The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence 1107027888, 9781107027886

A comprehensive source of the most authoritative statements of the International Criminal Court's appellate jurispr

399 10 3MB

English Pages 742 [727] Year 2018

Report DMCA / Copyright

DOWNLOAD PDF FILE

Recommend Papers

The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence
 1107027888, 9781107027886

  • 0 0 0
  • Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up
File loading please wait...
Citation preview

THE APPEALS CHAMBER OF THE INTERNATIONAL CRIMINAL COURT

This volume is a comprehensive source of the most authoritative statements of the International Criminal Court’s appellate jurisprudence. Its clear format includes commentaries followed by excerpts of the decisions and judgments, carefully selected by lawyers based on their relevance and grouped by topic. It provides a practical background to the International Criminal Court’s appellate jurisprudence from experienced current and former Appeals Counsel of the Office of the Prosecutor of the Court, highlighting pertinent issues. In doing so, readers are given the tools to discern the meaning of the case law themselves, while attention is drawn to the most important developments in the jurisprudence. This text presents an authoritative and comprehensive digest of the Appeals Chamber’s jurisprudence, bringing the relevant case extracts together for the first time with clear and informative commentary. fabricio guariglia is Director of the Prosecution Division, Office of the Prosecutor, International Criminal Court. ben batros is Legal Consultant and a former Appeals Counsel, Office of the Prosecutor, International Criminal Court. reinhold gallmetzer is Appeals Counsel, Office of the Prosecutor, International Criminal Court. george mugwanya is Appeals Counsel, Office of the Prosecutor, International Criminal Court and Advocate of the High Court of Uganda

THE APPEALS CHAMBER OF THE INTERNATIONAL CRIMINAL COURT Commentary and Digest of Jurisprudence

FABRICIO GUARIGLIA BEN BATROS REINHOLD GALLMETZER GEORGE MUGWANYA

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107027886 DOI: 10.1017/9781139227155 © Cambridge University Press 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Guariglia, Fabricio. | Batros, Ben. | Gallmetzer, Reinhold. | Mugwanya, George William. Title: The appeals chamber of the International Criminal Court : commentary and digest of jurisprudence / Fabricio Guariglia (International Criminal Court), Ben Batros (Open Society Justice Initiative, New York), Reinhold Gallmetzer, George Mugwanya. Description: Cambridge [UK] ; New York, NY : Cambridge University Press, 2018. Identifiers: LCCN 2018010372 | ISBN 9781107027886 Subjects: LCSH: International Criminal Court. | Criminal procedure (International law) | Appellate procedure. | International criminal law. | International Criminal Court – Digests. | LCGFT: Court decisions and opinions. Classification: LCC KZ7312 .A67 2018 | DDC 345/.0144–dc23 LC record available at https://lccn.loc.gov/2018010372 ISBN 978-1-107-02788-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Håkan Friman, John R. W. D. Jones and Lorenzo Pugliatti In Memoriam

CONTENTS

List of Contributors page xx Foreword xxiii Foreword xxvii Preface xxix Acknowledgements xxxiv Disclaimer xxxv List of Abbreviations xxxvi Table of Cases xxxviii A Interpretation and Structural Issues Commentary

1

Jurisprudence

21

1

I Applicable Law, Interpretation of the Statute and Other Governing Texts 21 1 General Principles of Interpretation 21 2 Article 21(1)(c) of the Statute 25 3 Article 21(2) of the Statute: Binding Stare Decisis? 27 4 Article 21(3) of the Statute 27 5 Article 24(2) of the Statute 28 6 Role of the Travaux Préparatoires 28 7 Interpretation of “the Established Framework of International Law” (Customary and Conventional International Law) for Article 8(2)(b) and (2)(e) 28 8 Role of the Jurisprudence of Other International Criminal Tribunals 30 9 Scope and Interpretation of the Regulations of the Court 30 10 The Principle of In Dubio Pro Reo 31 II Exercise of Judicial Functions 32

vii

viii

co ntents 1 Judicial Functions in General 32 2 Adjudication of Applications on a Case-by-Case Basis 33 3 Judicial Discretion 33 4 Obligation to Adjudicate Within the Context of the Respective Case 34 5 Judges Must Make Their Own Factual Findings on which the Decision will be Based 34 6 Duty to Give a Reasoned Decision 35 7 Res Judicata 37 8 Judicial Orders 38 9 Powers and Functions of the Trial Chamber under Article 64(2) 39 III Role of the Registrar and Relationship with Chambers 40 1 Authority of the Registrar 40 2 Obligations of the Registrar 41 3 Review of Decisions by the Registrar 42 IV Authority of the Prosecutor 43 1 Authority of the Prosecutor to Conduct Investigations 43 2 Prosecutor Enjoys High Margin of Discretion under Article 53 (Decision not to Investigate) 45 3 Duty of the Prosecutor to Act Impartially 45 4 Obligation to Investigate Objectively under Article 54(1)(a) 46 5 Continuation of Investigations after the Start of the Confirmation Hearing 47 6 Access by the Prosecution to Monitored Information 49 7 Grounds for Disqualification 50 V Defence Counsel, Duty Counsel and Other Forms of Representation 57 1 Defence Counsel: Role, Appointment and Conflict of Interests 57 2 The Role of the Duty Counsel 65 3 The Role of Ad Hoc Counsel: To Represent the Interests of the Defence 65 4 The Role of the OPCD 66

B Jurisdiction and Admissibility Commentary

67

67

ix

c o n te n t s

Jurisprudence

83

I Jurisdiction of the Court 83 1 Four Facets of Jurisdiction of the Court 83 2 Barriers and Challenges to the Exercise of the Jurisdiction 84 II The Criteria for Admissibility of a Case 89 1 The Case is Being Investigated or Prosecuted by a State (Article 17(1)(a)) 89 2 The “Same Person”/“Substantially the Same Conduct” Test 91 3 “A Case is Being Investigated” if there are Investigative Steps Directed at Ascertaining the Criminal Responsibility of the Suspects 95 4 A State has Investigated the Case and Decided Not to Prosecute: Article 17(1)(b) 96 5 The Role of Unwillingness or Inability 98 6 The Case is Not of Sufficient Gravity: Article 17(1)(d) 101 7 Relationship with the Objectives of the Court 103 III The Procedures for Reviewing or Challenging Admissibility 106 1 The Factual Basis for a Determination of Admissibility 106 2 Review of Admissibility by a Chamber Proprio Motu 108 3 Challenges to Admissibility by a Person or State 111 4 Participation of Victims and the States in Admissibility Proceedings 117 5 Domestic Proceedings Pending the Determination of an Admissibility Challenge 117

C Cooperation and Judicial Assistance Commentary

118

Jurisprudence

120

118

I The Court’s General Power to Request the Cooperation of States 120 II Specific Forms of Cooperation 120 1 The Court’s Power to Request the Freezing and Forfeiture of Assets 120 2 Required Attendance of Witnesses 123 3 Transfer Persons in Custody to Give Testimony 124

x

contents III State Non-compliance and Referrals (Article 87(7)) 125 1 Decision to Refer Non-cooperation is Discretionary 125 2 Discretion in Determining what Factors are Relevant 127 3 (Non)-Compliance Proceedings not to be Conflated with Proceedings against the Accused 129

D Arrest and Detention Commentary

131

Jurisprudence

144

131

I Arrest Warrants and Summons to Appear: Article 58 144 1 General Principles 144 2 Requirements for Issuing a Warrant 144 3 Additional Grounds of Detention 156 4 No Right to be Heard on Replacement of a Summons with Warrant of Arrest 157 5 Relationship between ICC Warrant and Domestic Procedures 157 6 Summons to Appear 158 II Pre-Trial Detention/Interim Release: Article 60 158 1 Applications for Interim Release: Article 60(2) 158 2 Conditional Release: Rule 119 162 3 Periodic Review of Ruling on Release or Detention: Article 60(3) 166 4 Protection against Unreasonable Detention: Article 60(4) 174 5 Release in Case of a Stay of Proceedings 176 6 Release in “Exceptional Humanitarian Circumstances” 178

E Charges and Confirmation Hearing Commentary

179

Jurisprudence

189

I The Nature of the Charges 189 1 Applicable Provisions 189 2 Specificity of the Charges 189 3 Confirmation Decision and Auxiliary Documents 191

179

c o n te n t s II Amendments to the Charges 192 1 General Principles 192 2 The Relationship between Article 61(9) and Regulation 55 193 3 The Entire Process of Amending the Charges must be Completed Prior to the Start of Trial: Article 61(9) 194 4 The Prosecutor may Request Postponement of the Trial Pending the Outcome of a Request to Amend the Charges 194 III The Confirmation of Charges Hearing 196 1 General Principles Relating to the Confirmation of Charges Hearing 196 2 Evidentiary Rules at the Confirmation Hearing 199 3 Use of Summaries at the Confirmation Hearing under Article 61(5) 200 4 Power of the Pre-Trial Chamber to Review Weight of Evidence 201

F Disclosure and Redactions Commentary

205

Jurisprudence

214

205

I Right of the Accused to Disclosure and Inspection 214 1 General Principles Governing Disclosure 214 2 Pre-trial Disclosure Relating to Prosecution Witnesses: Rule 76 216 3 Right to Disclosure of Exculpatory Material 219 4 Inspection of Information Material to the Preparation of the Defence: Rule 77 220 5 Disclosure in Relation to Applications for Interim Release 223 II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) 225 1 General Principles 225 2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(4) 228 3 Scope of Protection under Rule 81(4) 230 4 Summaries as a Protective Measure: Article 68(5) 232 III Redactions to Protect Investigations: Rule 81(2) 233 1 General Principles 233

xi

xii

c o n te n ts 2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(2) 235 3 Specific Categories of Information which can be Protected under Rule 81(2) 236 IV Reliance upon Redacted Documents or Summaries 237 V Protection of Confidential Information Gathered under Article 54(3)(e) 239 1 General Scope and Purpose of Article 54(3)(e) 239 2 Relationship between Article 54(3)(e) and Disclosure Obligations 240 3 Resolving the Tension between Confidentiality under Article 54(3)(e) and Disclosure under Article 67(2) 241

G The Protection of Victims and Witnesses Commentary

243

Jurisprudence

246

243

I General Principles 246 II The Distribution of Powers regarding Protection 247 1 The Prosecutor’s General Power regarding Protection 247 2 The Responsibilities of the Registry and the VWU 248 3 Particular Considerations regarding Relocation of Witnesses 249 4 Protection in Emergency Situations 250 5 The Powers and Role of the Chamber regarding Protection 251

H Fairness, Expeditiousness of the Proceedings, and Rights of the Accused 253 Commentary

253

Jurisprudence

279

I General Principles 279 1 Fairness 279 2 Expeditiousness 282 3 Proportionality between Fairness and Expeditiousness 283 II Right to be Informed of the Charges and to Adequate Time to Prepare Defence 284 III Right of the Accused to Silence 286 IV Right of the Accused in Relation to Languages 287

contents

V VI VII

VIII IX

1 Standard Required by the ICC 287 2 Relationship between the ICC Standard and the Standards of Other Courts 289 Right of the Accused to Trial without Undue Delay/Expeditious Proceedings 290 Right of the Accused to Legal Representation 291 Right of the Accused to Be Heard and Right to a Reasoned Decision 293 1 Denial of the Right to be Heard 293 2 Right to a Reasoned Decision 293 Defence Strategy or Discretion to Present its Case 295 Stay of Proceedings for Denial of Fairness or Abuse of Process 296 1 Legal Basis for a Stay of Proceedings: Article 21(3) 296 2 Principles Guiding a Stay of Proceedings 298 3 Circumstances in which a Stay of Proceedings has been Contemplated 299 4 Circumstances in which the Stay of Proceedings has not been Upheld by the Appeals Chamber 299 5 Permanent Stay versus Conditional Stay of Proceedings 301

I Offences against the Administration of Justice and Misconduct before the Court 303 Commentary

303

Jurisprudence

307

J Conduct of Trials

309

Commentary

309

Jurisprudence

319

I Admission of Evidence 320 1 The Principle of Orality and its Exceptions 320 II Records of Questioning: Rules 111 and 112 325 1 Purpose and Interaction of Rules 111 and 112 325 2 Specific Purpose of Rule 112 326 III Modifying the Legal Characterisation of Facts 326 1 Regulation 55 is Consistent with the Statute and does not Inherently Violate the Rights of the Accused 327

xiii

xiv

c o n te n ts 2 Regulation 55 is Limited to the Facts and Circumstances Described in the Charges 330 3 Timing of the Application of Regulation 55 332 4 Whether Re-characterisation is Limited to “Lesser Included Offences” 336 5 Not Contingent on Whether Amendment of Charges was First Sought 336 IV Excusal from Trial 337 V “No Case to Answer” Motions 343 1 The Trial Chamber has Discretion to Determine Whether to Entertain a “No Case to Answer” Motion 343 2 Declining to Entertain a “No Case to Answer” Motion is Permitted 343

K Sentencing

346

Commentary

346

Jurisprudence

368

I Standard of Appellate Review 368 II Some Sentencing Guidelines and Principles 369 1 The Trial Chamber should Weigh and Balance all Relevant Factors 369 2 Sentence must Reflect the Culpability of the Convicted Person 369 3 Sentence should be Proportional to the Crime 369 4 Notwithstanding the Two Interpretative Approaches on the Relationship between Article 78 and Rule 145, the Chamber must Consider all Relevant Factors 370 5 Previous Sentencing Decisions are of Limited Guidance as Sentences are Individualised 371 6 Abuse of Authority, not Position of Authority per se, Justifies a Harsher Sentence 372 7 Rule against Double Counting 372 8 A Factor’s Weight Falls Within the Trial Chamber’s Discretion 373 9 Obligation to Deduct Time Spent in Detention 373

L Reparations

374

Commentary

374

Jurisprudence

393

I General Principles

393

xv

c o n te n t s 1 Parties to Reparation Appeals 393 2 Burden and Standard of Proof 393 3 Reparation Principles in Article 75 vis-à-vis Orders for Reparations 394 4 Reparation Principles for Individual and Collective Reparations 394 5 Protective Measures in Relation to Property and Assets to Secure Reparations 395 II Mandatory Elements of a Reparation Order 396 1 Directed against the Convicted Person 396 2 Address the Scope of the Convicted Person’s Liability 397 3 Specify the Type of Reparations: Individual or Collective 397 4 Define the Harm Caused to Victims and Modalities for Reparation 397 5 Identify Eligible Victims or Criteria of Eligibility 398

M Victim Participation in the Proceedings Commentary

399

Jurisprudence

411

399

I Issues Common to Victim Participation in all Phases 411 1 General Requirements and Procedure for Applying to Participate 411 2 Defining “Victim” in Rule 85 and Applying that Definition 413 3 Victims must Demonstrate How their “Personal Interests” are Affected 417 4 Cases Where the Interests of Victims are Affected 421 5 Victims Must Demonstrate that Their Participation is at an Appropriate Stage of the Proceedings 423 6 The Stages of Proceedings at Which Victims may Participate 424 7 Principles Governing the Modalities of the Participation of Victims and the Expression of “Views and Concerns” 425 8 Participation of Victims under other Provisions (including Articles 15, 19 and 75 and Rules 93, 94 and 143) 426 9 Legal Representation of Victims 428

xvi

c o n te n ts II Victim Participation in the Situation 430 1 Absence of General Participatory Rights of Victims in an Investigation 430 2 Victim Participation in Judicial Proceedings in a Situation 431 III Victim Participation in the Case 431 1 Participation of Victims at Trial 431 IV Victim Participation in Appeals 443 1 Automatic Victim Participation in Interlocutory Appeals under Article 82(1)(b) and (d) 443 2 Victim Participation in Other Interlocutory Appeals 444 3 Modalities of Participation in Interlocutory Appeals 452 4 Participation of Victims in Final Appeals 455 V Victim Participation in Reparations Proceedings 456 1 Victims’ Right to Participate in Reparations Proceedings 456 2 Victim Status for the Purpose of Reparations Proceedings 457 3 Right of Victims to Appeal the Relevant Decision due to Participation in the Reparations Proceedings 457 4 Unidentified Victims Who Have Not Applied for Reparations may be Denied the Right to Appeal 458

N Substantive Law

459

Commentary

459

Jurisprudence

477

I Modes of Liability 477 1 Co-perpetration 477 2 Article 25(3)(d): Common Purpose Liability 481 II War Crimes 482 1 Interpretation of Article 8(2) 482 2 There are no Status Requirements that Distinguish War Crimes under the “Established Framework of International Law’’, that is, International Humanitarian Law 483

O Conduct of Appeals Commentary

487

Jurisprudence

515

487

contents I Nature and Scope of the Appellate Jurisdiction 515 1 The Corrective and Confined Nature of Appeals 517 2 The Appeals Chamber Does Not have Original Jurisdiction or an Advisory Function 519 II Decisions Which May be Subject to Interlocutory Appeal 519 1 Interlocutory Appeals Strictly Limited to Those Prescribed in Article 82 520 2 Appeals under Article 82(1)(a): Jurisdiction and Admissibility 523 3 Appeals under Article 82(1)(b): Detention and Release 532 4 Appeals under Article 82(1)(d): Other Interlocutory Appeals with Leave of the Chamber 536 5 Appeals under Article 82(4): Reparations Order 541 III Grounds of Appeal, Variation of Grounds and Standards of Review 545 1 Grounds of Appeal 545 2 Variation of Grounds of Appeal before the Appeals Chamber: Regulation 61 550 3 Standards of Review 551 IV Procedure on Appeal 560 1 Parties to an Appeal 560 2 The Appeals Chamber may Consider Preliminary Issues Prior to the Merits 563 3 Replies and Additional Submissions in Interlocutory Appeals: Regulations 24 and 28 563 4 Discontinuance of an Interlocutory Appeal 567 5 Oral Hearings before the Appeals Chamber 568 6 Expeditiousness of Appeal Proceedings 570 7 Summary Decisions are Authoritative Decisions 570 V Replies and Responses in Appeal Proceedings 571 1 Responses: Regulation 59 571 2 Replies: Regulation 60 571 VI Remedies on Appeal 571 1 Scope of the Issues to be Adjudicated by the Appeals Chamber 571

xvii

xviii

c o n t en t s 2 The Error Must have Materially Affected the Decision under Appeal 573 3 The Appellant Cannot Raise Errors in Assessments made in Prior Decisions 576 4 Available and Appropriate Remedies on Appeal 577 5 Powers that the Appeals Chamber may not Exercise on Appeal 579 VII Additional Evidence on Appeal: Regulation 62 580 1 General Principles 580 2 Considerations for the Admission of Additional Evidence on Appeal 580 3 Rebuttal Evidence 583 4 Additional Evidence and Revision Proceedings 583 VIII Suspensive Effect 583 1 General Principles on the Appeals Chamber’s Power to Order Suspensive Effect 583 2 Procedure to Apply for Suspensive Effect 586 3 Consideration of Requests for Suspensive Effect 587 4 Suspensive Effect is not the Same as the Power to Stay Proceedings 593 5 Suspensive Effect of an Order for Reparations 594

P Miscellaneous Procedural Issues Commentary

597

Jurisprudence

604

597

I Participation of Amicus Curiae 604 1 The Decision on Whether to Accept Amicus Curiae is Discretionary 604 2 Factors Relevant to Granting Leave to Participate as Amicus Curiae 605 3 Procedural Issues Relating to Amicus Applications 608 II Replies in Pre-Trial and Trial Proceedings: Regulation 24 610 III Chambers’ Clarification and Reconsideration of Decisions 611 1 Clarification of Decisions 611 2 Reconsideration of Decisions 611 IV Confidentiality of Documents and Information 612

xix

contents 1 Confidential Filings 612 2 Reclassification of Confidential Filings 615 3 Regime of “Ex Parte” Applications 616 V Formal Requirements of Filings 616 1 General Principles 616 2 Time Limits 618 3 Word Limits, Formatting, Footnotes and Inclusion of Legal Basis 621 4 Annexes 623 5 Corrigenda 623 6 Remedies or Sanctions for Non-Compliance 624 VI Applications for Extensions of Time 626 1 Procedural Factors 626 2 Factors Which May Show Good Cause for an Extension of Time 627 3 Factors That do not Show Good Cause for an Extension of Time 633 VII Applications for Extensions of Page Limits 635 1 Procedural Factors 635 2 Factors Which may Show Exceptional Circumstances Justifying the Extension of the Page Limit 637

Q Index of Digested Decisions General Index

679

640

CONTRIBUTORS

Dr Fabricio Guariglia has been Director of the Prosecution Division in the Office of the Prosecutor (“OTP”) at the International Criminal Court since 2014, working for the OTP, principally as Senior Appeals Counsel and Head of the Appeals Section, since 2004. Prior to that, he worked as Appeals Counsel in the OTP of the ICTY. In addition, he was a Visiting Fellow at the London School of Economics, Adjunct Professor at the University of Buenos Aires and an external professor at the Di Tella University in Buenos Aires. He holds a law degree from the University of Buenos Aires and a PhD from the University of Münster. Fabricio has published extensively on international criminal law, comparative criminal law and human rights law. Ben Batros served as Appeals Counsel in the Office of the Prosecutor of the International Criminal Court from 2005 to 2010. Prior to this, he worked for the Australian Attorney-General’s Department from 2001 to 2004, including on Australia’s ratification of the Rome Statute, legislation to implement the Statute domestically, and obligations as a State Party. Since leaving the Court, Ben has worked with the Open Society Justice Initiative as Legal Officer and Acting Director of Programs, and is now a consultant on international law and accountability. Ben holds a BA and LLB (Hons) from the University of Western Australia and an LLM from the University of Cambridge. Reinhold Gallmetzer is an Appeals Counsel at the Office of the Prosecutor of the International Criminal Court. His previous positions include Associate Legal Officer, Chambers, ICC; Associate Legal Officer, Chambers, ICTY; Judicial Training Officer, Kosovo Judicial Institute, OSCE; and Legal Consultant to the authorities in South Sudan and to the Criminal Defence Section of the State Court in Bosnia and Herzegovina. Reinhold is the founder of the Center for Climate Crime Analysis, a non-profit organisation of prosecutors and law enforcement professionals who trigger and support prosecutions of criminal activities xx

l i s t o f c o n t r i b u tor s

xxi

that are associated with the emission of significant amounts of greenhouse gases. He holds a law degree from the University of Innsbruck and Padova, and an honours degree from Glasgow University. Dr George Mugwanya is an Appeals Counsel at the Office of the Prosecutor, International Criminal Court. Previously, he practised law in several capacities at the trial and appellate levels at the UN International Criminal Tribunal for Rwanda. Formerly a Senior Lecturer at Makerere University, Uganda, he holds a Doctor of Juridical Sciences (summa cum laude) (Notre Dame Law School, Indiana, United States). He has authored extensively, including The Crime of Genocide in International Law (2008), Human Rights in Africa (2003), and over two dozen book chapters and articles in refereed journals around the world.

FOREWORD

As we celebrate the fifteenth anniversary of the establishment of the International Criminal Court (“ICC” or “the Court”), the Office of the Prosecutor is pleased to publish The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence, a compilation of legal developments arising from the Appeals Chamber of the Court, prepared with the insight of my learned and indefatigable colleagues from the Prosecution Division, namely its Appeals Section. This tool has been conceived with a view to taking stock of the important contributions the ICC has made to date to the evolution of international criminal law, as well as to serve as a guide to my Office and other interested end-users in advancing international criminal justice through the force of the law and overcoming the complex legal and operational challenges facing us. Mandated to be the first permanent court for trying atrocity crimes, the ICC plays an integral role in shaping the development of international criminal law. Indeed, the last fifteen years have witnessed significant legal developments in a number of areas. As the ICC breaks new ground, appellate decisions help to delineate the contours of the emerging jurisprudence under the distinct regime established by the Rome Statute, solidify key legal concepts and inform the way future cases should proceed. The Appeals Chamber has elaborated, in greater detail, on the ICC’s approach towards a wide range of issues. In entrenching the general principles of interpreting the Rome Statute and other seminal legal documents of the Court, the Chamber has provided guidance on the applicability of secondary sources of law, specifically, the supplementary role of the travaux préparatoires and the precedential value of decisions from other international criminal tribunals. In addition, it has shed light on the proper exercise of judicial functions and the role of the Registrar, which not only assists global justice partners in understanding the ICC’s mechanisms and legal processes, but also strengthens inter-organ cooperation by providing the requisite certainty and clarity respecting each organ’s functions and independence. xxiii

xxiv

foreword

Victims’ participation, a feature unique to the ICC in the international criminal law arena, was also the subject of extensive reflection and legal pondering by the Appeals Chamber, as for the first time in the history of international criminal law, individuals who have suffered from the commission of crimes within the jurisdiction of the Court are afforded the right to participate in proceedings through legal representation. Yet the procedural modalities and practical complexities of such participation raise important questions for both the efficiency of the judicial proceedings and the rights of suspects and accused persons, requiring the right balancing act. A series of important appellate decisions have hence helped to determine the scope of this right and the manner in which it could be exercised at pre-trial and trial stages, a crucial step forward in recognising the victims’ rights and experiences, and increasing their faith in the international criminal justice system. Importantly for the Office, appellate decisions further outlined the Prosecutor’s authority in the realm of investigations as well as the nature and scope of prosecutorial discretion. Additionally, various procedural and evidentiary issues, central to the Office’s work, were given judicial clarity. For instance, the nature, grounds, standard and procedure of appellate review were among the first issues on which the Appeals Chamber was asked to deliberate. The Appeals Chamber also solidified rules relating to, inter alia, admissibility, disclosure and confidentiality. The standards, thresholds and tests established by the generated jurisprudence have proved to be useful guidelines for the Office, including colleagues in the field, who look to them to carry out their daily work objectively and impartially. In this regard, the appellate jurisprudence is an invaluable reference for the Office to use to strengthen its institutional capacity to conduct effective preliminary examinations, investigations and prosecutions. The Office will continue to incorporate and be guided by this jurisprudence, including, where applicable, in Office policies, strategies and best practices, as part of our effort to achieve greater efficiency and transparency. Most notably, the recent Ntaganda decision unanimously affirmed the ICC’s jurisdiction over war crimes of rape and sexual slavery committed by members of an armed group against other members of the same armed group, a landmark development in international humanitarian and criminal law. In so doing, the Appeals Chamber reinforced the normative framework of the Rome Statute for the accountability of sexual and gender-based crimes and made a significant contribution to the protection of vulnerable persons in armed conflict. The Ntaganda decision is particularly encouraging for this Office as we have elevated the

foreword

xxv

prosecution of sexual and gender-based crimes and crimes against and affecting children, and their prevention, as chief priorities. The comprehensive policies we have adopted in these areas are a testament to our resolve to address these heinous crimes through the vector of the law. The efficient and fair prosecution of crimes under the Rome Statute is facilitated on the strength of a clearly established legal framework. Legal developments at the appellate level, by adding to and strengthening the emerging body of jurisprudence, thus represent significant steps forward towards the aim of closing the impunity gap. Here, I also want to acknowledge the commendable contributions of the Office towards settling the law through its many well-reflected submissions before the Court’s Chambers. In accordance with the principle of complementarity, the Office will continue to encourage and support national efforts to hold persons accountable for atrocity crimes. I trust that this Digest will not only aid national jurisdictions and other actors in developing national legislation and best practices that address genocide, war crimes and crimes against humanity, but also add to academic discussions and promote meaningful cooperation with States, international and local organisations, and relevant entities. This Digest is a compilation of the ICC’s appellate jurisprudence – it is by no means the final word. As the ICC continues to clarify existing jurisprudence and adjudicate on novel issues in international criminal law, the Digest will be updated accordingly. I wish to express my earnest gratitude to my colleagues who have contributed to its development in one form or another. Without their expertise, dedication and hard work the Digest would not have been possible. It is my hope that this Digest will serve as a useful reference guide for all committed to the fight against impunity for the world’s most heinous crimes, and will provide a solid foundation upon which the ICC will build in the years ahead to advance its important mandate. It is an important and timely contribution, which through the depth and thoroughly reflected quality of its content offers real value. This impressive work will leave neither the academic nor the practitioner indifferent to its considerable insights. Dr Fatou Bensouda Prosecutor of the International Criminal Court

FOREWORD

The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence is a gift to the practitioners, scholars, judges and others who require an understanding of the appellate decisions and judgments of the Court. Its authors, themselves experienced practitionerscholars of international criminal law, have designed the Digest to serve as a reference tool summarising decisions on issues, respecting which the Appeals Chamber has authoritatively spoken. They have also identified key passages in those decisions. As the Appeals Chamber interprets the provisions of the Rome Statute, it breathes life into its text. It clarifies and develops the law on the Court’s operations, powers and responsibilities, even while doing justice in the individual case. Thus, a digest of the Court’s appellate jurisprudence is crucial to understanding the evolution of the Court’s practice and procedure, and how the law should apply in any particular situation. The experience of the Digest’s authors accords them a practitioner’s eye to utility and clarity. As seasoned appellate litigators, with experience before the ICC Appeals Chamber, they all know the true value of the reference tool they have created. Within a logical and progressive framework, elegant and thoughtful commentaries precede key extracts of decisions and judgments, providing a simple, user-friendly guide to the Court’s appellate jurisprudence. The Commentary appearing at the start of each chapter in the Digest presents a helpful overview and analysis of the legal issues discussed in the chapter, allowing the reader to gain a quick grasp of the legal concepts being treated and how the Appeals Chamber has interpreted and applied them. The reader is thus able to locate what is relevant for his or her research, and get on a fast track to the pertinent decisions and judgments. The extracts that follow the commentaries enhance the ability to identify decisions on point. The authors offer readers the sensible advice to consult the full decision or judgment before citing it, but the extracts xxvii

xxviii

f o r ew o r d

they provide also whet one’s appetite to read the whole decision or judgment, to enhance one’s knowledge and feel for the law. Thus, the Digest, with its thoughtful analyses and helpful extracts, will equip practitioners, scholars, judges and all those many others who study the ICC and the development of international criminal law with a reference tool of inestimable value. It will deepen understanding, both scholarly and practical, of the Court’s appellate jurisprudence, enhancing the study of modern international criminal law. It should also reinforce our appreciation of the significance of the role the Court plays in delivering justice to victims of the crimes the ICC was created to address. James K. Stewart Deputy Prosecutor International Criminal Court

PREFACE

On 2 October 1995, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) Appeals Chamber issued a seminal decision in an interlocutory appeal challenging the jurisdiction of the Tribunal brought by its first defendant, Duško Tadić.1 The decision was revolutionary in many ways, including its assertion of the ICTY’s authority to scrutinise its own competence (KompetenzKompetenz), its definition of armed conflict (which became an “instant classic” and continues to guide international courts today), and its conclusions on the applicability of international customary law to situations of internal conflict. The ruling also triggered an era of international appellate practice and case law – the first of its kind, since appellate review was virtually non-existent in both the Nüremberg and Tokyo tribunals. Almost eleven years later, the ICC Appeals Chamber issued its first ruling. It was a much more modest decision, focused on a single question, namely, whether a Pre-Trial Chamber had erred in concluding that a case against a military commander from the Democratic Republic of the Congo was not grave enough to be admissible before the ICC, because the commander was not, in that Chamber’s view, one of the “most senior leaders” in the region.2 A number of distinctive features of the Appeals Chamber’s case law, as it emerged during the ICC’s first decade, are already present in this decision: in a concise document (25 pages), the Appeals Chamber carefully examined the issues before it, adopted a surgical approach to the remedial action required, and refused to go beyond the strict limits of its jurisdiction when analysing the appropriate

1

2

Prosecutor v. Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. Situation in the DRC, Judgment on the Prosecutor’s appeal against the decision of PreTrial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, ICC-01/04-169, 13 July 2006.

xxix

xxx

preface

relief in the circumstances.3 This “cautious exercise of the Appeals Chamber’s powers”, as one veteran legal adviser to the Appeals Chamber describes it,4 or judicial restraint in the discharge of appellate functions,5 has been a trademark of the Appeals Chamber’s practice and case law to date. The contrast between these appellate bodies may be explained by multiple factors, starting with the obvious fact that the ICTY was the first international criminal tribunal since Nüremberg and Tokyo, and at the time of its inception, international criminal law was effectively terra incognita. In such a context, the ICTY Appeals Chamber may have properly concluded that, in addition to deciding on the legal and factual issues brought before it, it also had to perform an educational function and provide extensive guidance on the law, leading to an “almost textbook-like approach”6 in its early judgments.7 The ICC Appeals Chamber started its operations in very different circumstances: it had received from States Parties a lengthy and detailed Statute, supplemented by the Elements of Crimes and the Rules of Procedure and Evidence, and by the time it commenced its work, it had the benefit of more than ten years of ICTY and International Criminal Tribunal for Rwanda (“ICTR”) practice and jurisprudence, which continued to evolve and grow. In addition, the ICC Appeals Chamber seems to have preferred a “bottom-up”, as opposed to “top-down”, approach for the development of ICC practice and law, favouring a gradual process8 and confining its role to solving those specific matters which were squarely before it.

3

4

5

6

7

8

The Appeals Chamber reversed the impugned decision for legal error, but refused to (a) identify the correct legal principle in the interpretation of article 17(1) of the Statute, and (b) determine that the case against Ntaganda was admissible (see ibid., paras. 86 et seq.). Judge Pikis dissented. Nehrlich, V., “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 978. Batros, B., “The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC”, Leiden Journal of International Law, Vol. 23, Issue 2 (2010), p. 343. Expression taken from Nehrlich, V., “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 979. The fact that the first president of the ICTY (and its Appeals Chamber) was a renowned academic, Antonio Cassese, may have also played a role. Nehrlich refers to the Appeals Chamber giving “room for growth and for a step-by-step development of the law”, in “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 980.

pr eface

xxxi

Considering this cautious approach, and also the fact that for a significant part of its initial phase the Appeals Chamber had to deal primarily with interlocutory appeals emanating from a few cases, it should not be surprising that it took eleven years for the Chamber to issue a decision capable of producing a transformative effect in international law comparable to that of the ICTY Tadić appeal ruling on jurisdiction – and, curiously, also in the context of an appeal on jurisdiction. The decision, providing new protections to members of armed forces against certain international humanitarian law (IHL) violations, such as the crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (2)(e)(vi) of the Statute, was nonetheless written in the Appeals Chamber’s customary concise and economical style, without delving into considerations that were not strictly necessary for the thema decidendi.9 But the fact that the ICC Appeals Chamber may have been more conservative in its judicial approach than its ICTY or ICTR sisters does not mean that the Chamber has performed a lesser role in developing the Court’s practice to date. On the contrary, and as highlighted by Fatou Bensouda in her foreword, the Appeals Chamber, through an exercise of patient craftsmanship, has made critical contributions to shaping the Court’s case law and practice during its first fifteen years; providing clarity vis-à-vis obscure areas of the Statute and the Rules; delimiting the division of functions between different organs of the Court; and correcting practices from first instance Chambers that it considered incompatible with a proper and faithful reading of the Statute. In this sense, the Appeals Chamber provided essential guidance on matters as diverse and important as the proper ambit of jurisdictional challenges under the Statute, the test for admissibility of a case under article 17, the breadth and scope of victims’ participatory rights under article 68(3), the nature of the confirmation of charges process, the proper limits of a Trial Chamber’s authority to amend the legal characterisation of the charges, and the compatibility of the theory of indirect 9

I refer to the appeal brought by Ntaganda against a decision on jurisdiction, claiming that the Trial Chamber had erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the Geneva Conventions. See Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017. The decision is commented on in the commentary of Chapter N, Substantive Law, below.

xxxii

pr eface

perpetration within article 25 of the Statute, to name only a few. It did this while embracing a narrow, corrective reading of its own jurisdiction, declining to follow a de novo review model.10 Obviously, the Appeals Chamber case law has focused initially on procedural matters arising from pre-confirmation, confirmation and trial procedures, as well as threshold issues of jurisdiction and admissibility, and not so much on matters of substantive law. This trend, however, is likely to change as the Court’s procedural regime becomes more settled (not only through case law, but also through the issuance of judicial manuals),11 and the number of final appeals grows. The Appeals Chamber has been somewhat less active in developing its own practice and procedures, in particular in relation to final appeals. To date, there remains a certain level of uncertainty as to how final appeals are managed, starting with the holding of hearings – which the Appeals Chamber in its first composition did not seem particularly enthusiastic about – but also in more routine matters such as scheduling, the monitoring of disclosure on appeal, the use of email communications in lieu of filings, and the holding of status conferences – all areas where the Appeals Chamber’s practice is arguably less developed than that of the Pre-Trial and Trial Chambers of the ICC. Recent amendments to the Regulations of the Court, introducing a new regime for appeals on detention or release,12 indicate a more enthusiastic approach to oral hearings and a more decisive approach to case management functions. It will be interesting to see whether this incipient trend is continued and developed by the next Appeals Chamber.13

10

11

12

13

The discussion on the scope of appellate review is discussed below in Chapter O on Conduct of Appeals. See also Klamberg, M., “Article 81: Appeal Against Decision of Acquittal or Conviction or Against Sentence”, in Klamberg (ed.), Commentary on the Law of the International Criminal Court (Torkel Opsahl Academic EPublisher: Brussels, 2017), p. 606, fn. 652. In September 2015, the ICC judges delivered the Pre-Trial Practice Manual, which was later replaced by the more general Chambers Practice Manual in February 2016 and updated in May 2017, available at: www.icc-cpi.int/legalAidConsultations?name=pr1302, last accessed 15 October 2017. See regulation 64 of the RoC amended 12 July 2017. See also International Criminal Court, “ICC Judges amend the Regulations of the Court”, ICC-CPI-20170720-PR1326, available at: www.icc-cpi.int/legalAidConsultations?name=pr1326, last accessed 15 October 2017. In March 2018, three Judges of the Appeals Division finish their mandate. See International Criminal Court, “Who’s Who”, available at: www.icc-cpi.int/about/judi cial-divisions/biographies/Pages/default.aspx#, last accessed 15 October 2017.

preface

xxxiii

All issues highlighted above, as well as quite a few others, are discussed and illustrated in the following chapters of this book, which documents the work of the Appeals Chamber during the ICC’s first fifteen years of practical existence and seeks to offer a comprehensive description of the issues with which the Chamber had to grapple, and how the Appeals Chamber has contributed to the development and clarification of ICC law. Its genesis was an internal digest that we put in place in the Appeals Section of the Office of the Prosecutor (“OTP”) when we could no longer remember all the decisions of the Appeals Chamber by heart and realised that we needed a more structured system. One day a legal representative of a group of victims, with whom we had shared a few summarised decisions out of courtesy, asked whether there was any manner in which we could make the digest available to a wider audience, starting with those practising before the ICC. That day, the project of putting together this book was born. It would take many years and a lot of effort, however, for that idea to bear fruit. We are indebted to Cambridge University Press, in particular to Finola O’Sullivan, for their support for this project from its very inception and their incredible patience throughout the long and tortuous process of its completion. The book is dedicated to the memory of Judge Håkan Friman, barrister John R. W. D. Jones and OTP trial lawyer Lorenzo Pugliatti, bright and committed international lawyers who left us too soon. Apart from being dear friends and colleagues of the authors of this book, as well as of many other international criminal law scholars and practitioners, all three were passionate believers in international criminal justice, to which they made outstanding contributions. Each of them embodied the qualities of professionalism, integrity and collegiality. But there is another, perhaps deeper, aspect of these lawyers’ lives and achievements: as one of the authors of this book put it, they epitomised the fact that it takes many people working together and in good faith – judges, prosecution and defence, senior and junior – to make international criminal justice work. This book is for them, and for all who wish to embrace their message. Fabricio Guariglia

A Interpretation and Structural Issues

Commentary

fabricio guariglia I Applicable Law, Interpretation of the Statute and Other Governing Texts The Appeals Chamber has had the opportunity to provide guidance on a series of fundamental questions, including the interpretation and application of the law, the requirements of a judicial decision, the binding nature of court orders, and the authority of the Prosecution in the realm of investigations. While these decisions should be seen as the Chamber’s first steps in the process of establishing the fundamentals of the Court’s effective functioning, their importance is considerable and they have already produced a significant impact in the Court’s practice.

a General Principles of Interpretation The Appeals Chamber has clarified that the interpretation of the Statute, like any other treaty, is governed by the Vienna Convention on the Law of Treaties (“VCLT”),1 and in particular, articles 31 and 32.2 Interestingly, the Appeals Chamber has also affirmed the applicability of the principles of interpretation under the VCLT to the Rules, without providing any reasons for extending its application.3 In an earlier 1

2

3

Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. See, inter alia, Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 55.

