Netherlands: No More Phone Tapping Without Safeguards

Phone tappingThe Dutch State is no longer allowed to tap lawyers as long as there is no independent oversight guarding the use of special powers by the Dutch (military) intelligence agencies (‘AIVD’ and ‘MIVD’). As long as this check is not in place, the State is also not allowed to provide the Public Prosecutor’s Office with information that has been collected based on communications between lawyers and their clients.

On 27 October 2015, the Appeals Court in The Hague confirmed the verdict rendered by the  judge in interlocutory (summary) proceedings in The Hague on 1 July 2015 in the case Prakken d’Oliveria c.s. vs. The Netherlands. The Appeals Court rejected the State’s appeal against that verdict on all counts. This means that, as of 2 January 2016, the Dutch State must cease all forms of tapping, unless an independent check is in place. The bar on providing the Public Prosecutor’s Office with information has been in place since 1 July 2015.

The Dutch tapping-practices are clearly inconsistent with the criteria that have been developed by the European Court of Human Rights. Particularly with regard to lawyers, the use of special powers by the intelligence agencies must be accompanied by safeguards. Following the District Court of the Hague, the Appeals Court has now also recognized this, and drawn the conclusion that the State must cease its unlawful tapping.

The Appeals Court leaves no doubt that the tapping of lawyers by the intelligence agencies is unlawful as long as there is no independent oversight in place. According to the Appeals Court, it is ‘of great importance that those who turn to a lawyer or are considering doing so, can rely on the fact that, in principle, the confidentiality of their communication with that lawyer is guaranteed, and that infringements will only take place in exceptional circumstances and under the supervision of an independent body.’

The State had also argued that new legislation needed to be drafted and that the 6-month deadline imposed by the judge in first instance provided insufficient time in which to do so. The Appeals Court disagreed. Moreover, it held that the State has had ample opportunity to adjust its policy because it should have been clear long ago that the current system is inadequate.

Victims of US Drone Strike Against The Netherlands

©AFP

©AFP

Two Somali citizens have taken legal action against the Netherlands for war crimes. The two nomads represented by Dutch lawyers Göran Sluiter and Liesbeth Zegveld, claim that they were hit and lost their two young daughters because of an American drone strike in January 2014. The US operation was meant to eliminate Ahmed Godane and resulted in the killing of several Al Shabaab members. At the time, no civilian casualties were reported by any media or Western officials.

The two victims claim that the Netherlands are co-reponsible for the attack since the Dutch intelligence has been providing crucial information on Somali communications to the US. The Intercept has revealed documentation stating that more than half of US interventions in Yemen and Somalia are informed by meta data, which is often provided by foreign partners. The use of these telecommunication data by the US army is the basis of the case brought by the two Dutch lawyers.

Sluiter, one of the lawyer, criticized the so-called precision of targeted done killings: “Drone strikes are only allowed if there are no innocent victims in the area. But obviously the drones are not controlled with due care”, Sluiter said. Controversies have recently became stronger around drone attack.  According to The Intercept, only 35 out of 200 killings by drone from 2012 to 2013 in Afghanistan were intended targets.

ADC-ICTY Annual Conference 2015

ADC-ICTY-300x300Reminder: The Association of Defence Counsel Practising before the ICTY and Representing Counsel before the MICT (ADC-ICTY) will host its annual conference, entitled “The Situation of Defence Counsel at International Criminal Courts and Tribunals”, at the Bel Air Hotel on 5 December from 9:00 to 17:30. Registration is open until 30 November.

This one-day conference will feature four distinguished panels on various topics in relation to the role and importance of the Defence. The keynote speech, entitled “No Justice without Defence Counsel”, will be given by Judge Prof. Dr. h.c. Wolfgang Schomburg and the closing remarks will be delivered  by ADC-ICTY President Colleen Rohan. Panellists will include renowned Defence Counsel, Judges and representatives from various international criminal courts and tribunals.

Participation fees: 35 Euros (including coffee breaks) for external participants, 20 Euros for ADC-ICTY members, students and unpaid interns. Lunch will cost 15 Euros per person upon reservation. It is possible to obtain credits for continuing legal education purposes.

The ADC is looking forward to welcoming many external participants, students and interns. For further information and to register, please contact the ADC-ICTY Head Office at adcicty.events@gmail.com, and access this link.

