By Lennert Breuker 

Interesting article on the ECCC, and more specifically, the political context in which it has been created and has to operate. I found it on the excellent blog of professor Schabas.

By Lennert Breuker

A few days ago Reuters reported that Paul Rusesabagina, the man so famously depicted in the movie ‘Hotel Rwanda’ as the hotel manager who saved many from falling victim to the génocidaires, is suspected by the Rwandan authorities of funding terrorist activities. Actually, the terrorist activities for which opposition leader Victoire Ingabire is currently being held for. Ingabire is also being held on charges of ‘genocidal ideology’, a questionable legal provision which allows for the prosecution of statements in which the genocide is denied or nuanced, and which seems to be used predominantly to attack the political opposition. I have also posted briefly on the arrest of Ingabire’s attorney, Peter Erlinder, for similar charges. He has been released in the meantime, but it seems that the pattern of harassment continues. Rusesabagina has criticised the Rwandan government over recent years and accused the government of conducting a smear campaign against him in response of the latest charges.

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By Otto Spijkers

Friday 29 and Saturday 30 October 2010, a very interesting conference takes place at my new workplace, the Peace Palace. The conference is about corporate liability for pillaging natural resources. The website of the Pillage Conference describes the topic of the conference as follows:

The illegal exploitation of natural resources has fueled and financed brutal conflicts around the world, yet there has been little success to date in holding companies accountable for trafficking in conflict resources. This conference, accompanying the Open Society Justice Initiative’s launch of a manual on prosecuting commercial actors for the war crime of pillage, is meant to foster renewed public debate about how the law can—and should—be used against companies whose theft of natural resources has driven conflict.

The manual, entitled Corporate War Crimes: Prosecuting the Pillage of Natural Resources, was prepared by James G. Stewart, Assistant Professor, University of British Columbia. He served, inter alia, as Appeals Counsel with the Prosecution of the United Nations International Criminal Tribunal for the former Yugoslavia. The manual is available for free online at the conference website, and I highly recommend it. The conference is organized by the Open Society Justice Initiative, and the Grotius Centre for International Legal Studies of Leiden University.

PhD researcher Christophe Paulussen examined the position of the International Criminal Court towards suspects who claim to have been irregularly brought before the International Criminal Court. He concludes, among other things, that the International Criminal Court should pay more attention to alleged irregularities in the pre-trial phase – the foundations of the case.

As an institution without a police force, the International Criminal Court (ICC) is dependent on third parties in arresting and surrendering suspects to The Hague. Especially in (post-)conflict areas, the focus of the ICC’s investigations, there is a risk that legal procedures are followed less scrupulously.

Already in the cases Lubanga Dyilo, Katanga and Bemba Gombo, the suspects claimed that problems could be identified with respect to the way they were brought into the jurisdiction of the Court. An example concerned the alleged illegal arrest and detention in the country of origin prior to the formal arrest of the ICC.

Paulussen studied the position of the ICC towards these kinds of claims: so-called male captus claims. He concludes that the ICC theoretically pays much attention to human rights – and that this is to be welcomed – but that it should worry even more about alleged pre-trial irregularities in practice. Only in that way, human rights and other legal guarantees can acquire true significance.

In addition, Paulussen is of the opinion that the ICC should examine more thoroughly whether or not it has the possibility to refuse (the exercise of) jurisdiction in the case of serious male captus cases. In that context, Paulussen asserts that the ICC should embrace an abuse of process-like doctrine, a broad doctrine with which the integrity of the legal proceedings can be supervised. With such a doctrine, the ICC can also properly address male captus claims which, for example, involve alleged violations of State sovereignty, something which does not seem to be possible at present.

Finally, Paulussen argues more generally that the international community must take its role as the enforcer of the ICC seriously. The support of States and international organisations in arresting and surrendering suspects is indispensable to attain the objective of the Court, namely to put an end to impunity.

Christophe Paulussen (Maastricht, 1979) followed the program International and European Law and the Research Master in Law at Tilburg University. His research was financially supported by the Netherlands Organisation for Scientific Research (NWO).Christophe Paulussen defended his PhD thesis on Friday, 24 September at 2 PM in the Auditorium of Tilburg University, Warandelaan 2. Title PhD thesis: Male captus bene detentus? Surrendering suspects to the International Criminal Court. Supervisors: prof.dr. W.J.M. Van Genugten and prof.dr. M.S. Groenhuijsen. For more information, please contact Christophe Paulussen, christophepaulussen@hotmail.com, tel.: 00 31 6 44 912 289.

