by Dr Filippo Fontanelli
The International Court of Justice
With the decision no. 238 of 22 October 2014, the Italian Constitutional Court (the CC) produced the most spectacular display of dualism this side of Medellin. The CC declared the unconstitutionality of Italy’s compliance with the International Court of Justice (ICJ)’s judgment Germany v. Italy (Greece intervening). The CC’s ruling – briefly reported – invites speculation on two fronts: 1) What does it say about the application of international law in domestic courts? 2) Is the judgment reasonable by any relevant standards other than Italian constitutional law?
On the practical matters of the follow-up scenario before Italian ordinary courts, I take the liberty to refer to my discussion here (spoiler: Germany will not pay anyway).
In February 2012, the ICJ found that Italy breached its international obligations vis-à-vis Germany. Italian courts had exercised jurisdiction in tort proceedings against Germany, instituted by Italian plaintiffs for World War II war crimes of the Nazi occupation forces in Italy. These proceedings, resulting in Germany being ordered to compensate the victims, constituted internationally wrongful acts, since they disregarded the international custom whereby sovereign states are immune from civil suit in foreign courts, for acts jure imperii. The ICJ reached the same conclusion with respect to the ensuing enforcement proceedings and the exequatur granted by Italian judges to authorise execution of Greek judgments in similar disputes. Continue reading
by Léa Kulinowski
Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba
On 21 October 2014, Pre-Trial Chamber II of the International Criminal Court ordered the immediate release of four out of the five suspects in the case of Prosecutor v. Bemba, Kilolo, Mangenda, Babala and Arido. Mr. Bemba, who has been held in detention since July 2008 as a result of charges of war crimes and crimes against humanity, remains detained.
The suspects are charged with offences against the administration of justice under Article 70 of the Statute – the first of its kind before the ICC - including giving false testimony, knowingly presenting false/forged evidence and corruptly influencing witnesses. The penalty for these offences goes from a fine to a maximum of five years of imprisonment.
When granting the interim release, the Single Judge emphasised the protection against unreasonable detention as per Article 60 (4) of the Statute and noted the advanced stage of the proceedings as well as the various delays, holding that “the reasonableness of the duration of the detention has to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate”. Even though the duration of the suspects’ detention was not due to the Prosecutor’s inexcusable delay, the Single Judge found that the Pre-Trial Chamber was under an independent obligation to ensure that that a person is not unreasonably detained prior to trial under Article 60 (4) of the Statute. Continue reading
On Saturday 8 November 2014, the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY) is organising its annual training for members. Due to the large success of the Legacy Conference last year, this year’s training will also be open to external participants. The training will focus on the important topic of “Ethics” and will feature three panel discussions on ethical issues during pre-trial, trial and appeal. Participants may also obtain a certificate for continuing legal education (CLE) purposes.
The training will take place at the Bel Air Hotel in The Hague and will be an all-day event from 9:00 to 17:00. All participants are invited to the annual party at Hudson’s Bar and Kitchen afterwards.
The training is free of charge. There are limited places available and to register, please send an email to [email protected] with your full name and current place of employment/study.
A detailed programme of the training is available here.
The Norwegian Nobel Committee has awarded the Nobel Peace Prize for 2014 to Malala Yousafzay and Kailash Satyarthi.
Ill. N. Elmehed ©Nobel Media 2014
With this decision, the Committee chose to recognize their struggle against the suppression of children and young people and for the right of all children to education. Moreover, the Committee insisted on the importance to have a Hindu and a Muslim, an Indian and a Pakistani, to join in this common struggle.
Maintaining Ghandi’s tradition, Mr Satyarthi is an Indian child rights campaigner who has headed various forms of peaceful protests and demonstrations against the grave exploitation of children for financial gain and who contributed to the development of important international conventions on children’s rights.
Malala Yousafzai, laureate of the European Union Sakharov human rights prize in 2013, becomes the youngest-ever Nobel Prize winner. Malala has become a leading spokesperson defending the right of girls to education, and gave a powerful speech to the United Nations General Assembly last year.
In a recent article in the French legal review “La Gazette du Palais”, the French Lawyer François Roux discusses the challenges faced by the Defence in front of the international jurisdictions, and more specifically at the International Criminal Court (ICC). After explaining that the creation of the Office of Public Counsel for Defence (OPCD) at the ICC constitutes an important step in order to reinforce the equality of arms and to enable a fair trial, Roux criticizes the fact that the OPCD falls within the remit and the authority of the Registry for administrative purposes and does not constitute per se an organ of the ICC, which is the case of the Office of the Prosecutor for instance.
