Proof in International Criminal Trials Conference Programme

Bangor Law School and Bangor Centre for International Law

Kindly supported by the British Academy

Proof in International Criminal Trials

 27-28 June 2014

Reichel Building, Bangor University

PROGRAMME

27 June 2014

13.00 Lunch

14.00 Welcome

14.05-15.30

Session 1: Approaches to Inference and Proof in International Criminal Trials

Professor William Twining (University College London) and Professor Terence Anderson (University of Miami), ‘Application of Modified Wigmorean Analysis to ICTR Cases’

Professor Paul Roberts (University of Nottingham), ‘Facing Facts’

Dr. Mark Klamberg (Uppsala University), ‘Evaluating Evidence in International Criminal Trials: Quantitative Grading, Eliminating Alternative Hypotheses or Both?’

15.30-16.00 Break

16.00-17.30

Session 2: Evaluating Evidence in International Criminal Trials

Justice Teresa Doherty (Special Court for Sierra Leone Residual Mechanism). ‘Listening and Understanding: Assessing Credibility of Witnesses in the International Tribunals’

Professor Nancy Combs (William and Mary School of Law), ‘Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions’

Mr Simon de Smet (International Criminal Court), ‘Are International Crimes Justiciable? Some Thoughts on the Volume of Evidence and the Criminal Standard of Proof’

28 June 2014

9.30-11.00

Session 3: Trends in Evidence and Proof in the International Criminal Tribunals

Professor John Jackson (University of Nottingham), ‘To Proof or not to Proof: Procedural Divergence, Cultural Diversity, and the Integrity of Witness Evidence within the ICC’

Mr. Oliver Windridge (International Criminal Tribunal for Rwanda), ‘Inference v. Speculation: The ICTR’s Approach to Inference’

Dr. Yvonne McDermott (Bangor University), ‘(Re-)Assessing Findings of Fact on Appeal: When does the ‘Only Reasonable Conclusion’ become Unreasonable?’

11.00-11.30 Break

11.30-13.00

Session 4: The Challenges of Evidence and Proof in International Criminal Law

Dr. Triestino Marinello (Edge Hill University), ‘The Confirmation of Charges at the International Criminal Court: a Tale of Two Models’

Ms. Anna Marie Brennan (University College Cork), ‘The Complexities in Proving a Policy to Commit Crimes Against Humanity: An Analysis of the Pre-Trial Chamber’s Confirmation of the Charges Decision in the Gbagbo Case’

Ms. Shiri Krebs (Stanford University), ‘Naming, Blaming and Legal Framing: Barriers to War Crimes Investigations’

13.00-13.10 Closing Remarks

13.10 Lunch

To register, please follow this link.

The Trial Record as a Historical Source

The Trial Record as a Historical Source

NIOD Transitional Justice Research Program Workshop

In cooperation with National Archives of the Netherlands

June 19, 2014 10:00 – 18:00

National Archives of the Netherlands, Prins Willem Alexanderhof 20 in The Hague

Registration: aanmelden@niod.knaw.nl

The venue of the courtroom has shown us that different actors can maintain diverse – even conflicting – versions of the same events.  In consequence, the testimonies produced by victims, perpetrators, expert witnesses, and eye-witnesses can have widely varied evidence value.  The connections between testimony, history, and the law have always been close but what would be considered evidence by a historian, would not necessarily be considered such by a judge, and vice-versa. Courts seek testimony, but they do not want life stories.  Nor are they mandated to specifically address other matters that might influence testimony, such as despair or imagination. 

It can be argued that judges write history to the extent that they record a certain narrative of how and why events transpired.  But what kind of history is being written?  For example, ICTY judgments have contributed to the pursuit of historical accuracy regarding the causes of the conflict, yet contending parties often enter and leave the courtroom with their own “truths” still intact.  Hence, the trial model is not necessarily successful in reconciling competing narratives of the same events.  However, tribunals facilitate access to testimonies that might have otherwise been inaccessible; that alone makes the record they create an indispensable source for historians – a source that, like all others, must be subjected to critical scrutiny.