Sri Lanka – Expert Panel Nominated To Monitor Transitional Justice

UN Sri LankaThe Transnational Government of Tamil Eelam (“TGTE”) has nominated a panel of five legal experts to monitor the design and implementation of the transitional justice mechanisms in Sri Lanka, including the judicial measures to investigate and prosecute war crimes, crimes against humanity and genocide (“Monitoring Accountability Panel” or “MAP”).

Following the Report of the OHCHR Investigation on Sri Lanka, dated 16 September 2015, and the UN Human Rights Council Resolution on ‘Promoting reconciliation, accountability and human rights in Sri Lanka,’ dated 1 October 2015, the Sri Lankan Government undertook to establish accountability mechanisms to address the crimes committed during the Sri Lankan armed conflict. These will include a special criminal court with foreign judges and prosecutors.

The MAP will provide independent monitoring, advice, and recommendations, focusing on the effectiveness of accountability measures from a victims’ perspective. It will also consider issues of fair trial and due process for suspects and accused persons. The views and recommendations of the Panel will enable victims and other stakeholders to participate more effectively in the process and thus enhance the legitimacy of the measures.

The MAP shall formulate its opinions independently – irrespective of party political considerations or the agenda of any specific group (including the TGTE) – according to the interests of fair justice, applying international standards and best practices. The initial mandate of the Panel shall run from November 2015 to December 2016.

The Members of the Monitoring Accountability Panel have been selected for their legal expertise in international criminal law and human rights, national war crimes courts, and regional criminal cases. The Panel Members (in alphabetical order) are:

  • Marie Guiraud (France)
  • Peter Haynes QC (UK)
  • Richard J Rogers (UK)
  • Heather Ryan (USA)
  • Justice Ajit Prakash Shah (India)
  • Geoffrey Robertson QC will act as a consultant to the Panel, providing additional independent advice.

Naser Orić’s Defence Requests Termination of the Proceedings

Naser OricNaser Orić’s defense lawyers have called on the Mechanism for International Criminal Tribunals to order the termination of the proceedings against their client. The charges against him were brought before the State Court in Sarajevo

The defense of Naser Orić, who was tried by the International Criminal Tribunal for the former Yugoslavia (ICTY), has asked Theodor Meron, the president of the Mechanism for International Criminal Tribunals, to appoint a panel of judges which would order the Bosnia and Herzegovina (BH) State Court to terminate the proceedings against the former BH Army commander in Srebrenica.

In the motion, the defence has invoked Article 7 of the Mechanism’s Statute, which stipulates that ‘no person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute for which he or she has already been tried by the ICTY, the ICTR, or the Mechanism’. Orić’s defense has also invoked the Rules of Procedure which stipulate that if the president of the Mechanism receives reliable information that proceedings have been instituted before a national court against a person who has already been tried before one of the international tribunals, the president should issue a ‘reasoned order’ to ‘permanently terminate’ the proceedings. Continue reading

Event: Sentencing, Rehabilitation and Perpetrators of International Crimes

CICJHosted by the Center for International Criminal Justice, VU University Amsterdam

Date: 30 November 2015

Venue: VU University Amsterdam, in Agora 2 (3rd floor Main Building).

Over the past decades, international criminal tribunals and courts have convicted over 150 perpetrators of genocide, crimes against humanity and war crimes. International convicts serve their sentences in numerous countries all over the world, from Mali to Sweden, from Benin to Estonia.

Whereas international criminal tribunals aim to rehabilitate perpetrators of international crimes and cite rehabilitation in their case-law as one of the sentencing goals and a criterion for early release, recent publications indicate that this ulterior aspiration in reality seems to be devoid of a clear conceptualization, thought through objectives and consistent implementation. In the future the International Criminal Court as well as domestic jurisdictions prosecuting perpetrators of international crimes will continue to be confronted with the question of whether, how, and to what extent, to rehabilitate perpetrators of war crimes, crimes against humanity and genocide.

This interdisciplinary seminar brings together scholars and practitioners working on issues of relevance to this intricate and underexplored issue: (i) perpetrators of international crimes; (ii) sentencing and enforcement of sentences at the international criminal courts and tribunals and at domestic courts prosecuting war criminals and finally (iii) rehabilitation interventions for “conventional” offender. The first seminar of its kind, it explores the rationale to rehabilitate these individuals, evaluates past and present practices and searches avenues for improvement.