On the contrary, he says, the Registry wants to replace the OPCD by an Association of Defence Counsel which would be external to the Court. For Roux, current Head of the Defence Office at the Special Tribunal for Lebanon, it is essential that the Defence be permanently represented by an independent organ, equal to the Office of the Prosecutor, with the competence to conclude international agreements with States or to intervene at the Assembly of State Parties.
If you wish to read the article in French, click here.
ICTYs Vice-President Carmel Agius during the opening ceremony
Last month, the SENSE News agency has inaugurated the Srebrenica Documentation Center. The purpose of the Center is to show how the events in July 1995 in Srebrenica were investigated, reconstructed and prosecuted before the International Criminal Tribunal for the former Yugoslavia (ICTY).
Members of the many victims’ associations such as the Mothers of Srebrenica, political representatives from BH, the diplomatic corps and non-governmental organizations from Sarajevo, Zagreb, Belgrade, Podgorica and entire region were present at the opening ceremony. The opening attracted a lot of media interest.
Various representatives addressed the audience. Amongst them, the speech of the ICTYs vice-president Carmel Agius caused a great deal of interest. The Maltese judge sees the opening of the Center as an important aspect of the Tribunals legacy and the best way to present the Tribunals work and to put the archives from The Hague to use. Continue reading
by Vani Sathisan*
A resident of Thanlyin township sits inside her home after officials posted an eviction notice in February 2013.
The village elder from Mutu, a small village near Dawei, in southern Myanmar, held out the 30 complaint letters residents had sent to Tanintharyi Region Chief Minister U Myat Ko.
The letters sought to highlight alleged human rights violations related to the development of the Dawei Special Economic Zone (SEZ) and requested that adequate compensation be paid to those affected.
In Mutu and neighbouring villages, farmers and fishermen lamented the displacement of communities, loss of livelihoods and culture, and forced relocations due to the development of the Dawei SEZ and related infrastructure. Some told us they were being charged with trespassing on government land because they had refused to leave their homes after their land had been confiscated.
While the Dawei SEZ has been stalled for some time, Thai Prime Minister Prayut Chan-o-cha will visit Myanmar – his first official overseas trip – and is expected to hold talks aimed at reviving the project.
But the complaints emanating from Dawei are not isolated incidents. Amid the euphoria of the investment gold rush, Myanmar faces an epidemic of land disputes exacerbated by the development of SEZs. Continue reading
The Global Action Against Mass Atrocity Crimes (GAAMAC) offers an online database referencing a selection of open-source materials, primarily from the United Nations, governments, and international, regional & civil society organizations, related to the prevention of mass atrocity crimes.
GAAMAC is a state-led initiative dedicated to the prevention of mass atrocity crimes (war crimes, crimes against humanity, genocide and ethnic cleansing) at the national and regional level. GAAMAC provides support to states engaged in preventing mass atrocity crimes and assists states that are considering developing preventive strategies. GAAMAC also serves as a platform for exchange and dissemination of learning and good practices.
The first international GAAMAC meeting was held in San José in March 2014 and gathered state representatives around the need of a “Community of Commitment, Community of Practice”.
by Max du Plessis
Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal
Executive Director, Southern Africa Litigation Centre
African Heads of State at the Malabo Summit last June
On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) which was adopted in 2008 to merge the African Court on Human and Peoples Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court International Criminal Law jurisdiction, adding to the Human Rights jurisdiction it presently exercises and the General International Law jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the African Court of Justice and Human and Peoples Rights (the ACJHPR) (article 8, ACJHPR Amendment).
To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the 2012 Draft Amendment). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, A new regional International Criminal Court for Africa?, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading
The Association of Defence Counsel Practising Before the ICTY (ADC-ICTY) has published its newsletter no. 75.
This edition covers the recent cases in Prli? et al., the Defence cases in Mladi? and Hadi? and the final briefs in Karadi?. In Karadi?, after the Trial Chamber denied the
Defence motion to strike the Prosecutions final brief, the case is now reaching its final stages. The Defence closing arguments will be held from 29 September to 2 October and will be followed by the rebuttal and rejoinder arguments on 7 October, with an expected verdict in October 2015.
The newsletter looks back at various decisions or judgments rendered years ago by the ICC, the ICTR and the ICTY but keeps us up to date as well with the current proceedings in front of the Bosnian Constitutional Court, Croatian courts and the ICC in the Gbagbo case. The newsletter also provides an analysis on the Role and Future of Extremists Groups in the Region in relation to the Islamic State in Iraq and Syria.