Between Pragmatism and Normativity: Legal Standards for Issuing Subpoenas and Witnesses Summonses in International Criminal Procedure

in International Criminal Law Review (2017), 17(1), 135-160

The article analyses the criteria that the international criminal tribunals developed to obtain additional evidence through witness testimony. It systemizes the legal standards of the ad hoc tribunals on ... [more ▼]

The article analyses the criteria that the international criminal tribunals developed to obtain additional evidence through witness testimony. It systemizes the legal standards of the ad hoc tribunals on subpoenas’ requests and reviews the International Criminal Court (ICC) stance on witness summonses. After defining the types of subpoenas and the different tests applied by the courts, the article examines the courts’ discretionary power in the light of the fair trial standard and the appellate standard for such discretionary decisions. The analysis shows that when the tribunal had to adjudicate a request to compel a witness to appear, it adapted the legal standard by considering the type and the object of the subpoena, the witness and the court’s role and mandate. The ICC iterated that this power to compel the appearance of witnesses constitutes a customary rule of international criminal procedural law. The article maps the content of this rule. [less ▲]

'Keep people safe and protected from harm in times of crises';Luxembourg position paper for the World Humanitarian Summit and beyond

Scientific Conference (2016, February 29)

Responding to this objective, the Luxembourg national society has participated in a series of monthly meetings with the Government of Luxembourg since November 2014. Specifically, the Luxembourg Ministry ... [more ▼]

Responding to this objective, the Luxembourg national society has participated in a series of monthly meetings with the Government of Luxembourg since November 2014. Specifically, the Luxembourg Ministry of Foreign Affairs, Department of Humanitarian Action invited the principal humanitarian partners in Luxembourg - as they called them – that is Luxembourg Red Cross, Medecins sans Frontieres (Doctors without Borders), Care, La Fondation Caritas Luxembourg, and Handicap International Luxembourg to the Luxembourg consultation process in view of the World Humanitarian Summit, with the aim to produce a position paper with a consensus, which the Government could promote during the Summit. [less ▲]

Concluding Remarks

in Pichou, Maria; Happold, Matthew (Eds.) Protection of Persons Fleeing Armed Conflict and Other Situations of Violence Assessing Claims for International Protection under Article 1A (2) of the 1951 Convention and Article 15 of the EU Qualification Directive (2016)

Protection of Persons Fleeing Armed Conflict and Other Situations of Violence Assessing Claims for International Protection under Article 1A (2) of the 1951 Convention and Article 15 of the EU Qualification Directive

Book published by Larcier (2016)

This book publishes the contributions to the University of Luxembourg/UNHCR symposium on the legal protection of people fleeing armed conflict and other situations of violence. Assembling a distinguished ... [more ▼]

This book publishes the contributions to the University of Luxembourg/UNHCR symposium on the legal protection of people fleeing armed conflict and other situations of violence. Assembling a distinguished group of judges, scholars and practitioners, the event examined the assessment of claims for international protection in such situations under, respectively, Article 1A(2) of the 1951 Refugee Convention, Article 3 of the European Convention on Human Rights and Article 15(c) of the EU Qualification Directive. Although originally it was hoped that the symposium would also mark the publication of the UNHCR’s Guidelines for the Protection of People Fleeing Violence and Conflict Across Borders, this did not prove possible. Indeed, the Guidelines still remain unpublished, a testimony to the sensitivity of the topic. Nonetheless, the papers contained in this volume demonstrate how much ground was covered during the symposium and how many important issues were discussed. [less ▲]

Commentary on Decision on Motions by Moinina Fofana and Sam Hinga Norman for the Issuance of a Subpoena ad Testificandum to H.E. Alhaji Dr. Ahmad Tejan Kabbah, President of the Republic of Sierra Leone, Prosecutor v. Norman, Fofana and Kondewa

in Klip, André; Freeland, Steven; Low, Anzinga (Eds.) Annotated Leading Cases of International Criminal Tribunals - volume 45 Special Court for Sierra Leone 26 MAY 2006 – 31 DECEMBER 2007 (2015)

