Transcript RIGHTS OF THE ACCUSED AT THE ICC

"The history of American freedom
is, in no small measure, the history
of procedure."
Justice Felix Frankfurter
Rights at the ICC

Relatively easy to enumerate rights at
the court – ‘right-spotting’

More importantly, how do we judge
adequacy of these rights?
Rights in general under liberal
theory

Hierarchies of rights:
Life

UDHR Art 3. “Everyone has the right to life,
liberty and security of person.”

Derivative ‘rights’

Freedom to ..... Move, talk, listen, choose,
etc.
Liberal model of social order

Liberty invasion = Crime

ICL - The big three:
Genocide,
 Crimes against humanity
 War crimes [in part]

Court procedures implicate these
rights by restriction

Liberal model requires binary distinction:
 Innocence
or
 Guilt

AND

Authorises invasions of fundamental rights
to achieve determination
Rights as claims to behaviours by
others

In the context of guilt / innocence
determination, distinguish between:
‘Human Rights’ deriving from liberal
social model:
eg Right not to be subject to arbitrary
arrest


‘Process Rights’: eg Right to confront
Process rights

These are created to produce the binary
determination – guilt / innocence

Compromise these rights and the
determination may be flawed
What causes wrongful
convictions?
False testimony
 Prosecutorial misconduct
 Police misconduct
 False confessions
 Bad identifications


....in part...
Structure
 Generally: sources
 Multiple jurisdictions
 Investigations
 Arrest Warrants
 Arresting state
 Pre-trial
 Trial
 Judgement
 Appeal
 Remedies
of law
Sources of law

The ICC Statute regulates the applicable
sources of law hierarchically

Article 21.
Article 21
Applicable law
1.
The Court shall apply:
a) In the first place, this Statute, Elements
of Crimes and its Rules of Procedure
and Evidence;
Article 21
1.
b) In the second place, where appropriate,
applicable treaties and the principles
and rules of international law, including
the established principles of the
international law of armed conflict;
Article 21
1.
c) Failing that, general principles of law
derived by the Court from national laws of
legal systems of the world including, as
appropriate, the national laws of States that
would normally exercise jurisdiction over
the crime, provided that those principles
are not inconsistent with this Statute and
with international law and internationally
recognized norms and standards.
Article 21
2. The Court may apply principles and
rules of law as interpreted in its previous
decisions.
Article 21
3. The application and interpretation of law
pursuant to this article must be
consistent with internationally
recognized human rights, and be without
any adverse distinction founded on
grounds such as gender as defined in
article 7, paragraph 3, age, race, colour,
language, religion or belief, political or
other opinion, national, ethnic or social
origin, wealth, birth or other status.
Issue
Article 21 (3) subjects application of all
law to ‘internationally recognised human
rights’.
 Question: what rights are these?

Article 1(3) of UN Charter
 Universal
Declaration of Human
Rights
Article 7. equality before the law
Article 8. right to an effective remedy for violations of
fundamental rights
 Article 9. No one shall be subjected to arbitrary arrest,
detention
 Article 10. Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations
and of any criminal charge against him.
 Article 11. presumption of innocence, public trial, all the
guarantees necessary for his defence, no retroactive
penal law.


Internationally recognised rights

International Covenant on Civil and
Political Rights

esp. Articles 9 and 14

International Covenant on Economic,
Social and Cultural Rights (‘…er, no
actually.’)

Human Rights Committee
ICC Case Lubanga Dyilo

“CONSIDERING, moreover, that, in accordance with
internationally recognised human rights, everyone arrested
or detained is entitled to trial within a reasonable time or to
release pending trial;”

CITES

Article 5(3)(c) of the ECHR
Article 7(5) Inter-American CHR
Article 9 ICCPR



ICC-01/04-01/06 Case The Prosecutor v. Thomas Lubanga
Dyilo Decision on the Application for the interim release of
Thomas Lubanga Dyilo 18.10.2006
Conventions
Geneva Conventions esp. Common Article 3
 Convention against Torture
 Convention on the Rights of the Child

esp. Article 40
But caution.....

Article 14 ICCPR, Article 6 ECHR and
derived articles are minima.

Nikolic jurisdiction trial decision, para.
110: “This Chamber observes that these
norms only provide for the absolute
minimum standards applicable.”
Other international courts






ICJ
ICTY Article 21 Rule 42
ICTR Article 20 Rule 42
SCSL Article 20 Rule 42
etc....
Report of the Secretary-General on ICTY, para.
106: “…internationally recognized standards
regarding the rights of the accused at all stages of
its proceedings.”
ICC Caselaw

eg. Lubanga Dyilo, Arrêt relatif à l’appel interjeté par
Thomas Lubanga Dyilo contre la décision du 3
octobre 2006 relative l’exception d’incompétence de
la Cour soulevée par la Défense en vertu de l’article
19-2-a du Statut, 14.12.2006 AC

Lubanga Dyilo Decision on the Defence Challenge to
the Jurisdiction of the Court pursuant to article 19 (2)
(a) of the Statute 3 10 2006 AC

Cites Barayagwiza, ICTR, and Nikolic, ICTY, as
authorities on abuse of process.
Structure

Generally: sources of law
 Multiple jurisdictions
 Investigations
 Arrest Warrants
 Arresting state
 Pre-trial
 Trial
 Judgement
 Appeal
 Remedies
Multiple Jurisdictions

The criminal procedure of the ICC takes
place in two or more jurisdictions:
evidence is collected within state
jurisdictions
 the accused is arrested by state or
international actors other than tribunal
staff
 sentences are carried out by states.

