In July, Trial Chamber I ordered a stay of proceedings in the Lubanga case because the OTP was refusing to comply with an order to disclose the name of an intermediary to the defense. As I related at the time, the TC considered that it had lost control over its capacity to insure the fairness of the proceedings if the OTP could decide unilaterally to not comply with an order of the Court. A few days later it ordered the release of Lubanga.
The Appeals Chamber just issued its Judgment on the Prosecutor’s appeal, and the result is unfortunately not surprising. Once again the AC recognises that the OTP has violated its obligations under the Statute… but there is no immediate consequences and Lubanga remains in jail (see separate Judgment on that)!
More specifically, the OTP had raised three issues.
The first one was that the OTP was under an autonomous duty to protect witnesses and should be able to not comply with a TC order, should it consider that it would violate this autonomous duty. The AC rightly recalled that orders of the TC are binding on all the parties until changed or suspended by the AC.
The second related issue was that the burden to insure fair trial was a shared one between the Court’s organs, and that in case of contradiction between OTP and TC, there should be a coordination of the two until accepted adjustments are reached. On this, the AC affirmed that the the TC is the ultimate guardian of fair trial and that the OTP cannot supplant TC orders. Any conflict between the two should be resolved in favour of the TC. I of course agree with the AC and I find it a little shocking that the Prosecutor, who has so often shown his attachment to fairness by, for example, publicly misrepresenting Court decisions to imply that the issuance of an arrest warrant is tantamount to a finding of guilt, as in the Bashir case, should have the chutzpah to claim that the duty to insure the fairness of the proceedings also rests on his office…
Finally, the OTP argued that the stay of proceedings was a “premature and excessive” remedy and that the TC could have used its powers under article 70(1) to punish the Prosecutor and find alternative ways to compensate Lubanga. The AC agreed with the TC that the conduct of the Prosecutor, who claimed that he could decide not to implement a Court order based on his own interpretation of the Statute, could indeed constitute a grave enough situation where it would be impossible to insure a fair trial and could therefore justify a stay of proceedings. HOWEVER (of course, however…), the TC erred in concluding that it had lost control over the trial in this specific instance. It could have used Article 71 and impose sanctions on the Prosecutor to try and obtain compliance BEFORE ordering the stay of proceedings. The decision of the TC is consequently reversed. As a result, the decision to release Lubanga is also reversed, and the AC considered that it was not appropriate to make a finding on whether the Prosecutor’s actions constituted an “inexcusable delay” that might justify release under Article 60(4) of the Statute.
So, as usual, the Appeals Chamber is entirely predictable in his reasoning, ultimately not wanting to jeopardize the ICC’s first trial too much, despite the Prosecutor’s continued best efforts to sabotage it. Although it is disappointing that the Prosecutor is once again given a chance to repair the damage, rather than reaping the consequences of what he sowed, there is some satisfaction to be found in the clear slap of the wrist received by the OTP for its conduct. I do have an issue with the reasoning of the Court on the last point raised by the Prosecutor. I’m not sure I see the link between the order of a stay of proceedings and the possible sanctions under Article 70(1) and 71. Indeed, whether or not sanctions are possible, the fact remains that the official position of the OTP is still that he doesn’t have to comply with TC decisions and that is the basis for the stay of proceedings. Until that position changes, whether through a voluntary change of mind, or sanctions, the trial cannot go on and the stay is justified in my opinion.
In any case, the next step is twofold. First, the TC should definitely initiate proceedings under 70(1) and 71 for offences against the administration of justice, which could even justify, according to KJH at Opinio Juris, his removal by the ASP. Second, the defense should file a new motion under article 60(3) to obtain Lubanga’s release. If this doesn’t constitute “inexcusable delay” on the part of the Prosecutor, I don’t know what does. Until then, international justice marches (limps…) on…