Latest News and Events

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



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, 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

Latest Analysis

How Africa Can Fix the International Criminal Court

By John Dugard*

ICCThe ruling African National Congress’s demand that the South African government should pull out of the International Criminal Court is defeatist, naïve and reactionary. African states have largely themselves to blame for the fact that the continent has been singled out by the court, and rather than withdraw they should use their political muscle to ensure that prosecutions are brought against non-African leaders too.

Africa occupies a key position in the International Criminal Court (ICC). It is the largest regional group with 34 member states; the present prosecutor of the court is an African woman – Fatou Bensouda of The Gambia – and four of the 18 judges on the court are from Africa, including the vice-president, Joyce Aluoch of Kenya. Africa is not therefore a marginal player in the ICC.

Despite this the ICC is more criticised in Africa than any other continent. In large measure this criticism comes from the leaders of non-member states, such as Zimbabwean President Robert Mugabe and Sudanese President Omar al-Bashir, who are themselves accused of committing international crimes.

But the leaders of member states, whose judges serve or have served on the court, have given support to the criticism and condemnation of the court. Perhaps the three most vocal leaders of this group are Kenyan President Uhuru Kenyatta, Ugandan President Yoweri Museveni and South African President Jacob Zuma. Continue reading

Why Myanmar Needs to Stop Prosecuting People Over Facebook Posts

By Vani Sathisan*

facebookTo say that Facebook and other internet-based social media networks have revolutionized modern day communication would be an understatement. According to a report by the Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the global number of internet users has reached more than two billion. One million log onto Facebook every month. Twitter claims 500 million users and YouTube is viewed about 4 million times per day. After ideas expressed online have had an instant “viral” spread, revolutions  have unfolded .

And so have the prosecutions.

Judiciaries worldwide have had to struggle with what content is defamatory and what is self-expression.

The US Supreme Court, in Elonis v. United States [2015], considered the case of a defendant who had written, and posted on Facebook, apparently violent rap lyrics, including “I want to kill my wife” while he was undergoing a divorce. The court had to weigh up whether convicting a man of threatening another person requires proof of subjective intent to threaten or whether it would suffice to show that a “reasonable person” would regard the statement as threatening. It ruled in favour of the defendant stating that “negligence is not sufficient to support a conviction.” The defendant’s lawyer argued that his client was exercising his First Amendment rights and that governments may not prohibit the expression of an idea simply because certain factions of society find it offensive. Continue reading

Le Tribunal spécial pour le Liban, cet énergumène judiciaire: Observations d’un expert avisé

Compte-rendu d’entrevue avec Me Philippe Larochelle

par Pascale Langlais*photo_tsl

En 2009, la justice pénale internationale a mis au monde un petit nouveau, une entité judiciaire bien spéciale et unique en son genre : le Tribunal spécial pour le Liban (ci-après « TSL »). Né de la résolution 1757 du Conseil de Sécurité des Nations Unies à la suite des attentats terroristes ayant coûté la vie à l’ancien premier ministre du Liban, Rafiq Hariri, en 2005, le TSL se distingue des autres juridictions internationales à plusieurs égards et semble parfois évoluer en orbite des autres tribunaux phares de la justice internationale. À ce sujet, on doit notamment souligner le fait qu’il s’agit du premier tribunal international pénal à juger de crimes uniquement définis en droit national, à savoir le terrorisme selon le Code pénal libanais (pour plus d’information). Il s’agit également du premier tribunal international pénal à prévoir dans son Statut la possibilité de tenir des procès in absentia, donc en l’absence de l’accusé. Autre innovation, le TSL est aussi le premier tribunal en son genre à se reconnaître une compétence en matière de responsabilité de personnes morales[1].