The NIOD Transitional Justice Research Program, Understanding the Age of Transitional Justice: Narratives in Historical Perspective, now in its fourth year, has employed the portal of the personal, legal, and political narrative to come to a better understanding of transitional justice mechanisms.  As the ICTY and ICTR wind down, the verdicts, acquittals, and jurisdiction they leave in their wake will further the discussion among legal scholars and practitioners -- discussion that will be beneficial to the development of the ICC.  These tribunals also leave voluminous testimony that will help historians interpret the mechanisms and aftermath of genocide and mass political violence. 

In consideration of the under-researched, multi-layered content of the court record that has emerged, we would like to bring together historians and experts working at international tribunals in order to generate reflection on the important questions the trial record raises. The topic is all the more timely because we hope such discussion can contribute to thinking about the future (uses) of the archives of these war crimes tribunals.

Programme

10:00 Welcome: Martin Berendse (National Archives of the Netherlands)

10:05 Introduction: Nanci Adler (NIOD)

[chair: Peter Romijn, NIOD]

10:15 William Schabas (Middlesex University)
Contested Histories and International Tribunals: From Katyn to Operation Storm

10:35 Herman von Hebel (ICC)
The Importance of Records of International Courts and Tribunals

10:55 Vladimir Petrovic (Institute of History Belgrade, NIOD)

Historical Forensic Contribution: Possibilities and Limitations

11:15 discussion

11:35 – 11:45 coffee

[chair: Nanci Adler]

11:45 Selma Leydesdorff (University of Amsterdam)
The Victim and the Sobibor Trials: Kiev (1962/3, Hagen (1965/66), Munich/Demjanjuk (2009/2011)

12:05 Predrag Dojcinovic (OTP, ICTY)
Reflections on the Concept of Guilty Mind as Historical Evidence in International Criminal Proceedings

12:25 discussion

13:00 – 14:00 lunch break (lunch not included)

[chair: Eric Ketelaar, University of Amsterdam]

14:00 Thijs Bouwknegt (NIOD)
The Trial as Historical Source

14:20 Nerma Jelacic (MICT/ICTY)
Making Archives Count: Judicial Records as a Source of Societal Memory

14:40 Maartje van de Kamp (National Archives of the Netherlands) and Helen Grevers (teacher at Utrecht University)
Het Centraal Archief Bijzondere Rechtspleging. How centralisation of trial records created a historical source

15:00 – 15:30 coffee

15:30 Reflections: Eric Ketelaar

15:50 – 17:00 Round Table (moderator: Eric Ketelaar)

17:00 reception

Confidence Crisis in Human Rights: Implications for the UK

Middlesex University, London 30 June to 4 July 2014. This 5 day intensive course will explore the challenges faced by the human rights regime, resulting from the mistrust towards the system voiced by countries which, like the UK in Europe or Brazil in the Americas, once helped to create and embrace the human rights machinery. The course will explore the ideologies and geopolitical conditions resulting in this evolution through the prisms of controversial topics dominating intergovernmental human rights agendas in Europe and worldwide, in particular: the rights to freedom of expression and freedom of religion;  the consequence for human rights of austerity measures and migration policies; the role of the UN Security Council  in conflict zones; and the difficulty to accommodate within the human rights framework emerging topics such as  the impact of activities undertaken by corporations in relation to development projects, and the protection of the environment. Further details are available here.

ICC Examining US Conduct in Afghanistan

For more on the International Criminal Court investigating the strong as well as the weak, see David Bosco's very interesting review of the activities of the Office of the Prosecutor with respect to United States activities in Afghanistan in the latest issue of Foreign Policy.

