A very preliminary Draft: Please do not cite or circulate without the author’s permission
Monetary Compensation as a remedy for (some) Fair Trial
Violations under International Criminal Law
Yahli Shereshevsky
1. Introduction
An accused at the International Criminal Court (ICC) is charged with severe war
crimes involving the deaths of thousands of people. His trial is being conducted for over
ten years due to a severe undue delay in the proceedings. What is the appropriate remedy
for the fair trial violations in this case? This question lies at the heart of this article.
When we think of international criminal justice our focus is mainly tuned on the
horrors that occur. International criminal law wishes to “put an end to impunity for the
perpetrators of these crimes”.1 However, as a judicial bodies established, inter alia, with
the goal of protecting human rights, it is obvious that international criminal courts must
not to violate the human rights even of those who are accused of committing the worst
atrocities.2 Ignoring those rights would violate International Criminal Law (ICL) goals
and would undermine the legitimacy of international criminal tribunals. Thus, the conflict
between these separate goals – punishing the perpetrators of the atrocities while at the
same time defending their rights – might constitute serious tension that is well noticed in
case law.
This tension is seen most clearly in the context of remedies for fair trial
violations. It is possible to divide fair trial violations into two types.3 The first type of
violations are those in which the violation might jeopardize the outcome of the case: for
example, in the Lubanga case before the ICC large quantities of evidence that the
Prosecution possessed were not exposed to the Defense as well as to the court, due to
1
Pmbl., ICC Statute.
On the importance of providing fair trials See e.g. J. I. Turner, ‘Policing International Prosecutors’, 45
New York University Journal of International Law and Politics (2012) 175, at 204-205; J. D. Ohlin, ‘A
Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’, 14 UCLA Journal of
International Law and Foreign Affairs (2009) 77; S. B. Starr, ‘Rethinking “Effective Remedies”: Remedial
Deterrence in International Courts’, 83 New York University Law Review (2008) 693, at 712-713; G.
Sluiter, ‘Fairness and the Interests of Justice’, 3 Journal of International Criminal Justice (JICJ) (2005) 9.
3
Starr, supra note 2, at 761; K.J Heller, ‘NYU JILP Symposium: The Rhetoric of Remedies’, opinion Juris,
5 April 2013, available at http://opiniojuris.org/2013/04/05/nyu-jilp-symposium-the-rhetoric-of-remedies/
(last visited 11 April 2013).
2
1
agreements between the prosecution and the documents providers.4 Such action makes it
impossible to know whether the outcome of a trial is just. The second type of violations is
that which does not necessarily affect the just outcome of the case. For example, it is
undisputed that a two or three weeks of delay in the initial appearance of the accused is a
violation of his fair trial rights.5 This delay does not usually affect the ability of a trial
chamber to find out if he or she is guilty or not. This article focuses on this latter type of
violations, in which the outcome of the case is nonetheless believed to be valid.
Remedies of the second type are where the current case law and literature on
remedies international criminal courts is lacking. Several articles have discussed the
problems of the remedial doctrine of international criminal courts.6 In essence, these
studies point out that international criminal courts face a problem in which by granting
effective remedies to accused who face fair trial violations the courts might, and often
will, damage other main goals of ICL. This is due to the traditional interpretation of
‘effective remedies’ by the courts as mandating releasing an accused where there is a
severe violation of his rights, and by that undermining the court ability to seek other
goals, mainly ending impunity. The solution that they suggest is an interest balancing
approach to remedies, which was adapted to a large extent by the current remedial
doctrine of international criminal tribunals.7 It contains in a case of second type
violations, among others, the remedy of sentence reduction. Sentence reduction has been
also recognized by the International Criminal Tribunal for Rwanda (ICTR) in several
instances as a favorable remedy in some cases of second type violations of fair trial
rights.8
4
Decision on the Consequences of Non-Disclosureof Exculpatory Materials Covered by Article 54(3) (e)
Agreements and the Application to Stay the Procecution of the Acused, Together with Certain Other Issues
Raised at the Status Conference on 10 June 2008, Lubanga (ICC-01/04-01/06-1401), Trial Chamber I, 13
June 2008.
5
See Discussion Infra in Section 2.
6
Starr, Supra Note 2, turner Supra Note 2, D. Naymark, ‘Violations of Rights of the Accused at
International Criminal Tribunals: The Problem of Remedy’, 4 Journal of International Law and
International Relations (2008) 1.
7
Turner demonstrates a change in the international criminal courts remedial doctrine from an absolutist
approach to remedies to a balancing approach, Turner, Supra Note 2, at 184-204.
8
See e.g. Judgment, Gatete (ICTR-00-61-A), Appeals Chamber, 9 October 2012, § 286; Judgment,
Nahimana et al. (ICTR-99-52-T), Trial Chamber, 3 December 2003, § 1107 (Hereafter the ‘Barayagwiza
Judgment’); Judgment, Kajelijeli (ICTR-98-44A-A), Appeals Chamber, 23 May 2005, § 324.
2
This remedial approach is very problematic since it inevitably involves a
compromise that harms either the goals of international criminal sentencing or those of
providing remedies for fair trial violations and sometimes both. Instead, it is suggested
that a remedy of monetary compensation should be preferred for second type fair trial
violations. Monetary compensation is best suited to accommodate the tension between
the different goals of ICL since it does not harm the goals of international criminal
sentencing as well as providing an effective remedy for fair trial violations.
The article begins with a description of the development of the remedial doctrine
for second type violations at the ICTR and its problems. This part focuses on the ICTR
since most of the litigation on second type violations remedies occurred there. However,
it seems that the development of the ICTR doctrine might be consistent with equivalent
fair trial remedial development pattern at the ICC.9 It demonstrates the shift from what
Turner refers to as the Absolutist Approach to remedies to a Balancing Approach to
remedies, and present a possible recent change towards the balancing approach in the
remedial doctrine for violations of the right to a speedy trial. It then criticizes the current
remedial doctrine focus on sentence reduction as the main remedy for second type
violations in case of a conviction. Finally the article suggests a monetary compensation as
the optimal remedy in these situations.