Multiple jurisdictions

Control by ICC over state activities.

Compare ad hoc tribunals eg. Nikolic
and Barayagwiza

Is Prosecution responsible?
Structure

Generally: sources of law

Multiple jurisdictions
 Investigations







Arrest Warrants
Arresting state
Pre-trial
Trial
Judgement
Appeal
Remedies
Investigations Article 42

7. Neither the Prosecutor nor a Deputy Prosecutor shall
participate in any matter in which their impartiality
might reasonably be doubted on any ground.
[eg. disqualification for previous involvement in case or
related case at national level “…involving the person
being investigated or prosecuted.”
 8. […]

(a) The person being investigated or prosecuted
may at any time request the disqualification of the
Prosecutor or a Deputy Prosecutor on the grounds
set out in this article;

(b) The Prosecutor or the Deputy Prosecutor, as
appropriate, shall be entitled to present his or her
comments on the matter.
Impartial Prosecutor?

Lon Fuller:
 The
essence of adversarial
procedure = participation in the
decision-making process by the
presentation of reasoned proofs
by partisans before a neutral
umpire.
OED ‘Impartial’

UNBIASED, unprejudiced, neutral, nonpartisan, non-discriminatory,
disinterested, uninvolved, uncommitted,
detached, dispassionate, objective,
open-minded, equitable, even-handed,
fair, fair-minded, just; without
favouritism, free from discrimination,
with no axe to grind, without fear or
favour; informal on the fence.
Article 54
1. The Prosecutor shall:
 (a) In order to establish the truth, extend
the investigation to cover all facts and
evidence relevant to an assessment of
whether there is criminal responsibility
under this Statute, and, in doing so,
investigate incriminating and
exonerating circumstances equally;

Article 54

1. The Prosecutor shall:

(c) Fully respect the rights of persons
arising under this Statute.
“Trust me with your rights, I am a
prosecutor.”

Compare and contrast:
 Trust
me with your lettuce, I am a
rabbit.
Article 55
Rights of persons during an investigation
1. In respect of an investigation under
this Statute, a person:
 (a) Shall not be compelled to incriminate
himself or herself or to confess guilt;
Article 55
Rights of persons during an investigation
 1. (b) Shall not be subjected to any form
of coercion, duress or threat, to torture or
to any other form of cruel, inhuman or
degrading treatment or punishment;
Article 55
Rights of persons during an investigation
 1. (c) Shall, if questioned in a language
other than a language the person fully
understands and speaks, have, free of
any cost, the assistance of a competent
interpreter and such translations as are
necessary to meet the requirements of
fairness; and
Article 55
Rights of persons during an investigation
 1 (d) Shall not be subjected to arbitrary
arrest or detention, and shall not be
deprived of his or her liberty except on
such grounds and in accordance with
such procedures as are established in
this Statute.
Article 55
Rights of persons during an investigation
2. Where there are grounds to believe that a
person has committed a crime within the
jurisdiction of the Court and that person is
about to be questioned either by the
Prosecutor, or by national authorities
pursuant to a request made under Part 9,
that person shall also have the following
rights of which he or she shall be informed
prior to being questioned:
 (a) To be informed, prior to being questioned,
that there are grounds to believe that he or she
has committed a crime within the jurisdiction of
the Court;
Article 55
Rights of persons during an investigation
 2 (b) To remain silent, without such
silence being a consideration in the
determination of guilt or innocence;
Article 55
Rights of persons during an investigation
 2. (c) To have legal assistance of the
person's choosing, or, if the person does
not have legal assistance, to have legal
assistance assigned to him or her, in any
case where the interests of justice so
require, and without payment by the
person in any such case if the person
does not have sufficient means to pay for
it; and
Article 55
Rights of persons during an investigation
 2 (d) To be questioned in the presence of
counsel unless the person has voluntarily
waived his or her right to counsel.
Structure

Generally: sources of law

Multiple jurisdictions
Investigations

 Arrest






Warrants
Arresting state
Pre-trial
Trial
Judgement
Appeal
Remedies
Article 58 warrant of arrest or a summons

1 (a) There are reasonable grounds to believe that
the person has committed a crime within the
jurisdiction of the Court; and

1 (b) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial;
(ii) To ensure that the person does not obstruct or
endanger the investigation or the court proceedings;
or
(iii) Where applicable, to prevent the person from
continuing with the commission of that crime or a
related crime which is within the jurisdiction of the
Court and which arises out of the same
circumstances.



Issue


The Prosecutor must tell the PTC “The reason why
the Prosecutor believes that the arrest of the person
is necessary.”
The Warrant does not contain that information. It
goes to the state without that information. The
competent authority in the arresting state acts under
Article 59 and makes its decision after hearing
“recommendations” by the PTC as to whether there
are “urgent and exceptional circumstances” for
release. The Statute is silent on the issue of whether
the recommendations are public and whether they
may be made the subject of representations by the
accused.
Structure

Generally: sources of law

Multiple jurisdictions
Investigations
Arrest Warrants


 Arresting





Pre-trial
Trial
Judgement
Appeal
Remedies
state
Article 59 Arrest proceedings in the custodial
State
2. A person arrested shall be brought
promptly before the competent judicial
authority in the custodial State which shall
determine, in accordance with the law of
that State, that:
 The warrant applies to that person;
 The person has been arrested in
accordance with the proper process; and
 The person's rights have been respected.

