East-West Center’s “A Well-Reasoned Opinion?” Professor Michael A. Newton Offers Expert Analysis
By: Michael Newton, Professor of the Practice of Law, Vanderbilt University Law School
Michael Newton, professor of law at Vanderbilt University Law School, offers his critical analysis of the East-West Center’s A Well-Reasoned Opinion? Criticial Analysis of the Frist Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01).
A Critical Analysis of the East-West Center Critical ‘Analysis’
1. It has taken me some time to read through the recently published report by the East-West Center entitled A Well-Reasoned Opinion? Critical Analysis of the First Case Against the Alleged Senior Leaders of the Khmer Rouge (Case 002/01) (hereinafter referred to as the Opinion). After some consideration and evaluation of the merits of the legal arguments, a careful reader with a modicum of experience in the field will observe some definite trends and lacunae that are worthy of comment. The phrase “Opinion” is most appropriate in this context because the East-West Center Report leaves a great deal to be desired if one evaluates it using the yardstick of carefully reasoned, objectively presented critique. In fact, there are large sections that appear to represent little more than thinly veiled Defence advocacy; that general observation is reinforced by occasional oversimplifications and in some areas key legal precedents that are simply overlooked.
2. Before delving into some of the technical aspects of the Opinion, I want to highlight two specific observations that tend to minimize the overall credibility of the work in my view. Firstly, the Opinion relies solely on the NUON Chea Defence Appeal Brief as authority for a number of matters without independently verifying them. One of the key criticisms of the Opinion is that the Trial Chamber erred by improperly processing and analyzing evidence. The drafters contend that 2000 of the 5800 documents in evidence in Case 002/01 originated from the non-governmental Documentation Center of Cambodia, yet cites to the NUON Chea Defence Appeal Brief and does not provide any corroboration or independent analysis. This is puzzling in the sense that the strength of the Opinion purports to rely on the use of independent court monitors to evaluate legal arguments. The text itself should be discounted in places because it merely reproduces Defence assertions, and thus portrays the Defence postures as fact.[1]
3. Numerous bland assertions in the text also warrant caution in accepting its substance. As another example of the pronounced, some readers might infer presupposed, Defence bias in the Opinion the authors note that the Chamber’s efforts to streamline proceedings “led to an overall reduction in the use of time from Case 001 to Case 002/01.”[2] Despite the fact that the Opinion is purportedly based on actual trial Monitors, the drafters conclude that despite the reduced trial time “it is difficult to determine whether the consolidation actually resulted in greater efficiency, and/or whether the Trial Chamber simply reduced the time allocations for Civil Party representation compared to the other parties – something that could have also been achieved under the previous system.”[3] In fact, the drafters could readily have determined the time allocations of each party and confirmed the actual fact that the Chamber granted equal time allocations to all parties. The equivalent allocation of trial days has been a recurring theme in other tribunals, and the equivalent time allocation elected by the Trial Chamber represents best practices.
4. As a second general observation before I delve into legal details, the Opinion seems remarkably naïve regarding the reality of practices and precedents across the jurisprudential landscape. The first place that simply stopped me in my tracks as I began to analyze the Opinion was the assertion in the Executive Summary that the process was flawed because the Case 002/001 Judgement fails to deliver the “most fundamental output” due to its derivation from a “contentious and confusing” trial process. In wider practice, the jurisprudence is littered with attempts by Defence teams and obstreperous defendants to hijack trials and undermine the efficiency and orderliness of trial proceedings. Saddam Hussein’s outbursts became fodder for television commentators across the globe, even as his conduct was far more restrained when the cameras were not broadcasting.[4] Many boycotts and extremely disruptive behaviors have been generated by defendants who have fired their counsel and chosen self-representation.[5] Other defendants such as Vojislav Šeselj have made outrageous claims in open court against the integrity of the Chamber accompanied by repeated [but groundless] allegations of misconduct against both opposing counsel and the judges themselves.[6] The typology of developed judicial responses to boycotts has included (1) forcing the defendant or stand-by counsel to attend;[7] (2) postponing the proceedings;[8] (3) conducting a trial in absentia;[9] (4) suspending the right to self-representation;[10] (5) imposing counsel on the defendant;[11] (6) appointment of counsel amicus curiae; and (7) appointment of standby counsel. The inference in the Opinion that Trial Chambers can only issue authoritative findings in the absence of “contentious and confusing” proceedings has no empirical support in the real world.
