• New Security Exception – U.S. Directorate of Defense Trade Control (DDTC) (Dec. 3, 2009)

International Criminal Court

• Prosecutor v. Lubanga (Dec. 8, 2009)

Extraordinary Chambers in the Courts of Cambodia

• Order on the Application of the ECCC of the Form of Liability Known as Joint Criminal Enterprise (Dec. 8, 2009)

European Court of Human Rights

• Kaboulov v. Ukraine (Nov. 19, 2009)

United States Court of Appeals for the 2nd Circuit

• Sacirbey v. Guccione (Dec. 9, 2009)

• International Court of Justice Begins Deliberations on the Question of the Accordance with International Law of Kosovo’s Declaration of Independence (Dec. 11, 2009)

New Security Exception – U.S. Directorate of Defense Trade Control (DDTC) (Dec. 3, 2009)

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The Federal Register has published a notice announcing that the Directorate of Defense Trade Control has added a sixth exception to National Security Presidential Directive–56, which required a 60-day processing time for export license applications. The new exception states that the 60-day time frame will not apply “[w]hen a related export policy is under active review and pending final determination by the Department of State.”

Under National Security Presidential Directive – 56 on Defense on Trade Reform, former President Bush asked the U.S. Department of State to review and adjudicate license applications within 60 days of receipt, except in cases where national security exceptions applied. However, “[e]xperience in the last nineteen months has indicated that a sixth exception is required.” As a result, the new exception was added.

International Criminal Court

Prosecutor v. Lubanga (Dec. 8, 2009)

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The International Criminal Court (ICC) Appeals Chamber issued a significant judgment in Prosecutor v. Lubanga, reversing the Trial Chamber for erroneously interpreting Regulation 55 (2) and (3) of the Regulations of the Court. The Appeals Chamber held that Regulation 55 (2) and (3) could not be used to “exceed the facts and circumstances described in the charges or any amendment thereto.”

In January 2007, the ICC Pre-Trial Chamber confirmed the charges against Thomas Lubanga Dyilo, finding that the Prosecutor had presented “sufficient evidence” to establish grounds for Lubanga’s responsibility in enlisting and conscripting children under the age of fifteen and using them to participate in hostilities. In May 2009, twenty-seven victims participating in the trial asked that the Trial Chamber initiate the procedure for modification of the legal characteristics of the facts pursuant to Regulation 55 and include “crimes of sexual slavery and inhuman or cruel treatment.” In July 2009, the Trial Chamber announced—in the Decision Giving Notice to the Parties and Participants that the Legal Characteristics of the Factors May be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court—that it would consider modification of the legal characterization of the facts. Lubanga appealed.

The Appeals Chamber reviewed the Trial Chamber’s interpretation of the Regulation in reference to both the Court’s own provisions protecting the rights of the accused, as well as that of other international sources. The Appeals Chamber, relying on other international tribunals’ precedents and numerous international instruments, concluded that the re-characterization was not per se in violation of the accused’s rights, so long as the accused was given enough time to prepare an effective defense. However, the Appeals Chamber did not agree with the Trial Chamber’s interpretation that under Regulation 55 it “could adjudicate, at the end of the trial, not only the facts described in the charges or any amendment thereto, but also additional facts that were introduced into the trial through a ‘change’ of their legal characterisation under Regulation 55.” In operative paragraph 90, the Appeals Chamber noted that

. . . this interpretation would result in a conflict with article 74 (2) of the Statute because these additional facts would not have been described in the charges or any amendment thereto. Regulation 1 (1) of the Regulations of the Court provides that the Regulations of the Court must be ‘read subject to the Statute and the Rules’. Thus, any interpretation of Regulation 55 that cannot be reconciled with article 74 (2) of the Statute must be rejected as incorrect.

Furthermore, the Appeals Chamber found the Trial Chamber’s interpretation to be in violation of several other ICC provisions, most notably Article 61 (9) of the Statute (Confirmation of the charges before trial), authorizing the Prosecutor, not the Chamber, with amending the charges. Allowing the Trial Chamber to “circumvent” this and other provisions would “be contrary to the distribution of powers under the Statute.”

The Appeals Chamber went on to reverse the Trial Chamber’s judgment on the ground that the Trial Chamber “erred in law,” and “this error martially affected the” the decision.

Extraordinary Chambers in the Courts of Cambodia

Order on the Application of the ECCC of the Form of Liability Known as Joint Criminal Enterprise

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The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) have issued a decision ruling that joint criminal enterprise as a mode of liability before the ECCC does not apply to national crimes but does apply to international crimes. Ieng Sary, a former Khmer Rouge official charged with war crimes and crimes against humanity, requested that the judges declare this type of liability as “inapplicable” before the tribunal and as in violation of the principle nullum crimen sine lege (no crime without a law). Sary argued that no customary international law provided for joint criminal enterprise liability either during the time he allegedly committed the offense (1975-1979) or at the present time.

Article 29 of the Law on the Establishment of the ECCC, relating to individual types of liability, provides that “[a]ny Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes referred to in article 3 new, 4, 5, 6, 7 and 8 of this law shall be individually responsible for the crime.” While the judges acknowledged that joint criminal liability is not expressly mentioned in Article 29, it was previously “articulated as a form of commission in the Tadic Appeals Judgment at the ICTY [International Criminal Tribunal for the former Yugoslavia].”

Once the judges concluded that a definition for this type of criminal liability existed, they had to determine whether it could be invoked in the present proceedings. In other words, would the inclusion of this joint criminal enterprise satisfy the principle of legality? The judges, applying the foreseeability and accessibility test, which requires that the criminal liability is sufficiently foreseeable and the law providing for such liability is sufficiently accessible at the relevant time, held that in fact joint criminal enterprise was both foreseeable and accessible in Cambodia in 1975.

