International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2011 Issue
 

cases of note

International Criminal Tribunal for the former Yugoslavia

Prosecutor v. Gotovina et al. (Apr. 15, 2011)

Click here http://www.asil.org/ilib110427.cfm#r2

The International Criminal Tribunal for the former Yugoslavia has issued a landmark judgment convicting Ante Gotovina and Mladen Markac of crimes against humanity and violations of the laws or customs of war committed against the Serb population in the Krajina region by Croatian forces during the “Operation Storm” military campaign between July and September 1995. The tribunal sentenced Gotovina, a former Colonel General in the Croatian army and the former Commander of the Split military district, to twenty-four years imprisonment, and Markac, former Assistant Minister of Interior in charge of Special Police matters, to eighteen years imprisonment. The tribunal acquitted Ivan Cermak of all charges.

The three accused were indicted for planning, instigating, ordering, or aiding and abetting in the deportation and forcible transfer, plunder of public and private property, wanton destruction, murder, inhumane acts and cruel treatment, and persecution of the Serb population. They were accused of allegedly participating in a joint criminal enterprise to permanently remove the Serb population from the Krajina region. According to the prosecution, in addition to the three accused, several other high-ranking officials were implicated in these crimes, most notably the former Croatian President Franjo Tudjman, the former Minister of Defense Gojko Susak, and the successive Chiefs of the Main Staff and the Croatian Army, Janko Babetko and Zvonimir Cervenko.

Reviewing meeting records before Operation Storm was launched and individual witness statements, the Chamber concluded that a joint criminal enterprise existed among high-ranking political and military leaders. According to the Chamber, “certain members of the Croatian political and military leadership shared the common objective of the permanent removal of the Serb civilian population from the Krajina by force or threat of force.” Furthermore, Franjo Tudjman “was a key member of the joint criminal enterprise,” and he “ensured that his ideas in this respect were transformed into policy and action through his powerful position as President and Supreme Commander of the armed forces.”

With respect to Gotovina, the Chamber concluded that through his role as Colonel General of the Croatian army, Gotovina ordered the shelling of several towns. These attacks against civilians and civilian objects “formed an important element in the execution of the joint criminal enterprise,” and Gotovina “intended that his actions contribute to this enterprise.” Other charges against Gotovina, while not part of the common purpose, “were natural and foreseeable consequences of the execution of the joint criminal enterprise.”

Turning to Markac, the Chamber concluded that he had overall control of the special police forces, which participated in Operation Storm. He was also found to have participated in a meeting during which Operation Storm was planned and prepared. Markac also failed to supervise the special police forces, thus creating “a climate of impunity amongst his subordinates which encouraged the commission of crimes against Krajina Serb[s].”

The Chamber acquitted Cermak of all charges because the prosecution failed to demonstrate that he was a member of the joint criminal enterprise.


International Criminal Court

Order on the Timetable for Closing Submissions in Prosecutor v. Lubanga (Apr. 12, 2011)

Click here for document (approximately 8 pages).

On April 12, 2011, Trial Chamber I of the International Criminal Court (“ICC”) issued an order scheduling closing submissions in Prosecutor v. Lubanga.

Lubanga, the first person to face trial at the ICC, is a Congolese rebel militia leader charged with enlisting and conscripting children under the age of fifteen into the Patriotic Forces for the Liberation of Congo and using them to participate actively in the armed conflict of the Democratic Republic of Congo from September 2002 to August 2003.  Lubanga was arrested in 2005 and transferred to the ICC in 2006. His trial began on January 26, 2009.

The trial has encountered various delays due to “alleged prosecutorial misconduct.” Nevertheless, on March 2, 2011, the Court ruled that the evidence of such misconduct “was not sufficient to render a fair trial impossible.” According to a report, “[a] final decision on the abuse of process charge will be made after the close of the case when the judges consider all issues and deliver their final judgment.”

The Chamber will hear the oral closing statements on August 25-26, 2011.


