Working at the United Nations ad hoc International Criminal Tribunal for the former Yugoslavia – an interview with Dr Silvia D’Ascoli

Barbara Zak

Dr Silvia D’Ascoli is an international criminal lawyer from Italy. In her career, she worked inter alia at the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), at the Mechanism for International Tribunals (IRMCT), and for human rights and humanitarian organisations such as Amnesty International and INTERSOS. She also regularly lectures in Human Rights at the Catholic University of Lille (Faculté Libre de Droit), France. You can follow her on twitter.

1 – Could you tell us about your academic background and interesting internships or volunteer work that led you to choose to work in the international criminal law?

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© Dr Silvia D’Ascoli

I graduated in Law in Italy and later did a PhD in international law at the European University Institute (EUI). Since I always had a personal strong interest in human rights issues and international justice, when I was a university student I started working as a volunteer for the local group of Amnesty International in my hometown. That was a truly enriching experience that shaped the direction of my law studies. In fact, my interest for human rights and international justice brought me to specialise in international human rights immediately after the law degree, and then led me to take a master degree in international and transnational crimes.

During the course of this master, I applied for an internship at the UN ad hoc Tribunals (the ICTY: International Criminal Tribunal for the former Yugoslavia; and the ICTR: International Criminal Tribunal for Rwanda). I was very glad to be accepted at the ICTY, where I then interned for six months for the Office of the Prosecutor. The work and legal challenges that I experienced during this six-month internship were so fascinating and unique that I fell in love with that job and understood that I wanted to pursue a career in that field. When I did my PhD in international law at the EUI, I presented a PhD project in the area of international criminal law, focusing in particular on the works and jurisprudence of the UN ad hoc Tribunals. I think this combined experience (practical, as I did an internship at one of these Tribunals; and academic, as I had a master and a PhD in international criminal law) were successful keys in later being able to secure a job in the field.

 

2 – You worked as a legal officer in the Office of the Prosecutor of the ICTY. What was the procedure to apply for this job? What did your work consist in?

I joined the Office of the Prosecutor (OTP) of the ICTY in 2007. The recruitment process followed the standard process of UN applications: a vacancy is posted on the UN website (back then, the ICTY; currently: careers.un.org) and the application is submitted online. The applications are then screened to make a shortlist of candidates. I was shortlisted and invited for a written test. Having passed the written test, I was then invited for an interview. At the end of the whole process, an offer of employment is sent to the successful candidate(s). Needless to say, I was extremely happy and honoured to join the ICTY! I started working at the Office of the Prosecutor of the ICTY as Associate Legal Officer (P-2) and I later became Legal Officer (P-3). The difference between the two positions is in the level of seniority and in the years of experience required for the position. P-2 positions (like the Associate Legal Officer position I started with) are generally entry-level positions requiring a minimum of two years of working experience, while the following levels (P-3, P-4, etc.) require more years of working experience (for example, P-3 positions require a minimum of five years of relevant experience). Obviously, as the level of the positions increase, so do the responsibilities associated to the position.

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© Dr Silvia D’Ascoli

When I started working for the ICTY in 2007, I joined the Trial Section of the Office of the Prosecutor. This meant that I was assigned to a trial team working on an on-going case before a Trial Chamber of the ICTY. My work as Associate Legal Officer first, and then Legal Officer, consisted in working for the team as a co-counsel under the supervision of a Trial Attorney/Senior Trial Attorney. A substantial part of the work was to conduct legal research on a diverse range of factual, procedural and substantive issues in comparative criminal law, international criminal law, international humanitarian law, and human rights; prepare legal submissions for court, including briefs, motions, research papers and memoranda. I also conducted witness interviews, recorded witness statements, lead Prosecution witnesses in court and cross-examined Defense witnesses. In sum, the work was akin to that of a counsel working on a criminal case, with the difference that the framework was that of a trial before an international criminal court, dealing with international crimes such as war crimes, crimes against humanity and genocide.

3 – You also worked for the United Nations Mechanism for International Criminal Tribunals (UN-MICT). How was it different from your previous work at the ICTY?

