfer of the Accused to The Hague, SCSL‑03‑01‑PT, June 23, 2006.
[4] Liberia: Taylor’s Legal Defense Criticizes ‘Abuse of His Rights,’ The Analyst, Sept. 6, 2006.
[5] Son of Ex‑Liberian President to Plead Guilty to Passport Charge, Associated Press, Sept. 13, 2006 [hereinafter AP].
[6] Id.
[7] Id.
[8] 18 U.S.C. § 1542.
[9] Id. See also U.S. v. Emmanuel, No. 06-20263-CR-DLG, Docket Entry # 11.
[10] AP supra note 5. See also ‘Chuckie’ in Big Trouble, The Analyst, Apr. 5, 2006. See also Warlord Taylor’s Son Arrested in US, Reuters, Apr. 2, 2006.

McNabb in the News (9/14/06)

Senior Principal has been quoted in a Las Vegas Review-Journal article about former Clark County Commissioner Lance Malone.

"He was really in a very, very difficult situation," said Douglas McNabb, a … defense attorney who specializes in federal criminal cases and has followed the Galardi case closely.

"When you have so many cooperating people and you have those who actually did go to trial and lost, you run the risk of having your sentence stacked. There's a huge amount of pressure to try to work something out."^[1]

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[1] Adrienne Packer, Corruption Charges: Malone Discussing Plea Deal, Las Vegas Review-Journal, Sep. 14, 2006.

International Criminal Court (ICC)—Darfur: OTP Responds to Cassese

In last Tuesday’s post we summarized the observations submitted by former Chair of the International Commission of Inquiry on Darfur, Professor Antonio Cassese, to the International Criminal Court (ICC) on the issue of protecting alleged victims and potential evidence in Darfur, Sudan.^[1] Given the volatile state of affairs in that region—and the fact that the investigation was referred by the U.N. Security Council—balancing the protection of alleged victim/witnesses and ICC investigators, the independence of the Court, and the rights of defendants, is of vital importance.

This week, the ICC Office of the Prosecutor (OTP) submitted its written response to Prof. Cassese’s observations.^[2] Reacting to the same issues we noted in last week’s blog posting, Chief Prosecutor Luis Moreno Ocampo stressed that “[w]hile the OTP notes that the criminal investigation currently underway can and should have the consequence of contributing to the protection of the civilian population in Darfur, by preventing further crimes, neither the OTP nor the Chamber have a mandate under the Statute to establish or promote security in Darfur generally.”^[3] That responsibility, as stated in United Nations Security Council Resolution 1564 (2004), rests with the government of Sudan and the African Union.^[4]

The Prosecutor argued that Prof. Cassese’s recommendations outpace the scope of Article 68(1) in that they promote the creation rather than the protection of potential witnesses.^[5] Mr. Moreno Ocampo also objected to suggestions that his investigations should include monitoring and directing the judicial activities of the Sudanese government.^[6] Both measures would tend to pull the ICC into a political and partisan role while diverting it from the objective consideration of admissibility criteria including complementarity and gravity of the alleged offenses.^[7]

The issues raised by the expert observer are especially germane in light of the fact that the Situation in Darfur was referred to the ICC by the U.N. Security Council under its Chapter VII powers and Article 13(b) of the Rome Statute.^[8] Although a referral from the Security Council is irresistible, the Prosecutor is sending a clear message that the lawful obligations of the OTP and the Court under the Rome Statute are separate and distinct from the implied obligations that Prof. Cassese suggested should fall under the Court’s investigative powers with regard to the Situation in Darfur.

