The end of the Kenyatta trial?

I have previously reported on the 'indefinite adjournment' sought by the Prosecution in the ICC's case against Kenyan President, Uhuru Kenyatta. The request followed a worrying trend, discussed in some detail here, where vague concepts such as 'the interests of justice', 'ending impunity', and 'the rights of the international community' are put forward as justification for derogations from the rights of the accused.

A decision of Trial Chamber V(B), issued today, clearly reinstates the fundamental importance of the rights of the accused. It also seems noted the exceptional nature of the measures sought, by emphasising that 'it should have been incumbent upon the parties to thoroughly support… [their] requests, by reference not just to the factual circumstances but also to applicable legal standards, principles and authorities.'

Crucially, the Chamber noted that the Prosecution, by its own admission, did not have sufficient evidence to proceed to trial, some five years after investigations in the Kenya situation opened and almost four years since Kenyatta was named as an accused. On that basis, the Chamber was 'of the view that the appropriate course of action would now be the prompt withdrawal of charges'. It has given the Prosecution a week to file a notice either withdrawing the charges, or declaring that it now has sufficient evidence to proceed to trial. It would seem very likely that Mr Kenyatta will be a free man by Christmas. 

Inner Temple Book Prize

The Inner Temple has just announced its 2015 Book Prize. Original works published between 2 February 2011 and 31 December 2014 are eligible, and there are no restrictions on authors' domicile or nationality. The prizes are very generous - £12,000 for the main prize and £5,000 for the New Authors Prize. Further information can be found here.

Dr Margaret deGuzman

Margaret deGuzman successfully defended her doctoral thesis at the National University of Ireland Galway on 10 November 2014. Her thesis is entitled 'Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law'. She was examined by Prof. Kevin Jon Heller of the School of African and Oriental Studies and Prof. Ray Murphy of NUI Galway. Dr Shane Darce chaired the examination. She was supervised by Prof. William Schabas. Meg deGuzman is a Professor at Temple University School of Law. Congratulations!

From left, Ray Murphy, Kevin Heller (on skype), Meg deGuzman and Shane Darcy.

'Indefinite Adjournment' or 'Deferment'?

I have read, with great interest, the transcript from the status conference in the Kenyatta case before the International Criminal Court last month. In it, the prosecution requests an 'indefinite adjournment' of the case, by which it means an 'adjourn[ment of] the case without fixing a date'. This is a remarkable request, and raises serious fair trial issues insofar as the prosecution has essentially proposed to allow the matter to drag on indefinitely without any fixed date for the start of trial, owing to insufficiencies in its own evidence. One is reminded of Kafka's The Trial:


"Deferment," said the painter, looking vaguely in front of himself for a while as if trying to find a perfectly appropriate explanation, "deferment consists of keeping proceedings permanently in their earliest stages. To do that, the accused and those helping him need to keep in continuous personal contact with the court, especially those helping him. I repeat, this doesn't require so much effort as getting an apparent acquittal, but it probably requires a lot more attention. You must never let the trial out of your sight… you can be reasonably sure the trial won't get past its first stages. The trial doesn't stop, but the defendant is almost as certain of avoiding conviction as if he'd been acquitted… Proceedings can't be prevented from moving forward unless there are some at least ostensible reasons given. So something needs to seem to be happening when looked at from the outside. This means that from time to time various injunctions have to be obeyed, the accused has to be questioned, investigations have to take place and so on. The trial's been artificially constrained inside a tiny circle, and it has to be continuously spun round within it.
 

The request is also notable for the suggestion that the nebulous concept of the 'interests of justice' should be tantamount to the rights of the accused:


In particular, the Prosecution submit, the interests of justice should be paramount here. I don't mean to say that the defendant's rights should be ignored for a moment, but the interests of justice should, I submit, be the most important consideration in your Honours' minds.

Public lecture: ‘How do we Protect Liberty without a Bill of Rights - Lessons from the Cold War’

‘How do we Protect Liberty without a Bill of Rights - Lessons from the Cold War’

by Professor Keith Ewing,  Professor of Public Law, King’s College, London 

Wednesday,  12 November 2014 at 5pm

Lecture Theatre 7, Rendall Building

Human Rights and International Law Unit

School of Law and Social Justice

University of Liverpool

Abstract

Recent revelations about MI5 surveillance of academics raise serious questions about the application of constitutional values during the Cold War.   In fact, it was the tip of the iceberg, with tens if not hundreds of thousands of British citizens under surveillance by the State.   How was this allowed to happen in a liberal democracy?   Conversely, the Communist Party was not banned in the United Kingdom, unlike in the United States where constitutional values were legally embedded.   Indeed, in the post war era there was a strong commitment at the highest levels of British government to constitutional values such as freedom of expression and freedom of association in a country without a Bill of Rights.   What explains these extraordinary contradictions?   How was it possible by political means to protect political liberty in a system where judges perceived their role to be one of facilitating the process of government?   What were the relative strengths and weaknesses of these political protections of constitutional values, and why did they fail so spectacularly in the case of surveillance?

