This issue of Accountability takes account of recent trends in international criminal law with a particular eye towards the future of prosecuting international crimes. In doing so, the issue opens with Keith Petty and Dov Jacobs discussing the crime of aggression. In a point-counter-point format, these authors examine the arguments for and against the UN Security Council playing a role in defining the crime and determining jurisdiction over the crime. While this section of the newsletter focuses on the progression of the ICC, the next two articles bring to light the challenges faced by the closing ad hoc tribunals highlighted by Valerie Oosterveld in her recap of the ASIL conference roundtable which took place in March 2010. This is explored further by Ousman Njikam’s article examining the ICTY’s procedures of pardoning, sentencing and early release which, he points out, act to ensure the continuation of the tribunal’s efforts towards justice. The pursuits of justice continue at the Special Court for Sierra Leone where Haydee Dijkstal studies an accused’s right to counsel as it has played out in the Charles Taylor trial court over the past year. Pubudu Sachithanandan in his article regarding the Office of the Prosecutor’s Policy Paper on Victim Participation provides an overview of the procedural safeguards and way forward for victims at the ICC. The newsletter wraps up with a domestic look at prosecuting international crimes when Olga Martin-Ortega and Rosa Ana Alija-Fernandez highlight the efforts of Argentinean courts to open cases under the principle of universal jurisdiction for those crimes committed during Francoist Spain. The ASIL ICL Interest Group would like to thank the authors who have contributed to this newsletter for their efforts. They have provided a glimpse into the progression of international criminal law from a substantive viewpoint regarding the future of the crime of aggression, procedural safeguards at both the ICC and ad hoc tribunals and the rise of national prosecutions.
Point-Counter-Point: Discussing Aggression at the ICC
Dov Jacobs & Keith Petty
The Kampala ICC Review Conference ended in dramatic style with the adoption by the Assembly of States Parties of a definition for the crime of aggression at 12:10am Saturday, June 12, 2010. While the definition remains largely unchanged from pre-conference drafts, the conditions for the exercise of jurisdiction in Articles 15 bis and 15 ter provide significant caveats to the ICCs independent jurisdiction. Specifically, jurisdiction does not extend to acts of aggression committed on the territory of or by nationals of non-state parties, State parties may opt-out of the Court’s jurisdiction over aggression, and the crime will not come into effect until 2017 at the earliest. Debates in international legal circles are already underway as to whether the jurisdictional provisions, most notably in relation to the involvement of the Security Council, are appropriate given the political nature of the crime, or whether the final amendments conceded too much in order to achieve consensus. Many of these issues are explored in the next segment; a point-counterpoint discussion between Dov Jacobs and Keith A. Petty. Written prior to the Review Conference, these essays provide a backdrop to key legal issues in the aggression debate which, even if partly moot following the Kampala resolution, remain legitimate concerns for academics and practitioners alike when analyzing the implementation of the adopted definition in the future.
Getting to Closure: Winding up the International and Hybrid Criminal Tribunals
A roundtable on “Getting to Closure: Winding up the International and Hybrid Criminal Tribunals” took place on Thursday, March 25 from 9:00-10:30 a.m. at the 2010 ASIL annual meeting The room was very full, indicating widespread interest in the issue of closing the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR respectively), the Special Court for Sierra Leone and, eventually, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Tribunal for Lebanon (STL). The roundtable began with short presentations by the speakers. Huw Llewellyn of the UN’s Office of Legal Affairs and Secretariat to the Security Council’s Informal Working Group on International Tribunals explained the current state of discussion within the Security Council on the closure of the ICTY and ICTR in 2014. A May 2009 Secretary-General’s report identified key residual functions that would need to be addressed after the physical closure of the current ICTY and ICTR infrastructure: trial of fugitives, trial of contempt cases, protection of witnesses, review of judgments, referral of cases to national jurisdictions, supervision of enforcement of sentences, assistance to national authorities and management of the archives [UN Doc. S/2009/258 of 21 May 2009].
The Practice of Pardon, Commutation of Sentence, and Early Release at the International Criminal Tribunal for the former Yugoslavia
Since the Nuremberg and Tokyo Trials which took place after WWII, the international criminal justice system has developed with the establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda the so-called mixed Tribunals as well as the International Criminal Court. Numerous articles discuss the work of these international criminal institutions, in particular the International Criminal Tribunal for the former Yugoslavia (“ICTY”). However, not much has been written on the practice of pardon, commutation of sentence, and early release by the ICTY. One of the criticisms the ICTY is often faced with, is that those convicted for the most egregious international crimes more often than not regain their freedom before having served the full sentence imposed on them by the judges. This criticism is to a great extent based on a lack of knowledge of the regulations that govern the pardon or commutation of sentence, or early release of those sentenced by the Tribunal. This paper discusses the practice of the Tribunal in relation to early release and analyses the regulations that govern this practice at the Tribunal.
The Scope of Fair Trial Rights before an International Criminal Tribunal: An Accused’s Right of Access to Counsel during Cross-Examination
Haydee J. Dijkstal
A recent decision by Trial Chamber II of The Special Court for Sierra Leone addressed the scope of an accused’s right to communicate with counsel during cross-examination of the accused. After the Taylor Prosecution motioned to restrict access to counsel during cross-examination of the accused, the Trial Chambers ruled that access to counsel is a fundamental right of the accused at any stage of the proceedings and restricting access for a prolonged period “could potentially undermine one of the most important basic rights of an accused and endanger the integrity and fairness of the proceedings as a whole.” The decision made by the Trial Chamber II for the Charles Taylor trial was important in defining the scope of the rights granted in Article 17(4)(b) of the SCSL Statute and mirrored in the respective statutes of the ad hoc tribunals and International Criminal Court.
The “Policy Paper On Victims’ Participation” Issued By The Office Of The Prosecutor Of The Internaitonal Criminal Court
On 12 April 2010 the Office of the Prosecutor (“the Office”) of the International Criminal Court published its “Policy Paper on Victims’ Participation” (“Policy Paper”). The Policy Paper sets out the Office’s policy on the legal aspects of victims’ participation in proceedings under article 68(3) of the Rome Statute in this regard. Viewed from a methodological perspective, the mere fact that a prosecution office has set out in advance some of its key litigation policies regarding an emerging area of law is, alone, cause for discussion. The dissemination of the Office’s policy papers in this manner, forms part of efforts to enhance predictability and consistency.
Next steps in the pursuit of justice for the Spanish victims of Franco’s dictatorship
Olga Martín-Ortega and Rosa Ana Alija-Fernández
In the last two years, victims of the Spanish Civil War (1936-1939) and General Franco’s dictatorial regime (1939-1975) have made several attempts to have the atrocities perpetrated during that long period adjudicated, but so far unsuccessfully. The first real chance for justice, truth and reparation seemed to come with the decisions issued on 16th October and 18th November 2008 by judge Baltasar Garzón, where he considered that a number of crimes of illegal detention had allegedly been committed from the beginning of the war in 1936 to the end of the repression against the Resistance movements in 1952, in a context of a systematic plan to eliminate political opponents through murder, torture, exile and forced disappearance. Victims of illegal detentions were of two kinds: those who, after 1936, were “paseados” (“taken for a stroll”) -that is to say, abducted from their houses or taken from detention centres and executed on a side of a road, where many of them are still buried- and those who when they were children were either stolen from their biological mothers or “recovered” abroad and taken back to Spain with or without their parents’ consent.