Corporate criminal responsibility at the Special Tribunal for Lebanon

In a fascinating order from January of this year that was made public last month, Judge Baragwanath of the Special Tribunal for Lebanon determined that two media organisations, together with two officials from the organisations, could be prosecuted for contempt. The question of whether corporations can be held accountable for international crimes has been the subject of much debate over the past number of years, and this is the first time that an international criminal tribunal has found itself to have jurisdiction over corporations.

Article 1 of the STL's Statute states that the Tribunal 'shall have jurisdiction over persons responsible...'. The contempt judge did not mention this provision in his analysis, but noted that 'no ... provision of the Statute or Rules expressly limits the scope of contempt proceedings to natural persons'.  Surprisingly, Article 31 of the Vienna Convention on the Law of Treaties is not mentioned once in the decision. It would be difficult to argue that the ordinary meaning of the term 'person' encompasses legal, as well as natural, persons, especially in the context of a Statute that mentions 'his or her', 'him or her' and 'himself or herself' in relation to the accused no less than 28 times, and does not use the term 'it' in relation to the accused once.

To overcome this hurdle, Judge Baragwanath rather bizarrely concluded (at paras. 23-24) that the Tribunal cannot have jurisdiction over legal persons for the core crimes, but that 'whether a legal person can be an accused under Articles 2 and 3 of the Statute is a very different question from whether a legal person can be held in contempt for knowingly and wilfully interfering with the administration of justice'. I am not sure that the two matters are so very different. Both concern the jurisdiction of the Tribunal - either it has jurisdiction over corporations, or it doesn't.

The contempt judge drew the distinction by stating that offences against the administration of justice are designed to preserve the integrity of the judicial process and 'under the highest procedural standards, corporate entities cannot be any more entitled than natural persons to interfere with the judicial process'. But this is not entirely convincing. It seems to suggest that corporate entities somehow have the capacity to decide to interfere with the judicial process, independently of those who are in charge of them, which is of course ridiculous. I am not convinced of the necessity of the extension of jurisdiction to the corporations in this case. The ICTY has had confidential information leaked by media organisations in the past, and has successfully prosecuted their editors and/or employees for contempt. It is not as if the responsible individuals from within the organisations were unidentifiable in the present case - they are now the co-accused of the companies that they work for!

Moreover, the reference to 'the highest procedural standards' seems to be out of place. The majority of the 'him/her' references in the Statute, which the judge sought to suggest did not apply in contempt cases, are found in Articles 15 and 16, on the rights of suspects and the accused. But of course, the same rights of the accused must apply, whether he or she is charged with the most serious crimes within the jurisdiction of the court, or offences against the administration of justice. The distinction between the two types of offence falling within the jurisdiction of the court on this basis simply does not withstand logical analysis, and might actually be read as suggesting that the individual charged with contempt is entitled to less than the highest standards of fairness.

While some might welcome the widening of the door to extending jurisdiction to corporations, the quality of the reasoning is questionable, This is another example of judicial activism from the Special Tribunal for Lebanon, and perhaps not its most well-reasoned decision to date.

Praljak ordered to pay €2.8 million in legal fees

The Registry of the International Criminal Tribunal for the former Yugoslavia assigned Tribunal-paid defence counsel to Slobodan Praljak, one of the accused in the Prlić et al. trial, from 2006 to 2013. It later determined that the accused was in a position to contribute to the cost of his defence to the tune of €6.5 million, a claim denied by the accused on the basis that his assets are not liquid and he is not in a position to dispose of them, and that some assets discovered by the Registry are owned by other persons. Last Tuesday, the Appeals Chamber rejected Praljak's claims and ordered him to reimburse the Tribunal €2,807,611.10, or to pay over €70,000 in 36 monthly instalments.

This is, to my knowledge, the first time that the Tribunal has made such an order pursuant to Rule 45(A). One accused, Limaj, was found to have raised sufficient funds to cover his pre-trial expenses and had counsel withdrawn (and later restored, when the funds independently raised had been exhausted), but no order was made to recover the money already spent on his pre-trial counsel beforehand, much to the consternation of the UN's Office of Internal Oversight Services.

