ADC-ICTY NEWSLETTER ISSUE 29

The Defence for Ratko Mladić has ap-pealed a recent Trial Chamber decision that took judicial notice of facts previ-ously adjudicated by other Trial Cham-bers of the Tribunal. The Prosecution routinely applies for judicial notice of adjudicated facts for expediting pro-ceedings. 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, con-duct and mental state” of Mladić, which therefore should not be accepted as adjudicated facts. Further, it argues that the Chamber improperly reformu-lated some of the facts in such a man-ner that they differ substantially from the facts adjudicated at previous trials. Their acceptance would thus signifi-cantly affect the fairness of the proceed-ings. The Chamber will rule whether to accept the appeal of the impugned deci-

sions related to the judicial no-tice of accepted facts.

Meanwhile, a status confer-ence was held on 29 March 2012 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 recon-vene 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 ar-guments. This deadline also applies to

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

ADC-ICTY Newsletter

Issue 29

5 April 2012

•••

ICTY Cases

Cases in Pre-trial

Hadžić (IT-04-75)

Mladić (IT-09-92)

Cases at Trial

Haradinaj et al. (IT-04-84)

Karadžić (IT-95-5/18-I)

Prlić et al. (IT-04-74)

Šešelj (IT-03-67)

Stanišić & Simatović (IT-03-69)

Stanišić and Župljanin (IT-08-91)

Tolimir (IT-05-88/2)

Cases on Appeal

Đorñević (IT-05-87/1)

Gotovina et al. (IT-06-90)

Lukić & Lukić (IT-98-32/1)

Perišić (IT-04-81)

Popović et al. (IT-05-88)

Šainović et al. (IT-05-87)

•News from the ICTY•

The views expressed herein are those of the author(s) alone and do not necessarily reflect the views of the Inter-national Tribunal for the Former Yugoslavia or the Association of Defence Counsel Practicing before the ICTY.

In this section

• Mladić: Preparation for trial • Karadžić: Prosecution case con-

tinues

• Stanišić & Simatović: Former am-

bassador testifies

• Tolimir: Disagreement over ex-

pert report

• Stanišić & Župljanin: Trial nears

completion

• President allows privileged calls

to mobile telephones

Prosecutor v. Mladić (IT-09-92)

Inside this Issue

News from the ICTY 1

Defence Rostrum 7

Blog Updates 9

Publications and Articles 9

Upcoming Events 10

Opportunities 10

News from other Interna-tional Courts & Tribunals

4

Ratko Mladić

Page 2 ADC-ICTY Newsletter Issue 29

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.

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 state-ments 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 de-fence.

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

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

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 re-cently. 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.

The Prosecution case in the trial against Radovan Karadžić continued with the testimonies of witnesses Parsons, Ibra-himefendić, Frease, Schmitz, Janc and protected witnesses KDZ 391 and KDZ 610 who testified in closed session.

During the cross-examination of Dr. Thomas Parsons, Direc-tor 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 Insti-tute 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. Dur-ing 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 emo-tions”.

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 Chris-tine 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 ar-gument that there was no famine in Srebrenica and that peo-ple left the enclave voluntarily. He argued that a convoy with food, fuel and other necessities was allowed to enter the en-clave 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 inter-national 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 clean-up operation, although Karadžić showed him an order by Colonel Aćamović, who, on 20 July 1995, commanded his troops to clean up the terrain.

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;

Prosecutor v. Karadžić (IT-95-5/18-I)

Dušan Janc


During the last hearing the Chamber heard the testimony of Sir Ivor Roberts, who spent most of his testimony talking about Slobodan Mi-lošević, 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.

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

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 move-ment of the population from Srebrenica” (para.22). Judge Prisca Matimba Nyambe attached a dissenting opinion stat-ing 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 methodol-ogy. 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 con-sidered at the admissibility stage” (para.11).

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 con-ducted 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 Mi-lomir 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 argu-ments have been scheduled: they will be deliv-ered from 21 to 24 May. The parties must file their final briefs by 7 May.

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. Sir Ivor Roberts

Župljanin and Stanišić trial commenced in September 2009. Witnesses:

Prosecution: 127 Stanišić Defence: 7 Župljanin Defence: 10 Trial Chamber: 3 Total Witnesses: 147

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 Privi-

leged Telephone Calls, the President ordered the Registrar to establish a revised policy regarding privileged telephone com-munications which would permit a detainee to place privi-leged 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 mo-bile 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 mem-bers to the defence team, and defence team funding have ear-lier been found to have been unreasonable by the President and Trial Chamber.


