'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:

► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.

► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.

► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.

Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

Breaking News: The OTP Prosecutor Dodges Another Bullet

The ICC Appeals Chamber, with Judge Sang-Hyun Song (Korea) presiding (above right)), ruled today that Thomas Lubanga Dyilo (above left) should not be released on account of the prosecutor's failure to comply with a court order to reveal the identity of an informant ("intermediary 143").

If you recall, on July 8, 2010, a Trial Chamber ordered a stay of the proceedings; a week later, it ordered the defendant's release. (See our prior coverage here & here).

Judge Song ruled today that while it was undisputed that the Prosecutor did not comply with a court order, releasing the defendant was not the appropriate remedy. Rather, the Trial Chamber should first impose sanctions on the Prosecutor to bring about compliance. He explained:

Sanctions are a key tool for Chambers to maintain control of proceedings within the trial framework and to safeguard a fair trial without having to have recourse to the drastic remedy of staying proceedings.

The full opinion is available here.

Outsourcing Investigations: The ICC and Intermediaries

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.
What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.
In my recent article, Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.
On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.
But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.
Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:
► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or
► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.
By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

Abuse of process & the ICC trial in Lubanga

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

As is well known to readers of this blog, the first trial of the International Criminal Court, respecting charges that Congolese rebel leader Thomas Lubanga Dyilo (left) had recruited child soldiers, was delayed back in 2008 because the Prosecutor’s failure to disclose exculpatory materials rendered the fair trial of the accused impossible. Late in that year a resolution was reached, and the ICC trial commenced in January 2009. (photo credit)
Difficulties in the proceedings did not, however, end.
To the contrary, the first prosecution witness raised eyebrows and paved the way for what was to become the singlemost controversial issue in the trial to date: the pretrial conduct of 'intermediaries', non-ICC employees who interviewed potential witnesses in the field on behalf of the Prosecutor.
The first witness testified that his initial statement was untrue and that he had been trained what to say by one of the prosecution intermediaries. This testimony later was recanted. But as summarised in the Decision on Intermediaries (Trial Chamber I, 15 May 2010), several later witnesses provided similar accounts of promises in exchange for giving fabricated accounts of having served as child soldiers. In that decision, the Chamber ordered the disclosure of further details on some intermediaries who were already known to the Prosecutor. Crucially, the disclosure of one intermediary, P-143, was ordered, pending protective measures.
The P-143 disclosure order-- and the issues it raises in the context of the "abuse of process" doctrine that has emerged out of the jurisprudence of the ad hoc international criminal tribunals -- is the crux of this post.
Before discussing the P-143 order further, however, it is important to note another ruling, Decision on the press interview with Ms Le Fraper du Hellen, issued on the same date. In that ruling, Trial Chamber I took serious issue with an interview in which a member of the prosecution team inter alia insinuated that the accused, Lubanga, had intimidated witnesses while they testified. The Chamber, which comprises Judges Adrian Fulford (Britain) (far right), Elizabeth Odio Benito (Costa Rica) (middle right), and René Blattmann (Bolivia) (near right), said that the remark by the interviewee

involved a clear imputation against the judges.

The Chamber further held that the interviewee had “seriously intruded” on the role of the Chamber, in a way that prejudged the outcomes of the abuse of process issue and the trial itself.

The Press Interview decision is significant in that it points to the emerging pattern of frustration over the conduct of the prosecution. An apex was reached on 8 July, when Trial Chamber I granted another stay of proceedings on account of the Prosecutor's failure to comply with the Decision on Intermediaries.

The Chamber based this stay on two grounds:

► Disclosure of P-143 had not been carried out as ordered, even though the ICC Victims and Witnesses Unit had expressed confidence that the limited disclosure agreement reached would protect the safety of P-143; and

► It appeared that the Prosecutor was operating in accordance with his own interpretation of the Rome Statute. The Prosecutor, Trial Chamber I underscored,

declines to be 'checked' by the Chamber.

Whether the Prosecutor’s delay in following orders stands as an abuse of process in and of itself is debatable. A stay of proceedings stemming from an abuse generally only stems from the most exceptional of circumstances, and specifically for prosecutorial misconduct, when a court is convinced that a suitable caution could not cure the prejudice. It is notable that the current stay arose not from an abuse of process motion from the defence, but from the Chamber itself, as a Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU.
Speaking for the trial panel, Judge Fulford further had indicated that, pursuant to Article 71 of the ICC Statute, Trial Chamber I would consider sanctioning the Prosecutor at some later date:

'The Prosecutor has failed to implement two of the Chamber's orders; those of 7 July, 2010. For the reasons set out in the decision imposing the stay, this constituted a deliberate and in our judgment, wholly unjustified refusal to comply with the directions of the Court. ... [However, i]t is fair that the issue of sanctions should await the outcome of the appeal.'

Despite the stay, the accused remains in custody. At July's end, citing a risk that the defendant might flee, the ICC Appeals Chamber suspended an order to release Lubanga that Trial Chamber I had issued mid-month.

