Notable Cases | Toby Cadman
International Criminal Law
International Criminal Court
Situation in Syria/Jordan:
Two submissions have been filed on behalf of The Guernica Group with the ICC Prosecutor. The first submission argued that just as the Pre-Trial Chamber ruled that the ICC had jurisdiction over the crime of ‘Forced Deportation’ by virtue of Bangladesh’s position as a State Party to the Rome Statute, the same established legal principle could and should be applied to the Situation in the Syrian Arab Republic, given that more than a million civilians had been forcibly deported out of Syria and into neighbouring Jordan. The second submission sought to develop the legal argument as to why the exodus of civilians out of Syria into Jordan constitutes the Crime of Forced Deportation as a Crime Against Humanity for the purposes of the Rome Statute.
A statement from The Guernica Group following the submission is available here, a summary of the filing is available here and a Report by the Syria Justice and Accountability Center.
Situation in Myanmar/Bangladesh:
Guernica 37 was one of the Amicus Curiae who was invited to file submissions on the question and scope of jurisdiction. The Pre-Trial Chamber found that the Court has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, on the basis that although Myanmar is not a State Party to the Rome Statute, Bangladesh is, and therefore, given the finding that an element of the alleged offences occurred within the territory of a State Party, jurisdiction is conferred. In its Amicus Brief, Guernica 37 argued that the Court has jurisdiction for the Crime of Genocide, as the policy of deportation was an essential element of the genocidal intent.
The Amicus brief is available here.
Situation in Libya:
An investigative report was filed with the ICC Prosecutor concerning allegations of War Crimes and Crimes Against Humanity committed by forces under the command of Field Marshal Khalifa Belqasim Haftar (Haftar) of Libya. In February 2011, the United Nations International Commission of Inquiry on Libya, established pursuant to United Nations Human Rights Council Resolution S-15/1 of 25 February 2011, concluded that the Regime of Colonel Muammar Mohammed Abu Minyar al-Qadhafi and its military and paramilitary forces had committed “international crimes, specifically Crimes Against Humanity and War Crimes”.
Media reports on the filing are here and here.
Situation in Venezuela:
Guernica 37 has worked with a group of legal professionals and civil society actors to analyse and potentially advise Venezuelan former prosecutors from the Criminal and Anti-Corruption Investigation Unit who have extracted and collated evidence relating to the political persecutions, and other human rights violations committed by the armed and security forces in the country.
Kosovo Specialist Chambers
Specialist Prosecutor v. Hysni Gucati and Nasim Haradinaj:
Instructed as Specialist Counsel for Mr. Nasim Haradinaj, Vice President of the KLA War Veterans Association, before the Kosovo Specialist Chambers sitting in the Hague. The charges include allegations of offences against the administration of justice, namely intimidation of witnesses, retaliation and violation of secrecy of proceedings
Case details here.
Specialist Prosecutor v. Driton Lajçi:
Instructed as Specialist Counsel for Mr. Driton Lajçi. The Office of the Special Prosecutor of Kosovo, based in the Hague, is conducting investigations into the role of the Office of the Government of Kosovo (in the Ministry of Justice) for the legal protection of potential defendants at the Specialised Chambers, as well as the head of this office, Mr. Driton Lajçi, for possible obstruction of justice, including allegations of violation of articles of the Criminal Code of Kosovo, which relate to obstruction of official evidence or procedures and intimidation during the proceedings.
Bangladesh International Crimes Tribunal
The State v. Azam & Others
Instructed as Defence Counsel for senior members of a political opposition party on charges of crimes against humanity and genocide arising out of the 1971 War of Liberation. The proceedings before the national tribunal established pursuant to a highly flawed 1973 domestic law have been characterised as a flagrant denial of justice.
Transcript of hearing before the U.S. Congress Tom Lantos Human Rights Commission here.
Opinion Piece by Professor Beth Van Schaack on the trials here.
