Category Archives: ICC

International Justice marches (limps…) on (again): ICC Appeals Chamber reverses stay of proceedings in Lubanga

Posted on October 8, 2010 | Leave a comment

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…

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Is Chad really under an obligation to arrest Bashir?

Posted on July 21, 2010 | 4 comments

The news today has been filled with reports about the visit of President of Sudan, Omar Bashir, to Chad, and calls for Chad, which is a State Party to the ICC to arrest him. Beyond any discussion of the political opportunity of such an act, every commentary seems to take for granted that Chad is under a legal obligation to do so.

CNN has a “Court official” (probably OTP…) on the record saying that:

Chad is legally obliged to arrest Omar al-Bashir and hand him over to the International Criminal Court.

According to Human Rights Watch:

Chad should not flout its obligations to arrest al-Bashir if he enters Chad. 

 Same tune at Amnesty International:

If it were not to arrest him, Chad would violate its obligations under the Rome Statute of the International Criminal Court, which it ratified in November 2006.

 I’m not sure that’s actually true. Sure, the Statute, at Article 86 provides that (my emphasis):

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

 However, “in accordance with the provisions of the Statute”, there is in fact no automatic obligation to cooperate in relation to the execution of an arrest warrant. Indeed, Article 89 provides that the Court must make a request for cooperation to a State. The request must contain specific information outlined in Article 91 (such as a copy of the arrest warrant). Only then does the Statute provide (Article 89(1)) that (my emphasis):

States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

To my knowledge, there hasn’t been such a request.

Second of all, even if the ICC had made a request for cooperation, the fact that Sudan is not a State Party can trigger the application of Article 98(1), according to which:

The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

It’s arguable that Bashir, as an acting head of State, does benefit from diplomatic immunity, in application of the ICJ Arrest Warrant Case (for a discussion of the immunity question in the Bashir case, see here). If that were the case, not only would Chad not be under an obligation to cooperate, but the request itself would be contrary to the Statute.

So, all in all it’s far less obvious than claimed, that Chad is in fact under an automatic obligation to arrest and surrender Bashir. Of course, in a week where the Prosecutor himself has publicly considered that the issuance of an arrest warrant is proof of guilt (See commentaries of this by William Schabas and Kevin John Heller), one stops being surprised by poor legal argumentation…

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Posted in bashir, ICC, immunities

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

Posted on July 14, 2010 | Leave a comment

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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Posted in fair trial, ICC

Bashir and Genocide in Sudan: Second time lucky for the OTP

Posted on July 13, 2010 | Leave a comment

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution’s application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn’t find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere. 
For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the “genocide label” and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.
I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir’s arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention. 
I’m personally a little weary of all those “new” elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide…). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won’t have accepted the jurisdiction of the Court. 
The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law… but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war…

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Posted in bashir, genocide, ICC, immunities

The Lubanga Trial is stayed, the slapstick comedy continues… but isn’t the joke wearing a little thin?

Posted on July 9, 2010 | 1 comment

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…

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Posted in ICC, lubanga, prosecutorial discretion