The Chief Prosecutor noted that the OTP already has made a conscious decision to conduct its investigations outside of Darfur, “precisely because the Prosecutor does not believe he can responsibly meet his obligations to protect victims and witnesses in Darfur under Article 68(1) of the Statute.” He announced that in the past 14 months of investigation the OTP has collected 9,750 pieces of evidence in 15 countries.^[9]

Observations from the second expert advisor, the United Nations High Commissioner for Human Rights Louise Arbour, are due in early October.^[10] Defense counsel and the OTP will have an opportunity to respond within 10 days of notification of the report.^[11]

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[1] 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.
[2] Prosecutor’s Response to Cassese’s Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending Before the ICC, ICC‑02/05‑16, Sep. 11, 2006 [hereinafter Response].
[3] Id.
[4] UNSC Res. 1564, U.N. Doc S/RES/1564 (2004).
[5] Response supra note 2 at para. 9. See also Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 68(1)(charging the Prosecutor with “appropriate measures to protect…victims and witnessess…during the investigation and prosecution of such crimes”).
[6] Response supra note 2 at para. 29.
[7] Rome Statute, Art. 17.
[8] UNSC Res. 1593, U.N. Doc S/RES/1993 (2005). See also Rome Statute, Art. 13(b).
[9] Response supra note 2 at para. 20.
[10] Decision on Request for Extension of Time Limit, ICC-02/05-13, Aug. 28, 2006.
[11] Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC‑02/05‑10, July 24, 2006.

International Criminal Court (ICC)—DRC/Lubanga: Amicus Request

An ICC‑focused international human rights advocacy group, the Women’s Initiatives for Gender Justice, has filed a motion with the International Criminal Court (ICC) requesting permission to submit an amicus brief addressing the role of the Pre‑Trial Chamber in Article 61 confirmation hearings.^[1] The case in question is Prosecutor v. Thomas Lubanga Dyilo, ICC‑01/04‑01/06, Situation in the Democratic Republic of the Congo.^[2]

If the request is approved, the group will argue two key points: That the Pre‑Trial Chamber has a duty to exercise a supervisory role with regard to the Prosecutor’s discretion in bringing international crimes charges against an individual, and that the Court should reconsider the criteria for granting “victim” status at the phase of the confirmation hearing.^[3] The goal of this review and reconsideration is to encourage the Office of the Prosecutor (OTP) and the Pre‑Trial Chamber to amend the charges to include acts other than the recruitment and use of child soldiers at Mr. Lubanga’s confirmation hearing later this month.

Supervisory Jurisdiction of the Pre‑Trial Chamber
The group will argue that “the Pre‑Trial Chamber has the power, and the duty, to satisfy itself that the Prosecutor’s decision on the charges is an appropriate exercise of the Prosecutor’s discretion in all of the circumstances.”^[4]

Article 61 of the Rome Statute authorizes the OTP to exercise discretion in determining which criminal charges to pursue against an individual defendant.^[5] Article 61(7)(c) requires the Pre‑Trial Chamber, if it is not satisfied with the sufficiency of the evidence presented at the confirmation hearing, to request further investigation or amended charges.^[6]

The point in dispute is whether or not the Chamber may look beyond the charges brought to it for confirmation. The group will argue that this provision should not be read more restrictively than articles that specify the Pre‑Trial Chamber’s role in investigative matters simply because it applies to a different phase of the prosecution.^[7] This argument would permit the Chamber to hear evidence relating to uncharged acts at the confirmation hearing, and then to request that the Prosecutor amend the charges accordingly.

Victim Status
The group also intends to take issue with the distinction between the status of alleged victims at the investigatory phase and the status of alleged victims at the (post‑arrest warrant) case stage, particularly as this distinction relates the Court’s mission of deterring “the commission of the crimes within its Statute, by prosecuting those who commit them.”^[8]

In the case against Mr. Lubanga, individuals who met the criteria for “victim” at the (pre‑arrest warrant) investigatory phase, as judged by the sufficiency of the causal relation between the alleged harm to the crimes within the jurisdiction of the Court, have been excluded from further proceedings because of an insufficient relation between the alleged harm and the crimes charged.^[9]

The result of this distinction, the group will argue, is the risk of impunity and failure to prevent future criminal acts. If the request to submit an amicus brief is granted, the group will propose that the proper remedies include a broader reading of the Pre-Trial Chamber’s power to judicially supervise the Prosecutor with regard to bringing criminal charges and the inclusion of evidence of uncharged crimes at the confirmation hearing.