Defence Filings

On 2 March 2012, the Khieu Samphan De-fence 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 In-ternal Rule 21 which provides for the rights of the Accused to remain silent to prevent self-incrimination. The KSDT further submitted that the Co-Prosecutors’ interpretation of in-ternational 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-01/4-01/08, Decision on the request for the Defence for Mathieu Ngudjolo to obtain assurances with respect to self-incrimination for the ac-cused, 13 September 2011) the Trial Chamber of the International Criminal Court made spe-cific reference to an Accused who voluntarily elected to testify under oath, which differs from the instant case where there is no provi-sion for the Accused to make sworn statements at the ECCC. Additionally, the KSDT disagreed with the OCP’s interpretation of the Interna-tional Criminal Tribunal for the Former Yugo-slavia (ICTY) decision in Prosecutor v.

Gotovina et al. and cited Rule 84 bis State-

ment of the Accused which KSDT argued was separate from Rule 85(C ) of the Rules of Pro-cedure and Evidence distinguishing the Ac-cused’ right to speak out as a witness. The KSDT thus asked the Trial Chamber (TC) to

reject all the measures re-quested by the OCP.

On 7 March 2012, the Nuon Chea Defence Team (NCDT) filed ‘Comments on Civil Party Lead Co-Lawyers’ Letter “Urgent Letter to the Trial Chamber 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 Facil-ity 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 Re-garding 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 un-der the ECCC Agreement, the Establishment Law, the Cambodian Code of Criminal Proce-dure, 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 wit-ness testimony must be given viva voce when-

•News from other international courts & tribunals•

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

In this section

Extraordinary Chambers in the Courts of Cambodia

• Case 002: Prosecution case continues

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.

Khieu Samphan


ever possible. Counsel cited international jurisprudence, Prose-

cutor v. Tadic (IT-94-I-T, Decision on the Defence Motion to Summon and Protect Defence Witnesses, and on the Giving of Evidence by Video-Link, 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 empha-sised 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 Interna-tional Criminal Tribunal for Rwanda (ICTR), where the Trial Chamber denied the request for a video-link testimony regardless of the height-ened security concerns and death threats for the witness testifying in Arusha, and the deci-sion 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 con-ducting any further ex parte communications with TCE-38; reject the OCP’s request for TCE-38 to testify via video-link, or authorise De-fence team members to travel to TCE-38’s loca-tion to conduct his examination.

On 15 March 2012, the ISDT filed an Adden-dum to Ieng Sary’s Response to the Co-Prosecutors’ 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 consid-ering the OCP’s request to have TCE-38 testify

via video-link. The ISDT also submitted an Ad-dendum containing two transcripts from Prose-

cutor 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 back-ground, 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 oper-ated, including (but not limited to) the admis-sion of documentary evidence relevant to this issue, as well as giving all parties an opportuni-ty 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 starva-tion 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 avail-ability of foreign humanitarian aid in the 1970-1975 period. The NCDT also asked that the par-ties 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, impossi-bility 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 reme-dy 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.

Michael Karnavas


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 Prose-cutions’ witnesses and documents and argued at length about the procedural rules of key witness testimonies and the im-portance 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 adver-sarial 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 refer-ence to international jurisprudence such as the ICTR case, The Prosecutor v. Callixte Nzabonimana (ICTR-98-44D-PT, Indictment 23 July2009). In regards to document admissibil-ity – 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 sub-mission before the Court reminding the Court, “We are here

today claiming we are looking for justice and truth for Cambodian people, how-ever, 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 only looking at the head of the crocodile

(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”.

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, com-munication lines between different members and organiza-tions 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 Re-serve 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 em-phasised 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.

Nuon Chea

Kaing Guek Eav alias Duch


•Defence Rostrum•

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 com-pleted by the ICC since its inception in 2002. Before his con-viction, 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 jus-tice 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 pathetic continuation of an imperial

tradition, a way for western powers to pretend they are pro-tecting 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 sad-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 con-centration 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 perpe-trators of mass crimes, know there is little hope they will re-ceive 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 prose-cute the crimes in the Rome Statute and because their parlia-ments have failed to domesticate the relevant laws”, explains Tejan-Cole. “And while it is true that the ICC can be lambast-ed 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 some-where 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 Prose-cutor regarding whether or not formal investigations will be opened.