It will be interesting to see what happens if Praljak refuses to pay back the money. Article 11 of the ICCPR states that no-one should be imprisoned for non-payment of a fine, so it would seem unlikely that the Tribunal will order his detention to continue past his sentence until he repays the money. Rule 61 permits the Trial Chamber to order a State to freeze the assets of an accused, but this only applies where there has been a failure to execute an arrest warrant. Furthermore, Judge Thompson in the Norman case before the SCSL overturned a freezing order, finding that an accused's assets could only be frozen if there was clear and convincing evidence that they were acquired in pursuance of a crime within the jurisdiction of the court. We will have to watch this space.

Middlesex Law School Climbing in Rankings

The ‘League Tables’ of UK Universities were released a few days ago. Of the London law schools, Middlesex is ninth of 17 (it was 13^th last year). Eleven of the London 17 actually dropped in the rankings. Of the 98 law schools in the UK, Middlesex School of Law placed 60, up 12 from its standing last year. Middlesex is a dynamic law school with a great future and a thriving community of doctoral students. Come and join us.

Preliminary investigation into UK activity in occupied Iraq

The Prosecutor of the International Criminal Court stated today that she will resume an investigation into conduct of forces of the United Kingdom during the Iraq occupation. In 2006, the previous Prosecutor issued a statement saying that he had decided not to proceed with investigations. Earlier, as we now know from Wikileaks, he had reassured diplomats that he had no intention of investigating conduct of the occupying forces in Iraq.
Today's statement by the Prosecutor notes that new information has been received in a submission by the European Center for Constitutional and Human Rights and Public Interest Lawyers. The full communication, delivered to the Prosecutor in January of this year, can be found here. The Prosecutor should be congratulated for her courage in taking this step. It will no doubt incur the wrath of the right wing press and conservative politicians who think that there are two standards of justice, one for the global south and another for those who wrote the Magna Carta.
Last week, the Prosecutor indicated that she would begin an investigation into the Ukraine as a result of that country's declaration accepting jurisdiction of the Court. And presently, France is promoting a resolution in the Security Council aimed at referring the situation in Syria to the International Criminal Court.
For the Court, this activity in States outside Africa where very strategic interests of major powers are involved is a welcome development. It will help to transmit a message that this is an independent and impartial institution capable of judging the strong and not only the weak. 

Dr Helen McDermott

Dr Shane Darcy, Dr Helen McDermott, Professor Carsten Stahn, Dr Noelle Higgins

Helen McDermott successfully defended her PhD thesis, 'Extraterritorial Abduction under the Framework of International Law: Does Irregular mean Unlawful?', at the Irish Centre for Human Rights on Tuesday 6 May. The external examiner was Professor Carsten Stahn of Leiden University and the internal examiner was Dr Noelle Higgins of the Irish Centre for Human Rights. The panel, who awarded the PhD without corrections, are pictured here with Helen and her supervisor, Dr Shane Darcy. Congratulations, Helen! 

Quebec Court of Appeal Upholds Rwandan Genocide Conviction

The Quebec Court of Appeal has upheld a judgment convicting Désiré Munyaneza of genocide with respect to events in Rwanda in 1994. The prosecution is based upon the principle of universal jurisdiction. Munyaneza had been convicted in a trial held before a judge sitting without a jury and sentenced to life imprisonment without eligibility for parole for twenty-five years. This is an automatic sentence triggered by a conviction for murder and the Court of Appeal did not therefore reconsider it.

Judgments in criminal appeals are final with the possibility of appeal to the Supreme Court of Canada only with the permission of that Court. If there is not grant of leave to appeal, this will be the first conviction based upon universal jurisdiction by Canadian courts since legislation was adopted to permit this in the late 1980s.

The judgment is available in the original French and in an English translation.

Thanks to Raymond Savadogo.

Referring Syria to the International Criminal Court

France is currently preparing a Security Council resolution referring the situation in Syria to the InternationalCriminal Court. If adopted, it will be the third referral of a situation by the Security Council under article 13(b), and the first referral of a State outside Africa.