ISSUE

CJA applies the state’s law BUT

decides whether the suspect’s ‘rights’ have been
respected.

Rights under which law? Answer appears to be – the
state law.
Lubanga Dyilo Situation in the Democratic Republic
of the Congo in the Case of the Prosecutor v.
Thomas Lubanga Dyilo Decision on the Defence
Challenge to the Jurisdiction of the Court pursuant to
article 19 (2) (a) of the Statute 3 October 2006 (ICC01/04-01/06-512)

Article 59 Arrest proceedings in the custodial
State


3. The person arrested shall have the right to
apply to the competent authority in the
custodial State for interim release pending
surrender.
4. In reaching a decision on any such
application, the competent authority in the
custodial State shall consider whether, given
the gravity of the alleged crimes, there are
urgent and exceptional circumstances
to justify interim release and whether
necessary safeguards exist to ensure that the
custodial State can fulfil its duty to surrender
the person to the Court. […].
ISSUE
Compare Article 59 (4) “urgent and exceptional
circumstances” with
 Article 9 (1) and (3) ICCPR

 1.
Everyone has the right to liberty
and security of person.
 3. [...] It shall not be the general
rule that persons awaiting trial shall
be detained in custody, but release
may be subject to guarantees to
appear for trial, [...]
And compare

The infamous former Rule 65 of ICTY and
ICTR
65 Provisional Release
 (B) Release may be ordered by a Trial
Chamber only in exceptional
circumstances, [...]

Article 59 Arrest proceedings in the custodial
State

5. The Pre-Trial Chamber shall be notified
of any request for interim release and shall
make recommendations to the competent
authority in the custodial State. The
competent authority in the custodial State
shall give full consideration to such
recommendations, including any
recommendations on measures to prevent
the escape of the person, before rendering
its decision.
Article 59 Arrest proceedings in the custodial
State
6. If the person is granted interim release,
the Pre-Trial Chamber may request
periodic reports on the status of the interim
release.
 7. Once ordered to be surrendered by the
custodial State, the person shall be
delivered to the Court as soon as possible.


Article 60 “Upon the surrender of the person to
the Court, or the person's appearance before the
Court voluntarily…”
Issue

What about arrests by non-state actors such
as SFOR?

What about arrests that satisfy rights under
state law but breach ICC rights of the suspect?

Eg. Lubanga Dyilo "Decision on the Defence
Challenge to the Jurisdiction of the Court
pursuant to article 19 (2) (a) of the Statute" 3
October 2006
Compare Nikolic and Barayagwiza

Structure

Generally: sources of law



Multiple jurisdictions
Investigations
Arrest Warrants

Arresting state
 Pre-trial
 Trial
 Judgement
 Appeal
 Remedies
Article 60

2. A person subject to a warrant of arrest
may apply for interim release pending
trial. If the Pre-Trial Chamber is satisfied
that the conditions set forth in article 58,
paragraph 1, are met, the person shall
continue to be detained. If it is not so
satisfied, the Pre-Trial Chamber shall
release the person, with or without
conditions.
Issue 1






Under Article 58, the PTC has already expressed itself
satisfied that:
“The arrest of the person appears necessary:
To ensure the person's appearance at trial;
To ensure that the person does not obstruct or endanger the
investigation or the court proceedings; or
Where applicable, to prevent the person from continuing with
the commission of that crime or a related crime which is
within the jurisdiction of the Court and which arises out of the
same circumstances.”
How can the accused BE PERCEIVED to
have a fair hearing before the same PTC
seised of the issue again under Article
60?
Issue 2
Release “with conditions” is unregulated.
 Conditions may be onerous and
severely curtailing of liberty of accused.
 Yet they are imposed when, under
Article 60, the PTC is not satisfied that
the Article 58 conditions for an arrest
warrant are met.

Rule 119 Conditional release





1. The Pre-Trial Chamber may set one or more
conditions restricting liberty,
including the following:
(a) The person must not travel beyond
territorial limits set by the Pre-Trial Chamber
without the explicit agreement of the Chamber;
(b) The person must not go to certain places
or associate with certain persons as specified
by the Pre-Trial Chamber;
(c) The person must not contact directly or
indirectly victims or witnesses;
Rule 119 Conditional release





(d) The person must not engage in certain
professional activities;
(e) The person must reside at a particular address as
specified by the Pre-Trial Chamber;
(f) The person must respond when summoned by an
authority or qualified person designated by the PreTrial Chamber;
(g) The person must post bond or provide real or
personal security or surety, for which the amount and
the schedule and mode of payment shall be
determined by the Pre-Trial Chamber;
(h) The person must supply the Registrar with all
identity documents, particularly his or her passport.
Article 60

3. The Pre-Trial Chamber shall
periodically review its ruling on the
release or detention of the person, and
may do so at any time on the request of
the Prosecutor or the person. Upon such
review, it may modify its ruling as to
detention, release or conditions of
release, if it is satisfied that changed
circumstances so require.
RPE Rule 118

3. Before imposing or amending any conditions restricting
liberty, the Pre-Trial Chamber shall seek the views
of the Prosecutor, the person concerned, any relevant
State and victims that have communicated with the Court
in that case and whom the Chamber considers could be
at risk as a result of a release or conditions imposed.

