Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it’s "definitely" not going to happen, says the President of the ASP.

I ended my previous post on the possible next steps after the Appeals Chamber Judgment reversing the stay of proceedings in the Lubanga case. I would like to make a couple of follow-up comments on this point.

For one, it is likely that contempt proceedings be initiated by the Court in accordance with article 71 of the Statute. In accordance to Rule 171 of the RPE, the Chamber can pronounce the removal from the proceedings of a person who has failed to comply with an order of the Court, or even, if the person is an official of the Court, order an interdiction to exercise their function for a period up to 30 days. And of course, they can fine the person as well.
I still don’t see how this is linked to the opportunity of staying the proceedings or not. If the prosecutor were being accused of bribing witnesses (which is not far removed from the underlying accusations against the OTP intermediaries in this case…), would the Chamber have an obligation to keep the trial going while it initiated proceedings under 71, even if it means that corrupt witnesses are testifying? It wouldn’t make sense. You have to make sure that the underlying cause justifying the stay has ceased to exist before you can resume the trial.

Another (independent) avenue is action by the ASP. This could lead to disciplinary measures (Article 47) which may be (very scary) “(a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned” (RPE, Rule 32). Or, if the conduct is sufficiently serious, the ASP can vote by an absolute majority of States a removal from office (Article 46). There is no middle-ground between the two, such as a temporary suspension. However, this oversight is partly compensated by the fact that the Chamber can suspend the person temporarily. It should also be pointed out that the proceedings are not initiated directly by the ASP, but should be triggered through a formal complaint to the Presidency, or proprio motu by the Presidency (Rule 26 RPE).

In relation to the latter possible proceedings at the ASP, the Asser Institute hosted a lecture by Ambassador Wenaweser last night, where the President of the ASP shared some of his thoughts on the Kampala Conference and more generally on what lies ahead for the ICC. In response to a comment he made on strenghtening the role of the ASP, I asked him if he had any thoughts on the ASP using its powers to sanction or even remove Prosecutor Ocampo. He was fairly evasive on the ASP looking into things more generally, but his answer was crystal clear on the removal aspect: this will definitely not happen. Of course, this is unsurprising politically. But this statement is problematic, both substantially and procedurally.

From a substantial point of view, you have to wonder what the Prosecutor must do to be removed, if his conduct in the Lubanga case is not sufficient to at least consider the possibility. In Lubanga alone, he has voluntarily misrepresented the Statute not to communicate UN documents to the defense. He has refused to obey Court orders. Also, we mustn’t forget the underlying situation behind the recent current events, which have taken a backseat to the procedural drama of the stay of proceedings : his intermediaries are alleged to have interfered with witnesses, which, if established, would be a massive breach of the fairness of the proceedings.

Beyond this substantial aspect, it is problematic that the President of the ASP would express a preconceived opinion about the possible outcome of a formal procedure provided for by the Statute and the Rules of Procedure and Evidence. This is just as inappropriate as a judge saying in advance that a defendant will go free before his hypothetical trial takes place.

This is a sign of the general impunity for the organs of international tribunals, which is ironic given that their overarching mandate is specifically to fight impunity. Judges have been caught sleeping. Prosecutors have been accused of paying witnesses. Decisions have been taken that clearly undermine the rights of the defense on a daily basis, both subanstially (for example new crimes being added through the haphazard use of customary law) and procedurally (for example the very lax rules on the admission of evidence). All these events would constitute serious miscarriages of justice by any normal standard, but end up having little to no consequences in international tribunals under the guise of the superior moral objective of these institutions. Of course, I’m not equating some of the procedural improprieties that I mention previously, to the serious crimes alledgedly committed by the defendants. But the underlying principle behind these tribunals should apply in their daily working: if there is no accountability, there cannot be justice.

To come back to the specific issue at hand, one could argue that it wouldn’t look good and would be a sign of weakness for the ICC to remove (or sanction) its Prosecutor. But for me, this is a short-sighted analysis. On the long-run, the legitimacy of the Court will depend on its capacity to publicize its successes, but also to accept the consequences of its failures. It is a sign of the maturity of an institution that it can acknowledge its mistakes, rather than sweep them under the carpet, as it keeps doing in the Lubanga case. All they will achieve is to create this increasing mound of dust over which Justice, as the long-term goal of the institution, can only stumble eventually.

One response to “Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it’s "definitely" not going to happen, says the President of the ASP.

  1. Pingback: EJIL: Talk! – Some Reactions to Douglas Guilfoyle’s Posts on the Troubles of the ICC

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