2. Remedies for Second Type Violations at the ICTR
A. The Barayagwiza Case
The remedial question first arose at the ICTR in the seminal case of Jean Bosco
Barayagwiza.10 Barayagwiza was one of four co-accused in a case that is commonly
known as the “Media trial”, which dealt with the racist propaganda against the Tutsi
population before and during the Rwandan Genocide. Barayagwiza was indicted of being
one of the founders and operators of the RTLM, the main radio station that incited against
the Tutsis population during the 1994 genocide. He was arrested in Cameroon on 15
April 1996, was delivered to the tribunal custody on 19 November 1997, and his initial
appearance took place on 23 February 1998. Barayagwiza filed a motion to dismiss the
9
Turner, supra Note 2, her discussion involves mainly first type violations.
Barayagwiza (ICTR-97-19).
10
3
charges against him on the basis that his rights were violated on account of this long pretrial period. The Trial Chamber denied Barayagwiza’s motion. The Appeals Chamber,
however, granted an appeal and ordered, in its decision from 3 November 1999, to
dismiss the indictment against Barayagwiza “with prejudice” and his immediate release.11
The Appeals Chamber found Barayagwiza’s rights under the ICTR statute had been
violated in several ways, including the failure to inform him of the charges against him
for 11 months, an undue delay of 96 days in his initial appearance, the general failure of
the prosecution to prosecute him with due diligence and the failure to hear his motion for
habeas corpus. The appeals chamber concluded that dismissal was the only proper
remedy in this case because it was the only way to achieve all three remedial goals: to
assure an effective remedy to the accused, to deter from commission of future violations,
and to protect the tribunal’s integrity.12
The response to the Appeals Chamber’s decision was swift and negative. The
international community and human rights organizations criticized the decision and, more
importantly, the Rwandan government threatened to suspend all cooperation with the
tribunal.13 A short time after, the Appeals Chamber took the exceptional step of
reviewing its decision, ostensibly “in light of new evidence” not yet known at the time of
the original decision. In March 2000 it changed its original ruling of November 1999 and
found that, in light of the new evidence suggesting that the delays were less extreme than
originally believed, the most appropriate remedy for the violations was no longer
dismissal of all charges, but rather a reduced sentence in the case of a conviction and
monetary compensation in the event of an acquittal.14 The court stated, however, that the
original ruling was still valid in reference to the evidence available at that time, thus
suggesting that an egregious violation would, in fact, result in release and dismissal.15
11
Decision, Barayagwiza (ICTR-97-19-AR72), Appeals Chamber, 3 November 1999 (Hereafter the
‘Barayagwiza November Decision’).
12
Ibid, at §108.
13
M. Momeni, ‘Why Barayagwiza is Boycotting His Trial at the ICTR: Lessons in Balancing Due Process
Rights and Politics’, 7 ILSA Journal of International Law and Comparative Law (2001) 315, at 319; W. A.
Schabas, ‘Barayagwiza v. Prosecutor (Decision and Decision (Prosecutor’s Request for Review or
Reconsideration)) Case No. ICTR-97-19-AR72’, 94 American Journal of International Law (2000) 563, at
565.
14
Decision (Prosecutor Request for Review or Reconsideration), Barayagwiza (ICTR-97-19-AR72),
Appeals Chamber, 31 March 2000, at § 75(Hereafter the ‘Barayagwiza March Decision’).
15
Ibid, at § 51.
4
Read together, these two Appeals Chamber decisions provided and shaped the
remedial doctrine of the ICTR. That is to say, facing a severe breach of the accused rights
the appropriate remedy is dismissing the indictment and releasing the Accused. Facing a
less severe breach, the remedy is reducing its sentence in a case he is convicted and a
monetary compensation in a case of an acquittal. In later case law declaratory relief was
added to the remedial doctrine as a remedy that is used in cases where the prejudice to the
accused is minimal.16 The Barayagwiza decisions also demonstrated the notable tension
we are concerned with, and showed that releasing a person that is accused in such crimes
is practically not possible. In spite of the fact that the tribunal explicitly stated that the
March decision was not affected by political considerations, it seems that the reaction to
the November 1999 decision had a significant influence on the creation of the March
2000 decision.17 In the terminology of Daryl Levinson and Sonya Starr, the inability to
award this remedy is derived from a situation of “remedial deterrence”.18 Remedial
deterrence occurs when the price of a remedy is higher than its benefit. In such cases
courts will not use that remedy and will instead find ways around it. In the case of ICL,
where the demand for accountability is high, it seems that the release of an accused will
almost always be regarded as too high a price and, as such, will never be used as a
remedy. This can be also demonstrated by the reversal of the ICC Appeals Chamber of
two Trial Chamber decisions in the Lubanga case, in which the Trial Chamber ordered to
release the accused due to (first type) fair trial violations.19 One may also find similar
pattern in that in all cases in which similar issues arose before the ICTR it never granted
such a strong remedy again.20
16
Judgment and Sentence, Bagosora et al (ICTR-98-41-T), Trial Chamber, 18 December 2008, at § 97.
Momeni, supra Note 13, at 323; J.K. Cogan, ‘International Criminal Courts and Fair Trials: Difficulties
and Prospects’, 27 Yale Journal of International Law (2002) 111, at 135.
18
Starr, supra Note 2; D. L. Levinson, ‘Essentialism and Remedial Rights Equilibration’, 99 Columbia
Law Review (1999) 857.