Issue: The PTC’s power to review on its own
initiative or on the Prosecutor’s application its
former ruling on release or conditional release is
unregulated and no explicit provision for a
hearing – as opposed to seeking views included.
Article 60

4. The Pre-Trial Chamber shall ensure
that a person is not detained for an
unreasonable period prior to trial due to
inexcusable delay by the Prosecutor. If
such delay occurs, the Court shall
consider releasing the person, with or
without conditions.
Article 60

5. If necessary, the Pre-Trial Chamber
may issue a warrant of arrest to secure
the presence of a person who has been
released.

Probably not the intention of the drafters
to initiate another Article 59 process.
RPE Rule 118

2. The Pre-Trial Chamber shall review
its ruling on the release or detention of a
person in accordance with article 60,
paragraph 3, at least every 120 days
and may do so at any time on the
request of the person or the Prosecutor.
RPE Rule 118


3. After the first appearance, a request for
interim release must be made in writing.
The Prosecutor shall be given notice of such a
request. The Pre-Trial Chamber shall decide
after having received observations in writing of
the Prosecutor and the detained person. The
Pre-Trial Chamber may decide to hold a
hearing, at the request of the Prosecutor or the
detained person or on its own initiative. A
hearing must be held at least once
every year
Lubanga Dyilo


“ [...] there is a distinct and independent
obligation imposed upon the Pre-Trial
Chamber to ensure that a person is not
detained for an unreasonable period prior to
trial under article 60 (4) of the Statute. While
the review under article 60 (3) ensures that
any ruling upon an application for interim
release is specifically reconsidered at least
every 120 days, there is, in addition, an
obligation upon the Pre-Trial Chamber to
review the overall period of the detention of
the suspect under article 60 (4).”
Appeals Chamber 13.02.2007
Article 58 Summons

7. As an alternative to seeking a warrant of
arrest, the Prosecutor may submit an
application requesting that the Pre-Trial
Chamber issue a summons for the person to
appear. If the Pre-Trial Chamber is satisfied
that there are reasonable grounds to believe
that the person committed the crime alleged
and that a summons is sufficient to ensure the
person's appearance, it shall issue the
summons, with or without conditions restricting
liberty (other than detention) if provided for by
national law, for the person to appear.
RPE Rule 119

5. When the Pre-Trial Chamber issues a
summons to appear pursuant to article 58,
paragraph 7, and intends to set conditions
restricting liberty, it shall ascertain the relevant
provisions of the national law of the State
receiving the summons. In a manner that is in
keeping with the national law of the State
receiving the summons, the Pre-Trial Chamber
shall proceed in accordance with sub-rules 1,
2 and 3. If the Pre-Trial Chamber receives
information that the person concerned has
failed to comply with conditions imposed, it
shall proceed in accordance with sub-rule 4.
Rule 119, Sub-rule 4

(4) If the Pre-Trial Chamber is convinced
that the person concerned has failed to
comply with one or more of the
obligations imposed, it may, on such
basis, at the request of the Prosecutor
or on its own initiative, issue a warrant of
arrest in respect of the person.
Article 19 Challenge to the
admissibility
1. The Court shall satisfy itself that it has
jurisdiction in any case brought before it.
The Court may, on its own motion,
determine the admissibility of a case in
accordance with article 17.
 2. Challenges to the admissibility of a case
on the grounds referred to in article 17 or
challenges to the jurisdiction of the Court
may be made by:
 (a) An accused or a person for whom a
warrant of arrest or a summons to appear
has been issued under article 58;

Admissibility challenge


The admissibility of a case or the
jurisdiction of the Court may be challenged
only once by any person […] referred to in
paragraph 2.
The challenge shall take place prior to or at
the commencement of the trial. In exceptional
circumstances, the Court may grant leave for a
challenge to be brought more than once or at
a time later than the commencement of the
trial. Challenges to the admissibility of a case,
at the commencement of a trial, or
subsequently with the leave of the Court, may
be based only on article 17, paragraph 1 (c).
Article 17 inadmissibility grounds
(a) State investigating or
 (b) State decided not to prosecute or
 (c) State already tried the suspect within
meaning of Article 20 [ne bis in idem] or
 (d) Case insufficiently grave.

Prosecutor v. Kony et al.
“...it appears hardly debatable that the
statutory framework envisages as a
possible scenario that the issue of
admissibility may be discussed more
than once in the course of the
proceedings.” PTC 10 03 2009
 ie. Article 19 admissibility may be raised
by accused when appears as well as on
his behalf by Regulation 76(1) appointed
counsel in absence.