Meanwhile, developments in Lubanga are beginning to affect another case arising out of the ICC's Situation in Democratic Republic of the Congo.
In the background to the drama of the Lubanga stay, defendants in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui have continued to express their discontent, asserting that they are affected by the same issue of intermediaries. Accordingly Trial Chamber II, in its mid-July Ordonnance urgente relative à la mise en oeuvre de mesures de protection, ordered that the Victims and Witnesses Unit provide a report on the safety situation of intermediary P-143, the central figure in the Lubanga stay. It may be presumed that the Unit's confidential report will reiterate its assertion in Lubanga that the limited disclosure, as ordered, would not place P-143 under threat. If so, stays of proceedings -- as well as consideration of prosecutorial misconduct -- may be forthcoming in the cases against Katanga (near left) and Ngudjolo (far left).

Whether the most recent finding of Trial Chamber I with respect to abuse of process in Lubanga will be upheld on appeal remains to be seen.

In 2008, the Chamber lifted its stay of proceedings at the point that the conditions of abuse no longer existed, due to the Prosecutor's assurances that he would disclose the material he had previously failed to reveal. Regarding the present situation, if the Prosecutor offered finally to release the identity of P-143 and promised to comply unhesitatingly with all orders of the Chamber, the stay could very well be lifted, and the trial would proceed.
If this were to happen, the Court would then have to examine what is, in my view, the real issue at hand. The real questions concern the intermediaries:
► Whether the intermediaries in fact were involved in encouraging false witness testimony; and
► If yes, whether the Prosecutor knew or should have known about this.
If both points are answered in the affirmative, and another stay is therefore granted, it is difficult to imagine how the abuse of process could be remedied. The prosecution's case is closed, and all of its witnesses have been heard. The result in such a scenario could very well be “third time lucky” -- permanent release for Lubanga.

Senier on Lubanga

Kudos to IntLawGrrl Amy Senier!

Amy (left) just published the ASIL Insight on a case before the International Criminal Court; the commentary's entitled "The ICC Appeals Chamber Judgment on the Legal Characterization of the Facts in Prosecutor v. Lubanga." Her final thought:

[T]he Prosecutor can rest assured that his authority to charge individuals before the ICC remains intact.

You can read from beginning to end of Amy's insightful Insight here.

The Interface of Two Principles: Complementarity & Ne bis in idem

(My thanks to IntLawGrrls for the opportunity to guest post.)

As many previous posts have commented, the International Criminal Court is founded on a principle of “complementarity.” This means that the ICC is a backup or default system of justice, complementary to national jurisdictions. The basic premise is that the ICC ordinarily will not take cases that are adjudicated in national courts.
One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the state’s choice by prosecuting the same acts under the ICC statute. (See, e.g., Michael A. Newton, "The Complementarity Conundrum: Are We Watching Evolution or Evisceration," forthcoming in the Santa Clara Journal of International Law.) The primary question is this:

What happens if a state chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes?

Suppose, for example, that a state is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC, or could there be a prosecution in the ICC for crimes against humanity of murder?
Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. As set forth in Article 17 of the ICC Statute, a case is not admissible in the ICC if a state with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision, and to the ne bis in idem bar, if the state prosecution was a “sham” trial aimed at shielding the accused from responsibility, or if it was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice.
In a recent paper for a panel on the ICC and complementarity at a symposium on the future of international criminal justice at Santa Clara School of Law -- moderated by Santa Clara Law Professor and IntLawGrrl Beth Van Schaack -- I focused on the issue of cases already adjudicated in national courts and the impact of the ne bis in idem principle on complementarity.
(For an excellent treatment of complementarity and admissibility issues from the same symposium, see the article by IntLawGrrl guest/alumna Linda M. Keller, "The Practice of the International Criminal Court: Comments on 'Complementarity in Crisis,'" also forthcoming in Santa Clara's international law journal.)
The design of the ne bis in idem principle in the ICC statute is highly protective of state prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, both of which permit greater control by the international tribunal than exists with the ICC. The definitions chosen for ne bis in idem in the ICC Statute foster the priority of States in initially prosecuting crimes, give states great leeway to prosecute after an ICC prosecution, and greatly limit the ability of the ICC to prosecute after a state adjudication of the facts. The application of the ne bis in idem provision is not settled, however. As detailed in my own forthcoming article arising out of the Santa Clara symposium, the ICC has yet to interpret the provision, although the Lubanga, and the Katanga and Ngudjolo cases have raised related issues that were ultimately rejected or abandoned.
A broad interpretation of ne bis in idem -- one that favors state prosecutions over ICC prosecutions -- would be more consistent with the language of the statute and the underlying principle of complementarity. How can we tell that the ICC ne bis in idem provision is designed to give great deference to state prosecutions? Ne bis in idem is commonly stated by reference to the text of Article 14(7) of the International Covenant on Civil and Political Rights, which states:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