5. By extension, the Opinion simply glosses over the significance of misconduct by Defence Counsel during trial. The Report appears to justify Defence counsel’s misconduct in the Case 002/01 trial proceedings, describing it as an inevitable consequence of confused trial procedure:
Frustration over the lack of clear parameters for the trial and confusion over trial procedure boiled over repeatedly in Court. Over the course of the trial there were formal complaints lodged for professional misconduct against various Defense Counsel for flouting decorum in the Trial Chamber. There were also motions filed to remove sitting Judges for bias. There were many weeks where trial monitors reported on a breakdown of courtroom decorum in the midst or tense and exasperated exchanges between Parties and the Chamber. Such exchanges sometimes led to further controversy, such as when the Trial Chamber began switching off the microphone of various Defense Counsel when they tried to continue making arguments the Trial Chamber no longer wished to hear.[12]
The Opinion fails to provide any descriptions of Defence Counsel’s conduct in court, or any indicia of actual judicial bias that might have warranted the motions for recusal that were in fact filed. As in other tribunals, there were “motions filed to remove sitting Judges for bias” but nowhere do the drafters reference the judicial findings that these were dismissed as unfounded precisely as they have been in other tribunals. The Opinion thus leaves the lingering, but unsupported, impression that the allegations of bias were well-founded to the extent that the due process of rights of defendants were implicated, but that a hostile Chamber simply glossed over otherwise merited motions.[13]
The Opinion loses a great deal of credibility for its repeated failures to offer comparative assessments when measured against the best practices of other tribunals. In fact, other judges have been forced to take great pains to maintain court decorum. As only one of many possible examples from across all of the extant ad hoc or hybrid tribunals, Judge Ra’ouf strove to ensure court order from his first moments on the bench in Baghdad by assuring Saddam Hussein and the other defendants that all of their rights would be preserved. “The defendants will be safe in our hands; for as Imam Ali said, ‘If you have the ability to oppress people, then you should remember the power of god over you.’” With respect to counsel, Judge Ra’ouf was firm. “The defense lawyers,” he said, “would have the right to ask questions, but not to make speeches, and questions must be via a lead Iraqi lawyer.” When Saleh al Armuti, the head of the Jordanian Bar Association, stood up in direct defiance to the just enunciated judicial standard, Judge Ra’ouf responded “Sit down. Not now. Do not interrupt the court,” and banged his gavel repeatedly until al Armuti was seated. After counsel and defendants began to shout and curse the bench [in a scene reminiscent of the repeated courtroom chaos during Šeselj], Judge Ra’ouf challenged counsel saying “How can you do this? You are a legal man, in a court of law, not a circus. You are inciting the defendants. I can hold you in contempt for this.” After counsel and some of the defendants stormed out of the court Judge Ra’ouf invoked the Iraqi Rule of Procedure empowering judges to “do what is necessary in order to control the session.” The Chamber had every right to take measures to preserve courtroom decorum, subject to the outer boundaries established by the basic due process rights that are inherent in every legitimate trial proceeding. The Opinion does not provide a useful critique of actual conduct or permissible judicial responses against the backdrop of established law or practice.
6. This opinion concludes with three specific legal critiques. Paragraphs 7-10 will address the flawed standard applied by the Opinion to evaluate the Chamber’s consideration of trial evidence as well as the structure of the Judgement describing that evidence; Paragraphs 11-13 evaluate the Opinion’s mischaracterization of the Chamber’s use of the defendants’ position of authority as a factor in sentencing; and Paragraph 14-23 will consider the failure of the Opinion to properly describe the doctrine of individual criminal responsibility in modern practice. There are also sound reasons to doubt the validity of the assertions in the Opinion regarding the doctrine of Joint Criminal Enterprise and its application in Case 002/01. There has been a great deal of academic ink spilled regarding the use of JCE in the Extraordinary Chambers as being derived from its usage in customary international law at the relevant time of the charged crimes. I shall not repeat that analysis.