1

2

in t e r p r e t a t i o n an d s t r u c t u r a l i s s u e s

Dissenting Opinion, Judge Pikis reasoned that the interpretation of the Rules was governed by the principles of interpretation derived from the VCLT, since the Rules supplement the Statute and are the product of an agreement between the States Parties to that particular treaty.4 The Statute must first be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” as per article 31(1) of the VCLT.5 By affirming the applicability of article 31, the Appeals Chamber has implicitly continued the jurisprudential path of the ICTY.6 In Katanga & Ngudjolo, the “object and purpose” of the Statute was held to encompass the aim “to put an end to impunity” and to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished”, quoting verbatim from the Statute’s preambular language.7 The important consequences of this finding were reaffirmed when the Appeals Chamber upheld the legality of the enactment of regulation 55 of the Regulations of the Court (RoC) by the plenary of ICC judges.8 Regulation 55 of the RoC empowers Trial Chambers of the Court to adopt a legal characterisation of the facts charged different to that chosen by the Prosecution in its judgment, under specific conditions. In Lubanga, the Appeals Chamber noted the detrimental consequences of the interpretation put forward by the Defence: if this provision was ultra vires the Statute, and consequently null and void, a Trial Chamber would be forced to acquit if it concluded that based on the evidence presented at trial, the legal qualification confirmed in the pre-trial phase turned out to be incorrect, and this would be detrimental to the Statute’s objective of putting an end to impunity.9 4

5

6

7

8

9

Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/0401/07-521 OA5, 27 May 2008, para. 16. Diss. Op. For a discussion on the use of the principle in international law, see Shaw, M., International Law, 5th edn (Cambridge University Press: Cambridge, 2003), p. 838. See, inter alia, Prosecutor v. Tadić, IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 18; Prosecutor v. Delalić et al., IT-96-21-T, Judgment, 16 November 1998, para. 1161: it is “well settled that an interpretation of the articles of the Statute and the provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 79. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009. Ibid., para. 77.

co mmen t ar y

3

However, ending impunity is not the only value covered by the object of the Statute. In an earlier ruling, the Appeals Chamber considered that the Statute also sought to guarantee “the assurance of the efficacy of the criminal process, and promotes its purpose that proceedings should be held expeditiously. Proceedings should be held without delay, a course consistent with the rights of the accused.”10 While the rules of interpretation under article 31 of the VCLT remain the starting point for interpreting the Statute11 (the role of article 32 of the VCLT will be addressed in greater detail below under subsection (c), Role of the travaux préparatoires), when there is variation between the texts of the Statute, article 33 of the VCLT will apply.12 The Appeals Chamber has concluded that while there is a presumption that every text shares the same meaning, if an attempt to find a common meaning fails, the supplementary means of interpretation under article 32 must then be utilised.13 If such recourse fails, then “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty” should be considered.14

b Applicable Law in Order of Applicability The applicable law is set out in its order of application by article 21(1)(a)– (c). When a matter is exhaustively dealt with by the text of the Statute or that of the Rules (article 21(1)(a)), “no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject” (articles 21(1)(b) and 21(1)(c)).15 Under this strict reading of the Statute, the Appeals Chamber rejected the possibility of using the “general principles of law derived [. . .] from national laws of legal systems of the world [. . .]” contemplated in article 21(1)(c) in order to trigger the Chamber’s jurisdiction to review a decision from a lower Chamber rejecting an application for leave to appeal.16 In that ruling, the Prosecution argued that there was a lacuna in the Statute pertaining to the ability of the Appeals Chamber to examine 10

11

12 15

16

Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/0401/07-573 OA6, 9 June 2008, para. 8. Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 56. Ibid., para. 57. 13 Ibid., para. 57. 14 Ibid., para. 57. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 34; referring to Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, paras. 22–24, 33–42. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006.

4

in t e r p r e t a t i o n an d s t r u c t u r a l i s s u e s

a first instance Chamber’s decision denying a party the possibility to bring a matter before the Appeals Chamber.17 The Appeals Chamber rejected the application in its totality; first, the Chamber considered that the Prosecution had failed to establish the existence of the general principle of law advanced, since the Prosecution could not show that there was a uniform and universally accepted standard applicable to the review of decisions by lower courts denying access to an appellate court.18 Second, the Appeals Chamber considered that the plain terms of the Statute and the Rules did not vest the Appeals Chamber with any authority to review decisions from lower Chambers denying leave to appeal. Accordingly, there was no such lacuna as invoked by the Prosecution; rather, the system was a deliberate choice of the legislator.19 Two salient aspects of this decision can be identified: first, it is curious that the Appeals Chamber decided to discuss the applicability of the third source of law under article 21(1) first, and then analyse whether there was in fact any gap or lacuna in the Statute and the Rules that had to be filled through resort to the general principles of law.20 However, subsequent jurisprudence from the Appeals Chamber has clarified the subsidiary nature of the general principles of national laws under the Statute.21 The second aspect relates to what appears to 17

18

19 20

21

The Prosecution offered examples from fourteen national legal systems from the Civil Law tradition, five from the Common Law and three from jurisdictions applying Islamic law; see Situation in the DRC, Prosecutor’s Application for Extraordinary Review of PreTrial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-141, 24 April 2006, paras. 22–29. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 32: “[i]t emerges from the above that nothing in the nature of a general principle of law exists or is universally adopted entailing the review of decisions of hierarchically subordinate courts disallowing or not permitting an appeal”. Ibid., para. 35. One commentator considers that the Appeals Chamber’s discussion of the Prosecution’s arguments on the applicability of article 21(1)(c), and the ensuing findings, was unnecessary, since “declaring that no remedy lies unless conferred by statute would have been a sufficient explanation for dismissing the Prosecution’s submission”. See Raimondo, F., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff: Leiden/Boston, 2008), p. 155. In a decision issued only a few months later, the Appeals Chamber was categorical: when a matter is exhaustively dealt with by the text of the Statute or that of the Rules, then “no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject”: Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 34. This approach is consistent with the traditional conception of the general principles of international law, whereby the expression of a source of law functions as a tool to close

co mmen t ar y

5

be a restrictive approach to the concept of general principles of national laws. The Appeals Chamber’s ruling would appear to require the existence of a uniform rule in the main legal systems of the world, hence placing a heavy burden on the party seeking to demonstrate the existence of the principle.22 However, when a Chamber is satisfied that the absence of a specific procedural device is not the product of a lacuna but of a legislative choice, it may still import that device into the context of the Statute if interpreting the law in a manner consistent with internationally recognised human rights would require.23 This is precisely what the Appeals Chamber did in Lubanga in relation to the extra-statutory remedy of stay of proceedings due to an abuse of process: after concluding that “the Statute does not provide for stay of proceedings for abuse of process as such”,24 the Appeals Chamber examined the relevance of article 21(3) for the exercise of jurisdiction by the Court, and noted that, under the provision, such exercise of jurisdiction must be “in accordance with internationally recognized human rights norms”.25 It further stated that human rights “underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court”.26 As a result, where a fair trial “becomes impossible because of breaches of the fundamental rights of the suspect or the Accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.”27

22

23

24

25 26

27

gaps and prevent a situation of non liquet. See Shaw, M., International Law, 5th edn (Cambridge University Press: Cambridge, 2003), p. 93. This aspect of the decision has also been criticised as being overly restrictive. See Raimondo, F., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff: Leiden, 2008), p. 155. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 38. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 35. Ibid., para. 36. Ibid., para. 37. This is a much-quoted finding from the Appeals Chamber. See, for instance, Sluiter, G., “Human Rights Protection in the ICC Pre-trial Phase”, in Stahn and Sluiter (eds.), The Emerging Practice of the International Criminal Court (Martinus Nijhoff: Leiden/Boston, 2009), p. 464, and El Zeidy, M. M., The Principle of Complementarity in the International Criminal Law: Origin, Development, and Practice (Martinus Nijhoff: Leiden/Boston, 2008), p. 169. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 37.

6

in t e r p r e t a t i o n an d s t r u c t u r a l i s s u e s

On this basis, the Appeals Chamber, in what has been characterised as a “rather dramatic consequence of article 21(3)”,28 effectively incorporated into the panoply of procedural tools at the disposal of the ICC judges the possibility of staying proceedings if they consider that an abuse of the Court’s process has taken place.

c Role of the Travaux Préparatoires In applying article 32 of the VCLT, the Appeals Chamber has stated that the travaux préparatoires constitute the “supplementary means of interpretation designed to provide a) confirmation of the meaning of a statutory provision resulting from the application of article 31 of the [VCLT] and b) the clarification of ambiguous or obscure provisions and c) the avoidance of manifestly absurd or unreasonable results”.29 The practical importance of the travaux préparatoires is reflected in an Appeals Chamber’s judgment concerning the standard to be applied in order to determine the level of language proficiency of an accused for the purposes of article 67(1)(a) and (f).30 In reversing the Pre-Trial Chamber’s determination that the Accused’s knowledge of French was sufficient for the purposes of following the proceedings, the Appeals Chamber noted that the former Chamber had erred as it “did not comprehensively consider the importance of the fact that the word ‘fully’ is included in the text and the article’s full legislative history”.31 “The fact that this standard is high”, the Appeals Chamber continued, “is confirmed and further clarified by the preparatory work of the Statute, to which the Appeals Chamber turns under article 32 of the Vienna Convention on the Law of Treaties.”32 The Appeals Chamber then embarked on a detailed analysis of the different texts discussed during the negotiations of the Statute, and, basing itself, inter alia, on a footnote attached to the draft version of article 67(1)(a), concluded that the Statute had effectively adopted a high standard, “higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR. To give effect to this higher standard must mean that an accused’s request for interpretation into a language other than the Court’s 28

29

30

31

Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), p. 399. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 40. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/0401/07-522 OA3, 27 May 2008. Ibid., para. 37. 32 Ibid., para. 50.

co mmen t ar y

7

language must be granted as long as he or she is not abusing his or her rights under article 67 of the Statute.”33

d Role of the Jurisprudence of Other International Criminal Tribunals The approach to the jurisprudence of other international criminal tribunals is less straightforward, and will probably be the object of further developments. In an early decision, the Appeals Chamber approached the precedential value of decisions stemming from other international criminal tribunals with caution, stating that “the International Criminal Court is not in the same position [as the ICTY and ICTR] in that it is beginning, rather than ending, its activities. In addition, being a permanent institution, it may face a variety of different and unpredictable situations.”34 However, this statement must be read in light of the facts of that particular case, where a PreTrial Chamber had ex officio determined that a case against a Congolese military commander was inadmissible under article 17 of the Statute due to an alleged lack of sufficient seniority of the Accused, basing its decision on a resolution by the United Nations Security Council calling on each Tribunal to, within the framework of the so-called “completion strategy”, ensure that any new indictments concentrated “on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal”,35 which, in turn, led to an amendment of the ICTY Rules of Procedure and Evidence.36 In reversing the decision appealed, the Appeals Chamber considered that this reliance had been misplaced and that it was inappropriate to import a standard developed primarily for the purposes of ensuring the timely completion of the work of a different institution into the context of the ICC.37 33 34

35 36

37

Ibid., para. 62. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169, 13 July 2006, para. 80. United Nations Security Council Resolution 1534, S/RES/1534 (2004), para. 5. See added language to rule 28 (Reviewing and Duty Judges), ICTY, Rules of Procedure and Evidence of the ICTY (as amended 6 April 2004), in force 14 March 1994, IT/32/ Rev. 30. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169, 13 July 2006, para. 80. The Chamber also noted that prior to the UNSC Resolution and the ensuing amendment to the Rules of Procedure and Evidence of the ICTY, the ICTY had conducted proceedings “against individuals of various ranks over a number of years without being restricted to the most senior leaders”: ibid.

8

in t e r p r e t a t i o n an d s t r u c t u r a l i s s u e s

However, in a different appeal involving the scope of the regime created by the Rules for the Defence’s inspection of material in possession or control of the Prosecution, the Appeals Chamber itself resorted to the case law of the ICTY. According to the Chamber, “[g]iven that the wording of rule 77 of the Rules of Procedure and Evidence is based on the wording of rule 66(B) of the Rules of Procedure and Evidence of the ICTY, it is useful to consider the relevant jurisprudence of the ICTY and the ICTR on the corresponding provisions in the ICTY and ICTR Rules of Procedure and Evidence”.38 A review of two decisions on point from both ad hoc tribunals confirmed the Appeals Chamber’s conclusion that the ICC Trial Chamber had adopted an overly restrictive interpretation of rule 77.39 On the basis of these decisions a trend can be identified whereby the jurisprudence from other international criminal tribunals (chiefly the ICTY and the ICTR) is neither rejected nor accepted wholesale as an auxiliary means of interpretation. Notably, when rejecting the importation of ICTY standards into the Court’s legal context, the Appeals Chamber did so on the basis of clear and identifiable differences between both institutions, including their situation and their legal framework, which in the Chamber’s view rendered such importation inadequate, and not on the basis of a generic rejection of those standards or a blanket assertion that the institutions were “different”. Conversely, the Appeals Chamber had no difficulties in examining, and relying on ICTY and ICTR case law where it concluded that, in the light of the connections between the ICC legal provisions under analysis and certain ICTY and ICTR equivalents, such case law could be helpful for a proper determination of the issues. It will be interesting to follow further developments in this field, especially when the Appeals Chamber is faced with substantive legal issues concerning the elements of international crimes and modes of liability, and to see what weight, if any, the Chamber will give to the extensive existing jurisprudence on these topics. For instance, will the ICC Appeals Chamber endorse the “overall control” test developed by its ICTY counterpart in Tadić for the purposes of determining whether 38

39

Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 78. Ibid.; see also paras. 77 and 79–82. See also the commentary in Chapter O, Conduct of Appeals, (VII) Additional Evidence on Appeal (Regulation 62), below, where the Appeals Chamber has also sought guidance from the case law of the ad hoc tribunals which also resulted in a restrictive standard in that context.

co mmen t ar y

9

a national armed conflict has become internationalised,40 thereby fostering the stability of international criminal law? Or will it decide, if it considers the Tadić test not to be suitable for the particular context of the ICC, to develop its own test or, going full circle, return to the ICJ’s “effective control” test in Nicaragua?41 Whereas, on the one hand, it is to be expected that the Appeals Chamber, and the Court as a whole, will take into account the risk of “fragmentation” of international criminal law posed by a drastic departure from existing, pre-ICC case law, on the other hand, it must be noted that with time the Court will constitute the main source of international criminal jurisprudence, a factor which, to the extent that the Court is capable of developing a coherent body of jurisprudence, could be seen to compensate any initial instability stemming from such departure.

e Scope and Interpretation of the Regulations of the Court Under article 52, ICC judges are vested with a limited legislative authority, and are mandated to “adopt, by absolute majority, the Regulations of the Court necessary for its routine functioning”. Regulations are subsidiary provisions that are intended to address matters related to the Court’s daily business, and as such are distinguishable from the more substantive Rules.42 However, the first set of RoC adopted by the ICC judges in plenary session included a number of provisions that could be characterised as substantive in nature. A particular example is regulation 40

41

42

As expressly done by the Trial Chamber delivering the Court’s first trial judgment in the Lubanga case: see Prosecutor v. Lubanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 541. This issue was not addressed by the Appeals Chamber when the case went to appeal: see Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014. Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 14, paras. 75–125. See Behrens, H. and Staker, C., “Article 52: Regulations of the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), pp. 1053–1056; on the limited legislative functions of the ICC judges under the Statute, see Guariglia, F., “The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press: Oxford, 2002), pp. 1115–1123; see also Broomhall, B., “Article 51: Rules of Procedure and Evidence”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1049.

10

i n te r pr e tat i o n a nd st r u c t u r a l is s u e s

55 of the RoC, a provision enabling Trial Chambers to depart from the legal characterisation of the conduct charged chosen by the Prosecution, albeit under certain conditions. In Lubanga, the majority of Trial Chamber I entered a controversial decision, concluding that regulation 55 of the RoC contained two distinct procedures, one applicable at the deliberations and delivery of the judgment stage (para. (1) of the provision) and another one applicable during trial (para. (2)). The “facts and circumstances described in the charges”, within the terms of article 74(2), would limit the first procedure, but not the second one. Consequently, in the second procedure, the Chamber would be allowed to modify the nomen iuris “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”.43 On appeal, the Defence raised fundamental objections to the very existence of the provision, arguing, inter alia, that the enactment of the regulation was in contravention of article 52, which only vests the ICC judges with the authority to adopt regulations which are necessary “for the routine functioning of the Court”.44 The Defence also considered that the provision failed to find any support in any general principle of international law and was inconsistent with the case law emanating from the ICTY. The Appeals Chamber was thus faced with a constitutional question: had the ICC judges gone beyond the proper scope of their legislative functions under article 52 when enacting regulation 55 of the RoC? Notably, this was the first time that the Appeals Chamber was asked to 43

44

Prosecutor v. Lubanga, Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court, ICC-01/04-01/06-2049, 14 July 2009, para. 27; Prosecutor v. Lubanga, Decision on the Prosecution and the Defence Applications for Leave to Appeal the “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/062107, 3 September 2009, para. 41. Judge Fulford, dissenting, considered that the provision “created an indivisible or singular process”. He further concluded that “a modification to the legal characterisation of the facts under Regulation 55 must not constitute an amendment to the charges, an additional charge, a substitute charge or a withdrawal of a charge, because these are each governed by Article 61(9)” (Prosecutor v. Lubanga, Minority Opinion on the “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/06-2054, 17 July 2009, paras. 4 and 17). Article 52(1).

co mmen t ar y

11

act as a reviewer not only of the correctness of a decision entered by a first instance Chamber, but also of the conformity of a lesser norm – a regulation of the Court – with the provisions and principles enshrined in the Statute. The Appeals Chamber used the opportunity to reaffirm the hierarchical relationship between the Statute and the RoC.45 However, the Appeals Chamber rejected the proposition that the object of regulation 55 went beyond the “routine functioning” of the Court, within the terms of article 52(1). The Chamber acknowledged that the question of modification of the legal characterisation of the facts charged was an important question with significant consequences for the trial, but noted that “routine functioning” has a broad meaning and also concerned matters of practice and procedure.46 After recalling the negotiating history of the Rules, the Appeals Chamber concluded that the issue of whether Trial Chambers of the Court could modify the legal characterisation of the facts brought by the Prosecution could not be solved and was left for determination by the judges of the Court.47 Instead of determining the matter through case law, however, the judges preferred to resort to the RoC; an avenue with significant advantages in terms of certainty and consistency.48 Finally, the Chamber also dismissed the remaining complaints by the Defence, stating that there was no requirement that the RoC ought to be limited to the codification of general principles of international law, or should reflect the approach adopted by the ICTY.49 The following conclusions can be drawn from this particular litigation: first, the Appeals Chamber did not shy away from a constitutional debate and further made clear that it will intervene if it perceives a conflict between a Regulation of the Court (the lesser norm) or its interpretation by a Chamber and a statutory provision (the higher norm). However, the Appeals Chamber also embraced a broad interpretation of the term “routine functioning of the Court” for the purposes of defining the proper scope of article 52, allowing for the adoption of substantive provisions by the ICC judges through the exercise of their legislative powers. The Chamber further established a principle whereby the judges enjoy discretion to deal with those matters that have been left for determination by the Court through the development of case law or to do so via the RoC. Whereas the advantages in terms of consistency that 45

46

Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. Ibid., para. 69. 47 Ibid., para. 70. 48 Ibid., paras. 69–71. 49 Ibid., para. 80.

12

int er p reta tion and st ruc tur al iss ues

the latter course of action entails, and which the Appeals Chamber highlights, are apparent, there are also questions that can be raised on the desirability of having important legal questions being decided solely by the judges in plenary session without any external input.50

II Exercise of Judicial Functions The emerging jurisprudence of the Appeals Chamber has also tackled issues pertaining to the proper exercise of judicial functions by all Chambers of the Court, including the same Appeals Chamber. For example, in relation to the latter, the existing jurisprudence to date indicates that the Appeals Chamber will stay within the boundaries of the issue or case it has to decide upon and will not venture into abstract matters or enter findings on issues that fall outside the thema decidendi.51 The Appeals Chamber has affirmed the duty of all Chambers of the Court to give a reasoned decision on the matters before them: “the right to a reasoned decision”, the Appeals Chamber holds, “is an element of the right to a fair trial and [. . .] only on the basis of a reasoned decision will proper appellate review be possible”.52 In its judgment asserting His duty, 50

51

52

While obviously a courtroom is not a place for public debate, at least the legal findings included in a judicial decision are the result of the open discussion between parties and participants in the proceedings, in contrast to the internal and closed discussions between judges in the plenary. The Advisory Committee on Legal Texts, created by the RoC, provides a forum for wider discussion, including representatives of the Office of the Prosecutor, the Registry and counsel, in addition to the three judges representing the three judicial divisions of the Court (see regulation 4 of the RoC). However, the Advisory Committee on Legal Texts can only present recommendations and proposals to the plenary, which enjoys wide discretion in its legislative functions (see regulation 4 of the RoC). On the difficulties posed by the attribution of substantive legislative functions to judges, see Guariglia, F., “The Rules of Procedure and Evidence of the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press: Oxford, 2002), p. 1111. See Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/ 06-1433 OA11, 11 July 2008, para. 52, and Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 110 (declining to consider issues where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”). See the commentary to Chapter O, Conduct of Appeals, below, for more specific jurisprudence on the scope of the Appeals Chamber’s judicial authority in the context of appellate proceedings. See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/ 06-774 OA6, 14 December 2006, para. 30.

co mmen t ar y

13

the Appeals Chamber took note of the findings made by its ICTY equivalent on the subject, but also of the relevant case law from the European Court of Human Rights, emphasising the importance of a reasoned decision for the proper exercise of appellate rights.53 The confidential and/or ex parte nature of the proceedings does not reduce but actually increases the need for adequate reasoning, since an aggrieved party “cannot rely on the context in which said decision was made to determine how the respective Chamber reached its decision”.54 The importance of the principle has been reaffirmed in a subsequent ruling by the Appeals Chamber in the Bemba case: the Appeals Chamber, reversing a decision from Trial Chamber III to admit prima facie into evidence all items contained in the Prosecution’s list of evidence, has recalled its earlier finding that a Chamber must identify the basis of its decision, that is, “which facts it found to be relevant in coming to its conclusion”.55 Another relevant aspect of the Appeals Chamber’s emerging jurisprudence on the exercise of judicial functions concerns the binding nature of judicial orders. In the Lubanga case, the Appeals Chamber was faced with a situation of non-compliance by the Prosecution to an instruction from the Trial Chamber to disclose the identity of an intermediary used by the Prosecution during its investigations to the Defence. The Trial Chamber had previously determined that disclosure of the intermediary’s identity would endanger the intermediary and his family and that, accordingly, protective measures were required. The Prosecution resisted the order on the basis that even limited disclosure would pose intolerable risks for the intermediary, invoking the Prosecution’s autonomous protection duties under the Statute. Instead, of complying the Prosecution filed an application for leave to appeal and when the Trial Chamber ordered disclosure pending a determination on whether leave to appeal ought to be granted or not, sought reconsideration of the decision. When reconsideration was rejected, the Prosecution sought a variation of the time limit to disclose pending the implementation of interim protective measures. The Trial Chamber then ordered a stay of proceedings.56 53

54

55

56

See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20 Ibid., para. 22. See also Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA05 OA06, 3 May 2011, para. 59. Prosecutor v. Lubanga, “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”, ICC-01/04-01/06-2517-Red, 8 July 2010,

14

int er pr e ta tion a n d st ruc tur al iss ues

On appeal, the Prosecution disputed the argument that it had refused to comply with any order by the Trial Chamber. Instead, the Prosecution claimed that it had resorted to available procedural avenues in order to reconcile compliance with those orders with its own statutory duties of protection.57 The Appeals Chamber disagreed and in firm terms underscored the mandatory nature of compliance with judicial orders issued by a Chamber of the Court: “[o]rders of a Trial Chamber”, the Appeals Chamber began, “are binding orders, to be implemented unless and until they are suspended, reversed or amended by the Appeals Chamber or their legal effects are otherwise modified by an appropriate decision of a relevant Chamber”.58 In this sense, the Appeals Chamber emphasised that the binding nature of a judicial order may be vacated, varied or suspended only by another judicial ruling: “[t]he filing of a request by a party does not, in itself, suspend the effect of an order; only a judicial decision may alter the legal effects of a judicial order”.59 Finally, the Chamber clarified that the judges’ authority over the parties does not negate any duties of the Prosecution, but does mean “that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail”.60 This principle also applies when it comes to issues of protection.61

III Role of the Registrar and Relationship with Chambers a Authority of the Registrar The key decision from the Appeals Chamber in this area clarifies that the role of the Registrar “is confined to the non-judicial aspects of the administration and servicing of the Court”.62 Another decision establishes that the Registry “is a neutral organ of the Court which is not a party to the proceedings”.63 Despite this clear language, the Appeals Chamber had to address the possibility of the Registrar making

57

58 62

63

para. 31. For a recitation of the procedural background, see Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC01/04-01/06-2582 OA18, 8 October 2010, paras. 4–17. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, paras. 32–33. Ibid., para. 48. 59 Ibid., para. 49. 60 Ibid., para. 48. 61 Ibid., para. 50. Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7. Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 94.

co mmen t ar y

15

representations before Chambers of the Court, and could not do so in a unanimous decision. The idea of the Registrar making representations in cases before the Court had been the subject of controversy in the very early days of the Court’s existence. During the investigation of the Kony case, there was a lengthy discussion on the Registry’s role and its ability to communicate with Chambers of the Court.64 Subsequently, a new provision regulating the interaction of the Registrar with Chambers of the Court was included in the RoC, after discussions in the Advisory Committee on Legal Texts and the Plenary.65 The provision allows the Registrar to make oral or written submissions to a Chamber with notification to the participants “when necessary for the proper discharge of his or her functions” (subregulation 1). The filing of ex parte documents is provided for if knowledge by the participants of the content of the document would defeat its purpose, in which case the Chamber must determine whether notice of the existence of the filing is to be provided to the other participants (subregulation 2). The Appeals Chamber has also reaffirmed that a joint reading of articles 43(6) and 68(4) and regulation 24bis (i) of the RoC led to the conclusion that the Registrar could make submissions before the Appeals Chamber, at least in relation to protection matters that were sub judice before it.66 The Appeals Chamber adopted a broad approach to regulation 24bis of the RoC, admitting a document filed by the Registrar that arguably went beyond the strict ambit of the discharge of the Registrar’s functions, and delved into the merits of the factual and legal arguments advanced by the Prosecution in its appeal. The Appeals Chamber, however, rejected a subsequent effort by the Registrar to use regulation 24bis to effectively seek appellate review of a decision made by a Trial Chamber. The Registrar, at the time, argued that she was entitled under regulation 24bis to engage the Appeals Chamber and seek a reversal of a Trial Chamber ruling on legal assistance 64

65

66

Situation in Uganda, Decision on the Prosecutor’s Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission Filed by the Registry on 5 December 2005, ICC-02/ 04-01/05-147, 9 March 2006. Regulation 24bis of the Regulations of the Court entitled “Submissions by the Registrar” was adopted on 14 November 2007 and in force on 18 December 2007, ICC-BD/03-0106-Rev.1. Prosecutor v. Katanga & Ngdudjolo, Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675, 11 July 2008, para. 4.

16

inter pr e ta tion a n d st ruc tur al iss ues

issues.67 The Appeals Chamber noted that the Registrar’s submissions were made without any connection to proceedings pending before the Appeals Chamber. Rather, they sought to initiate what were, in effect, new appellate proceedings before the Appeals Chamber that went beyond the scope of regulation 24bis (1) of the RoC.68 Further, even if regulation 24bis (1) could be construed to permit the filing of submissions by the Registrar unconnected to any proceedings before the Appeals Chamber, what the Registrar was effectively seeking was appellate review of a Trial Chamber decision outside the framework of articles 81 and 82.69

b Review of Decisions by the Registrar The Appeals Chamber has clarified that it lacks any jurisdiction to review decisions pertaining to the administration and servicing of the Court made by the Registrar except where the Statute, the Rules or the RoC specify such an authority. In relation to legal aid matters, review of decisions made by the Registrar pertaining to the scope of legal assistance is assigned to the Chamber dealing with the case under regulation 83(4) of the RoC. In contrast, decisions refusing the assignment of counsel (rule 21(3)) and refusing legal aid (regulation 85(3) of the RoC) are subject to review by the Presidency.70 IV Authority of the Prosecutor Regarding Investigations a Authority of the Prosecutor to Conduct Investigations The scope of the Prosecutor’s authority to conduct investigations was a thorny issue during the early stages of the Court’s existence. The questions discussed included how to balance the Prosecution’s investigative powers with the supervisory authority of the Pre-Trial 67

68

69

70

The Trial Chamber had reversed a decision from the Registrar reducing the legal assistance to be paid to the Accused, Thomas Lubanga Dyilo, upon the completion of trial proceedings, and had ordered that such legal assistance be maintained at the same level as it was prior to final submissions until the Trial Chamber issued its judgment. Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 12. Ibid., para. 14, emphasising that “[t]he Appeals Chamber has consistently held that its jurisdiction is clearly and exhaustively defined in the Statute and Rules of Procedure and Evidence and has equally consistently rejected any attempts to bring appeals outside of this defined scope of jurisdiction”. See Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7.

commentary

17

Chamber and the extent to which the statutory right of victims to participate in the proceedings could allow them to become involved in the Prosecution’s investigation.71 In relation to the latter question, the Appeals Chamber not only clarified the interplay between Prosecution and victims at the investigative stage, but also provided clarity as to the nature of an investigation under the Statute and the role of the Prosecutor in it. According to the Appeals Chamber, “[m]anifestly, authority for the conduct of investigations vests in the Prosecutor. Acknowledgement by the Pre-Trial Chamber of a right of victims to participate in the investigation would necessarily contravene the Statute by reading into it a power outside its ambit and remit”.72 Further, “an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible”.73 However, this authority has clear limits. First, the investigatory activities of the Prosecutor must be directed towards the identification of evidence capable of being presented in court, with a view to establishing the truth. Second, they must cover any exonerating circumstances, as laid down in article 54(1)(a). This means that the Prosecutor is expected to become aware during his or her investigation of material that may be of assistance to the Defence, thereby allowing for a proper subsequent disclosure of exculpatory evidence under article 67(2) in the ensuing criminal case.74

b Prosecutor Enjoys Discretion under Article 53: Decision Not to Investigate Article 53(a) authorises the Pre-Trial Chamber to request that the Prosecutor reconsiders a decision not to open an investigation. In Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, the Prosecutor appealed such a decision. The Appeals Chamber confirmed that under article 82(1) (a), it only has the capability to hear appeals on decisions relating to 71

72

73 74

An account of the conflicts of views during the Court’s initial phase can be found in Schiff, B. N., Building the International Criminal Court (Cambridge University Press: Cambridge, 2008), pp. 122–127. Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 52. Ibid., para. 45. See, inter alia, Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 41, and Prosecutor v. Lubanga, Judgment on Appeal Against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 36.

18

int er p reta tion a n d st ruc tur al iss ues

the admissibility of cases and not when the admissibility of potential cases is considered at the situation stage.75 While article 53(a) allows the Pre-Trial Chamber to request that the Prosecutor reconsiders a decision not to open an investigation, the Appeals Chamber found that after reconsideration, the decision to open an investigation was ultimately up to the Prosecutor.76 It concluded that the Pre-Trial Chamber’s decision was not properly characterised as a decision on the admissibility of a case.77

c Continuation of Investigations after the Commencement of the Confirmation Hearing In the Lubanga case the Appeals Chamber decided that it is not necessary “that the Prosecutor’s investigation [. . .] must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation”.78 This applies regardless of whether the investigation in the case refers to the investigation of the Accused with respect to the specific charges that the Prosecutor intends to bring in the upcoming confirmation hearing, or whether it extends to the investigation of the Accused’s potential criminal responsibility for other conduct not encompassed by the charges.79 The Appeals Chamber based its conclusion chiefly on the fact that article 61(9), which regulates the system of amendment of charges with leave of the Pre-Trial Chamber, does not make reference to the investigation.80 This shows that the Prosecutor’s flexibility with respect to the investigation acknowledged by article 61(4) remains unaffected by the confirmation of the charges. In addition, since the Prosecution’s duty to establish the truth under article 54(1)(a) is not explicitly limited to the period of time before the confirmation hearing, the Prosecutor must be allowed to continue his or her investigation beyond the confirmation hearing if this is necessary in order to establish the truth.81 75

76 78

79

Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/ 13-51 OA, 6 November 2015, paras. 41–51, 64. Ibid., paras. 59, 64. 77 Ibid., paras. 50–51, 64. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81 (2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. Ibid., para. 50. 80 Ibid., para. 51. 81 Ibid., paras. 52, 53.

commentary

19

V Defence Counsel, Duty Counsel and Other Forms of Representation There are two aspects of the existing appellate jurisprudence in this area that are particularly significant: the first concerns the distinction between the different types of defence representation that may exist in the context of the ICC proceedings. The Appeals Chamber has provided some clarity in this area, and has explained that under the Court’s basic texts, distinctions should be made between defence counsel, stricto sensu, duty counsel and ad hoc counsel. Defence counsel are appointed under article 67(1)(d). This counsel “represents the individual entitled to legal assistance” and “acts for and as agent of the client”.82 There are also duty counsel under regulation 73(2) of the RoC, a mechanism created to “address the situation where a person has not yet secured legal assistance and yet wishes such aid for his/her defence”.83 Finally, there is another form of counsel, namely, ad hoc counsel appointed to represent the interests of the Defence, for instance, in a situation (a “unique investigative opportunity”) regulated by article 56. The mandate of this specific counsel is of a sui generis nature and must be understood differently from the mandate of counsel who has been appointed to represent suspects as individuals. In circumstances where the suspects are at large and counsel is appointed to represent their interests generally in proceedings, such counsel cannot speak on their behalf. A client and counsel relationship does not exist between them, and counsel does not act for or as agent of the suspects. Counsel’s mandate is limited to merely assuming the Defence’s perspective, with a view to safeguarding the interests of the suspects insofar as counsel can, in the circumstances, identify them.84

The second relevant aspect of the existing appellate jurisprudence concerns whether a conflict of interests exists in the case of a former Prosecution lawyer who joins the Defence in a case before the same international jurisdiction, and if the possibility of conflict exists, what is 82

83

84

Prosecutor v. Kony et al., Judgment on the Admissibility Appeal by Ad-Hoc Defence, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. Prosecutor v. Lubanga, Reasons for the Appeals Chamber’s Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 6. Prosecutor v. Kony et al., Judgment on the Admissibility Appeal by Ad-Hoc Defence, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. In this case, counsel had generally been appointed to represent the interests of the Defence during admissibility proceedings triggered by the Pre-Trial Chamber proprio motu.

20

i nt er p r et at i o n an d st r uc tu ral issu es

the appropriate test to determine it in the instant case.85 The Appeals Chamber had two cases before it where different Chambers had ruled that there was no automatic conflict of interest invalidating the appointment of a former Prosecution officer as defence counsel in a case that was open and active at the time the lawyer was working for the OTP. Rather, according to the impugned decisions, the critical test is whether counsel was “privy to more than de minimis confidential information” pertaining to the case in question. The Appeals Chamber reversed this decision. It rejected the Prosecution’s plea for an automatic disqualification of any former Prosecution officer who wished to act as defence counsel in a case that was open at the time he worked for the Prosecution, noting that “prior association with the OTP does not, per se, disqualify a former OTP staff member from working for the defence”.86 It also rejected the position that the mere possibility of access to confidential information should suffice for the purposes of determining the existence of a conflict of interests.87 However, the Chamber also rejected the qualification imposed by the challenged decisions on the quality or nature of the confidential information, requiring that it be “of some significance”. The Appeals Chamber stated in conclusive terms that the phrase “privy to confidential information” in article 12(1)(b) of the Code of Professional Conduct for Counsel88 was “clear and unambiguous” and “need not and should not be qualified in any way”.89 Thus, access to any information related to the case of a confidential nature, including “internal assessments about the strengths and weaknesses of a particular case” are covered by the impediment established in the Code of Conduct.90 However, the Appeals Chamber did not establish a rigid rule whereby once verified that counsel was privy to confidential information, disqualification becomes unavoidable. Rather, according to the Appeals Chamber, Chambers of the Court retain the authority to authorise 85

86

87 88

89

90

See Prosecutor v. Hadžihasanović, Alagic & Kubura, IT-01-47-PT, Decision on the Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr Rodney Dixon as Co-counsel to the Accused Kubura, 26 March 2002. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 58. Ibid., para. 53. Code of Professional Conduct for Counsel, 2 December 2005, in force 1 January 2006, ICC-ASP/4/Res.1. Ibid., para. 65; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 34. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 67.

jurisprudence

21

continued representation despite the existence of knowledge of confidential information: while “ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established”, there are “circumstances in which there may not be any real conflict of interest or other impediment to representation. The second sentence of article 12(1)(b) of the Code expressly provides for this possibility in providing that the lifting of the impediment to representation under that article may be ordered by the Court ‘at counsel’s request’ and ‘if deemed justified in the interests of justice’.”91 The Appeals Chamber clarified that determining what is “in the interests of justice” will have to be determined in the specific circumstances of each case. The Chamber, however, provided some indicators that may be considered, starting with the nature and importance of the confidential information, the rights of the Accused, counsel’s position in the Defence team and concerns about the overall fairness or the appearance of impropriety of the proceedings.92

Jurisprudence I Applicable Law, Interpretation of the Statute and Other Governing Texts 1 General Principles of Interpretation “The interpretation of treaties, and the Rome Statute is no exception, is governed by the Vienna Convention on the Law of Treaties (23 May 1969), specifically the provisions of Articles 31 and 32.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/04-01/07-573 OA6, 9 June 2008, para. 5. “The rule governing the interpretation of a section of law is its wording read in context and light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of a law as a whole read in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33; Prosecutor v. Katanga & Ngudjolo, Judgment 91

Ibid., para. 68.

92

Ibid., paras. 69–70.

22

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 39; Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 56; See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 40. “Article 33(3) of the VCLT contains a presumption that the terms of a treaty have the same meaning in each authentic text. The ILC has indicated that this ‘requires that every effort should be made to find a common meaning for the texts before preferring one to another’. If this attempt at harmonisation fails, the next recourse lies in the supplementary means of interpretation under article 32 of the VCLT, including the preparatory work of the treaty and the circumstances of its conclusion. If a common meaning cannot be derived from the different language versions of the treaty following this process, ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty’ must be adopted.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 49–50. “The interpretation of the Statute is governed by the general principle of interpretation of treaties as set out in article 31(1) of the Vienna Convention on the Law of Treaties, according to which ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ The same principle of interpretation applies to the Rules.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 55; See also Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 16. Diss. Op.

1.1

Interpretation of the Wording of the Statute Read in Context “The grammatical interpretation is the principal rule governing the construction of the Statute.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 12. Sep. Op. “Article 51(4) of the Statute expressly regulates the circumstances in which amendments to the Rules shall be applied. Its wording, in relevant part is clear: Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of

jurisprudence the person who is being investigated or prosecuted or who has been convicted.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 67. A Pre-Trial Chamber was held to have erred as it “did not comprehensively consider the importance of the fact that the word ‘fully’ is included in the text, and the article’s full legislative history”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 37. Individual provisions must be “read in light of the statutory scheme as a whole”. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 73. “To my mind, systematic interpretation denotes an interpretation of a word or phrase in a section of the law consistent with the prior interpretation of the same concept by previous decisions of the Court; an interpretation conforming to a system reflected in the jurisprudence on the subject.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 12. Diss. Op. “In no circumstances can the rule of systematic interpretation justify the restructure of a legislative provision or the introduction of exceptions to it.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 13. Diss. Op.