Structure

Generally: sources of law



Multiple jurisdictions
Investigations
Arrest Warrants

Arresting state

Pre-trial
 Trial
 Judgement
 Appeal
 Remedies
Article 66

1. Everyone shall be presumed innocent
until proved guilty before the Court in
accordance with the applicable law.
Article 67 Rights of the accused

1. In the determination of any charge,
the accused shall be entitled to a
public hearing, having regard to the
provisions of this Statute, to a fair
hearing conducted impartially, and to
the following minimum guarantees, in
full equality:
‘PUBLIC HEARING’: Article 64
7.
The trial shall be held in public.
The Trial Chamber may, however,
determine that special circumstances
require that certain proceedings be in
closed session for the purposes set forth in
article 68, [to protect victims and witnesses
or an accused] or to protect confidential or
sensitive information to be given in
evidence.
 And Article 72 Protection of national
security information

Public hearing
And Regulation 20 Public hearings
 1. All hearings shall be held in public,
unless otherwise provided in the Statute,
Rules, these Regulations or ordered by
the Chamber.
 2. When a Chamber orders that certain
hearings be held in closed session, the
Chamber shall make public the reasons
for such an order.

Public hearings
Regulation 20 Public hearings
 3. A Chamber may order the disclosure
of all or part of the record of closed
proceedings when the reasons for
ordering its non-disclosure no longer
exist.

PUBLIC HEARING: Regulation 21
 Broadcasting,
release of
transcripts and recordings
 Issue:
What about future
witness pollution?
Privacy right?

Bemba (ICC-01/05-01/08), Decision on
the Second Defence's Application for
Lifting the Seizure of Assets and
Request for Cooperation to the
Competent Authorities of the Republic of
Portugal, 14 November 2008, para. 29.
Privacy right – from where?

“29. However, the Chamber, concerned with
Mr Jean-Pierre Bemba's right to privacy,
deems it appropriate to order the parties and
the Registry to prepare a public redacted
version of the said documents in order to keep
confidential any personal data relating to the
details of his bank accounts as stated in the
confidential Annex to the present decision. The
respective public redacted versions of these
documents, both in English and French, where
applicable, will then be filed in the record of
the case.”
‘Fair hearing’
 All
the enumerated rights plus
 General residual evaluation of
fairness.
IN FULL EQUALITY
‘Principle’ of equality of arms
 All chambers and cases have cited
equality of arms.
 Not a ‘right’ to be equal but a right to
combat the Prosecution on equal terms
and right under Art 67 (1) (e) to call
evidence on same terms
 BUT....

The ‘Principle’ of Equality of Arms
CONSIDER ... Eg. Article 54
2. The Prosecutor may conduct
investigations on the territory of a State:
 In accordance with the provisions of Part
9; or
 As authorized by the Pre-Trial Chamber
under article 57, paragraph 3 (d).
 ISSUE: WHY IS THERE NO
EQUIVALENT FOR THE DEFENCE?

Article 67 Rights of the accused

1. (a) To be informed promptly and in
detail of the nature, cause and content
of the charge, in a language which the
accused fully understands and speaks;

BUT consider the size of some cases in
ICL: eg Milosevic....
Hunting of the Snark
The indictment had never been clearly
expressed,
 And it seemed that the Snark had
begun,
 And had spoken three hours, before any
one guessed
 What the pig was supposed to have
done.

Milosevic
3
joined indictments allegedly 1
transaction.
 66 counts, 23 different types of
crime over a decade.
 Kosovo deportation count
covered over 64 different
locations
Tale of Two Cities

Charles Darnay had yesterday pleaded Not Guilty to
an indictment denouncing him (with infinite jingle and
jangle) for that he was a false traitor to our serene,
illustrious, excellent, and so forth, prince, our Lord
the King, by reason of his having, on divers
occasions, and by divers means and ways, assisted
Lewis, the French King, in his wars against our said
serene, illustrious, excellent, and so forth; that was to
say, by coming and going, between the dominions of
our said serene, illustrious, excellent, and so forth,
and those of the said French Lewis, and wickedly,
falsely, traitorously, and otherwise evil-adverbiously,
revealing to the said French Lewis what forces our
said serene, illustrious, excellent, and so forth, had in
preparation to send to Canada and North America...
Milosevic
 By
November 2005 over 1.2
million pages of disclosure.
 Prosecution exhibits over 85,000
pages and over 100 videos.
 30 changed Prosecution witness
lists.
 No definitive exhibit list.
Article 67 Rights of the accused
1. (b) To have adequate time and
facilities for the preparation of the
defence and to communicate freely with
counsel of the accused's choosing in
confidence;
 1. (c)To be tried without undue delay;

Milosevic
 By
November 2005:
 Transcripts over 46,000 pages.
 Written filings = 2,600 separate
briefs, motions, etc
 Estimate - 3 year trial
 What might a Bashir trial look
like?
TIME

Article 6 of the ECHR:

”... everyone is entitled to a fair and
public hearing within a reasonable
time by an independent and impartial
tribunal established by law.”
Article 63 Trial in the presence of the
accused
 1.
The accused shall be
present during the trial.
 2.
[Removal for disruption]
Article 67 Rights of the accused

1. (d) Subject to article 63, paragraph 2, to
be present at the trial, to conduct the
defence in person or through legal
assistance of the accused's
choosing, to be informed, if the accused
does not have legal assistance, of this right
and to have legal assistance assigned by
the Court in any case where the interests
of justice so require, and without payment if
the accused lacks sufficient means to pay
for it;
Presence
Article 56
 (a) “…a unique opportunity to take
testimony or a statement from a witness
or to examine, collect or test evidence,
which may not be available
subsequently for the purposes of a
trial…”

Presence
Article 56
 (b) PTC may […] take such measures
[…] to protect the rights of the defence.
 collection and preservation of evidence
and the questioning of persons…
 admissibility governed at trial by article
69, and given such weight as
determined by the Trial Chamber.