  • The programme of the seminar can be found here
  • Attendance is free
  • The number of participants is limited
  • Register before 20 November by filling out this registration form

“A Well-Reasoned Opinion?”

Former Khmer Rouge leader Nuon Chea appe

Nuon Chea (left) and Khieu Samphan

The Asian International Justice Initiative (AIJI) has written and published “A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge”, a final, comprehensive report on the trial of Nuon Chea and Khieu Samphan in Case 002/01 at the Extraordinary Chambers in the Courts of Cambodia (ECCC).

On 7 August 2014, the ECCC reached an important institutional milestone when the Court published its long-awaited Trial Judgment in the first case against two of the surviving alleged senior leaders of the Khmer Rouge—Nuon Chea and Khieu Samphan The Court found both men guilty of crimes against humanity, and sentenced them each to life imprisonment, while awarding “moral and collective reparations” to the 3,869 Civil Parties participating in the trial.

Despite hopes that the five-year process of judicial investigation, trial, deliberation, and Judgment-drafting would produce a rigorous and insightful final product, in reality, this report argues, the Case 002/01 Judgment fails to deliver the most fundamental output one expects from a criminal trial—systematic application of the elements of crimes to a well-documented body of factual findings. Based, in part, on insight gained from the continuous presence of a team of trial monitors throughout trial, this report provides commentary on “how a contentious and confusing trial process in Case 002/01 ultimately produced a similarly problematic final Judgment.”

ICC: Dismissal of Prosecutor’s Appeal Against Decision Requiring Review of the Mavi Marmara Case

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The Mavi Marmara was the lead ship in a eight-vessel humanitarian convoy heading for Gaza.

Today the Appeals Chamber of the International Criminal Court (ICC) decided by majority to dismiss, in limine and without discussing its merits, the Prosecutor’s appeal against the decision of Pre-Trial Chamber I requesting the Prosecutor to reconsider the decision not to initiate an investigation into the situation referred to her by the Union of the Comoros with regard to “the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”.

The Appeals Chamber found that, contrary to what the Prosecutor had submitted, the decision of Pre-Trial Chamber I was not one “with respect to […] admissibility” within the meaning of article 82 (1) (a) of the Rome Statute. The Prosecutor’s appeal was therefore inadmissible. As a part of its reasoning, the Appeals Chamber considered that to allow the Prosecutor’s appeal to be heard would rupture the scheme for judicial review of the Prosecutor’s decisions as explicitly set out in article 53 of the Statute, introducing an additional layer of review by the Appeals Chamber that lacks any statutory basis.

The Appeals Chamber’s decision was adopted by a majority composed of Judges Sanji Mmasenono Monageng, Howard Morrison and Piotr Hofmański. Judges Silvia Fernández de Gurmendi and Christine Van den Wyngaert appended a joint dissenting opinion on the admissibility of the Prosecutor’s appeal, concluding that they would declare the appeal to be admissible, without prejudice to their subsequent consideration of its merits. Continue reading

Event: Pablo De Greiff to Deliver Distinguished Lecture on Transitional Justice

Katholieke Universiteit Leuven

The Katholieke Universiteit Leuven (Belgium)

By the Katholieke Universiteit Leuven (KU Leuven)

Date: Thursday 19 November, 17:15-19:00

Venue: KU Leuven, Faculty of Theology, Maria Theresia College, Small Aula, room 00.15

Chair: Em. Prof. Marc Bossuyt, Member of the United Nations Committee on the Elimination of Racial Discrimination and University of Antwerp

Rapporteurs: Dr. Pietro Sullo (KU Leuven) & Dr. Estelle Zinsstag (KU Leuven)

17:15 Welcome Prof. Bernard Tilleman, KU Leuven

17:20 Introduction Prof. Stephan Parmentier, KU Leuven

17:30 Distinguished Lecture on Transitional Justice Prof. Pablo de Greiff, New York University and United Nations Special Rapporteur on the Right to Truth, Justice, Reparation and Guarantees of non-repetition

18:15 Questions and Answers

18:45 Final remarks: Em. Prof. Hans Van Houtte, President Iran-United States Claims Tribunal and KU Leuven

19:00 Closing

The lecture is part of a newly established Fund on Transitional Justice at the KU Leuven with the aim to promote research and activities in this field.

The lecture is public and open to all without advance registration.

For more information, click here.