1.2 Interpretation of the Statute in the Light of its Object and Purpose “The aim of the Rome Statute is ‘to put an end to impunity’ and to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 79. See also Prosecutor v. Lubanga, Judgment on

23

24

inte rpretation and s tr uctural issues the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 77. The object of the Statute includes “the assurance of the efficacy of the criminal process, and promotes its purpose that proceedings should be held expeditiously. Proceedings should be held without delay, a course consistent with the rights of the accused.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/04-01/07-573 OA6, 9 June 2008, para. 8. “A teleological or purposive interpretation of a legislative provision allows for the construction of a section of the law in a manner advancing the goals of an enactment or suppressing the mischief against which it is directed. It acknowledges no power and, far less, it allows no liberty to the Court to either refashion the terms of a legislative provision or add terms to its text that are not there.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 11. Diss. Op. “What the preamble and tenor of the Statute provide authority for is to interpret the text of the Statute as worded in a manner promoting the objects and purposes of the law. The remit of interpretation is to construe the law as laid down by the legislator. A purposive interpretation provides no warrant for the redrafting, the remoulding or the addition of new provisions to a section of the Statute. In short, no process of interpretation empowers the Court to remake the law.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 19. Diss. Op.

1.3

Interpretation in the Light of Other Instruments “[T]he Regulations of the Registry are in place ‘to govern the operation of the Registry’ (rule 14 of the Rules of Procedure and Evidence) and that they ‘shall be read subject to the Statute, the Rules and the Regulations of the Court’ (regulation 1(1) of the Regulations of the Registry). As such, regulation 96 cannot alter the scheme otherwise contained within the Statute and the Rules of Procedure and Evidence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 81. “The Regulations of the Court are, in accordance with article 52(1) of the Statute, designed to facilitate the routine functioning of the Court, in other

jurisprudence words to regulate the conduct of the judicial process. They cannot confer power to take part in judicial proceedings when none is given by the Statute or the Rules. As stated in regulation 1(1), the Regulations ‘shall be read subject to the Statute and the Rules’ that define the framework within which the Regulations must be interpreted and applied. Legitimisation for taking any step in the judicial process can only be derived from those sources.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 7. Diss. Op. “The Appeals Chamber notes that the Trial Chamber in referring to the Basic Principles of 2005 was ‘guided’ by the language set forth in Principle 8. However, as noted above, its decision was based on its analysis of rule 85 (a) and rule 85(b) of the Rules. The Appeals Chamber finds no error in the Trial Chamber’s reference to the Basic Principles of 2005 for the purpose of guidance.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 33.

2 Article 21(1)(c) of the Statute “Sub-paragraph (c) of paragraph 1 of article 21 of the Statute is a multipolar provision of the law involving in the same spell an amplitude of factors definitive of its subject-matter. Be that as it may, there is little doubt about its basic intent that lies in the incorporation of general principles of law derived from national laws of legal systems of the world as a source of law.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 24. Under article 21(1) of the Statute, when “a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject”. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34; referring to Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, paras. 22–24, 33–42. “This Court has its own legal framework governing the issues that arise in this appeal [. . .]. This cannot be replaced by the practice of other courts and tribunals in the present circumstances. In this context, the Appeals Chamber notes that the Prosecutor does not explain his reliance upon case law from just one domestic jurisdiction (the United States).”

25

26

interpretation and s tr uctural issues Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 62. “Article 21(1) of the Statute provides that the Court shall, in the first place, apply the Statute, Rules of Procedure and Evidence and Elements of the Crimes [. . .], in the second place, applicable treaties and the principles and rules of international law [. . .], and, ‘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’ [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 11. “[A]rticle 21(1)(c) vests the Court with power to apply general principles of law, derived from national laws, but not to apply national laws directly; that general principles of law under article 21(c) of the Statute are a subsidiary source of law to which resort may be had if the sources of law listed in article 21(1)(a) and (b) do not regulate the issue at hand; and, finally, that, as expressed by the words ‘as appropriate’, article 21(1)(c) of the Statute vests the Court with discretion to derive such general principles also from the national laws of States that would normally exercise jurisdiction over the crime, but does not require the Court to do so.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 11. “The Appeals Chamber considers that exploring the import of the concepts of ‘implied powers’ or ‘customary international criminal procedure’ on the question of whether the Trial Chamber is empowered to compel a witness to appear before the Court would be incorrect in circumstances where the Court’s legal framework provides for a conclusive legal basis. This is because, as previously held by the Appeals Chamber, pursuant to article 21(1) of the Statute, recourse to other sources of law is possible only if there is a lacuna in the Statute or Rules of Procedure and Evidence. Accordingly, the Appeals Chamber will first consider the Statute and the Rules of Procedure and Evidence, interpreting its provisions in accordance with the rule applicable to the interpretation of treaties provided for in the Vienna Convention. As explained below, the Appeals Chamber is of the view that there is no lacuna in the interpretation of the issue under appeal. Thus, the Appeals Chamber will not address any further the question of ‘implied powers’ and ‘international criminal procedure’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 105.

jurisprudence

3 Article 21(2) of the Statute: Binding Stare Decisis? “Article 21(2) of the Statute provides that ‘[t]he Court may apply principles and rules of law as interpreted in its previous decisions’. Thus, the Appeals Chamber is not obliged to follow its previous interpretations of the principles and rules of law through binding stare decisis; rather, it is vested with discretion as to whether to do so. In this respect, the Appeals Chamber has previously stated that absent ‘convincing reasons’ it will not depart from its previous decisions. Thus, in principle, while the Appeals Chamber has discretion to depart from its previous jurisprudence, it will not readily do so, given the need to ensure predictability of the law and the fairness of adjudication to foster public reliance on its decisions.” Prosecutor v. Gbabgo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 14.

4 Article 21(3) of the Statute “Article 21(3) of the Statute ordains the application and interpretation of every provision of the Statute in a manner consistent with internationally recognised human rights.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 16. Sep. Op; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/073363 OA13, 27 March 2013, para. 86; Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 36–37; Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on His Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 11. Diss. Op. See also Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 38. “[T]his interpretation is in adherence with the requirement in article 21(3) of the Statute to apply and interpret the provisions of the Statute and the Rules consistently with internationally recognized human rights [. . . as there may exist] a situation in which the withholding of certain information from the Defence may be necessary so as to preserve the fundamental rights of an individual put at risk by the activities of the International Criminal Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 57–58.

27

28

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s

5 Article 24(2) of the Statute “[T]he Appeals Chamber finds that article 24(2) of the Statute is not applicable to amendments to the Rules, which are governed by the specific provisions of article 51(4) of the Statute.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 73.

6 Role of the Travaux Préparatoires The travaux préparatoires may be used to “establish as laid down in article 32 of the Vienna Convention on the Law of the Treaties supplementary means of interpretation designed to provide a) confirmation of the meaning of a statutory provision resulting from the application of article 31 of the Vienna Convention on the Law of Treaties, and b) the clarification of ambiguous or obscure provisions, and c) the avoidance of manifestly absurd or unreasonable results”. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 40. “[I]n interpreting the statutory scheme [regarding responsibility for witness protection], the Appeals Chamber has had recourse to the history of the drafting of article 43(6) of the Statute in determining the issue before it [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 82, see also paras. 84–90.

7 Interpretation of “the Established Framework of International Law” (Customary and Conventional International Law) for Article 8(2)(b) and (2)(e) “If customary or conventional international law stipulates, in respect of a given war crime, an additional element of that crime, the Court cannot be precluded from applying it to ensure consistency of the provision with international humanitarian law, irrespective of whether this requires ascribing to a term in the provision a particular interpretation or reading an additional element into it. This does not violate the principle of legality recognised in article 22 of the Statute, which protects accused persons against a broad interpretation of the elements of the crimes or their extension by analogy; therefore, it does not impede the identification of additional elements that need to be established before an accused person can be convicted.”

jurisprudence Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 1. “The Appeals Chamber recalls that article 21 of the Statute requires the Court to apply ‘in the first place’ its Statute, Elements of Crimes and Rules of Procedure and Evidence. Recourse to other sources of law is possible only if there is a lacuna in these constituent instruments [. . .]. However, the Appeals Chamber has also found that the expression ‘the established framework of international law’ in the chapeaux of article 8(2)(b) and (2) (e) as well as in the Introduction to the Elements of Crimes for article 8 of the Statute, when read together with article 21 of the Statute, requires the former to be interpreted in a manner that is ‘consistent with international law, and international humanitarian law in particular’ [. . .]. Thus, the specific reference to the ‘established framework of international law’ within article 8(2)(b) and (e) of the Statute permits recourse to customary and conventional international law regardless of whether any lacuna exists, to ensure an interpretation of article 8 of the Statute that is fully consistent with, in particular, international humanitarian law.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 53. “As to the Prosecutor’s argument that the ‘established framework of international law’ should ‘merely assist in the interpretation of the crimes and elements as prescribed by the Statute and the Elements’, without introducing additional elements, the Appeals Chamber considers that clearly distinguishing between interpreting the existing elements, on the one hand, and introducing additional elements, on the other, when examining the ‘established framework of international law’ may not always be possible. If customary or conventional international law stipulates in respect of a given war crime set out in article 8(2)(b) or (e) of the Statute an additional element of that crime, the Court cannot be precluded from applying it to ensure consistency of the provision with international humanitarian law, irrespective of whether this requires ascribing to a term in the provision a particular interpretation or reading an additional element into it. In the view of the Appeals Chamber, this does not violate the principle of legality recognised in article 22 of the Statute, which protects accused persons against a broad interpretation of the elements of the crimes or their extension by analogy; therefore, it does not impede the identification of additional elements that need to be established before an accused person can be convicted.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA6, 15 June 2017, para. 54.

29

30

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s

8 Role of the Jurisprudence of Other International Criminal Tribunals In general, “[t]he International Criminal Court is not in the same position [as the ICTY and ICTR] in that it is beginning, rather than ending, its activities. In addition, being a permanent institution, it may face a variety of different and unpredictable situations.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 80. However, in specific instances, “[g]iven that the wording of rule 77 of the Rules of Procedure and Evidence is based on the wording of rule 66 (B) of the Rules of Procedure and Evidence of the ICTY, it is useful to consider the relevant jurisprudence of the ICTY and the ICTR on the corresponding provisions in the ICTY and ICTR Rules of Procedure and Evidence”. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 78. “[I]n considering the issues at hand, the Appeals Chamber has had regard to the scope of jurisdictional challenges as interpreted by the [. . . ICTY, the ICTR and the ECCC]. While bearing in mind the different statutory provisions that apply to those tribunals, the non-binding nature of their jurisprudence upon this Court and the fact that the Statute sets out in detail the crimes over which this Court has jurisdiction, the Appeals Chamber nevertheless notes [. . .] the general approach taken in the ICTY and ICTR jurisprudence [. . . ].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 37; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 31.

9 Scope and Interpretation of the Regulations of the Court “Regulation 1(1) of the Regulations of the Court provides that the Regulations of the Court must be ‘read subject to the Statute and the Rules’. Thus, any interpretation of Regulation 55 that cannot be reconciled with article 74(2) of the Statute must be rejected as incorrect.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. “The Appeals Chamber notes that the term ‘routine functioning’ [in article 52(1)] is not defined any further in the Statute or the Rules of Procedure and Evidence. However, the term has been described as a ‘broad concept’ and it has been observed that ‘routine functioning’ also concerns matters of ‘practice and procedure’.”

jurisprudence Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69. “[T]he Regulations of the Court contain several important provisions that affect the rights of the accused person, inter alia, on detention and on the scope of legal assistance paid by the Court. Thus, while the Appeals Chamber acknowledges that the question of modification of the legal characterisation of facts is an important question that directly impacts on the trial, it is not persuaded that for that reason alone, it cannot be part of the routine functioning of the Court.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69. “[T]here is no general requirement that the provisions of the Regulations of the Court must be limited to the codification of general principles of international law.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 80. “[T]he Appeals Chamber does not consider that the Regulations of the Court must necessarily reflect the approach adopted by the ICTY.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 80. “In light of differences of views between common law countries and countries following the Romano-Germanic tradition, the matter [of whether a chamber could change the legal characterisation of facts] was left for determination by the judges of the Court. Two approaches would have been possible: the matter could have been determined through case law or through adoption of a provision on the issue in the Regulations of the Court. The latter approach has significant benefits, as it prevented, from the beginning, uncertainty as to the possibility of the modification of a legal characterisation. The adoption of a provision on the subject in the Regulations of the Court also prevented potentially inconsistent jurisprudence on the issue, which would have a considerable impact on the day-today conduct of the trials and the efficient use of judicial resources. Thus, the adoption of a provision on the modification of the legal characterisation was necessary for the Court’s routine functioning.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 70.

10

The Principle of In Dubio Pro Reo

“[T]he Appeals Chamber is also unpersuaded by Mr Blé Goudé’s argument that, as ‘[r]ule 68(3) concerns the potential admission of incriminatory evidence that has not been tested by the Defence, any ambiguity as to

31

32

i n te r pr e tat i o n a nd st r u c t u r a l is s u e s the factors to be weighed when assessing rule 68(3) of the Rules should be construed in favour of the accused pursuant to the in dubio pro reo principle’. The Appeals Chamber notes that the principle in dubio pro reo is encapsulated in article 22(2) of the Statute as a general principle of criminal law to be employed, where ambiguity arises, in the interpretation of the definition of a crime. Leaving aside whether this principle applies to the circumstances at hand, the Appeals Chamber considers that Mr Blé Goudé has not demonstrated any ambiguity in the Trial Chamber’s assessment of the relevant factors when it introduced the prior recorded testimony under rule 68(3) of the Rules.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on the Gbago and Goudé Appeals against the Decision on Rules 68(2)(b) and 68(3), ICC-02/11-01/ 15-744 OA8, 1 November 2016, para. 83.

II Exercise of Judicial Functions 1 Judicial Functions in General “The aphorism ‘justice must not only be done but must appear to be done’ is deeply rooted in the norms of justice; in fact, it is a prerequisite for ministering justice. The absence of bias, real or apparent, is what legitimises a judicial body to administer justice.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 10. “It may be regarded as axiomatic that, if any power is conferred upon a court to make an order or issue a decision, the parties have an implicit right to move the Chamber to exercise it.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 20; Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07476 OA2, 13 May 2008, para. 17. “Under the Statute, the Trial Chamber, subject only to the powers of the Appeals Chamber, is the ultimate guardian of a fair and expeditious trial. Article 64(2) of the Statute provides that it is the Trial Chamber which shall ensure that the trial is conducted fairly, expeditiously and with full respect for the rights of the accused. As correctly noted in the Impugned Decision, the Appeals Chamber has previously confirmed that ‘[t]he ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 47. See fn. 112, which refers to Trial Chamber I’s Decision on the

jurisprudence Consequences of Non-disclosure, para. 88, confirmed in Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 76.

2 Adjudication of Applications on a Case-by-Case Basis Article 61(3) and rule 121(2)(b) “give the Pre-Trial Chamber important functions with respect to the regulation of the disclosure process prior to the confirmation hearing, which might involve, within the confines of the applicable law, the issuing of procedural directions to facilitate the disclosure process. These provisions, however, do not vest a Pre-Trial Chamber with the competence to pre-determine the merits of future applications for authorisation of non-disclosure pursuant to rule 81(4) of the Rules of Procedure and Evidence. It is fundamental to the exercise of judicial power that applications are adjudicated on a case-by-case basis.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 39.

3 Judicial Discretion In the context of proceedings leading up to confirmation of charges hearing, article 61(3) and rule 121(2) “accord the Pre-Trial Chamber broad discretion in regulating the disclosure process as borne by the use of the words ‘may issue orders regarding the disclosure of information of information’ in article 61(3) of the Statute and shall ‘take the necessary decisions regarding disclosure’ in rule 121(2) of the Rules of Procedure and Evidence. The Appeals Chamber is of the view that no express or implied limitation on the powers of the Pre-Trial Chamber to issue orders regarding disclosure may be derived from the ordinary meaning of these provisions [. . .].” Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15251 OA3, 17 June 2015, para. 32. “The Pre-Trial Chamber’s duty to ensure that the disclosure process takes place under satisfactory conditions requires that the full circumstances of each individual case must be considered in making orders and decisions regarding disclosure. To this end, rule 121(2)(b) of the Rules of Procedure and Evidence provides that the ‘Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions’. The Appeals Chamber considers that this rule highlights the importance of receiving the submissions of the parties, to the extent possible, on issues relevant to the disclosure process.”

33

34

i n te r p r et a t i o n a n d str u c t u r a l is s u e s Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15251 OA3, 17 June 2015, para. 41.

4 Obligation to Adjudicate Within the Context of the Respective Case “[T]he Appeals Chamber notes that the matter arises only in the abstract and that it is therefore unable to make an absolute determination in the absence of a concrete factual situation. Thus, the comments of the Chamber should be viewed in this context and treated with appropriate caution.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 52. See also Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, para. 110 (declining to consider issues where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”). “It is no function of a court of law to establish general principles with a view to mapping out the outcome of future proceedings. The pronouncement of binding legal principles outside the parameters of the adjudicative process is beyond and more accurately outside the jurisdiction of a court.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 24. Diss. Op. See also Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, paras. 8–9. Diss. Op. “[N]o one can authorize judicial deliberation outside the context of a matter at issue.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 26. Diss. Op.

5 Judges Must Make their Own Factual Findings on which the Decision will be Based “[T]he Single Judge adopted the findings made by another Single Judge in other proceedings; this is impermissible. A judge, the Single Judge in this case, is duty-bound to appraise facts bearing on sub judice matters, determine their cogency and weight and come to his/her findings, as the Single Judge was bound to do in this case but failed to do.”

jurisprudence

35

Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 26.93

6 Duty to Give a Reasoned Decision 6.1 Required Reasoning of a Decision in General “The reasons for a decision must be comprehensible from the decision itself.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “The extent of the reasoning will depend on the circumstances of the case, but it is essential that it indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the respective Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30. “It is not sufficient for the Pre-Trial Chamber to identify simply which filings were before it. The decision must set out which of the relevant facts and legal arguments that were before the Pre-Trial Chamber were found to be persuasive for the determination it reached.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “The ex parte character of the proceedings did not reduce the need for the decision of the Pre-Trial Chamber to be properly reasoned, but made the provision of proper reasoning more necessary because the Appellant could not rely on the context in which the Impugned Decision was made to determine how the Pre-Trial Chamber reached its decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 22; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against 93

See also para. 27: “[t]he Single Judge was not relieved of that duty because another judge within the context of the proceedings made an appraisal of the facts, nor was any evaluation made in such proceedings binding on the Chamber charged with the determination of a sub judice issue. It was the responsibility of the judge in this case to assess the facts pertinent to her decision, and found her judgment thereupon.”

36

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “Similarly, the Appeals Chamber of the ICTY has held that the right to a reasoned decision is an element of the right to a fair trial and that only on the basis of a reasoned decision will proper appellate review be possible [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30.

6.2

Required Reasoning of a Decision Pursuant to Rule 81 “The reasoning must state how the Pre-Trial Chamber came to the conclusion that disclosure of witness statements and other documents with redactions pursuant to rule 81(2) of the Rules of Procedure could be authorised; the reasoning should also state which of the facts before it led the Pre-Trial Chamber to reach its conclusion.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 31. A decision applying rule 81(2) has to expressly set out “why the Chamber considered that the disclosure of sources of the Prosecutor and any other matters in relation to which the Chamber authorised redactions could prejudice further investigations”. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 32. A decision applying rule 81(4) has to address three crucial considerations “for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81(4) of the Rules of Procedure and Evidence: the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (article 68(1), last sentence, of the Statute)”. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. “[T]he Pre-Trial Chamber stated that it would ‘address the application of the criteria prescribed by the Appeals Chamber in its two 14 December

jurisprudence 2006 [Judgments] in relation to the three alleged victims of sexual offences’. The Pre-Trial Chamber then proceeded to examine each of the individual requests for redactions in Annex I to the Impugned Decision. The approach of the Pre-Trial Chamber appears prima facie to be consistent with the further guidance contained in the Judgment of 13 May 2008.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/ 07-521 OA5, 27 May 2008, para. 35. “The Appeals Chamber is not persuaded by the argument of the Prosecutor that the degree of specificity could be reduced because the Impugned Decision related to protective measures prior to the confirmation hearing and not to protective measures prior to the trial. The question raised under the first ground of appeal is not the legal threshold for the authorisation of non-disclosure of the identity of a witness but the adequacy of the reasoning that has to be provided.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 23.

7 Res Judicata “Res judicata is a principle of law generally acknowledged as an essential feature of judicial proceedings, interwoven with the finality of judicial determinations and ultimately the efficacy of the judicial process.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 16. Diss. Op. “Under English common law, res judicata in its simplest form denotes that a cause of action determined on its merits or an issue incidental to the cause cannot be re-litigated by the same parties before a court of law. The parties are estopped from making the same cause or issues incidental thereto the subject of fresh litigation. So, we have subject-matter estoppel in relation to the cause itself and issue estoppel with regard to interim determinations. A fortiori, the same applies to interlocutory decisions given in the process of litigation.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 17. Diss. Op. “Re-litigating an issue settled by a judicial decision would unreasonably protract the proceedings to the detriment of the principle that justice should be administered within a reasonable time.”

37

38

i n te r pr et a t i o n a nd str u c t u r a l is s u e s Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 17. Diss. Op. “In either system [English common law or the Romano-Germanic system] re-litigation or re-determination of a matter decided upon is impermissible, unless, of course, jurisdiction is specifically conferred upon the court to revisit an issue under given circumstances.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 19. Diss. Op. The fact that “parts of the reasoning employed in the decision of 15 May 2006 were similar to or overlapped with the reasoning in the Impugned Decision in the present case does not preclude the Prosecutor from bringing this appeal because the two decisions disposed of different matters”. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 23.

8 Judicial Orders “Orders of a Trial Chamber are binding orders, to be implemented unless and until they are suspended, reversed or amended by the Appeals Chamber or their legal effects are otherwise modified by an appropriate decision of a relevant Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “The authority of the judges over the parties within the context of the trial does not negate any Statutory duties of the Prosecutor, but [. . .] it does mean that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair. The Appeals Chamber fully endorses the statement of the Trial Chamber that ‘[n]o criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “There is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection. Indeed, article 68(1) of the Statute specifically provides that, whatever measures the Prosecutor

jurisprudence may take with respect to the protection of victims and witnesses, ‘[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Reading this provision together with the responsibility of the Trial Chamber to ensure a fair trial, it is clear that the Prosecutor’s duties are subordinate to the authority of the Trial Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. “The filing of a request by a party does not, in itself, suspend the effect of an order; only a judicial decision may alter the legal effects of a judicial order.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 49.

9 Powers and Functions of the Trial Chamber under Article 64(2) “‘[T]he Trial Chamber’s power to determine the timeliness of a motion alleging unlawful pre-surrender arrest and detention and seeking a stay of the proceedings during the trial phase derives from article 64(2) of the Statute.’ From this perspective, the Trial Chamber is empowered to regulate its own proceedings under that provision. However, the exercise of its powers must be carried out in accordance with internationally recognised human rights standards.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 42. Diss. Op. “[I]f article 64(2) is the basis for the Impugned Decision, which we do not challenge, then clearly all the factors contained within that provision should have been considered. In this respect, a Trial Chamber ‘shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’. It is required to take into account the different considerations and competing interests contained within this provision. That this is mandatory is clear through use of the word ‘shall’. However, article 64(2) also imports an element of discretion in relation to its implementation. But, in taking a discretionary decision, the Trial Chamber must ensure that it carefully weighs all the enumerated factors. In addition, and as has been emphasised many times by the Appeals Chamber, the Trial Chamber must ensure that, as required by article 21(3), it both interprets and applies the law (exercise of its discretion in this context) consistently with internationally recognized human rights.”

39

40

i n t e r p r e t a t i o n a n d st r u c t u r a l is s u e s Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 44. Diss. Op.

III Role of the Registrar and Relationship with Chambers 1

Authority of the Registrar

“The authority of the Registrar is confined to the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor, as provided in article 43(1) of the Statute.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7; Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12-159 A1, 11 February 2014, para. 22. “The Registry is a neutral organ of the Court which is not a party to the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 94.

1.1

Power of the Registrar to File Documents in Proceedings “Reading articles 43(6) and 68(4) of the Statute together with regulation 24bis (1) of the Regulations of the Court, and in light of the subject-matter of the instant appeal, the Appeals Chamber considered that the filing by the Registrar was legitimately made. In this regard, the Appeals Chamber considered it appropriate and of assistance to it in the circumstances of this appeal to hear from the Registrar.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 4. “[T]he Registrar’s submissions must normally relate to extant proceedings before a Chamber. Regulation 24bis (1) of the Regulations of the Court does not provide the Registrar with blanket authority to initiate what are effectively new proceedings before the Appeals Chamber.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 12.

jurisprudence

41

“The Registrar’s Submissions are made absent any connection to proceedings which have been or are pending before the Appeals Chamber. Rather, they seek to initiate what are in effect new appellate proceedings before the Appeals Chamber. As such, the Appeals Chamber finds that they go beyond the scope of regulation 24bis (1) of the Regulations of the Court.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 13. “The Registrar is not a party to or a participant in the proceedings [. . .]. Nowhere in the Statute is a right conferred upon the Registrar or the Registry to participate as of right in any proceedings before the Court.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 4. Diss. Op. “It is no coincidence that neither directly nor indirectly does the Statute confer or acknowledge a right to the administrative organ of the Court to participate in the proceedings as a litigant.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 8. Diss. Op.

2 Obligations of the Registrar 2.1 Obligation to Release a Person from Custody Other than upon Completion of Sentence “The Appeals Chamber considers that the pending asylum application does not negate the Registrar’s obligation to give effect to Mr Ngudjolo’s acquittal pursuant to rule 185(1) of the Rules of Procedure and Evidence. Accordingly, the Registrar is instructed to make such arrangements as he considers appropriate for the transfer of Mr Ngudjolo in accordance with rule 185(1) of the Rules of Procedure and Evidence and article 48 of the Headquarters Agreement, and taking into account Mr Ngudjolo’s views, including as regards his security situation.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request to order the VWU and Host State to comply with Acquittal Judgment, ICC-01/04-02/ 12-74-Red OA, 27 May 2013, para. 13.

42

inte rpretation and s tr uctural issues

3 Review of Decisions by the Registrar 3.1 No Review of the Registrar’s Decisions by the Appeals Chamber and Exceptions “[T]he Appeals Chamber is not cast as an advisory body with regard to the exercise of the functions and duties of the Registrar.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “No jurisdiction is vested in the Appeals Chamber to review decisions pertaining to the administration and servicing of the Court except where specific authority to do so is conferred by the Statute, Rules of Procedure and Evidence or the Regulations of the Court.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7. “Given that regulation 83(4) of the Regulations of the Court specifically confers authority on the Trial Chamber, as the Chamber dealing with this case for the purpose of the trial proceedings, to review the Registrar’s decision while not conferring any authority on the Appeals Chamber to review the Trial Chamber’s decision, the Appeals Chamber considers that such further review by it is impermissible, unless and only to the extent that such review may fall within the scope of an appeal properly brought under articles 81 or 82 of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15. “[A]ccording to article 43(1) of the Statute, the Registry is ‘responsible for the non-judicial aspects of the administration and servicing of the Court’ which includes the management of legal assistance. According to regulation 83(1) of the Regulations of the Court, ‘[l]egal assistance paid by the Court’ is determined by the Registrar. From the foregoing, it follows that the Registrar enjoys a relatively wide margin of discretion in the area of legal assistance, in particular in relation to the calculation and payment of fees. Given this discretion, the Appeals Chamber considers that it should interfere with decisions of the Registry in this area only if there are compelling reasons for doing so.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A1, 11 February 2014, para. 22.

jurisprudence

3.2 Review of the Registrar’s Decisions by the Presidency or First Instance Chamber “Under the Statute, the ‘Registrar shall exercise his or her functions under the authority of the President of the Court’, as laid down in article 43(2) of the Statute. The Registrar may therefore have recourse to the President of the Court for necessary advice and guidance.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “In connection with legal aid, only decisions of the Registrar on the scope of the payment of legal assistance are subject to review by the relevant Chamber, that is, the Chamber dealing with the case, on the application of a legally aided person (regulation 83(4) of the Regulations of the Court).” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7; citing, Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15. “Another species of decisions of the Registrar liable to review by another body, the Presidency, are decisions of the Registrar refusing the assignment of counsel (see rule 21(3) of the Rules of Procedure and Evidence). The decision may be reviewed at the instance of the aggrieved party, while the decision of the Presidency on any such matter is final. The same applies with regard to decisions of the Registrar to refuse legal aid (see regulation 85(3) of the Regulations of the Court).” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 8.

IV Authority of the Prosecutor 1 Authority of the Prosecutor to Conduct Investigations “[A]n investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 45. “The domain and powers of the Prosecutor are outlined in article 42 of the Statute, paragraph 1 of which reads: [. . .] Manifestly, authority for the conduct of investigations vests in the Prosecutor. Acknowledgement by

43

44

i nt er p r et at i o n an d st r uc tu ral issu es the Pre-Trial Chamber of a right to victims to participate in the investigation would necessarily contravene the Statute by reading into it a power outside its ambit and remit.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 52. “The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54(1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61(1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “It follows from article 54(1) of the Statute that the investigatory activities of the Prosecutor must be directed towards the identification of evidence that can eventually be presented in open court, in order to establish the truth and to assess whether there is criminal responsibility under the Statute.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 41. “The Prosecutor is duty-bound to assure that the evidence collected is free from the influence of any person. Moreover, he is duty-bound to respect and observe the rights of the person under investigation or the accused, as the case may be.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Pikis & Nsereko in the Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 18. Diss. Op. “[T]he Prosecutor undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 80. “While the VWU [Victims and Witnesses Unit] is responsible for specific aspects of witness protection, the Prosecutor has a more general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to

jurisprudence victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98.

2 Prosecutor Enjoys High Margin of Discretion under Article 53 (Decision not to Investigate) “In the Appeals Chamber’s assessment, the distinction between the powers of the Pre-Trial Chamber under article 53(3)(a) and (b) reflects a conscious decision on the part of the drafters to preserve a higher degree of prosecutorial discretion regarding decisions not to investigate based on the considerations set out in article 53(1)(a) and (b) of the Statute. Indeed, under article 53(3)(a) of the Statute, the Prosecutor is obliged to reconsider her decision not to investigate, but retains ultimate discretion over how to proceed.” Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 59. “What is clear from the above statutory scheme, as well as the drafting history of article 53(3)(a) of the Statute, is that the Pre-Trial Chamber’s review under this provision cannot lead to a determination of admissibility that would have the effect of obliging the Prosecutor to initiate an investigation, the final decision in this regard being reserved for the Prosecutor. [R]eviews and requests by the Pre-Trial Chamber under article 53(3)(a) of the Statute are not, by their nature, either final decisions on, or determinations of, admissibility – in the sense of being freestanding decisions on admissibility – at the time that they are issued. The Impugned Decision in the present case is a request to the Prosecutor to reconsider her decision not to initiate an investigation. That request remains to be acted upon by the Prosecutor in the present case.” Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 64.

3 Duty of the Prosecutor to Act Impartially “The Prosecutor is expected at all times to act impartially. Article 42(7) of the Statute provides specifically that ‘[n]either the Prosecutor nor

45

46

i n t e r p r e t a t i o n a n d st r uc t u r a l is s u e s a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 18.

4 Obligation to Investigate Objectively under Article 54(1)(a) “[T]he Appeals Chamber notes that article 54(1)(a) of the Statute requires the Prosecutor to investigate exonerating and incriminating circumstances equally, which is essential to her truth-seeking function.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 47. “[T]he Prosecutor’s ordinarily unfettered duty to disclose must necessarily be based, inter alia, on the Prosecutor’s understanding of the case as a whole, including what is known or anticipated about possible defence(s). The fact that the Prosecutor is required ‘to investigate incriminating and exonerating circumstances equally’, pursuant to article 54(1)(a) of the Statute, means that the Prosecutor will be aware, during the course of his investigations, of material that may be of assistance to the defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 36. “The Prosecutor is bound to collect both incriminating and evidence exonerating the accused in investigating a case, as laid down in article 54(1)(a). The ambit of exculpatory evidence, as defined by the aforesaid provisions of article 67 of the Statute, is very wide.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 16. Diss. Op. “Article 54(1)(a) of the Statute binds the Prosecutor to collect not only inculpatory but exculpatory evidence too. The omission of the Prosecutor in this case to gather exculpatory evidence of which he was aware is another reason marking the failure of the Prosecutor to make disclosure of exculpatory evidence to the defence.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 41. Diss. Op.

jurisprudence

5 Continuation of Investigations after the Start of the Confirmation Hearing “[T]he Appeals Chamber determines [. . .] the Pre-Trial Chamber erred in finding that the Prosecutor’s investigation in respect to Mr Lubanga Dyilo must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. “The Pre-Trial Chamber’s finding that the ‘investigation in the current case must be brought to an end by the time the confirmation hearing starts’ [. . .] is ambiguous. It is unclear whether the phrase ‘investigation in the current case’ refers to the investigation of Mr Thomas Lubanga Dyilo with respect to the specific charges which the Prosecutor intends to bring in the upcoming confirmation hearing, or whether it extends to the investigation of Mr Thomas Lubanga Dyilo’s potential criminal responsibility for other conduct not encompassed by the charges [. . .]. [B]oth readings are incompatible with the Statute.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 50. “Article 61(4) of the Statute clarifies that the provision of the document containing the charges alone does not limit the Prosecutor’s flexibility with respect to the charges brought.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 53. “The fact that article 61(9) of the Statute does not make reference to the investigation indicates that the Prosecutor’s flexibility with respect to the investigation that is acknowledged by article 61(4) of the Statute remains unaffected by the confirmation of the charges; the Prosecutor does not need to seek permission from the Pre-Trial Chamber to continue his investigation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 53. As stipulated in article 54(1)(a) of the Statute, “the Prosecutor’s duty to establish the truth is not explicitly limited to the time before the confirmation hearing. Therefore, the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth. This is confirmed by article 61(9) of the Statute, which stipulates. inter alia, that the charges may be amended before the trial has begun”.

47

48

interpretation and s tr uctural issues Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 52. “The document containing the charges [of the confirmation hearing pursuant to article 61] is an assertion by the Prosecutor that he intends to bring a person to trial for the specific crimes set out in the document; it is not an assertion that he will not seek to put the suspect on trial for other crimes in the future.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. Article 61(9) “provides, inter alia, for a possibility to add further charges until the trial has begun. Thus, it must be possible for the Prosecutor to continue his investigation in respect of crimes that are not covered by the document containing the charges.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. “[T]he rights of the defence to have adequate time and facilities for the preparation of the trial can be safeguarded [through article 64(3)(c) of the Statute] even if the investigation continues beyond the confirmation of the charges.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 55. “The Appeals Chamber is not persuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot properly evaluate the evidence because it lacks the full evidence. As previously indicated by the Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber. Where the Prosecutor requires more time to complete the investigation, rule 121(7) of the Rules of Procedure and Evidence permits him to seek a postponement of the confirmation of charges hearing. If the evidence is found to be insufficient, article 61(8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 44; citing, Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06568 OA3, 13 October 2006, para. 54: stating that the Prosecutor may continue his investigation beyond the confirmation hearing, but that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”.

j ur i s p r uden ce

6

Access by the Prosecution to Monitored Information

“[T]he Trial Chamber’s exercise of discretion under regulation 92(3) of the Regulations of the Court, denying the Prosecutor access to all of the monitored information, was based on the Trial Chamber’s understanding that the information could not be used at trial for evidentiary purposes [. . .]. [T]he Appeals Chamber is of the view that this understanding was incorrect and amounted to an error of law, which vitiated the Trial Chamber’s determination that the Prosecutor should not be given full access to the monitored information.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 44. “The Appeals Chamber finds that in stating that the information could not be used for evidentiary purposes at trial, the Trial Chamber failed to take note of article 69(3), (4) and (7) of the Statute and rule 64(1) [. . .] [T] he Prosecutor was seeking access to the requested information rather than presenting evidence to the Trial Chamber. Thus, [. . .] this was not the correct stage of the proceedings to make a finding on admissibility, and the Trial Chamber’s decision was in error.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 45. “The Appeals Chamber further notes that [. . .] [t]he scheme established by article 69(4) and (7) of the Statute anticipates that a Chamber’s determination that evidence is inadmissible at trial will be made on a case-bycase basis [. . .]. [E]ven if the Trial Chamber found that the information was obtained by means of a violation of the Statute or of internationally recognized human rights, its admissibility would be subject to a case-bycase assessment because not every alleged violation leads to inadmissibility.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 46. “In the present case, the Trial Chamber made no such case-by-case determination of inadmissibility. Thus, in this context, the Trial Chamber’s categorical statement that the monitored information would be inadmissible was in error [. . .]. Moreover [. . .] [i]n making its determination, the Trial Chamber could not have known at this point in the proceedings whether the information the Prosecutor requested would not be ‘necessary for the determination of the truth’ in the future. Thus, the Trial Chamber’s decision that the information was inadmissible at trial inhibited the Chamber’s own power to request the submission of future evidence under article 69(3) of the Statute.”

49

50

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, paras. 47–48. “The Appeals Chamber is also not persuaded by the Trial Chamber’s additional reasoning in support of its decision [. . .]. [The fact that the monitoring had been carried out by the Registrar under regulations 174–175 of the Regulations of The Registry] is not sufficient for the Trial Chamber to conclude that the information is per se inadmissible, particularly if the information is related to the case at hand or is of great significance to the parties. On the contrary, the parties may request access to such information, and access may be granted by the relevant Chamber. In this respect, the Chamber would decide to what extent the information would be disclosed to any of the parties, bearing in mind the specific circumstances and the fairness of the proceedings [. . .]. Finally, the Appeals Chamber notes that the Trial Chamber’s rejection of the Prosecutor’s Request hinders him from fulfilling his duty under article 54(1) of the Statute ‘to establish the truth’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, paras. 49–50.

7 Grounds for Disqualification “Article 42(7) of the Statute and rule 34(1) of the Rules of Procedure and Evidence provide a non-exhaustive list of grounds which require the disqualification of the Prosecutor. Of particular relevance to the present decision is rule 34(1)(d) of the Rules of Procedure and Evidence which provides that the grounds for disqualification ‘shall include [. . .] [e]xpression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 19.

7.1

Standing to Request Disqualification of the Prosecutor “[O]n its face, there is nothing to suggest that article 42(8)(a) of the Statute does not apply to investigations of offences under article 70 of the Statute. Rule 163 of the Rules of Procedure and Evidence provides that, subject to certain exceptions which do not apply to the present matter, the Statute and the Rules of Procedure and Evidence ‘shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70 [of the Statute]’. Accordingly, the Appeals Chamber finds that

jurisprudence

51

a person being investigated on suspicion of having committed offences under article 70 of the Statute may request the disqualification of the Prosecutor from that particular investigation [. . .].” Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 17.

7.2 Objective Test Applied for Disqualification of the Prosecutor for Partiality “The use of the term ‘objectively’ in rule 34 of the Rules of Procedure and Evidence and the phrase ‘might reasonably be doubted’ in article 42(7) of the Statute indicates that it is not necessary to establish an actual lack of impartiality on the part of the Prosecutor. Rather, the question before the Appeals Chamber is whether it reasonably appears that the Prosecutor lacks impartiality. In determining whether there is such an appearance of partiality, the Appeals Chamber considers that this determination should be based on the perspective of a reasonable observer, properly informed.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 20.