Article 69

The testimony of a witness at trial shall be
given in person, except to the extent provided
by the measures set forth in article 68 or in the
Rules of Procedure and Evidence. The Court
may also permit the giving of viva voce (oral)
or recorded testimony of a witness by means
of video or audio technology, as well as the
introduction of documents or written
transcripts, subject to this Statute and in
accordance with the Rules of Procedure and
Evidence. These measures shall not be
prejudicial to or inconsistent with the rights of
the accused.
RPE Rule 68 Prior recorded testimony

When the Pre-Trial Chamber has not
taken measures under article 56, the
Trial Chamber may, in accordance with
article 69, paragraph 2, allow the
introduction of previously recorded audio
or video testimony of a witness, or the
transcript or other documented evidence
of such testimony, provided that:
RPE Rule 68 Presence
(a) If the witness who gave the
previously recorded testimony is not
present before the Trial Chamber, both
the Prosecutor and the defence had the
opportunity to examine the witness
during the recording; or
 (b) [witness present]

Presence [and fairness]




ADMISSIBILITY HEARING
[I] f the Pre-Trial Chamber makes a determination
that the case against a suspect is admissible without
the suspect participating in the proceedings, and the
suspect at a later stage seeks to challenge the
admissibility of a case pursuant to article 19 (2) (a) of
the Statute, he or she comes before a Pre-Trial
Chamber that has already decided the very same
issue to his or her detriment. A degree of
predetermination is inevitable.
DRC Appeals Chamber "Judgment on the
Prosecutor's appeal etc.”13 July 2006
BUT...
Presence

Uganda AC Kony, 16 09 2009 said
2006 decision concerned admissibility
determination on gravity AND in camera
AND with only Prosecutor present.

In Kony AC said only issue was state
proceedings which would not cause
prejudice to absent accused.
Admissibility determination in absence
was therefore OK.
Legal assistance

“counsel of the accused's choosing".

Regulation 74 (2) When represented by
defence counsel, the person entitled to
legal assistance shall, subject to article
67, paragraph 1 (h) [unsworn statement]
act before the Court through his or her
Counsel, unless otherwise authorised by
the Chamber.
Code of Conduct Article 14
Performance in good faith of a representation
agreement
 1. The relationship of client and counsel is one of candid
exchange and trust, binding counsel to act in good faith
when dealing with the client. In discharging that duty,
counsel shall act at all times with fairness, integrity and
candour towards the client.
 2. When representing a client, counsel shall:

(a) Abide by the client’s decisions concerning
the objectives of his or her representation as long as they
are not inconsistent with counsel’s duties under the
Statute, the Rules of Procedure and Evidence, and this
Code; and
 (b) Consult the client on the means by which the
objectives of his or her representation are to be pursued.

Article 56 (2) (d) unique investigative
opportunity
"measures ... to ensure the efficiency and
integrity of the proceedings and, in
particular, to protect the rights of the
defence" (article 56 (1) (b) of the Statute):
 Authorizing counsel etc [...] or where there
has not yet been such an arrest or
appearance or counsel has not been
designated, appointing another counsel to
attend and represent the interests of the
defence.

Appointed counsel
“...it is clear from the legal and
procedural context that Counsel for the
Defence was not appointed to speak for,
or on behalf of, the four individual
suspects in the sense that his
submissions would be attributed to
them, potentially also in later
proceedings.”
 Uganda AC Kony, 16 09 2009

Article 67 Rights of the accused

1. (e) To examine, or have examined,
the witnesses against him or her and to
obtain the attendance and examination
of witnesses on his or her behalf under
the same conditions as witnesses
against him or her. The accused shall
also be entitled to raise defences and to
present other evidence admissible under
this Statute;
ISSUE

The role of the victims... who, if their interests are affected
by the issue, can be given leave to call evidence
of the guilt of the accused and challenge the
admissibility of the accused’s evidence.

“the right to introduce evidence during trials
before the Court is not limited to the parties”.

Leave needed

Lubanga Dyilo, Judgment on the Appeals of the
Prosecutor and the Defence Against Trial Chamber I’s
Decision on Victims’ Participation of 18 January 2008, 11
07 2008 paras. 94, 109
During drafting victims’ right to
present evidence re guilt rejected

“Report of the Inter-Sessional Meeting in
Zutphen”, UN Doc. A/AC.249/1998/L.13,
4 February 1998, p. 117; “Report of the
Preparatory Committee on the
Establishment of an International
Criminal Court”, Addendum, UN Doc.
A/CONF.183/2/Add.1, 14 April 1998.
Victim’s calling evidence and
challenging evidence






(i) application,
(ii) notice
(iii) demonstration of personal
Interests affected by the specific proceedings,
(iv) disclosure and obeying protection orders,
(v) TC’s decision that victims’ calling of
evidence or challenge to accused’s evidence
is appropriate and
 (vi)
consistent with the rights of the
accused and a fair trial.
PIKIS AND KIRSCH

“The proof or disproof of the charges is
a matter affecting the adversaries. The
victims have no say in the matter. Their
interest is that justice should be done...”
Partly Dissenting Opinion of Judge Pikis
PIKIS AND KIRSCH
 “It would, in my view, be perfectly legitimate for
victims to present their views and concerns in
relation to the evidence submitted by the parties
where it affects their personal interests.
However, there is a sizeable difference
between presenting views and concerns in
relation to issues that arise at the trial that
affect the personal interests of victims and
presenting a prosecution case by leading
additional evidence - independent of that
led by the Prosecutor - on guilt.”