One of the most common variations in drafting is the choice of defining “offense” as “conduct” or as “crime.” This simple variation in language carries enormous consequences. “Conduct” is construed broadly, while “crime” is construed narrowly. By means of Articles 17(1)(c) and 20 of the ICC Statute, the drafters at Rome chose to bar the ICC from conducting a subsequent prosecution if the same “conduct” had already been adjudicated in a State court system.
If we apply this to our initial question of a state prosecution of murder when the charge could have been a crime against humanity, the most likely result is that the murder prosecution would preclude an ICC prosecution for a more serious charge based on the same underlying “conduct.”
The ICC provisions are in stark contrast to the ne bis in idem provisions in Article 10(2)(a) of the ICTY Statute and Article 9(2)(a) of the ICTR Statute, both of which explicitly allow subsequent prosecution in the international tribunals if the State has prosecuted only for an “ordinary” crime. Because murder would be viewed as an ordinary crime in contrast to a crime against humanity, the ICTY and ICTR could go forward with a subsequent prosecution, but the ICC would be barred from doing so. In this way, states are given significant control over whether they prosecute a case or whether the ICC prosecutes it.
This is not to say that the extensive deference to State prosecutions is necessarily the best balance between national and international prosecutions. The deferential approach will potentially preempt ICC jurisdiction in cases in which one might argue that an international prosecution based on more serious crimes would result in greater justice. Significantly for the accused, the state-protective approach of the ICC Statute may result in multiple prosecutions for the same conduct. These concerns are not inconsequential, and deserve consideration from a policy and drafting perspective. With regard, however, to a concern that the ICC will minimize or override a state’s choice of what to prosecute, the ICC ne bis in idem provisions, as presently drafted, are highly protective, rather than preemptive, both of state prerogatives and of the principle of complementarity.

In Prosecutor v. Bemba, disturbing ICC decisions on gender-based crime

(Our thanks to IntLawGrrls for the opportunity to contribute this guest post)

Rulings by Pre-Trial Chamber II of the International Criminal Court in the case of Jean-Pierre Bemba Gombo (left) present a worrying development in the prosecution of gender-based crimes.
Twice now that Pre-Trial Chamber has refused to allow the Prosecutor to bring multiple charges of sexual violence to address the full range of harms experienced by victims of rape. The first refusal occurred in its June 15 decision confirming the charges against Bemba (prior IntLawGrrls posts); its second, in its recent decision to deny the Prosecutor’s request for appeal.
At the heart of the Pre-Trial Chamber’s reasoning is the idea that two charges sought by the Prosecutor to address crimes of sexual violence — torture and outrages upon personal dignity — are “in essence” the same as the single charge of rape. Such reasoning fails to appreciate that the elements of torture and outrages were drafted to capture harm distinct from the penetrative act of rape and to address different policy goals. This reasoning:
► minimizes the harm, impact, and purpose of the rapes suffered by the victims of these particular crimes;
► contravene a decade of jurisprudence by the ad hoc tribunals; and
► ignores the various provisions in the Rome Statute of the ICC that allow for the prosecution of sexual violence; the statute thus recognizes that gender-based violence, like other crimes, can be charged cumulatively to address different harms arising from the same criminal acts.
In its June 15 ruling, the Pre-Trial Chamber had confirmed charges against Bemba, including charges of rape as a war crime and crime against humanity. (Bemba, alleged President and Commander in Chief of the Mouvement de libération du Congo, was originally charged with eight counts of war crimes and crimes against humanity that Mouvement members committed in the Central African Republic in 2002-2003; the attacks included rapes perpetrated on a mass scale which, the Prosecutor alleged, were committed with such extreme violence and cruelty so as to amount to torture.)
However, the Chamber declined to confirm three counts that were also based on acts of sexual violence: torture as a crime against humanity, torture as a war crime, and outrages upon personal dignity. These separate charges of torture and outrages address, respectively, the pain and suffering experienced by the rape victims and their family members, as well as the victims’ humiliating and degrading treatment from the public and intra-family nature of the rape acts.
In addition to finding the Prosecutor had not provided sufficient notice to the Defence of the material basis for the charges other than rape, the Chamber reasoned that the counts of torture and outrages were “fully subsumed by the counts of rape.” In the view of the Chamber, these charges could therefore not be confirmed because they lacked a distinct element to the charge of rape; to allow them to go forward would be “detrimental to the rights of the Defence” because the Defence would have to confront “all possible characterizations.” Noting that Regulation 55 of the Regulations of the Court allows the Trial Chamber to modify the legal characterization of the facts, the Pre-Trial Chamber stated that the issue could be rectified at a later stage.
The Prosecutor submitted a request for leave to appeal the Chamber’s dismissal of the torture and outrages charges. Soon after, our human rights organization, the Women’s Initiatives for Gender Justice, requested, and was granted, leave to file an amicus curiae brief with the Court on the issue of cumulative charging and the rights of the accused.
Just a few weeks ago, on September 18, the Chamber issued its most recent decision, in which it refused to grant the Prosecutor’s request for leave to appeal, and reiterated that the facts presented by the Prosecutor “were in essence constitutive elements of force or coercion in the crime of rape, characterizing this crime, in the first place, as an act of rape.”
Written by Patricia Viseur Sellers (left), former Legal Advisor for Gender Related Crimes at the ICTY, the Women’s Initiatives’ amicus curiae brief argued that the Chamber misapplied the cumulative charging test that the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia had developed in Prosecutor v. Delalic. The practice of cumulative charging, which can occur until the end of trial, must be distinguished from due process violations arising from cumulative convictions, which may be pronounced by the judge upon a finding of guilt. Cumulative charges, as long as they are supported by sufficient evidence, are not inimical to the rights of accused because these rights are safeguarded throughout the trial. The Chamber’s approach also both appears to ignore the distinct crimes, articulated in the Rome Statute, under which an accused can be charged for sexual violence, and contradicts the Elements of Crimes, an instrument that states, in its general introduction, “a particular conduct may constitute one or more crimes.”
In this particular case, the Chamber’s narrow construction of the cumulative charging test resulted in the exclusion of certain sexual violence evidence with respect to certain categories of witnesses. For example, it is now unclear whether the Chamber will allow testimony from family members who were forced to watch their relatives being raped, even though the harm these individuals suffered is surely distinct from the harm of penetration as an element of rape. In the amicus filing by the Women’s Initiatives, Viseur Sellers compared the Chamber’s approach to the very different result reached by the ICTY Trial Chamber’s judgment in Prosecutor v. Furundžija (1998). There a witness who had been forced to watch the repeated rapes of another was held to have been the victim of torture.
On the issue of rape as torture, the International Women’s Human Rights Law Clinic at CUNY School of Law had proposed a separate amicus in Bemba, but the ICC's Pre-Trial Chamber II denied that request.
Taken together the two Pre-Trial Chamber decisions, while not binding on other pre-trial chambers, raise critical issues, all of these issues were discussed in the Women’s Initiatives’ amicus brief, for those concerned about gender justice at the ICC to monitor:
► As mentioned, the Pre-Trial Chamber's referred to the Trial Chamber's power to revise the legal characterization of facts under Regulation 55. As IntLawGrrl Susana SáCouto posted on Thursday, this issue has also surfaced in the Lubanga trial: there the Trial Chamber gave notice to the parties, after the prosecution had presented its case, that the Trial Chamber may recharacterize the facts to include charges of sexual slavery and cruel and/or inhuman treatment.
► There are concerns about the sufficiency of evidence the Prosecutor is required to put forward at the pre-confirmation stage with respect to sexual violence charges.
► Similarly, there are concerns about the Chamber’s duty under Article 21(3) of the Rome Statute to apply the provisions of the Rome Statute in a non-discriminatory manner.