FLAWS ASSESSING THE CHAMBER’S EVIDENTIARY ANALYSIS
7. The report asserts that the Judgement did not appropriately weigh “various factors in order to justify reliance on a particular piece of evidence”[14] because it referred to such factors infrequently in evaluating the evidence. This complaint is based upon a misunderstanding of the specificity of reasoning required by international criminal law in respect of ordinary evidentiary evaluations. It is well established in international criminal practice that where:
The Chamber has considered it appropriate and necessary to explain why it has accepted or rejected the evidence of any witness upon a particular point, it has provided such an explanation. The same is true in relation to documents. However, in many instances, the Chamber has not found it necessary to provide an explanation of the basis upon which it has decided to accept or reject evidence. Generally speaking, that has been because the members of the Chamber formed the view that the witness or document was reliable upon the point in question.”[15]
There is no requirement in international criminal law, as the Opinion seems to assume, for a Chamber to “justify” its reliance on “a particular piece of evidence.”
8. The Opinion also claims that the Judgement is poorly structured because it adopted an “ill-documented historical narrative” in lieu of a “typical organizational approach” of the ICTY and [16] The Opinion sets out representative ‘headers’ from what appear to be randomly selected Tables of Contents from other tribunals. There is no requirement for the ECCC to adopt the judgement-structure of the other international criminal courts and tribunals, especially given its unique structure and more comprehensive incorporation of civil law elements. In any event, the Judgement in Case 002/01 compares favorably on closer examination, and there is no support for the assertion that the examples provided constitute an internationally accepted best practice that somehow reflects a due process expectation of the defendant.
9. The Opinion seems to advocate the view that the Chamber should have set out factual and legal findings under explicit headings. The observation that the Case 002/01 Judgement does not contain any sub-headings entitled “Factual Findings” is accurate. However, factual findings are included under each historical background, structure and crime base subheading in a manner comparable to the style used in other tribunals. The ICTY Trial Chambers did precisely that in Stanišić and Simatović and included factual findings under subheadings for each crime base rather than including a separate section entitled “Factual Findings.” Similarly, the ICTY Trial Chamber in Tolimir set out its factual findings under subheadings on military and police structures, events leading up to the attacks on Srebrenica and Žepa, the events in Srebrenica in July 1995 and their aftermath and the events in Žepa in July 1995 and their aftermath, without creating a separate subheading entitled “Factual Findings.”
10. The practice of including factual findings within general overview sections that also contain some legal applications is far from “baffling” in the words of the Opinion. The ICTY Manual on Developed Practices clearly states in its chapter on trial judgement drafting that it is advisable that chapeau requirements for different crimes be addressed together prior to analyzing the specifically charged acts, drawing conclusions from the General Overview of the conflict.[17] In other words the structure of the Judgement in Case 002/01accords with best international
RELIANCE ON POSITIONS OF AUTHORITY
11. The Opinion criticizes the way the Chamber addressed the allegations that NUON Chea was responsible for crimes via superior responsibility in two separate places:
Strangely, despite pages of analysis concluding that Nuon Chea was responsible as a superior for the crimes alleged in the Closing Order, the Judgment does not actually enter a conviction against him on this basis, but relies instead on JCE as the primary theory of responsibility. However, the Judgment does state that it “will consider the Accused’s superior position in sentencing.”[18]
In one final, strange twist, despite the lengthy analysis concluding that Nuon Chea was responsible as a superior for the crimes alleged in the Closing Order, the Chamber does not actually enter a conviction against him on this basis, relying instead on JCE as the primary theory of responsibility. However, the Judgment states that it will take its Superior Responsibility conclusion into account in sentencing.[19]
12. The Opinion fails to offer any recitation of law to warrant the inference that the Chamber’s approach is flawed in that respect. In fact, it merely refers to paragraphs of the Judgement rather than any other authorities indicating the Chamber’s approach to be [20] It is, accordingly, unclear what exactly the actual basis for criticism was. On the other hand, it is very well settled in international criminal jurisprudence that:
“Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence. This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.”[21]
13. In this vein, and consistent with established practice, the section of the Judgement entitled “Applicable Law: Individual Criminal Responsibility” explains that:
“Where an accused is found to be both directly responsible and responsible as a superior in relation to the same conduct, the Chamber will convict on the basis of the former and consider an accused’s superior position as an aggravating factor in sentencing”,[22]
and references the Duch Trial Judgement and the Blaškić Appeal Judgement as authorities for this There are a number of other examples from extant jurisprudence[23] in which Chambers adopted precisely the same approach, and leadership authority of the defendant is an entirely appropriate factor for sentencing. The Opinion’s unsupported criticism of this principle is unfounded.