Partly Dissenting Opinion of Judge Philippe
Kirsch
Article 67 Rights of the accused

(f) To have, free of any cost, the
assistance of a competent interpreter
and such translations as are necessary
to meet the requirements of fairness, if
any of the proceedings of or documents
presented to the Court are not in a
language which the accused fully
understands and speaks;
Article 67 Rights of the accused

(g) Not to be compelled to testify or to
confess guilt and to remain silent,
without such silence being a
consideration in the determination of
guilt or innocence;
Article 67 Rights of the accused

(h) To make an unsworn oral or written
statement in his or her defence; and
Article 67 Rights of the accused

(i) Not to have imposed on him or her
any reversal of the burden of proof or
any onus of rebuttal.
Article 67 Rights of the Accused

2. In addition to any other disclosure
provided for in this Statute, the Prosecutor
shall, as soon as practicable, disclose to
the defence evidence in the Prosecutor's
possession or control which he or she
believes shows or tends to show the
innocence of the accused, or to mitigate
the guilt of the accused, or which may
affect the credibility of prosecution
evidence. In case of doubt as to the
application of this paragraph, the Court
shall decide.
Disclosure RPE Rule 77

Inspection of material in possession or
control of the Prosecutor

The Prosecutor shall, subject to the restrictions on
disclosure as provided for in the Statute and in rules
81 and 82, permit the defence to inspect any books,
documents, photographs and other tangible objects
in the possession or control of the Prosecutor, which
are material to the preparation of the defence or are
intended for use by the Prosecutor as evidence for
the purposes of the confirmation hearing or at trial,
as the case may be, or were obtained from or
belonged to the person.
Exception: Rule 81

RPE Rule 84 Disclosure and additional
evidence for trial


In order to enable the parties to prepare for trial and
to facilitate the fair and expeditious conduct of the
proceedings, the Trial Chamber shall, in accordance
with article 64, paragraphs 3 (c) and 6 (d), and article
67, paragraph (2), and subject to article 68,
paragraph 5, make any necessary orders for the
disclosure of documents or information not
previously disclosed and for the production of
additional evidence.
To avoid delay and to ensure that the trial
commences on the set date, any such orders shall
include strict time limits which shall be kept
under review by the Trial Chamber.
Trust me, I am a Prosecutor
AND
 Lubanga Dyilo, TC, Decision on the
Consequences of Non-disclosure of
Exculpatory Materials Covered By
Article 54(3)(e)... etc, 13 06 2008


Lubanga Dyilo, AC, Judgment on the
Appeal of the Prosecutor etc 21 10 2008
AND

Lubanga Dyilo, AC, Judgment on the
Appeal of the Prosecutor Against the
Decision of Trial Chamber I entitled
“Decision on the Release of Thomas
Lubanga Dyilo”, 21 10 2008
False testimony: Lubanga Dyilo
First witness on 28 January 2009, prosecution
witness 298 initially testified that he and his
friends were coming home from school when
armed UPC soldiers took them to a military
training camp but later said in light of the oath he
had taken to tell the truth before the Court, the
 questioning was causing him problems and said
his testimony came from someone else.
 Said testimony not true.
 He said, "they taught me that over three and a
half years. I don't like it. I would like to speak my
mind as I swore before God and before
everyone."

False testimony
After 2 week adjournment, the witness
recanted his recantation.
 Prosecution used 7 intermediaries to
contact about half the incriminating
witnesses and 23 individuals or
organisations as intermediaries overall.
 Chamber initially resisted disclosure of
IDs.

False testimony


PW 15 testified on 16 June 2009.
“...I met the OTP's intermediary who told me the
following. He said. You have to change your name,
you have to change your identity. Don't give the true
story that took place; in other words, there was a
story that they were telling to the witnesses. And I
say that they're crooks. Why is it that I say that
they're crooks and swindlers? Well, instead of letting
me tell the true story of what took place and instead
of letting me describe all of the events that I lived
through, they are inventing statements in order to
manipulate the investigation.” Said original statement
wrong and "they're doing that to get rich”
False testimony
Defence witnesses described
intermediaries as collecting witnesses,
promising money and concocting
stories.
 03 02 2010 Chamber requested full
information on all intermediaries and
individuals who may not be referred to
as intermediaries, facilitators of contact
with potential witnesses.

