Page 1

ADC-ICTY Newsletter Issue 29 5 April 2012 •••

ICTY Cases

Head of Office: Dominic Kennedy Coordinator: Jana Hofmann Contributors: Matt Cicchetti, Diego Naranjo, Kirsten Schlewitz & Kushtrim Zymberi Translator: Pierre François

Cases in Pre-trial Hadžić (IT-04-75) Mladić (IT-09-92) Cases at Trial

•News from the ICTY•

Haradinaj et al. (IT-04-84) The views expressed herein are those of the author(s) alone and do not necessarily reflect the views of the International Tribunal for the Former Yugoslavia or the Association of Defence Counsel Practicing before the ICTY.

Karadžić (IT-95-5/18-I) Prlić et al. (IT-04-74)

In this section

Šešelj (IT-03-67) Stanišić & Simatović (IT-03-69)

• Mladić: Preparation for trial

• Karadžić: Prosecution case continues

Stanišić and Župljanin (IT-08-91)

• Stanišić & Simatović: Former am-

Tolimir (IT-05-88/2)

bassador testifies

Cases on Appeal

• Stanišić & Župljanin: Trial nears

Đorñević (IT-05-87/1)


• Tolimir: Disagreement over expert report

• President allows privileged calls to mobile telephones

Gotovina et al. (IT-06-90) Lukić & Lukić (IT-98-32/1)

Prosecutor v. Mladić (IT-09-92)

Perišić (IT-04-81) Popović et al. (IT-05-88) Šainović et al. (IT-05-87)

Inside this Issue News from the ICTY


News from other Interna-


tional Courts & Tribunals Defence Rostrum


Blog Updates


Publications and Articles


Upcoming Events




The Defence for Ratko Mladić has appealed a recent Trial Chamber decision that took judicial notice of facts previously adjudicated by other Trial Chambers of the Tribunal. The Prosecution routinely applies for judicial notice of adjudicated facts for expediting proceedings. The idea behind the judicial notice is to accept facts which have been established in other cases into current trials, provided that they deal with the same crimes or geographical area. The Defence argues that some of the accepted facts go to the “acts, conduct and mental state” of Mladić, which therefore should not be accepted as adjudicated facts. Further, it argues that the Chamber improperly reformulated some of the facts in such a manner that they differ substantially from the facts adjudicated at previous trials. Their acceptance would thus significantly affect the fairness of the proceedings. The Chamber will rule whether to accept the appeal of the impugned deci-

sions related to the judicial notice of accepted facts. Meanwhile, a status conference was held on 29 March 2012 Ratko Mladić to prepare for trial. The Chamber noted that it has granted a Defence motion requesting an extension of time and word limit for the Pre-Trial Brief, which is now due on 3 April 2012 with a length limit of 20,000 words. The parties will reconvene once again on 24 April 2012 for a Pre-Trial conference. The Chamber set the date for the trial to begin on 14 May 2012. It will start with the opening arguments of the Prosecution, which will have until 20 April 2012 to inform the Chamber of the time it will require for opening arguments. This deadline also applies to

ADC-ICTY Newsletter Issue 29

Rule 68 Disclosure of Exculpatory and Other Relevant Material (Adopted 11 Feb 1994, amended 30 Jan 1995, amended 12 July 2001, amended 12 Dec 2003, amended 28 July 2004)

Subject to the provisions of Rule 70, (i) the Prosecutor shall, as soon as practicable, disclose to the Defence any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence;

Page 2

the Defence, which will have to inform the Chamber whether it will be giving any opening statements and whether Mladić will wish to address the Chamber at this point.

pointed out that if the Prosecution does not comply with its disclosure obligations fully, it will be seeking a postponement for the commencement of the trial.

The Chamber advised the Prosecution that it would get 30 to 60 minutes for examination-in -chief for 92ter witnesses, which are witnesses whose evidence is based on prior witness statements or transcripts from previous cases. The Defence will have 2.5 hours to cross-examine these witnesses. These time limits will also apply to the Defence if it chooses to call 92ter witnesses during the presentation of their defence.

