Friday 8 April 2016

The Mistrial, An Innovation in International Criminal Law

Earlier this week, the second Kenyan case at the International Criminal Court came to an end with the granting of a motion by the two accused claiming that there is ‘no case to answer’. This is a pretty standard concept in adversarial proceedings. When the prosecution concludes its evidence and confirms that it has nothing further to add in order to make evidence of guilt, it becomes the turn of the defence to call evidence. But first the defence may contend that the evidence of the prosecution is insufficient to provide the basis for a conviction. If it succeeds, it is in principle entitled to an acquittal on the charges.

In the Ruto and Sang decision, two of three judges agree with the defence that the prosecution evidence is insufficient to establish guilt. The decision is somewhat strange and perhaps even unprecedented in international criminal law in that we have three separate judgments by the three judges. Dissenting judge Carbuccia even claims ‘that the decision of the majority of the Chamber contains insufficient reasoning, since Judge Eboe-Osuji and Judge Fremr have both given separate reason’. But that is clearly wrong because Judge Eboe-Osuji and Judge Fremr agree that there is no case to answer. Furthermore, Judge Eboe-Osuji, in his judgment, says he accepts Judge Fremr’s review of the facts.

The real novelty in this decision is the remedy. According to Judge Eboe-Osuji, it is a ‘mistrial’. Judge Fremr doesn’t use the word ‘mistrial’, and he says ‘I do not consider the impact to have been of such a level so as to render the trial null and void’. But he agrees with Judge Eboe-Osuji that it is ‘appropriate to leave open the opportunity to re-prosecute the accused, should any new evidence that was not available to the Prosecution at the time of the present case, warrant such a course of action’.

The consequence, then, is that the two majority judges agree that the prosecutor has been unable to produce enough evidence to convict but that she should be given a second chance. I suspect that the Prosecutor is very relieved to send the end of the Kenya nightmare and that this will be the last we hear of the situation. Were there ever an attempt to prosecute Ruto and Sang again, they would have strong arguments to challenge the legality of the determination by the majority.

This is the first time that a ‘mistrial’ has been declared in international criminal law. It is a term that is used in common law adversarial proceedings where juries are present and where a trial is in effect aborted and the prosecution given the chance to start anew. I am unaware of any examples of a mistrial outside the context of a jury trial. Presumably if there were any, Judge Eboe-Osuji, who is a meticulous and thorough researcher, as his many constructive and creative opinions demonstrate, would have found them and cited them in his reasons.

The first problem is that there is no notion of a ‘mistrial’ in the Rome Statute, the Rules of Procedure and Evidence, the Regulations of the Court, and previous practice of other international criminal tribunals. When prosecutors and defence counsel have tried to argue that certain procedural mechanisms exist by virtue of article 21, and in the absence of express provision in the Rome Statute, they have met with rejection by the Appeals Chamber. Judge Eboe-Osuji’s contention that this novel and hitherto unknown concept can be derived from article 64(2) and the duty of a Trial Chamber to ensure a fair trial is not very convincing. His case would be more compelling if he could find examples in national practice for a ‘mistrial’ where the prosecution is unable to make out its case.

Suppose that instead of making a ‘no case to answer’ motion, the defence had simply said it had no evidence to call on its own behalf. In other words, the defence would invite the Trial Chamber to issue a verdict based upon the prosecution’s evidence without calling any of its own witnesses. The result would have to be an acquittal. Why does this tactical decision by the defence put Ruto in a Sang in a position that is inferior to the one that they would be in had their counsel said they had no evidence to call?

Perhaps, according to Judge Eboe-Osuji’s theory, the ‘mistrial’ would still be available even at the verdict stage. But it seems extraordinary that a Trial Chamber could decline to issue a verdict of guilty or not guilty and instead declare a ‘mistrial’, thereby inviting the Prosecutor to try again. There is also a serious obstacle to all of this in the Rome Statute itself. Article 20(1) states: ‘Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.’

Article 84 of the Rome Statute poses another obstacle. It allows a revision of a judgment of conviction in the event of new evidence being available. There is no similar procedure in the case of acquittal. Allowing the Prosecutor to get a second chance if new evidence comes available is not consistent with this provision and with the vision of the drafters of the Statute. Suppose, for example, that instead of evidence of interference with prosecution witnesses being available at the 'no case to answer' stage, as it is in Ruto in Sang, this only became available after an acquittal, would the Prosecutor be entitled to demand a new trial? This is simply not allowed by the Statute.