MISUNDERSTANDING THE DOCTRINE OF INDIVIDUAL CRIMINAL RESPONSIBILITY
14. It is well established in international criminal law that all JCE members are responsible for a crime committed by a non-JCE member if it can be shown that the crime can be imputed to at least one JCE member, and that this JCE-member – when using the non-JCE member – acted in accordance with the common objective.[24] The Opinion contains a series of errors regarding the overarching use of JCE, which is in itself a mode of liability and not a specific substantive crime in its own right. The following paragraphs detail a series of inaccurate assertions in seriatim in the Opinion with respect the uses of evidence and the legal inferences to be drawn from admitted evidence.
15. Firstly, the Opinion appears to confuse recitations of crime base evidence with the distinctive analysis warranting judicial findings of individual criminal responsibility by virtue of linkage to a JCE. For example, describing the chapter on Movement of Population (Phase Two)(i.e. the crime base), the Opinion notes that:
The “Legal Findings” section in Chapter 11 takes only 13 pages to find that all of the crimes against humanity charged did in fact occur, but again there is no attribution of responsibility. These are simply historical events that occurred.[25]
Closer reading of the Judgement shows that the Chamber did make findings in this chapter on who committed the crimes (for example, forced transfer was perpetrated by “Khmer Rouge soldiers and officials.”[26]) Moreover, the primary purpose of the reference chapter is to establish the crime base evidence as a necessary predicate to later consideration of attribution of responsibility to the Accused (which follows in the Individual Criminal Responsibility chapters). This practice again accords with best practices.
16. The Opinion makes the same error in relation to the crimes committed at Tuol Po The linkage evidence and findings that warrant attribution of conduct to the members of the JCE for Tuol Po Chrey are to be found in the Joint Criminal Enterprise chapter of the Judgement[27] and not the crime base chapter. The Opinion simply disregards the structure of the actual text and appears to misunderstand the fact that linkage evidence need not be repeated every time the name of one of the JCE participants is mentioned. Instead, it incorrectly asserts that
Although the charges against the Accused for Tuol Po Chrey in the Closing Order are referenced, the brief sections on findings do not focus on either Khieu Samphan or Nuon Chea. In other words, no linkage evidence is adduced in these sections to connect either of the Accused in any way to the murders at Tuol Po Chrey.