Mladić was also given an opportunity to be heard before the end of the status conference. He stated that he was interested in finding the truth and not in defending himself, but desired to earn his right to be free in Belgrade. He complained of numbness in the right side of his body, as he has various health issues recently. He also presented a part of his alibi defence for the Srebrenica massacre, stating that he was at the Military Medical Academy in Belgrade when the events took place. Mladić stated that he wanted to be on better terms with the Tribunal throughout the proceedings.

Disclosure issues were also dealt with in the status conference. While most of the documents have apparently already been disclosed, the Prosecution will have until 3 May 2012 to provide its Rule 68(i) disclosure. The Defence

Prosecutor v. Karadžić (IT-95-5/18-I) The Prosecution case in the trial against Radovan Karadžić continued with the testimonies of witnesses Parsons, Ibrahimefendić, Frease, Schmitz, Janc and protected witnesses KDZ 391 and KDZ 610 who testified in closed session. During the cross-examination of Dr. Thomas Parsons, Director of Forensic Sciences in the International Commission on Missing Persons, Karadžić said that he has new information on the number of Srebrenica victims. He referred to Mirsad Tokača, Director of the Research and Documentation Centre from Sarajevo and Amor Mašović, Head of the Bosnian Institute for Missing Persons, who assert that 500 persons listed among the Srebrenica victims are still alive while 70 persons were killed at a different time in other locations. Afterwards, Teufika Ibrahimefendić, a psychotherapist who has previously testified in several other trials, was questioned about the state of metal health of Srebrenica survivors. During cross-examination Karadžić, resorting to his psychiatric expertise, put it to the witness that her testimony in the trial of Radislav Krstić was “theoretical” and “coloured by emotions”. On 23 March, Stephanie Frease, a former investigator for the Prosecution, testified on the authenticity and reliability of intercepted conversations between Army of Republika Srpska (VRS) soldiers. While the witness regards them as authentic and reliable, this was questioned by Karadžić. He asserted that the VRS soldiers were showing off when claiming that more than 1,000 men were assembled on the football field and tried to prove this with another intercepted conversation

mentioning 400 men. He also put it to the witness that the tapes were altered in the US, which the witness denied. On 25 March, the trial continued with the testimony of Christine Schmitz who worked in Srebrenica as a nurse for Doctors Without Borders in July 1995. While the witness spoke of hungry, thirsty and fearful people, Karadžić repeated his argument that there was no famine in Srebrenica and that people left the enclave voluntarily. He argued that a convoy with food, fuel and other necessities was allowed to enter the enclave on the eve of the operation which demonstrated that the Serb army never intended to enter the town. On 27 March, Slovenian police inspector Dušan Janc, who worked as an investigator for the Prosecution between 2006 and 2009, testified and presented an updated report on the investigation of the Srebrenica mass graves. Karadžić argued that the witness “took for granted” the outcomes of the international experts’ work, one of which, William Haglund, was subject to criticism at one point. Moreover, he argued that the mass graves of Srebrenica were filled up with bodies of soldiers of the Bosnia and Herzegovina (BiH) Army who were killed fighting the VRS. The witness denied the possibility of a cleanup operation, although Karadžić showed him an order by Colonel Aćamović, who, on 20 July 1995, Dušan Janc commanded his troops to clean up the terrain.

ADC-ICTY Newsletter Issue 29

Page 3

President Allows Privileged Calls to Mobile Phones Submitted by Peter Robinson

On 23 March 2012, President Theodor Meron, ruling on a motion filed by Radovan Karadžić, held that the Registrar was unreasonable in refusing to allow detainees to have privileged conversations with their lawyers on mobile phones. In his Decision on Request for Review of Decision on Privileged Telephone Calls, the President ordered the Registrar to establish a revised policy regarding privileged telephone communications which would permit a detainee to place privileged calls to the mobile phone of his lawyer.