Previously, such an effort seemed to have no chance of success because Russia would not support it. But it seems that the difficulty now is finding language for a referral that will satisfy the United States. It would be happy enough to see the current regime in Syria threatened with prosecution. However, it is concerned that a referral of Syria would include Golan, which is Syrian territory occupied by Israel for nearly fifty years.

According to the New York Times, the proposed resolution will define the ‘situation’ narrowly, describing it as ‘involving the Syrian government of President Bashar al-Assad, its allied militias, and armed opposition forces between March 2011 and the present’ and to exempt ‘current or former officials or personnel’ of countries that have not ratified the Rome Statute, except Syria.

If the resolution is ever adopted, it will provide the Court with the opportunity to pronounce itself on the legality of such restrictions. In 2004, when Uganda attempted to limit the scope of a referral to the enemies of the regime rather than to the ‘situation’ in general, the Prosecutor insisted that this be reformulated in a more neutral way. With discussions underway in New York about the resolution, it might be a good occasion for the Prosecutor of the Court to make a statement reminding the Security Council of the importance of neutrality in any resolution.

The Prosecutor is required to undertake an investigation when a situation is referred to the Court by the Security Council. She can decline to do so if it is not in the ‘interests of justice’. Perhaps such a one-sided referral would fall into such a category. An alternative approach would be to consider a targetted referral like the one currently being proposed by France as being simply inconsistent with the terms of article 13 and therefore of no legal effect. The Security Council’s powers are circumscribed by article 13 of the Statute. If it does not refer a ‘situation’ but rather a ‘situation within a situation’, then it has not complied with article 13 and the resolution does not therefore trigger the jurisdiction of the Court.

Luis Moreno-Ocampo: The Gift that Keeps on Giving

Is it really possible that a senior official of the International Criminal Court would actually discourage States from ratifying the Rome Statute?
Yet that seems to be the advice that Luis Moreno-Ocampo, who was Prosecutor of the Court from 2003 to 2012, is offering to both Israel and Palestine.
He is quoted by Associated Press on a recent visit to Israel:

JERUSALEM –  A former chief prosecutor of the International Criminal Court says Palestinians should proceed with caution as they consider pursuing war crimes against Israel.
Since winning upgraded status at the United Nations in 2012, the Palestinians have threatened to turn to the ICC to press charges against Israel at the world's first permanent war crimes court if peace efforts fail. The latest round of talks broke down last month.
Luis Moreno-Ocampo on Wednesday said the Palestinians are indeed eligible to join the court. But he said if they accepted its jurisdiction, Gaza's Islamic Hamas rulers also could be investigated for rocket fire and suicide bombings against Israeli civilians.
In his first visit to Israel, he recommended the sides avoid the court and find a "creative" way to resolve their differences.

I don't believe Moreno-Ocampo is alone in adopting this position. He may have picked it up from the US Department of State, whose views he has often echoed. But the United Kingdom and France, both of the States Parties to the Rome Statute, have also suggested that Palestine should not ratify the Rome Statute.
This sheds additional light on the Court's African focus, something that is very much the legacy of Luis Moreno-Ocampo. If he thinks Palestine and Israel should look for a 'creative' solution to their differences and that they should avoid the Court, his message seems to be that the institution is good for Africans but not for others.
It would be helpful to the Court if Moreno-Ocampo would keep his mouth shut.

Public Health, National Security and Human Rights

A conference entitled 'National Security and Public Health: Exceptions to Human Rights?' will be held at the Institute for Advanced Legal Studies in London on 29 May.  More information can be found here.

Proof in International Criminal Trials

From 27-28 June 2014, Bangor Law School and the Bangor Centre for International Law will host a conference on proof in international criminal trials, kindly supported by the British Academy.