False testimony

Defence have shown considerable
evidence of conspiracy to perjure, and
even “inappropriate behaviour” by Legal
Representatives of Victims has been
alleged - which they have completely
denied.
Lubanga Dyilo



TC Decision on the press interview with Ms Le
Fraper du Hellen 12 05 2010
15 March 2010 OTP senior staff member
interviewed by internet journalist :
Enthusiastic endorsement of intermediaries:
“We are very careful about who we choose as
intermediaries [...] There was absolutely no
abuse of process. Prosecutor MorenoOcampo is a very accurate and fair prosecutor.
[...] So this is just talk [...] I understand the
defence entirely [...] it's their last chance but
nothing is going to happen. Mr Lubanga is
going away for a long time.”
Trust me, I am a Prosecutor

17 03 2010 - Chamber observed that
“strong support for the intermediaries
was a theme of the interview, and thus it
was presumably founded on firm and
substantial evidence. As a result, the
Chamber was concerned by the
absence of any prosecution evidence in
line with this unequivocal and firm
indication.” TC ordered disclosure.
Trust me, I am a Prosecutor

TC asked the Prosecutor “whether it is
now the position of the Prosecutor that it
is for him to determine, first, whether
facts have been proven in the case and,
second, the trial's ultimate outcome: that
the accused is to be convicted and
thereafter sentenced to a long period of
imprisonment (particularly given the
unqualified statement that Mr Lubanga
is going away for a long time).”
Trust me, I am a Prosecutor

TC said: “43. In addition, the remark by
the prosecution representative that the
Prosecutor had disclosed all the
exonerating evidence to the defence in a
very timely manner was incorrect and
misleading. Put shortly, the delays in
service of the prosecution's exculpatory
material and that covered by Rule 11 of
the Rules were considerable and they
have been extensively documented.”
Trust me, I am a Prosecutor

TC said: “46. Repeatedly, the Trial
Chamber has reminded the
prosecution of its duty to disclose
potentially exculpatory material,
due to inexcusable delays in
fulfilling its obligations.”
Trust me, I am a Prosecutor

TC said: “47. The criticism in the press
interview suggesting that the defence
has failed to respect its disclosure
obligations was equally incorrect. The
Chamber has described the extent of
these obligations in various
Decisions, and the defence has
abided by those rulings.”
Article 69
(7) Evidence obtained by means of a
violation of this Statute or internationally
recognized human rights shall not be
admissible if:
 (a) The violation casts substantial doubt
on the reliability of the evidence; or
 (b) The admission of the evidence would
be antithetical to and would seriously
damage the integrity of the proceedings.

ICC Case Lubanga Dyilo
RAISES
 Issue of conspiracy to pervert the course
of justice
 The Prosecutor’s Impartiality
 Role of Abuse of process doctrine at
ICC
 General right to fair trial Article 67 (1)


WATCH THAT SPACE
Structure

Generally: sources of law



Multiple jurisdictions
Investigations
Arrest Warrants

Arresting state


Pre-trial
Trial
 Judgement
 Appeal
 Remedies
Judgement
 Article
74 (5) The decision
shall be in writing and shall
contain a full and reasoned
statement of the Trial
Chamber's findings on the
evidence and conclusions.
Structure

Generally: sources of law



Multiple jurisdictions
Investigations
Arrest Warrants

Arresting state



Pre-trial
Trial
Judgement
 Appeal
 Remedies
Appeal
Article 81
 Appeal against decision of acquittal or
conviction or against sentence

Procedural error,
 Error of fact,
 Error of law, or
 Any other ground that affects the fairness
or reliability of the proceedings or decision.

Acquitted but in custody
Art 81 (c) In case of an acquittal, the accused shall
be released immediately, subject to the following:
 (1) Under exceptional circumstances, and having
regard, inter alia, to the concrete risk of flight, the
seriousness of the offence charged and the
probability of success on appeal, the Trial
Chamber, at the request of the Prosecutor, may
maintain the detention of the person pending
appeal;
 (2) A decision by the Trial Chamber under
subparagraph (c) (i) may be appealed in
accordance with the Rules of Procedure and
Evidence.

Article 82 – Appealing other
decisions
Re jurisdiction or admissibility;
Re. release of the person being
investigated or prosecuted;
 Re PTC’s proprio motu acting on its own
initiative under article 56, paragraph 3;
 Re decision involving issued significantly
affecting the fair and expeditious conduct
of the proceedings or the outcome of the
trial, and for which, Chamber thinks an
immediate resolution by the Appeals
Chamber might materially advance the
proceedings.


Interlocutory Appeal





Katanga and Chui AC "Judgement on the
Prosecutor's Application for Evidentiary
Review of Pre-Trial Chamber I's 31 March
2006 Decision Denying Leave to Appeal”
13 July 2006
a. Is there an "appealable issue";
b. Can it significantly affect:
i. fair and expeditious conduct of the
proceedings or ii. outcome of the trial; and
c. Would immediate resolution by AC
materially advance the proceedings.
Article 84 revision




(a) New evidence unavailable at time of trial,
without fault by moving party and
sufficiently important that if proved at trial
would have been likely to have resulted in a
different verdict;
(b) newly discovered that decisive evidence,
taken into account at trial was false, forged or
falsified;
(c) One or more of the judges who participated
in conviction or confirmation of the charges
has committed, in that case, an act of serious
misconduct or serious breach of duty as to
justify removal from office under article 46.
Structure

Generally: sources of law



Multiple jurisdictions
Investigations
Arrest Warrants

Arresting state




Pre-trial
Trial
Judgement
Appeal
 Remedies
Article 85 Compensation
Unlawful arrest or detention
 Conviction reversed on the ground of
miscarriage of justice based on new fact,
punishment gives rise to compensation if
no fault as to non-disclosure.
 In exceptional circumstances, where
conclusive facts show there has been a
grave and manifest miscarriage of justice,
court has discretion to compensate .