Read the BBC article here: http://www.bbc.co.uk/news/world-africa-17446655

In this section

• Africa and the ICC • Shell sued by Nigerian villagers over oil spill

Africa and the ICC

By Matt Cichetti

Zava Yeebo

Abdul Tejan-Cole


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 farm-ing and drinking water, say their livelihood was ruined by the oil spill.

In August 2011, Shell admitted liability for two spills. Howev-er, the company argues over the amount spilled and the ex-tent 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.

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

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 viola-tions that occur entirely in the territory of another state – and, if answered in the affirma-tive, whether corporations, like individuals, can be held respon-sible for those violations.

Such issues of jurisdiction will not be considered in the current lawsuit, which (absent a pre-trial settlement) will be decided 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 environ-mental damage caused by oil extraction operations, according to lawyers representing the villagers.

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

By Kirsten Schlewitz

Jonathan French


•Blog Updates•

• Gentian Zyberi , The ICJ Begins Its Deliberations in the Obligation to Prosecute or Extradite Case, 29 March 2012, available at: http://internationallawobserver.eu/2012/03/29/icj-begins-deliberations-in-the-prosecute-or-extradite-case/

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

www.internationallawbureau.com/blog/?p=4452 • Hannah Dunphy, An Idea Whose Time Has Come: The United States & the ICC, 16 March 2012, available at:

http://ijcentral.org/blog/an_idea_whose_time_has_come_the_united_states_the_icc/

• Alexandra Harrington, Stateless at Sea, 30 March 2012, available at: http://www.intlawgrrls.com/2012/03/stateless-at-sea.html

• Kevin Jon Heller, Disarray at the ECCC, 1 April 2012, available at: http://opiniojuris.org/2012/04/01/disarray-at-the-

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

http://ukhumanrightsblog.com/2012/03/30/from-county-court-strike-out-to-strasbourg-success/ • David Prater, ICJ upholds Foreign State Immunity for gross violations of human rights, 28 March 2012, availa-

ble at: http://www.thehumanrightsblog.com/?p=1237

•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: Opportu-

nities 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 Democ-

racies: 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 Brit-ish 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 De-cision on Preliminary Objections in Georgia v. Russia: To-wards Formalism?” The Cambridge Law Journal 71(1), p. 56-58

Erwin van Veen and Maria Derks (2012) “The Deaf, the Blind and the Politician: The Troubles of Justice and Security Inter-ventions in Fragile States” Hague Journal on the Rule of Law 4(1), p. 76-97


•Opportunities•

•Upcoming Events•

Internship (paid), The Hague Netherlands

Special Court for Sierra Leone, Appeals Chamber

Closing date: 17 April

Senior Linguist (Spanish) (P4), The Hague, Nether-lands

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

Philosophies of Judgment

Date: 17 April 2012

Venue: The Hague Institute for Global Justice, Sophialaan 10, 2514 JR, The Hague

More info: http://thehagueinstituteforglobaljustice.org/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

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

PhD Day International Humanitarian and Criminal Law Platform

Date: 25 May 2012

Venue: T.M.C. Asser Instituut, R.J. Schimmelpennincklaan 20-22, The Hague

More info: http://www.asser.nl/events.aspx?id=297&site_id=1

HEAD OFFICE

W E ’ R E O N T H E W E B !

W W W . A D C I C T Y . O R G

ADC-ICTY Churchillplein 1 2517 JW The Hague Room 085.087

Phone: +31-70-512-5418 Fax: +31-70-512-5718 E-mail: [email protected]

ADC-ICTY

Any contributions for the newsletter

should be sent to Dominic Kennedy at

[email protected]

ADC-ICTY Legacy

Conference 2012

At the 2011 ADC-ICTY General Assembly it

was decided that the association should or-ganise 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 Com-

mittee 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 par-

ticipating. Please send any suggestions to

the ADC-ICTY Head of Office: [email protected]

ADC-ICTY NEWSLETTER ISSUE 29

Documents

accepted facts

icty cases cases

trial karadi

recent trial chamber

section mladi

trial haradinaj

judicial notice of facts

defence rostrum