19
Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber I Entitled “Decision on
the Release of Thomas Lubanga Dyilo”, Lubanga (ICC-01/04-01/06 OA 12), Appeals Chamber, 21
October 2008; Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber I of 8 July
2010 Entitled “Decision on the Prosecutor’s Urgent Request for Variation of the Time-Limit to Disclose
the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with
the VWU”, Lubanga (ICC-01/04-01/06 OA 18), Appeals Chamber, 8 October 2010.
20
See discussion below.
17
5
B. ICTR Post Barayagwiza Remedial Case Law
Most of the ICTR second type remedies case law deals with two rights – the right
to an initial appearance without undue delay and the right to be tried without undue delay.
1. The Right to an initial appearance without undue delay
The question of the appropriate remedy for second type fair trial violations arose
at the ICTR in cases dealing with the right to appear before a judge without delay, the
same right that was violated in the Barayagwiza case. The test for a violation of the right,
as was recognized in the November Barayagwiza decision, is cut and dry: any delay that
exceeds a few days is a breach of this right.21 In the Barayagwiza case itself the Appeals
Chamber found that a 20 days delay constituted a violation of Barayagwiza’s rights.22 As
a result the margin of discretion of the Tribunal to determine whether a violation has
occurred was rather limited. Indeed, in several cases the court determined that the rights
of the accused to be brought before a judge without delay had been violated.23
The ICTR chose to apply, following the Barayagwiza March decision, the
remedies of reduced sentence or financial compensation depending on the outcome of the
trial. Ultimately, Kajelijeli received a reduced sentence of 45 years instead of a two life
sentences and 15 years’ sentence,24 and Barayagwiza received a reduced sentence of 35
years instead of a life sentence.25 Rwamakuba got $2000 compensation, which was
granted also due to a violation of his right to legal assistance.26 In the Semanza Case the
Tribunal reduced six months of a 25 years’ sentence, due to a violation of the Accused
right to be promptly informed of the charges against him.27 A different path was taken by
the Tribunal in the Bagosora et al. judgment (Military I case). Bagosora, one of the four
accused in the case, is sometime referred to as the master mined behind the Rwandan
21
Barayagwiza November Decision, Supra Note 11, at § 70.
Barayagwiza March Decision, Supra Note 14, at § 62.
23
Bagosora et al., Supra Note 16, at §§ 93, 96; Kajelijeli, Supra Note 8, at § 253; Judgment and Sentence,
Rwamakuba (ICTR-98-44C-T), Trial Chamber, 20 September 2006, at § 217.
24
Kajelijeli, Supra Note 8, at § 324.
25
Barayagwiza Judgment, Supra Note 8, at § 1107.
26
Decision on Appeal against Decision on Appropriate Remedy, Rwamakuba (ICTR-98-44C-A), Appeals
Chamber, 13 September 2007, at §§ 28, 31 (Hereafter the ‘Rwamakuba Remedial Appeal’).
27
Judgment and Sentence, Semanza (ICTR-97-20-T), Trial Chamber, 15 May 2003, at § 590.
22
6
Genocide.28 In its Judgment the Tribunal determined that the right to an initial appearance
without undue delay of Bagosora and another Accused, Kabiligi, was violated. However,
it granted them only declaratory relief since their failure to raise the issue for a long time
was an indication of a minimal, if any, prejudice to the accused.29
Unlike the Barayagwiza November Decision, the international community basically
ignored these remedial decisions. In fact, the only significant reaction to the Rwamakuba
ruling came from the Registrar of the ICTR, which appealed on the basis that the ICTR
had no source for giving the remedy of financial compensation.30 The appeals chamber
denied the appeal.
2. The right to be tried without Undue Delay31
The right to a speedy trial is usually being referred to as a second type fair trial
right.32 Indeed, a violation of this right might affect the accuracy of the memory of
witnesses and be accompanied with a loss of some of the physical evidence. 33 However,
it can affect equally both the prosecution and the defense. In addition, in international
criminal adjudication most trials takes place even without a violation several years after
the events have occurred. Moreover, in some domestic systems the right exists only in
cases where the Accused is held in detention.34 It supports the position that the main
goals of the right are different – ‘to limit infringement on personal freedom’ during
criminal proceedings and to minimize the emotional stress of the Accused while awaiting
judgment.35 In international criminal adjudication, where the Accused are usually held in
detention, the protection of this right is of a significant importance.36
See e.g D. Tolbert and F. Gainor, ‘International Tribunals and the Right to a Speedy Trial: Problems and
Possible Remedies’, 27 Law in Context (2009) 33, at note 4; However Bagosora was not foung guilty by
the ICTR in conspiracy to commit Genocide.
29
Bagosora et al., Supra Note 16, at §§ 93, 96-97.
30
Rwamakuba Remedial Appeal, Supra Note 27, at §§ 20-21.
31
Also referred to as the ‘right to a speedy trial’.
32
Starr, Supra Note 2, at 761; Heller, Supra Note 3.
33
M.C Bassiouni, ‘Human Rights in the Context of Criminal Justice: Identifying International Procedural
Protections and Equivalent Protections in National Constitutions’, 3 Duke Journal of Comparative and
International Law (1993) 235, at 285-286; B Farrel, ‘The Right to a Speedy Trial before International
Criminal Tribunals’, 19 South Africa Journal on Human Rights (2003) 98, at 99.
34
Bassiouni, Ibid, at 286.
35
Ibid, at 285.
36
For a criticism on the detention policy in international criminal courts see e.g. C. L. Davidson, ‘No
Shortcuts on Human Rights: Bail and the International Criminal Trial’, 60 American University Law
Review (2010) 1; D. J. Rearick, ‘Innocent until Alleged Guilty: Provisional Release at the ICTR’, 44
Harvard International Law Journal (2003) 577.