Judge Eboe-Osuji is quite right to be shocked at the evidence of interference with the trial but his attempt to find an original remedy is troublesome. He is probably right to see article 70 proceedings for offences against the administration of justice to be an inadequate answer. But it cannot be ruled out that the ‘mistrial’ remedy may actually have the opposite effect. If a trial can be aborted in this way because of interference with witnesses, is that not an invitation to those who do not want justice to run its course? In this case, the defendant clearly would prefer an acquittal to a second trial. But in many cases, the defendant will prefer a second trial to the prospect of a conviction. Those who seek to avoid a conviction have now been provided with a mechanism.

Perhaps at some point another Chamber or another court will have to interpret this judgment. It should be construed as holding that based upon all of the Prosecutor's evidence there is 'no case to answer' and that this is equivalent to an acquittal. That the majority judges attempt to reserve the right of the Prosecutor to start again is not provided for by the Rome Statute and is in fact forbidden by article 20(1). They have gone beyond their authority in so doing. Subject to an appeal by the Prosecutor, Ruto and Sang are 'not guilty'.

Fred Harhoff and the mystery of the Šešelj acquittal

The acquittal judgment of Vojislav Šešelj paints a portrait of a man who might be described as ‘the Donald Trump of Serbia’. Some readers of the blog may be frustrated to find only summaries of the judgment and the dissent by Judge Lattanzi on the website of the International Criminal Tribunal for the former Yugoslavia. In fact, the Judgment can be found on the French site of the Tribunal, along with the 500-page Opinion concordante ofJudge Antonetti.

The trial itself finished in mid-2012, some four years ago, but judgment was delayed when Judge Fred Harhoff was recused in September 2013, only weeks before the Trial Chamber was expected to issue its verdict. Judge Harhoff’s recusal resulted from a motion filed by the defendant after Judge Harhoff’s infamous e-mail message to Danish friends and colleagues that complained about a malaise at the Tribunal. The President of the Chamber, Judge Antonetti, objected to the recusal of Judge Harhoff.

Rather than abort the trial and start again, the Tribunal decided to appoint a new judge who was to familiarize himself with the trial materials and then participate in the verdict. On 31 March 2016, Judge Antonetti and the new judge voted to acquit while Judge Lattanzi dissented.

One puzzle in the acquittal is the attitude of Judge Antonetti to the recusal of Judge Harhoff, back in September 2013. We now know what could not have been known in 2013, namely that Judge Antonetti favoured acquittal. Why would he have fought to keep Judge Harhoff in the Chamber knowing that he would vote with Judge Lattanzi to convict? After all, Judge Harhoff was recused because his impartiality was challenged by the defendant. The judgment of recusal  states that Judge Harhoff had ‘a bias in favour of conviction’.

Judge Liu dissented on that decision. He said that the majority had failed to take into account Judge Harhoff's experience as a Judge of the Tribunal and a professor of law. He said ‘had the Majority considered these circumstances, it would have found that Judge Harhoff's statements do not demonstrate an appearance of bias towards conviction of accused before the Tribunal as to overcome the presumption of impartiality’.

With hindsight, we can see that dissenting Judge Liu, who upheld the impartiality of Judge Harhoff was correct. The two judges who voted to recuse Judge Harhoff were wrong. So was the defendant, who made the mistake of filing his motion. By the way, Vojislav Šešelj deserves some credit for eventually obtaining an acquittal. He was ridiculed for defending himself. He didn’t even call witnesses in his own defence, something that most experienced criminal lawyers would denounce as a huge mistake. And he won an acquittal. But his challenge aimed at recusing Judge Harhoff was a mistake.