I worked at the UN-MICT for about a year (2015/2016). This Mechanism is responsible for a number of functions derived from the ICTR and the ICTY, one of these functions being to conduct and complete all appeal proceedings against trial judgements, or sentences, pronounced by the ICTR, the ICTY, or the Mechanism itself. At the MICT, I worked in fact on the preparation of the appeals for the Karadzic case and the Seselj case. This involved, in addition to legal research and legal analysis, the review of the trial judgements, trial records, as well as the evidence relied upon by the Trial Chambers, in order to identify possible grounds of appeal; the preparation and drafting of the appeal briefs, and related motions. In sum, the main difference was that I worked on cases on appeals instead of cases on trial.

4 – I have read that you were the manager of a refugee/migrant-related project linked with the European Union Asylum, Migrations and Integration Fund (AMIF). Could you explain to us the essence of this project and the EU’s involvement in it?

Between 2016 and 2017 I worked as Project Manager for INTERSOS, a humanitarian organisation with headquarters in Rome, to coordinate a refugee/migrant-related project based in the city of Crotone, Calabria, aimed at offering medical, psychological and social assistance to asylum seekers. This project was based on an initial Centre that INTERSOS had in Crotone since 2014, when the organization opened its first polyclinic there, to offer medical assistance, social services and psychological support to migrants, asylum seekers and Italians living in poverty. In 2016, this polyclinic expanded and became part of a larger project funded through the European Union Asylum, Migrations and Integration Fund (AMIF). The EU’s involvement in the project was by providing funds through the AMIF – together with funds from the Italian Ministry of Interior – and to oversee the implementation of the project according to EU’s rules and procedures.

In 2017, the project was further expanded in collaboration with UNICEF to provide assistance to unaccompanied minors on a national scale. It included relief operations in the Central Mediterranean on board of the Italian Coast Guard units, and extensive monitoring of standards in reception centres all over Sicily. Furthermore, the project assisted unaccompanied minors in Italy at the main transit points.

5 – Could you share with us your experience as an active volunteer for Amnesty International, an NGO focused on human rights?

As I mentioned above, I joined Amnesty International (AI) when I was a university student in my hometown. I volunteered with the local group, helping with campaigning, fund-raising and human rights training. It was an amazing experience as it allowed me to gain a deeper level of understanding of human rights violations worldwide, to learn how to campaign, how to conceive effective actions and to advocate for human rights, and it also allowed me to connect with very inspiring people that worked relentlessly to make a difference in this world. Very quickly, I got involved in various campaigning activities at the local level (in my hometown and in my region), I cooperated at the national level with the Italian Section of AI in Rome, and ended up working also for the International Secretariat of AI in London. I remained with Amnesty International for over a decade, until I had to stop because of relocation and work-related reasons. Overall, during my years of activism with AI, I contributed to the organisation in different capacities: as a member of the national Training Network; member of the Board Committee on Human Resources and Membership of the Italian Section; member of the national Committee on Refugees and Immigration issues; member of the Board Committee on International Policy; member of the Italian Delegation to the 2007 International Council Meeting of AI, held in Mexico. I will be forever grateful to AI for everything I learned with the organisation, and for the amazing people and friends I met during those years.

6 – What would you advise to students who aspire to pursue a career in international criminal law?

International criminal law is an increasingly challenging and competitive field. My advice to those wishing to pursue a career in this field would be, first of all, after having completed their legal degree and legal training, to gain experience at the national level (whether that is as a defence lawyer, prosecutor, judge, or solicitor, etc.). I think professional experience and practice in domestic jurisdictions is essential as it prepares well for the challenges that a career in international criminal law presents. Further, recruiters in international tribunals value domestic experience and consider it an asset in candidates.

Second, I would also advise students to acquire some specific knowledge of international criminal law, either through specific graduate or post-graduate courses, master degrees or specialisation/training courses, or through internships in relevant organisations/tribunals.

A combination of domestic practice and field-specific knowledge would make their profile pretty strong and interesting to the eyes of recruiters.

 

Thank you for agreeing to do this interview and for your time.