7.3 Failure to Respect the Presumption of Innocence and other Rights of the Defendant as Grounds for Judicial Measures against the Prosecutor “Article 54(1)(c) of the Statute obliges the prosecutor to ‘[f]ully respect the rights of persons arising under this Statute’, including the right to be presumed innocent as guaranteed by article 66 of the Statute and reflected, inter alia, in articles 55 and 67 of the Statute.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 23. “Pursuant to article 21(3) of the Statute, the interpretation of the Prosecutor’s duty to respect the presumption of innocence must be consistent with internationally recognized human rights. The presumption of innocence has two aspects [. . .], each of which must be respected.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 24. “The first aspect of the presumption of innocence provides that, within the context of court proceedings, the accused shall be presumed innocent until proven guilty beyond a reasonable doubt and shall not have imposed on

52

i n te r pr e tat i o n a nd st r u c t u r a l is s u e s him or her any reversal of the burden of proof or any onus of rebuttal. In this sense, the presumption of innocence does not oblige the Prosecutor to refrain from expressing an opinion on the evidence in support of the guilt or innocence of a suspect or accused, at least within court proceedings. To the contrary, article 66 of the Statute, entitled ‘Presumption of innocence’, recognises explicitly that ‘[t]he onus is on the Prosecutor to prove the guilt of the accused’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. “At each stage of the proceedings, the Prosecutor should be, and is reasonably and objectively expected to be, convinced by the evidence in support of his claims and to seek to persuade the judges. The requirement of impartiality thus imposes different obligations on the Prosecutor and on the judges. The Prosecutor is not only expected but required to make statements within the context of court proceedings which would be inappropriate if made by a judge in an on-going trial.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. “The second aspect of the presumption of innocence extends beyond, and applies even independently of any pending court proceedings. As reflected consistently in the comments, decisions or judgments of, inter alia, the United Nations Human Rights Committee, the African Commission on Human and Peoples’ Rights and the European Court of Human Rights, relevant authorities, including prosecutors, must respect the presumption of innocence in their public statements and must ‘refrain from prejudging the outcome of a trial’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 26. “[T]he presumption of innocence does not necessarily require that a prosecutor remain silent and not comment on pending cases, but it imposes limitations on what he or she may say. As the European Court of Human Rights has explained, the presumption of innocence cannot ‘prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 27.

jurisprudence “[W]hile the Statute does not ascribe any public information role to the Prosecutor, such a role has been acknowledged by other international criminal courts and tribunals. Given his responsibility for carrying out investigations and collecting evidence, the Appeals Chamber considers that the Prosecutor may play an important role in informing affected communities and the public at large about on-going investigations and prosecutions. In doing so, however, he is constrained by his duty to respect the presumption of innocence.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 27. “[I]n distinguishing between acceptable statements by public authorities and those which violate the presumption of innocence, the European Court of Human Rights has distinguished between statements which describe allegations of suspicion and declarations of guilt. As an elected official of the Court and given his specific role under the Statute, which includes the duty to investigate incriminating and exonerating circumstances equally in order to establish the truth, the Prosecutor must take particular care to respect the presumption of innocence. With respect to the behaviour of prosecutors specifically, the Appeals Chamber notes that the codes of conduct or prosecution standards of other international jurisdictions indicate that a prosecutor should refrain from expressing any opinion on the guilt or innocence of the accused or the merits of issues which are sub judice, outside of court proceedings. Whether particular statements of the Prosecutor violate the presumption of innocence needs to be considered in light of all of the relevant circumstances.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 28. “The Appeals Chamber notes, however, that not every inappropriate statement or violation of this second aspect of the presumption of innocence by the Prosecutor necessarily provides a basis for his/her disqualification. The presumption of innocence and the impartiality of the Prosecutor, while related, protect different interests and are evaluated under different standards. It is only where his/her statements give rise to reasonable doubts as to the impartiality of the Prosecutor that disqualification is necessary and appropriate.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 29. “[T]he Appeals Chamber considers that the Prosecutor’s right to comment on such evidence is not without restriction and that he must respect the presumption of innocence. The Appeals Chamber considers that the

53

54

i n te r p r et a t i o n a n d str u c t u r a l is s u e s high-profile nature of cases before the Court in general and of the case against Mr Gaddafi in particular, as well as the widespread or systematic nature of the crimes against humanity for which Mr Gaddafi is allegedly responsible, increase the importance of providing public information about the Court’s on-going activities. However, they also reinforce the need for caution as well as accuracy in any public comments. As the Prosecutor is the public face of the Court, there is a risk that public statements of the Prosecutor will be imputed to the Court as a whole. The Prosecutor must therefore exercise due caution in his statements and refrain from creating the appearance of prejudging issues which are sub judice.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 30. “[T]he Prosecutor did not exercise sufficient caution, either in the manner in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38-minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi’s statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 31. “The Appeals Chamber finds that the Prosecutor’s statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 31. “[T]he Prosecutor’s behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 33.

jurisprudence

55

“[T]he Appeals Chamber finds that the Prosecutor’s statements do not amount to grounds for his disqualification. A reasonable observer, properly informed, is aware of the functions of the Prosecutor. Such observer would have understood that the Prosecutor’s statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence. That the Prosecutor manifested a certain conviction about the evidence is to be expected. A reasonable observer, properly informed, would not conclude that the Prosecutor’s conviction was not based on the evidence, was otherwise biased or would lead to the neglect of his duties under article 54(1)(a) and (c) of the Statute. As such, the Appeals Chamber finds that the Prosecutor’s statements do not lead to the conclusion that his impartiality might reasonably be doubted.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 34. “[I]t is the responsibility of the Pre-Trial and Trial Chambers to ensure fair and expeditious proceedings and that this responsibility empowers these Chambers to take measures where the Prosecutor’s conduct is inappropriate. Statements which may be inappropriate in light of the presumption of innocence but which do not cast doubt on the Prosecutor’s impartiality may be subject to, and may require the taking of other measures by the Pre-Trial or Trial Chamber responsible for the case. Such measures may include orders directing the Prosecutor to limit his/her public statements, various remedial measures to address any damage done by such statements, the issuing of a reminder to the Prosecutor of his/her obligations, a judicial reprimand or expression of discontent, or, where appropriate and subject to the provisions of the Statute and the Rules of Procedure and Evidence and the protections of due process guaranteed therein, the institution of proceedings for misconduct under articles 46, 47 or 71 of the Statute, including where the Prosecutor fails to comply with any directions or orders of the relevant Chamber in this regard.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 35.

7.4 Alleged Objective Appearance that the Prosecutor is Affiliated with the Relevant State’s Position on the Admissibility of a Case as a Ground for Disqualification “The preamble and articles 1 and 17(1)(a) and (b) of the Statute lay down that the Court is complementary to national criminal

56

i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s jurisdictions, that is, the Court only investigates and prosecutes if a State having jurisdiction does not investigate or prosecute a case, or, if it investigates or prosecutes a case, the State is or was ‘unwilling or unable genuinely to carry out the investigation or prosecution’. The Prosecutor’s statements that Libya has the right to prosecute Mr Gaddafi merely restate the principle of complementarity as contained in the Statute. The Appeals Chamber notes that, in discussing the possibility of prosecution by Libya, the Prosecutor repeatedly stated that the admissibility of the case is for the judges to decide.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 38. “The Appeals Chamber finds further that it is not inappropriate for the Prosecutor to discuss issues related to the admissibility of the case with the relevant State for two reasons. First, in order to ascertain whether a case is, at any given moment, admissible, the Prosecutor will have to inquire into the activities of States, including their intentions and their progress in investigating and prosecuting particular cases. This will require the Prosecutor to have contact with such States. Second, pursuant to article 93(10) of the Statute, the Court, including the Prosecutor, may cooperate with and provide assistance to States in their investigation or trial of crimes within the jurisdiction of the Court. Even if the Prosecutor’s cooperation or assistance would have the effect of rendering a case before the Court inadmissible, this would not render such action improper.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 39. “[T]he Prosecutor’s refusal to take a public position on the validity of Libya’s challenge to the admissibility of the case suggests that he is carrying out his duty to weigh the merits of the admissibility challenge before taking a position thereon. The fact that the Prosecutor ultimately may take a different position in this case from the positions he has taken in other cases does not necessarily cast doubt on his impartiality. Impartiality cannot mean that the Prosecutor must take the same position in each case. Rather, it means that each case must be viewed on its own merits.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 41.

jurisprudence

57

V Defence Counsel, Duty Counsel and Other Forms of Representation 1 Defence Counsel: Role, Appointment and Conflict of Interests 1.1 The Role of Defence Counsel “[T]he legal instruments of the Court provide for, at least, two types of Counsel for the Defence. Article 67(1)(d) of the Statute provides, inter alia, for the right of an accused person ‘to conduct the defence [. . .] through counsel of the accused’s choosing’. An important characteristic of defence counsel under article 67(1)(d) of the Statute is that counsel represents the individual entitled to legal assistance. Under this form of representation a client and counsel relationship exists, and counsel acts for and as agent of the client.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 53. “The right of the accused to legal representation by counsel as well as the corresponding right of a person against whom charges have been laid is safeguarded as his/her fundamental right under the provisions of article 67(1)(d) of the Statute and rule 121(1) of the Rules of Procedure and Evidence. Such a right is a universally recognized human right.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “Regulation 74(2) of the Regulations of the Court describes this relationship between defence counsel and the person entitled to legal assistance [. . .] Chapter 2 of the Code of Conduct, entitled ‘Representation by counsel’, also lays down rules and principles for such representation.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 53–54.

1.2 The Right to Choose Counsel “[T]he choice of counsel lies with the person and once appointed, counsel can conduct the defence of the individual.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “[I]t is in the interest of justice that the Appellant should be represented by a counsel of his choice in the present proceedings [. . .], and by counsel that will have the overall conduct of the Appellant’s case from the current stage of the proceedings and onwards [. . .].”

58

i n te r pr et a t i o n a nd str u c t u r a l is s u e s Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “What cannot be denied to the accused or a person under charge is a reasonable opportunity to appoint counsel of their choice and affording them adequate time and facilities to prepare their defence.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “The right to choose counsel for the representation of a person in legal proceedings must, like every right of the accused or the person under charge, be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 15.

1.3

Role of Assistants to Counsel “Such help or support as assistants to counsel may render to the Appellant is no substitute for the services of counsel.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 14.

1.4

Procedure for Appointment of Counsel The filing of a document “in the nature of a power of attorney authorizing named counsel to act on his behalf [. . .] does not complete the process of appointment of counsel. What is needed is an indication from counsel that he/she is willing to represent the accused. In accordance with regulation 75(1) of the Regulations of the Court, counsel must express his/her readiness to represent the person to the Registrar who shall thereafter see that a power of attorney is duly filed.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 2.

1.5

Conflicts of Interests: Former OTP Staff Members as Defence Counsel

a Article 64(2) is the Correct Legal Basis for the Chambers to Rule on the Validity of the Appointment of Former OTP Staff as Defence Counsel “The Appeals Chamber considers that protecting the integrity of the proceedings [. . .] is a matter that is necessarily within the jurisdiction of the Pre-Trial Chamber and that its approach [in initiating

jurisprudence proceedings proprio motu94] was therefore appropriate. The Pre-Trial Chamber did not expressly mention article 64 of the Statute in coming to its decision [. . .]. However, the essence of its relevant underlying principles – ensuring ‘that a trial is fair and expeditious and is conducted with full respect for the rights of the accused’ and adopting ‘such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’ – were clearly behind the Pre-Trial Chamber’s approach to this issue.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 46; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 30. “[A]rticle 64(2) of the Statute was the correct legal basis for the Trial Chamber to act upon the request of the Prosecutor to invalidate the appointment of counsel.” Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 30.

b Application of Article 12(1)(b) of the Code of Professional Conduct for Counsel on the Validity of the Appointment of Former OTP Staff “The Code is a part of the Court’s applicable law under article 21(1)(a) of the Statute, which requires the Court to apply, in the first place, its Statute, Elements of Crimes and Rules of Procedure and Evidence. Rule 8 of the Rules of Procedure and Evidence mandates the drawing up of a Code of Professional Conduct for Counsel.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 48. “Although the Pre-Trial Chamber was thus acting to protect the fairness and integrity of the proceedings, the Appeals Chamber considers that the Pre-Trial Chamber, in deciding this issue, was equally correct to have regard to the Code, and, in particular, the standard laid down in its article 12.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 47. “Given that the Code [article 12(1)(b)] directly regulates the situation under consideration in the current appeal [impediments to representation after having been privy to confidential information as a staff member of the Court in relation to the case in which they seek to appear], the Appeals 94

See, para. 14.

59

60

i n t e r p r e t a ti o n a n d st r u c t ur a l is s u e s Chamber determines that it was therefore appropriate for the Pre-Trial Chamber to draw upon its provisions in adopting a standard to ensure that the proceedings were fair and that their integrity was protected.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, paras. 49–50; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 31. “Article 12(1)(b) of the Code prohibits counsel from appearing in a case in which he or she was involved or privy to confidential information as a staff member of the Court – the OTP being an organ of the Court. Preventing counsel from appearing in such circumstances, but permitting impediments to representation on this basis to be lifted if deemed to be justified in the interests of justice, is consistent with ensuring that a trial is fair and protecting the integrity of the proceedings.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 51. Note that article 12(1)(b) is equally applicable in cases where the former OTP staff is not the lead counsel of the Defence, but “is practising before the Court as counsel within the meaning of article 1 of the Code, and he is therefore, bound by its provisions”. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 48; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 31.

c

Standard under Article 12(1)(b): Knowledge of Confidential Information Relating to the Case in which Counsel Seeks to Appear “[F]or an impediment to representation to arise based upon the fact that counsel was ‘privy to confidential information’ as a staff member of the Court within the meaning of article 12(1)(b) of the Code, counsel has to have had knowledge of confidential information relating to the case in which counsel seeks to appear.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 64, see also para. 52; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 32. “The Appeals Chamber considers that, ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established, as one would usually follow from the other.”

juri sprudence

61

Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 68. “The threshold imposed by article 12(1)(b) of the Code for preventing counsel from representing a client is therefore not a high one.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 54. “[T]he Appeals Chamber rejects the argument of the Prosecutor that a socalled ‘objective standard’ should apply to the matters under consideration, resulting in all members of the OTP being deemed to be privy to confidential information relating to any case that was open at the time of their employment at the OTP [. . .]. There is nothing in the wording of article 12 of the Code, nor indeed in any other provision of the Court’s governing texts, that indicates that there should be a general bar [. . .] on former staff members of the OTP representing the defence [. . .]. [P]rior association with the OTP does not, per se, disqualify a former OTP staff member from working for the defence. The fact that a case was already open by the time that counsel left the employ of the OTP would not, without more, disqualify counsel from acting for the defence in that case. A conflict of interest must be established.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 58. “The Appeals Chamber recalls that the Pre-Trial Chamber added a further qualification to the requirement of being ‘privy to confidential information’, namely that the confidential information needed to be ‘of some significance’. The Appeals Chamber cannot agree with this interpretation. The phrase ‘privy to confidential information’ is clear and unambiguous. It need not and should not be qualified in any way. To require that the shared information be ‘more than de minimis’ or ‘of some significance’ alters the plain meaning of the phrase.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 65; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 34.

d

Meaning of “Privy to Confidential Information [. . .] Relating to the Case” “[T]he Trial Chamber [. . .] was correct to interpret the words ‘privy to confidential information’ as meaning ‘being aware of’ or being in ‘possession’ of confidential information (there not being any material difference between those two phrases in the present context).”

62

interpretation and s tr uctural issues Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 32. “[T]he wording of article 12(1)(b) refers to a case in which counsel ‘was privy to confidential information’, not whether counsel ‘was or could have been’ privy to that information or had ‘the possibility to become aware of the relevant confidential information’.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 53. “[I]f the Prosecutor wishes to challenge the assignment of a particular person as counsel, it is not unreasonable for him to have to demonstrate knowledge of confidential information relating to the case [. . .]. [T]his does not need to be information which counsel presently ‘recalls’ – all that is required is to prove that counsel once had knowledge of the particular information.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 56. “[C]ounsel should be aware that the phrase [confidential information] extends in principle to internal assessments about the strengths and weaknesses of a particular case.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 67.

e How to Prove that Counsel was Privy to Confidential Information Relating to the Case “There are various methods by which the Prosecutor could prove relevant knowledge of one of his staff members in these circumstances, whether by use of methods attempted in the present case (evidence from other staff members, electronic records of materials accessed, records of meetings or e-mail distribution lists) or, indeed, by any other appropriate means by which the Prosecutor can substantiate his allegations.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 57.

f

Counsel’s Responsibility to Ensure that there is no Conflict of Interest “It is, in the first instance, counsel’s responsibility to ensure that an impediment to representation and/or a conflict of interest does not arise, in accordance with his or her professional obligations under the Code. First and foremost, counsel must not take on a case in relation to

jurisprudence which he or she was privy to any confidential information as a member of the OTP [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 54. “Given both the nature of the obligation and those potential consequences [being disqualified from the case, disciplinary proceedings and tarnishing the counsel’s professional reputation], the Appeals Chamber would expect counsel to err on the side of caution and either not agree to represent a client at all or, certainly, immediately bring the matter before the relevant Chamber pursuant to article 12(1)(b) of the Code prior to agreeing to represent a client if in any doubt at all about the application of the provisions to him or her.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 55.

g

The Appearance of Impropriety “[T]he Appeals Chamber does not regard there to be a risk of an appearance of impropriety in circumstances in which counsel has unequivocally concluded that he or she was neither involved in nor was privy to any confidential information relating to the case, nor that any conflict of interest arises; nor has it been established by the Prosecutor that counsel did have any such impediment to representation. In other words, without more, it cannot be said that there is an appearance of impropriety arising out of the mere fact of having previously worked for the OTP regardless of the circumstances.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 60.

h Exceptions to the “Knowledge of Confidential Information” Standard where Justified in the Interests of Justice “The Appeals Chamber considers that, ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established [. . .]. However, there are circumstances in which there may not be any real conflict of interest or other impediment to representation. The second sentence of article 12(1)(b) of the Code expressly provides for this possibility in providing that the lifting of the impediment to representation under that article may be ordered by the Court ‘at counsel’s request’ and ‘if deemed justified in the interests of justice’.”

63

64

i n t e r p r e t a t i o n a n d st r uc t u r a l is s u e s Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 68. “[T]he Pre-Trial Chamber should have adopted a legal standard that addressed (i) whether counsel was aware of any confidential information relating to the case and (ii) if so, whether it was nevertheless in the interests of justice for counsel to be permitted to represent the accused.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 66. “It is not possible, in the abstract, to define exhaustively what might be ‘in the interests of justice’: this will depend upon all relevant factors and circumstances of a particular case. However [. . .] one of the factors that may be considered is likely to be the nature of the confidential information itself. If it is of a ‘de minimis’ nature [. . .] being ‘so insignificant that a court may overlook it in deciding an issue or case’ – this might well be a factor that convinces the Chamber that it is in the interests of justice to permit this particular counsel to represent the accused.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 69. “Other factors that might be considered [. . .] could include the rights of the accused, counsel’s position within the defence team, and concerns about the overall fairness or the appearance of impropriety in relation to the proceedings arising, in the specific circumstances, out of the fact that counsel possessed confidential information relating to the case.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 70. “This broad discretion [to lift the impediment to representation] afforded to the Chamber under article 12(1)(b) of the Code is again consistent with its primary duty to ensure that the proceedings as a whole are fair.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 69. “The Appeals Chamber notes the argument of the Prosecutor that the employment contracts of his staff and the Staff Rules oblige members of the OTP to recognise that everything is confidential within the OTP and to maintain that confidentiality [. . .]. The third sentence of article 12(1) (b) of the Code makes clear that counsel shall ‘still be bound by the duties of confidentiality stemming from his or her former position as a staff

jurisprudence member of the Court’, even if the impediment to representation is lifted by the Court.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 63.

2 The Role of the Duty Counsel “Regulation 73(2) aims to harmonize the ends of a fair and expeditious trial with the rights of the accused or a person under charge. It is specifically designed to address the situation where a person has not yet secured legal assistance and yet wishes such aid for his/her defence. Regulation 73(2) is applicable in cases ‘where the person requires urgent legal assistance’.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 6. “The wishes of the person in need of representation are according to regulation 73(2) of the Regulations of the Court a specific factor to which regard must be had before appointing duty counsel.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13; Prosecutor v. Lubanga, Appeals Chamber’s Decision to Extend the Time Limits for Defence Documents, ICC-01/04-01/06-857 OA8, 3 April 2007, para. 3. “In the necessitous circumstances envisioned by regulations 73 and 75 of the Regulations of the Court, duty counsel can represent the accused or the person under charge.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “[T]he appointment of duty counsel is made neither in lieu of the appointment of counsel of the Appellant’s choice nor is it meant to supplant counsel if one is appointed in the meantime. The authority of duty counsel will be confined to representing the Appellant in the submission of the two documents under consideration.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 8.

3 The Role of Ad Hoc Counsel: To Represent the Interests of the Defence “The legal instruments of the Court [notably article 56(1)(b) and article 56(2)(d)] also provide for another form of Counsel for the Defence. [. . .]

65

66

i nt er p r et at i o n an d st r u c tu ral i ssu es The mandate of ‘counsel to attend and represent the interests of the defence’ is of a sui generis nature and must be understood differently from the mandate of counsel who has been appointed to represent suspects as individuals.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. “In circumstances where the suspects are at large and counsel is appointed to represent their interests generally in proceedings, such counsel cannot speak on their behalf. A client and counsel relationship does not exist between them, and counsel does not act for or as agent of the suspects. Counsel’s mandate is limited to merely assuming the defence perspective, with a view to safeguarding the interests of the suspects insofar as counsel can, in the circumstances, identify them. The provisions of the Code of Conduct regarding representation are therefore not directly applicable to such counsel.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 56.

4 The Role of the OPCD “Regulation 77(4) of the Regulations of the Court envisages that the Office of Public Counsel for the Defence can represent and protect ‘the rights of the defence during the initial stages of the investigation’, which is not the case with the proceedings pending before the Appeals Chamber. In addition, the Office of Public Counsel may, in virtue of the provisions of regulation 77(5) of the Regulations of the Court, provide support and assistance to defence counsel and to the person entitled to legal assistance.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “Neither provision [regulation 77(4) nor regulation 77(5)] can be validly invoked to sidestep the right of the person to appoint counsel of his/her choice to represent him/her in proceedings before the Court.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13.

B Jurisdiction and Admissibility

Commentary

ben batros Together, the concepts of jurisdiction and admissibility govern which cases the Court may hear. The issues that fall within their ambit – the scope of the Court’s jurisdiction, how that jurisdiction may be triggered, and the Court’s relationship with national proceedings once it is triggered – are foundational to the operation of the Court and were amongst the most controversial during the negotiation of the Statute.1 Yet, since the entry into force of the Statute, these issues have taken different paths. The provisions on jurisdiction and triggering have been considered to be fairly straightforward and uncontroversial, and have generated relatively little academic discussion.2 In contrast, the admissibility provisions were the subject of extensive debate. This imbalance is mirrored in the trajectory of these two issues before the Court, in particular the Appeals Chamber, in its early years. Appeals 1

2

E.g., Wilmshurst, E., “Jurisdiction of the Court”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International: The Hague, 1999), p. 127; Williams, S. A. and Schabas, W. A., “Article 12: Preconditions to the Exercise of Jurisdiction”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 547, para. 1; Holmes, J. T., “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International: The Hague, 1999), p. 41 at p. 43. One exception is the discussion over the propriety of “self-referrals”: e.g., Arsanjani, M. and Reismann, M., “Developments at the International Criminal Court: The Law-in-Action of the ICC”, American Journal of International Law, Vol. 99, Issue 2 (2005), p. 394; Akhavan, P., “Developments at the ICC: The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the ICC”, American Journal of International Law, Vol. 99, Issue 2 (2005), p. 411; Stegmiller, I., The Pre-Investigation Stage of the ICC: Criteria for Situation Selection (Duncker & Humblot: Berlin, 2011), pp. 131–134; Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), pp. 309–312.

67

68

j ur i s di ct i o n a n d admissib ility

on jurisdiction have been largely absent and the decisions have tended to focus on what can (and cannot) be appealed as a “decision with respect to jurisdiction” (article 82(1)(b)). In contrast, the admissibility of cases has been raised repeatedly, appealed in almost every instance, and has resulted in some of the most influential judgments issued by the Appeals Chamber to date. In addressing these questions, the Appeals Chamber has taken a restrained approach, basing its judgments first and foremost on the text of article 17, in line with its general principles of interpretation.3 Some of the debates over the principle of complementarity extend beyond the judicial determination of admissibility called for in article 17, as the Appeals Chamber itself has recognised. It has thus been careful in delineating the scope of judicial responsibility for complementarity through admissibility, declining to take an activist approach and extend its responsibilities based on policy arguments. However, it has also been conscious of those broader debates, and in its judgments has explained how it sees its interpretation as being consistent with the policy objectives of the Statute and the principle of complementarity.4 With both issues, this approach also reflects the nature of the situations before the Court. The early dominance of self-referrals both reduced the scope for judicial consideration of jurisdiction and had a significant impact on the aspects of admissibility which the Court examined. Questions of how to resolve the potential tension between sovereignty and the operations of the Court, or how to assess whether national proceedings are genuine or are being conducted to shield a person from the Court’s jurisdiction, simply did not arise in those early situations where the State in question had invited the Court’s involvement.

I Jurisdiction of the Court Given the strong focus on admissibility and the principle of complementarity by both academics and commentators since the entry into force of 3

4

See the commentary and digested cases under Chapter A, Interpretation and Structural Issues, section I(1), General Principles of Interpretation, above. E.g., Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 85–86. For an examination of the restraint showed by the Appeals Chamber in the first major inter partes appeal on admissibility, see Batros, B., “The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC”, Leiden Journal of International Law, Vol. 32, Issue 2 (2010), p. 343.

co mmen t ar y

69

the Statute, it is easy to forget how contentious the provisions regarding the jurisdiction of the Court and the mechanisms for triggering it were during the negotiation of the Statute. The Court has now initiated multiple investigations under each means of triggering jurisdiction: State referral (Uganda, Democratic Republic of Congo (DRC), Central African Republic (CAR) and Mali); UN Security Council referral (Darfur, Sudan and Libya); and proprio motu request by the Prosecutor (Kenya, Côte d’Ivoire and Georgia).5 Yet controversies have been few and far between. The fact that these provisions have attracted so little attention is a reflection of the consensus that developed around the balance struck during the negotiations and the relative clarity, of those provisions, with no novel standards such as “unwilling or unable” to debate. It also reflects the fact that the Prosecutor chose not to push the limits of the temporal or territorial jurisdiction of the Court, presenting cases that fell squarely within the basic parameters of the Court’s jurisdiction. Even the notion of what constitutes a “situation” within the jurisdiction of the Court, probably the richest source of academic discussion,6 has not been subject to litigation in the context of jurisdiction.7 The Appeals Chamber has taken a similarly conservative approach, setting out the basic components of jurisdiction and clarifying what does and does not go to the jurisdiction of the Court. It has reiterated that the jurisdiction of the Court has four aspects: • subject matter jurisdiction (ratione materiae), that is, the acts or crimes over which the Court can exercise jurisdiction (set out in articles 5–8); 5

6

7

Information current as at December 2016. As noted above, all State referrals have been from the territorial State – the so-called “self-referrals”. There have been no referrals of situations in one State from another State, the scenario that was primarily contemplated during the drafting of the Statute. However, this lack of contentious referrals should not be entirely surprising, given the traditional reluctance of States to refer violations of this nature committed by other States to adjudicatory mechanisms, e.g., the limited number of inter-state cases in regional human rights tribunals. E.g., Rastan, R., “Situation and Case: Defining the Parameters”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 421. The biggest potential for litigation over the scope of jurisdiction arose in the very earliest days of the Court’s operation when President Museveni of Uganda purported to refer to the Court the situation of the Lord’s Resistance Army (LRA). However, the Prosecutor made it clear that he accepted the referral of the entire situation in northern Uganda, not just the situation of crimes committed by the LRA. See the procedural history set out in Prosecutor v. Ongwen, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, ICC-02/04-01/15-44, 2 December 2005, in particular paras. 4–5.

70

j ur i s di ct i o n a n d admissib ility

• personal jurisdiction (ratione personae), that is, those persons over whom the Court can exercise jurisdiction, which includes questions of both nationality (article 12(2)(b) and 12(3)) and age (article 26); • territorial jurisdiction (ratione loci) (article 12(2)(a), 12(3) and 13 (b)); and • temporal jurisdiction (ratione temporis), namely, that the Court cannot exercise its jurisdiction over conduct prior to its entry into force in respect of the person or territory in question (article 11, along with articles 24 and 126).8 The Appeals Chamber has not had cause to examine the content of these elements in detail, or to define their margins. It has had no opportunity to consider and clarify, for example, questions such as how article 12(1)(a) on territorial jurisdiction applies to crimes where the acts and results take place across multiple States; or how article 12(1)(b) on personal jurisdiction applies in the case of a suspect who holds dual nationality. Such questions simply have not yet arisen in the context of the Court’s operations.9 The only substantive issue of jurisdiction that the Appeals Chamber has addressed is to clarify that a declaration by a non-State Party accepting the jurisdiction of the Court is not assumed to be limited to past crimes, and that it will generally extend to crimes committed after the declaration has been lodged, unless the declaration stipulates otherwise.10 Instead, the limited discussion by the Appeals Chamber has primarily been directed towards what constitutes a “decision with respect to jurisdiction”, in most instances resisting attempts to enlarge the concept of “jurisdiction”. There are a handful of key issues – jurisdiction, admissibility, and detention or release – which are given special status in the Statute, with dedicated procedures for challenges and the ability to appeal as of right. The Appeals Chamber has consistently resisted attempts to expand these categories or use these procedures to 8

9

10

Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, paras. 21–22; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 32. The only case in which such a question could have been raised is Prosecutor v. Bemba, which involves a politician and alleged militia leader who held multiple nationalities and spent the bulk of his time in one country but was charged with crimes committed in a second country. However, these factors were not central to the case charged and, in any event, all countries concerned (the DRC and CAR) were States Parties to the Statute. Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, paras. 80–84.

commentary

71

substantively challenge other issues.11 In the context of jurisdiction, it has ruled that whether the Prosecution had proved or could prove an element of a crime charged goes to the substantive merits of the case, and not to whether the Court has jurisdiction to consider that case.12 However, it subsequently clarified that the definition of an element of a crime charged, independent of the facts underpinning it, may dictate whether entire categories of conduct fall within the jurisdiction of the Court and may therefore properly be part of jurisdiction ratione materiae.13 It has also ruled that although the abuse of the procedural rights of a suspect or accused person is a matter that the Court must consider in the light of the obligation to interpret and apply the Statute consistent with internationally recognised human rights, as enshrined in article 21(3),14 it is not formally speaking a barrier to the exercise of jurisdiction.15 The only barriers to the exercise of jurisdiction established under the Statute are the criteria for the admissibility of cases set out in article 17.16

II The Criteria for Admissibility of a Case The changing composition of the situations before the Court has significantly influenced how the Appeals Chamber has dealt with 11

12

13

14

15

16

As the Appeals Chamber has noted, an “indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility” is not sufficient; rather, the decision must be based on a ruling that the case was or was not admissible or within the jurisdiction of the Court: see Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 15; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012, para. 13. See also the digested cases under Chapter D, Arrest and Detention, section I(5), Relationship between ICC Warrant and Domestic Procedures, below. Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11-414 OA3 OA4, 24 May 2012, para. 30; Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1225 OA2, 22 March 2016, paras. 36–38. Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1225 OA2, 22 March 2016, paras. 36–41. See the digested cases under Chapter H, Fairness, Expeditiousness of the Proceedings and Rights of the Accused, Section IX, Stay of Proceedings for Denial of Fairness or Abuse of Process, below. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 34. Ibid.

72

j u r i s d i c t i o n an d a d m i s s i b i l i ty

admissibility, effectively leading to three generations of litigation and resulting jurisprudence. Admissibility was originally conceived as being, first and foremost, protective of the interests of States.17 A challenge to admissibility was premised on the fact that a State had asserted its primary right to exercise jurisdiction.18 However, it was not until the third generation of admissibility litigation that we saw this dynamic explored before the Court.

a Early Decisions: Process and Structure The first generation of admissibility litigation (up until September 2009) did not involve any challenge to admissibility, but was conducted at the initiative of the Pre-Trial Chamber. In these decisions, the Appeals Chamber gave little guidance on substantive law, although the jurisprudence contains the Appeals Chamber’s only examination of the requirement that a case be of “sufficient gravity” under article 17(1)(d), in which the Chamber expressed concern over the imposition of additional elements or requirements that are not in the Statute.19 Rather, in these decisions the Appeals Chamber focused on procedure, in particular the 17

18

19

E.g., Holmes, J. T., “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law: The Hague, 1999), pp. 41–42, 74; Williams, S. A. and Schabas, W. A., “Article 17: Issues of Admissibility”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/ Baden-Baden, 2008), p. 606, para. 1; Holmes J. T., “Complementarity: National Courts vs the ICC”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002), p. 668; Stahn, C., “Complementarity: A Tale of Two Notions”, Criminal Law Forum, Vol. 19, Issue 1 (2008), p. 87 at pp. 88 (referring to the classical vision of complementarity), 96. This same point has also been recognised by the Court, both the Appeals Chamber (Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 83, 85) and Trial Chamber (Prosecutor v. Katanga & Ngudjolo, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC01/04-01/07-1213-tENG, 16 June 2009, para. 78). This applies to challenges under article 17(1)(a)–(c), based on the principle of complementarity. Different considerations apply to challenges based on the gravity of the case, under article 17(1)(d): see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 594–596. E.g., clarifying that “large scale or systematic basis” cannot be made a requirement for the Court to exercise jurisdiction over war crimes, nor could its jurisdiction be formally limited to the “most senior leaders”: see Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–71, 77–79.

com mentar y

73

circumstances in which a Pre-Trial Chamber ought to assess the admissibility of a case on its own motion.20 The second generation of admissibility litigation (from September 2009 through 2010) did involve challenges to admissibility, but they were initiated by a suspect or an accused rather than an aggrieved State. While it was always recognised that a suspect may challenge the admissibility of a case, in particular on the basis of ne bis in idem,21 the challenges in question were brought in the context of selfreferrals, where the territorial State (which would typically be expected to exercise jurisdiction) had invited the ICC to intervene and therefore opposed the admissibility challenge. These decisions clarified the basic architecture of the admissibility regime, in particular that any decision of inadmissibility requires the existence of a domestic investigation or prosecution, current or past.22 A case could not be inadmissible if the State was not investigating or prosecuting the case (and had not done so). Therefore, the Court would only look at whether the State is unwilling or unable to genuinely investigate or prosecute a case once it had found that there is (or was) such an investigation or prosecution. In the Appeals Chamber’s words, “[t]o do otherwise would be to put the cart before the horse”.23 While the language of article 17 may seem clear about the order of questions facing the Court when it states that “a case is inadmissible where: (a) [t]he case is being investigated or prosecuted by a State [. . .] unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”,24 the discussion of complementarity since the Statute 20

21

22

23

24

The decisions in this first generation of admissibility litigation address, in particular, the exercise of such discretion in cases where a suspect has not yet appeared before the Court: see Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04169 OA, 13 July 2006; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009. Such a right is expressly provided in article 19(2)(a), and article 17(1)(c) closely mirrors the protections in article 20(3): see further Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 592–594. With the exception of decisions declaring a case inadmissible for lack of gravity, under article 17(1)(d). Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 107. Robinson, D., “The Mysterious Mysteriousness of Complementarity”, Criminal Law Forum, Vol. 19, Issue 1 (2010), p. 67; Robinson, D.,“The Inaction Controversy:

74

j ur i s di ct i o n a n d adm issib ility

entered into force had focused so intently on what it meant to be “unwilling or unable” that a number of early challenges ignored this predicate question. The key challenges during this stage had essentially asserted that even though a State was not investigating a case, if this was for a reason other than unwillingness or inability, the case was therefore inadmissible and a State could not waive its obligation to investigate in favour of the ICC.25 This was rejected by the Chamber: if a State is not investigating and has not investigated the case, the reasons for this are irrelevant. Complementarity and admissibility are a way to resolve a conflict between competing jurisdictions,26 and thus cannot come into play where there is no such conflict, nor can the Court force a State to investigate and thus create the conflict of jurisdiction.27

b When is “the Case . . . Being Investigated or Prosecuted by a State”: Article 17(1)(a)? It was only with the third generation of admissibility litigation, beginning in March 2011 with the challenges to admissibility by Kenya,28 that one

25

26

27

28

Neglected Words and New Opportunities”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 460. E.g., Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 63, 100. Or, to put it more positively, to regulate how the Court and States work together in pursuit of their shared goals of the Statute, namely, putting an end to impunity: see Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 85–86, 11. See also Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 37, 44; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 36, 43; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 58. For a more detailed discussion of the evolution of the Court’s jurisprudence on admissibility through the first two generations, see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011; Prosecutor v. Muthaura, Kenyatta &

com mentar y

75

saw States engaging with the Court to oppose its jurisdiction in contentious proceedings, asserting their primary right to exercise jurisdiction and bringing the type of challenges that had initially been foreseen by the drafters of the Statute. This finally led to important discussion of what a State must do to successfully assert primacy over the ICC and displace its jurisdiction. However, even at this stage, the jurisprudence has not evolved in the way one might have predicted at the Court’s inception. The basic structural clarification of the second generation of jurisprudence raised the questions of what it means for a State to be investigating a case, and what case a State must be investigating for the purposes of an admissibility challenge. Much of the third generation of admissibility litigation has continued to focus on what it means for a State to be investigating or prosecuting “the case”, with comparatively limited discussion of the aspect that had been the subject of so much academic discussion: “unwilling and unable”. From the outset, the Appeals Chamber has made it clear that for a State to claim that the case “is being investigated” requires that the case is under current and active investigation.29 Plans by the State to investigate a case, or assurances that it will investigate in due course, are not sufficient: they do not create a conflict of jurisdictions between the Court and the State which an admissibility determination is required to resolve. Rather, the Court requires that a State show that it has taken, and is taking, “concrete progressive investigative steps” such as interviewing witnesses, collecting documentary evidence, or conducting forensic analyses.30 In practice, the State would be expected to commence the investigation and then file a properly substantiated challenge once it is underway. However, this does not require that the domestic investigation

29

30

Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 40; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 28. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 41, 62, 83; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 40, 61, 81; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 28–29.

76

j ur i s di ct i o n a n d adm issib ility

needs to be as advanced as the ICC case which the State is challenging, or to have collected the same (or the same amount of) evidence.31 In addition, it is not any investigation that will render an ICC case inadmissible. The Court has held, and the Appeals Chamber has confirmed, that it must be an investigation into “the same case”; that is, an investigation into whether the same individuals are criminally responsible for substantially the same conduct as alleged in the ICC case.32 Assessing whether the individuals are the same should be a simple matter, at least once a case has been initiated by the ICC.33 On the other hand, whether the conduct is “substantially the same” requires a degree of judgement. It will require looking at all of the circumstances of the cases, including the context of the crimes and the allegations against the suspects as a whole, to assess whether the domestic case “sufficiently mirrors” that before the ICC.34 Obviously, this does not 31

32

33

34

Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 43; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 42. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 40; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 39. In those decisions, the Appeals Chamber referred to the individuals under investigation and the alleged conduct that they are being investigated for as the “defining elements” of the case. However, in the context of cases alleging that superiors are responsible for crimes physically committed by their subordinates, this means the same core conduct of the suspect and the same underlying incidents; it does not require that the same direct (subordinate) perpetrators be identified: Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 70. Although, in the light of the Appeals Chamber’s insistence on a current and active investigation, it would be expected that the investigation must be actively taking steps to assess the criminal responsibility of the individuals in the ICC case – formally adding them to an investigation which is in substance pursuing others is unlikely to suffice. On the other hand, the assessment would necessarily be broader if the admissibility of a situation is challenged before a case is formed. In that scenario, the investigation of people at the same hierarchical level as the ICC investigation is examining might suffice, but once an ICC “case” has been defined, then investigation of others will not render that case inadmissible, even if they are at the same level of responsibility: see Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 41–42; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, paras. 40–41. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 71–73. See also Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 99–100, 119.

co mmentary

77

require that the cases be formally identical – the domestic case may cover a greater range of incidents or conduct than the ICC. Where the ICC case includes incidents or conduct that are not part of the domestic investigation, the Court must make a holistic assessment, inquiring why a particular incident was excluded, and its impact on the overall case. The absence of one or two incidents will not necessarily be fatal to an admissibility challenge, especially if they are broadly similar or less serious than others which are included in a large case. The Court must be realistic about the need for all judicial systems to present manageable cases, and will also consider any explanations for why a given incident is not included in its case. But if the domestic authorities are only investigating a few discrete aspects of a more substantial or systemic case before the ICC, it is unlikely that this would be considered “the same case”.35 In principle, the specific legal charges being pursued at the domestic level are not part of this analysis; rather, the focus is on the conduct of the suspect or accused.36 This is consistent with the Statute’s focus on whether a person “has already been tried for the conduct” (not the crimes) that is the subject of the case in determining whether the case is inadmissible under article 17(1)(c).37 Nevertheless, the Appeals Chamber has stated that the Court may consider the legal characterisation of the charges as “an additional indicator of the actual subject matter of the domestic proceedings”.38 One could thus imagine a situation in which the international dimension of the crimes (e.g., the systemic dimension of crimes against humanity) was omitted to minimise the seriousness of the conduct. In such a case, the legal characterisation may well matter as it does shed light on the true nature of the domestic case, consistent with the Appeals Chamber’s insistence that an admissibility 35

36

37

38

Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 71–77; Prosecutor v. Gaddafi & Al-Senussi, Judgment on the Admissibility Appeal, ICC01/11-01/11-565 OA6, 24 July 2014, paras. 100–110. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 119. Article 20(3) similarly protects a person from being tried before the Court “with respect to the same conduct” as he or she had already been tried for in domestic courts. On the relationship between article 17(1)(c) and article 20, see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 592–594. Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/1275-Red OA, 27 May 2015, para. 71.