Update in the Lubanga Case

As has been blogged about here , Thomas Lubanga Dyilo was charged by the International Criminal Court with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, namely “conscripting or enlisting children under the age of fifteen years” or “using them to participate actively in hostilities.”

On 22 May 2009, over three years after Lubanga was first taken into custody by the ICC and over two years after the Pre-Trial issued its decision confirming the charges against him, the Legal Representatives of the Victims in Prosecutor v. Thomas Lubanga Dyilo filed a joint application with the Trial Chamber requesting that the Chamber use its authority under Regulation 55 of the Regulations of the Court to apply “an additional legal characterization” to the facts and circumstances described in the charging document, namely by adding the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment to the charges.

Regulation 55, which is entitled “Authority of the Chamber to modify the legal characterization of the facts,” states that:

1. In its decision under article 74 [referring to the final judgment of the Trial Chamber], the Chamber may change the legal characterisation of acts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective participation of, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall: (a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1(b); and (b) If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1(e).

In their filing, the Legal Representatives argued that the crime against humanity of sexual slavery and the war crimes of sexual slavery and cruel and/or inhuman treatment were supported by the facts and circumstances found in the Amended Document Containing the Charges, which reflects the charges confirmed by Pre-Trial I in its Decision on the Confirmation of Charges (“Confirmation Decision”). In other words, they argued that the facts alleged in the charging document could constitute the new crimes proposed.

In response, the Defense argued, inter alia, that the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charges. For instance, the Defense pointed out that the Confirmation Decision made no mention of “facts and circumstances” supporting a widespread or systematic attack against a civilian population, which would be necessary to substantiate a crime against humanity charge. Therefore, the facts and circumstances could not be qualified as crimes against humanity. In addition, the Defense submitted that recharacterizing the charges in the manner requested by the Legal Representatives at this point in the proceedings would seriously affect the right of the accused to be tried without undue delay.