Supreme Court of India, Criminal Appellate Jurisdiction

Servai v. State of Tamil Nadu (Apr. 19, 2011)

Click here for decision (approximately 8 pages).

Recently, the Supreme Court of India has issued a decision condemning honor killings and ordering the government to immediately suspend local officials who fail to prevent future incidents of honor killings or fail to prosecute those who have committed such crimes.

Honor killings, the Court stressed, are “wholly illegal” and must be “ruthlessly stamped out.” Citing an earlier case on this issue, the Court condemned those who participated in such acts, calling honor killing “nothing but barbaric and shameful murder.”

According to High Commissioner for Human Rights Navi Pillay, “[t]he reality for most victims, including victims of honour killings, is that State institutions fail them and that most perpetrators of domestic violence can rely on a culture of impunity for the acts they commit – acts which would often be considered as crimes, and be punished as such, if they were committed against strangers.”


Supreme Court of Canada

Seidel v. TELUS Communications Inc. (Mar. 18, 2011)

Click here for decision (approximately 111 pages).

The Supreme Court of Canada ruled in Seidel v. Telus Communications Inc. that a mandatory arbitration clause in a consumer contract did not bar the plaintiff’s class action suit against Telus. It has been argued that the narrow 5-4 decision “appears to mark a philosophical shift in Canadian arbitration law.”

The plaintiff, Michelle Seidel, entered into a boilerplate consumer contract with a cellular service provider, Telus. The agreement provided that all disputes be settled by arbitration; the parties also agreed to waive their right to participate in a class action. After discovering alleged unlawful and deceptive practices by Telus in violation of the British Columbia Business Practices and Consumer Protection Act (“BCPCA”), Seidel commenced a class action on behalf of a proposed class of customers. Telus, relying on the arbitration clause and Section 15 of the Commercial Arbitration Act, filed a motion to stay the proceedings. The lower court granted the stay, and Seidel appealed.

The Supreme Court lifted the stay regarding the claim under Section 172 of the BCPCA. Under Section 172, any individual can bring an action in the British Columbia Supreme Court to restrain a supplier from violating the BCPCA. The Supreme Court concluded that this provision created a right to bring an action as a “public interest plaintiff”: “Section 172 treats the plaintiff as a public interest plaintiff intended to shine a spotlight on allegations of shabby corporate conduct, and the legislative intent thereby manifested should be respected by the court.” The Court also stressed that “[t]he policy objectives of s. 172 would not be well served by low-profile, private and confidential arbitrations where consumers of a particular product may have little opportunity to connect with other consumers who may share their experience and complaints and seek vindication through a well-publicized court action.”

The Court allowed Seidel to pursue a class action against Telus in respect of her Section 172 claim under the BCPCA.


U.S. Court of Appeals for the District of Columbia Circuit

FG Hemisphere Associates, LLC v. Democratic Republic of Congo (Mar. 15, 2011)

Click here for decision (approximately 12 pages).

In FG Hemisphere Associates, LLC v. Democratic Republic of Congo, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that the Foreign Sovereign Immunities Act (“FSIA”) does not abrogate the court’s inherent power to impose contempt sanctions on a foreign sovereign.

FG Hemisphere’s predecessor-in-interest commenced suit against the Democratic Republic of Congo (“DRC”) seeking to confirm an arbitration award under the FSIA. When the DRC failed to appear before the court, a default judgment was entered in FG’s favor. The DRC then began to participate in the litigation but failed to respond to court-ordered discovery regarding the location of its assets. The district court found DRC in civil contempt for failing to respond for two years to the court’s discovery order. The DRC, supported by the United States as amicus, moved to vacate the contempt order, arguing that the FSIA does not authorize contempt sanctions against foreign sovereigns.

The Court of Appeals concluded that “there is not a smidgen of indication in the text of the FSIA that Congress intended to limit a federal court’s inherent contempt power. Nor is there any legislative history supporting such claim.”

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