78

j ur i s di ct i o n an d adm issib ility

determination requires “an analysis of all the circumstances of a case, including the context of the crimes”.39

c When is “the State Unwilling or Unable”? As noted above, although the question of whether a State is “unwilling or unable genuinely to carry out the investigation or prosecution” was the focus of the scholarly debate over complementarity and admissibility following the finalisation of the Statute, this has not been reflected in the litigation of admissibility before the Court. Even once States began asserting their primary jurisdiction and challenging admissibility themselves, it has rarely been the basis for the Court’s rulings. Indeed, other than repeated reaffirmations of the structural point that unwillingness or inability are to be considered only once it has been established that there is an investigation or prosecution of the same case (or that an investigation was conducted and a decision taken to not prosecute), only one appeal has addressed the substance of this crucial component of the admissibility regime.40 The suspect claimed that although domestic proceedings were ongoing against him, the case should still be admissible before the ICC because his due process rights were being violated and the State should therefore be considered unwilling to genuinely investigate and prosecute.41 This forced the Appeals Chamber to confront the fact that the definition of “unwillingness” in article 17(2) directs the Court to “hav[e] regard to the principles of due process”, and that article 17(2) (c) refers to proceedings which “are not being conducted independently or impartially”.42 However, the Appeals Chamber rejected this argument. It did so by looking at the other requirements of article 17(2), including the need for deficiencies in domestic proceedings to be “inconsistent with an intent to bring the person concerned to justice” or “for the purpose of 39

40

41

42

Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 99 (emphasis added). Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014. In some respects, this case is an outlier amongst the third generation of admissibility litigation otherwise dominated by State challenges: although the initial admissibility challenge was brought by a State, the Pre-Trial Chamber upheld that challenge and the suspect appealed that ruling, arguing that the case against him was admissible before the ICC. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 205–206. Ibid., para. 213.

co mmen t ar y

79

shielding the person concerned from criminal responsibility”, and at the purpose of the Statute (namely, to put an end to impunity).43 The concepts of unwillingness and inability are exceptions to be applied where a State appears to be actively pursuing a case, but the Court nevertheless claims jurisdiction, and are thus directed towards situations in which those apparent national proceedings are not genuine but are rather an attempt to “enable the suspect to evade justice”.44 The reference to “due process” was not designed to transform the admissibility regime into a mechanism for guaranteeing the fair trial rights of suspects generally before domestic courts, nor did it make the ICC a human rights court with the mandate to ensure that national legal systems complied with human rights standards.45 While there might be proceedings where lack of respect for the rights of the Accused were so egregious that the proceedings and outcome were contrary to any meaningful notion of justice, this was a “high threshold”.46

d Other Grounds for Inadmissibility The bulk of the challenges to admissibility and Appeals judgments have concerned whether the State is investigating the case, making it inadmissible under article 17(1)(a). There has been comparatively little consideration of, and guidance on, the other grounds for inadmissibility set out in article 17(1)(b), (c) and (d): • Article 17(1)(b) is structurally and substantively similar to article 17(1)(a) except that the investigation is no longer being actively pursued but has been concluded, with a determination that the individual in question should not be prosecuted. As a result, much of the analysis above will apply, including the need for there to have been a proper investigation of the responsibility of the individual for substantially the same conduct. The one aspect clarified by the Appeals Chamber in relation to this provision is related to its purpose, and thus what constitutes a decision “not to prosecute the person concerned”. This provision requires a decision that the individual should not be prosecuted, based on the merits of the investigation, and therefore does not cover decisions by a State to close an investigation without prosecuting the individual itself in order to 43 45

Ibid., paras. 214–217. 44 Ibid., para. 221. Ibid., paras. 218–219, see also para. 190. 46 Ibid., paras. 191, 230.

80

juri sdiction a nd admissibility

transfer them to a different jurisdiction (including the ICC) for prosecution there.47 • Article 17(1)(c), which together with article 20 prohibits the re-trial of a person who has already been tried domestically for the same conduct, except in limited circumstances, has not yet been considered by the Court. • And article 17(1)(d), which provides that a case shall be inadmissible where it is “not of sufficient gravity”, has been addressed only briefly in one judgment. The Appeals Chamber emphasised that gravity must be assessed based on the circumstances of the case rather than rigid and abstract standards, for example, by declaring that no case could be admissible if it did not target the “most senior leaders”.48

III The Procedures for Reviewing or Challenging Admissibility Article 19 provides the procedural framework for challenging or reviewing admissibility. While article 19 is quite prescriptive about the rights of participants to challenge admissibility (article 19(2)–(5), (10)) and the impact of a challenge on on-going investigations (article 19(7)–(9), (11)), it provides significant discretion to a Chamber – both on whether to review the admissibility of a case on its own motion (article 19(1)),49 and how to conduct proceedings once a review or challenge has been initiated (rule 58(2)).50 Despite this broad discretion, the Appeals Chamber has cautioned PreTrial or Trial Chambers against making a review and finding of 47

48

49

50

Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 75, 82–83. See also Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 574–577. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–79. See also Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 560–562, 577–578. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 48, 52; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 78 Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 88–89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 86–87.

commentary

81

admissibility an obligatory and extra-statutory precondition for any stage, such as commencing a case by issuing a warrant of arrest.51 And in exercising its discretion whether to initiate a review of the admissibility of the case, a Chamber must consider the impact on the rights of the suspect or suspects. The nature of that impact will be influenced by a number of factors: whether the proceedings will be public or confidential; ex parte or inter partes; whether the suspect has been surrendered to or appeared before the Court (and therefore has a right to present submissions) or not; and, if not, whether any other provisions are made, on a discretionary basis, for ad hoc counsel to present observations from the perspective of the Defence.52 The impact of an admissibility determination on the rights of the Defence will also depend on the grounds on which admissibility is being determined. An ex parte determination that a case is admissible because it is of sufficient gravity, under article 17(1)(d), is likely to be more prejudicial to the absent suspects than one based on the state of current investigations because of the permanence of the underlying facts on which the determination is made: the gravity of crimes, at least past crimes, is unlikely to change over time; and it would be difficult for an absent suspect to subsequently challenge a finding that the case is of sufficient gravity.53 On the other hand, the admissibility (or inadmissibility) of a case based on the state of domestic investigations or prosecutions must be assessed on the facts as they stand at the time of each challenge or review. A State must show that it is currently investigating the case, and not that it was investigating it in the past or that it is planning to do so in the future. Put another way, the Court must determine whether the case is admissible or inadmissible, not that it was inadmissible or that it could or should be inadmissible if the State was to act differently in the future.54 The simple 51

52

53

54

Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 42–43. See also the digested cases under Chapter D, Arrest and Detention, section I(2), Requirements for Issuing a Warrant, below. Contrast Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC01/04-169 OA, 13 July 2006, paras. 48–52 with Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 84–85. The Appeals Chamber has recognised that arguably the gravity of a case will be determined only once during proceedings: Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56, see also paras. 80, 111; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility

82

j ur i s di ct i o n a n d admissib ility

reality is that the underlying facts regarding the status and scope of a State’s investigation are much more likely to change over time, in ways that may render a case either admissible or inadmissible, than are the facts governing the gravity of the crimes charged. As discussed above, a finding that the case is inadmissible requires the Court to find that the State is taking concrete and progressive steps to assess the criminal responsibility of the suspects for substantially the same case as is before the ICC. If the challenge to admissibility is lodged by a State, then the State has the burden of proving those facts: not only that it is investigating, but that the parameters of the case under investigation are indeed substantially the same as the ICC case. And to do so, the State must provide more than mere assertions of the status and nature of the investigation; the State must provide evidence “of a sufficient degree of specificity and probative value” to demonstrate the nature of the case and the investigation.55 Indeed, if a State cannot demonstrate what case it is investigating, then the Court may well not accept that a proper investigation is underway.56 That said, if the suspect makes certain assertions, for example, regarding the (un)willingness or (in)ability of the State or the genuineness of the investigation, then they may be required to provide evidence to substantiate these.57 The obligation on States to provide substantive evidence that demonstrates the nature of the investigation and its progress might at times be in tension with the obligation on States in article 19(5) to

55

56

57

of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 62–63; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 61–62; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/ 09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 32. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 2, 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, paras. 2, 61; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 128. Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/1275-Red OA, 27 May 2015, para. 88; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11547-Red OA4, 21 May 2014, para. 83. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 166–167.

jurisprudence

83

submit a challenge to admissibility “at the earliest opportunity”. States cannot use this statutory guidance as an excuse for bringing a challenge prematurely, and finding themselves unable to provide the necessary evidence that an investigation that sufficiently addresses the same case is actually underway. Nor, given the Chamber’s discretion in the conduct of proceedings, can they be assured of an opportunity to amend their challenge or submit additional evidence just because they lodged a challenge prematurely. Rather, the obligation to challenge “at the earliest opportunity” means as soon as a State is able to actually assert (and substantiate) the necessary conflict of jurisdictions.58

Jurisprudence I Jurisdiction of the Court 1 Four Facets of Jurisdiction of the Court “The notion of jurisdiction has four different facets: subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction – jurisdiction ratione loci – and lastly jurisdiction ratione temporis.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04–01/06-772 OA4, 14 December 2006, para. 21; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 32. “The jurisdiction of the Court is laid down in the Statute. Article 5 specifies the subject-matter of the jurisdiction of the Court, namely, the crimes over which the Court has jurisdiction, sequentially defined in articles 6, 7 and 8. Jurisdiction over persons is dealt with in articles 12 and 26, while territorial jurisdiction is specified by articles 12 and 13(b), depending on the origin of the proceedings. Lastly, jurisdiction ratione temporis is defined by article 11.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04–01/06-772 OA4, 14 December 2006, para. 22.

58

Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 46, 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 45, 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35.

84

j ur i s di ct i o n a n d adm issib ility

2 Barriers and Challenges to the Exercise of the Jurisdiction “The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article 17, referable in the first place to complementarity (article 17(1)(a)–(b)) in the second to ne bis in idem (articles 17(1)(c), 20) and thirdly to the gravity of the offence (article 17(1) (d)). The presence of anyone of the aforesaid impediments enumerated in article 17 renders the case inadmissible and as such non-justiciable.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 23. “Abuse of process or gross violations of fundamental rights of the suspect or the accused are not identified as such as grounds for which the Court may refrain from embarking upon the exercise of its jurisdiction.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 24; see also para. 34. “Article 19 of the Statute regulates the context within which challenges to jurisdiction and admissibility may be raised by a party having an interest in the matter.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 24. “Jurisdiction apart, admissibility is the only ground envisaged by the Statute for which the Court may validly refrain from assuming or exercising jurisdiction in any given cause.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34. “The right to apply for asylum and the principle of non-refoulement, as well as the right to an effective remedy are internationally recognised human rights. The Court, however, has no jurisdiction over the Detained Witnesses’ asylum claims as they fall within the sole purview of the Netherlands [. . .]. [T]he right to an effective remedy is also solely an obligation of the Netherlands vis-à-vis the Detained Witnesses, not of this Court.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 OA, 20 January 2014, para. 24. “[T]he Appeals Chamber must take note of the specific circumstances of this situation, particularly that the Detained Witnesses are in the physical custody of the Court in the Netherlands, which, in the Appeals Chamber’s view, could impact upon the Detained Witnesses’ internationally recognised human right to an effective remedy from the Netherlands in respect of their asylum claims. Thus, the Appeals Chamber considers that, in this

jurisprudence specific situation, the Court should not frustrate the Netherlands’ ability to give effect to the Detained Witnesses’ human right to an effective remedy in respect of their asylum claims.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 OA, 20 January 2014, para. 24.

2.1 Challenges to Jurisdiction Ratione Materiae “[T]he interpretation and existence of an ‘organizational policy’ relate to the substantive merits of this case as opposed to the issue of whether the Court has subject-matter jurisdiction to consider such questions.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 30. “As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which Mr Muthaura and Mr Kenyatta have been charged [. . .]. Even if the Trial Chamber were not to find, in law or on the evidence, that there was an ‘organisational policy’, this would not mean that the Court did not have jurisdiction over the case but rather that crimes against humanity were not committed.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 30. “The Appeals Chamber underlines that, in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, it did not address, nor was it faced with the question of whether resolving a legal issue alone could have resulted in the crimes charged falling outside the jurisdiction of the Court. As stated above, the challenges under examination in those appeals required the resolution of the question of whether an organizational policy existed both in law and in fact.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 36. “The Appeals Chamber finds the issue in the present case to be distinguishable from those raised in the Kenya cases. Mr Ntaganda’s Challenge requires an exclusively legal determination as to whether the factual

85

86

j ur i s di ct i o n a n d admissib ility allegations correspond to the crime under international humanitarian law. If his arguments were to be accepted, the result would be a finding that the Statute restricts the applicability of war crimes in a way that fully excludes the set of facts as charged. The Appeals Chamber notes that, in contrast to the challenges considered in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, no additional factual or evidentiary determinations are required in the present case in order to resolve the legal issue raised by Mr Ntaganda. In this regard, the scope of the group intended by the Prosecutor to fall within the description ‘child soldiers’ is clearly specified to be ‘children under the age of fifteen years who were members of the UPC/FPLC’ and this allegation is undisputed for the purposes of the present appeal.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 37. “The Appeals Chamber acknowledges that references to the jurisprudence of the ad hoc tribunals and the Extraordinary Chambers in the Courts of Cambodia and certain findings in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision may suggest that the question of subject-matter jurisdiction is limited to whether the Prosecutor has alleged crimes that are listed in the Statute, and that any other legal or factual issues related to the exercise of this jurisdiction must be determined on the merits. However, these findings must be read in light of the context in which they appear, namely, in rejecting the argument that a finding that the contextual elements of crimes against humanity exist in law and in fact is per se a jurisdictional matter and that any challenge to these findings, legal or factual, is necessarily jurisdictional in nature.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 38. “[T]he question of whether the Court has subject-matter jurisdiction cannot be confined exclusively to an examination of whether the Prosecutor has successfully recited the elements of a crime listed under article 5 of the Statute. In certain circumstances, the question of whether the facts alleged correspond to the crime charged may also acquire a jurisdictional dimension. This is so, for example, where a particular legal interpretation could result in the allegations being characterised either as an ordinary crime as opposed to one of the crimes over which the Court has jurisdiction or simply as non-criminal in nature. The Appeals Chamber finds that challenges, which would, if successful, eliminate the legal basis for a charge on the facts alleged by the Prosecutor may be considered to be jurisdictional challenges. Accordingly, some verification as to whether the facts alleged correspond in law to the crimes

jurisprudence

87

charged may be necessary, depending on the circumstances, in order to determine whether the Court has jurisdiction over such crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 39. “In the context of the present case, the Appeals Chamber finds that the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature. If the Trial Chamber were to determine that the war crimes of rape and sexual slavery under article 8(2) (e)(vi) of the Statute cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator, the necessary implication would be that article 8(2)(e)(vi) of the Statute per se excludes from its ambit the acts of rape and sexual slavery against child soldiers as charged in this case. Accordingly, the Trial Chamber would not need to address whether, on the basis of the evidence submitted and discussed before it, the Prosecutor had succeeded in proving the relevant allegations. The Appeals Chamber considers that the appropriate result of such a legal finding would be that the Court lacks jurisdiction ratione materiae to prosecute the alleged acts as war crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 40.

2.2 Matters Related to the Acceptance of Jurisdiction by Declaration (Article 12(3)) “Unless stipulated in the declaration under article 12(3) of the Statute, acceptance of jurisdiction is not limited to specific events or a specific ‘situation’ within the meaning of article 13 of the Statute. It may also cover crimes under article 5 of the Statute committed after the declaration has been lodged.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 1. “The effects of such a declaration [under article 12(3)] are that the Court may exercise its jurisdiction and that the State in question is obliged to cooperate with the Court in accordance with Part 9 of the Statute. Nevertheless, a State making a declaration under article 12(3) of the Statute does not, as a result, have all the rights or obligations of a State Party.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 74.

88

j ur i s di ct i o n a n d admissib ility “The use of the words ‘crimes referred to in article 5’ indicates that the term ‘crime in question’ in article 12(3) of the Statute refers to the categories of crimes in article 5 of the Statute, that is, genocide, crimes against humanity, war crimes and the crime of aggression, and not to specific events in the past, in the course of which such crimes were committed.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 80. “[I]n the absence of a stipulation in the declaration under article 12(3) of the Statute, the acceptance of jurisdiction is not limited to a given ‘situation’ in terms of article 13 of the Statute, as appears to have been the view of the Pre-Trial Chamber.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 81. “[S]ubject to any stipulations made in the declaration of acceptance, if a State accepts the jurisdiction of the Court under article 12(3) of the Statute, the acceptance is general and the question of whether a ‘situation’ exists becomes relevant only once the Court considers whether it may exercise its jurisdiction pursuant to article 13 of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 82. “[T]he Appeals Chamber notes that the Statute also serves the purpose of deterring the commission of crimes in the future, and not only of addressing crimes committed in the past. This supports the interpretation that article 12(3) of the Statute does not prevent a State from accepting the jurisdiction of the Court prospectively, with the consequence that the Court has jurisdiction in respect of any future events that may fall within one or more of the categories of crimes in article 5 of the Statute, as applicable.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 83. “[T]he phrase ‘crime in question’ in article 12(3) of the Statute neither limits the scope of a declaration to crimes that occurred in the past nor to crimes committed in a specific ‘situation’. A State may accept the jurisdiction of the Court generally. This is not to suggest that a State, when accepting the jurisdiction of the Court, may not further limit the acceptance of jurisdiction within the parameters of the Court’s legal framework. However, unless such a stipulation is made, the acceptance of jurisdiction

jurisprudence is neither restricted to crimes that pre-date the declaration nor to specific ‘situations’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 84. “[A]n amnesty law necessarily refers to past crimes and is a mechanism distinct from, and not related to, a declaration under article 12(3) of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 86.

II The Criteria for Admissibility of a Case “The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article 17, referable in the first place to complementarity (article 17(1)(a)–(b)), in the second to ne bis in idem (articles 17(1)(c), 20), and thirdly to the gravity of the offence (article 17(1)(d)). The presence of anyone of the aforesaid impediments enumerated in article 17 renders the case inadmissible and as such nonjusticiable.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 23. “[A]rticle 17 applies not only to the determination of the admissibility of a concrete case (article 19 of the Statute), but also to preliminary admissibility rulings (article 18 of the Statute).” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 38; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 37.

1 The Case is Being Investigated or Prosecuted by a State (Article 17(1)(a)) “Article 17(1)(a) of the Statute covers a scenario where, at the time of the Court’s determination of the admissibility of the case, investigation or prosecution is taking place in a State having jurisdiction.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75.

89

90

j u r i s d i c t i o n an d a d m i s s i b i l i t y “[I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions [. . .]. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 27. “If, at the time of the admissibility challenge, the State is investigating or prosecuting a case, or has investigated a case and decided not to prosecute, the case will be inadmissible before the Court, subject to the exceptions provided for in article 17(1)(a) and (b).” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “In determining whether a State is indeed investigating or prosecuting a case, the Chamber will need to be made aware of and be provided with documentation on the national criminal justice system of the State in question. Any standard and evaluation of evidence in this respect will need to be based upon the principle that States should be treated according to equal or similar standards.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 27. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 27. Diss. Op. “The meaning of the words ‘case is being investigated’ in article 17(1)(a) of the Statute must [. . .] be understood in the context to which it is applied. For the purpose of proceedings relating to the initiation of an investigation into a situation (articles 15 and 53(1) of the Statute), the contours of the likely cases will often be relatively vague because the investigations of the Prosecutor are at their initial stages. The same is true for preliminary admissibility challenges under article 18 of the Statute. Often, no individual suspects will have been identified at this stage, nor will the exact conduct nor its legal classification be clear.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 39; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s

jurisprudence Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 38. “[U]nder article 17(1)(a), first alternative, the question is not merely a question of ‘investigation’ in the abstract, but is whether the same case is being investigated by both the Court and a national jurisdiction.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 37; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 36. “The parameters of a ‘case’ are defined by the suspect under investigation and the conduct that gives rise to the criminal liability under the Statute [. . .]. The ‘conduct’ that defines the ‘case’ is both that of the suspect [. . .] and that described in the incidents under investigation which is imputed to the suspect. ‘Incident’ is understood as referring to a historical event, defined in time and place, in the course of which crimes within the jurisdiction of the Court were allegedly committed by one or more direct perpetrators. The exact scope of an incident cannot be determined in the abstract. What is required is an analysis of all the circumstances of a case, including the context of the crimes and the overall allegations against the suspect.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 62; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC01/11-01/11-565 OA6, 24 July 2014, para. 99.

2 The “Same Person”/“Substantially the Same Conduct” Test “[A]rticle 19 of the Statute relates to the admissibility of concrete cases. The cases are defined by the warrant of arrest or summons to appear issued under article 58, or the charges brought by the Prosecutor and confirmed by the Pre-Trial Chamber under article 61 [. . .]. Thus, the defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(1)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 40; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 39.

91

92

j ur i s di ct i o n a n d admissib ility “[F]or a successful challenge of the admissibility of a case under articles 17(1)(a), first alternative, and 19 of the Statute, the same case as that before the Court must be under investigation by a State, that is, the State must take steps directed at ascertaining whether the suspects are responsible for substantially the same conduct as that alleged in the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 61. “The Admissibility Challenge that gave rise to the present appeal was brought under article 19(2)(b) of the Statute in relation to a case in which a summons to appear has been issued against specific suspects for specific conduct. Accordingly, as regards the present appeal, the ‘case’ in terms of article 17(1)(a) is the case as defined in the summons. This case is only inadmissible before the Court if the same suspects are being investigated by Kenya for substantially the same conduct.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “At this stage of the proceedings, where summonses to appear have been issued, the question is no longer whether suspects at the same hierarchical level are being investigated by Kenya, but whether the same suspects are the subject of investigation by both jurisdictions for substantially the same conduct.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 42; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 41. “In respect of the conduct giving rise to criminal liability [where the suspect] is not alleged to have committed crimes with his own hand [but where, for instance, he is alleged to be] responsible for the crimes [. . .] as an indirect co-perpetrator; the underlying criminal conduct is alleged to have been carried out by presumably a large number of direct perpetrators in the course of various incidents. For the purposes of defining a ‘case’ in article 17(1)(a) of the Statute, in situations such as the present, the Appeals Chamber considers that the conduct described in the incidents under investigation which is imputed to the suspect is a necessary component of the case. Such conduct forms the core of any

jurisprudence criminal case because without it, there would be no case. At the same time, it is the conduct of the suspect him or herself that is the basis for the case against him or her [. . .].” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 70. “[W]hat constitutes the same case, as referred to in article 17(1)(a) of the Statute, and in particular the extent to which there must be overlap, or sameness, in the investigation of the conduct described in the incidents under investigation which is imputed to the suspect, will depend upon the facts of the specific case. It is not possible to set down a hard and fast rule to regulate this issue [. . .]. [However, if] the underlying incidents that the Prosecutor and the State are investigating are identical, the case will be inadmissible before the Court (subject to any finding of unwillingness or inability). At the other end of the scale, the Appeals Chamber finds it hard to envisage a situation in which the Prosecutor and a State can be said to be investigating the same case in circumstances in which they are not investigating any of the same underlying incidents. The real issue is, therefore, the degree of overlap required as between the incidents being investigated by the Prosecutor and those being investigated by a State – with the focus being upon whether the conduct is substantially the same [. . .]. If there is a large overlap between the incidents under investigation, it may be clear that the State is investigating substantially the same conduct; if the overlap is smaller, depending upon the precise facts, it may be that the State is still investigating substantially the same conduct or that it is investigating only a very small part of the Prosecutor’s case. For example, the incidents that it is investigating may, in fact, form the crux of the Prosecutor’s case and/or represent the most serious aspects of the case. Alternatively, they may be very minor when compared with the case as a whole [. . .]. What is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating. The Appeals Chamber considers that to carry out this assessment, it is necessary to use, as a comparator, the underlying incidents under investigation both by the Prosecutor and the State, alongside the conduct of the suspect under investigation that gives rise to his or her criminal responsibility for the conduct described in those incidents.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 71–73; see also Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 100.

93

94

jurisdiction a nd admissibility “In carrying out this assessment, a Chamber should consider any information provided by the State concerned as to why it is not investigating incidents that are being investigated by the Prosecutor and should take this into account in deciding whether the State in question is investigating substantially the same conduct. In addition, this judicial assessment should include a consideration of the interests of victims and the impact on them of any decision that a case is inadmissible at the Court despite not all of the incidents being investigated domestically.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on the Admissibility Appeal, ICC-01/11-/01-547-Red OA4, 21 May 2014, paras. 73–74; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 101–110. “[T]here was no need for Libya to charge Mr Al-Senussi with the international crime of ‘persecution’ per se [. . .]. [T]here is no requirement in the Statute for a crime to be prosecuted as an international crime domestically. This is because, in line with the previous jurisprudence of the Appeals Chamber in relation to what constitutes the same case, what is required is that the crimes prosecuted at the domestic level cover ‘substantially the same conduct’ as those charged by the Court. In determining whether they do, the Pre-Trial Chamber is required to assess whether the domestic case sufficiently mirrors the case before the Court. As argued by the both Libya and the Prosecutor, it is the alleged conduct, as opposed to its legal characterisation, that matters.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 119. “[I]f it has only been established that ‘discrete aspects’ of the case before the Court are being investigated domestically, it will most likely not be possible for a Chamber to conclude that the same case is under investigation.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 77. “The Appeals Chamber does not consider it to be inherent in an ongoing investigation that its contours are unclear. As noted by the Prosecutor, any investigation – irrespective of its stage – will have certain defining parameters, and it is an indication that there is no concrete case under investigation if those parameters are unclear. In this sense, in relation to what must be submitted by a State in its challenge to admissibility, it must be possible for a Chamber to compare what is being investigated domestically against what is being

jurisprudence investigated by the Prosecutor in order for it to assess whether the same case (substantially the same conduct) is being investigated. To make this assessment, the contours of the case being investigated domestically (and indeed by the Prosecutor) must be clear.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 83.

3 “A Case is Being Investigated” if there are Investigative Steps Directed at Ascertaining the Criminal Responsibility of the Suspects “The words ‘is being investigated’, in this context, signify the taking of steps directed at ascertaining whether those suspects [for whom summonses to appear or arrest warrants have been issued] are responsible for that conduct, for instance, by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “[T]he expression ‘the case is being investigated’ appearing in article 17(1) (a) of the Statute must be understood as requiring the ‘taking of steps’ directed at ascertaining whether the person is responsible for the alleged conduct. The investigative steps undertaken by the domestic authorities ‘may include interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses’.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 28. “The mere preparedness to take such steps or the investigation of other suspects is not sufficient. This is because unless investigative steps are actually taken in relation to the suspects who are the subject of the proceedings before the Court, it cannot be said that the same case is (currently) under investigation by the Court and by a national jurisdiction, and there is therefore no conflict of jurisdictions.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40.

95

96

juri sdiction a nd admissibility “[W]hat is relevant for the admissibility of a concrete case under articles 17(1)(a) and 19 of the Statute is not whether the same evidence in the Prosecutor’s possession is available to a State, but whether the State is carrying out steps directed at ascertaining whether these suspects are responsible for substantially the same conduct as is the subject of the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 43; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 42. “[C]oncrete progressive investigative steps [must have been] taken and demonstrated at the time when an admissibility challenge is raised.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 83; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 81. “[T]he contours of the case being investigated domestically [. . .] must be clear irrespective of the stage of the investigation [. . .]. If a State is unable to present such parameters to the Court, no assessment of whether the same case is being investigated can be meaningfully made. In such circumstances, it would be unreasonable to suggest that the Court should accept that an investigation, capable of rendering the case inadmissible before the Court, is underway.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 88.

4 A State has Investigated the Case and Decided Not to Prosecute: Article 17(1)(b) “Article 17(1)(b) of the Statute covers a similar scenario [to article 17(1) (a)] where a State having jurisdiction has investigated a case, but ‘has decided not to prosecute the person concerned’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75 (emphasis added). “This provision [article 17(1)(b)] comprises two cumulative elements that have to be fulfilled for a case to be inadmissible: the case must have been investigated, and the State having jurisdiction must have ‘decided not to prosecute’.”

jurisprudence Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 82. “The purpose of article 17(1)(b) of the Statute is to ensure that the Court respects genuine decisions of a State not to prosecute a given case, thereby protecting the State’s sovereignty. However, the provision must also be applied and interpreted in light of the Statute’s overall purpose, as reflected in the fifth paragraph of the Preamble, namely, ‘to put an end to impunity’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “[A] ‘decision not to prosecute’ in terms of article 17(1)(b) of the Statute does not cover decisions of a State to close judicial proceedings against a suspect because of his or her surrender to the ICC.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “The thrust of this decision [to surrender the Appellant to the Court and to close domestic investigations against him as a result of that surrender] was not that the Appellant should not be prosecuted, but that he should be prosecuted, albeit before the International Criminal Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 82. “If the decision of a State to close an investigation because of the suspect’s surrender to the Court were considered to be a ‘decision not to prosecute’, the peculiar, if not absurd, result would be that because of the surrender of a suspect to the Court, the case would become inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “It was not the role of the Trial Chamber to review the decisions of the CAR courts to decide whether those courts applied CAR law correctly. In the view of the Appeals Chamber, when a Trial Chamber must determine the status of domestic judicial proceedings, it should accept prima facie the validity and effect of the decisions of domestic courts, unless presented with compelling evidence indicating otherwise.”

97

98

j ur i s di ct i o n a n d adm issib ility Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 66.

5 The Role of Unwillingness or Inability 5.1 General Principles “[I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 107; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 68; Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC01/11-01/11-547-Red OA4, 21 May 2014, para. 213. “[D]etermining the existence of an investigation must be distinguished from assessing whether the State is ‘unwilling or unable genuinely to carry out the investigation or prosecution’, which is the second question to consider when determining the admissibility of a case. For assessing whether the State is indeed investigating, the genuineness of the investigation is not at issue; what is at issue is whether there are investigative steps.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “[A]ccording to the clear wording of article 17(1)(a) and (b) of the Statute, the question of unwillingness or inability of a State having jurisdiction over the case becomes relevant only where, due to on-going or past investigations or prosecutions in that State, the case appears to be inadmissible.”

j ur i s p r uden ce Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75, see also para. 97. “[I]n case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (i.e., the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to article 17(1)(d) of the Statute.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78. “As the Appeals Chamber has previously held, it is only once it has been established that there was a decision not to prosecute within the meaning of article 17(1)(b) of the Statute that the question arises whether the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 107. “In both article 17(1)(a) and (b) of the Statute, the question of unwillingness or inability is linked to the activities of the State having jurisdiction [. . .]. The use of the definite article ‘the’ instead of the indefinite ‘a’ emphasises that reference is made to an investigation or prosecution that is actually on-going.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 76.

5.2 Relationship with Rights of the Accused “The concept of being ‘unwilling’ genuinely to investigate or prosecute is [. . .] primarily concerned with a situation in which the proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute. This is provided for most specifically in article 17(2)(a), which expressly states that in order to determine unwillingness, the Court shall consider whether ‘[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility’. The fact that the other two sub-paragraphs of article 17(2) do not expressly refer to shielding or protecting the person concerned cannot detract from the fact that they are sub-paragraphs of a provision defining unwillingness. The primary reason for their inclusion is therefore likewise not for the purpose of guaranteeing the fair trial rights of the suspect generally.”

99

100

jurisdiction and admi ssibility Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 218 (emphasis added). “Indeed, the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights. However, if the interpretation proposed by the Defence were adopted, the Court would come close to becoming an international court of human rights. A case could be admissible merely because domestic proceedings do not fully respect the due process rights of a suspect. This would necessarily involve the Court passing judgment generally on the internal functioning of the domestic legal systems of States in relation to individual guarantees of due process. Had this been the intention behind article 17, the Appeals Chamber would have expected this to have been included expressly in the text of the provision.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 219. “Article 17(2)(c) therefore cannot be understood to mean that violations of rights of the suspect per se are sufficient to amount to ‘unwillingness’ within the meaning of article 17(2) of the Statute. That is not to say that concepts of due process are irrelevant to the Court’s consideration of unwillingness. It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2) and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). The concept of independence and impartiality is one familiar in the area of human rights law. Rule 51 of the Rules of Procedure and Evidence specifically permits States to bring to the attention of the Court, in considering article 17(2), information ‘showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct’. As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article l7(2)(c).” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 220. “At its most extreme, the Appeals Chamber would not envisage proceedings that are, in reality, little more than a predetermined prelude to an execution, and which are therefore contrary to even the most basic understanding of justice, as being sufficient to render a case inadmissible. Other less extreme instances may arise when the violations of the rights of the

jurisprudence suspect are so egregious that it is clear that the international community would not accept that the accused was being brought to any genuine form of justice. In such circumstances, it is even arguable that a State is not genuinely investigating or prosecuting at all. Whether a case will ultimately be admissible in such circumstances will necessarily depend upon its precise facts. However, in light of those matters considered above, the Appeals Chamber concludes that: (1) For a case to be admissible under article 17(2)(c) it must be shown that the proceedings were not or are not being conducted independently or impartially and that the proceedings were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. (2) Taking into account the text, context, object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings ‘being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’ should generally be understood as referring to proceedings which will lead to an suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person’s protection. (3) However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be ‘inconsistent with an intent to bring that person to justice’.” Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 230.

6 The Case is Not of Sufficient Gravity: Article 17(1)(d) “In requiring conduct [for gravity under article 17(1)(d)] that is either systematic or large scale, the Pre-Trial Chamber introduces at the admissibility stage of proceedings criteria that effectively blur the distinction between the jurisdictional requirements for war crimes and crimes against humanity [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 70. “[I]mposing a legal requirement of ‘large scale or systematic’ within article 17(1)(d) of the Statute would not only render inutile article 8(1) of the

101

102

j u r i s d i c t i o n an d a d m i s s i b i l i t y Statute contrary to the principles of interpretation but would further contradict the express intent of the drafters in rejecting any such fixed requirement therein [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 71. “First, with respect to war crimes, the requirement of large-scale commission under the Statute is alternative to the requirement of commission as part of a policy. Second, the statutory requirement of either large-scale commission as part of a policy is not absolute but qualified by the expression ‘in particular’ [. . .]. [I]t would be inconsistent with article 8(1) of the Statute if a war crime that was not part of a plan or policy or part of a large-scale commission could not, under any circumstances, be brought before the International Criminal Court because of the gravity requirement of article 17(1)(d) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–71. “[T]he criterion of ‘social alarm’ depends upon subjective and contingent reactions to crimes rather than upon their objective gravity. The crimes listed in articles 5–8 of the Statute have been carefully selected. As is apparent from the Preamble and articles 1 and 5 of the Statute, these crimes are considered the most serious crimes of international concern. The subjective criterion of social alarm therefore is not a consideration that is necessarily appropriate for the determination of the admissibility of a case pursuant to article 17(1)(d) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 72. “Criteria considered by the Pre-Trial Chamber such as the national or regional scope of activities of a group or organization, the exclusively military character of a group, the capacity to negotiate agreements, the absence of an position, the capacity to change or prevent a policy, are not necessarily directly related to gravity as set out in article 17(1)(d). They ignore the highly variable constitutions and operations of different organizations [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 77. “The particular role of a person or, for that matter, an organization, may vary considerably depending on the circumstances of the case and should not be exclusively assessed or predetermined on excessively formalistic grounds.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 76.

j u r i s p r ud e n c e

103

“[I]ndividuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 77. “In addition, the Preamble to the Rome Statute mentions ‘most serious crimes’ but not ‘most serious perpetrators’ [. . .]. Had the drafters of the Statute intended to limit its application to only the most senior leaders suspected of being most responsible they could have done so expressly.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 79.

7 Relationship with the Objectives of the Court 7.1 Admissibility, Complementarity, and the Object of the Statute “[T]he complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court, on the one hand, and the goal of the Rome Statute to ‘put an end to impunity’, on the other hand. If States do not or cannot investigate and, where necessary, prosecute, the International Criminal Court must be able to step in.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. “[T]here may be merit in the argument that the sovereign decision of a State to relinquish its jurisdiction in favour of the Court may well be seen as complying with the ‘duty to exercise [its] criminal jurisdiction’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. However, “the Appeals Chamber is mindful that the Court, acting under the relevant provisions of the Statute and depending on the circumstances of each case, may decide not to act upon a State’s relinquishment of jurisdiction in favour of the Court”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. “Article 17 stipulates the substantive conditions under which a case is inadmissible before the Court. It gives effect to the principle of complementarity [. . .], according to which the Court ‘shall be complementary to national jurisdictions’. Accordingly, States have the primary responsibility

104

jurisdi ction and admissibility to exercise criminal jurisdiction and the Court does not replace, but complements them in that respect. Article 17(1)(a)–(c) sets out how to resolve a conflict of jurisdictions between the Court on the one hand and a national jurisdiction on the other.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 37; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 36. “[T]he purpose of the admissibility proceedings under article 19 of the Statute is to determine whether the case brought by the Prosecutor is inadmissible because of a jurisdictional conflict. Unless there is such a conflict, the case is admissible. The suggestion that there should be a presumption in favour of domestic jurisdictions does not contradict this conclusion. Although article 17(1)(a)–(c) of the Statute does indeed favour national jurisdictions, it does so only to the extent that there actually are, or have been, investigations and/or prosecutions at the national level. If the suspect or conduct have not been investigated by the national jurisdiction, there is no legal basis for the Court to find the case inadmissible.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 44; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 43; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 58. “With respect to Côte d’Ivoire’s argument that the criteria for establishing the existence of investigations and/or prosecutions at the national level should be similar to those applicable for determination of a State’s unwillingness or inability genuinely to carry out the investigation or prosecution, the Appeals Chamber notes that Côte d’Ivoire bases its argument on two premises: (i) the alleged violation of the principle of complementarity [. . .], and (ii) the Pre-Trial Chamber’s finding in the Al-Senussi Admissibility Decision that ‘the two limbs of the admissibility test are intimately and inextricably linked’. The Appeals Chamber notes, however, that this finding was made in a different context. The finding concerned the possibility of relying on the same considerations with respect to both limbs of the admissibility test, rather than comparing the criteria for establishing each of the limbs of the test. Therefore, the Pre-Trial Chamber’s finding does not support the proposition made by Côte d’Ivoire.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 60.

j u r i s p r ud e n c e “That complementarity is a core guiding principle for the relationship between States and the Court is confirmed by its prominent place in the Statute (article 1 and Preamble) as well as by the drafting history of the Rome Statute: the ‘criminal jurisdiction’ of the Court and that of States are ‘complementary’ to each other. This means that both the Court and States strive to achieve the goals of the Statute, as reflected in its Preamble, especially that of putting an ‘end to impunity for the perpetrators’ of ‘the most serious crimes of concern to the international community as a whole’.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op. “This [the Court’s and the States’ effort to achieve the goals of the Statute] also means that there must be, to the extent possible, close cooperation and communication between the Court, especially the Office of the Prosecutor, and the State in question [. . .]. While dialogue between the State and the Court is therefore required and desired, it is the Court, and not a third authority, that is the arbiter in case of conflict.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op.