17. To cite one last example of the misapplication of JCE to crime base evidence, in relation to the Chamber’s finding that “the crimes committed during movement of population (phase one) can be imputed to various participants in the JCE including, at least, some Central and Standing Committee members such as POL Pot, Ta Mok, SON Sen, SAO Phim, VORN Vet and KOY Thuon”, the Opinion notes that:
Strikingly, neither of the Accused is mentioned in this list, yet in the legal conclusions specific to each of the Accused, these crimes are ultimately imputed to both Nuon Chea and Khieu Samphan.[28]
18. The Opinion makes a separate kind of error with respect to individual responsibility by arguing that the Chamber erred in finding that KHIEU Samphan’s intent under JCE I had been established, as its analysis hinged on a finding of awareness of a likelihood that crimes may be committed in the The Opinion states that:
“As the Krstić Appeals Judgment at the ICTY made clear, awareness of the criminal intent of members of a JCE and the provision of material support to the implementation of the JCE can only establish that the Accused aided and abetted the JCE, not that he had the intent to further a shared common purpose.”[29]
19. The reference to Krstić is inapposite. In Krstić, the Trial Chamber based its conclusion that Radislav Krstić shared the intent of a joint criminal enterprise to commit genocide on inferences drawn from the circumstantial evidence.[30] The ICTY Appeals Chamber overturned this finding on the basis that the evidence only established that Krstić was aware of the intent to commit genocide on the part of some members of the Main Staff and that this knowledge could not support an inference of genocidal intent. The Appeals Chamber Decision found that:
The Trial Chamber inferred the genocidal intent of the accused from his knowledge of the executions and his knowledge of the use of personnel and resources under his command to assist in those executions. However, knowledge on the part of Radislav Krstić, without more, is insufficient to support the further inference of genocidal intent on his part.[31]
In its dispositive paragraph then, the Appeals Chamber concluded that:
As has been demonstrated, all that the evidence can establish is that Krstić was aware of the intent to commit genocide on the part of some members of the VRS Main Staff, and with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav Krstić possessed the genocidal intent. Krstić, therefore, is not guilty of genocide as a principal perpetrator.[32]
20. The Opinion does not explain how the ICTY’s finding that there was not enough proof that Krstić possessed genocidal dolus specialis (i.e. specific) intent might be relevant to the Trial Chamber’s finding that KHIEU Samphan shared the intent of the other participants in the JCE to bring about the common purpose of the JCE charged in Case 002/01. Further, the report appears to be suggesting that KHIEU Samphan’s knowledge could “only establish that the Accused aided and abetted the JCE.”[33] This would be inaccurate because one cannot ‘aid and abet a JCE’ because a JCE is not a crime in itself; it is merely a well-established mode of liability.[34]
21. As one last indicator of its misapplication of the law of individual responsibility, the Opinion claims that a “major problem” throughout the Judgement is the Chamber’s use of “passive constructions or attributions to abstract entities” such as “the Party” or the “Party Centre” or the “Party leadership” “rather than naming the specific individuals ”[35] For example, the Opinion asserts that the Chamber’s use of the “passive construction” in finding that KHIEU Samphan was trusted to attend and participate in meetings “where critical decisions were made” in turn “obscures agency and who actually arrived at the decision or supported it.”[36]
22. However, the Chamber’s identification of the leadership as the decision making body in various places adopts the same level of precision as many other international criminal law cases in which Accused have been found responsible as members of a JCE. For example, in the ICTY’s Stanišić and Župljanin case, former Minister of the Interior of the Republika Srpska Mico Stanišić, was convicted of crimes committed in 20 municipalities in Bosnia and Herzegovina, including through his participation in the development of Bosnian Serb policy at the leadership level (to secure takeovers of towns and the forcible removal of the non-Serb population). This participation took the form of “attendance” at government sessions where such policy was developed.[37] The ICTY Trial Chamber describes the decisions taken at those meetings as emanating from the Bosnian Serb leadership and not a particular individual: “Stanišić participated in these joint meetings” of the NSC and RS Government “where decisions […] were taken”;[38] the “joint session of the NSC and the Government […] proposed that.”[39]
23. The Opinion repeatedly refers to NUON Chea’s power in making political decisions and KHIEU Samphan’s (merely) “political role” While the Opinion appears to be asserting that it is somehow unjust to hold leaders individually criminally responsible for “political” decisions, it does not explain how or why this could be wrong. By that logic, Charles Taylor would have been wrongly convicted due to his position of political power. As the example of Stanišić (and many other defendants in the extant ad hoc and internationalized hybrid tribunals) makes clear, participation in political decisions or exercise of political authority clearly can lead to individual criminal responsibility where those decisions result in the commission of crimes.
[1] Opinion, at 15.
[2] Opinion, at 28.
[3] Id.
[4] On the first day of his trial in an Iraqi domestic court organized to incorporate international precedents, Saddam Hussein famously demanded of the presiding judge:
Who are you? What does this court want?” Saddam Hussein al-Tikriti, deposed President of Iraq added: “I don’t answer this so-called court, with all due respect, and I reserve my constitutional rights as the president of the country of Iraq. I don’t acknowledge either the entity that authorizes you, nor the aggression, because everything based on a falsehood is a falsehood.”
Michael A. Newton & Michael P. Scharf, Enemy of the State: The Trial and Execution of Saddam Hussein 3 (2008).