The President rejected the Registrar’s policy, noting that he had failed to take into account technological advances in mobile communications. This is the seventh time in the Karadžić case that a decision of the Registrar has been found to be unreasonable. Decisions on communication with the news media, assignment of members to the defence team, and defence team funding have earlier been found to have been unreasonable by the President and Trial Chamber.

Prosecutor v. Stanišić and Župljanin (IT-08-91) The defence for Stojan Župljanin have filed a motion to re-open their case and tender into evidence an OTP interview which was conducted with Srđa Srdić, former member of the SDS and War President of the Red Cross in Prijedor. The interview transcript was released to the defence in late February, two months after the resting of its case. The defence assert that the interview is important for their case as Srdić talks about the Prijedor Crisis Staff and the manner in which it operated independent-

ly of any central authority. Srdić said that Milomir Stakić, Head of the Prijedor Crisis Staff, ‘appeared to have everything under control’ and that he was the ‘No. 1 man’. The Trial Chamber will decide on whether the case can be re-opened to tender Srdić's statement. Meanwhile, the dates for the closing arguments have been scheduled: they will be delivered from 21 to 24 May. The parties must file their final briefs by 7 May.

Župljanin and Stanišić trial commenced in September 2009. Witnesses: Prosecution: 127 Stanišić Defence: 7 Župljanin Defence: 10 Trial Chamber: 3 Total Witnesses: 147

Prosecutor v. Tolimir (IT-05-88/2) Recently, Trial Chamber II, by majority, issued a decision denying the admissibility of the first expert report of Defence witness Ratko Škrbić. The decision stated that Škrbić “patently lacks expertise in the very issue he attempted to address in his First Report, namely, the demographic movement of the population from Srebrenica” (para.22). Judge Prisca Matimba Nyambe attached a dissenting opinion stating that the “witness’ education and professional experience qualify him as an expert” (para.3) because of his military training and his knowledge of mathematics. Furthermore,

Judge Nyambe states that Škrbić just analysed the data that fell under his field of expertise, which contradicts the theory of the Majority that understands this as a deficient methodology. The fact that the First Report was based on the report of Richard Butler, a Prosecution witness, was also highlighted by Judge Nyambe, as well as the “full transparency of sources” (para.9 of the dissenting opinion) and that the lack of weight attached to the evidence “should clearly not be considered at the admissibility stage” (para.11).

Prosecutor v. Stanišić & Simatović (IT-03-69)

Sir Ivor Roberts

During the last hearing the Chamber heard the testimony of Sir Ivor Roberts, who spent most of his testimony talking about Slobodan Milošević, who was characterised as someone who started conflicts in order to appear, afterwards, as the one pacifying them. Sir Roberts, who worked as an ambassador for Great Britain in Belgrade between 1994 and 1997, backed up the defence case regarding the attempts of both Jovica Stanišič and Franko Simatović to establish a peaceful settlement during the war. After Sir Roberts’ testimony, the Court recessed for a month.

Sir Ivor Anthony Roberts, (born 24 September 1946) is President of Trinity College, Oxford and was formerly British Ambassador to Yugoslavia, Ireland and Italy. He was knighted in 2000.

ADC-ICTY Newsletter Issue 29

Page 4

•News from other international courts & tribunals• In this section Extraordinary Chambers in the Courts of Cambodia

• Case 002: Prosecution case continues

Extraordinary Chambers in the Courts of Cambodia (ECCC) Contributed by: Jinah Roe, Legal Intern, Defence Support Section * The views expressed herein are those of the author alone and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia.

Case 002 - Nuon Chea, Ieng Sary, Khieu Samphan and Ieng Thrith Defence Filings

ECCC Internal Rules (Rev. 8) Rule 26. Live Testimony by means of Audio or Video-link Technology 1. The testimony of a witness or expert during a judicial investigation or at trial shall be given in person, whenever possible. However, the Co-Investigating Judges and the Chambers may allow a witness to give testimony by means of audio or video technology, provided that such technology permits the witness to be interviewed by the Co-Investigating Judges or the Chambers, and the parties, at the time the witness so testifies. Such technologies shall not be used if they would be seriously prejudicial to, or inconsistent with defence rights.