Public International Law
International Court of Justice
The Netherlands v. the Syrian Arab Republic
Instructed as Counsel to assist the Government of the Netherlands in an important step to ensure that impunity is brought to an end and that there is justice and accountability for all victims of torture in the Syrian Arab Republic. The Government of the Netherlands has taken a critically important first step in addressing the Syrian State’s failure to respect its obligations under international treaty law for widespread human rights violations, including acts of torture prohibited by the Convention Against Torture, a treaty to which Syria is a party. Guernica 37 is working alongside the Government of the Netherlands in the collection of evidence and ensuring the input from Syrian victims.
JusticeInfo report here.
Dua and Dalal al-Showaiki:
The two sisters Dua and Dalal fled Saudi Arabia as a result of forced marriage, sexual abuse and strict guardianship laws. Whilst living in Saudi Arabia, they claimed that they were beaten frequently, sexually abused by male relatives. They have, since their escape from oppression, lived in secret in Turkey whilst seeking asylum in another country, fearing that they will be kidnapped and forcibly returned to Saudi Arabia by their father, and thus compelled to continue to obey his demands. ‘Vice News’ has covered this story, undertaking extensive interviews with the sisters, and their Barrister, Mr. Toby Cadman.
HBO Vice Documentary here.
Extradition
Government of Montenegro v. Duško Knežević:
Thanks to the Guernica Team, Interpol announced – during its 113th Session of the Commission for Control of Interpol’s Files (CCF) – their decision to withdraw the Red Notice warrant against Dr. Knežević issued upon the request of the National Criminal Bureau of Montenegro. Three indictments have been filed against Dr. Knežević in Montenegro – organising a criminal group, money laundering and abuse of office. On 19 September 2019, Dr. Knežević voluntarily attended Westminster Magistrates’ Court in London for the commencement of extradition proceedings pursuant to an extradition request issued by the Montenegrin government.
United States of America v. Roger Alan Giese:
On 14 June 2018, the High Court have ruled that there is no bar to the extradition of Mr. Roger Giese to the United States. Mr. Giese was wanted for trial in California, following allegations that he sexually abused a teenage boy. The High Court accepted the arguments of Counsel instructed by the Crown Prosecution Service for the United States, Mr. Toby Cadman, in that the written assurance offered by the United States was one that could be relied upon, and therefore Mr. Giese would not be subjected to Civil Commitment (a form of indeterminate confinement with treatment), and further, that appropriate procedures were in place within the US prison system to ensure that Mr. Giese’s rights would be protected.
(Also instructed in the connected cases of USA v. Mitchell, USA v. Brennan, USA v. Bowen, USA v. Leach)
Media reporting.
International Commercial Law and Arbitration
Aersale 27469 Aviation Ltd & Another v. Abdul Wahab & Another:
Instructed as Counsel in a multi-million pound and multi-jurisdiction commercial dispute in the Commercial Court in London.
Víctor Pey Casado and President Allende Foundation v. Republic of Chile:
Instructed as Counsel in the longest dispute in the history of the International Centre for Settlement of Investment Disputes (ICSID). The award came one month after an UNCITRAL tribunal in a parallel case declined to hear the claimants’ claims, unanimously holding that it lacked jurisdiction. The dispute in Pey Casado, which arose from the confiscation of assets of two Chilean companies following the coup d’état led by General Augusto Pinochet in 1973, came to an end after 22 years of arbitration proceedings. The Resubmission Committee reminded the arbitration community of the limited grounds on which an ICSID award can be annulled and the importance of the res judicata principle which aims to preclude attempts to re-adjudicate a resolved dispute in the context of ICSID dispute resolution.
Case Report here.
Whistleblower Protection
Jonathan Taylor
Instructed as Counsel for Jonathan Taylor who has called on the UK Government to intervene and prevent his extradition to Monaco. Mr. Taylor from Southampton was arrested at Dubrovnik Airport on 30 July 2020. He was travelling to Croatia for a week’s holiday with his wife and three teenage children. He was informed he was the subject of an Interpol red notice at the request of the public prosecutor in Monaco on charges of “bribery and corruption”. In 2014, Mr Taylor blew the whistle on a $275 million international network of bribes paid by Monaco-based Dutch oil platform company SBM Offshore. He has subsequently provided evidence to the UK Serious Fraud Office, investigators in Brazil and the Netherlands as well as the FBI and the Department of Justice in the United States. This has resulted in fines to SBM Offshore of over $800 million. However, in contrast to other countries, the authorities in Monaco have chosen to pursue the whistleblower rather than those responsible for the bribes.