7.2 Gravity and Deterrence “It may indeed have a deterrent effect if high-ranking leaders who are suspected of being responsible for having committed crimes within the jurisdiction of the Court are brought before the International Criminal Court. But that the deterrent effect is highest if all other categories of perpetrators cannot be brought before the Court is difficult to understand. It seems more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 73. “The imposition of rigid standards primarily based on top seniority may result in neither retribution, nor prevention being achieved.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 74.

105

106

jurisdiction and admissibility “The predictable exclusion of many perpetrators on the grounds proposed by the Pre-Trial Chamber could severely hamper the preventive, or deterrent, role of the Court which is a cornerstone of the creation of the International Criminal Court, by announcing that any perpetrators other than those at the very top are automatically excluded from the exercise of the jurisdiction of the Court.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 75. “[T]he capacity of individuals to prevent crimes in the field should not be implicitly or inadvertently assimilated to the preventive role of the Court more generally. Whether prevention is interpreted as long-term objective, that is, the overall result of the Court’s activities generally, or as a factor in a specific situation, the preventive role of the Court may depend on many factors, much broader than the capacity of an individual to prevent crimes.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 74.

III The Procedures for Reviewing or Challenging Admissibility 1 The Factual Basis for a Determination of Admissibility “Whether or not a case is admissible is determined by the Court, which assesses the relevant facts against the criteria of article 17 of the Statute.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “Generally speaking, the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge. This is because the admissibility of a case under article 17(1)(a), (b) and (c) of the Statute depends primarily on the investigative and prosecutorial activities of States having jurisdiction. These activities may change over time. Thus, a case that was originally admissible may be rendered inadmissible by a change of circumstances in the concerned States and vice versa.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56, see also para. 80; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 32.

jurisprudence “The expression ‘time of the proceedings’ used by the Appeals Chamber should be interpreted to refer to ‘the time of the proceedings on the admissibility challenge before the Pre-Trial Chamber and not to the subsequent proceedings on appeal’.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 32. “‘[T]he admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge’. However, contrary to Kenya’s submissions, the expression ‘time of the proceedings’ used by the Appeals Chamber in that judgment [Judgment on the Admissibility Appeal, para. 56] clearly referred to the time of the proceedings on the admissibility challenge before the Pre-Trial Chamber and not to the subsequent proceedings on appeal.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10. “[T]he Statute assumes that the factual situation on the basis of which the admissibility of a case [under article 17(1)(a) or (b)] is established is not necessarily static, but ambulatory. Furthermore, the chapeau of article 17(1) of the Statute indicates that the admissibility of a case must be determined on the basis of the facts at the time of the proceedings on the admissibility challenge. The chapeau requires the Court to determine whether or not the case is inadmissible, and not whether it was inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56. In contrast, “[a]rguably, a Chamber determines the gravity of a case only once in the course of the proceedings because the facts underlying the assessment of gravity are unlikely to change and a party may therefore be unable to raise the same issue again in future admissibility challenges”. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. In a situation where the state authorities “confirmed that there were no investigations to establish the alleged criminal responsibility of the Appellant. For that reason alone, and irrespective of the willingness of the DRC to investigate or to prosecute the Appellant, the Appeals

107

108

j u r i s d ic t i o n an d a d m i s s i b i l i t y Chamber considers that article 17(1)(a) does not present a bar to his prosecution before the International Criminal Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 80. “If, at the time of the admissibility challenge, the State is investigating or prosecuting a case, or has investigated a case and decided not to prosecute, the case will be inadmissible before the Court, subject to the exceptions provided for in article 17(1)(a) and (b).” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “[A]n accused person does not have a ‘right’ under the Statute to insist that States or organs of the Court behave in a manner that would render a case inadmissible. The admissibility of the case must be determined on the basis of the facts as they are, not on the basis of how they, in the view of the Appellant, should be. While he has the right to challenge admissibility, he has to accept that the Court will determine the admissibility on the basis of facts as they present themselves.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “A challenge to admissibility under article 19(2)(a) of the Statute is not the mechanism under which to raise alleged violations of the rights of the accused in the course of the prosecutorial process. It is a limited procedure that triggers the relevant Chamber’s powers to determine the admissibility of the case under article 17 of the Statute. Unless alleged prejudices and violations are relevant to the criteria of article 17 of the Statute, they cannot render a case inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 113.

2 Review of Admissibility by a Chamber Proprio Motu 2.1 Review in the Context of Issuing an Arrest Warrant “The use of the word ‘may’ [in article 19(1)] indicates that a Chamber is vested with discretion as to whether the Chamber makes a determination of the admissibility of a case.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 48, see also para. 52. See also

jurisprudence Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 78. “An initial determination of the admissibility of a case cannot be made an integral part of the decision on an application for a warrant of arrest for the reason that article 58(1) of the Statute lists the substantive prerequisites for the issuance of a warrant of arrest exhaustively. Article 19(1), second sentence, of the Statute cannot be invoked to make the admissibility of the case an additional substantive prerequisite for the issuance of a warrant of arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 42. “[T]he exercise of Pre-Trial Chamber I’s discretion under article 19(1), second sentence, of the Statute [to review admissibility] in the Impugned Decision was erroneous, because by deciding that it had to make an initial determination of the admissibility of the case before it could issue a warrant of arrest, the Pre-Trial Chamber did not give sufficient weight to the interests of Mr Bosco Ntaganda.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 48. “This assertion [that an initial determination of admissibility is without prejudice to subsequent reviews] protects the interests of the suspect insufficiently: if 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.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 50; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 84. “The Appeals Chamber accepts that the Pre-Trial Chamber may on its own motion address admissibility. However, in the Appeals Chamber’s view, when deciding on an application for a warrant of arrest in ex parte Prosecutor only proceedings the Pre-Trial Chamber should exercise its discretion only when it is appropriate in the circumstances of the case, bearing in mind the interests of the suspect. Such circumstances may include instances where a case is based on the established jurisprudence of the Court, uncontested facts that

109

110

j ur i s di ct i o n a n d adm issib ility render a case clearly inadmissible or an ostensible cause impelling the exercise of proprio motu review. In these circumstances it is also imperative that the exercise of this discretion take place bearing in mind the rights of other participants.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 52.

2.2

Review of Admissibility Proprio Motu at a Later Stage in Proceedings “The prejudice to the suspect that the Appeals Chamber identified in the Judgment in DRC OA [Judgment on the Ntaganda Arrest Warrant Appeal] as likely to result does not arise in the instant case. The Judgment in DRC OA concerned a decision on admissibility that the Pre-Trial Chamber had rendered in the context of proceedings that were held in camera and in which only the Prosecutor participated. This is not the case here. The proceedings that led to the Impugned Decision were public. Not only the Prosecutor, but also the Government of Uganda and victims participated in the proceedings. The Pre-Trial Chamber also appointed Counsel for the Defence in order to facilitate submissions to the Chamber on the defence perspective.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. “Furthermore, the Pre-Trial Chamber’s decision [leading to the Judgment on the Ntaganda Arrest Warrant Appeal] was based, in the main, on the gravity of the case under article 17(1) of the Statute. Arguably, a Chamber determines the gravity of a case only once in the course of the proceedings because the facts underlying the assessment of gravity are unlikely to change and a party may therefore be unable to raise the same issue again in future admissibility challenges. Again, this is not the case in the instant case. Gravity was not an issue. The issue was whether there were on-going domestic proceedings which rendered the case inadmissible pursuant to article 17(1)(a) of the Statute. Thus, the Pre-Trial Chamber’s decision to hold admissibility proceedings at the time that it did, did not, as in the DRC OA case, impair the right of the four suspects to challenge subsequently the admissibility of the case.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85.

jurisprudence

3 Challenges to Admissibility by a Person or State 3.1 General Considerations “[T]he purpose of an admissibility challenge and, by extension, an appeal under article 82(1)(a) of the Statute, is to determine whether or not a case is admissible [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56. “Pursuant to article 19(2) of the Statute, a person against whom a warrant of arrest has been issued under article 58 of the Statute has the right to challenge the admissibility of his or her case. Such a challenge may be brought before the person concerned has been surrendered to the Court and even before the person’s arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 51; Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 146. “The legal framework of the Court expressly provides for two participatory rights of the suspect in proceedings in relation to admissibility. First, pursuant to article 19(2)(a) of the Statute, ‘[a]n accused person or a person for whom a warrant of arrest or summons to appear has been issued’ is entitled to challenge the admissibility of the case. Thus, the suspect himself or herself may trigger admissibility proceedings. Second, rule 58(3) [. . .] provides that ‘[t]he Court shall transmit a request or application received under sub-rule 2 to the Prosecutor and the person referred to in article 19, paragraph 2 who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons, and shall allow them to submit written observations to the request or application within a period of time determined by the Chamber’. Thus, under this provision, the suspect is entitled to participate in admissibility proceedings triggered by others, including States, by making written submissions. The right to participate under rule 58(3) [. . .], however, does not extend to any person in respect of whom a warrant of arrest or summons to appear has been issued; it only applies to suspects who have been either surrendered to the Court or who have appeared before it.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 146. “Notwithstanding the above, the Appeals Chamber recalls that rule 58(2) of the Rules of Procedure and Evidence provides, in respect of admissibility proceedings, that the Pre-Trial Chamber ‘shall decide on the procedure to be followed and may take appropriate measures for the proper

111

112

j u r i s d i c t i o n an d a d m i s s i b i l i t y conduct of the proceedings’ [. . .]. This includes the possibility to grant the suspect participatory rights that go beyond those provided for in rule 58(3) of the Rules of Procedure and Evidence [. . .]. Nevertheless, the Appeals Chamber underlines that the granting of participatory rights to the suspect that go beyond those stipulated in rule 58(3) of the Rules of Procedure and Evidence lies within the discretion of the Pre-Trial Chamber.” Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 149.

3.2

The Burden of Proof in Admissibility Challenges “[A] State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible. To discharge that burden, the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are on-going.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 2, 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 2, 61; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 128. “[A] state needs to prove that it is conducting a genuine investigation or prosecution [. . .].” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 29. “‘[A] statement by a Government that it is actively investigating is not [. . .] determinative. In such a case the Government must support its statement with tangible proof to demonstrate that it is actually carrying out relevant investigations’. In other words, there must be evidence with probative value.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 63; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 62. “[T]o discharge its burden of proof, the State must provide the Court with ‘evidence of a sufficient degree of specificity and probative value’ that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are on-going.”

jurisprudence Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 29. “‘[A] State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible.’ The Appeals Chamber considers that this means in respect of article 17(1)(a) of the Statute that what a State challenging admissibility needs to prove is that it is conducting a genuine investigation or prosecution – which requires proof of both limbs of the provision.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 166. “Nevertheless, even though the State bears the burden of proof in general, the Appeals Chamber considers that the Pre-Trial Chamber was reasonable in placing an ‘evidential’ burden on the Defence sufficiently to substantiate the factual allegations it was making.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 167.

3.3 Procedural Considerations “The Court’s legal instruments do not set out in detail the procedure to be followed upon an admissibility challenge under article 19 of the Statute [. . .] [R]ule 58 of the Rules of Procedure and Evidence stipulates the procedure to be followed when filing a request or application under article 19 of the Statute. It requires that this request be transmitted to the Prosecutor and the person concerned, who shall be given an opportunity to make written submissions. Save for these express stipulations, the Pre-Trial Chamber enjoys broad discretion in determining how to conduct the proceedings relating to challenges to the admissibility of a case [. . .].” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 88–89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 86–87. “[U]nder this provision [rule 58(2)] the Pre-Trial Chamber may hold a hearing, but it is not obliged to do so. The Pre-Trial Chamber’s decision not to convene an oral hearing was thus an exercise of its discretion.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 110; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s

113

114

j ur i s di ct i o n an d admissib ility Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 108.

a Dissenting Opinion of Judge Ušacka in the Kenya Admissibility Appeals “[A]rticle 19(3) of the Statute read with rule 59 of the Rules of Procedure and Evidence, and rule 58(1) and (3) of the Rules of Procedure and Evidence stipulate some minimum requirements relevant to the procedure to be followed. Notably, according to article 19(3) of the Statute and rules 59(3) and 58(3) of the Rules of Procedure and Evidence, those who have referred the situation to the Court, victims, the Prosecutor and the person ‘who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons’ have a right to submit ‘observations’ within a period of time determined by the Chamber. Apart from these minimum requirements, rule 58(2) of the Rules of Procedure and Evidence vests broad discretion in the Chamber to regulate the procedure to be followed.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 14. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 14. Diss. Op. “The broad discretion given to the Chamber under rule 58(2) of the Rules of Procedure and Evidence provides the Chamber with the power to adapt the procedure to the needs of the proceedings at hand by balancing all interests at stake, including the sovereign rights of the State [. . .]. This procedure must take into account the specific circumstances put forward by the State, including the State’s clearly evinced intentions [. . .]. The Chamber may seek guidance from procedural rules applicable at the Court as well as from other courts where States are applicants in proceedings and sovereignty of States is at issue.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 22. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 22. Diss. Op. “[C]omplementarity implies that during the admissibility proceedings Kenya could start with taking investigative steps or prosecuting a case and that the Pre-Trial Chamber has the power to adapt the admissibility proceedings to such changing circumstances.”

jurisprudence Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 28. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 28. Diss. Op.

3.4 The Timing of the Challenge and Submission of Additional Evidence “[A]rticle 19(5) of the Statute requires a State to challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions. The provision does not require a State to challenge admissibility just because the Court has issued a summons to appear.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 46; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 45. “[A]rticle 19(5) of the Statute requires States to challenge the admissibility of a case ‘at the earliest opportunity’. This provision must be seen in the context of the other provisions on admissibility, in particular article 17(1) of the Statute [. . .] [T]he ‘earliest opportunity’ in article 19(5) of the Statute refers to the earliest point in time after the conflict of jurisdictions has actually arisen.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35. “[T]he State cannot expect to be allowed to amend an admissibility challenge or to submit additional supporting evidence just because the State made the challenge prematurely.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35. “Indeed, a State should, as a general rule, not challenge the admissibility of a case until it is in position to substantiate that challenge. The Appeals

115

116

j ur i s di ct i o n a n d adm issib ility Chamber has emphasized that admissibility proceedings should not be used as a mechanism or process through which a State may gradually inform the Court, over time and as its investigation progresses, as to the steps it is taking to investigate a case. Admissibility proceedings should rather only be triggered when a State is ready and able, in its view, to fully demonstrate a conflict of jurisdiction on the basis that the requirements set out in article 17 are met.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 164. “[N]evertheless, if a State has the right to start an investigation and prosecution and to bring an admissibility challenge at any time before the start of the trial before the Court, then it stands to reason that the State may also start its investigation and prosecution when the admissibility challenge has already been made.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 21. Diss. Op. Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11342 OA, 20 September 2011, para. 21. Diss. Op. “[I]n this context, [if a State’s investigation/prosecution starts after the admissibility challenge has been made] one may note that article 19(5) of the Statute provides: ‘A State [. . .] shall make a challenge at the earliest opportunity.’ This is in the interest of the Court and the proper administration of justice because it will avoid potentially lengthy and expensive proceedings before the Court that may have to be stopped at a later stage because the case has become inadmissible. This also supports that a State, acting in good faith, may use the mechanism of a State challenge as early as possible, even though the State has not yet reached the stage of fully investigating or prosecuting a given case and intends to start to do so in the course of the proceedings on the admissibility challenge.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 21. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 21. Diss. Op.

jurisprudence

4 Participation of Victims and the States in Admissibility Proceedings “[E]ven if this right [of victims and States to submit observations on admissibility proceedings under article 19(3)] is applicable [on appeal] it must of necessity be restricted in its enforcement due to the under seal and ex parte, Prosecutor only, nature of the proceedings.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 30.

5 Domestic Proceedings Pending the Determination of an Admissibility Challenge “[W]hile the Prosecutor is, pursuant to article 19(7) and subject to article 19(8) of the Statute, required to suspend her investigation pending the determination of an admissibility challenge brought by a State, there is nothing in the Statute that suggests that the domestic investigation also has to be suspended during that period. Thus, subject to a State’s obligations to cooperate with the Court, domestic proceedings may continue while an admissibility challenge is pending and they are unaffected by a determination that the case is inadmissible before the Court.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 16.

117

C Cooperation and Judicial Assistance

Commentary

ben batros The International Criminal Court has not been provided with its own police force or direct powers of compulsion over individuals or entities that may have evidence required for its investigations and cases, at least not until they are before the Court itself. Instead, it is reliant on the cooperation of States and their national law enforcement authorities. This cooperation is of paramount importance to the operation of the Court1 at all stages of its work. Without cooperation, the Court would be unable to conduct investigations, arrest suspects, release detainees if there are no grounds to continue holding them, properly adjudicate crucial pre-trial questions such as admissibility, or effectively conduct trials. Despite the importance of cooperation to the practical operation of the Court and the delicate balance struck between the broad cooperation necessary for an effective international court and considerations of State sovereignty and individual rights, the Appeals Chamber has had limited cause to examine this issue. Although the Statute, and article 93 in particular, enumerate a wide range of forms of cooperation, the 1

See, e.g., Mochochoko, P., “International Cooperation and Judicial Assistance”, in Lee (ed.), The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer: The Hague, 1999), p. 305; Kress, C., Prost, K. and Wilkitzki, P., “Part 9, International Cooperation and Judicial Assistance”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden , 2008), at p. 1504, [1] and authorities cited therein; Cryer R., et al., An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge University Press: Cambridge, 2014), pp. 517–518.

118

co mmen t ar y

119

Chamber has only considered a handful of appeals, concerning requests relating to the attendance or questioning of witnesses2 and the freezing of assets.3 One theme that runs through these early decisions is that the Appeals Chamber has supported readings of the Statute that provide the Court and Chambers with the powers that they need to conduct proceedings as effectively as possible,4 without imposing any obligations on States that go beyond those expressly set out in the Statute. For example, the Statute prescribes certain forms of cooperation that States are obliged to provide.5 However, the Appeals Chamber has held that this does not limit the orders that the Court may make and that the Court may request that States provide cooperation in the enforcement of such additional orders, as States have discretion to provide cooperation beyond the obligatory minimum established by the Statute, subject to their domestic laws.6 As with all international tribunals that lack independent enforcement authorities, compliance by States with its orders and judgments is a constant concern. The Statute recognises the reality that there may be circumstances in which States are reluctant to cooperate and establishes a process for referral of non-cooperation to either the political body responsible for the integrity of the functioning of the Court as a whole, the Assembly of States Parties or, if the non-compliance is in a situation referred by the UN Security Council, to the Security Council (in effect, the body with political responsibility for that situation).7 However, such a referral is not obligatory in every case of non-cooperation as a referral is intended to be a means of obtaining cooperation, not a punishment for 2

3

4

5 6

7

Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014; Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014. Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016. This is largely consistent with the characterisation of the cooperation regime by commentators as being “designed to allow for a broad range of assistance of flexible application”: Kress, C. and Prost, K., “Article 93: Other Forms of Cooperation”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), at p. 72, [1]. See articles 89, 92, 93(1) and 93(7). Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014, para. 112. Article 87(7).

120

cooperation and judicial assistance

failure to cooperate. The Chamber, therefore, has discretion as to whether it will refer a case of non-cooperation, contingent on whether it considers that engaging those external actors will be the most effective way of obtaining cooperation – in that instance or in future proceedings.8 This will be based on a range of considerations in addition to the simple fact of the failure of the State to cooperate.9 However, a referral for noncooperation requires that there has been a sufficiently serious or grave failure to cooperate, such that it prevents the Court from exercising its powers and functions under the Statute.10

Jurisprudence I The Court’s General Power to Request the Cooperation of States “Part 9 of the Statute generally and article 93(1) of the Statute in particular, establish primarily minimum obligations of cooperation that States Parties have vis-à-vis the Court. However, States Parties are at liberty to cooperate more extensively with the Court, if they so wish (so-called ‘enhanced cooperation’). It follows that, even if States Parties were not obliged to provide cooperation in relation to orders compelling a witness to appear before the Court, this does not necessarily mean that the Court does not have the power to make such an order, as some States may decide to cooperate with the Court, even in the absence of an obligation to do so. Thus, even if the Appeals Chamber were to find that States Parties are not obliged to provide assistance in compelling witnesses to appear before the Court in the manner contemplated in the Impugned Decision, this would not mean, by implication, that the Trial Chamber lacks the power to compel witnesses to appear before it, in the sense of creating a legal obligation for the individual concerned.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 112.

II Specific Forms of Cooperation 1 The Court’s Power to Request the Freezing and Forfeiture of Assets “There is no requirement that property and assets subject to a Chamber’s order and request for cooperation under articles 57(3)(e) and 93(1)(k) of 8

9

Prosecutor v. Kenyatta, Judgment on Appeal for a Finding of Non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 51, 77. Ibid., paras. 52–53, 55. 10 Ibid., para. 81.

jurisprudence the Statute be derived from or otherwise linked to alleged crimes within the jurisdiction of the Court.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 1, 63. “The protective measures referred to in article 57(3)(e) of the Statute are, pursuant to article 93(1)(k), ‘the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes, without prejudice to the rights of bona fide third parties’. The Appeals Chamber considers that it is clear from the use of the word ‘instrumentalities’ that this object must be linked with crimes. The word ‘proceeds’ may be capable of an independent meaning equivalent to ‘revenues’, ‘income’ or ‘profits’, nonetheless, in context, the Appeals Chamber considers its use in article 93(1)(k) to be most readily associated with crimes. However, the Appeals Chamber does not find any express or otherwise apparent reference to such link with respect to the phrase ‘property and assets’ [. . .]. In this regard, the Appeals Chamber notes the difference in wording between articles 93(1)(k) and 77(2)(b) of the Statute. The ‘property and assets’ which are the subject of the penalty of forfeiture under article 77(2)(b) of the Statute, must be ‘derived directly or indirectly from [a] crime [referred to in article 5 of the Statute of which the person has been convicted]’. By contrast, a requirement that ‘property and assets’ be derived from a crime is not clearly expressed in article 93(1)(k) of the Statute.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 41–42. “The Appeals Chamber further notes that the punctuation of the phrase in article 93(1)(k) of the Statute differs from that of article 77(2)(b) of the Statute [. . .]. [T]he Appeals Chamber finds that the words ‘of crimes’ in article 93(1)(k) of the Statute thus refer to ‘instrumentalities’ and not to ‘property and assets’.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 43. “[T]he Appeals Chamber is of the view that ‘the purpose of forfeiture’ referred to in article 57(3)(e) of the Statute does not refer only to the penalty of forfeiture under article 77(2)(b) of the Statute, but incorporates other types of forfeiture envisaged by the Statute and the Rules of Procedure and Evidence [. . .]. Thus, the Appeals Chamber considers that rule 99 of the Rules of Procedure and Evidence clarifies that the purpose of the protective measures set out in article 57(3)(e) of the Statute is not only the penalty of forfeiture under article 77(2)(b) of the Statute; such protective measures may also be taken in relation to a potential reparations order.”

121

122

c o o p e r a t i o n an d j u d i c i a l a s s i s t a n c e Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 45–46. “The Appeals Chamber also notes that protective measures under article 57(3)(e) of the Statute may be requested ‘[w]here a warrant of arrest or a summons has been issued under article 58’. At that stage of proceedings, it may be difficult to determine which property and assets were ‘derived directly or indirectly from [the] crime’ for the purpose of giving effect to a future penalty of forfeiture that may be imposed. Accordingly, the Appeals Chamber considers that an interpretation of articles 57(3)(e) and 93(1)(k) of the Statute whereby the property and assets need not be derived from crime is consistent with the limitations inherent at this stage of the proceedings.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 47. “The Appeals Chamber [. . .] notes that protective measures under article 57(3)(e) of the Statute must be taken ‘in particular for the ultimate benefit of victims’ and considers that this indication is consistent with the view that such measures may be taken in relation to a potential reparations order [. . .]. If the narrow interpretation of articles 57(3)(e) and 93(1)(k) of the Statute were to be adopted, whereby protective measures could only be taken for the purpose of forfeiture as a penalty under article 77(2)(b) of the Statute, victims would be unable to obtain protective measures for potential reparations at early stages of the proceedings. The position of victims of crimes prosecuted by the Court would thus significantly differ from that of victims of crimes adjudicated domestically. In the view of the Appeals Chamber, such an interpretation of the Statute would produce an unreasonable result.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 49–50. “The Appeals Chamber [. . .] notes that if ‘property and assets’ under article 93(1)(k) of the Statute were interpreted as limited to property derived from crime, the Court would be unable to rely on this provision to request the States’ cooperation to implement protective measures for the purpose of reparations after conviction. Therefore, when seeking cooperation in respect of property other than that derived from crime, the Court would have to rely on article 93(1)(l) of the Statute, pursuant to which the Court may request ‘[a]ny other type of assistance’. The Appeals Chamber, however, finds this provision to be too general for the purpose. The absence of a provision providing specifically for cooperation with respect to ‘the identification, tracing and freezing or seizure’ of property and assets not derived from crime post-conviction lends further support to the view that article 93(1)(k) of the Statute must be interpreted broadly. Only a broad interpretation would allow the Court to rely on article

jurisprudence 93(1)(k) of the Statute in relation to reparations after the person has been convicted.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 52. “The Appeals Chamber is of the view that efficient protective measures taken at early stages of proceedings increase the likelihood that property and assets will be available for the purpose of reparations at the time any such award is made pursuant to article 75 of the Statute.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 53.

2 Required Attendance of Witnesses “[T]he plain wording of article 64(6)(b) of the Statute indicates that the Trial Chambers have the power to compel the appearance of witnesses before the Court, in the sense of creating a legal obligation for the individual concerned. The Appeals Chamber finds that the term ‘require’ [in article 64(6)(b)] denotes something more than a voluntary action expected from someone else. The Oxford Dictionary defines ‘require’ as: ‘(of someone in authority) instruct or expect (someone) to do something’ and ‘regard an action, ability, or quality as due from (someone) by virtue of their position’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 107. “The Appeals Chamber considers that [article 93(1)(b)] not only requests that a State Party itself take evidence, but also the taking of evidence on a State Party’s territory, either by the Court sitting in situ or by video-link. In this regard, the Appeals Chamber notes that the wording of the provision does not limit the taking of evidence to domestic authorities. Accordingly, Kenya’s argument that article 93(1)(b) of the Statute refers to the taking of testimony by Kenya domestic courts only is not supported by the plain wording of the provision itself. Furthermore [. . .] the drafting history of article 93 of the Statute reflects that during the negotiations, alternative ways to receive the testimony of witnesses who did not wish to travel to the Court were considered and discussed. This included the taking of evidence in the requested State.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 130. “[T]his interpretation of article 93(1)(b) of the Statute finds support in legal writings. One commentator has argued that: ‘[a]lthough a witness may not be brought against his will before the [Court], this holds not true

123

124

c o o p e r a t i o n an d j u d i c i a l as s i s t a n c e for his forced appearance in the requested State with a view to testimony by video-conference’. He concludes that ‘[o]bligations to offer this particular form of assistance follow from the broader duty to assist the Court in the taking of evidence, pursuant to article 93(1)(b) of the [. . .] Statute’. Similarly, another commentator argues that ‘if a witness, whose attendance and testimony is required by the Trial Chamber, does not want to travel to the Seat of the Court one solution could be for the Trial Chamber to obtain the assistance of the State Party for the testimony to be given before the national authority or by means of video-conference’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 131.

3 Transfer Persons in Custody to Give Testimony “[T]he Standard Operating Procedure Agreement was entered into in order to obtain the testimony of the Detained Witnesses, which is a purpose explicitly permitted under article 93(7)(a) of the Statute. Once the Detained Witnesses concluded their testimony in May 2011, the statutory ‘purpose’ of maintaining their custody ceased to exist. Pursuant to the Court’s obligations under article 93(7)(b) of the Statute, rule 192(4) of the Rules of Procedure and Evidence and section 7(a) of the Standard Operating Procedure Agreement, the Detained Witnesses, in the normal course of events, would have been transferred to the DRC upon the conclusion of their testimony before the Trial Chamber.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 22. “[T]he Appeals Chamber does not consider that the current situation, that is, the non-implementation of the second sentence of article 93(7) (b) of the Statute and the continued detention of the Detained Witnesses in the Court’s detention centre is an appropriate solution [. . .]. First, article 21(3) of the Statute requires that article 93(7) of the Statute be applied and interpreted in conformity with internationally recognized human rights; it does not require the Court to violate its obligations pursuant to article 93(7)(b) of the Statute [. . .]. Second, [. . .] the Court’s authority to detain individuals is limited to situations where the detention is related to judicial proceedings before the Court [. . .]. The Appeals Chamber does not consider that article 21(3) of the Statute requires, or even permits, the Court to detain individuals beyond what is provided in the Statute.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, paras. 25–27.

jurisprudence “[R]ule 192 of the Rules of Procedure and Evidence, as well as article 44 of the Headquarters Agreement [. . .] regulate the transport of individuals in the custody of the Court. Under these provisions and in the course of the implementation of article 93(7)(b) of the Statute, the Detained Witnesses will be under the control and in the physical custody of the Netherlands. Accordingly, the Appeals Chamber considers that it is for the Netherlands to determine whether the Detained Witnesses’ asylum claims make it necessary for it to intervene in order to take control of the Detained Witnesses until their respective claims have been finally adjudicated.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 29. “[A]rticle 21(3) of the Statute does not require the Court to interpret its legal texts so as to avoid situations where the Netherlands may consider it necessary to take independent steps in order to fulfil its own legal obligations in relation to the Detained Witnesses.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 29. “[T]he Appeals Chamber considers that the second sentence of article 93(7)(b) of the Statute can be implemented in conformity with article 21(3) of the Statute, specifically, in respect of the Detained Witnesses’ right to an effective remedy in respect of their asylum claims. Therefore, the Appeals Chamber orders the Registrar to implement, without delay, the second sentence of article 93(7)(b) of the Statute in respect of the Standard Operating Procedure Agreement entered into between the Court and the DRC regarding the Detained Witnesses.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 30.

III State Non-compliance and Referrals (Article 87(7)) 1 Decision to Refer Non-cooperation is Discretionary “[T]he scope of a Chamber’s discretion under article 87(7) of the Statute comprises: (i) whether to make a finding of a failure to comply with a request for cooperation by a State, which prevents the Court from exercising its powers and functions under the Statute; and (ii) a determination of whether it is appropriate to refer the matter to the ASP or the UNSC in order to seek external assistance to obtain cooperation with the request at issue or to otherwise address the lack of cooperation by the requested State.”

125

126

c o o p e r a t i o n an d j u d i c i a l as s i s t a n c e Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 55. “Pre-Trial Chambers consistently consider the appropriateness of a referral to the ASP or UNSC when deciding upon an application for a finding of non-compliance and referral pursuant to article 87(7) of the Statute, even when it had already confirmed a failure to comply with a cooperation request. As indicated above, the Appeals Chamber is of the view that these interpretations are supported by the wording of article 87 of the Statute and holds therefore that an automatic referral to external actors is not required as a matter of law. Furthermore, the Appeals Chamber is not persuaded that such automatic referral would be beneficial as a matter of policy as contended by the Prosecutor.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 49. “[I]t is important to take into account the object and purpose of paragraph 7 of article 87 of the Statute. This paragraph is a part of the system embodied in article 87, which contains the general provisions that govern requests for cooperation and the powers of the Court in this regard. This supports the view of the Trial Chamber that this final provision aims at enhancing the effectiveness of the cooperation regime under Part IX of the Statute, by providing the Court with the possibility of engaging certain external actors to remedy cases of non-cooperation. Since the object and purpose of the provision is to foster cooperation, the Appeals Chamber believes that a referral to those particular actors was not intended to be the standard response to each instance of non-compliance, but only one that may be sought when the Chamber concludes that it is the most effective way of obtaining cooperation in the concrete circumstances at hand.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 51. “The Appeals Chamber is therefore not persuaded by the Prosecutor’s arguments that the Trial Chamber’s approach, that is, that it had discretion to determine whether to refer Kenya’s non-cooperation, undermines the Court’s cooperation regime or damages the Court’s ability to fulfil its mandate. A refusal to refer a matter of non-cooperation to the ASP or the UNSC does not necessarily imply acceptance of non-cooperation, but may be based on the Chamber’s conclusion that such a referral may not be an effective means to address the lack of cooperation in the specific context of the case.”

j ur i s p r uden ce Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 52.

2 Discretion in Determining what Factors are Relevant “Taking the above into account, the Appeals Chamber considers that a Chamber, when deciding whether to refer a matter of noncooperation to the ASP or UNSC, should consider whether a referral of a State’s failure to comply with a request for cooperation is an appropriate measure to either seek assistance from external actors to obtain the requested cooperation or otherwise address the lack of cooperation from the requested State. In this regard, it is important to note that a referral may be value-neutral and not necessarily intended to cast a negative light on the conduct of a State. Since the ultimate goal is to obtain cooperation, a Chamber has discretion to consider all factors that may be relevant in the circumstances of the case, including whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further consultations with the requested State; and whether more effective external actions may be taken by actors other than the ASP or the UNSC, such as third States or international or regional organisations. In conclusion, the Appeals Chamber considers that it is clear that, in determining whether a referral is appropriate, a Chamber will often need to take into account considerations that are distinct from the factual assessment of whether the State has failed to comply with a request to cooperate. The Appeals Chamber therefore considers that a referral is not an automatic consequence of a finding of a failure to comply with a request for cooperation, but rather this determination falls within the discretion of the Chamber seized of the article 87(7) application.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 53. “It is within a Chamber’s discretion to consider whether a particular factor is relevant for its determination on either a failure to cooperate or whether it is appropriate to refer the matter of non-cooperation, or both. The same factor may be relevant for both aspects and may be taken into account more than once, provided that the factor is assessed in a consistent, noncontradictory manner.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 2, 79.

127

128

c o o p e r a t i o n an d j u d i c i a l a s s i s t a n c e “The Appeals Chamber is of the view that it is within a Chamber’s discretion to consider whether a particular factor affects the determination of a failure to comply with a cooperation request or to refer the matter of non-cooperation, or both. However, the factor must be assessed consistently throughout the decision. In the Appeals Chamber’s view, the Trial Chamber’s assessment that the ‘possibility of obtaining the necessary evidence, even if the Revised Request was to be fully executed, is still nothing more tha[n] speculative’ is clearly contradictory with the Trial Chamber’s finding that Kenya’s non-cooperation with the Revised Request ‘ultimately impinged upon the Chamber´s ability to fulfil is mandate under [a]rticle 64, and in particular, its truth-seeking function in accordance with [a]rticle 69(3)’. Such a patent contradiction makes the first assertion unreasonable and calls into question the second one.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 79–80 (emphasis added). “Indeed, such contradiction raises the question as to whether the Trial Chamber made a proper determination of a failure to cooperate of a certain gravity, as required by the first clause of article 87(7) of the Statute. As indicated above [. . .] this first clause includes an essential factual prerequisite for any referral, namely, a failure to cooperate which prevents the Court from exercising its functions and powers under the Statute. If the Trial Chamber was uncertain about the importance of the evidence, it is unclear why the Trial Chamber concluded that the lack of the requested evidence prevented the Chamber from exercising its functions, as required in that clause. The Appeals Chamber also notes in this regard that the conflation of the trial proceedings against Mr Kenyatta and the non-compliance proceedings appears to have affected the Trial Chamber’s consideration of whether judicial remedies had been exhausted, or whether there was still a possibility that Kenya would cooperate. In the view of the Appeals Chamber, the conclusion that a deadlock is reached with regard to a cooperation request is a key factor to determine the existence of a failure to comply with such request. Thus, and contrary to the Prosecutor’s arguments [. . .] the Appeals Chamber considers that the Trial Chamber did not make a clear finding as to whether such remedies had been exhausted. The Trial Chamber explicitly acknowledged in the Impugned Decision that it considered it appropriate to decide on the Prosecutor’s Article 87(7) Application at this stage because ‘allowing a further adjournment would be contrary to the interests of justice under the circumstances, rather than because the Chamber finds there to be no possibility of further cooperation’ .” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 81 (emphasis added).

jurisprudence “With regard to the conduct of parties in the proceedings, the Appeals Chamber recalls that the primary obligation to cooperate lies with the requested State and not with the party requesting cooperation. However, the Appeals Chamber is of the view that the conduct of the requesting party, in this case the Prosecutor, may also be a relevant factor if the actions of the requesting party have negatively impacted the requested State’s ability to cooperate.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 86–87.

3 (Non)-Compliance Proceedings not to be Conflated with Proceedings against the Accused “In determining whether there was a failure to cooperate within the terms of the first clause of article 87(7), the Trial Chamber should take into account all relevant factors, including the evidence that was required in the cooperation request and the conduct of the parties to the proceedings. The Trial Chamber should avoid conflating the criminal proceedings against Mr Kenyatta with the proceedings under article 87(7) and determine whether, at the time of the Impugned Decision, judicial measures to obtain the cooperation had been exhausted and consultations had reached a deadlock.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 95. “[T]he Appeals Chamber notes that non-compliance proceedings and proceedings against an accused before the Court are distinct proceedings that involve different parties (States versus an individual) and have different purposes under the Statute (State cooperation versus individual criminal responsibility). Even where non-compliance proceedings originate in the context of a case against an accused, the interests and rights at stake are not interchangeable between these two.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 73. “The Appeals Chamber considers that a referral could have an impact on future cooperation considered more broadly, including for on-going investigations, even if it were to be considered inappropriate for continuing the trial at hand. In this regard, the Appeals Chamber considers that future cooperation by the requested State is indeed a factor to be taken into account when deciding on the appropriateness of a referral. However, contrary to the Trial Chamber’s finding, the Appeals Chamber is of the

129

130

co o p er at i on an d j udi cial a ssistanc e view that it is for the Trial Chamber and not another Chamber to decide on the matter. Regardless of the Adjournment Decision and the withdrawal of the charges, the Trial Chamber was and remains competent to decide on whether it would be appropriate to refer Kenya’s noncompliance to the ASP either to seek a concrete remedy for the lack of cooperation in the case at hand or to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 77.

D Arrest and Detention

Commentary

ben batros In the ICC, decisions on arrest (under article 58) and on detention or release (under article 60) are closely related. In practical terms, they typically draw on the same criteria; and in systemic terms, the two provisions work together to ensure that the Court’s exercise of its detention powers respects basic human rights principles. The decision on the Prosecution’s application for a warrant of arrest or summons to appear marks the beginning of a case.1 There are two essential findings required by the Chamber at this stage: that “there are reasonable grounds to believe that the person has committed a crime” under the Statute (article 58(1)(a)); and that the person’s detention “appears necessary” for one of the prescribed reasons (article 58(1)(b)). Article 60, on interim release or detention, refers back to these same criteria, asking the Chamber to consider whether “the conditions set forth in article 58, paragraph 1, are met” in deciding on an initial application for release, or whether those circumstances have changed in subsequent reviews. As a result, while the majority of the appeals have been brought against decisions under article 60(2) and (3) – for reasons discussed below – many of those judgments have examined the criteria in article 58, and the guidance provided by the Appeals Chamber will apply 1

The Regulations of the Registry, in force 6 March 2006, ICC-BD/03-03-13, provide that the Registry “shall open a case record upon receipt of an application requesting the issuance of a warrant of arrest or a summons to appear pursuant to article 58” (regulation 20(2)). In practice, the Prosecution’s application for a warrant of arrest or summons to appear has generally been filed in the situation, and the case record has commenced with the decision issuing that warrant or summons (see, e.g., Situation in Darfur, Prosecutor’s Application under Article 58(7) of the Statute, ICC-02/05-56, 27 February 2007; Prosecutor v. Harun and Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1-Corr, 27 April 2007).