The decisions and opinions discussed in this commentary deal with the issuance of a subpoena ad testificandum by the Special Court of Sierra Leone (SCSL) to the President of the country, and with issues ... [more ▼]

The decisions and opinions discussed in this commentary deal with the issuance of a subpoena ad testificandum by the Special Court of Sierra Leone (SCSL) to the President of the country, and with issues closely intertwined with this matter. Two major legal issues are identified: the legal criteria the Court applies in order to issue a subpoena ad testificandum; and whether a subpoena ad testificandum may be issued to an incumbent Head of a State. Although the latter is a matter of “extreme legal, domestic and international importance” and these motions offered a historic opportunity for a legal stand to be taken on this matter by the SCSL, both the Trial and the Appeals Chambers avoided addressing it, and proceeded to examine only whether the defendants’ submissions satisfied the legal requirements set out in Rule 54 of the SCSL Rules of Procedure and Evidence (RPE). There is however, a considerable and thought-provoking analysis of the matter in the concurring and dissenting opinions. Accordingly, this commentary begins by giving a brief overview of the context of the selected decisions, and then proceeds with examining the principal legal issues dealt by the SCSL Trial and Appeals Chambers, while providing a critical analysis of the answers given by the Court. It concludes by underlining that the issues in these motions turn to a large extent, on the particular context in which the SCSL was created. [less ▲]

Book Review: International Law and Child Soldiers

in Criminal Law and Criminal Justice Books website (2015)

Remedy for unjust wars in Europe: The Cyprus v. Turkey just satisfaction case

in Journal of Parliamentary and Political Law (2015), 9(2), 387-396

The European Court of Human Rights (ECtHR) is the longest standing international human rights court. Since its establishment in 1959, it has delivered about 18,000 judgments. The court’s case law on ... [more ▼]

The European Court of Human Rights (ECtHR) is the longest standing international human rights court. Since its establishment in 1959, it has delivered about 18,000 judgments. The court’s case law on applications lodged by individuals against member states to the European Convention on Human Rights (ECHR) abounds and much has been written on its role in promoting the protection of human rights in Europe and establishing a European public order. Interstate cases however, are by comparison scarce. Only five judgments have been delivered by the Court so far. Two of them were delivered on the Cyprus v. Turkey (IV) case, the first in 2001 and the second in 2014 (Just Satisfaction case). The latter is considered to represent the most crucial contribution to European peace in the history of the court, as highlighted by the two concurring judges. This review analyses whether this superlative is apt. The Cyprus v. Turkey (IV) just satisfaction case is of particular importance for a number of reasons. It is the first time that the ECtHR awarded just satisfaction in an inter-state case. Second, it is the first time that the ECtHR accepted satisfaction claims in an inter-state dispute that was fuelled by the military invasion and occupation of one member state by another. Third, the ECtHR advanced an analytical distinction of interstate cases in order to assess just satisfaction claims. Finally, by drawing from international law sources, the ECtHR developed the admissibility criteria for assessing the passage of time for such just satisfaction claims. [less ▲]

Elements of direct democracy in the recent practice of European countries: some thoughts à propos the Roundtable ‘Constitutional Change and People

Report (2015)

How can the general public participate in constitution-making and constitution-amending procedures? Are popular initiatives in constitutional change more desirable or feasible in European countries today ... [more ▼]

How can the general public participate in constitution-making and constitution-amending procedures? Are popular initiatives in constitutional change more desirable or feasible in European countries today? The recent Roundtable ‘Constitutional Change and People’, organised by the University of Luxembourg and the International Association of Constitutional Law (Constitution-Making and Constitutional Change Research Group) on December 12th 2014, dealt with these issues. The discussion was prompted by ongoing developments in some European countries, which reveal a tendency to introduce elements of direct democracy, such as referendums, online petitions and citizens’ initiatives into the field of constitutional change. The introductory address by the President of the European Court of Justice Prof. Dr. Vasileios Skouris, underlined the difficulties that many European constitutions face in integrating the ‘European phenomenon’. The interaction between the European legal order and national constitutions is still a source of legal uncertainty. There is a movement towards strengthening the possibility of people contributing to constitutional changes around the world in general, and in Europe specifically, after the adoption of the Lisbon Treaty. The timeliness of analysing recent examples of people’s participation in constitutional changes in France, Greece, Iceland, Ireland, Luxembourg, Romania and Switzerland, therefore, becomes evident. [less ▲]