Media reporting here and here.
Chelsea Manning
Contributed to the research for the Amicus Curiae brief of the Justice Initiative. Sentenced in 2013 after admitting to breaking the law by giving hundreds of thousands of classified documents to WikiLeaks, Chelsea Manning has been detained for seven years, making her the longest-serving whistle-blower in United States history. As a transgender woman who had her treatment delayed and twice attempted suicide in prison, the decision to commute her sentence saved her life.
Open Society Justice Initiative Report.
Interpol
Joseph Assad and Mr. Aron Shaviv v. Government of Montenegro
Mr. Joseph Assad is a U.S. National, former counterterrorism officer in the United States Government and human rights and religious freedom activist who was previously instrumental in securing the release of more than one hundred Iraqi Christian refugees from ISIS in 2015. Mr. Assad was employed as a security expert to a British-Israeli political strategist, Mr. Aron Shaviv, who was also subject to an Interpol Red Notice which has also been withdrawn by Interpol. The Montenegrin prosecution claimed that the real purpose of hiring Mr. Assad was to help extract the coup plotters after election day.
Duško Knežević v. Government of Montenegro
Instructed as Counsel to challenge the Interpol Red Notice as politically motivated. Challenge upheld and warrant dismissed.
Media reporting here.
United Nations Special Procedures
Christian Michel v. Government of India and Government of the United Arab Emirates (2021)
Christian Michel, a British national, was unlawfully handed over to India by authorities in Dubai in a move reminiscent of rendition. It adds that the Italian high court had reportedly earlier rejected his involvement in the scandal due to lack of evidence. Instructed as Counsel for Mr. Michel, who is currently in jail in India for his alleged role in corruption in the sale of AgustaWestland helicopters in 2010, filed an “urgent communication” with UN bodies, seeking their intervention to secure his release.
On 26 February 2020, the UN Working Group on Arbitrary Detention (WGAD) published Opinion No.88/2020 which ruled that Christian Michel, a British national, is being arbitrarily detained by the Republic of India, in contravention of both the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights. In turn, the UN WGAD recommended that the appropriate remedy would be for the Government of India to release Christian Michel immediately and for both Governments to accord him an enforceable right to compensation and other reparations, in accordance with international law.
Media report.
Sheikha Latifa bint Mohammed bin Rashid al Makoum v. Government of the United Arab Emirates (2019)
Instructed as Counsel before the UN Working Group on Enforced or Involuntary Disappearance from 2018 - 2019, following the unlawful abduction, arbitrary detention and torture of Sheikha Latifa Mohammed Bin Rashid Al Maktoum, Hervé Jean Pierre Jaubert, and Tiina Jauhiainen, to file an urgent complaint with the UN Special Procedures Branch, specifically the UN Working Group on Enforced or Involuntary Disappearance, the UN Working Group on Arbitrary Detention, the UN Special Rapporteur on Torture, Inhumane and Degrading Treatment and the UN Office of the High Commissioner for Human Rights requesting their urgent and immediate intervention.
Guernica Statement here.
President Pervez Musharraf v. Government of Pakistan (2014)
Instructed as Counsel for the former President in relation to charges for treason brought by the Government of Nawaz Sharif seeking the intervention of the UN Special Procedures.
UN Special Procedures Report here.
Azam & Others v. Government of Bangladesh (2012)
Successfully brought proceedings before the UN Special Procedures in respect of Professor Ghulam Azam and five others resulting in a ruling that they were detained arbitrarily and their subsequent summarily executed in violation of international law.
UN Special Procedures Report here.
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