In a decision issued 14 July 2009, the same day that the Prosecution finished presenting its evidence in the case against Lubanga, the majority of Trial Chamber I held that it would consider adding the Legal Representatives’ proposed charges. Rather than assessing whether the facts relied on by the Legal Representatives in support of their request exceeded the facts and circumstances described in the charging document, the Trial Chamber concluded that this limitation was inapplicable to the “present procedural situation.” In reaching this conclusion, the Trial Chamber explained that Regulation 55 created “two distinct stages” during which the Trial Chamber could change the legal characterization of the facts. In its view, the first stage, defined in Regulation 55(1), allows the Trial Chamber to change the legal characterization of the facts “in its decision under article 74 [of the Rome Statute].” At that stage, the Trial Chamber is limited to recharacterizing the charges “without exceeding the facts and circumstances described in the charges. . . ” In the second stage, described in Regulations 55(2) and (3), the Trial Chamber can change the legal characterization “at any time during the trial.” According to the Chamber, modifications made at this stage need not be “done ‘without exceeding the facts and circumstances described in the charges . . .’”

Judge Fulford dissented from the majority opinion, arguing that Regulation 55 must be read as a singular or indivisible provision. Significantly, in his dissent, he references an earlier decision in which he and the two judges in the majority essentially endorsed this interpretation of Regulation 55. In that decision , the Trial Chamber explained that:

the terms of Regulation 55 do not involve any conflict with the main relevant provision, Article 74(2), because they allow for a modification of the legal characterisation of the facts rather than an alteration or amendment to the facts and circumstances described in the charges. Therefore, so long as the facts and the circumstances as described in the charges are not exceeded, pursuant to Regulation 55 it is possible to give those facts and circumstances a different legal characterisation, so long as no unfairness results.

Interestingly, in a subsequent clarification to the 14 July 2009 decision, the majority appeared to step back from its earlier position that modifications under Regulation 55(2) need not be limited to the facts and circumstances in the charging document, instead holding that any:

additional facts must . . . have come to light during the trial and build a unity, from the procedural point of view, with the course of events described in the charges.

While this seems to require some connection between the facts and circumstances in support of a request for recharacterization and those contained in the charging document, it is unclear what exactly would satisfy this standard.

Both the Prosecution and Defense sought leave to appeal the decision of the Trial Chamber. On September 3rd, the Trial Chamber granted leave to appeal, framing the first of two questions as follows:

Whether the Majority erred in their interpretation of Regulation 55, namely that it contains two distinct procedures for changing the legal characterisation of the facts, applicable at different stages of the trial (with each respectively subject to separate conditions), and whether under Regulation 55(2) and (3) a Trial Chamber may change the legal characterisation of the charges based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial.

On October 2nd, the Trial Chamber issued a decision postponing the case, which was due to recommence on October 6th, until the Appeal Chamber issues a decision on the appeal. Stay tuned . . .

Pre-Trial Detention before the ECCC: The Continuing Saga

We've posted before about the norm of pre-trial detention before the Extraordinary Chambers in the Courts of Cambodia. This week, the ECCC issued another important ruling in this regard in response to a motion by Kaing Guek Eav, a.k.a. Duch (left), for release. Prosecutor v. Kaing Guek Eav alias “Duch”, Case File No. 001/18-07-2007/ECCC/TC, Decision on Request for Release (June 15, 2009) (“Duch Detention Ruling”).
Duch had argued that his provisional detention by the ECCC was unlawful, because it exceeded the ECCC's Statute and Cambodian Code of Criminal Procedure, which allow for a maximum of three years’ pre-trial detention. Duch was taken into military custody in 1999; as such, he reasoned that his time there should be added to the time spent in the custody of the ECCC in calculating the amount of pre-trial detention served.
In its ruling, the ECCC conceded that Duch’s eight-year pretrial detention in the military court exceeded Cambodian law, id. at para. 19, and human rights standards, id. at para. 21. It determined, however, that the concerns for flight risk, public order, and the protection of the accused that originally justified pre-trial detention before the ECCC remained applicable, so it declined to release the accused. Id. at para. 25.
It also concluded, however, that the violation of Duch's rights did not rise to the level necessitating that the ECCC divest itself of jurisdiction. Id. at para. 34. In this regard, the ECCC cited the Barayagwiza case before the ICTR, which indicated that the "abuse of process" doctrine may compel an international tribunal to refrain from exercising its jurisdiction where an accused’s rights were seriously violated pre-trial, even if those violations are not attributable to the tribunal. Prosecutor v. Barayagwiza, Case No. ICTR-97-19, Decision of 3 November 1999, para. 73 (Nov. 3, 1999). A similar issue arose in the Lubanga proceedings before the ICCC where the Court ruled in dicta that breaches of the fundamental rights of an accused may render a fair trial impossible. Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Against the Decision on the Defense Challenge to the Jurisdiction of the Court Pursuant to Article 19(2) of the Statute of 3 October 2006, paras. 9-10, 30, 37, 42-43 (Dec. 14, 2006).
Although it declined to release Duch, the ECCC did find that at the time of sentencing, Duch would be entitled to time served for the years spent in military custody, Duch Pre-Trial Detention Ruling at para. 29, and might be entitled to a further reduction in sentence as a result of the previous violation of his rights, id. at para. 35. This likely eliminates the possibility of a life sentence. The ECCC also noted if acquitted, Duch would be entitled to seek compensation before the national authorities. Id. at para. 37.
Duch has essentially admitted to responsibility for events at Tuol Sleng prison (left), which he commanded under the Khmer Rouge. It remains to be seen how his cooperation and expressions of remorse might impact any sentence imposed.

