Yesterday, Trial Chamber I of the International Criminal Court ordered another stay of proceedings in the Lubanga case because the Prosecutor is consistently refusing to apply orders made by the Court to disclose to the Defense the identity of an victims intermediary, following claims of misconduct. The Chamber had found that there was no security risk for the intermediary in the event of a partial disclosure to selected persons, confirmed by the Victims and Witnesses Unit. Despite this, the Prosecutor argued that:
The Prosecution is sensitive to its obligation to comply with the Chamber’s instructions. However, it also has an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk. The Prosecutor accordingly has made a determination that the Prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office. This is not a challenge to the authority of the Chamber, it is instead a reflection of the Prosecution’s own legal duty under the Statute.
To which the Chamber answered:
27. No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings. It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary.
28. The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.
As a consequence:
31. Therefore, the Prosecutor has elected to act unilaterally in the present circumstances, and he declines to be “checked” by the Chamber. In these overall circumstances, it is necessary to stay these proceedings as an abuse of the process of the Court because of the material non-compliance with the Chamber’s orders of 7 July 2010, and more generally, because of the Prosecutor’s clearly evinced intention not to implement the Chamber’s orders that are made in an Article 68 context, if he considers they conflict with his interpretation of the prosecution’s other obligations. Whilst these circumstances endure, the fair trial of the accused is no longer possible, and justice cannot be done, not least because the judges will have lost control of a significant aspect of the trial proceedings as provided under the Rome Statute framework.
This is not the first time that the proceedings are slowed down due to prosecutorial delay. Some years ago, he had failed to disclose evidence obtained through the UN, which had led to a stay of proceedings, and even a decision on the release of Lubanga (which was of course overturned on appeal). The Prosecutor had grudgingly complied with the order at the time, but this time clearly claims that he would be under a Statutory obligation not to comply.
The Chamber’s irritation with the Prosecutor is apparently reaching new levels, and it is interesting that it evokes the possibility of applying Article 71 of the Statute, which provides that
“the Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence.”
The possible sanction, according to the RPE (rule 171), are up to 30 days of removal from the proceedings and even, if the person is an official of the Court, up to 30 days of interdiction of exercising their function before the Court. In the unlikely event that the Chamber did apply this to Mr. Ocampo, he could swap stories with Garzon on the scandalous limitations to judicial independence for those untiring defenders of universal rights… But it would be unfair to put all the blame on the Prosecutor for the delays in the Lubanga Trial. The judges, with the Requalification of Charges fiasco, also have contributed to turning this first ICC Trial in a textbook case of poor judicial management.
Indeed, beyond this case, is highlighted once again the difficult interaction between the Prosecutor and the Chambers, and the continuing struggle for “power” over the proceedings, which has not failed to come up at every step of the proceedings, whether at the pre-investigative phase, when the PTCs tried to force OTP decisions in CAR and Sudan, in the investigative phase, with the issue of victim participation, in the case selection, with the prosecution wrestling full control over gravity from spineless chambers, and now in the trial phase. It’s difficult to know if the problem is structural (multiplying institutions with more, and therefore conflicting powers), or personal, due to the particular approach adopted by the OTP. But if it does last, it can only end badly, for the defendants, for victims, for the long-term legitimacy of the Court, and ultimately for the credibility of international justice…