A wine reception will follow the event.

Dr Giulia Pecorella

From left, Nadia Bernaz, Giulia, Michael Scharf (on screen), Anthony Cullen and myself.

Giulia Pecorella successfully defended her doctoral thesis today at Middlesex University. The topic of the thesis was the United States and the Crime of Aggression. The examiners were Dean Michael Scharf of Case Western Reserve University School of Law and Dr Nadia Bernaz of Middlesex. The supervisory team was composed of Dr Anthony Cullen and myself. Congratulations, Giulia.

Interim release at the ICC

The International Criminal Court announced yesterday that four of the accused in the Central African Republic situation would be released pending trial. The suspects are to spend their interim release in the UK, Belgium, the Democratic Republic of the Congo and France. This is a positive development from 2009, where six states were called upon to cooperate with the Court in giving effect to Jean-Pierre Bemba Gombo's provisional release, but failed to do so. The decision to release the accused was overturned on appeal, before the issue of state cooperation could be fully resolved. 

Dr Rick Lines

From left, Erica Howard, Rick Lines and David Keane, with Neil Boister on the screen in the middle.

Rick Lines successfully defended his doctoral thesis today at Middlesex University. It is entitled: 'The ‘Fifth Stage’ of Drug Control: International Law, Dynamic Interpretation and Human Rights'. The external examiner was Prof. Neil Boister of the University of Canterbury, New Zealand. The internal examiner was Dr. David Keane and the chair of the proceedings was Dr. Erica Howard. Rick was supervised by Dr. Nadia Bernaz and myself. Congratulations, Rick.

Criminal Liability for Legal Persons for Contempt returns to the STL

I have previously blogged about a decision before the Special Tribunal for Lebanon where it was held that the Tribunal's inherent jurisdiction to prosecute persons for contempt extended to legal, as well as natural, persons. That position was reversed in July of this year. Last week, however, an Appeals Panel of the STL determined that the Tribunal does indeed have jurisdiction over legal persons in this regard. It is a very interesting decision, and worthy of reading in full. Some of the more controversial elements of the decision are discussed below.

The Status of Corporate Criminal Liability in Domestic States

A large portion of the decision discusses the extent to which domestic jurisdictions criminalise corporations, and the Appeals Panel ultimately concludes (at para. 60) that 'the Contempt Judge erred in not giving sufficient weight to domestic practice under Rule 3(A)'. There are three key errors with this approach, in my view. 

First, a number of the sources cited refer to corporate liability only for specific offences, such as money laundering, fraud, or corporate manslaughter. None of the state practice cited extends jurisdiction to corporate entities solely for offences against the administration of justice. This is significant, because the judgment distinguishes between contempt offences and other offences within the jurisdiction of the court, saying that there can be corporate criminal liability for the former but not the latter.

Second, it is difficult to determine the grounds for finding that weight needs to be given to domestic practice under Rule 3(A), which states that the Rules 'shall be interpreted in a manner consonant with the spirit of the Statute, and in order of precedence': the principles of interpretation codified in the Vienna Convention on the Law of Treaties; international standards of human rights; general principles of international criminal law and procedure; and the Lebanese Code of Criminal Procedure. Principles of domestic criminal law and procedure are not listed in this Rule at all, and no solid reasoning is given as to why the contempt judge should have taken them into account. Perhaps we can say that the examples given show state practice, thereby giving rise to customary international law, but the crucial opinio juris element is missing. If states had believed themselves to be bound to impose criminal liability on legal persons, they surely would have included such persons within the jurisdiction of the International Criminal Court when drafting the Rome Statute. Nor can this state practice be seen as reflecting 'international standards on human rights', which refer to the standards set down in international human rights law conventions, nor the general principles of international criminal procedure, where international criminal law is further defined in the online version of the Rules as 'the branch of international law which deals with criminal conduct recognised by the international community as particularly heinous. These crimes are principally genocide, crimes against humanity, war crimes, and aggression.' It would have been much more coherent to base this findings not on the practice of domestic states globally, but on the practice in Lebanon itself. While the Lebanese Code of Criminal Procedure does not mention liability for legal persons, it is clear when read in conjunction with the Lebanese Criminal Code (i.e. the applicable law to the Tribunal) that criminal jurisdiction does extend to legal persons.

