- In Memoriam: Antonio Cassese
- ICTY Global Legacy Conference Review
- The Continuing Contempt of Florence Hartmann
- Challenges for the International Criminal Justice and the ICC following the Arrest of Saif Al-Islam Gaddafi
- The Netherlands responsible for three deaths in the Srebrenica genocide: Court of Appeal in The Hague rules on the attribution of conduct of Dutchbat during the Srebrenica genocide.
- Extraordinary Renditions in the Fight against Piracy in the Indian Ocean
- The Spanish Supreme Court applies for the first time the new Spanish norms on universal criminal jurisdiction
We are pleased to present the Spring Issue of Accountability which opens with a dedication to an individual who has shaped modern international criminal justice immensely and remains unmatched in its academic world. In tribute to Judge Antonio Cassese, who passed away in October 2011, the first section of this issue reviews the world of international tribunals paying particular attention to the ICTY and the ICC. The second section of this issue turns towards the domestic trends of universal jurisdiction and jus cogens crimes in national courts. Judge Cassese spent a lifetime elevating the scholarship of international criminal law and this issue of Accountability serves to reflect the ongoing discussions of the field continued by the ASIL ICL Interest Group.
In his in memoriam piece, Jens David Ohlin outlines the accomplishments of Judge Cassese in his roles both as a practitioner and academic of the law. Ohlin provides us with a brief yet moving reflection on the contributions of Judge Cassese to the various tribunal benches he has sat on and landmark decisions he took part in. Ohlin continues through Judge Cassese’s role with the ICC and its investigation in Darfur and ultimately he latest positions with the Special Tribunal for Lebanon. The latter half of Ohlin’s dedication notes only a few of Judge Cassese’s monumental publications and the academic legacy he leaves behind. In their articles, Gentian Zyberi and Joseph William Davids continue to explore the impact of the ICTY. In his piece which summarizes the ICTY Global Conference which took place in November 2011, Zyberi outlines the discussions amongst judges, organizations and academics regarding both the substantive and procedural influence the ICTY leaves on international criminal justice. Davids explores more in-depth the issue of enforcement at the ICTY as regards contempt judgments. Specifically, Davids analyses the case of Ms. Florence Hartmann and argues that the time and resources involved in contempt proceedings outweigh the benefits achieved from punishing contempt of court at the international level. Konstantinos Magliveras in the next article in this issue of Accountability reflects on the ICC's recent arrest of Saif Al-Islam Gaddafi and presents the debate surrounding the proper jurisdiction, whether national or international, for his trial and accompanying questions regarding his extradition.
The impact of national jurisprudence in international criminal law is explored in the last three articles by Sylvia Maus, Stefan Kirchner and Nicolas Zambrana. A piece contributed by Sylvia Maus evaluates two recent Dutch Appellate Court decisions holding the Netherlands liable for the actions of a Dutch battalion leading to the loss of life in Srebenica despite generally being under control of the UN. These judgments respond to the unique situation when a government exercises increased control of a force that is generally under UN command. A look at recent national jurisprudence continues with Stefan Kirchner's review of an Administrative Law Court in Germany that determined the prison standards in Kenya should have precluded the extradition of Somali pirates through the application of prior European Court of Human Rights rulings. Finally, the last contribution to this issue provides a brief overview to a Spanish Supreme Court refusal to hear a universal jurisdiction case stemming from a theory of economic expansion against individuals within the Chinese government for alleged crimes in Tibet.
The legacy and contributions of Judge Antonio Cassese will continue as international criminal law continues to evolve. The articles in this issue highlighting the achievements and jurisprudence of the international tribunals evidence this evolution. The pieces that review the decisions of national courts illustrate the pervasiveness of international criminal principles at the domestic level. On behalf of the entire ASIL ICL Interest Group, I would like to thank all of the contributing authors for their efforts and furthering the framework of Accountability.
[*] Margaret Zimmerman, B.A., J.D., M.st. (Oxf), Ph.D.c. is an American attorney currently pursuing doctoral studies at the Queen’s University Belfast (www.margaretzimmerman.com).