Malgré toutes ces caractéristiques que certains considèrent comme une avancée du droit international pénal, il n’en demeure pas moins que le TSL essuie son lot de critiques non seulement en ce qui a trait à sa légitimité et à son fonctionnement, mais également en rapport avec la place qu’il occupe dans la sphère de la justice internationale pénale. Ses détracteurs sont nombreux, tant dans la société libanaise que dans la communauté internationale. Parmi ceux-ci, on peut notamment citer Philippe Larochelle, avocat de la défense fort d’une grande expérience devant les tribunaux internationaux. Me Larochelle se montre très dubitatif quant à l’existence de ce tribunal et porte un regard très critique sur la justice internationale pénale de manière générale. Il a d’ailleurs su exposer ses opinons très tranchées sur la question lors d’une conférence présentée à l’Université Laval le 28 mai 2015 dans le cadre de la première édition de l’École d’Été sur la Justice internationale. Il a plus amplement précisé sa pensée lors d’une entrevue accordée à la suite de cette conférence. Continue reading

What South Africa Leaving the International Criminal Court Would Mean

By Milton Nkosi*

International Criminal CourtThe call by South Africa’s governing party to withdraw from the International Criminal Court (ICC) has implications for the rest of the continent. But it is not going to happen any time soon.

When South Africa joined the ICC in 1998 the country had just emerged from the scourge of apartheid.

South Africans were fresh victims of gross human rights violations and had hoped that the rest of the world would join the ICC.

But some of the most powerful countries did not follow.

And now the governing African National Congress (ANC) is calling for the country to leave the ICC – which would make it the first to do so.

‘Hitler of Africa’?

The chairman of the ANC’s commission on international relations, Obed Bapela, said that the ICC had “lost direction”.

Mr Bashir was able to fly out of South Africa in June despite a warrant for his arrest for war crimes

This move away from the ICC comes not long after the South African government was criticised for allowing Sudan’s President Omar al-Bashir to leave the country despite an ICC arrest warrant for alleged war crimes in Darfur. Mr Bashir denies the allegations, saying they are politically motivated.

Mr Bapela insisted South Africans were “very keen” to hear the stories of the victims of Darfur, as they had heard the victims of political crimes committed during the apartheid era at the Truth and Reconciliation Commission.

“Human rights matter to us but we want a fair system,” he said. Continue reading

The Special Jurisdiction for Peace in Colombia and the Cautious Optimism of the Prosecutor of the International Criminal Court


by Héctor Olasolo*

International Criminal CourtOn 23 September 2015, the Government of Colombia and the Revolutionary Armed Forces of Colombia – Popular Army (‘FARC-EP’), issued a joint communique, in which they made public the core aspects of their agreement on justice matters (‘the New Agreement’), including, in particular, the establishment of a Special Jurisdiction for Peace. The next day, the Prosecutor of the International Criminal Court (‘ICC’), Ms. Fatou Bensouda, made a preliminary statement thereon, in which she highlighted that “any genuine and practical initiative to end the decades-long armed conflict in Colombia, while paying homage to justice as a critical pillar of sustainable peace, is welcome by her Office”. She also stressed her hope for the New Agreement to comply with this goal, and her cautious optimism as “the agreement excludes the granting of amnesties for war crimes and crimes against humanity, and is designed, among other things, to end impunity for the most serious crimes”.

But, what are the reasons for the ICC Prosecutor’s cautious optimism, if ever since the adoption of Legislative Act 01 of 2012 on the so-called ‘Legal Framework for Peace’ she has expressed, in all her annual reports on Colombia, her concern by the ample powers granted by it to the Colombian Congress?

In my view, this can only be due to the significant difference between the role in an eventual transitional process in Colombia that the New Agreement seems to give to the investigation, prosecution and punishment of genocide, crimes against humanity and war crimes (‘ICC crimes’), and the limited scope of application of criminal justice provided for in the Legal Framework for Peace. In other words, if the Legal Framework for Peace reduced the role of criminal justice to a mere appendage of the transitional process, the New Agreement appears to restore it to its International Law status as an autonomous and necessary pillar of such process. Continue reading