 

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The EU accession to the European Convention on Human Rights – one step back

Katarzyna Stachyra

It was believed that after entering into force of the Lisbon Treaty the accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) will be obvious. The Lisbon Treaty made accession admissible thanks to granting legal capacity to the EU. What is more, it even imposed obligation on EU to become party to the Convention. Negotiations, which have been conducted since 2010 by the European Commission and the Steering Committee for Human Rights Ad Hoc Negotiation Group, resulted in adoption of the draft agreement on accession[1]. This document was examined by the European Court of Justice (hereinafter: ECJ) and its opinion about compliance with the Treaties, released on 18 December 2014 (C-2/13)[2], is significantly negative. ECJ said that ‘the devil is, however, as so often, in the detail’ and pointed out legal issues which have to be solved in order to access to the Convention. Some of these problems are presented below.

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The Convention and its influence on relation between ECJ and ECHR

After the accession, the Convention will become part of EU law. It means that the EU, namely all of its institutions as well as Member States, will be bound by provisions of the Convention. Therefore, actions of institutions could be controlled according to measures contained in the Convention. In other words, they would be under jurisdiction of the European Court of Human Rights (hereinafter: ECHR). In this light arises serious question concerning relation between ECJ and ECHR. Accession to the Convention will allow ECHR to assess judicial actions of ECJ or to impose interpretation of the law. Firstly, it is worth emphasizing that judicial independence is the most important feature of courts and tribunals. Secondly, as art. 2 of Protocol no 8[3] reads, ‘accession of the Union shall not affect the competences of the Union or the powers of its institutions’. ECJ as one of the EU institutions has its specific competences. Above all, ECJ has exclusive jurisdiction in disputes between Member States or Member States and institutions, related with interpretation or application of the Treaties. Hence ECJ stated, that possible jurisdiction of ECHR in mentioned matters should be distinctly excluded. Otherwise there is evident incompliance with EU law.

Coordination between the Convention and Charter of Fundamental Rights

The Convention and Charter of Fundamental Rights contain a catalogue of rights and freedoms. Despite the similarities between these catalogues, there are still certain differences which occur in provisions, as well as in interpretations given by ECJ and ECHR. Problem of coordination those two legal acts has significant meaning from the perspective of the level of human rights protection. It is necessary to avoid existing two different standards, because it could violate principle of primacy of the EU law. Because the Convention allows states to introduce higher standards than it presents itself it may lead to establishment of larger scope of protection than it is provided by Charter of Fundamental Rights. As a result, there would be a risk that Charter of Fundamental Rights would be ineffective, which would mean undermining the principle of the primacy of the EU law. According to ECJ opinion, agreement on accession shall include provisions which would prevent indicated situation.

Protocol no 16 – threat to the autonomy of the EU law

Problems with autonomy and primacy may occur after entering into force of Protocol no 16 to the Convention. This protocol introduces new function in ECHR system – advisory opinions, which may be given by ECHR at the request of highest courts and tribunals of state parties to the Convention. Generally speaking, advisory opinions may be compared to preliminary ruling given by ECJ, however they are not binding to national courts. Advisory opinions may infringe the autonomy of the procedure of request for preliminary ruling – use of the first solution may lead to resignation from the second one and, as a result, may constitute circumvention of the law. ECJ expressed in its opinion the concern about relation between those two procedures. It is on position that agreement on accession should clearly eliminate uncertainties in the application of those mechanisms.

Problems with control in the Common Foreign and Security Policy

Under provisions of draft agreement on accession, ECHR would be allowed to examine legal acts released in association with the Common Foreign and Security Policy (hereinafter: CFSP). Certainly, this examination would be conducted in the light of respecting fundamental rights. Since ECJ has no jurisdiction in certain matters related with CFSP, which results from EU law, after the accession to the Convention this jurisdiction will be granted to ECHR. ECJ emphasized that organ, which is not institution of EU, will be able to decide whether acts adopted in CFSP are in compliance with fundamental rights. In addition, it demonstrates that agreement does not follow the most important condition of accession, namely preserving the specific characteristics of the Union and Union law.

ECJ’s position – rationality or excessive precaution?

