Progress Report on the International Criminal Tribunals

Every year in late August, prosecutors from the various international criminal tribunals meet in Chautuaqua, New York, for the International Humanitarian Law Dialogs. These are organized by the Robert H. Jackson Center, which is located in nearby Jamestown, with many other co-sponsors, and take place under the leadership of Prof. David Crane (formerly, prosecutor of the Special Court for Sierra Leone) and Greg Peterson, who directs the Jackson Center. Yesterday’s session had a fabulous briefing on the state of play at the different tribunals, and I thought readers of the blog would appreciate it if I shared my notes of the session.

Serge Brammertz, who is Prosecutor of the International Criminal Tribunal for the former Yugoslavia, was delayed in New York because of travel disruptions related to the hurricane. I expect we’ll get a report from him today.

International Criminal Court. Deputy Prosecutor Fatou Bensouda reported on the ongoing trials, noting that the final arguments in the Lubanga case were made only a few days ago. Ben Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, made the closing submission for the Prosecutor. Apparently the transcript of the session is already available on the Court’s website.

She reported on the ongoing investigations, noting that there are three additional cases currently being prepared with respect to the Democratic Republic of the Congo (DRC 3, DRC 4 and DRC 5), and that there is also a Darfur 4 case being prepared. She said that investigations are also continuing in the Kenya situation. I note that she said nothing of anything further with respect to Uganda. On various occasions, the Office of the Prosecutor has suggested that their would be cases dealing with the flip side in the Uganda situation – that is, the atrocities perpetrated by the government forces – but that idea seems to have been dropped.

She briefly listed the other situations where some sort of assessment or investigation is underway: Palestine, Korea, Nigeria, Honduras, Afghanistan, Colombia, Guinea and Georgia. The Palestine situation is one about which there has been particular interest. Probably the Office of the Prosecutor is awaiting the results of the General Assembly debate on Palestinian statehood, likely to take place in the coming weeks.

International Criminal Tribunal for the former Yugoslavia. Serge Brammertz, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, spoke of the importance of the recent arrests of Mladic and Hadzic. With that, the Tribunal has ticked off all the boxes on its most wanted list. Now it has to finish the trials and the appeals. Serge said that there was enough work for four to five years. He spoke of the importance of the Residual Mechanism. The real challenge for the future, he said, was to ensure that national trials continue in the region of the former Yugoslavia.

International Criminal Tribunal for Rwanda. Late last year, James Arguin took on the position of chief of appeals at the Rwanda Tribunal. He said that judgment in ten cases now underway should be delivered by the end of 2011, but that there would probably be some ‘spillover’. He said the current plan is to complete the appeals process by 2013, with final judgments in the appeals delivered in 2014. That will, effectively, shut down the tribunal.

There are nine fugitives who have been indicted but not apprehended. Jim said that they are now beginning the process of preparing evidence for eventual trials of these people. This involves taking depositions from witnesses. He said ‘some of the kinks are being worked out’ in the process and that it is ‘going very well’. He also spoke of the recent referral decision, in which a Chamber agreed to send a case back to Rwanda for trial. This is now on appeal, with a decision expected from the Appeals Chamber in October.

He spent a few minutes speaking about employment opportunities at the Tribunal. Because the activities are winding down, many of the current staff are leaving as they find more permanent jobs. But that opens up a number of vacancies. Young graduates, and also many more seasoned professionals, often ask me how to break into the system. It seems to me there is a great opportunity to do this now, given the staffing difficulties that the Rwanda Tribunal – and the others, too – are likely to encounter as they complete their work. Of course, the job won’t last that long, but it will provide a great chance to get one’s foot in the door.

Special Court for Sierra Leone. Jim Johnson, who is chief of prosecutions with the Special Court, said that judgment in the Charles Taylor case is expected in the ‘near future’. He said the Trial Chamber will probably announce the date of the judgment very soon. There will be an appeal, of course, but the final ruling ought to be issued by April 2012.

Jim explained that the ‘Residual Special Court’ will take over, pursuant to an agreement between the UN and the Government of Sierra Leone that is still awaiting ratification by the latter. It will be located in The Hague, with a small operation in Freetown. The Residual Special Court will be funded by voluntary contributions, which may not be a simple matter, given that it will last for many, many years.

He also spoke of the ongoing contempt prosecutions.

Extraordinary Chambers of the Courts of Cambodia. The international prosecutor, Andrew Cayley, spoke of the appeal of the decision in the first prosecution, where the Prosecutor is seeking a life sentence. Last year, Duch was sentenced to 35 years, minus 5 years because of irregular pre-trial detention, and then many years to take into account his lengthy pre-trial detention.

The second trial, now being prepared, involves four senior leaders of the Khmer Rouge. Only yesterday, it became clear that proceedings against one of them, Ying Tarit, are likely to be stayed because she is unfit to stand trial as a result of Altzheimer’s disease.

Two other trials, 3 and 4, are being planned. Andrew had little to say about them, aside from a rather ominous comment: ‘I have learned to cherish my own legal system’. The implication was that political factors within Cambodia are preventing any progress on these two trials.

Special Tribunal for Lebanon. Daryl Mundis represented the Prosecutor of the Special Tribunal for Lebanon. He reported on the indictment of the four Hezbollah members. He explained how two of them are being charged for organizing a bogus story attempting to pin the blame on a fictional terrorist group. I was intrigued by this, because covering up a crime might be considered a kind of ‘complicity after the fact’. While punishable in a general sense, it is not obvious that this falls within the jurisdiction of the Tribunal.

Daryl described the current proceedings, which involve a declaration by Lebanon that it is unable to arrest the suspects, and then a public announcement informing the accused of the charges and inviting them to appear. These steps are preparatory to an in absentia trial. The Prosecutor is proceeding on this basis, and an application to hold such a trial is to be expected soon. Defence teams will be appointed, so the trial itself may be quite long, with evidence called on both sides.

The Prosecutor is investigating related terrorist attacks that took place in late 2004 and 2005. These need to be linked with the February 2005 bombing. A recent ruling suggests that the Prosecutor can satisfy the Tribunal of such a connection. The idea would be to prepare charges in these related cases, and then link them to the main trial.