ICC complementarity to be revisited

Tomorrow, Monday, June 1, Pre-Trial Chamber II of the International Criminal Court will hear argument on a defense motion in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, challenging the admissibility of the proceedings against defendant Katanga (right) on the ground that the proceedings violate the principle of complementarity. The complementarity principle is set forth in Article 17(1) of the Rome Statute, which states that a case is inadmissible if it

is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

Katanga, alleged commander of the Patriotic Resistance Force in Ituri, and Ngudjolo, alleged leader of the Nationalist Integrationist Front, have been charged with war crimes and crimes against humanity arising largely from their forces’ joint attack on the village of Bogoro, in northeastern Democratic Republic of the Congo, on February 24, 2003. During the attack, the defendants’ forces allegedly intended to annihilate the village’s civilian population in order to gain control of a key transit route. Charged crimes include the murder of nearly 200 civilians, sexual enslavement of women and girls, and conscription of child soldiers.
The February 10, 2009, defense motion (a redacted version of which was made public on March 11), Katanga’s counsel distinguished the ICC from the International Criminal Tribunals for Rwanda and the former Yugoslavia by asserting that, unlike those ad hoc tribunals, the ICC has a subsidiary role that is triggered only when national investigations fail to occur or are somehow “defective.” The submission outlines state concerns, expressed during the negotiations leading to the Rome Statute, that ICC proceedings could infringe upon national sovereignty and argues that the Court’s current practice has only justified those fears by asserting "nothing less than primacy of the ICC over national courts."
The defense motion noted that, at the time Katanga’s arrest warrant was issued, he was being prosecuted in the DRC for identical charges — crimes against humanity in Bogoro — and his case is thus inadmissible under Article 17.
While distinguishing its case from that of another DRC defendant currently on trial, Thomas Lubanga, the defense criticized the iCC’s treatment of complementarity in that case. Specifically, in Prosecutor v. Thomas Lubanga Dyilo, Pre-Trial Chamber I upheld the arrest warrant against the defendant despite his investigation by DRC authorities, on the ground that the national investigation focused on crimes other than those charged by the ICC’s Office of the Prosecutor. The Katanga defense criticized this "same-conduct test," which was applied subsequently in the decisions reviewing the arrest warrants of Katanga, of his co-defendant Ngudjolo, and, in the matter regarding Darfur, Sudan, of Ali Kushayb, on a variety of grounds:
► The scope of inquiry regarding the conduct at issue is unsettled, the defense argued, adding that this leaves parties to question the factual inquiry that pre-trial chambers employ in determining whether the conduct investigated by national authorities is similar to that investigated by the prosecution.
► The "same-conduct test" is tantamount to ICC primacy, and thus subverts the principle of complementarity, the defense further argued. It reasoned that the decision whether to deploy scarce national resources vis-à-vis broad international crimes necessarily entails some degree of selection at the domestic level, and this fact opens the door for international prosecutors to assert ICC jurisdiction on the basis of little more than resource gaps or national prosecutorial discretion. Scholars such as William A. Schabas have criticized the ICC's interpretation of complementarity.
The defense proposed that rather than applying the "same-conduct test," the ICC should apply 1 or both of the following when considering the admissibility of a case for complementarity purposes:
► A "comparative-gravity test," which holds that when the need for investigation “significantly exceeds” that undertaken by a national authority, a case may be deemed admissible by the ICC.
► A "comprehensive-conduct test,: which holds that when the factual basis of an international investigation "is significantly more comprehensive" than that of a domestic prosecutor, a case likewise may be admissible.
The defense argued, however, that even under the "same-conduct test" Katanga’s case is inadmissible given that he was charged with crimes against humanity arising out of the attack on Bogoro, and there is no evidence that the DRC is unwilling or unable to pursue a corresponding investigation and possible prosecution.
The hearing will be available on livestream webcast here. It is scheduled to begin at 9:30 a.m. (3:30 a.m. Eastern time) Monday at the ICC courthouse at The Hague (left).

International Justice Overload

Greetings from The Hague. I am here with a team of Santa Clara Law students who are competing in the International Criminal Court Trial Competition, sponsored by the International Criminal Law Network and others. (The team was invited to compete in the international rounds by virtue of winning the North American Regional Rounds last month).

