Administration of Justice

Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

[1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.

[2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).

[3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.

[4] See ECHR Ref. No. 59/17.

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IRMCT Statute Article 19
Notion(s) Filing Case
Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

9. […] [N]either Article 1(4) of the Statute nor Rule 90 of the Rules incorporates the modes of liability that apply to the core crimes that are encompassed in the jurisdiction of the Mechanism pursuant to Article 1(1) of its Statute.[1] Specifically, Article 1(4) of the Statute provides for the Mechanism’s power to prosecute any person who knowingly and wilfully interferes or has interfered with the administration of justice by the Mechanism or the ad hoc Tribunals and to hold such person in contempt. Rule 90 of the Rules provides that the Mechanism may hold in contempt those who knowingly and wilfully interfere with the administration of justice and enumerates what conduct can amount to such interference.

10. The Appeals Chamber understands the Prosecution’s submission to be that the Single Judge should have interpreted the phrase “interferes with the administration of justice” to include interference committed through a joint criminal enterprise. The Appeals Chamber does not find this interpretation to be persuasive.

[…] [W]hile the doctrine of joint criminal enterprise is not referred to in the Statute or the Rules of the Mechanism and the ad hoc Tribunals, it has been specifically applied to the core crimes of genocide, crimes against humanity, and war crimes as a form of commission under Article 6(1) of the ICTR Statute and Article 7(1) of the ICTY Statute after a detailed review of customary international law. […] In addition […] jurisdiction over joint criminal enterprise liability was limited to the core crimes as, inter alia: (i) Articles 6(1) and 7(1) of the ICTR and the ICTY Statutes, respectively, only apply to the core crimes by their plain language; and (ii) Article 1(4) of the Statute, Rule 90 of the Rules, or Rule 77 of the ICTR and the ICTY Rules of Procedure and Evidence do not cross reference Articles 6(1) and 7(1), respectively, of the ICTR and the ICTY Statutes.[3]

11. […] [R]eferences to “attempt” and “incitement” in the language of Rule 90(B) of the Rules indicate that these specific offences expressly fall within the Mechanism’s jurisdiction and they cannot be construed as incorporating other offences or modes of liability in the scope of this provision.

12. […] [T]he terms “interferes” or “has interfered with the administration of justice” […] […] does not limit the jurisdiction of the Mechanism to actual commission of contempt, but instead includes “all conduct” that interferes with the Mechanism’s administration of justice. […] [T]he Mechanism’s subject matter jurisdiction encompassed incitement to commit contempt as this offence was specifically recognised in the Rules of Procedure and Evidence of both ad hoc Tribunals and Article 1(4)(a) of the Statute codifies jurisdiction over offences that interfere with the administration of justice.[6]

[…]

15. [T]he Single Judge rightly concluded that “the doctrine of joint criminal enterprise has never been applied in any contempt case before the Tribunals.”[7] In addition […] [t]he context in which liability under the doctrine of joint criminal enterprise was applied by the ad hoc Tribunals […] was specifically done in relation to the core crimes of genocide, crimes against humanity, and war crimes.

 

[1] Impugned Decision [Prosecutor v. Maximilien Turinabo et al., Case No. MICT-18-116-PT, Decision on Challenges to Jurisdiction, 12 March 2019 (confidential; public redacted version filed on the same day)], para. 27.

[2] Impugned Decision, para. 28.

[3] Impugned Decision, para. 29.

[4] [Footnotes omitted].

[5] Impugned Decision, para. 9.

[6] Impugned Decision, para. 9.

[7] Impugned Decision, para. 30.

[8] Impugned Decision, paras. 28, 29.

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IRMCT Statute Article 1(4) IRMCT Rule Rule 90; Rule 90(B)
Notion(s) Filing Case
Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]

[1] Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 55; Prosecutor v. Milan Milutinović et al., Case No. IT-99-37AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, paras. 37, 38; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anton Nobilo Against Finding of Contempt, 30 May 2001, para. 38.

[2] Impugned Decision [Prosecutor v. Maximilien Turinabo et al., Case No. MICT-18-116-PT, Decision on Challenges to Jurisdiction, 12 March 2019 (confidential; public redacted version filed on the same day)], para. 31.

[3] See Tadić Appeal Judgement, para. 225 (where the ICTY Appeals Chamber held that to rely upon domestic legislation and case law as a source of an international principle or rule under the doctrine of the general principles of law recognized by the nations of the world “it would be necessary to show that, in any case, the major legal systems of the world take the same approach to [a] notion”).

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IRMCT Statute Article 1(4) IRMCT Rule Rule 90; Rule 90(B)