Recent weeks have been quite busy and I’ve had no time to blog, despite some important decisions coming out, such as the Appeals Judgment in the Chui case or the Appeal Judgment on reparations in Lubanga.
In what promises to be my shortest post ever, I still wanted to put out there a couple of thoughts on the Chui Judgment.
It confirms the acquittal, but Judges Tarfusser and Trendafilova provide an interesting dissent with their take on the application of the standard of proof and the issue of the supposed violations of the fair trial rights of the Prosecution. They raise important issues which continue to spark debate in the practice of the Court.
On the question of the assessment of evidence, it is the classical question of what it means to assess the evidence “as a whole”, the Trial Chamber being criticised by the dissenters for having excluded some evidence in isolation of other evidence. It’s a difficult question, but personally I’ve always been skeptical of the “overall assessment” approach, which is a possible way for judges to avoid discussing the credibility of individual pieces of evidence and put forward a general impressionist understanding of the case, which is then difficult to challenges.
On the question of the fair trial rights of the Prosecution, I continue to think that the concept makes no sense. The Prosecution represents the institution and cannot technically have rights. Rights are there for the accused, not for the prosecuting authority. Ultimately, this might of course just be a question of semantics, in the sense that there exist procedural guarantees in-built in the trial process which can benefit both Prosecution and Defense. But I do think that conceptually, it is important to be very precise on the langage used.
For me it is a much more simple formula: are you a “person” before the law or are you representing a “person” before the law? If no, then you do not have any legal personality to which “rights” can attach. So unless the OTP has its own independent legal personality (separate from the ICC) or can be seen as representing a legal “person”, how can it be that the OTP is capable of possessing rights of its own?
Thank you Sancho, that’s a very incisive and logical point!
Of course prosecutors of international tribunals have often claimed to “represent” victims, but that is both legally and conceptually inaccurate.