On 2 March 2012, the Khieu Samphan Defence Team (KSDT) filed a ‘Response to the Co -Prosecutors’ Request for Notice to be Given to Accused Khieu Samphan on the Consequences of a Refusal to Respond to Questions at Trial’, submitting that the Co-Prosecutors’ (OCP) interpretation of ECCC jurisprudence – that any statement made by Khieu Samphan during the trial was an express waiver of his right to remain silent - is wrong and at odds with Internal Rule 21 which provides for the rights of the Accused to remain silent to prevent selfincrimination. The KSDT further submitted that the Co-Prosecutors’ interpretation of international jurisprudence was flawed and made a crucial distinction between statements an Accused may make in court and statements they make as witnesses in their own defence. In The Prosecutor v. KATANGA (ICC-01/401/08, Decision on the request for the Defence for Mathieu Ngudjolo to obtain assurances with respect to self-incrimination for the accused, 13 September 2011) the Trial Chamber of the International Criminal Court made specific reference to an Accused who voluntarily elected to testify under oath, which differs from the instant case where there is no provision for the Accused to make sworn statements at the ECCC. Additionally, the KSDT disagreed with the OCP’s interpretation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) decision in Prosecutor v. Gotovina et al. and cited Rule 84 bis Statement of the Accused which KSDT argued was separate from Rule 85(C ) of the Rules of Procedure and Evidence distinguishing the Accused’ right to speak out as a witness. The KSDT thus asked the Trial Chamber (TC) to

reject all the measures requested by the OCP. On 7 March 2012, the Nuon Chea Defence Team (NCDT) filed ‘Comments on Civil Party Lead CoLawyers’ Letter “Urgent Letter to the Trial Chamber Khieu Samphan Requesting Appropriate Measures to Secure the Temporary Segregation of Witness Kaing Guek Eav from his Fellow Detainees”, 5 March 2012’. The NCDT voiced concerns about the presence of Duch at the ECCC Detention Facility and supported the measure to separate Duch from the accused persons in Case 002 because their client, Nuon Chea, “fears threats against his life by the hypocrite witness”. On 9 March 2012, the Ieng Sary Defence Team (ISDT) responded to the Co-Prosecutors’ Notice to the Trial Chamber and Parties Regarding Testimony of TCE-38 and TCE-44 and submitted that the Trial Chamber should not allow witness TCE-38 to testify via video-link on the grounds that it would violate Ieng Sary’s fundamental fair trial right to confront TCE-38 in Court. Further the TC had not proffered any credible evidence that video-link testimony was warranted as an accommodation to the witness. Counsel Karnavas submitted that under the ECCC Agreement, the Establishment Law, the Cambodian Code of Criminal Procedure, and the International Covenant on Civil and Political Rights (ICCPR), the Accused has a right to confront witnesses and the right to be tried in his presence – before the Court and the witnesses testifying against him. Further, ECCC Internal Rule 26(1) also states that witness testimony must be given viva voce when-

ADC-ICTY Newsletter Issue 29

ever possible. Counsel cited international jurisprudence, Prosecutor v. Tadic (IT-94-I -T, Decision on the Defence Motion to Summon and Protect Defence Witnesses, and on the Giving of Michael Karnavas Evidence by VideoLink, 25 June 1996) and Stanisic & Simatovic which set out criteria for allowing video-link testimony of a witness. By reference to the latter case, Counsel emphasised the importance of establishing that a) the witness was shown to be sufficiently important to make it unfair to proceed without him/her, and b) the witness was unable or unwilling to come to the tribunal. Counsel Karnavas also cited the Nzabonimana Trial at the International Criminal Tribunal for Rwanda (ICTR), where the Trial Chamber denied the request for a video-link testimony regardless of the heightened security concerns and death threats for the witness testifying in Arusha, and the decision of the ICTR Appeals Chamber in Zigiranyirazo, which found that testimony taken via video-link violated Zigiranyirazo’s fundamental right to presence at trial. Given these reasons, Counsel requested that the Trial Chamber order the OCP to desist from conducting any further ex parte communications with TCE-38; reject the OCP’s request for TCE38 to testify via video-link, or authorise Defence team members to travel to TCE-38’s location to conduct his examination. On 15 March 2012, the ISDT filed an Addendum to Ieng Sary’s Response to the CoProsecutors’ Notice to the Trial Chamber and Parties Regarding Testimony of TCE-38 and TCE-44 which was an annex of representative sampling decisions from various international tribunals relating to video-link testimony for illustrative purposes of aiding the TC in considering the OCP’s request to have TCE-38 testify