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[1] Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Article 61 Confirmation Proceedings (With Confidential Annex 2), ICC‑01/04‑01/06‑403, Sep. 7, 2006 [hereinafter Request]. Additional information about the Women’s Initiatives for Gender Justice is available on their website.
[2] Id.
[3] Id. at para. 8(1) and (3).
[4] Request supra note 1 at para. 20.
[5] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 61(4). See also Rome Statute, Art. 41(1).
[6] Rome Statute, Art. 61(7)(c).
[7] Request supra note 1 at para. 8(2). See also Rome Statute, Arts. 56 and 57.
[8] Request supra note 1 at para. 8(1). See also Rome Statute, Preamble.
[9] Request supra note 1 at para 8(3).

International Criminal Court (ICC)—DRC/Lubanga: Redactions Update

The Pre‑Trial Chamber I sitting in the case against Thomas Lubana Dyilo (Situation in the Democratic Republic of the Congo) at the International Criminal Court (ICC) has issued a decision altering the pre‑confirmation hearing schedule in light of the Prosecution’s ongoing bids to withhold evidence in its charging documents.^[1] The Prosecutor’s discretion to redact evidence, consistent with the rights of the defendant and the demands of a fair and impartial trial, is authorized in Article 68(5) of the Rome Statute, for the purpose of protecting potential witnesses.^[2]

The Chamber revealed that at the ex parte hearing held on September 1, it ordered the Prosecution to address “concerns raised by the single judge,” at that hearing, and to refile the annexes to the charging document—including any amended charges, additional evidence, and additional requests for redactions—accordingly.^[3] Between August 28, when it filed the charging document and list of evidence, and August 31, the Office of the Prosecutor filed four motions requesting leave to redact documents, witness statements, and transcripts of witness interviews.^[4]

It is not known precisely what concerns the single judge raised at the September 1 ex parte hearing or what prompted the order for a “thorough revision of the documents presented by the Prosecution.”^[5] However, recognizing that the defense will not have access to “an important part of the evidence” led in the charging document in time to meet its own obligation to file a list of evidence by September 12, the Chamber suspended that deadline.^[6]

Finally, the Pre‑Trial Chamber denied a request for additional time and ordered the Prosecution to submit its amended charges, list of new evidence, and additional requests for redactions by September 12, 2006.^[7] The next ex parte hearing on the issue is scheduled for the same day.^[8]

The next status conference in this case is scheduled for September 19, 2006. At that time, the Pre‑Trial Chamber will announce a new date for the defense to submit its list of evidence and will consider the “consequences of this new deadline for the starting date of the confirmation hearing.”^[9] Currently, the confirmation hearing is scheduled for Thursday, September 28, 2006.

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[1] Decision on the Prosecution Deadline of 12 September 2006 and the Defence Deadline of 12 September 2006, ICC‑01/04‑01/06‑407, Sept. 7, 2006.
[2] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 68(5).
[3] Decision supra note 1 at pg. 5.
[4] Decision supra note 1 at pp. 4-9, citing Prosecutor’s Request for Authorisation of Redactions in Documents, ICC‑01/04‑01/06‑357‑Conf, Aug. 28, 2006. See also Prosecution’s Application Pursuant to Rules 8(2) and (4), ICC‑01/04‑01/06‑358‑Conf, Aug. 28, 2006. See also Prosecutor’s Request for Authorization of Redaction in Documents Previously Disclosed to the Defence, ICC‑01/04‑01/06‑363‑Conf‑Exp., Aug. 29, 2006. See also Prosecution Application Pursuant to Rules 81(2) and (4), ICC‑01/04‑01/06‑367‑Conf‑Exp, Aug. 30, 2006.
[5] Decision supra note 1 at pp. 6-7.
[6] Decision supra note 1 at pg. 7.
[7] Decision supra note 1 at pg. 6.
[8] Oral Decision Made by the Single Judge at the In Camera Hearing Held on 8 September 2006, posted Sept. 8, 2006.
[9] Decision supra note 1 at pg. 9.