28
7
Until recently the ICTR has never determined that the right to a speedy trial had
been violated despite of very long trial proceedings that took place while the Accused are
being held in detention.37 The jurisprudence of the ICTR on this issue has received much
criticism, claiming that it has failed to comply with fair trial standards.38 The approach of
the tribunal can most clearly be illustrated in two decisions of the recent years were it
appears that the tribunal bent over backward to avoid concluding that such a violation had
occurred. In the Nyiramasuhuku et al. case, one of the co-Accused, Ndayambaje, was
arrested in 28 June 1995 and the judgment was given on 24 June 2011. The 15 years of
his detention constitute the longest pre-judgment detention in the history of international
criminal law.39 However, the trial chamber reached the conclusion that there was no
undue delay in the proceedings despite some delays that were clearly not attributed to the
defense, such as an eight and a half month of delay due to the non re-election of Judge
Maqutu. The appeal on the Trial Chamber’s Judgment is still pending. In a recent
Judgment, Mugenzi and Mugiraneza, the Appeals Chamber has determined that there was
no undue delay.40 This ruling was adopted despite 12 and a half years of detention
pending Judgment by the trial chamber, almost 14 years until the Appeals Chamber
Judgment, the fact that all of the co-Accused were acquitted,41 and especially the 2 years
and 10 months between the final trial submissions and the issuance of the judgment. In
his dissenting opinion Judge Robinson found that the long judgment drafting period
violated the rights of the Accused, and granted each of them $5,000 as a compensation
for their moral damage.42
Although there is no defined period which violates the right to a speedy trial it
seems that these decisions were made in contradiction to common international law
37
See e.g Judgment, Nahimana et al. (ICTR-99-52-A), Appeals Chamber, 28 November 2007, at §§10761077; Bagosora et al., Supra Note16, at § 84.
38
See e.g Starr, Supra Note 2, at 720-723; Tolbert and Gainor, Supra Note 28; Y. McDermott, ‘Rights in
Reverse: A Critical Analysis of Fair Trial Rights under International Criminal Law’, in W. A. Schabas, Y.
McDermott and N. Hayes (eds), The Ashgate Research Companion to International Criminal Law: Critical
Perspectives (Aldershot: Ashgate, 2012) 165, at 165-166; but see A whiting, ‘In international Criminal
Prosecutions, Justice Delayed Can Be Justice Delivered’, 50 Harvard International Law Journal (2009)
323; M. Damaška, ‘Reflections on Fairness in International Criminal Proceedings’, 10 JICJ (2012) 611, at
616.
39
Judgment and Sentence, Nyiramasuhuku et al. (ICTR-98-42-T), Trial Chamber, 28 June 1995, at §135.
40
Judgment, Mugenzi and Mugiraneza (ICTR-99-50-A), Appeals Chamber, 4 February 2013, at § 37.
41
Two of the co-Accused in the Bizimungu et al. Case (Government II) were acquitted by the Trial
Chamber and the other two were Acquitted by the Appeals Chamber following their appeal.
42
Mugenzi Mugiraneza, Supra Note 40, Partially Dissenting Opinion of Judge Patrick Robinson.
8
standards as were interpreted by different international adjudicating bodies. The criteria
used by the ICTR to assess the reasonableness of the length of proceedings are similar to
those used by the European Court of Human Rights (ECtHR) – the complexity of the
case, the conduct of the parties and the relevant authorities, and the prejudice to the
Accused. The ICTR jurisprudence relies heavily on the complexity of the cases, which
inevitably involve long proceedings, in finding that there was no violation of the right.
However, it seems that even in very complex cases there is no justification to such a long
proceedings, especially where the Accused are being held in detention. The ECtHR held
that an Accused that is kept in detention during his proceedings is entitled to ‘”special
diligence” on the part of the competent authorities’ with regard to his right to a speedy
trial.43 For example, in Müftüoglu v. Turkey the ECtHR found that a 15 years
proceedings, where the case involved 723 Accused and 607 criminal offences, violated
the right to a speedy trial pointing out especially, but not only, to the three years period of
drafting the decision in the first instance.44
It is possible that the tribunal itself is aware of this contradiction. In one of the
earlier motions of Mugiraneza on violation of his right to a speedy trial the ICTR Trial
Chamber refused to address the case law of the ECtHR and the Human Rights Committee
(HRC) on this issue.45 This position is contrary the Barayagwiza November Decision
where the tribunal explicitly referred to this case law as ‘evidence of international
custom’ and used HRC jurisprudence to interpret the reasonableness of the delay in the
initial appearance of the Accused,46 and possibly contrary to a wider tendency of the
tribunal to rely on the jurisprudence of the ECtHR.47
A possible explanation for the jurisprudence of the ICTR adopted by Sonja Starr
is a situation of remedial deterrence. It is possible to infer from the reasoning of the
Barayagwiza November decision that violation of the right to speedy trial would result in
dismissal of the charges and immediate release.48 The tribunal, who following the
43
Abdoella v. The Netherlands, ECtHR (1992) Application no. 12728/87, at § 24.
(1996) Application no. 15530/89, at §§ 35-37.
45
Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivition of his Right to Trial
Without Undue Delay, Bizimungu et al. (ICTR-99-50-T), Trial Chamber, 29 May 2007, at §§ 19-21.
46
Barayagwiza November Decision, Supra Note 11, at §§ 40, 70.
47
W. A, Schabas, ‘Synergy or Fragmentation? International Criminal Law and the European Convention
on Human Rights’, 9 JICJ (2011) 609.
48
Barayagwiza November Decision, Supra Note 11, at § 108; Starr, Supra Note 2, at 722.