Page 5

via video-link. The ISDT also submitted an Addendum containing two transcripts from Prosecutor v. Haradinaj et al., which were discussed by Counsel Karnavas during oral submissions of 15 March 2012. On 16 March 2012, the NCDT submitted a Request to Hear Defence Witnesses and to Take Other Procedural Measures in Order to Properly Assess Historical Context before the Trial Chamber. Specifically, the NCDT asked the Trial Chamber to refrain from closing the historical background segment of the first mini -trial in Case 002; to call Defence witnesses and experts whose testimony was relevant for the proper assessment of the historical background, pursuant to Rule 92; to take further procedural measures enabling the TC to properly assess the historical context in which the Democratic Kampuchea (DK) regime operated, including (but not limited to) the admission of documentary evidence relevant to this issue, as well as giving all parties an opportunity to comment on such documents; to hear the Accused Persons on the following topics – a) the extent and effects of USA bombings of Cambodia from 1965 until 1973, b) the starvation and hunger in large areas of Cambodia in the period leading up to April 1975, including an assessment of the number of refugees in Cambodia and their causes of displacement, c) availability of food in Cambodia prior to April 1975, d) state of Cambodia’s health care system in April 1975, and e) an assessment of the availability of foreign humanitarian aid in the 19701975 period. The NCDT also asked that the parties be allowed to make oral submission on these topics. Citing the failure of the OCIJ and the OCP to properly investigate the broader context of the DK regime, the NCDT submitted that “This de facto, court-sanctioned, impossibility for Nuon Chea to effectively present his defence amounts to a violation of his right to a fair trial” and urged the Trial Chamber to remedy these violations including hearing witnesses that the Defence has proposed.

ECCC Internal Rules (Rev. 8) Rule 92. Written Submissions (Amended on 6 March 2009)

The parties may, up until the closing statements, make written submissions as provided in the Practice Direction on filing of documents. The Greffier of the Chamber shall sign such written submissions and indicate the date of receipt, and place them on the case file.

ADC-ICTY Newsletter Issue 29

In the Courtroom: The defence teams for Nuon Chea, Khieu Samphan, and Ieng Sary participated in 11 days of substantive hearings before the Trial Chamber in March 2012. On 12 March 2012, the Trial Chamber recognised the new international defence lawyer for Accused Khieu Samphan, Anta Guisse. The Trial Chamber also heard the KSDT, ISDT, and NCDT parties’ oral objections to documents sought to be put before the Chamber by the Parties. On 15 March 2012, Counsel Karnavas for the ISDT gave an oral submission regarding admissibility of some of the Prosecutions’ witnesses and documents and argued at length about the procedural rules of key witness testimonies and the importance of having the witness come into the Court to testify in person rather than using a video link testimony. Counsel emphasised that the jurisprudence of the ECCC was a mixed system combining both civil law and the Anglo-Saxon adversarial system which meant that having the witness come in for cross-examination was crucial because it was the hallmark of an adversarial system. He supported his argument by reference to international jurisprudence such as the ICTR case, The Prosecutor v. Callixte Nzabonimana (ICTR-98-44D-PT, Indictment 23 July2009). In regards to document admissibility – the ISDT, KSDT, and NCDT objected to those pieces of evidence already heard in Case 001, with Counsel Karnavas noting in particular, “The book may be out, but the mind – it’s still in the mind. And the purpose of admissibility is to make sure the mind of the Trial Chamber is not coloured by what may turn out to be inadmissible”. On 19 March 2012 the accused Nuon Chea gave an oral submission before the Court reminding the Court, “We are here today claiming we are looking for justice and truth for Cambodian people, however, the fact before us today is that the truth that we have been looking for does not serve the complete picture of the history of Cambodia to ensure that Cambodian people would understand what had actually happened during those times”. Nuon Chea also argued, by analogy, that the Trial Chamber was Nuon Chea only looking at the head of the crocodile