131

132

arrest and d etention

equally to determinations on whether to issue a warrant of arrest in the first place. The right to liberty, and to be free from arbitrary detention, is one that is given great importance in human rights law, which, in turn, informs the interpretation of the Statute.2 Read in conjunction, articles 58 and 60 ensure that detention by the ICC complies with fundamental human rights principles, namely: detention must at all times be necessary (articles 58(1) and 60(2)); it must be based on a judicial order (article 58), and kept under judicial supervision (article 60(3)); the suspect must be informed of the basis for their detention (article 60(1)) and has the right to apply for release (article 60(2)); and detention must not extend for an unreasonable period (article 60(4)).3 This close correlation of the statutory provisions and the fundamental requirements of human rights law has been repeatedly recognised by the Appeals Chamber, which has referred to the jurisprudence of human rights bodies in interpreting these standards, and has explicitly reiterated that those provisions must be interpreted and applied “consistent with internationally recognized human rights” under article 21(3).4 An additional safeguard, and a reflection of the importance of decisions on the liberty or detention of a person, is that decisions under article 60 are one of the few key decisions which may be appealed as of right, without any requirement for a grant of leave (article 82(1)(b)).5 As a result, appeals on questions of detention and release have been fairly common in the early years of the Court’s operation: at the time of writing, 2

3

4

5

Under article 21(3), the application and interpretation of law by the Court “must be consistent with internationally recognized human rights”; the Appeals Chamber has stated in this respect that “Human rights underpin the Statute; every aspect of it.” The provisions of the Statute “must be interpreted and more importantly applied in accordance with internationally recognized human rights; first and foremost, in the context of the Statute (see articles 64(2), 67(1), 68(1) and (5) of the Statute), the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety” (Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37). See the digested cases under Chapter A, Interpretation and Structural Issues, section I(4), Article 21(3) of the Statute, above. See generally Croquet, N., “The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?” Human Rights Law Review, Vol. 11 (2011). See below and, e.g., Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22. In addition, given the immediacy and extent of the impact, these appeals have particularly short time limits for filings (regulation 64(5)).

co mmen t ar y

133

a total of twenty-four judgments have been issued in appeals against decisions on detention and release under article 60, covering almost every case in which a suspect has been arrested and appeared before the Court.

I Arrest Warrants and Summons to Appear: Article 58 In contrast to the inter partes nature of a decision on release, which may be appealed as of right, decisions on warrants of arrest are usually issued ex parte, and if the Prosecution wishes to appeal, it must seek leave to do so under article 82(1)(d). As a result, far fewer appeals have considered this stage of the proceedings – only two to date. Nevertheless, in each appeal the Appeals Chamber provided guidance or clarification on important issues. In terms of the procedure for issuing an arrest warrant, article 58(1) states that if the prescribed criteria are met, the Pre-Trial Chamber “shall [. . .] issue a warrant of arrest”. The Appeals Chamber has confirmed that this does not give the Pre-Trial Chamber a discretion in issuing a warrant, and that it therefore may not impose additional requirements (e.g., convincing the Chamber that the case is of sufficient gravity to be admissible).6 The Appeals Chamber has also provided a degree of guidance on the standard against which the material presented by the Prosecution is to be assessed, at least in respect of the requirement under article 58(1)(a) that there be reasonable grounds to believe that a person committed a crime.7 Prior to the commencement of a case, there may have been proceedings in connection with the Prosecution’s investigation of a situation, but the application and decision on an arrest warrant (or a summons to appear) provides the first opportunity for the parameters of a case – a specific suspect(s), incident(s), and charge(s)8 – to be identified and adjudicated. Because this is the first decision on the 6

7

8

Prosecutor v. Banda, Judgment on Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/ 09-632-Red OA5, 3 March 2015, paras. 25, 42. The Chamber has had less cause to consider the criteria set out in article 58(1)(b) – the reasons for which “arrest of the person appears necessary” – in the context of arrest warrant applications per se. However, it has provided substantial guidance on the factors relevant to these criteria in the context of release appeals (see section II, Pre-Trial Detention/Interim Release (Article 60), subsection (a) Application for Release (Article 60(2))). Situation in the DRC, Decision on the Application for Participation in the Proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5 and VPRS-6, ICC-01/04-101-tEN-Corr, 18 January 2006, para. 65.

134

arrest and d etention

substance of a case, and especially because it is a decision made by the same Pre-Trial Chamber that will subsequently rule on the confirmation of charges, the standard of proof to be applied is important.9 The Appeals Chamber has explicitly linked “reasonable grounds to believe” that the person has committed a crime under article 58(1)(a) with the standard of “reasonable suspicion” required to justify detention in the European Convention on Human Rights.10 Thus, while there must be a basis for the belief to be reasonable, the “reasonable suspicion” standard only requires the adjudicator to be satisfied that the person “may” have committed the crime, and the Appeals Chamber has cautioned the Pre-Trial Chamber against effectively requiring certainty or demanding that the Prosecution exclude other possibilities at this early stage in the proceedings.11 Finally, while the Appeals Chamber has clarified that the initial arrest warrant remains the basis for detention throughout the proceedings, it has resisted attempts to use subsequent appeals by the suspect against decisions on release or detention under article 60 to reopen the original decision to issue a warrant.12 As discussed below, an application for release or review of detention must assess whether detention is justified at that time, not whether the initial decision to issue the arrest warrant was correct. The Appeals Chamber has similarly resisted attempts by suspects or accused persons to have the ICC review the process of enforcing the warrant by national authorities, including their previous detention by national authorities and their 9

10

11

12

The standard of “reasonable grounds to believe” in article 58(1)(a) is the lowest in a series of three escalating standards of proof at different stages, the other two being “substantial grounds to believe” for the confirmation of charges, in article 61(7); and “beyond reasonable doubt” for a conviction at trial, in article 66(3). Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221, article 5(1)(c): “[e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [. . .] the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/0973 OA, 3 February 2010, paras. 30–33. See, e.g., Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47.

co mmen t ar y

135

surrender to the Court outside the strict requirements of articles 89 and 91.13

II Pre-Trial Detention/Interim Release: Article 60 a Application for Interim Release: Article 60(2) Any suspect who has been detained has the right to apply for release. This is considered so crucial that the Statute expressly requires the Pre-Trial Chamber to satisfy itself that the suspect has been informed of that right during the initial appearance (which must itself take place “promptly upon [the suspect] arriving at the Court”; see article 60(1) and rule 121(1)). When the suspect does apply for release, article 60(2) directs the Pre-Trial Chamber to examine whether the conditions that justify detention under article 58 are (still) met, and if so then the person shall continue to be detained. As noted above, the Appeals Chamber has resisted attempts by suspects to use an application for release to challenge the initial decision to issue an arrest warrant. However, because this is the first time that the suspect has been in a position to make submissions on whether the conditions justifying their detention exist, the Appeals Chamber has stressed that the Pre-Trial Chamber cannot simply rely on its previous determinations made in the context of issuing the arrest warrant. Rather, it must make a de novo assessment of whether those criteria are met at that time, taking into consideration the submissions and the evidence presented by both the Prosecution and the suspect.14 This approach functions simply enough for the requirement under article 58(1)(b) on whether the detention of the suspect appears necessary for one of the prescribed reasons: the suspect is in a solid position to present arguments and rebut those put forward by the Prosecution on whether their detention is required to ensure their appearance at trial, prevent obstruction of the proceedings or prevent commission of crimes; 13

14

See, e.g., Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/0401/06-772 OA4, 14 December 2006; Prosecutor v. Katanga, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 23; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 111.

136

arrest and d etention

and the Pre-Trial Chamber must come to a fresh determination having heard both sides. However, a de novo determination that there be reasonable grounds to believe that the suspect committed a crime, under article 58(1)(a), has proven to be more challenging to apply in practice. Just as the Appeals Chamber has prevented suspects using the process of applying for release to challenge the initial issuance of the warrant, it has also prevented them from using this process to pre-empt the more detailed assessment of the strength of the Prosecution’s case, which is the function of the confirmation hearing. The proper focus of a decision on release and detention is the conditions justifying the suspects’ detention, not the technical admissibility of evidence against the suspect. The Appeals Chamber has therefore set a high bar for suspects to challenge evidence relating to their alleged commission of crimes in the context of detention decisions, indicating that “obvious mala fides” would be required,15 although in one instance it did consider whether the nature of the evidence was sufficiently detailed to allow the suspect to investigate and challenge the contents.16 Given that (a) the Prosecution is likely to put substantially the same evidence before the Pre-Trial Chamber as was presented for the purposes of the Arrest Warrant;17 (b) the suspect’s ability to challenge that evidence is limited at this stage; and (c) even if the suspect presents their own evidence, weighing it against the Prosecution’s evidence would likely also fall within the proper function of the confirmation hearing, Pre-Trial Chambers seem highly likely to come to the conclusion that there are reasonable grounds to believe that the suspect committed a crime. The Appeals Chamber has nevertheless maintained that this system does not reverse the burden of proof,18 nor does it infringe the 15

16

17

18

Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 73. This examination took place in the context of discussing the methodology employed by bodies such as UN working groups to develop reports that the Prosecution relied on: Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/ 06-271-Red OA, 5 March 2014, paras. 37–43. The Appeals Chamber has affirmed that referring to that same evidence is proper – provided that a de novo assessment is conducted. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, paras. 2, 23; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, paras. 59–60. Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 69.

co mmen t ar y

137

presumption of innocence,19 although at least one Pre-Trial Chamber questioned the value of conducting a de novo review of whether such reasonable grounds to believe still exist.20

b Factors Justifying Detention In contrast to decisions on warrants of arrest, which to the extent that they have discussed the criteria in article 58(1) have focused on whether there were reasonable grounds to believe the person committed a crime under article 58(1)(a), applications for release or review of detention have tended to focus on whether the detention of the person appears necessary for one of the reasons in article 58(1)(b). While the question of whether the Pre-Trial Chamber considered the correct factors, and considered those factors correctly, has been raised in almost every appeal regarding detention, the Appeals Chamber has given less detailed guidance on these substantive questions than it has on the procedural aspects of the review of detention. The Appeals Chamber has granted lower Chambers a broad remit to consider a wide range of factors in determining whether detention appears necessary: it has actively avoided prescribing the factors which should or should not be examined in any given case,21 or the method for assessing and balancing those factors. To the contrary, it has emphasised that decisions on detention will be factually intensive and case specific, requiring consideration of the circumstances of each suspect individually,22 and will often result from the combination of a range of factors. The guidance from the Appeals Chamber has often been limited to observing, in effect, that a particular factor which an Appellant challenged was not irrelevant, including the gravity of the 19

20

21

22

Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 70. See also Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 58–61; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 67; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 66. See Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 56. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 45. Ibid. See also Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 27.

138

arrest and d etention

crimes charged,23 the suspect’s ties to a foreign country, his political position or network of high-level contacts, his access to assets that could facilitate fleeing, and his behaviour since being arrested. There are very few factors that Chambers have been instructed to ignore: only the prejudice caused by the detention (which was considered to be inherent in the detention itself, and which is not a factor to consider in the review but rather what necessitates the review itself);24 and any threats to the investigation and the proceedings which arise from sources other than the suspect him- or herself.25 The reluctance of the Appeals Chamber to tightly prescribe the relevant factors and how they should be considered may be, at least in part, a consequence of the deferential standard of review that it applies: as noted above, the Appeals Chamber considers that the “appraisal of evidence relevant to continued detention lies, in the first place, with the Pre-Trial Chamber”, and mere disagreement with the factors that the Chamber considered or the weight it accorded them is not sufficient to overturn a decision.26 It is also not surprising given the necessarily broad, forward-looking nature of the determinations – many factors are likely to be relevant to determinations that the Appeals Chamber has explained look at “the possibility [. . .] of a future occurrence”, “a prediction as to the likelihood of future events” and “necessarily involves an element of

23

24

25

26

Usually given the gravity of the crimes charged, this militates in favour of detention given the considerable sentence that the suspect faces in the event of a conviction (see, e.g., Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/ 06-824 OA7, 13 February 2007, para. 136. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 21, 24; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 55). However, in certain instances, such as offences against the administration of justice under article 70, the potential sentence may be limited and this factor may therefore militate in favour of release (see, e.g., Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 45). Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 126. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081937-Red2 OA9, 23 November 2011, para 67. See, e.g., Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC01/04-02/06-271-Red OA, 5 March 2014, para. 36; for more detailed discussion, see the digested cases under Chapter O, Conduct of Appeals, section III(3), Standards of Review, and the corresponding commentary, below.

co mmen t ar y

139

prediction”.27 The breadth of discretion granted to the Chambers in considering factors and the contingent nature of the determination is highlighted by the fact that the Appeals Chamber upheld as a relevant factor the possibility that the suspects had assets which would enable him to abscond.28

c Subsequent Review of Detention: Article 60(3) The question of the detention of a suspect does not end with the Chamber’s decision on their initial application for release. Reflecting the principle that detention be kept under supervision by a judicial authority, article 60(3) requires periodical review as to whether that detention is still justified. The Rules specify that the Chamber must do so every 120 days on its own initiative (rule 118(2)), though this period runs only from the first decision on an application for release, not from the issuance of the warrant or initial detention of the person by the Court.29 The suspect or the Prosecution may also request a review. As proceedings before the Court often extend for some time, given the complexity of the cases and other challenges, there may be numerous such reviews and the Statute recognises that multiple de novo determinations are neither necessary nor reasonable. Rather, the Appeals Chamber has highlighted that when conducting a review of its earlier decision on detention, article 60(3) directs the Chamber to examine whether there are “changed circumstances” which would require it to modify that earlier decision.30 This recognises that circumstances may indeed change – whether personal to the suspect or more broadly regarding the 27

28

29

30

Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 56. Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/ 06-824 OA7, 13 February 2007, paras. 3, 94; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, paras. 45–46. Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/081019 OA4, 19 November 2010, para. 51; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 51.

140

a rre s t a nd det e n tio n

investigation or the social and political environment – although, as noted above, this is more likely to relate to the risk of absconding, interfering with the proceedings or commission of future crimes (and not the reasonable suspicion that the suspect had previously committed crimes). In conducting its review under article 60(3), the Chamber should begin with its most recent decision on detention and examine whether there has been any change in the circumstances that justified the detention, or whether those circumstances continue to exist.31 Such “changed circumstances” could be either a change in one of the facts that previously justified the detention, or a new fact that is relevant to the basis of the detention.32 If there has been a change, the Chamber must go on to examine whether the new circumstances warrant release33 (as not every change in circumstances necessarily will). However, in the absence of any indication that the circumstances have changed, there is no need for the Chamber to re-consider the factors which previously justified the detention:34 unlike the initial determination under article 60(2), a review under article 60(3) is not de novo. While the Appeals Chamber does not consider the mere passage of time to constitute a changed circumstance requiring the Pre-Trial or Trial Chamber to revisit its decision,35 the purpose of keeping detention under judicial scrutiny is to ensure that it at all times remains reasonable. Human rights principles require that even if the suspects do pose a risk, 31

32

33

34

35

Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/081019 OA4, 19 November 2010, para. 52. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, para. 71; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1722 OA8, 9 September 2011, para. 30. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/082151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40; Prosecutor v. Bemba et al., Judgment on Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 48. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/082151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, para. 56. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 44.

co mmen t ar y

141

the Chamber must balance that risk against the reasonableness of the period of detention.36

d Conditional Release From the language of the release provisions, it appears that, like in decisions on issuing warrants of arrest, the Pre-Trial Chamber has little discretion once it has found that the requirements of article 58(1) are met: article 60(2) states that in such a case “the person shall continue to be detained” and if not the “Chamber shall release the person”. One caveat to this, however, is the potential for release subject to conditions. The Pre-Trial Chamber has a discretion whether to order conditions,37 and there are two scenarios under which they may arise: where a risk that would usually justify detention exists (e.g., of the suspect absconding or interfering with the investigation), but this risk can be managed by imposing conditions on release rather than solely by continuing the person’s detention; or where detention is not justified and the person shall be released, but the Chamber nevertheless considers that conditions are appropriate on that release. The Appeals Chamber has indicated that conditions may be imposed in either case,38 although the imposition of conditions under the latter has met with some criticism that if no risk exists, the imposition of conditions cannot be justified.39 In addition to the discretion whether to order conditions at all, the responsibility for setting those conditions also lies with the Chamber, although if a State has offered to accept a person and to enforce certain conditions, then the Chamber should examine that offer and consider the proposed conditions.40 To order release subject to conditions, the 36

37

38

39

40

Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, paras. 45, 48. This balancing is required in reviews under article 60(3) even where the Prosecutor cannot be faulted for that duration in which case it would be addressed separately under article 60(4); see section IV, Protection against Unreasonable Detention (article 60(4)), below. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 1, 55. Ibid., paras. 47, 55; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 76–77. Khan, K., “Article 60: Initial Proceedings before the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C .H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1164, [9]–[10]. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, paras. 1, 79.

142

arres t and d etention

Chamber must have identified specific and enforceable conditions – it cannot defer the details of the conditions and the State that will enforce them to a later time.41 This in turn requires that it seek the views of the State to which the person may be released.42

e Protection against Unreasonable Detention: Article 60(4) Even if detention formally remains justified under the criteria in article 58(1), the Statute provides an additional safeguard against unreasonable periods of detention. The Chamber has an independent discretion to order release if the suspect is “detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor” (article 60(4)). This obligation to keep the reasonableness of the detention under review is distinct from assessing whether the detention is necessary for one of the reasons set out in article 58(1)(b). Although, as with the necessity of detention, the reasonableness (or not) of the period of detention must be based on the circumstances of the case, and as most cases before the Court are complex in terms of law, evidence and logistics, a finding that the period of detention has become unreasonable will not be made lightly.43 Moreover, article 60(4) serves to protect the person from unreasonable detention as a result of delays by the Prosecutor, and only such delays; if the period of detention becomes unreasonable due to some other cause, it must be addressed as part of the balancing exercise under article 60(3), above.44 This also means that only those periods of 41

42

43

44

Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/0501/08-631-Red OA2, 2 December 2009, paras. 104–105, 108–109; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 47; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/ 11-01/11-278-Red OA, 26 October 2012, para. 76. Rule 119(3), which also requires that the Chamber seek views from the parties and any victims who may be at risk before ordering the imposition of conditions on release. The Appeals Chamber has clarified that if a State offers to accept a person without discussing conditions, the Pre-Trial Chamber should nevertheless seek information on the ability of that State to enforce specific conditions being considered or set by the Chamber: see Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 106; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 48. Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 122–123. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, paras. 42–43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, paras. 22–23.

co mmen t ar y

143

detention that are part of the process of bringing the person before the Court are to be considered in the application of article 60(4). If a person is detained by domestic authorities on unrelated bases prior to an arrest warrant being issued by the Court and them being surrendered, this cannot be said to be a result of delay by the Prosecutor even if he or she was aware of their detention.45

f Other Requests for Release In addition to the various explicit grounds for detention and release under article 60, the Court has also been faced with various requests on other grounds. Generally, the Appeals Chamber has clarified that there are no separate grounds under the Statute for release (e.g., based on “exceptional humanitarian circumstances”46), and that such requests must be examined in the context of the existing statutory provisions. For example, if a suspect requested release on medical grounds, then the underlying medical condition could be considered as a factor in assessing whether the suspect was likely to abscond and therefore whether to grant release with conditions, but they do not constitute an independent basis for release.47 The Appeals Chamber took the same approach in considering the impact of a stay of proceedings on the detention of the person, which poses the question: if a person is primarily detained in order to ensure their appearance at trial, and that trial has been stayed, then is their detention still necessary? To address this question, the Appeals Chamber distinguished between situations in which the stay is temporary or conditional (and may be lifted), and situations in which the stay is permanent. In the latter case, there is no longer any trial at which to ensure the person’s future attendance as the basis for detention, and he or she must be released.48 However, in the former case, while this would certainly 45

46

47

48

Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 121. See also Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 42. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 84–85. It has been argued that a change in the health of a person itself constitutes “changed circumstances” for the purpose of reviewing detention (see Khan, K., “Article 60: Initial Proceedings before the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C .H. Beck/ Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1165, [12]), but the impact of this must still be linked with the reasons which justified the detention under article 58(1). Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 36.

144

a rr es t a n d d e te n ti o n

constitute a changed circumstance, the Chamber would have to consider all of the circumstances (including whether there was a prospect of the stay being lifted in the near future) to determine whether the continued detention appears necessary (for the purposes of article 60(3));49 and if detention is still strictly speaking necessary, as the trial may resume in the foreseeable future, the Chamber must still keep the continued detention under close scrutiny in such circumstances to ensure that it does not become unreasonable (for the purposes of article 60(4)).50

Jurisprudence I Arrest Warrants and Summons to Appear: Article 58 1 General Principles “The suggestion that the remit of a warrant of arrest, as authority for detention, is limited to the surrender of the person, can find no justification in the Statute. The warrant of arrest provides authority for the confinement of the person arrested up to his trial.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 11.

2 Requirements for Issuing a Warrant “Article 58(1) of the Statute stipulates only two substantive prerequisites for the issuance of a warrant of arrest: firstly, the Pre-Trial Chamber must be satisfied that there ‘are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’ (see article 58(1)(a) of the Statute); secondly, the arrest of the person must appear necessary for at least one of the three reasons enumerated in article 58(1) (b) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 43. “[A]rticle 58 of the Statute [. . .] foresees that the Pre-Trial Chamber takes its decision on the application for a warrant of arrest on the basis of the information and evidence provided by the Prosecutor.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 45.

49 50

Ibid., para. 37, see also paras. 1 and 42. Ibid., paras. 37, 39, 42 and 45; Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 25.

j ur i s p r uden ce

145

2.1 There are Reasonable Grounds to Believe that the Person has Committed a Crime within the Jurisdiction of the Court: Article 58(1)(a) “[A] pre-requisite for the issuance of a warrant of arrest is that the Chamber must be satisfied that there are reasonable grounds to believe that the person committed the crimes in question [. . .]. The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact. The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 18. “[T]he evidentiary threshold of ‘reasonable grounds to believe’ for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges (‘substantial grounds to believe’, article 61(7) of the Statute) and the threshold for a conviction (‘beyond reasonable doubt’, article 66(3) of the Statute). It is evident from the wording of the provisions that the standards of ‘substantial grounds to believe’ and ‘beyond reasonable doubt’ are higher standards of proof than ‘reasonable grounds to believe’. Accordingly, when disposing of an application for a warrant of arrest under article 58(1) of the Statute, a Pre-Trial Chamber should not require a level of proof that would be required for the confirmation of charges or for conviction.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 30. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 55; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, paras. 57, 58; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 76. “[I]t is instructive to recall that the European Court of Human Rights has interpreted ‘reasonable suspicion’ under article 5(1)(c) of the European Convention on Human Rights as ‘presuppos[ing] the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence’. Thus, at this preliminary stage, it does not have to be certain that that person committed the alleged offence. Certainty as to the commission of the crime is required only at the trial stage of the proceedings (see article 66(3) of the Statute), when the Prosecutor has had a chance to submit more evidence.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 31.

146

a rr es t a n d de te n tio n “[R]equiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely ‘reasonable grounds to believe’. Rather, it establishes genocidal intent ‘beyond reasonable doubt’.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 33. “[T]he Appeals Chamber is cognisant of the requirement, at this stage of proceedings, to be satisfied of ‘reasonable grounds to believe’ that a suspect committed the crimes alleged, in order to maintain detention. However, the Appeals Chamber does not consider that substantive considerations around admissibility of evidence can be appropriately addressed in the context of a decision taken on interim release, in the absence of obvious male fides. Conducting such an assessment would overload article 58(1)(a) of the Statute with the burdensome requirement to adjudicate issues relating to article 69(7) of the Statute at a very early stage of proceedings, in which the proper focus ought to be confined to be reviewing a suspect’s detention and the conditions underpinning the same. Therefore, in the present circumstances, the Appeals Chamber does not consider that it was unreasonable for the Pre-Trial Chamber to defer admissibility issues to be adjudicated ‘in the context of determinations to be made for the purposes of deciding whether the charges will have to be confirmed’.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 73.

2.2

The Arrest of the Person Appears Necessary: Article 58(1)(b) “What may justify arrest (and, in this context, continued detention) under article 58(1)(b) of the Statute is that it must ‘appear’ to be necessary. The question revolves around the possibility, not the inevitability, of a future occurrence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, paras. 107, 117; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on

j u r i s p r ud e n c e Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 123. “[T]he determination of whether the conditions of article 58(1)(b) of the Statute are fulfilled is established on a case-by-case basis, and therefore comparisons with other cases will not be determinative of the risk assessment under article 58(1)(b)(ii) of the Statute in the case at hand.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 92. “[T]his provision [article 58(2)] stipulates the minimum content of the Prosecutor’s application for a warrant of arrest. Article 58(2) of the Statute does not impose an obligation on the Prosecutor to furnish evidence or information in relation to the admissibility of the case.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 45. “[I]f the two prerequisites listed in article 58(1) of the Statute are met, the opening sentence of article 58(1) of the Statute gives the Pre-Trial Chamber clear and unambiguous instructions as to what the Chamber should do: ‘the Pre-Trial Chamber shall [. . .] issue a warrant of arrest’. The use of the word ‘shall’ indicates that the Pre-Trial Chamber is under an obligation to issue a warrant of arrest, provided that the prerequisites listed in article 58(1) of the Statute are met.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 44. “[A]rticle 58(1) of the Statute sets forth the conditions for the issuance of a warrant of arrest ‘on the application of the Prosecutor’. The Appeals Chamber notes that the word ‘shall’ in article 58(1) of the Statute denotes that the issuance of a warrant of arrest is mandatory if the criterion under article 58(1)(a) and at least one of the criteria under article 58(1)(b) of the Statute are met. Most noteworthy in this respect is the criterion under article 58(1)(b)(i) of the Statute, which stipulates that a warrant shall be issued if the arrest of the person appears necessary ‘[t]o ensure the person’s presence at trial’.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 25. “An initial determination of the admissibility of a case cannot be made an integral part of the decision on an application for a warrant of arrest for the reason that article 58(1) of the Statute lists the substantive prerequisites for the issuance of a warrant of arrest exhaustively. Article 19(1), second sentence, of the Statute cannot be invoked to make the

147

148

a rr es t a n d d e te n t i o n admissibility of the case an additional substantive prerequisite for the issuance of a warrant of arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 42.

2.3

The Threshold for Demonstration “What may justify arrest (and, in this context, continued detention) under article 58(1)(b) of the Statute is that it must ‘appear’ to be necessary. The question revolves around the possibility, not the inevitability, of a future occurrence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, paras. 55, 67; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Interim Release Appeal, ICC-02/11-01/11-278Red OA, 26 October 2012, para. 56; Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271-Red OA, 5 March 2014, para. 35. “[I]t is precisely the task of the Pre-Trial Chamber, on the basis of the available evidence, to weigh such evidence and, on that basis, to make a prediction as to the likelihood of future events.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60, see also para. 52. “[W]hile citations to relevant evidence may have further demonstrated the support underlying the Pre-Trial Chamber’s conclusions, the lack of such evidence does not vitiate the Pre-Trial Chamber’s conclusions on these points.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 46, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. “In addressing the question of what evidence may be used to establish that the continued detention of a person appears necessary, the Appeals Chamber has previously dismissed arguments that the Pre-Trial Chamber erred in relying on a report of a non-governmental organization, finding that ‘appraisal of the evidence relevant to continued detention lies, in the first place, with the Pre-Trial Chamber’. In the context of an appeal of a decision under article 60(3) of the Statute, the Appeals Chamber has also found that the Pre-Trial Chamber did not err ‘in

jurisprudence

149

holding that it could rely upon the Final Report [of the Group of Experts on Côte d’Ivoire pursuant to paragraph 16 of Security Council resolution 2045 (2012)] to provide “sufficiently detailed information”’.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271-Red OA, 5 March 2014, para. 36 (upholding the reliance on a UN Group of Experts’ report after finding that its methodology was rigorous and it adhered to established evidentiary standards, paras. 39–43).

2.4 Detention is Necessary to Ensure Appearance at Trial: Article 58(1)(b)(i) “The first question for the Appeals Chamber to determine is whether the Trial Chamber erred in law in finding that the condition under article 58(1)(b)(i) of the Statute – that detention appears necessary to ensure the person’s appearance at trial – continues to apply during the period of deliberations.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red OA11, 20 May 2015, paras. 36–37. “[A] reading of article 58(1)(b)(i) of the Statute in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red OA11, 20 May 2015, para. 40. “[A]ny determination by a Pre-Trial Chamber of whether or not a suspect is likely to abscond necessarily involves an element of prediction.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. “[T]he apparent necessity of continued detention in order to ensure the detainee’s appearance at trial does not necessarily have to be established on the basis of one factor taken in isolation. It may also be established on the basis of an analysis of all relevant factors taken together.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55. “The Appeals Chamber considers that any decision on whether a person is detained pending his or her trial at this Court ought to be made based on the specific circumstances of the case, as relevant to an assessment of whether or not a suspect is likely to appear before the Court. Personal circumstances of the suspect such as the suspect’s education, professional

150

arrest and d etention or social status may be relevant to assessing under article 58(1)(b)(i) of the Statute whether or not a suspect will appear before the Court.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 2, see also paras. 111–113; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, paras. 2, 119. “[T]he Appeals Chamber is not persuaded by the argument of the Appellant that the Pre-Trial Chamber should not have taken into account the gravity of the crimes allegedly committed by the Appellant. As the Prosecutor correctly notes, the Pre-Trial Chamber did not take into account the gravity of the crimes in isolation but as part of its consideration that the Appellant might abscond. If a person is charged with grave crimes, the person might face a lengthy prison sentence, which may make the person more likely to abscond.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 21, 24; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, paras. 67–68; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 21; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Interim Release Appeal, ICC-02/11-01/11-278Red OA, 26 October 2012, para. 54. “[E]vading justice in fear of the consequences that may befall the person becomes a distinct possibility; a possibility rising in proportion to the consequences that conviction may entail.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21, see also para. 24. “[T]he Appeals Chamber is not persuaded by the argument that the Pre-Trial Chamber should not have taken into account that the main ties of the Appellant still are in the Democratic Republic of the Congo because the Appellant sought release not to that country but to the United Kingdom or to Belgium. The Request for Interim Release lacked any concrete information by the Appellant as to the modalities of his interim release. Against that background, there is no reason why the Pre-Trial Chamber should not have taken into account the main ties of the Appellant are in the Democratic Republic of the Congo

jurisprudence because it is not inconceivable that he may wish to abscond to that country.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. “[T]he Appeals Chamber finds that the Trial Chamber did not err in law in relying on the fact that charges had been confirmed against Mr Bemba in the article 70 proceedings, for the purposes of its analysis as to whether Mr Bemba’s detention appeared necessary under article 58(1)(b)(ii) of the Statute in the main case.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, paras. 1, 71. “[O]ffences under article 70 of the Statute, while certainly serious in nature, are by no means considered to be as grave as the core crimes under article 5 of the Statute, being genocide, crimes against humanity, war crimes, and the crime of aggression, which are described in that provision to be ‘the most serious crimes of concern to the international community as a whole’. The language used by the Pre-Trial Chamber in describing the offences for which Mr Kilolo was charged to be ‘of the utmost gravity’ is therefore problematic, as it may give rise to a perception that the Pre-Trial Chamber accorded too much weight to the seriousness of the alleged offences in assessing the risk under article 58(1)(b)(i) of the Statute.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 64; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/ 13-559 OA3, 11 July 2014, paras. 1, 88; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 113. “Notwithstanding, the Appeals Chamber notes that the Pre-Trial Chamber’s observation in relation to the gravity of the offences allegedly committed by Mr Kilolo is supported by three reasons: (i) that offences against the administration of justice ‘threaten or disrupt the overall fair and efficient functioning of the justice in the specific case to which they refer’; (ii) that such offences ‘ultimately undermine the public trust in the administration of justice and the judiciary’; and (iii) that ‘[s]uch seriousness is only enhanced’ when committed by those whose ‘professional mission is to serve, rather than disrupt, justice’. These reasons support the logic that the commission of offences against the administration of justice, as a discrete category, may have specific and serious ramifications (that is, on the case at hand and on the administration of justice more broadly).” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2,

151

152

arrest and d etention 11 July 2014, para. 65; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/0501/13-560 OA4, 11 July 2014, para. 114. “[T]he Appeals Chamber sees no merit in the argument of the Appellant that the Pre-Trial Chamber should have taken into account that the Appellant would have surrendered voluntarily to the Court, if only he had had the opportunity to do so. The Appeals Chamber agrees with the Prosecutor that there was no reason for the Pre-Trial Chamber do so because his voluntary surrender is merely hypothetical. The Appeals Chamber notes in this context that in the Stanišić decision to which the Appellant refers, the ICTY Trial Chamber took into account the hypothetical voluntary surrender of the detainee on the basis of concrete evidence of an intention to surrender voluntarily. The Appellant in the present case has not presented any such evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 138. See also Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 56; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, para. 75. “[I]n assessing the circumstances surrounding Mr Ntaganda’s surrender, the Pre-Trial Chamber considered a number of other factors, such as the split in the M23 at the end of February 2013, that Mr Ntaganda’s faction had run low in ammunition, prompting him to flee towards the Rwandan border and that Mr Ntaganda feared that he would be killed, in addition to the fact that he ‘had been at large for many years since the issuance of the first warrant of arrest in August 2006 until he apparently sought refuge in the United States Embassy in Kigali on 18 March 2013’ [. . .]. The Appeals Chamber considers that the conclusion of the Pre-Trial Chamber that its findings reduce the weight to be given to Mr Ntaganda’s claim that he voluntarily surrendered was adequately supported by reference to this latter set of circumstances.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271 OA, 5 March 2014, paras. 46–47. “The Pre-Trial Chamber based its finding on a number of factors put forward by the Prosecutor, namely, the Appellant’s ‘past and present political position, international contacts, financial and professional background and availability of the necessary network and financial resources’, repeating findings already made in the Decision of 10 June 2008 and concluding that these findings were ‘still valid’ at the time it rendered the Impugned Decision. The Appeals Chamber considers that it would have been preferable for the Pre-Trial Chamber to state in more detail in the Impugned Decision the reasons for which it concluded that the

jurisprudence conditions of article 58(1)(b)(i) of the Statute continued to be fulfilled. The Appeals Chamber is nevertheless satisfied that the Pre-Trial Chamber’s omission to provide more detailed reasoning did not detract from the correctness and adequacy of its finding on this point.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 53. “[A]ccess to international contacts could provide the means to enable a suspect to abscond, whether or not there was evidence that the suspect would actually utilise such contacts.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 25, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. “[W]hether all other suspects [before the ICC] are likely to possess financial support networks has no bearing on the question of whether Mr Mbarushimana had potential access to such a network.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 24. “[W]hether or not Mr Mbarushimana had accessed such resources in the past was not relevant to the Pre-Trial Chamber’s narrow determination that the FDLR could provide such funds in the future.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 26. “[M]r Mbarushimana had access to sufficient means to abscond. Taken together with a motivation to abscond, these factors would, in accordance with the Appeals Chamber jurisprudence, justify continued detention unless they are outweighed by other factors.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 28. “[T]he financial status of Mr Bemba to be a relevant factor in determining whether he would have the means to abscond or even to interfere with the investigation or the safety of witnesses. In the view of the Appeals Chamber, the Pre-Trial Chamber in omitting to make a finding on Mr Bemba’s financial situation disregarded a relevant factor that it previously considered to be important and thus the Pre-Trial Chamber erred.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 74. “[T]he existence of Mr Bemba’s network of international contacts had already been considered in previous decisions. The Trial Chamber did not

153

154

arrest and d etention have to re-evaluate this factor in the absence of a suggestion that it had changed or no longer existed.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 60. “[T]he behaviour of detainees awaiting trial is indeed a relevant factor when considering applications for interim release. However the weight to be attached to this factor must be assessed on a case-by-case basis.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 80. “[W]hilst compliance with the orders of the Court is a relevant factor that may be taken into consideration in assessing applications for interim release, once again such determinations must be assessed on a case by case basis in light of all the circumstances.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 82. “As to Mr Gbagbo’s argument that the Pre-Trial Chamber did not establish that there actually were other assets that had not been frozen, but only that there may be such assets, the Appeals Chamber considers that it was sufficient for the Pre-Trial Chamber to establish that it was possible that Mr Gbagbo had the necessary assets to abscond.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 56. “[T]he existence of a political party that supports the detained person is a factor that is relevant to the determination of whether the continued detention appears necessary under article 58(1)(b)(i) of the Statute, because such support could indeed facilitate absconding.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 59. “[T]he Appeals Chamber considers that the intent to abscond and the intent to obstruct or endanger the investigation have the same ultimate objective because both are directed towards preventing the trial from taking place or at the very least from being based upon all of the relevant evidence.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 64. “[Regarding] the arguments raised by Mr Kilolo as to his personal circumstances from the perspective of whether the prejudice caused by the detention, in particular to his family life, could be a factor in deciding to grant interim release [. . .]. [T]he finding that such prejudice could not be a factor is unassailable. Any detention of a suspect pending investigation

jurisprudence and trial is likely to cause prejudice to the person concerned and those close to him. It is for that reason that under the Statute, the detention of a suspect is possible only under strict conditions, as set out in article 58(1) of the Statute. Nevertheless, the prejudice caused is in and of itself not a relevant consideration for a determination on interim release.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 108. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 126.

2.5 Obstruction or Endangerment of the Investigation or Court Proceedings: Article 58(1)(b)(ii) “[T]he Appeals Chamber would like to highlight that article 58(1)(b)(ii) of the Statute stipulates that detention must be necessary ‘to ensure that the person does not obstruct or endanger the investigation or the court proceedings’. This indicates that there must be a link between the detained person and the risk of witness interference.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1937-Red2 OA9, 23 November 2011, para 67 (emphasis added). “[T]he Pre-Trial Chamber considered that the witnesses and victims are easily identifiable and that the Appellant continues to have the means to influence witnesses. The Chamber also noted the previous behaviour of the Appellant, which indicated to the Chamber that the Appellant may indeed use these means to do so. These factors support the conclusion that the conditions of article 58(1)(b)(ii) of the Statute exist and they are therefore relevant factors in deciding the question on appeal.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 67. “[I]t is not unreasonable to assume that a support network that may assist in the absconding of the detained person may also assist in obstructing or endangering the investigation or the court proceedings.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 63.

2.6 Commission of Crimes within the Jurisdiction of the Court: Article 58(1)(b)(iii) “[U]nder article 66(1) of the Statute, Mr Gbagbo enjoys the presumption of innocence in the determination of the charges against him; in relation to article 58(1)(b)(iii) of the Statute, however, the Pre-Trial Chamber was

155

156

arrest and d etention entitled to take into account that is he suspected of having committed crimes against humanity and that, in the specific circumstances and in light of the information before the Chamber, there is a risk that he may commit further crimes if released.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 70. See also Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 58–61 (where the Appeals Chamber simply upheld the Pre-Trial Chamber’s findings).

3 Additional Grounds of Detention “If a Chamber wishes to enter an additional ground of detention based on incidents post-dating the application for interim release, it must seek further observations from the parties on this issue prior to rendering its decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 2. “[I]n light of the purpose of the third sentence of rule 118(3) of the Rules of Procedure and Evidence, the Trial Chamber therefore should have sought submissions from Mr Bemba concerning the allegations of witness intimidation before deciding on this issue as an additional ground of detention under article 58(1)(b)(ii) of the Statute.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 66.

3.1

Medical Conditions and Interim Release “[T]here is no provision in the Court’s legal texts that specifically provides for the interim release or conditional release of a detained person on health grounds. Regulation 103 of the Regulations of the Court assumes that medical problems of detained persons are treated within the detention centre and that, in case of hospitalisation, the detained person should remain continuously detained. Rule 135 of the Rules of Procedure and Evidence provides for the medical examination of the accused to determine his or her fitness to stand trial. Articles 60 and 58 of the Statute and rule 119 of the Rules of Procedure and Evidence do not refer to the medical condition of the detained person when dealing with interim or conditional release.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 86. “[M]edical reasons can play a role in decisions on interim release in at least two ways. First, the medical condition of a detained person may have

jurisprudence an effect on the risks under article 58(1)(b) of the Statute, for instance on his or her ability to abscond, potentially negating those risks. Second, the medical condition of the detained person may be a reason for a Pre-Trial Chamber to grant interim release with conditions. As stated above, the Pre-Trial Chamber enjoys discretion when deciding on conditional release; the ill health of a detained person may be a factor in the exercise of its discretion.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 2, 87.