In Memoriam: Antonio Cassese
Judge Antonio Cassese passed away at his home in Florence, Italy, on October 21, 2011, at the age of 74. Perhaps no other single individual had such a profound impact on the scholarship and practice of international tribunals.
At his death, Judge Cassese was an Appeals Judge at the Special Tribunal for Lebanon. He had stepped down as President of the STL on October 1, 2011, as his health started to deteriorate. Prior to that, Judge Cassese had for many years served as President, Appeals Chamber Judge, and Trial Chamber Judge at the ICTY, and was a driving force behind many of its most influential decisions. These included the Tadić decision upholding the jurisdiction of the tribunal and the authority of the Security Council to create the tribunal under its Chapter VII power; the hugely influential Tadić decision on Joint Criminal Enterprise; as well as decisions applying international humanitarian law to internal armed conflicts and applying crimes against humanity without a nexus to any armed conflict. His famous minority opinion in Erdemović is still considered required reading for anyone working on the defenses of duress and necessity.
ICTY Global Legacy Conference Review
The ICTY Global Legacy Conference took place in The Hague on 15 and 16 November (for more information see: http://www.icty.org/sid/10405). This conference brought together over 350 leading academics, international judges and practitioners, state representatives and members of civil society (see ICTY press release at: http://www.icty.org/sid/10852). The event was organized by the outgoing President Robinson and his team with the financial support of the governments of the Netherlands, Luxembourg, Switzerland, Korea, the Municipality of The Hague and the Open Society Justice Initiative. Due tribute was paid by many of the speakers to the significant contribution of the late Judge Antonio Cassese to the activity of the ICTY and more generally to international criminal justice. There were four panels focusing respectively on the following topics: the impact of the Tribunal’s substantive jurisprudence on the elucidation of customary international humanitarian law; the impact of the tribunal on the future of global justice and the advancement and enforcement of human rights; the interaction of common and civil law procedures in the work of the tribunal: efficiency and fairness in complex international trials; and the tribunal’s jurisprudential contribution to the clarification of the core crimes of genocide, crimes against humanity and war crimes. Each panel was composed of eminent legal scholars and practitioners. The large number of panel participants, however, ended up impinging on the time reserved for discussions.
The Continuing Contempt of Florence Hartmann
On 11 October 2011, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) issued a decision ordering Ms. Florence Hartmann to explain why, instead of paying the fine imposed on her for contempt of court in the way designated by the Registry, she had money deposited in a French bank account for retrieval by the Tribunal. Ms. Hartmann was also ordered at the same time to pay the fine in the manner indicated by the Registry. She did not pay the fine in the manner directed. On 16 November 2011, the Appeals Chamber converted the 7,000 Euro fine into a seven-day jail term and issued an international arrest warrant for Ms. Hartmann. The Chamber did not indicate whether it intended to charge Ms. Hartmann with contempt a second time for failure to pay the fine as permitted by Rule 77bis(D).
At this point it is important to stress that no one, especially not this author, is suggesting that contempt of an international tribunal should go unpunished. The question I would like to raise is whether the methods selected by the Tribunal to enforce the prior judgment of contempt are the most prudent considering that the proceedings are discretionary.The Tribunal is starting a process that could potentially take over a year to conclude (assuming full process is given for any subsequent contempt finding) in order to enforce a specific manner of payment of a fine. This process could wind up costing the international community time and money best spent elsewhere.
Challenges for the International Criminal Justice and the ICC following the Arrest of Saif Al-Islam Gaddafi
In late February 2011, the UN Security Council dealt with the civil uprising in Libya and the use of violence by the Gaddafi regime to contain it by unanimously adopting Resolution 1970(2011), which, inter alia, referred the Libyan situation to the International Criminal Court (ICC) pursuant to Article 13(b) of the Rome Statute. Arguably, at the time it could not have been envisaged that six months later the regime would have collapsed and the Colonel himself would be killed under controversial (to say the least) circumstances and without being first brought before a court of justice to be tried for the myriad of crimes accused of.