Page 6

(the Accused), rather than the tail and the whole body (the historical context). “In other words, the root causes and its consequence which are part and parcel of the events that happened before 1975 and after 1979, the Chambers have not contemplated those things”.

Kaing Guek Eav alias Duch

Also on 19 March 2012, testimony by Kaing Guek Eav, alias Duch began as the OCP began questioning him on his knowledge of the role of the Accused in the administrative and communicative structure of the Communist Party of Democratic Kampuchea (CPK). Duch testified in detail about his personal experience working at office M13. On 26 March 2012 the OCP continued questioning Duch on CPK membership duties, duties of senior CPK members, communication lines between different members and organizations during the DK period, and how individuals within the CPK communicated between different organisations. In the afternoon, Counsel Pestman from the NCDT made a lengthy oral submission discussing the “Note of the international Reserve Co-Investigating Judge to the parties on the egregious dysfunctions within the ECCC impeding the proper conduct of investigations in Cases 003 and 004,” dated 21 March 2012. Counsel Pestman stated that this was proof of “unashamed and blatant judicial interference” at the ECCC. Counsel emphasised that it was clear that there was strong evidence of Cambodian court officials going to extreme lengths to avoid an outcome that would displease the government, “No organ in this court is immune from this disease”. On 27 March 2012 the NCDT and ISDT raised objections throughout the day on the grounds that the OCP was leading witness Duch. Counsel Karnavas from the ISDT emphasized that the OCP go “step by step” in asking witness what he knew at the actual time the events took place because the witness in question was an especially “clever individual who’s spent years training himself in the art of deception, torture, and confabulation, it’s easy for that witness to understand and pick up the vibes he’s being given by the Prosecutor”. The TC accordingly instructed the OCP to ask questions that were specific and appeared not to be leading.

ADC-ICTY Newsletter Issue 29

Page 7

•Defence Rostrum• In this section

• Africa and the ICC

• Shell sued by Nigerian villagers over oil spill

Africa and the ICC By Matt Cichetti

In March, the International Criminal Court (ICC) found Thomas Lubanga guilty of war crimes in eastern Democratic Republic of Congo. Lubanga’s trial is the first one to be completed by the ICC since its inception in 2002. Before his conviction, Lubanga was one of 25 defendants facing trial in 14 different cases before the ICC. Lubanga and the remaining 24 defendants are all Africans. “While the decision was rightly hailed around the world as a landmark for international criminal justice and the fight against impunity for mass crimes, it also reignited the debate about the ICC and Africa,” said Abdul Tejan-Cole, Former Prosecutor at the Special Court of Sierra Leone. The reignited debate led BBC News to pose the question, “is Africa on trial?” The BBC asked two experts on the issue to answer the question, one commentator was Abdul Tejan-Cole and the other was Zaya Yeebo, writer and commentator on Pan Africa Affair. The former argued that it is “farcical” to compare “the trial of 25 accused with the trial of an entire continent”, while the latter expressed utter contempt for the ICC’s role in African affairs. Critics, like Yeebo, have labeled the ICC as the “White man's Court” and view it as having a “neo-colonialist” agenda. Jean Ping, the African Union (AU) Chairman, has accused ICC Prosecutor Luis Moreno-Ocampo of “rendering justice with double standards”. Additionally, at an AU summit last year in Malabo, Equatorial Guinea, Ping said, while the AU was not against the ICC, “[it is] against the way justice is being rendered because... it looks as if this ICC is only interested in trying the Africans”. In the BBC article, Yeebo offered an even harsher attack against the ICC, claiming that the “Court is in fact a Zava Yeebo pathetic continuation of an imperial tradition, a way for western powers to pretend they are protecting human rights in Africa, that they are teaching Africans right from wrong”. However, many Africans and pro-ICC human rights activists disagree. “Africa played a tremendous role in the establish-