44
9
Barayagwiza affair is unwilling to grant this remedy again, uses its interpretive tools in
order to avoid the remedial problem. However, just like the cases involved the issue of
initial appearance, there might be a beginning of a change in the remedial doctrine on this
issue that can bring a change in the substantive interpretation as well. In the Gatete
judgment of October 2012, the ICTR has recognized for the first time that an Accused's
right to a trial without undue delay has been violated.49 The case involved a pre-trial
phase of more than seven years, part of which due to undue delays attributed to the
Prosecution and the Trial Chamber, while the Prosecution case itself lasted for only 13
days.50 In reaching its decision, the Appeals Chamber chose not to use tools that were
used in other cases to avoid a remedy, such as the fact that some of Gatete submissions
were impermissible expansion of his appeal, or that he did not demonstrate a specific
prejudice.51 The tribunal reduced the sentence of Gatete from life imprisonment to 40
years referring to the Barayagwiza March decision as a source for the remedy chosen.52
Taken together with Judge Robinson dissenting opinion in Mugenzi and Mugiraneza
appeal and with Judge Short dissenting opinion in the Trial Chamber judgment of the
same case,53 there might be a beginning of a change in the tribunal position with regard to
this right.
A possible explanation for this change is the amount of criticism that the tribunal
was facing with respect to its failing to adequately protect the right to a speedy trial.54
This criticism forms the other side of the criticism that the tribunal faced after the
Barayagwiza November Decision. In these decisions regarding the remedies for
violations of the rights of the accused at the ICTR, we see the tension between wanting to
further the goal of the tribunal in judging and punishing those who committed terrible
crimes in Rwanda, and wanting to protect the rights of the accused. An extensive remedy
jeopardizes the first goal while failing to provide any remedy for a violation or giving
49
Gatete, Supra Note 8, at § 45.
Ibid, at § 23.
51
Ibid, at §§ 20, 44; for a use of these mechanism in other cases see Starr, Supra Note 2, at 725-728;
Bagosora et al., Supra Note 16, at §§ 93, 96.
52
Gatete, Supra Note 8, at §§ 286-287.
53
Judgment and Sentence, Bizimungu et al. (ICTR-99-50-T), Trial Chamber, 30 September 2011, Partially
Dissenting Opinion of Judge Emile Francis Short (granting five years reduction of sentence for the Accused
which have been convicted).
54
See e.g. Supra Note 38.
50
10
only a minor one can be seen as ultimately doing harm to the fair trial rights that the
tribunal is supposed to defend. As a solution to this problem, it seems that the ICTR is
generally moving towards a more balanced remedial doctrine where sentence reduction
and in some cases declaratory relief are the main remedies used by the tribunal.
3. The Insufficiency of Current Remedial Interest Balancing
The change in the remedial doctrine towards a remedial interest balancing has
gained support in the literature in the last few years.55 Moreover, in all those studies the
authors supported the main remedy that was chosen by the ICTR for second type
violations – Monetary Compensation.56 In a recent paper, Turner suggests that the ICC
should adopt sentence reduction as a remedy for second type violations. She claims that
sentence reduction can achieve remedial goals and still remain ‘consonant with the main
goals of international criminal justice. Because the ICC is still able to adjudicate the case
fully on the merits, it is not prevented from punishing and deterring international crimes,
uncovering the truth about these crimes, or helping victims obtain redress’.57
As Starr and Turner claim, there is not much doubt that sentence reduction is a
better remedial tool than either releasing the Accused or a declaratory relief. Remedies
are intended to serve three main goals:58 The first goal, which some view as the main
goal of remedies,59 is to compensate the Accused; to put him in the position he was in
prior to the violation.60 The second goal of remedies is to deter authorities from violating
rights. The third goal of remedies is to maintain the courts integrity.
Releasing the Accused in almost all cases of second type violations cannot
adequately address the three remedial goals. With regard to compensation release is
usually a gross overcompensation.61 It is common logic that the moral damage that a
guilty person suffers for example from a 10 year delay in trial is incommensurate with
55
See Supra Note 6.
Starr, Supra Note 2, at 758-759; Turner, Supra Note 2, at 217-225; Naymark, Supra Note 6, at 16
(Claiming that the Barayagwiza March Decision should be adopted).
57
Turner, Supra Note 2, at 221.
58
See e.g Ibid, 215-216; Barayagwiza November Decision, Supra Note 11, at § 108.
59
D. Shelton, Remedies in International Human Rights Law (Oxford: Oxford University Press, 1999), at
38; Starr, Supra Note 2, at 699-700.
60
Ibid.
61
S. B. Starr, ‘Sentence Reduction as a Remedy for Prosecutorial Misconduct’, 97 Georgetown Law
Journal (2009) 1509, at 1537 (Hereafter: Starr, ‘Sentence Reduction’).
56
11
lifetime in prison or even 15 years' sentence.62 Second, the test is an inflexible one. The
damage caused to a defendant is not the same in every case; 12 years delay is not the
same as 14. If we simply dismiss the charges in all cases, unequal violations will be
treated as if they were equal. With regard to deterrence, releasing the Accused might
cause over-deterrence in case that it is commonly used, and it will bare almost no
deterrent affect in case of remedial-deterrence that prevent courts from using this remedy.
Lastly, releasing the Accused will usually harm the integrity of the court since it will be
regarded as a windfall to the defendant and a severe damage to other goals of
international criminal justice.63 Declaratory relief, on the other hand will usually involve
under-compensation and under-deterrence in cases that the Accused’s rights were
violated.64 As a result, ‘in most states, a declaratory judgment is not considered an
adequate remedy after the injury has taken place’,65 and its use by the ECtHR has raised
much criticism.66
Despite its clear advantage over some remedies, sentence reduction is far from
being an ideal remedy. First, and most importantly, in order to be an effective remedy
sentence reduction must harm the other goals of international criminal justice, especially
the ability to punish and to deter international crimes. Turner accepts the possibility that
in some cases granting a significant sentence reduction might cause harm these goals but
she claims that employing a proportionality test would guarantee that the remedial goal
would be achieved while ‘the ultimate sentence does not significantly under represent the
defendant’s blameworthiness’.67 But how can this be done? There is an important role to
the specific amount of years that the Accused receives from both a retributive point of
view and a deterrence one,68 and any significant change will affect both goals. Indeed, if
the reduction is insignificant than it might not affect the competing goals. However, as
62
10 years delay is a common situation at the ICTR, while the length of sentences in international criminal
courts is usually high, although there are differences between the different courts. See B. Holá, A Smeulers
and C. Bijleveld, 'Facts and Figures – Sentencing Practice at the ICTY and ICTR', 9 JICJ (2011) 411.