There is now an impressive body of literature on the precise scope, context and application of rules of evidence in international criminal trials. However, issues surrounding proof and reasoning on evidence in international criminal law have remained relatively under-examined to date. By bringing together judges, practitioners and leading scholars on evidence, international criminal procedure and analytical methods, this conference will comprehensively address issues related to proof in international criminal proceedings. These issues include, inter alia, the means by which inferences are drawn, how reasoning on findings of fact is articulated in judgments, and how witness credibility is assessed. Participants will analyse some of the challenges of fact-finding in the complex context of international criminal trials, which often involve large masses of evidence and hundreds of witnesses.

Confirmed speakers include:
Professor Terence Anderson, University of Miami
Anna Marie Brennan, University College Cork​
Professor Nancy Combs, College of William and Mary School of Law
Judge Teresa Doherty, Residual Special Court for Sierra Leone
Professor John Jackson, University of Nottingham
Dr Mark Klamberg, University of Uppsala
Dr Yassin M’Boge, Leicester University
Dr Triestino Mariniello, Edge Hill University
Dr Yvonne McDermott, Bangor University
Professor Paul Roberts, University of Nottingham
Professor William Twining, University College London
Oliver Windridge, International Criminal Tribunal for Rwanda

To register, please follow this link.

2014 Venice School of Human Rights

The fifth edition of the EIUC Venice School of Human Rights will run from 27 June to 5 July 2014 and is accepting applications until 15 May 2014.

The EIUC Venice School of Human Rights will update participants on the state of the art debate on human rights issues and stimulate their reflection on the current challenges faced by human rights actors worldwide. After an introduction on current challenges, participants will have the opportunity to learn more about one of these 3 selected topics "Business and Human Rights”, “The Internationalisation of Migration Law and the Role of the EU” and “Freedom of Expression and Assembly Online”.

The EIUC Venice School combines theory and practice and its faculty involves internationally recognised academics and practitioners. Prof. Martin Scheinin, former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, and Prof. William Schabas from the University of Middlesex will open the Venice School 2014.

Check here for the full programme details.

Meet, mingle and discuss in the historical and peaceful location of the Monastery of San Nicolò which is situated on the island of the Lido of Venice, where human rights, arts and team spirit will play the setting of your summer!

Dates: 27 June - 5 July 2014. Type of courses: Lectures in the plenum and smaller seminars Application deadline: 15 May 2014.

Information: www.eiuc.org/veniceschool

Obama Calls for Review of Death Penalty

Last week, the White House issued two statements on the death penalty, one about the industrial-scale death sentences in Egypt and the other about the brutality of the execution in Oklahoma. This is quite unprecedented. It is quite unusual for the White House to even engage on the issue as the US death penalty is very largely the responsibility of the states. Years ago, before he was President, Obama was uncompromising in his opposition to capital punishment. He adjusted his public position slightly so that it would not threaten his electability. But it does not take much imagination to conclude that he would be very pleased if the death knell on capital punishment in the United States would sound during his administration.

Two days ago, in a press conference with Chancellor Merkel of Germany, he said the following in response to a question:

PRESIDENT OBAMA:  What happened in Oklahoma is deeply troubling.  The individual who was subject to the death penalty had committed heinous crimes, terrible crimes.  And I’ve said in the past that there are certain circumstances in which a crime is so terrible that the application of the death penalty may be appropriate -- mass killings, the killings of children.  But I’ve also said that in the application of the death penalty in this country, we have seen significant problems -- racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence.  And all these I think do raise significant questions about how the death penalty is being applied.  And this situation in Oklahoma I think just highlights some of the significant problems there. 

So I’ll be discussing with Eric Holder and others to get me an analysis of what steps have been taken not just in this particular instance but more broadly in this area.  I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues.

A presidential initiative on the death penalty would be a very important development. Some years ago in Illinois the governor set up a commission to study capital punishment. It was necessarily balanced in its composition, but its conclusions helped move Illinois from the death penalty camp into the abolitionist camp. Perhaps Obama should set up a high-level panel to advise him on this subject.