ment of the ICC, and only 11 African countries have not signed the Rome Statute while 33 have ratified its provisions, making Africa the most heavily represented region in its membership”, said Tejan-Cole. Fatou Bensouda, the ICC’s incoming prosecutor and an African, is sadAbdul Tejan-Cole dened by complaints that the ICC is targeting Africa and going by a double standard. “Most of these conflicts are happening on the continent. The ICC’s concentration on Africa is always as a result of the engagement of the African people with the ICC… all of the victims in our cases in Africa are African victims. They are not from another continent. And they’re the ones who are suffering these crimes”, Bensouda laments. African victims, who have suffered at the hands of the perpetrators of mass crimes, know there is little hope they will receive justice without international courts like the ICC. “Many African countries will be unable to prosecute even if they want to because their judiciaries lack the capacity to prosecute the crimes in the Rome Statute and because their parliaments have failed to domesticate the relevant laws”, explains Tejan-Cole. “And while it is true that the ICC can be lambasted for inconsistent case selection, there is not a single case before the Court that one could dismiss as being frivolous or vexatious”, he concludes. However, until the ICC opens informal investigations somewhere outside of Africa, critics will continue to claim the ICC is putting Africa on trial. Currently, the ICC is analysing at least five situations outside of Africa. Afghanistan, Colombia, Georgia, Honduras and South Korea are awaiting determination from the ICC Prosecutor regarding whether or not formal investigations will be opened.

Read the BBC article here: world-africa-17446655

ADC-ICTY Newsletter Issue 29

Page 8

Royal Dutch Shell Again Faces Legal Action, This Time By A Group Of Nigerian Villages By Kirsten Schlewitz

A group of 35 Nigerian villages are suing Royal Dutch Shell in a British court, seeking unspecified damages and a legal order for the company to clean up the polluted waterways and marshlands surrounding them. The plaintiffs allege that, in 2008, Shell allowed 560,000 barrels (88.9 million liters) of oil to spill before stopping the flow from its malfunctioning pipelines. The villagers, who rely on the waterways for farming and drinking water, say their livelihood was ruined by the oil spill.

in its torture and killing of human rights protesters in the 1990s. Instead, next term the Court will hear an expanded review of Kiobel, including arguments over whether 28 U.S.C. § 1350, the Alien Tort Statute, permits jurisdiction over violations that occur entirely in the territory of another state – and, if answered in the affirmative, whether corporations, like individuals, can be held responsible for those violations.

In August 2011, Shell admitted liability for two spills. However, the company argues over the amount spilled and the extent of the damage, stating that only 4,000 barrels of oil were spilled from the two leaks. Shell blames the rest of the spillage on thieves who tap directly into the pipelines in order to steal crude oil. The company insists its cleanup process in 2009 was successful and any further damage is due to the sabotage by thieves.

Such issues of jurisdiction will not be considered in the current lawsuit, which (absent a pretrial settlement) will be decided Jonathan French under Nigerian law. Shell spokesman Jonathan French states that there is no need for a UK court to take action on the matter, as there is already a formula in place under Nigerian law that outlines the level of compensation due. This is the first time an oil company has faced claims in the UK from a community claiming environmental damage caused by oil extraction operations, according to lawyers representing the villagers.