63
Starr, Sentence Reduction, Supra Note 61, at 1538.
64
Turner, Supra Note 2, at 230; Shelton, Supra Note 59, at 213; Starr, Supra Note 2, at 762.
65
Shelton, Supra Note 59, at 69.
66
Starr, Supra Note 2, at 733.
67
Turner, Supra Note 2, at 223.
68
See e.g. A Szoke-Burke, ‘Avoiding Belittlement of Human Suffering – a Retributive Critique of ICTR
Sentencing Practices’, 10 JICJ (2012) 561, at 570; G. S. Becker, ‘Crime and Punishment : An Economic
Approach’, 76 Journal of Political Economy (1968) 169.
12
Turner herself points out, in such cases sentence reduction will not serve as an effective
remedy.69 For example, in the recent Gatete Judgment the sentence was reduced from life
imprisonment to 40 years, which means that Gatete will be released at the age of 90. In
these circumstances it seems even after the reduction Gatete is actually being sentenced
to life imprisonment. This is the situation in almost all of the cases in which the ICTR has
granted sentence reduction.70 Consequently even under sentence reduction international
criminal courts are still caught between a rock and a hard place – if they grant a
significant sentence reduction it harms competing goals of international criminal justice
and if it provides a minimal reduction it harms remedial goals.
Starr acknowledges this problem, but argues that although this remedy might
constitute a shortfall in both compensating the Accused and other goals of the courts, it
best balances the tension between the different goals of ICL. Furthermore, she claims that
this remedy is better even for the accused because in the light of the remedial deterrence
of the present situation – some remedy is better than having no remedy.71 However, if the
sentence reduction given is minimal, as appears to be the case in some ICTR rulings, it
might be just another avoiding mechanism that the remedial deterrence creates and not a
solution to its existence. This might be even easier in the case of sentence reduction due
to the availability of the option to manipulate the sentencing process: it is not very
difficult for a court that believes that the Accused is deserved a sentence of X years to
give him X + 5 years and then reduce it to X years due to a violation of his rights.
Moreover, even if it is better than no remedy it will be a desirable remedy only if there is
not a better remedy that can provide for a better solution.
Another reason for the inadequacy of sentence reduction as a remedy for second
type violations relates to the question of the relevant community that ICL addresses.
Although the interest in punishing the Accused is common to the entire international
community, it is possible to claim that the society that suffered from the atrocities has a
larger share in this interest. As Schabas has noted with regard to the ICTR, the Rwandan
‘people are supposed to be the principal beneficiaries of this international effort at justice
69
Turner, Supra Note 2, at 222.
Ibid.
71
Starr, Supra Note 2, at 758-759.
70
13
and accountability’.72 It is not by chance that the harshest response to the Barayagwiza
November decision came from the Rwandan government, while the rest of the
international community remained relatively untroubled. Accordingly, it might be unjust
that the Rwandan People will pay the highest price for a misconduct that was not caused
by them. It seems a bit arbitrary that the remedy for second type fair trial violations is
being given in a commodity that supposed to serve other goals. The sentence reduction is
just a tool, a proxy to the damage done to the Accused, when it affects wider audience
then the authorities that caused the harm it is not a suitable remedy.
This point can be illuminated with the following example: In a trial, someone is
charged with a crime, for example, genocide. If that person is tried and convicted of the
crime, we punish him according to his actions. If during the course of that trial another
prisoner in jail or someone in the crowd stabbed the defendant, we would not say that this
violation of the defendant’s rights was related to the case and we would not reduce his
punishment as a means of compensation for that violation. Similarly, here, we are talking
about actions of the authorities that are not related to the proof of the case against the
Accused. As such, the remedy ought not to be related to the punishment, which should fit
the crime.
4. Monetary Compensation as a Remedy for Second Type Violations of
Fair Trial Rights
A. The Case for Monetary Compensation as a Remedy for Second Type Violations
The main argument of this paper is that the primary remedy for second type
violations should be financial compensation. While the current doctrine and literature
offer remedies that either harms fundamental remedial goals or the other goals of
international criminal justice, financial compensation is usually capable to achieve the
underlying remedial goals while not minimizing or harming the other goals of ICL.
As discussed earlier, the first purpose of remedial action is to make the accused
whole again. Thus, when a remedy that gives the opportunity to return the accused to the
Schabas, Supra Note 13, at 566-567; but see R. D. Sloane, ‘The Expressive Capacity of International
Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’, 43
Stanford Journal of International Law (2007) 39, at 47-56 (Sloane accepts the dual interests but claims that
ICL should focus primarily on the interests of the international community).
72
14
same position he was is available, the tribunal should use it.73 In our case, it is of course
impossible to bring the position of the accused to the outset in a direct or simple way. For
example, if the accused was brought before a judge after 90 days, we cannot go back in
time and bring him before the judge without delay. Thus, direct compensation would be
impossible and one must choose the remedy that comes closest to making the defendant
whole.
In domestic tort law, where the principle of making the injured party whole is the
main objective of compensation,74 courts often deal with cases where a full, direct,
compensation is not possible. Instead, they compensate the injured person monetarily for
his loss. Doing so provides the closest approximation of making her whole available.