As part of our program, we had the opportunity to visit several of the international tribunals based here in The Hague. At the ICC, we witnessed part of the trial of Thomas Lubanga Dyilo (left), the first defendant to be tried before the fledgling Court. The witness on the stand was under protective measures, his identity hidden from those of us in the public gallery by blinds and a pixelated image on screen. The testimony culminated in the showing of a video in which very young children sang and chanted about the glory of "Papa Tom," as he watched on. Children carrying weapons on their shoulders weaved throughout the crowd, and a jeep with two additional child soldiers patrolled behind everyone.

Lubanga has been charged with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii):

Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

Sub-sections (b) and (e) of Article 8 relate to international and non-international armed conflicts, respectively. Interestingly, the prosecutor had originally charged Lubanga only with respect to the crime within a non-international armed conflict. At the time the indictment was confirmed, the pre-trial chamber insisted on adding the charge with respect to an international armed conflict. The Prosecutor sought leave to appeal this change in the indictment, but such leave was denied. Accordingly, the Court will directly address the question of whether the conflict in the relevant region of the DRC amounted to an international armed conflict within the meaning of international humanitarian law.

It was a judge--Judge Adrian Fulford (United Kingdom) (right)--who asked the most pointed questions, specifically calling the attention of the witness to the child soldiers depicted in the video. (We entered the gallery mid-examination, so it is not clear if the witness was also depicted in the video).

The video was introduced by the prosecution, who according to the guiding Elements of Crimes much show:

1. The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities.


2. Such person or persons were under the age of 15 years.


3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.


4. The conduct took place in the context of and was associated with an international or non-international armed conflict.


5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

Unlike other international crimes that require a showing of intent or actual knowledge, the crime of conscripting, enlisting, or using child soldiers applies more of a negligence mens rea ("knew or should have know" that such persons were under 15). In addition, it is not necessary to use child soldiers in combat; it is enough that the defendant conscripted or enlisted them. The video certainly suggested that Lubanga was aware of the existence of child soldiers in his ranks.

Next, we visited the chambers of Judge A. A. Cançado Trindade (left), a member of Santa Clara's overseas faculty until he was recently elected to the International Court of Justice (winning the most votes of any judge to that court (163)).

Finally, we attended two trials at the International Criminal Tribunal for the Former Yugoslavia. The first was of Momcilo Perisic (below left), former Chief of the General Staff of the Yugoslav Army (VJ). After the death of former President Milosevic, this defendant is crucial to linking crimes committed in Croatia and Bosnia-Herzegovina back to Belgrade. He is charged with various war crimes and crimes against humanity, including murder, inhumane acts, persecutions, and extermination. Perisic's case was one of the ones subject to Rule 73bis, whereby the Trial Chamber may invite the prosecutor to reduce the scope of the indictment in an effort to streamline the case. While the judges of the ICTY adopted this rule to help implement the tribunal's Completion Strategy, the judges of the International Criminal Tribunal for Rwanda have determined that it interferes with prosecutorial discretion and have not followed suit.

When Perisic's trial went into closed session, we sat in on the trial of Popovic (right) et al., another Srebrenica case. All 7 defendants are former members of the Bosnian Serb Army (the VRS). They are charged with genocide, conspiracy to commit genocide, extermination, and murder. So far, the Srebrenica massacre has yielded convictions for complicity to commit genocide, but not straight genocide. Today's testimony contained a somewhat numbing presentation of evidence (including transcripts of intercepted conversations) concerning fuel requisition. The trial has been ongoing since 2006.

They don't call The Hague the International Law Capital of the World for nothing.

Pretrial proceedings in Prosecutor v. Bemba

(Final post in IntLawGrrls' 3-part preview series on an ICC hearing set for this week in the sole case so far charged in the Central African Republic referral.)

With the International Criminal Court set to begin a 3-day confirmation-of-charges hearing in Prosecutor v. Bemba in 3 hours at The Hague courthouse at left (streaming webcast available, in French or English, here), a review of pretrial proceedings will help to place the hearing in context.

Since the initial appearance before the ICC of Jean-Pierre Bemba Gombo, on July 4, 2008, Pre-Trial Chamber III has been responding to filings by defense counsel, the prosecution, and the Victim’s Legal Representative. Major points of contention during this litigation have included:

► disclosure of evidence (also a key issue in the ICC proceedings in Lubanga);

► extent of victims’ participation in the proceedings (a contentious subject at the Court, as seen here); and

► interim release.

Each will be considered in turn.

Evidence disclosure

In July 2008, another Pre-Trial Chamber, II, issued a decision setting guidelines to govern the disclosure of evidence between the parties. This decision established the Registry as the facilitator of disclosure, and mandated an analysis of each piece of disclosed evidence. Since then, the prosecution has made available to the defense approximately 2,100 pieces of evidence, pursuant to Rules 77 and 67(2) of the ICC Rules of Procedure. Notwithstanding that Pre-Trial Chamber III has rejected the defense request for return of certain materials allegedly seized from Bemba — among the materials are a laptop containing a file marked “CPI [ICC],” as well as videotapes and documents respecting Mouvement de Libération du Congo soldiers said to have committed crimes in the Central African Republic — disclosure has not garnered nearly the attention as its garnered in the Lubanga case. That will undoubtedly change during the lead-up to trial.