Lastly, as pointed out by Judge Akoum in his dissent, the majority of these domestic sources are explicit in stating that 'persons' shall be defined as meaning both legal and natural persons, or otherwise spell out in detail the extent of their personal jurisdiction to cover corporations. This goes against the Panel's position that the ordinary meaning of 'persons' in the context of criminal law should be taken to mean corporate entities as well as natural persons.

Literal vs. Teleological Interpretation

The Appeals Panel found that the Contempt Judge had committed an error of law by invoking 'an interpretation of the word "person" in Rule 60bis that was consonant with the letter of the Statute rather than its spirit'. This relates to its finding (in para 27) that it is 'a cardinal principle of interpretation that texts should be applied in a manner consistent with the spirit of the law…[which] necessitates ascertaining the aim and scope of the Statute as a whole'.

The approach of 'ascertaining the aim of the Statute as a whole' looks beyond the aim of the drafters in drafting a specific provision (in the context of the policy pursued by the statute) when interpreting the meaning of that provision. The Panel's holistic approach is unsupported by its own reference to James Salmond, who stated that judges must 'ascertain from other sources, as best they can, the true intention which has thus failed to attain perfect expression.' The Panel might have found better support for their approach in some of the EU law cases that have referred to the aims of EU law as a whole. The approach taken is not guided by any apparent intention to include corporate entities within the scope of the STL's jurisdiction that was obfuscated by unclear wording, but rather by a general aim of the Statute as a whole to end impunity and bring perpetrators of terrorist crimes to justice. This is a slippery slope, as pointed out by Judge Akoum, who said that 'considerations against impunity [cannot] be read as carte blanche, allowing anything and everything to be done merely because they secure the Tribunal's noble aims.'

The 'Unconstrained' Nature of Inherent Jurisdiction

We might also be worried by the reference to the Tribunal's inherent jurisdiction over contempt offences as being 'unconstrained' (para 76). According to the Panel, 'our jurisdiction remains undefined, only to be determined upon the crystallisation of circumstances that call for a judicial pronouncement'. To draw this point to its furthest conclusion, we might wonder about what kinds of acts that interfere with the administration of justice that are not listed in Rule 60bis might also fall within the STL's unconstrained jurisdiction over such offences. If the presiding judge's pen was stolen by an intern, could he or she potentially find themselves in the dock for interfering with the administration of justice? And, seeing as the temporal jurisdiction over such offences is equally unconstrained, what about that person who distracted the judge in law school when he or she was trying to learn about a key principle of criminal law? These examples are obviously fantastical but they underscore a problem with allowing, through judge-made rules, unfettered jurisdiction over a matter that can give rise to up to seven years in prison and/or a hefty fine. 

The Future for Corporate Criminal Liability

The decision will be welcomed as opening the door for liability for corporations in other matters, and we might muse whether this was the underlying aim, given statements like 'modern history is replete with examples where great harm has been caused by corporations with the advantages that result from the recognition of their status as legal persons' in the judgment. It must be noted that the decision is actually quite convincing in parts. For example, I made the point in a previous post on this matter that the fair trial provisions refer to 'he or she', not 'it', but the Appeals Panel rightly pointed out that this gendered language does not appear in the French or Arabic versions of the Statute. 

Where this most recent decision falls down is in the illogical consequences of its ultimate conclusion - that corporate liability only attaches to contempt offences. Perhaps a wiser approach would have been to base the decision on the fact that the tribunal applies Lebanese law and that Lebanese law attaches criminal jurisdiction to legal, as well as natural, persons. Therefore, it could be argued, legal persons can fall within the jurisdiction of the Tribunal where offences are undertaken on behalf of or through that legal person, pursuant to Article 210 of the Lebanese criminal code. This rather straightforward point is obfuscated and diluted by the lengthy reference to extraneous matters, and some questionable legal conclusions, in this most recent decision.

H. Patrick Glenn RIP

Professor H. Patrick Glenn, of McGill University, has passed away suddenly. His masterful Legal Traditions of the World, the most recent edition of which was only published in August, took readers beyond the civil law/common law paradigm, to discuss such legal traditions as the Confucian, Islamic and Talmudic systems. By all accounts, he was a gifted, generous, and inspiring teacher. Our condolences go out to his family, friends, and colleagues.