By Dov Jacobs

Cross post from Spreading the Jam 

Over 9 weeks after the death of Rasim Delic during the appellate procedure at the ICTY, the Appeals Chamber has finally reached a decision on the termination of the proceedings. It’s an interesting case, because it is the first time that an appellate body of an international criminal tribunal has to deal with such a situation. In all other cases, the person had died before completion of trial proceedings. Both Delic’s lawyer and the prosecutor had filed motions in support of the continuation of the proceedings, based on the interests of justice and of the family’s right to know the truth.

Several legal issues of interest had to be considered, which I briefly laid down at the time of his death. Basically, 1) should the proceedings continue and 2) if they are terminated, what happens to the trial judgment. Continue reading →

Guest post by Julia-Pia Schütze

These days public attention in Cambodia focuses on three different legal proceedings. As most international lawyers will be aware of, the Extraordinary Chambers in the Courts of Cambodia (ECCC) are going to pronounce its verdict in the “Duch” trial in late July. But apart from that, two domestic cases also touch upon some interesting features of human rights law. Firstly, two arrests warrants, the latest dating from 22 June 2010, were issued against opposition leader Sam Rainsy for uprooting border markers near the border to the neighbouring country Vietnam and publishing a map on his party’s website containing false information about the border demarcation between the two countries respectively. Secondly, the Cambodian Supreme Court has recently decided as Court of Appeal on a defamation case brought by the well known lawmaker and Member of Parliament Mu Sochua against the Prime Minister of Cambodia, Hun Sen. This note deals with the latter case. However, I will not comment on any of the issues but rather only briefly summarise the facts of the case to bring them to the knowledge of a wider public. Continue reading →

Lennert Breuker 

Opinio Juris makes mention of the arrest of a U.S. law professor, Peter Erlinder, by the Rwandan authorities for “…’genocide denial’ — code for ‘criticizing the Kagame government.’ See here: http://opiniojuris.org/2010/06/02/two-thoughts-on-peter-erlinders-arrest-in-rwanda/ Erlinder is (or was, anyone who knows may come forward) one of the leading defense attorneys at the ICTR, and is also representing Victoire Ingabire. Unfortunately, his arrest fits perfectly in the pattern of pure political (ab)use of the legal prohibition of genocidal denial as I already reported on below. Harassing a lawyer for conducting his work as a defense lawyer however, is a step further in the repressive policy of the Rwandan government. I hope professor Erlinder will be released in good health as soon as possible.

Lennert Breuker 

I will not engage in an analysis of the decision as I’m currently assisting one of the defense teams, but just to signal an interesting development at the ECCC (Extraordinary Chambers in the Courts of Cambodia) for those that may have missed it: the Pre-Trial Chamber has issued a decision in which it accepts the objections of the defense against the extended form of Joint Criminal Enterprise, also known as JCE III. This has always been the most controversial form of JCE for stretching the principle of culpability to far.

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By Tobias Thienel

The organisers of an international symposium at Melbourne Law School have asked me to publish this Call for Papers. I’m more than pleased to do so. This should be a good one.

UNTOLD STORIES: HIDDEN HISTORIES OF WAR CRIMES TRIALS

A two-day international symposium to uncover and explore some of the less well-known war crimes trials, both international and domestic.

Melbourne Law School

15th and 16th October 2010

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Gerry Simpson, Tim McCormack, Kevin Heller, Jennifer Balint

CALL FOR PAPERS

Deadline for Abstracts: 30th May 2010

As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.

The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.

The symposium will be held over two days. We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided. A speakers’ dinner will be held on the evening of the 15th and an informal dinner on the 16th for those who remain in town.

In addition to the organizers, confirmed participants in the symposium include Mark Drumbl and Larry May. The organizers intend to publish the papers presented at the symposium as an edited book; Oxford University Press has indicated preliminary interest.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 30th May 2010 to Gerry Simpson c/o Cathy Hutton, Administrator, APCML (c [dot] hutton [at] unimelb [dot] edu [dot] au). Doctoral students are welcome to submit abstracts.

Questions about the symposium can be directed to Kevin Heller (kheller [at] unimelb [dot] edu [dot] au)