Victim participation

To date, Judge Hans-Peter Kaul (right), the single judge responsible in Bemba for deciding all matters relating to victims’ participation, has recognized 54 individuals as possessing the status of victims who have the right to take part in the confirmation hearing. In his most recent victims' participation decision, he denied a number of requests by the Office of the Public Counsel for Victims, or OPCV. Kaul maintained that the requests displayed a tendency to disregard the letter, spirit, and guidance provided in the ICC's Fourth Decision on Victims’ Participation. The OPCV had sought the right to intervene during the confirmation hearing on questions of jurisdiction and admissibility, the right to file written submissions during the confirmation hearing, and permission to view statements of those victims who are also witnesses in the case. Finding these requests "questionable" in light of the Fourth Decision, Kaul sternly reminded the OPCV of its obligation to implement his decisions on victims’ participation.

Interim release

In his application for interim release, Bemba had argued, first, that the arrest warrants against him were void; and, alternatively, that he should be released pending trial. In December 2008, Judge Ekaterina Trendafilova reaffirmed a prior confidential ruling by Kaul, and thus denied Bemba’s application on both grounds. Basing her decision upon the issuance of an arrest warrant against Bembaby Pre-Trial Chamber III, Trendafilova found that continued detention was warranted on the bases of:

► the international connections of the accused;

► the accused's access to financial resources; and

► the severity of the charges.

Together, she wrote, these factors rendered the flight of the accused a "real possibility." Trendafilova also accepted the Prosecutor’s argument that, on account of his political position and networks in both the Democratic Republic of Congo, Bemba would be able unduly to influence victims and witnesses if he were at large prior to trial.

(Part 1 of this 3-part Bemba series is here; Part 2 is here)

Roadmap to ICC's Bemba charges hearing

(The 2d in IntLawGrrls' 3-part series previewing an ICC hearing set for this week in the sole case charged in the Central African Republic referral)

In her Decision on the Schedule for the Confirmation of Charges Hearing issued 13 days ago, International Criminal Court Judge Ekaterina Trendafilova (right) provided a roadmap to the four-day proceeding on the confirmation of charges in the case of Prosecutor v. Jean-Pierre Bemba Gomba that is set to begin this Monday in Pre-Trial Chamber III. The hearing will provide the prosecution an opportunity to outline the evidence underlying the charges against Bemba, and further will give Bemba's defense team an opportunity to respond.
According to Pre-Trial Chamber I, the purpose of the confirmation of charges hearing is

limited to committing for trial only those persons against whom sufficiently compelling charges going beyond mere theory or suspicion have been brought.

On the first day of the hearing, the prosecution and the defense are expected each to make one-hour opening statements. The Victim’s Legal Representative also is scheduled to make an opening statement, of 30 minutes. For the remainder of the first day and the entirety of the following two days, we can anticipate exchanges between the prosecution and the defense on matters concerning:
► jurisdiction, admissibility and procedure;
► evidence on charges related to crimes against humanity, war crimes; and
► evidence related to Bemba’s alleged individual criminal responsibility.
Pursuant to Article 61 of the Rome Statute of the International Criminal Court, the prosecution is supposed open each exchange by attempting to provide “sufficient evidence to establish substantial grounds to believe that [Bemba] committed the crime[s] charged.” Bemba’s legal team then is to respond to the Prosecutor’s evidence, by objecting to the charges, challenging the evidence, or presenting evidence.
The four-day hearing is due to conclude on Thursday, following scheduled one-hour closing statements by the prosecution and the defense as well as a 30-minute closing by the Victim’s Legal Representative.
(In total, the Prosecution will have 7 hours to present its case and the Defense will have 7 1/2. In rejecting the Defendant’s request for 12 hours, Judge Trendafilova found insufficient justification to “disrupt the equality between the parties.” Though the defense also argued that the prosecution should be required to present its entire case prior to the Defendant’s response, Judge Trendafilova ruled that Bemba’s “right speak last” (found in Rule 122(8) of the ICC’s Rules of Procedure and Evidence was preserved by giving him an opportunity to respond after the Prosecution’s presentation on each count.) Each day of the confirmation of charges hearing can be watched via live streaming from the ICC’s website here, beginning at 9:30 a.m. Hague time. PDF transcripts are to be posted thereafter.
Pre-Trial Chamber III is expected to issue a decision -- like that issued by Pre-Trial Chamber I in Lubanga -- on whether there is sufficient evidence to believe that Bemba committed each of the crimes with which he is charged. Following that determination, with regard to any or all of the charges, the Chamber can:
► confirm the charges and refer the matter to a trial chamber to be constituted by the Presidency;
► decline to confirm the charges; or
► adjourn the hearing and request that the Prosecutor provide additional evidence, conduct further investigation or amend the charge.

(Here is yesterday's 1st post in IntLawGrrls' Bemba series.)