tag:blogger.com,1999:blog-4605495417463810012.post3096379526853399138..comments2024-03-06T10:16:40.696+00:00Comments on PhD studies in human rights: Changed circumstance for Bemba?William A. Schabashttp://www.blogger.com/profile/17552332133145290879noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-4605495417463810012.post-89342314289333359362009-08-17T14:59:47.990+01:002009-08-17T14:59:47.990+01:00The structure of Articles 58(1) and 60(2) does see...The structure of Articles 58(1) and 60(2) does seem to create something of an oddity at first glance - but perhaps the wording of these articles does in fact serve a purpose. <br /><br />As you point out, a successful challenge to 58(1)(a) via 60(2) would indeed cause the case (such as it is at this early stage) to collapse. The suspect would then have to be released "without conditions" as provided for in 60(2) and the warrant would be effectively lifted (note that this would not necessarily be only “interim”; the wording of 60(2) arguably provides for other eventualities). An Appeals Chamber ruling from Ngudjolo, June 2008, would seem to back this up: “Article 60 (2) of the Statute aims to provide the detainee with an early opportunity to contest his or her arrest and sequential detention. [...] The Chamber must address anew the issue of detention in light of the material placed before it.” So it is clear that the suspect is able to challenge his actual arrest and not only his detention. I wonder whether this would really constitute a debate about the "merits" of the case, as you suggest. That stage has yet to come - at this stage we are concerned with the warrant of arrest which should arguably be viewed only as a procedural step in the case, enabling the preparation of the trial, rather than saying anything about the merits of the case. It is quite conceivable that some information could come to light which could serve to invalidate the warrant; if this occurs, the suspect would still have no way to challenge 58(1)(a); rather he would have to wait until the confirmation of charges hearing and remain in detention until that point. This cannot be right. In this regard note that, as the Single Judge seems to indicate, a successful challenge to Art. 58(1)(a) could only realistically be mounted prior to the charges being confirmed because, after this, there are already "substantial grounds to believe - an even higher evidentiary threshold than that required under article 58(1)(a) of the Statute" (therefore, post-confirmation, only 58(1)(b) can in fact be challenged). <br /><br />Additionally, how do you explain the appearance of Article 60(5): "If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released"? This provision arguably foresees the rescinding of a warrant, by providing for its re-issuance. <br /><br />The remaining problem is that a summonsed suspect does not enjoy this privilege. This might be explained by the fact that his human rights (viz. the right to liberty) remain intact. There is no need (or, less need) for him to challenge the summons if he remains at liberty. He will be given a full chance to dispose of the charges at confirmation.Markhttps://www.blogger.com/profile/13112722464463262830noreply@blogger.comtag:blogger.com,1999:blog-4605495417463810012.post-45497320327358997182009-08-17T08:29:39.606+01:002009-08-17T08:29:39.606+01:00The single judge may not say it, but I would argue...The single judge may not say it, but I would argue that paragraphs 59 and 75 both would have reached different conclusions but for the amended charges. If there was evidence the accused had joint control over the alleged crimes, both the incentive to flee analysis and the threat to witnesses analysis would have been different. <br /><br />As for gravity of crimes and command responsibility, I think the repercussions of such omissions of duty are extremely grave. A sentence is based upon individual circumstances and will vary. But regardless, it seems a war crimes tribunal will always have as a central goal to ensure that commanders keep control of their soldiers. <br /><br />As for Article 58(1)(a), I would think it was intentionally included in the Statute as a sort of habeas corpus which was sorely lacking at the ad hoc Tribunals. If evidence can show an arrest warrant is based on fraudulent evidence or clear error, or if a Pre-Trial Chamber has committed some gross mistake of law, then the accused should be able to raise those challenges immediately. Remember, the arrest warrant is issued without any defence input. Defence Counsel needs to be able to challenge the arrest warrant on both factual and legal grounds in a timely manner, separate from the confirmation of charges which takes place almost a year after arrest.VC Lindsayhttps://www.blogger.com/profile/00732519687886296960noreply@blogger.com