When is a "Fair Trial" really a "Fair Trial" ?

Commenting on a recent decision by PTC I at the ICC, William Schabas invites comments on the powers of the Chamber in relation to media statements by members of the OTP. In a nuthsell:

The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the lubangatrial.org blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly, the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.’in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public’s understanding of the trial), which tends to bring the Court into disrepute’. It said it would take no further action than to express ‘the strongest disapproval of the content of this interview’ but warned that ‘if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible’.

And the problem as identified by Professor Schabas is as follows:

This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to ‘take appropriate action’ in the case of ‘objectionable public statements’. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week’s decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of ‘intermediaries’. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to ‘appropriate action’ if I make an ‘objectionable public statement’? I am inclined to think that it could stay the proceedings if a third party – such as myself – made an ‘objectionable public statement’ that drastically compromised the fairness of the trial itself, but that it can do no more than that.

On principle, I don’t find it shocking that within its powers to ensure that fair trial requirements are met, a Chamber could exercise control over the conduct of the parties, in, and out of court. However, the key issue here, before dealing with the exact scope of that control, is what do we mean by “fair trial”? In my opinion, any conduct should affect “fair trial” in a strict procedural interpretation. For example, if the OTP was paying defense witnesses not to testify, or using intermediaries that provide false evidence.
This being said, in this decision, I believe they have much too broad an approach to the notion of “fair trial”. Fair trial is to be evaluated within the proceedings, not outside. This is not a trial by jury, where the the members of the jury might be influenced by unbalanced press reports. The Judges at the ICC are professionals that in theory should not be affected by what a party might say in the press. The “public’s understanding of the trial” is not a component of “fair trial”. Indeed, whether the general public gets a correct picture of the proceedings (whatever that means… given that perceptions of a trial will always vary depending on the viewer’s original bias) is none of the judges’ business, even if from a broader perspective, one can only wish that fair reports of the trial be available to the public.

With this in mind, I don’t see anything that affects the fair trial of Lubanga in the interview given. Of course the OTP is going to say that its witnesses are reliable, if not it wouldn’t have chosen them in the first place. For similar reasons, it is not surprising that the OTP will express trust towards its intermediaries. It is the opposite that would be astonishing. And there’s nothing shocking in the OTP expressing its belief that Lubanga is guilty, if not they wouldn’t have initiated the case in the first place. Moreover, nothing in those statements undermine the power of the Chamber to effectively determine whether the the witnesses are reliable, the intermediaries trustworthy and Lubanga innocent or guilty. Each one is within his institutional role.
This doesn’t mean that one cannot regret the rhetorical shortcuts adopted by OTP members, most notably Mr. Ocampo (recall when he compared Bashir reelection to Hitler’s election…). These statements are certainly careless, inappropriate and possibly give a warped image of the ICC, but they are not strictly speaking fair trial issues. If made in Court, these statements could be questioned by the bench, based on basic principles of civility, rather than fair trial requirements. This is what happened in Sierra Leone where David Crane was chastised for referring to “Dante’s inferno” and the “hounds of hell” in one of his opening statements.
As for third parties, given my strict approach to fair trial, I do not believe that the critical blog musings of William Schabas or myself could constitute a violation of fair trial requirements and therefore taken into account for a stay of proceedings. If not, all academic or NGO activity on an ongoing case should come to a stop until the verdict… More generally, given the global media exposure of these trials, having such a broad approach to fair trial as seems to be adopted by the Trial Chamber, would mean that no defendant in an international criminal court could be said to be able to get a fair trial because they are nearly always portrayed as guilty in the press, in clear violation of the presumption of innocence…

In relation to the exact powers of the Chamber if there is a violation of fair trial requirements, I don’t think there is a general rule. It depends on the nature of the violation. For example, in the case of the intermediaries, I believe there is indeed a case to be made that the Chamber has power to order the OTP to provide the names, given its general powers in insuring disclosure of relevant materials for the adequate preparation of the defense case. For others conducts not covered by explicit powers of the Chambers, I think that the only power would indeed be a stay of proceedings until the conduct stops. Disciplinary measures could only be taken by the Chamber in the specific case of the offences against the administration of justice listed in Article 70 of the Statute. In other cases, another body, such as the Presidency or the ASP, would be competent to deal with orders and sanctions. As for statements, given my strict approach to fair trial, I think they would rarely constitute a violation of that right in the first place, but if they did, a stay of proceedings would equally be the only available tool for the Chamber.

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