It was the second time in the history of the ICC that the Security Council invoked its discretion under Article 13(b) of the Rome Statute to confer jurisdiction to the ICC Prosecutor to commence the investigation into a “situation” in which crimes appear to have been committed. The first time was in March 2005 under Resolution 1593(2005) and concerned “the situation in Darfur”. On 3 March 2011, the Prosecutor promptly opened an investigation to ascertain the individuals who might bear responsibility for the murderous attacks on civilians in the Libyan uprising after 15 February 2011. On 27 June 2011, ICC Pre-Trial Chamber I issued arrest warrants for the following: (a) Colonel Gaddafi; (b) Saif Al-Islam Gaddafi, his son and heir apparent also acting as de facto prime minister; and (c) Abdullah Al-Senussi, the Colonel’s brother in law and head of military intelligence. They were accused of allegedly committing crimes against humanity (in particular, murder and persecution), prohibited under Article 7(1) of the Rome Statute, through the State apparatus and security forces across Libya from 15 February 2011 until at least 28 February 2011.
According to a recent ruling of the Dutch Court of Appeal in The Hague, the State of the Netherlands is responsible for the death of three Muslim men during the massacre in Srebrenica in 1995. With its simultaneous and practically identical judgments regarding the civil claims of Mustafic-Mujic et al v. The Netherlands and Nuhanovic v. The Netherlands, issued in July 2011, the Court of Appeal reversed the also practically identical judgments of the District Court in The Hague of 10 September 2008.
In short, the Court found actions of the Dutch battalion (“Dutchbat”) of the United Nations Protection Force (UNPROFOR) to be unlawful under human rights law and considered those unlawful acts attributable to the Netherlands.
The rulings, even though issued by a national court, will most likely spur renewed debate on a much-contested topic of international law, namely the question of accountability for unlawful conduct of troop contingents in international missions. Before going into more detail on the issues of applicable law and attribution of conduct below, first some factual background will be presented.
Extraordinary Renditions in the Fight against Piracy in the Indian Ocean
Piracy may be “the original […] international […] crime” but the international community has failed to come up with convincing judicial answers to this pressing problem. Despite the legal questions associated with the use of extraordinary renditions in the context of the Global War on Terror, some states have now made a very similar program part of their official policy in the context of the fight against piracy in the Indian Ocean. As there is no functioning judicial system in Somalia which could bring Somali pirates to justices, states involved in naval operations such as the EU NAVFOR Operation Atalanta are faced with the choice of either bringing arrested suspects back to their home country, potentially after a long time in the brig. Given the costs associated with keeping prisoners, transport etc., not to mention the fact that modern warships are hardly designed to serve as floating prisons, European countries have turned to other states, such as Kenya or the Seychelles, for help. EU NAVFOR naval forces operating in the Indian Ocean have been handing over suspected pirates to both countries so that they may be brought to justice there. These renditions have occurred without formal international treaties between the States involved in Operation Atalanta and said States and most of the time, regular extradition procedures will not be applicable in such cases due to a lacking connection between the requesting state (e.g. the Seychelles) and the suspect, the victim or the location where the crime was committed.
The Spanish Supreme Court has refused to hear the appeal filed by a human rights interest group in a case against several members of the Chinese Government for alleged genocide against the people of Tibet. In 2008, the Audiencia Nacional (a special court with jurisdiction to hear universal jurisdiction cases) at the request of the aforementioned HRs interest group had initiated investigatory proceedings against several members of the Chinese Government for genocide. Following a reform of the Spanish rules on universal criminal jurisdiction in 2009, which was approved with the consent of most Spanish political parties and which made it necessary for the accused to be in Spain, for the victims to be Spanish or for a relevant relationship with Spain to exist, the Audiencia Nacional stayed the case in 2010 and the HRs interest group filed an appeal before the Supreme Court which has now been quashed.