The lawsuit comes amidst other legal hassles for Royal Dutch Shell. Last month, the United States Supreme Court declined to issue a ruling in Kiobel, a suit in which the plaintiffs allege that the company aided and abetted the Nigerian government

ADC-ICTY Newsletter Issue 29

Page 9

•Blog Updates• •

Gentian Zyberi , The ICJ Begins Its Deliberations in the Obligation to Prosecute or Extradite Case, 29 March 2012, available at:

Ben Brown, Zimbabwe Torture Case Postponed, 26 March 2012, available at: http://

Hannah Dunphy, An Idea Whose Time Has Come: The United States & the ICC, 16 March 2012, available at:

Alexandra Harrington, Stateless at Sea, 30 March 2012, available at:

Kevin Jon Heller, Disarray at the ECCC, 1 April 2012, available at:

Matthew Hill, From County Court Strike Out to Strasbourg Success, 30 March 2012, available at:

David Prater, ICJ upholds Foreign State Immunity for gross violations of human rights, 28 March 2012, available at:

•Publications and Articles• Books David Armstrong, Theo Farrell, Hélène Lambert (2012) International Law and International Relations (2nd ed.), Cambridge University Press Frans Viljoen (2012) International Human Rights Law in Africa (2nd ed.), Oxford University Press Chi Carmody, Frank J. Garcia, John Linarelli (Eds.) (2012) Global Justicce and International Economic Law: Opportunities and Prospects, Cambridge University Press Reid Griffith Fontaine (2012) The Mind of the Criminal: The Role of Developmental Social Cognition in Criminal Defense Law, Cambridge University Press Maria Popova (2012) Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine, Cambridge University Press

Articles Deval Desai, Deborah Isser and Michael Woolcock (2012) “Rethinking Justice Reform in Fragile and Conflict-Affected States: Lessons for Enhancing the Capacity of Development Agencies” Hague Journal on the Rule of Law 4(1), p. 54-75 Francesco Messineo (2012) “’Gentlemen at Home, Hoodlums Elsewhere’? The Extra-Territorial Exercise of Power by British Forces in Iraq and the European Convention on Human Rights”, The Cambridge Law Journal 71(1), p. 15-18 Kate Parlett (2012) “The International Court of Justice’s Decision on Preliminary Objections in Georgia v. Russia: Towards Formalism?” The Cambridge Law Journal 71(1), p. 5658 Erwin van Veen and Maria Derks (2012) “The Deaf, the Blind and the Politician: The Troubles of Justice and Security Interventions in Fragile States” Hague Journal on the Rule of Law 4(1), p. 76-97

ADC-ICTY Newsletter Issue 29

Page 10

•Upcoming Events• H EAD O FFICE

Philosophies of Judgment Date: 17 April 2012 Venue: The Hague Institute for Global Justice, Sophialaan 10, 2514 JR, The Hague More info: index.php?page=Events&pid=123&id=33&archive=0


The Judicial Function and Legal Pluralism Date: 25 April 2012 Venue: The Hague Institute for Global Justice, Sophialaan 10, 2514 JR, The Hague

ADC-ICTY Churchillplein 1 2517 JW The Hague Room 085.087

More info: index.php?page=Events&pid=123&id=34&archive=0

Phone: +31-70-512-5418 Fax: +31-70-512-5718 E-mail:

PhD Day International Humanitarian and Criminal Law Platform

Any contributions for the newsletter should be sent to Dominic Kennedy at

Date: 25 May 2012


More info:


Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 2022, The Hague


WWW. ADCICTY. ORG •Opportunities• Internship (paid), The Hague Netherlands


Special Court for Sierra Leone, Appeals Chamber

Conference 2012

Closing date: 17 April

At the 2011 ADC-ICTY General Assembly it was decided that the association should organise a legacy conference in late 2012 or early 2013. The Executive Committee would like to involve as many members as possible in achieving this goal. The Executive Committee would therefore like to ask members to send their ideas on possible topics which could be covered, who the conference should be aimed at, where it should be held and whether you would be interested in participating. Please send any suggestions to the ADC-ICTY Head of Office:

Senior Linguist (Spanish) (P4), The Hague, Netherlands Organisation for the Prohibition of Chemical Weapons (OPCW) Closing date: 26 April

Legal Officer (Family Law), The Hague, Netherlands Hague Conference on Private International Law (HCCH) Closing date: 9 April 2012



Read more
Read more
Similar to
Popular now
Just for you