Charles Taylor also claimed immunity from indictment and trial under the Head of State doctrine in his capacity as former President of Liberia, which engendered a host of disruptive tactics during trial. Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction (May 31, 2004).
[5] See, e.g., Prosecutor v. Milosevic, Case No. IT-02-54, Prosecutor v. Šeselj, Case No. IT-03-67, Prosecutor v. Krasjnik, Case No. IT-00-39, and Prosecutor v. Karadžić, Case No. It-95-5/18-I; in the ICTR, Prosecutor v. Barayagwiza, Case No. ICTR-97-19-T; and in the SCSL, Prosecutor v. Taylor, Case No. SCSL-03-01.
[6] http://www.icty.org/case/seselj/4#ind.
[7] The tribunals, for obvious reasons, have been reluctant to forcibly haul unwilling defendants into court. Such action could damage the integrity and legitimacy of the court and the trial itself.
[8] In most cases of boycotts, self-representing defendants claim unpreparedness and request additional time to ready their cases. After his boycott, Karadžić received an additional four months to assemble his case. On November 5, 2009, the court granted a stay until March and appointed Karadžić counsel. Prosecutor v. Karadzic, Case No. It-95-5/18-I, Decision on Appointment of Counsel and Order on Further Trial Proceedings, ¶¶ 25-26 (Nov. 5, 2009). The tribunals recognize that without skilled attorneys, defendant-lawyers may require additional time, but caution that this is a tradeoff when voluntarily choosing to dispense with legal representation. See Prosecutor v. Milosevic, Case No. IT-02-54, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation of the Defence Case, ¶ 19 (Jan. 20, 2004) (“There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring”). Additionally, the tribunals remain cognizant that the defendants’ claims (and boycotts) are often tactics used to manipulate and prolong proceedings, a lesson learned in the Milosevic trial in the ICTY. See Prosecutor v. Milosevic, Case No. IT-02-54, Order Terminating the Proceedings (Mar. 14, 2006).
[9] Both the ICTR and SCSL adopted rules in 2003 that allow the respective courts to hold proceedings in the absence of the defendant. See Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda, R. 82bis (amended Mar. 14, 2008) [hereinafter ICTR Rules] and Rules of Procedure and Evidence of the Special Court for Sierra Leone, No. 60 (amended May 27, 2008). While the ICTY has not adopted a similar rule, in the Simic case, the Trial Chamber continued with trial proceedings, even though Simic was not physically present in the courtroom. See Prosecutor v. Simic, Case No. IT-95-9/2-S, Sentencing Judgement, ¶ 8 (Oct. 17, 2002).
[10] See Prosecutor v. Milosevic, Case No. IT-02-54-AR73.7, ¶ 12 (Nov. 1, 2004) (“While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable”). See also Prosecutor v. Norman, Case No. SCSL-2004-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation under Article 17(4)(d) of the Statute of the Special Court, ¶ 9 (June 8, 2004) (“the right to self-representation by an accused person is a qualified and not an absolute right.”); Prosecutor v. Šeselj , Case No. IT-03-67-PT, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šeselj with his Defence, ¶ 21 (May 9, 2003) (“The complex legal, evidential and procedural issues that arise in a case of this magnitude may fall outside the competence even of a legally qualified accused, especially where that accused is in detention without access to all the facilities he may need. Moreover, the Tribunal has a legitimate interest in ensuring that the trial proceeds in a timely manner without interruptions, adjournments or disruptions.”); Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Decision on Appointment of Counsel and Order on Further Trial Proceedings, ¶ 27 (Nov. 5, 2009) (“[If] the Accused continue[s] to absent himself from the resumed trial proceedings in March, or should he engage in any other conduct that obstructs the proper and expeditious conduct of the trial, he will forfeit his right to self-representation.”).
[11] For example, the ICTY Statute provides that the accused can “have legal assistance assigned to him, in cases where the interests of justice so require.” ICTY Statute, art. 21(4)(d).
[12] Opinion, at 4.