Undoubtedly we are witnesses of unprecedented event – as ECJ stated in opinion – ‘in which an international, supranational organisation — the EU — submits to the control of another international organisation — the Council of Europe — as regards compliance with basic standards of fundamental rights.’ Uniqueness lies in the fact that the EU is not a state but is pursuing to become the party to the Convention which is intended and formulated for states. Therefore there are various issues how to adjust legal mechanisms, suitable for states, for supranational organization. Opinion released by ECJ is very cautious. In certain aspects – too wary, for instance as regards of Protocol no 16. Draft agreement of accession does not contain provision concerning including this protocol in EU legal system – it would be possible in the future. Furthermore, Protocol no 16 has not even entered into force yet. However, general concern of ECJ about preserving features of the EU and its law is understandable. It is true that draft agreement on accession does not deal with all problems mentioned by ECJ. It seems that negative position of ECJ is intended to avoid confusion and uncertainty, which may occur after accession, if indicated issues will not be explained satisfactorily earlier. Problems with accession to the Convention, in the light of resistance against accession and duplication of similar systems of human rights protection, may provoke bold question – whether do we really need EU’s accession to the Convention?

[1]The full text of draft agreement is available on: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Accession/Meeting_reports/47_1(2013)008rev2_EN.pdf
[2]The full text of opinion is available on: http://curia.europa.eu/juris/document/document.jsf?text=&docid=160929&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=145591
[3]Protocol No 8 Relating To Article 6(2) Of The Treaty On European Union On The Accession Of The Union To The European Convention On The Protection Of Human Rights And Fundamental Freedoms.

Dublin II Regulation, readmission and human rights protection – M.S.S. vs Belgium and Greece

Katarzyna Sosnowska

January 2011 European Court of Human Rights form a judgment in the case which is known as M.S.S. vs Belgium and Greece. The applicant was from Afghanistan and had worked for the international forces. He was detained in Greece for a week (also his fingerprints were taken) and after being released he travelled to Belgium where he wanted to seek for asylum. Belgian authorities noticed that he had been already registered in Greece. Under Article 3 of Dublin II Regulation “Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State(…)”[1]. According to this rule, on 15 June 2009 the applicant was transferred back to Greece. Here, as was mentioned in the judgment he “had immediately been placed in detention in a building next to the airport, where he was locked up in a small space with 20 other detainees, had access to the toilets only at the discretion of the guards, was not allowed out into the open air, was given very little to eat and had to sleep on a dirty mattress or on the bare floor[2]. After, he was not even informed that the accommodation for him had been found. M.S.S. made a few attempts to leave Greece again and at the end Greek authorities tried to deport him to Turkey.

According to the Court ruling, both Greece and Belgium breached provisions of the Articles 3 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms. What is relevant, Court stated that there were a significant deficiencies in the Greek authorities’ examination of the M.S.S.’s asylum request.  The risk he faces of being returned (directly or indirectly) to his country of origin without any serious examination of his asylum application and without having access to an effective remedy[3]. The Belgian Government criticised the applicant for not having correctly used the procedure for applying for a stay. That was also undertaken by the Court which pointed out that the cases of applying for asylum or refugee status should be examined individually, with due diligence, case-by-case. Belgium has failed to do that and by that action exposed the applicant on the harmful conditions, knowing that Greece was not fulfilling its obligations under the Geneva Convention.

The M.S.S. case shows that the situation should be examined carefully. It also confirms the constant need to monitor the situation in Member States as well as third countries. As it is expressed in Dublin II Regulation primary responsibility to provide protection remains with the state where the claim is lodged. It does not absolve the other countries involved in the cases from action even if it is not its responsibility under the criteria laid down in the Regulation. The “principle of mutual trust”[4] can no longer be perceived for granted. To make a sufficient basis for internal transfer between EU Member States the implementation of elementary standards of refugees protection should be examined and verified carefully.


[1] Art.3 of Council Regulation No 343/2003 (EC), OJ L 50/1, 25.2.2003.

[2] ECtHR (GC), M.S.S. vs. Belgium and Greece, no. 30696/09, 21 January 2011, para. 34., available at: hudoc.echr.coe.int

[3] Ibidem, para. 321.

[4]  V. Moreno Lax, Dismantling the Dublin System: M.S.S. v Belgium and Greece, available at: http://www.ssrn.com, accessed: April 26, 2013.