European Court of Human Rights

Kaboulov v. Ukraine (Nov. 19, 2009)

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The European Court of Human Rights (Court) recently issued a judgment in Kaboulov v. Ukraine, finding that Ukraine would violate Article 3 of the European Convention on Human Rights (risk of ill-treatment in the event of extradition) if it extradited Amir Damirovich Kaboulov to Kazakhstan. The Court also held that the applicant, who had been detained by the Ukrainian authorities since 2004, was unlawfully detained, and that under the current Ukrainian legislation he had no possibility of challenging his continued detention. The Court did not, however, find that there was violation of Article 2 of the Convention (risk of capital punishment in the event of extradition) because Kazakhstan had imposed a moratorium on the enforcement of capital punishment and extended its application by law in 2004.

The applicant, a Kazakh national, was accused in his absence of a murder that took place in Kazakhstan in June 2003. An international warrant was issued for him, and he was apprehended by Ukrainian authorities in August 2003. Kazakhstan asked that the applicant be extradited in order to face the murder charges. The applicant appealed, claiming that several of his human rights would be violated, including Article 2 (risk of capital punishment in the event of extradition), Article 3 (risk of ill-treatment in the event of extradition), and Article 6 (no fair trial if extradited). In addition, the applicant alleged that his detention had been unlawful and could not be challenged under Ukrainian law.

In finding a violation of Article 3, the Court relied on a number of international and national reports that had documented both capital punishment and ill-treatment allegations. With respect to capital punishment, the Court concluded that the moratorium on all death penalties since 2004, along with the commutation of all death sentences, meant that no real risk existed that the applicant would be executed if extradited, and thus the extradition posed no risk of violation of Article 2. However, with regard to ill-treatment, several reports – including reports by the U.S. Department of State, Amnesty International, and the International Helsinki Federation for Human Rights – had documented that persistent and widespread ill-treatment, including torture and other cruel, inhuman, or degrading treatment and punishment, was still used by the Kazakh authorities. The Court concluded that this evidence sufficiently proved that the applicant’s Article 3 rights would be violated if he were to be extradited to Kazakhstan.

United States Court of Appeals for the 2nd Circuit

Sacirbey v. Guccione (Dec. 9, 2009)

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The United States Court of Appeals for the Second Circuit issued a decision granting Muhamed Sacirbey’s petition for writ of habeas corpus and ordering that he not be extradited pursuant to a request by Bosnia and Herzegovina (Bosnia). The Court found that the arrest warrant against Sacirbey was issued by a Bosnian court that had no jurisdiction over the subject matter nor the authority to enforce the warrant since that authority was stripped by 2003 justice system reforms in Bosnia; thus, the Court concluded, the extradition treaty requirement that an individual be “charged” was not met.

In 2001, a cantonal court in Bosnia, pursuant to allegations that Sacirbey had embezzled $610,982.46 from the Bosnian government’s funds while he was in charge of the country’s Permanent Mission to the United Nations in New York, issued an international warrant for his arrest. A year later, Bosnia sought Sacirbey’s extradition pursuant to an extradition treaty between the U.S. and the Kingdom of Serbia to which Bosnia had succeeded. The U.S. Department of State, while it had discretion under the treaty to decide otherwise, chose to comply with the extradition request. In 2003, the U.S. Department of Justice filed a complaint for arrest in the U.S. District Court for the Southern District of New York. Sacirbey, who was placed into custody, opposed his extradition on several grounds, most notably arguing that Bosnia had failed to formally charge him with an actual crime. The district court concluded that a formal criminal charge was not required by the treaty and granted the extradition request.

A few months later, Sacirbey filed a petition for a writ of habeas corpus. The district court again emphasized that there was no need to formally charge a defendant so long as evidence showed that Bosnia has the intent to prosecute him. The court relied on several letters filed on behalf of the Bosnian government that tended to demonstrate that Bosnia wanted to investigate and prosecute Sacirbey. Sacirbey, on the other hand, argued that this “possible” investigation was politically motivated, and that no Bosnian court had jurisdiction over the matter.

The Court of Appeals first noted that the standard of review for habeas cases was “narrow in scope.” The Court also noted that this case was one of first impression in the Second Circuit but that other courts had entertained similar issues. In reviewing other precedent, it concluded that there was a common view among the circuits:

When extradition treaties state that an individual must be “charged” with a crime in order to be extradited, but do not require the filing of an accusatory instrument, a state seeking extradition need show only an intent to prosecute the individual in order to satisfy the requirement that he be ‘charged’ with a crime.

The Court, however, refused to find that Sacirbey was in fact charged in Bosnia. Notably, the Court held that a warrant of arrest issued by a court that lacked jurisdiction to enforce it is nothing more than a “dead letter,” i.e. it is legally void. To rule otherwise, the Court added, would be in contradiction with the treaty requirements. And while Bosnia may intend to prosecute Sacirbey, without a valid warrant this intent was irrelevant.

Interestingly, the dissent, which focused on the Criminal Procedure Code of Bosnia, concluded that the majority had erred in not honoring the request. The dissent noted that while the judicial reform in 2003 changed the legal process, it did not cancel pending criminal investigations.

International Court of Justice Begins Deliberations on the Question of the Accordance with International Law of Kosovo’s Declaration of Independence (Dec. 11, 2009)

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According to the International Court of Justice press release, public hearings on the question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo request for advisory opinion were concluded on Dec. 11, 2009. This means that the Court will begin its deliberation on this very controversial issue.