In association with the International Commission of Jurists

International Criminal Law

27 Aug

The inestimable Mark Kersten devotes his new column at Justice Hub (ignore the scary portrait) to an unusual issue: whether international criminals should be able to pursue higher education once they are released from prison. The column focuses on Thomas Lubanga, who recently stated his desire to complete a PhD at Kisengani University after he is released. Here is Mark's takeaway,...

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23 Aug

A few months ago, I blogged about the OTP's attempt to invoke Regulation 55 in Laurent Gbagbo's trial. As I noted in that post, the OTP asked the Trial Chamber (TC) to consider convicting Laurent Gbagbo of various crimes against humanity on the basis of command and superior responsibility, even though the Pre-Trial Chamber (PTC) specifically refused to confirm those modes of liability because doing so “would require...

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17 Aug

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I'm not being hyperbolic. Written by someone named William C. Bradford, identified -- terrifyingly --  as an "Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C," it's entitled "Trahison des Professeurs: The Critical Law of Armed Conflict...

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13 Aug

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah's intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College,...

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12 Aug

My colleague Anne Orford has just received -- and deservedly so -- a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program: Professor Orford’s...

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29 Jul

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.] A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial. As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana). Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT. On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant. In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia,
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19 Jul

No matter how many times I read the decision, I keep coming back to this paragraph: 51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute...

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18 Jul

Here is the first sentence of Avi Bell's new editorial in the Times of Israel: The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close. Nope. You'd think a law professor might make an effort to understand the Comoros review decision before breathlessly intoning "The...

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17 Jul

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel's attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based...

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15 Jul

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.] Should “life mean life” for those convicted of genocide, crimes against humanity and war crimes and sentenced to life imprisonment? Until now there was no clear answer. However, in Prosecutor v. Stanislav Galić rendered by the Mechanism for International Criminal Tribunals (MICT) on 23 June 2015 (the Decision), MICT President Meron sets out clearly for the first time that a person convicted by the ICTR, ICTY or MICT (the Tribunals) and sentenced to a term of life imprisonment may be considered eligible for early release, in other words life does not necessarily mean life. In this landmark decision, prompted by an early release application by Stanislav Galić, currently serving a sentence of life imprisonment in Germany where its law allows for release of prisoners serving life terms after 15 years, the decision aligns the Tribunal’s sentencing practices with current international human rights jurisprudence that prisoners serving life sentences should be afforded both the possibility of review of their sentences and a prospect of release. Referring in particular to the recent Vinter and others v. United Kingdom European Court of Human Rights Judgement, as well as guidance from the United Nations Standard Minimum Rules for the Treatment of Prisoners and the International Covenant on Civil and Political Rights that emphasize the rehabilitation of prisoners, President Meron makes clear that a sentence of life imprisonment at the Tribunals does not mean locking-em-up-and-throwing-away-the-key but instead comes with at least the possibility of early release. The Decision also addressed when the eligibility for early release occurs.
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07 Jul

Ryan -- friend of Opinio Juris and friend of Kevin -- has been appointed Special Counsel to the General Counsel of the Department of Defense. Here is a snippet from NYU's press release: In his new role at the Department of Defense Goodman will focus primarily on national security law and law of armed conflict. “I am very humbled to have...

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