Those cases can include cases very similar to those of second type violations of fair trial
rights.75 Moreover, tort law also compensates for non-pecuniary damages, where the
ability to assess the exact cost to the injured person is much harder. Still they are
considered to be the best proxy of the harm caused to her. Although monetary
compensation is often criticized as being incommensurable with non-pecuniary
damages,76 it is yet to be found a better substitute for the harm done.77 Thus, from a
compensatory point of view money is the ‘standard value of all things’78 and it seems that
monetary damages should be used as the main remedy in second type fair trial violations.
Indeed, it seems that the literature on remedies for international human rights violations
considers monetary compensation to be the main remedial tool to be used.79
Monetary compensation for fair trial violations might also best supports the
second rationale of remedies – deterrence. Unlike the cases of sentence reduction where
there was no much criticism on the part of the prosecution, the only meaningful objection
73
Shelton, Supra Note 59, at 44.
H. Kalven, Jr, 'The Jury, the Law, and the Personal Injury Damage Award', 19 Ohio State Law Journal
(1958) 158, 160; but see J. C. P. Goldberg, 'Two Conceptions of Tort Damages: Fair v. Full Compensation',
55 DePaul Law Review (2006), 435.
75
See e.g G. Calabresi, ‘The Exclusionary Rule’, 23 Harvard Journal of Public Law and Policy (2003)
111.
76
D. J. Levinson, ‘Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs’,
67 University of Chicago Law Review (2000) 345, at 410 (hereafter: ‘Making Government Pay’).
77
M. Geistfeld, ‘Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort
Damages for Nonmonetary Injuries’, 83 California Law Review (1995) 773, 781.
78
H. Grotius, On the Law of War and Peace, (Kitchener: Batoche Books, A.C Campbell trans., 2001), at
163.
79
Shelton, Supra Note 59, at 44-45; C. Tomuschat, Human Rights: Between Idealism and Realism, (2nd
edn., Oxford: Oxford University Press, 2008), at 355.
74
15
to a remedy can be found in the Registrar’s appeal of the $2,000 award to Rwamakuba.
This is some indication that monetary compensation can incentivize the relevant
authorities more effectively than other remedies, including sentence reduction. A possible
explanation for it can be found in above discussion on the stake holders in ICL. Although
we would all like to think about ICL as a joint enterprise of the international community
as a whole, the inevitable (and maybe unpleasant) truth is that the domestic community in
which the crimes were committed is much more interested in ending impunity with
respect to the particular case then the rest of the international community. This is due to
several reasons. First, the domestic community is obviously much more attached to the
events that have occurred, many of them where the victims of the atrocities and others
know them. On the other hand the international community and even the staff of the
courts are much more distant from the events and thus out of sight - out of mind, or at
least more out of mind. Second, in domestic criminal law, the perpetrators, if released,
will return to the streets that the judges and prosecutors walk upon and thus directly
influencing their lives. In international criminal law, however, the international
community will usually not perceive the results of the criminal adjudication as directly
influencing their lives. Therefore, it is questionable how effective deterrent will be a
sentence reduction that does not reduce the sentence dramatically. In contrast, financial
compensation directly affects the courts. The costs of international trials have been
criticized, and in fact, one of the possible reasons for the constant trial delays is limited
resources.80 Imposing monetary damages would hit the prosecution where it hurts and
might make financial disincentives to delaying trials a powerful deterrent.
Financial compensation best furthers the third goal of remedies – maintaining the
integrity of the tribunal. Monetary compensation is a remedy that is independent from the
criminal process of proving the guilt and punishing the Accused. Thus, it enables the
courts to achieve the different remedial goals while not interfering with the main goals
that underlay international criminal justice by disconnecting the remedial adjudication
from the main criminal one. This separation can support enhancing the integrity and
legitimacy of international criminal courts with regard to all the different actors in the
80
E. Husketh, 'Pole Pole: Hastening Justice at UNICTR', 3 Northwestern University Journal of
International Human Rights (2005), i, at viii.
16
field of ICL – those who mainly seek to end impunity as well as those who are primarily
focused on maintaining and protecting international human rights.
From a doctrinal point of view it seems that using monetary compensation as a
remedy for second type violations would not be a dramatic step for international criminal
courts. Although this remedy is not explicitly mentioned in the statutes of the different
international criminal courts, the ICTR has already recognized its inherent power to grant
effective remedies as they consider necessary.81 This power was specifically applied by
the ICTR to recognize its ability to grant monetary compensation in case of an Acquittal
in the Barayagwiza March Decision,82 and one can infer from the Rwamakuba Remedial
Appeal reasoning that this power is not limited to compensation only in cases of an
acquittal (though it is not part of the tribunal current remedial doctrine).83 In his
dissenting opinion in the Rwamakuba Remedial Appeal, Judge Shahabuddeen referred to
the lack of statutory authority to grant financial compensation and predicted that as a
result the decision will end as a disregarding ruling since the registrar will not be able to
comply with it.84 This prediction was proved to be wrong when the registrar paid
Rwamakuba the compensation. Moreover, it seems that this problem is not relevant to the
ICC, since its Statue mentions monetary compensation as a remedy for some fair trial
violations,85 and therefore a mechanism of compensation already exist. Some may claim
that the positive recognition of monetary compensation for some violations under the ICC
Statute denies the possibility of granting such a remedy for other violations. But in light
of the jurisprudence with regard to the courts inherent power to grant effective remedies
this would seems to be a too strict interpretation, in case that monetary compensation is
the most effective remedy for these violations. Lastly, monetary compensation was
recognized as an appropriate remedy by international and domestic courts and was used
many times in cases of second type fair trial violations.86
81
Schabas, Supra Note 13, at 567.
Barayagwiza March Decision, Supra Note 14, at §75.
83
Rwamakuba Remedial Appeal, Supra Note 26, at §§ 24-26.
84
Ibid, Partly Dissenting Opinion of Judge Shahabuddeen, at § 4.