[13] See also, In the Case Against Akhbar Beirut S.A.L. and Mr. Ibrahim Mohamed Ali Al Amin, Case No. STL-14-06/PT IOTH/R25.2, Decision on Motion for the Disqualification of Judge Fransen, Special Tribunal for Lebanon, Aug. 12, 2014.
[14] Opinion, at 19.
[15] Milutinović et al. Trial Judgement, para. 61.
[16] Opinion, at 4.
[17] ICTY Manual on Developed Practices, pp. 110-111.
[18] Opinion, at 41.
[19] Opinion, at 68.
[20] See footnotes 261 (referring to paragraph 688 of the Judgement), 261 (referring to paragraph 941 of the Judgement) and 369 (again referring to paragraph 941 of the Judgement).
[21] Kordić and Čerkez Appeal Judgement, para. 33, citing Delalić et al. Appeal Judgement, para. 745. See also,
Stakić Trial Judgement, para. 465 (““Article 7(3) serves primarily as an omnibus clause in cases where the primary basis of responsibility cannot be applied. In cases where the evidence leads a Trial Chamber to the conclusion that specific acts satisfy the requirements of Article 7(1) and that the accused acted as a superior, this Trial Chamber shares the view of the Krnojelac Trial Chamber that a conviction should be entered under Article 7(1) only and the accused’s position as a superior taken into account as an aggravating factor.”)
[22] Case 002/01 Trial Judgement, para. 688.
[23] In the section of the Appeal of Saddam Hussein’s conviction and sentence, the Iraqi judges wrote that crimes committed whilst the perpetrator enjoys head of state immunity should be subject to aggravated sentencing because:
A person who enjoys it usually exercises power which enables him to affect a large number of people, which intensifies the damages and losses resulting from commitment of crimes. The president of the state has international responsibility for the crimes he commits against the international community, since it is not logical and just to punish subordinates who execute illegal orders issued by the president and his aides, and to excuse the president who ordered and schemed for commitment of those crimes. Therefore, he is considered the leader of a gang and not the president of a state which respects the law, and therefore, the head chief is responsible for crimes committed by his subordinates, not only because he is aware of those crimes, but also for his failure to gain that awareness. Cassation Panel, Iraqi High Tribunal, al-Dujail Final Opinion Unofficial Translation, p. 9-10.
[24] Brđanin Appeal Judgement, paras 413, 430; Martić Appeal Judgement, para. 68.
[25] Opinion, at 40.
[26] Case 002/01 Trial Judgement, para. 633.
[27] See, e.g., para. 836: “The Chamber is also satisfied that the murders and extermination at Tuol Po Chrey can be imputed to participants in the JCE who, when using a direct perpetrator, acted to further the common purpose. The Northwest Zone Committee ordered the assembly and execution of former Khmer Republic officials. ROS Nhim, Secretary of the Northwest Zone, presided over the meeting at which this directive was issued. Ta Sot, Secretary of Sector 7 (which included Tuol Po Chrey), was also present. Thereafter, Ta Sot, as well as representatives from the Zone and Sector Committees, attended meetings at which Khmer Republic officials were assembled and from which they were taken to be executed at Tuol Po Chrey. They were driven by Zone drivers and a Zone commander chose Tuol Po Chrey as the location for the executions. The Chamber is therefore satisfied that the murders and extermination at Tuol Po Chrey can be imputed, at least to ROS Nhim, a participant in the JCE.”
[28] Opinion, at 60.
[29] Opinion, at 71.
[30] Specifically consisting of his knowledge regarding the situation facing the Bosnian Muslim civilians after the take-over of Srebrenica, his interaction with the main JCE participants, and the evidence it accepted as establishing that resources and soldiers under his command and control were used to facilitate the killings.
[31] Krstić Appeals Judgement, para. 119.
[32] Krstić Appeals Judgement, para. 134.
[33] Opinion, at 71.
[34] Kvočka et al. Appeals Judgement, para. 91.
[35] Opinion, at 38.
[36] Opinion, at 38-39, citing Case 002/01 Trial Judgement, para. 408.
[37] Stanišić and Župljanin Trial Judgement, paras 572-575.
[38] Stanišić and Župljanin Trial Judgement, para. 573.
[39] Stanišić and Župljanin Trial Judgement, para. 575.