International criminal law between pragmatism and normativity: The principle of equality of arms and the discretionary power of international criminal tribunals to obtain additional evidence through subpoenas

Presentation (2014, November 11)

A typical problem that international criminal tribunals face regarding criminal evidence is how to deliver justice and ascertain the truth with limited resources, time and mandate while respecting the ... [more ▼]

A typical problem that international criminal tribunals face regarding criminal evidence is how to deliver justice and ascertain the truth with limited resources, time and mandate while respecting the requirements for a fair trial, the fundamental rights of the accused and the underlying objective of peace. In this respect, international criminal courts and tribunals are called to respect the normative rules established for a fair trial but also to consider the pragmatic objective of the court’s mandate and of the peace process. The case law developed by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court of Sierra Leone (SCSL) on granting a defendant’s request to obtain a witness testimony puts forth the debate on pragmatism and normativity in international criminal justice. The article addresses this issue, by reviewing the relevant ICTY, ICTR and SCSL jurisprudence on subpoenas’ requests. After establishing the definition of the different types of subpoenas and the legal implications that the distinctions bear, the article grapples with the different tests applied by the courts in an attempt to clarify the elaborate legal standards developed by these courts for issuing subpoenas ad testificandum. It then proceeds to examine how by adding more requirements and burden on the side of the defendant to prove the necessity of a subpoena, the international courts’ interpretation of the relevant rule may compromise the procedural fairness and the principle of equality of arms. The analysis shows that when the court had to adjudicate a subpoena request, it adapted the relevant legal standard by taking into consideration the object of the subpoena, the prospective witness and the court’s role and mandate. The recent ICC jurisprudence on the nature of witness summonses enhances the timeliness of this question. By closely examining the conditions laid down by the international criminal tribunals on issuing subpoenas, the article, sheds new light on the rarely acknowledged issue of the defendants’ right to obtain the attendance and examination of witnesses under the same conditions as witnesses against him in international criminal law. [less ▲]

'If at first they don't succeed'… The principle of universality in international law and the theory of 'failed' states: challenges and analysis

Presentation (2014, May 10)

The idea of universality in international law has faced many challenges, both in theory and in practice. Among them, the theoretical construction of ‘rogue’ and ‘failed’ states has been identified as a ... [more ▼]

The idea of universality in international law has faced many challenges, both in theory and in practice. Among them, the theoretical construction of ‘rogue’ and ‘failed’ states has been identified as a challenge to the classic notion of universality, which refers to international law’s universal applicability. However, the issue of how the discourse on failed, collapsed, outlaw, rogue or pariah states questions specifically the principle of universality has not yet been clarified. The analysis through the lens of international law is particularly relevant at a time when the current turn of events in some states poses both theoretical and practical challenges in terms of humanitarian assistance, flows of refugees and economic stability around the world. This article addresses this issue, first by outlining the main elements of the concept of failed and rogue states and of semantically relevant terms. It, then, proceeds to inquire how the discourse about these states challenges the principle of universality along with the traditional state-centric view of international law. In so doing, it attempts to illustrate specific aspects of the principle of universality in international law which are challenged by such theoretical constructions which are based on the premise that fundamental principles enshrined in the UN Charter should only be respected when a state is first a secure (liberal, democratic) place to live in. In this respect, the question of cosmopolitanism in international law comes into play and the article concludes by examining whether the theory of failed or rogue states is a representative expression of global cosmopolitan law. [less ▲]