How do we know that Judge Harhoff would have voted to acquit? Today, the Oslo-based TOAEP released a policy brief by Fred Harhoff discussing his recusal. Professor Harhoff explains that he waited until the verdict before making this public statement. In it, he writes:

However, I did not even mention Šešelj’s name or make any reference to his person or his trial in my letter because my concern was not about Šešelj or other politicians, but about generals and the military establishments’ possible interest in rais- ing the legal requirements for the conviction of generals. The Panel did raise this issue in its Decision by referring to the fact that Šešelj was charged, inter alia, with hav- ing “directed paramilitary forces”, but his role was not comparable to the authority of a regular military com- mander during combat. He was a politician who occasionally visited his paramilitary volunteers at the front- line to boost their morale, but to the best of my knowledge, he never engaged in tactical manoeuvres or combat con- trol on the battle eld. My letter had nothing to do with Šešelj, nor was it particularly concerned with Serbs as such (as claimed by Šešelj in his Motion).
I waited until after the rendering of the Šešelj Trial Judgment on 31 March 2016 to publish these thoughts. A pos- sible appeal may still reverse the Trial Chamber’s acquit- tal. I regret the Decision to disqualify me from the Šešelj trial, not only because I still believe that the Decision – for the reasons I have explained above – was ill-founded, but also because my disquali cation and replacement by an- other Judge caused a further and substantial delay of the trial against the accused who had already been held in custody in The Hague for more than ten years. Indeed, the Bench on which I sat in the Šešelj case was just a couple of months away from rendering its judgment. The episode remains a mystery to me.

Professor Harhoff does not quite go so far as to say he was planning to vote to acquit, although that seems obvious enough from his comments made public today.

But maybe it is not such a mystery. We now understand better why Judge Antonetti was opposed to his recusal in the report that he sent President Meron in early September 2013. The only 'mystery' is the misjudgment by the other judges and those who supported the recusal of Judge Harhoff, including the defendant.

This episode provides a rare opportunity to assess how wrong conclusions about bias may be sometimes. Isolated statements and comments, taken out of context, can indeed raise concerns and lead to negative perceptions. The test is what the 'reasonable person' would apprehend. The saga of Šešelj and Harhoff should inform our 'reasonability' in such circumstances.

Fred Harhoff was and always has been a fair-minded professional who would neither convict or acquit an accused for improper reasons or out of bias. This wasn’t obvious enough to the judges who voted to remove him. Nor did the defendant understand this. If he had, he would have been a free man two and a half years ago.

Wednesday 6 April 2016

The death penalty: Is the glass half full or half empty?

Amnesty International today issued its 2016 report on capital punishment. The thorough annual reports by Amnesty International have been produced for many years. They enable comparisons to be made and trends to be identified.

The ‘headline’ on Amnesty’s website is ‘Dramatic Rise In Executions’. It is a gloomy and discouraging message. I expect this story will run in the media around the world.

This may be a case of debating whether a glass is half empty or half full. As the report indicates, the dramatic increase is due to three countries: Iran, Pakistan and Saudi Arabia. In 2014, the three accounted for 386 executions. In 2015, they were responsible for 1,451 executions. It is a huge and terrifying increase. As Amnesty recognizes, these three states generate 89% of the total executions on the planet (with the exception of China, which Amnesty does not include in its statistics because nothing official is available).

But there is another much more hopeful message in the Amnesty data.

If the very peculiar and grotesque cases of Iran, Pakistan and Saudi Arabia are excluded from the total, we actually see a rather stunning decline in the death penalty throughout the world. I looked at Amnesty’s reports over the past six years, calculating the total number of executions but without counting Iran, Pakistan and Saudi Arabia. Here is the result

2010  248
2011  234
2012  288
2013  330
2014  223

2015  179

In other words, excluding those three very nasty countries, the number of executions in the world has never been lower. The decline in 2015 is nothing if not dramatic. If we look at the average for the previous five years, it is 264 executions per annum. The total of 179 for 2015 represents a drop of more than 30% compared with the average for the previous five years. Wow!

Some of this might be explained by the shrinking subject matter. In effect, there are fewer countries that apply the death penalty today than there were in 2010. But the difference is not that great. In 2010, Amnesty said that 95 states had abolished the death penalty in law., and that 139 had abolished it in either law or in practice. This year, the total is 102 for those that have abolished it in law, and 140 for those that have abolished it in law or in practice. That might explain a slight reduction, but not a 30% drop. The conclusion must be that most of the States that retain the death penalty actually use it significantly less than they did at the beginning of the decade.

China is excluded, of course. Since 2010, Amnesty has not even attempted to guess at the number of executions in China. It is probably several thousand per annum. Our information on China is entirely anecdotal, but it seems consistent with the general trend rather than with that of the three anomalous countries. There can be little doubt that China has greatly reduced its resort to capital punishment in recent years.