85
Article 85, ICC Statute.
86
Shelton, Supra Note 59, at 272-278 (discussing ECtHR case Law on undue delays remedies); European
Comission for Democracy through Law (Venice Comission), Study on the Effectiveness of National
Remedies in Respect of Excessive Length of Proceedings (Study No. 316/2004, 2006), available online at
http://www.venice.coe.int/webforms/documents/CDL-AD(2006)036rev-e.aspx (visited 24 April 2013), at
18 (mentioning 22 European states that grant compensation for undue delays in proceedings).
82
17
B. Possible Objections
So if monetary compensation clearly poses a better remedial option how come it
has been adopted neither by international courts nor by the literature as a favorable
remedy? To be honest, this question still puzzles me. However, I will try to present some
of the possible objections in the following section.
Surprisingly there is not much discussion in the case law and literature mentioned
above of the problems associated with granting monetary compensation as a remedy. In
the Rwamakuba Remedial Appeal, the Appeals Chamber determined that the tribunal will
award monetary compensation only 'in appropriate and limited circumstances'.87
However, it did not provide a reason for this limitation and even rejected budgetary
considerations as a possible justification for the rejection of monetary compensation as a
remedy.88 Perhaps the best explanation for the tendency of the tribunal to prefer sentence
reduction over monetary compensation in case of a conviction lies in its criminal
orientation. The tribunal regular tool box involves criminal sanctions and it is its default
option for remedying a wrong. This explanation however does not provide a strong
reason against using monetary compensation when it provides a better remedial value.
Starr addresses the issue of monetary compensation very briefly. She laconically
suggests that monetary compensation might be politically untenable and that it might
seem inadequate for a person facing a long prison sentence.89 As to the first argument,
Starr does not support it in any way and it is hard to understand why a monetary
compensation would be more politically untenable then for example sentence reduction.
To the contrary, it seems that monetary compensation, which does not interfere with the
tribunal punitive goals, might be accepted more easily then remedies that harm those
goals. As to the second claim, monetary compensation is the remedy that is being used in
any tort case that involved prisoners. If, for example, one of the Accused in an
international criminal court would have been involved in a car accident on his way to the
court would a similar argument be accepted? Would he receive anything but monetary
damages? Moreover, money can serve of course even people that serve criminal
sentences – first, it can be used even within prisons; second, some of them will be
87
Rwamakuba Remedial Appeal, Supra Note 26, at § 30.
Ibid.
89
Starr, Supra Note 2, at 715.
88
18
released one day; third, some of them have families who might use it; Finally, this is even
more true in second type violations in cases that end with a conviction since usually the
damage will not be large and will consist mostly of the moral-damage that was caused to
them.
In a later article, discussing sentence reduction within the U.S context, Starr
raises, also very briefly, several additional arguments against monetary compensation.90
Most of these arguments focus on problems related to tort actions by Accused under the
U.S legal system. Indeed, there are significant difficulties with tort litigation of fair trial
violation, such as the Jury's reluctance to decide in favor of criminal defendants.91 These
difficulties may provide some explanation for the lack of enthusiasm of many scholars
from the U.S to use monetary compensation as a remedy for fair trial violations. Foe
example, in an article discussing close issues, Calabresi seems to consider monetary
compensation as the obvious remedy and the only reason to denounce it are the
difficulties attached to tort litigation in this manner.92 These concerns are not relevant to
international criminal adjudication where the courts are the ones to grant the remedy.
The only significant reservation that appears in this article refers to an argument
raised by Levinson, who claims that monetary compensation cannot function as a useful
deterrent when governmental authorities are involved, since they respond to political
incentives and not to market ones.93 However, his position is controversial94 and it is
questionable whether it can be applied to the international criminal law arena in a direct
manner. Moreover, even if the deterrence power of monetary compensation is
questionable, it does not follow that other remedies' deterrence power is better. As shown
above, there is a good reason to believe that in the ICL arena monetary compensation can
serve as a better deterrent tool than a sentence reduction. In any case, this does not affect
the monetary compensation advantages with regard to the conflicting goals that are
involved in the discussion.
90
Starr, Sentence Reduction, Supra Note 61, at 1518.
See D. J. Meltzer, 'Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and
Defendants as Private Attorneys General', 88 Columbia Law Review (1988) 247, at 284; Calabresi, Supra
Note75, at 114.
92
Ibid.
93
Levinson, Making Government Pay, Supra Note 76.
94
M. E. Gilles, 'In Defense of Making government Pay: The Deterrent Effect of Constitutional Tort
Remedies', 35 Georgia Law Review (2001) 845.
91
19
Turner discusses monetary compensation only in the context of an acquittal, and
supports it in cases where there was a grave misconduct by prosecution. 95 She does not
discuss at all the possibility of using it as a remedy in case of a conviction. The only
relevant reservation raised by turner, is that due to the limited budget of international
criminal tribunals (she refers only to the ICC) 'it may also seem inappropriate to use it to
compensation to acquitted persons'.96 However, this hypothesis is not supported in any
way. Furthermore, as was mentioned above, the ICC statute acknowledges monetary
compensation as a legitimate remedy and in the Wramakuba Remedial Appeal the
budgetary claim was explicitly rejected.
5. Conclusion
The paper discusses the tension in ICL between the desire to punish the
perpetrators of international crimes and the need to provide effective remedies for fair
trial violations. The paper demonstrates that with regard to second type violations both
the traditional approach adopted by international criminal courts and the current approach
endorsed by both the courts and the literature on this issue, provide an insufficient
solution to this tension that inevitably harm one or both of the competing goals. Instead it
is suggested to adopt monetary compensation as the main remedy for second type
violations – a remedy that is best suited to accommodate the conflicting goals.
95
96
Turner, Supra Note 2, at 232.
Ibid., at 231.
20