4 No Right to be Heard on Replacement of a Summons with Warrant of Arrest “Mr Banda appears to argue that he was entitled to file further submissions in the present case on whether or not it was appropriate for the Trial Chamber to resort to its powers under rule 119(4) of the Rules of Procedure and Evidence. However, other than a general reference to the audi alteram partem principle, Mr Banda does not put forth any legal argument in support of the contention that the procedural step of inviting further submissions was required as a matter of law. In any event, the Appeals Chamber is not persuaded that, in circumstances such as the present, an internationally recognised human right to file further submissions exists. In the present case, the decision of whether to request further submissions falls squarely within the Trial Chamber’s discretion. Accordingly, the Trial Chamber’s decision was not based on an erroneous interpretation of the law.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 31.

5 Relationship between ICC Warrant and Domestic Procedures “The enforcement of a warrant of arrest is designed to ensure, as article 59(2) of the Statute specifically directs, that there is identity between the person against whom the warrant is directed and the arrested person, secondly, that the process followed is the one envisaged by national law, and, thirdly, that the person’s rights have been respected. The Court does not sit in the process, as the Prosecutor rightly observes, on judgment as a court of appeal on the identificatory decision of the Congolese judicial authority. Its task is to see that the process envisaged by Congolese law was duly followed and that the rights of the arrestee were properly respected.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 41.

157

158

arrest and d etention “Mere knowledge on the part of the Prosecutor of the investigations carried out by the Congolese authorities is no proof of involvement on his part in the way they were conducted or the means including detention used for the purpose.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 42.

6 Summons to Appear “A summons to appear is an alternative only when the Prosecutor seeks to secure the attendance of the person before the Court through that process. A summons to appear can only be issued on the application of the Prosecutor before the Pre-Trial Chamber [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 13. “Article 58(7) of the Statute describes the procedure for issuing a summons to appear as ‘[a]n alternative to seeking a warrant of arrest’. Pursuant to that provision, the Pre-Trial Chamber shall issue a summons if it ‘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’. Furthermore, a summons to appear may be issued ‘with or without conditions restricting liberty (other than detention) if provided by national law, for the person to appear’. In this context, the Appeals Chamber observes that rule 119(5), third sentence, of the Rules of Procedure and Evidence directs the competent Chamber to apply the procedure as laid down in rule 119(4) of the Rules of Procedure and Evidence, which makes clear that, in case the person concerned has failed to comply with one or more of the obligations imposed, the competent Chamber may issue a warrant of arrest. In that case, article 58 of the Statute applies.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 26.

II Pre-Trial Detention/Interim Release: Article 60 1

Applications for Interim Release: Article 60(2)

“The human right of a person to have recourse to judicial review of a decision affecting his liberty is entrenched in article 60 of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-

j ur i s p r uden ce 01/07-572 OA4, 9 June 2008, para. 17; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47. “Accordingly, in circumstances where a suspect has already been surrendered to the Court, the Appeals Chamber does not consider that the remedy of release is available except as provided for in article 60 of the Statute. This means that the principal consideration is not whether a warrant of arrest has been illegally issued, but whether the conditions for detention under article 58(1) of the Statute are presently met (article 60(2) of the Statute), whether there has been a change in the circumstances (article 60(3) of the Statute), or whether the person has been detained for an unreasonably long period prior to trial, due to an inexcusable delay by the Prosecutor (article 60(4) of the Statute). The Appeals Chamber further notes that, in addition to article 60 of the Statute, article 85 of the Statute provides for the remedy of compensation in the case that an arrest is found to have been unlawful.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47.

1.1 Nature of the Decision to Continue Interim Detention “The object of detention is first and foremost to ensure the appearance of the person before the Court regarded as necessary under the Statute for the due conduct of the judicial proceedings [. . .]. The arrest of a person is not intended as an aid to the investigation of a case, but as a means of securing his/her appearance before the Court in proceedings sequential thereto.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 2–3. Sep. Op. “The Pre-Trial Chamber must inquire anew into the existence of facts justifying detention. The person participates in the proceedings and is at liberty to put before the Chamber facts bearing on the legitimacy of his detention [. . .]. Thereupon, the Chamber must address anew the issue of detention in light of the material placed before it.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 10, 12. See also Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 58. “The criteria set down in article 60(2) of the Statute for determining the need for the continued detention of the arrestee are the same as those laid down in article 58(1) of the Statute. The difference between the two

159

160

a rre st a nd det e n tion provisions [. . .] lies in the change of the time perspective from which justification and necessity of the detention are to be judged. The Pre-Trial Chamber must decide whether the conditions set down in article 58(1) of the Statute essential for the justification of the detention of the person exist at the time of consideration of an application for interim release.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 10. Sep. Op. “[T]he decision on continued detention or release pursuant to article 60(2) read with article 58(1) of the Statute is not of a discretionary nature. Depending upon whether or not the conditions of article 58(1) of the Statute continue to be met, the detained person shall be continued to be detained or shall be released.”51 Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 134; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC01/05-01/08-631-Red OA2, 2 December 2009, para. 59. “The Appeals Chamber considers that the third sentence of rule 118(3) of the Rules of Procedure and Evidence stipulates an important rule regarding the procedure to be followed when deciding on interim release or continued detention of a person: the parties must be given an opportunity to submit their observations before the Chamber makes a decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 64. “[U]nder article 60(2) of the Statute, ‘the person shall continue to be detained’ if ‘the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met’. According to the Appeals Chamber, in reaching a decision under article 60(2) of the Statute, the Pre-Trial Chamber has to ‘inquire anew into the existence of facts justifying detention’; the Pre-Trial Chamber’s power is ‘not conditioned by its previous decision to direct the issuance of a warrant of arrest’. The Pre-Trial Chamber’s decision must be taken ‘in light of the material placed before it’. Thus the decision under article 60(2) of the Statute is a decision de novo, in the course of which the Pre-Trial Chamber has to determine whether the conditions of article 58(1) are met. It is imperative that the Pre-Trial Chamber is deciding de novo because it is hearing the submissions of the defence for the first time.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 23. See also Prosecutor v. Bemba,

51

See, para. 140, where it was found that as a consequence, “there was no reason for the PreTrial Chamber to make the principle of necessity and proportionality an independent consideration in its decision”.

jurisprudence Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 111. “[I]n a decision under article 60(2) of the Statute, a Pre-Trial Chamber may refer to the decision on the warrant of arrest, without this affecting the de novo character of the Pre-Trial Chamber’s decision.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 27. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 60; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, paras. 46, 59. “[T]he Appeals Chamber recalls that it has previously recognised that ‘[t]he provisions of the Statute relevant to detention, like every other provision of it, must be interpreted and applied in accordance with “internationally recognised human rights”’. The exceptionality of detention and the presumption of innocence, as ‘internationally recognised human rights’ under article 21(3) of the Statute, are therefore relevant to the interpretation of articles 58(1) and 60(2) of the Statute. However, the thrust of decisions on interim release is the concrete assessment of whether ‘reasonable grounds to believe’ the suspect committed the alleged crimes continue to exist and that the conditions under article 58(1)(b) are met. Therefore, if the conditions underpinning article 58(1) are satisfied, detention of a suspect will be justifiable and consonant with internationally recognised human rights principles. The Appeals Chamber also notes that article 60(4) of the Statute provides that ‘[t]he 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’.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 67; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/ 13-559 OA3, 11 July 2014, para. 66.

1.2 Reasonable Grounds to Believe that the Person Committed a Crime: Article 58(1)(a) “A pre-requisite for the issuance of a warrant of arrest is that the Chamber must be satisfied that there are reasonable grounds to believe that the person committed the crimes in question. The same applies in proceedings for interim release under article 60(2) of the Statute.

161

162

a rr es t a n d d e te n t i o n The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact. The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 18. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 55. “The founding of a valid cause for the detention of the person does not rest on reasonable suspicion, but on ‘grounds’ founded on evidential material giving rise to a reasonable belief that a crime has been committed by the Appellant (article 58(2) of the Statute). Belief denotes mental acceptance of a statement, fact, doctrine, thing, etc., as true or existing, whereas suspicion denotes a faint belief that something is the case. In either case, the belief or suspicion must be reasonable, that is, it must have an objective foundation. Belief imports a higher standard of acceptability of something compared to suspicion. What elevates further the test of acceptability of an application for an arrest warrant under the Statute is that such belief must be founded on concrete facts cogent to the extent of creating a reasonable belief that the person committed the crimes for which his/her arrest is sought.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 5. Sep. Op.

2 Conditional Release: Rule 119 2.1 General Considerations: Mandatory versus Discretionary Conditional Release “[I]f the Pre-Trial Chamber is satisfied that the conditions set forth in article 58(1) of the Statute are not met, it shall release the person, with or without conditions. If, however, the release would lead to any of the risks described in article 58(1)(b) of the Statute, the Chamber may, pursuant to rule 119 of the Rules of Procedure and Evidence, examine appropriate conditions with a view to mitigating or negating the risk. As the list of conditions in rule 119(1) of the Rules of Procedure and Evidence indicates, the Chamber may also, in appropriate circumstances, impose conditions that do not, per se, mitigate the risks described in article 58(1)(b) of the Statute. The result of this two-tiered examination is a single unseverable decision that grants conditional release on the basis of specific and

jurisprudence enforceable conditions. Put differently, in such circumstances, release is only possible if specific conditions are imposed.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 105; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 47; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 76. “In relation to conditional release, the Appeals Chamber recalls that the examination of conditions of release is discretionary and that conditional release is possible in two situations: (1) where a Chamber, although satisfied that the conditions under article 58(1)(b) are not met, nevertheless considers it appropriate to release the person subject to conditions; and (2) where risks enumerated in article 58(1)(b) exist, but the Chamber considers that these can be mitigated by the imposition of certain conditions of release.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 55; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 77. “[I]n a situation [. . .] where the Trial Chamber has found that detention is necessary to ensure the person’s appearance at trial, the Chamber has the discretion to consider whether the risk of flight can be mitigated by the imposition of conditions and to order conditional release.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 1, 55. “[I]n circumstances where a State has offered to accept a detained person and to enforce conditions, it is incumbent upon the Pre-Trial Chamber to consider conditional release. On the other hand, where no such proposals for conditional release are presented and none are self-evident the PreTrial Chamber’s discretion to consider conditional release is unfettered.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 1, 79; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 116, see also para. 115; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 128.

2.2 Conditions outside Rule 119 Conditions for release “may include, but are not limited to, those enumerated under rule 119(1) of the Rules of Procedure and Evidence”.

163

164

a rr es t a n d de te n tio n Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 53. See also Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081937-Red2 OA9, 23 November 2011, para. 35.

2.3

The Chamber has to Specify Appropriate Conditions for Release and Identify a State Able and Willing to Enforce these Conditions “Under rule 119(1) of the Rules of Procedure and Evidence, it is for the Chamber, and not for the receiving State, to impose conditions.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 53. “[T]he Pre-Trial Chamber erred in deciding that Mr Bemba should be released with conditions without also specifying the appropriate conditions [that make the conditional release of Mr Bemba feasible] or identifying a State willing to accept Mr Bemba and enforce the conditions.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 104, see also paras. 108–109. See also Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 54, which listed the two requirements as cumulative: “a Chamber must impose specific conditions and that a State willing and able to enforce those conditions must be identified”. “[T]he Appeals Chamber considers that in order to grant conditional release the identification of a State willing to accept the person concerned as well as enforce related conditions is necessary. Rule 119(3) of the Rules of Procedure and Evidence obliges the Court to seek, inter alia, the views of the relevant States before imposing or amending any conditions restricting liberty. It follows that a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 106; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 48. “It is only once a State willing and able to enforce conditions upon release has been identified that the Trial Chamber must examine the appropriateness of such conditions [for release pursuant to article 60(3) of the Statute].” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 39.

jurisprudence “[T]he International Criminal Court exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are enforced. Without such cooperation, any decision of the Court granting conditional release would be ineffective.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 107.

2.4 Obligation to Seek Observations from the Receiving State “A Chamber’s obligations to specify conditions and, if necessary, seek additional information regarding conditions of release is only triggered when: (a) the Chamber is considering conditional release; (b) a State has indicated its general willingness and ability to accept a detained person into its territory; and (c) the Chamber does not have sufficient information before it regarding the conditions of release to enable it to make an informed decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, paras. 1, 35; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 78. “If a Chamber is considering conditional release and a State has indicated its general willingness and ability to accept a detained person and enforce conditions, the Chamber must seek observations from that State as to its ability to enforce specific conditions identified by the Chamber.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 1, 55. “Depending on the circumstances, the Chamber may have to seek further information from the State if it finds that the State’s observations are insufficient to enable the Chamber to make an informed decision. That is not to say that the Chamber upon receiving observations from the State is obliged to grant conditional release. It only means that the Chamber must seek information that would enable it to make an informed decision on the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 2, 55. “The Appeals Chamber notes that rule 119(3) of the Rules of Procedure and Evidence mandates that a Chamber seeks the view of any relevant state ‘[b]efore imposing or amending any conditions restricting liberty’. Thus, rule 119(3) does not apply to requests for interim release generally, but to a situation where a Chamber is considering the conditional release

165

166

a rr es t a nd de te n tio n of detained person or the amendment of conditions already imposed [. . .]. Since conditions of release were not being considered, the Chamber was not obliged to seek views under rule 119(3) of the Rules of Procedure and Evidence.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 82. “[T]he Letter of 22 August was sufficiently clear as to its meaning that the Trial Chamber committed no error in not requiring any further submissions [. . .]. In that case [the OA7 Bemba Appeals Judgment], it was unclear only what specific conditions the State was willing or able to impose. That judgment in no way indicated a general obligation on the Trial Chamber to seek observations in the case of doubt as to submissions by a State in relation to interim release, let alone in a situation such as the present where the State has not indicated its willingness or ability to receive the said person.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 38.

2.5

State Guarantees have to be Read Together with Defence Correspondence with that State “As to the finding that [REDACTED] Letter and [REDACTED] Observations did not specify the conditions [REDACTED] would be able to implement, the Appeals Chamber finds that the Trial Chamber misappreciated these documents because it did not read them in context with Mr Bemba’s Letter addressed to [REDACTED] [. . .]. [I]t is at least clear that [REDACTED] considered that it could impose the four specific conditions identified in Mr Bemba’s letter and further that it could impose any of the conditions listed in rule 119(1) of the Rules of Procedure and Evidence if release were ordered.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 51–52.

3 Periodic Review of Ruling on Release or Detention: Article 60(3) 3.1 General Principles “Article 60(3) adds an additional safeguard to the armoury of the law for the protection of a right of a person not to be exposed to unjustified prolongation of his/her detention. The Pre-Trial Chamber is required [. . .], to assume on its own motion the task of reviewing an earlier ruling denying the release of a person.”

jurisprudence Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 17. Sep. Op. “[T]his provision [article 60(3)] is one of the ‘safeguards against the undue prolongation of the period of detention’. It takes account of the fact that the circumstances that justified detention for the ruling under article 60(2) of the Statute may change over time. It is the purpose of the periodic review under article 60(3) to ensure that detention that was ordered in accordance with the Statute does not become unwarranted because of a change of circumstances [. . .]. This procedural safeguard must also be seen in the context of the detained person’s right to be presumed innocent.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 49. “[T]he detention regime of article 60(3) of the Statute is a ‘procedural safeguard against detention that is not in accord with the Statute and internationally recognised human rights’, and that it must be considered in the context of ‘the detained person’s right to be presumed innocent’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, para. 40, citing Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/ 08-1019 OA4, 19 November 2010, para. 49. “[I]t is necessary to construe the ‘ruling on detention’ as being the initial decision made under article 60(2) of the Statute as well as any potential subsequent modifications made to that decision under article 60(3) of the Statute.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 46. “A periodic review by the Pre-Trial Chamber of its ruling on the detention of a person subject to a warrant of arrest under article 60(3) of the Statute follows from, and is dependent upon, a ruling on a previous application by the detained person for interim release.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 3, 94. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 080631-Red OA2, 2 December 2009, para. 58; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, paras. 45–46.

167

168

a rr es t a n d d e te n t i o n “The word ’review’ to which the provisions of article 60(3) of the Statute are anchored signifies the revisitation of a subject previously visited [. . .]. The word ‘ruling’ in a judicial context has a settled meaning. It denotes ‘the outcome of a court’s decision either on some point of law or on the case as a whole’. It is synonymous with a judicial decision.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 15. Sep. Op.

3.2

Procedure to “Review” Rulings on Detention

a General Principles “The review of any ruling on the release or detention of a person may be undertaken at any time at the request of the Prosecutor or the person (article 60(3) of the Statute).” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13. “Article 60(3) of the Statute binds the Pre-Trial Chamber to review periodically (at the latest within 120 days) any previous ruling on the release or detention of a person in order to ascertain whether the circumstances bearing on the subject have changed, and, if so, whether they warrant the termination of detention.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 14. “[T]he review pursuant to article 60(3) of the Statute makes it incumbent upon the Pre-Trial Chamber to address anew its prior ruling on the issue of detention or release in light of the requirements under article 58(1) of the Statute.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 58. “[W]hile it is correct that the Prosecutor does not have to re-establish circumstances that have already been established, he must show that there has been no change in those circumstances. The Appeals Chamber recalls that the ‘requirement of “changed circumstances” [in article 60(3) of the Statute] imports either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. Thus, the Prosecutor must, for each periodic review of detention, make submissions as to whether there has been any change in the circumstances that previously justified detention and he must bring to the attention of the Chamber any other

jurisprudence relevant information of which he is aware that relates to the question of detention or release.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 51 (on what ‘changed circumstances’ means, see Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, paras. 1, 60.) “In the Gbagbo OA Judgment the Appeals Chamber recalled that there is ‘a clear difference between the standard of a decision under article 60(2) of the Statute, and under article 60(3) of the Statute’. While review of detention pursuant to article 60(2) entails a decision de novo in which the Pre-Trial Chamber must decide whether the conditions of article 58(1) are met, the Pre-Trial Chamber may modify its ruling on release or detention under article 60(3) if ‘it is satisfied that changed circumstances so require’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 51.

b The Prior Ruling on Detention as a Starting Point “[A] Chamber carrying out a periodic review of a ruling on detention under article 60(3) of the Statute must satisfy itself that the conditions under article 58(1) of the Statute, as required by article 60(2) of the Statute, continue to be met. In doing so, the Chamber must revert to the ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling and whether there are any new circumstances that have a bearing on the conditions under article 58(1) of the Statute. For this reason, the Chamber should not restrict itself to only considering the arguments raised by the detained person. The Chamber must weigh the Prosecutor’s submissions against the submissions, if any, of the detained person. The Chamber must also consider any other information which has a bearing on the subject. Finally, in its decision on review, the Chamber must clearly set out reasons for its findings.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 52. “A de novo review of detention places an obligation upon the Pre-Trial Chamber to comprehensively assess the currency and integrity of each of the factors underpinning detention. The rights of the detained person ought to be at the forefront of this process. Accordingly, the Pre-Trial Chamber must look at the factors underpinning detention in a detailed manner, and make a sufficiently reasoned ruling on whether it continues

169

170

a rr es t a n d d e te n t i o n to find detention necessary under article 58(1) of the Statute, or whether, in fact, the detained person ought to be released [. . .].” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 21. Diss. Op. “In the Bemba OA 4 Judgment, the Appeals Chamber laid out the following procedure for reviewing decisions on detention or release under article 60(3) of the Statute. First, the Pre-Trial or Trial Chamber must identify the ‘ruling on release or detentionʹ that needs to be reviewed, that is, the initial decision made under article 60(2) of the Statute as well as any potential subsequent modifications made to that decision under article 60(3) of the Statute. Second, the Pre-Trial or Trial Chamber needs to consider whether there are ‘changed circumstances’, that is, whether there is a ‘change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. If there are changed circumstances, the Pre-Trial or Trial Chamber will need to consider their impact on the factors that form the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to further review the ruling on release or detention.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40.

c

Changed Circumstances “In reviewing a ‘ruling on release or detention’ under article 60(3) of the Statute, the Pre-Trial or Trial Chamber needs to consider whether there are ‘changed circumstances’. If there are changed circumstances, the PreTrial or Trial Chamber will need to consider their impact on the factors that formed the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to further review the ruling on release or detention.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, paras. 1, 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 40, 51, see also the Dissenting Opinion of Judge Ušacka, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 17. Diss. Op;

jurisprudence Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 23. “[C]hanged circumstances means a ‘change in some or all the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. Thus, a Chamber reviewing a person’s detention under article 60(3) must ‘revert to the ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling and whether there are any new circumstances that have a bearing on the conditions under article 58(1) of the Statute’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 71; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081722 OA8, 9 September 2011, para. 30. “The Pre-Trial Chamber in assessing whether the conditions under article 58(1) continue to be met may pursuant to article 60(3) of the Statute, second sentence, modify its ruling if it is satisfied that changed circumstances so require. The requirement of ‘changed circumstances’ imports either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, paras. 1, 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40. “[T]he periodic review of a ruling on detention under article 60(3) of the Statute does not require the Chamber to make a decision on detention ab initio. The Chamber does not have to enter findings on the circumstances already decided upon in the ruling on detention. It must, however, look at those circumstances, in the manner described in the preceding paragraph, and determine whether they still exist. Nor does the Chamber have to entertain submissions by the detained person that merely repeat arguments that the Chamber has already addressed in previous decisions.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 53; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 52, 94. See also Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 51.

171

172

arrest and d etention “In considering whether changed circumstances require a modification of its previous ruling on detention under article 60(3) of the Statute, the first consideration for the Pre-Trial Chamber is whether the alternative risks under article 58(1)(b) of the Statute remain present so as to justify the continued detention of the person concerned. If they do not, the person must be released, with or without conditions, pursuant to article 60(3) of the Statute. Once this is established, there is no need for any further inquiry into other factors that may justify release.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 48. The Appeals Chamber found an error where “the suspects were not assessed as individuals, but were dealt with as a group. There was no individual consideration of their specific circumstances or whether those circumstances had changed from the previous decision(s).” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 49. See also Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/0501/13-970 OA10, 29 May 2015, para. 27. “The Appeals Chamber is, however, not persuaded by Mr Bemba’s additional argument that the Trial Chamber had to make a decision ‘de novo’ as to whether Mr Bemba should continue to be detained because the composition of the Trial Chamber had changed since the last review of detention. In the Appeals Chamber’s view, the Trial Chamber was competent to carry out the review of the ruling on detention despite changes in its composition.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 56. “[W]hilst the confirmation of charges in itself constitutes a ‘changed circumstance’, the finding by the Pre-Trial Chamber that there were substantial grounds to believe that Mr Bemba committed the crimes charged increased the likelihood that he might abscond. In addition, the length of sentence that Mr Bemba is likely to serve if convicted on these charges is a further incentive for him to abscond. In the view of the Appeals Chamber, the Pre-Trial Chamber misappreciated the weight to be attached to this factor to which it had previously attached much importance.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 70, see also paras. 67–69.

jurisprudence “The Appeals Chamber finds that, without more, the mere raising of new arguments does not amount to ‘changed circumstances’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 68. “[T]he lapse of time in detention cannot be considered on its own to be a changed circumstance within the meaning of article 60(3) of the Statute.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 44. “It is first for the Pre-Trial Chamber to determine whether changed circumstances exist to warrant the disturbing of a previous ruling on detention, rather than addressing each factor underpinning detention in a de novo manner to determine whether any of these have changed.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 1, 53. “In that [the Impugned] Decision, the basis for Mr Bemba’s detention was found to be article 58(1)(b)(i) of the Statute, that is, the possibility that he would abscond if released. Thus, in order for the Trial Chamber to have found that Mr Bemba’s continued detention was now necessary also under article 58(1)(b)(ii) of the Statute, it would have had to demonstrate a new fact or a change in the circumstances founding the [Impugned] Decision of 17 December 2010. However, although the Impugned Decision identified certain factors as the basis for the finding that there was the possibility that Mr Bemba would interfere with witnesses if released, the Trial Chamber did not explain why those factors constituted a change in the circumstances since the Decision of 17 December 2010. Thus, the Trial Chamber did not revert to the previous ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling, as it was obliged to do under article 60(3).” Prosecutor v. Bemba, Judgment on Provisional Release, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 72–73. “[W]here a Decision pursuant to article 61(7)(c)(i) of the Statute leads to an adjournment of the confirmation hearing in respect of all charges, the PreTrial Chamber ought to recognize this as ‘changed circumstances’ in reviewing the detention of the accused, and advert specifically to the factors underpinning the detention of the detained person in a de novo manner.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 20. Diss. Op.

173

174

arrest and d etention

4 Protection against Unreasonable Detention: Article 60(4) 4.1 Nature of the Obligation under Article 60(4) “[T]here is a distinct and independent obligation imposed upon the PreTrial 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).” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 98. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13. “Article 60(4) is independent of article 60(2) in the sense that even if a detainee is appropriately detained pursuant to article 60(2) of the Statute, the Pre-Trial Chamber shall consider releasing the detainee under article 60(4) if the detainee is detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor.”52 Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 120. “This [article 60(4) of the Statute] is a free-standing provision, designed to ensure that the judicial process is not protracted and sequentially detention of the person is not extended because of unjustified delays on the part of the Prosecutor.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, Separate Opinion of Judge Pikis, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 19. Sep. Op. “[T]he wording of article 60(4) of the Statute is unequivocal. It addresses situations in which detention prior to trial has been for an unreasonable period of time ‘due to inexcusable delay by the Prosecutor’. As such, the Pre-Trial Chamber erred in concluding that article 60(4) of the Statute was applicable where the period of pre-trial detention was not due to inexcusable delay by the Prosecutor.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 42; Prosecutor v. Bemba

52

In the underlying decision, however, the Appeals Chamber found that the Impugned Decision contained two separate decisions, namely, one on the basis of article 60(2) and one on the basis of article 60(4).

jurisprudence

175

et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22.

4.2 Relationship between Article 60(4) and 60(3) “Notwithstanding [that article 60(4) is limited to delays from prosecutor’s inexcusable delay], the Appeals Chamber finds that a Chamber may determine that a detained person has been in detention for an unreasonable period, even in the absence of inexcusable delay by the Prosecutor, pursuant to article 60(3) of the Statute. This provision, which governs the review of detention [. . .] must be interpreted and applied consistently with ‘internationally recognized human rights’ pursuant to article 21(3) of the Statute. Therefore, this provision is also a proper legal avenue to protect the right to liberty of a person, as well as the right to be tried within a reasonable period of time or to be released pending trial.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22. “Accordingly, a Chamber may also determine that a detained person has been in detention for an unreasonable period, even in the absence of inexcusable delay by the Prosecutor, in its decision pursuant to article 60(2) of the Statute. This determination requires finding that the condition under article 58(1)(a) is met and balancing the risks under article 58(1)(b) of the Statute that are found to be met against the duration of detention, ‘taking into account relevant factors that may have delayed the proceedings and the circumstances of the case as a whole’.” Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 23.

4.3 Determination of the Reasonableness of the Pre-Trial Detention Period “The Appeals Chamber does not agree with the Appellant that his detention on the basis of the Warrant of Arrest since 16 March 2006 to the date of the Impugned Decision (seven months and three days) amounts to a period of detention prior to trial that is per se unreasonably long. The Appeals Chamber agrees with the finding of the Pre-Trial Chamber that the unreasonableness of any period of detention prior to trial cannot be determined in the abstract, but has to be determined on the basis of the circumstances of each case.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 122.

176

arres t and d etention “While it is likely that most of the cases that will come before the Court will tend to be complex, this alone does not mean that the complexity of the case, and in particular the amount and location of the evidence, cannot be taken into account when assessing the reasonableness of the period of detention pursuant to article 60(4) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 123. “[T]he swiftness of action of the judicial authorities is a factor for determining the reasonableness of pre-trial detention.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 124.

4.4

Relevance of Periods Spent in Detention in Third Countries “[I]ssues regarding prior detention are relevant where they are part of the ‘process of bringing the Appellant to justice for the crimes that form the subject-matter of the proceedings before the Court’. As the Appellant’s prior detention was not part of that process and was thus not part of the detention pursuant to the Warrant of Arrest issued by the Pre-Trial Chamber, there is no reason to take that period into account for the purpose of article 60(4) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 121. “[M]ere knowledge on the part of the Prosecutor of the investigations carried out by the Congolese authorities is no proof of involvement on his part in the way they were conducted or the means including detention used for the purpose.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 42.

5 Release in Case of a Stay of Proceedings “[D]etention under articles 60 and 58(1) of the Statute must be related to the exercise of criminal jurisdiction over persons suspected of having committed crimes under the jurisdiction of the Court. Therefore, in the ordinary course of events, if a permanent and irreversible stay of the proceedings is imposed the accused person will have to be released because continued detention would not be in connection with the exercise of criminal jurisdiction by the Court.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 36.

jurisprudence “The matter is different, however, when the proceedings have only been stayed conditionally, as in the present case. A conditional stay is neither an acquittal nor a final termination of the proceedings, but may be lifted in appropriate circumstances [. . .]. Therefore, the Court is not necessarily permanently barred from exercising jurisdiction in respect of the person concerned [. . .]. For that reason, once a Chamber has ordered a conditional stay of the proceedings, the unconditional release of the person concerned is not the inevitable consequence.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 1, 42. “[T]he stay of proceedings was the essential element underpinning the decision to release Mr Lubanga Dyilo. If not for the stay of proceedings, the Trial Chamber would not have ordered the release of Mr Lubanga Dyilo. The reversal of the Decision to Stay Proceedings by the Appeals Chamber vitiates the very basis of the Impugned Decision and, therefore, requires that the Impugned Decision be reversed.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 24. “[I]nstead, [in the case of a conditional stay of proceedings] the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in articles 60 and 58(1) of the Statute. In particular, the necessity of the continued detention (see article 58(1)(b) of the Statute) will have to be assessed carefully. With specific reference to article 58(1)(b)(i) of the Statute, the Chamber should take into account that the trial has been conditionally stayed, not permanently terminated. If the conditions for continued detention are not met, the Chamber will have to determine whether, in the particular circumstances of the case, release should be with or without conditions (see article 60(2), third sentence, of the Statute).” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 1, 42. “[T]he Appeals Chamber observes that the Trial Chamber made no finding either that the continued detention of Mr Lubanga Dyilo was no longer necessary for trial under articles 58 and 60(2) and (3) of the Statute or that Mr Lubanga Dyilo was detained for an unreasonable period due to the inexcusable delay of the Prosecutor under article 60(4) of the Statute. It would be inappropriate for the Appeals Chamber to enter findings for the Trial Chamber on these points.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 25.

177

178

arrest and d etention “[W]hen deciding on detention or release (with or without conditions), the Chamber will have to consider whether further developments since the imposition of the conditional stay make it likely that the stay might be lifted in the not-too-distant future.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 39, 42, 45. “[T]he Chamber must be vigilant that any continued detention would not be for an unreasonably long period of time, in breach of internationally recognised human rights [. . .]. If a Chamber concludes that the continued detention, or the release only with conditions, is justified, it will have to review such a decision at short intervals.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37.

6 Release in “Exceptional Humanitarian Circumstances” ”[T]he Appeals Chamber finds that Trial Chamber was right to apply article 60(3) to the Third Request. Article 60 of the Statute describes the circumstances under which a person subject to a warrant of arrest may be detained or released. Under article 60(3), a Chamber considering a request for review of detention must consider, in light of article 58(1) (b) of the Statute, whether there are changed circumstances justifying a person’s release. In the present appeal, the Appeals Chamber does not consider it necessary to determine whether a Trial Chamber actually has the power to order release for ‘humanitarian reasons’ outside the framework of article 60(3) of the Statute. As stated above, having found that there is a risk that Mr Bemba may abscond and having balanced that against Mr Bemba’s desire to participate in the elections, the Chamber did not err when declining to consider his conditional release to the DRC.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 85.

E Charges and Confirmation Hearing

Commentary

reinhold gallmetzer I The Nature of the Charges The Appeals Chamber has noted that the right of the accused person to be informed of the charges against them is firmly grounded in the Statute and other legal instruments of the Court. Article 67(1)(a) and (b) provides that an accused is entitled “[t]o be informed promptly and in detail of the nature, cause and content of the charge” and “to have adequate time and facilities for the preparation of the defence”.1 However, the regulatory framework of the Court does not provide much detail as to what constitutes the “nature” of the charges. Regulation 52 of the RoC provides that [t]he document containing the charges referred to in article 61 shall include: (a) the full name of the person and any other relevant identifying information; (b) a statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court; (c) a legal characterisation of the facts to accord both with the crimes under articles 6, 7 or 8 and the precise form of participation under Articles 25 and 28.

The charges in the early cases brought by the Prosecution included detailed narratives of the relevant facts, together with background information.2 At the same time, in their respective Confirmation Decisions 1

2

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red A5, 1 December 2014, para. 118. See Prosecutor v. Lubanga, Amended Document Containing the Charges, ICC-01/04-01/061573-Anx1, 23 December 2008; Prosecutor v. Katanga & Ngudjolo, Amended Document Containing the Charges, ICC-01/04-01/07-649 and Annexes 1A and 2A, 26 June 2008;

179

180

charges and confirmation hearing

the Pre-Trial Chambers often elaborated on the facts charged by the Prosecution, developing the factual narrative to better reflect their understanding of the evidence before them.3 This raised the question of whether the Prosecution’s charging document, as confirmed by the Pre-Trial Chamber, or the Confirmation Decision constitute the authoritative document setting out the charges for the trial. While, for instance, in the Bemba case, the Prosecution filed an amended document containing the charges that reflected the facts confirmed by the Pre-Trial Chamber,4 Trial Chamber II in the Katanga & Ngudjolo case found that the Pre-Trial Chamber’s decision on the confirmation of charges “crystallises the facts and circumstances accepted in that decision in support of the charges it has confirmed”,5 and that it is “the point of reference for the trial proceedings”.6 This demonstrates that there was an emerging need for judicial intervention to clarify the nature of the charges on which a person is brought to trial. This clarification came from Pre-Trial Chamber I in the Banda & Jerbo and Gbagbo cases. In particular, in the Gbagbo case, Pre-Trial Chamber I found as follows: one of the core purposes of confirmation of charges is to fix and delimit the factual scope of trial. In this regard, article 74 of the Statute states that “the decision at trial shall not exceed the facts and circumstances described in the charges and any amendment to the charges”. Accordingly, in the event that any charges are confirmed, the factual parameters of the case at trial are determined by the charges as presented by the Prosecutor, to the extent confirmed by the Pre-Trial Chamber. Such delimiting effect can only be ascribed to those facts and circumstances which underlie the charges and must be described therein (“material facts”). Conversely, no constraining power is attributed to those factual allegations presented by the Prosecutor in the DCC, or at the confirmation of charges hearing, with a view to demonstrating or supporting the existence of material facts (“subsidiary facts”). Such subsidiary

3

4

5

6

Prosecutor v. Bemba, Amended Document Containing the Charges, ICC-01/05-01/08-395Anx3, 30 March 2009. See Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06803-tEN, 29 January 2007; Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008; Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009. Prosecutor v. Bemba, Corrected Revised Second Amended Document Containing the Charges, ICC-01/05-01/08-950-Red-AnxA, 13 October 2010. Prosecutor v. Katanga & Ngudjolo, Decision on the Filing of a Summary of the Charges by the Prosecutor, ICC-01/04-01/07-1547, 21 October 2009, para. 22. Ibid., para. 14.

co mmentary

181

facts may be analysed by the Pre-Trial Chamber insofar as relevant to determine the existence of material facts, but are not themselves part of the charges and are not subject to confirmation by the Pre-Trial Chamber under article 61(7) of the Statute.7

Accordingly, Pre-Trial Chamber I instructed the Prosecutor in its document containing the charges to “clearly and comprehensively identif[y] and distinguish [. . .] [the material facts underlying the charges] from those facts of a mere subsidiary nature”.8 In developing this approach, Pre-Trial Chamber I relied, among others, on a ruling of the Appeals Chamber in the Lubanga case,9 where it was found that the term “facts” refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61(5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the Confirmation Decision, does not support the legal elements of the crime charged.10

As a result of the above, charging documents recently filed by the Prosecution separate the material facts that lay out the factual basis for each of the elements of the relevant crimes and the modes of liability from subsidiary facts which refer to evidence and describe how the Prosecution intends to establish each of the material facts.11 The decision on the confirmation of charges in the Gbagbo case is the first that also separates the material facts that are confirmed from other 7

8

9

10

11

Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, para. 27. In this decision, Pre-Trial Chamber I relied on its prior decision in Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09-121Red-Corr, 7 March 2011, paras. 36–38. Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, paras. 27–28. Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09-121-Red-Corr, 7 March 2011, para. 37. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. See Prosecutor v. Gbagbo, Amended Document Containing the Charges, ICC-02/11-01/ 11-592-Anx2-Corr2-Red, 13 January 2014; Prosecutor v. Ntaganda, Document Containing the Charges, ICC-01/04-02/06-203-AnxA, 10 January 2014; Prosecutor v. Blé Goudé, Document Containing the Charges, ICC-02/11-02/11-124-Anx1-Corr, 22 August 2014.

182

ch ar g es an d co n f i r mation hearing

subsidiary findings discussing the evidence.12 This decision marks a clear evolution in defining the nature of the charges that constitute the basis of the trial. Regarding the required specificity of the charges, the Appeals Chamber quoted with approval relevant jurisprudence from the Blaškić Appeal Judgment of the ICTY,13 on the basis of which it held that in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution; (ii) the related mental element; and (iii) the identities of any alleged co-perpetrators. With respect to the underlying criminal acts and the victims thereof, [. . .] the Prosecutor must provide details as to the date and location of the underlying acts and identify the alleged victims to the greatest degree of specificity possible in the circumstances [. . .]. [T]he underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.14

The detailed information regarding the charges is to be provided primarily in the decision on the confirmation of the charges, which defines the parameters of the charges at trial. However, according to the Appeals Chamber, this does not exclude that “further details about the charges, as confirmed by the Pre-Trial Chamber, may, depending on the circumstances, also be contained in other auxiliary documents”.15 All such additional information must be made available “before the start of the trial hearing”.16 To the extent that further information is provided in the course of the trial, this can only go towards assessing whether prejudice caused by the lack of detail of the charges may have been cured. In addition, where submissions by the Prosecutor made in advance of the trial hearings related to the factual allegations provide additional detail, this can be taken into account when determining whether the Accused’s right to be informed in detail of the charges has been violated.17 12

13

14

Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656, 12 June 2014. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 122. Ibid., para. 123. 15 Ibid., para. 124. 16 Ibid., para. 129. 17 Ibid., paras. 129–130.

co mmen t ar y

183

II Amendments to the Charges While the Prosecution has broad discretion to amend the charges prior to the confirmation hearing,18 any amendments to the charges after they have been confirmed are strictly regulated by article 61(9). Accordingly, at that start of the proceedings the Prosecutor may amend the charges only with the permission of the Pre-Trial Chamber and after notice to the Accused. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held.19 Once the trial has commenced, the Prosecutor may, with the permission of the Trial Chamber, withdraw charges,20 but contrary to the rules of the ICTY and the ICTR,21 the Prosecutor may not add charges or amend the charges. The Appeals Chamber left it open as to whether the start of the trial – for the purposes of any amendment to the charges – is the time when the parties make their opening statements or when the evidentiary phase of the trial commences.22 It also emphasised that for any amendments under article 61(9), the entire process must be completed before the commencement of the trial. It is not sufficient for the Prosecutor to merely seek permission for an amendment of the charges prior to the commencement of the trial.23 However, the Prosecutor may ask for a postponement of the commencement of the trial if that is necessary to proceed with the actual amendment of the charges.24 In an appeal against Trial Chamber I’s decision in the Lubanga case where the Trial Chamber extend the factual basis of the charges to crimes of sexual violence after hearing evidence to that effect, the Appeals Chamber emphasised that “[n]ew facts and circumstances not described in the charges may only be added under the procedure of article 61(9) of 18 21

22

23

24

Article 61(4). 19 Article 61(9). 20 Ibid. ICTY, Rules of Procedure and Evidence (as amended 8 July 2015), in force 14 March 1994, UN Doc. IT/32/Rev.50, rule 50; ICTR, Rules of Procedure and Evidence (as amended 13 May 2015), in force 29 June 1995, UN Doc. ITR/3/REV.1, rule 50. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 27. Trial Chamber I defined the moment of the opening statement as the time of the commencement of the trial: see Prosecutor v. Lubanga, Reasons for Oral Decision Lifting the Stay of Proceedings, ICC01/04-01/06-1644, 23 January 2009, para. 36. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 29. Ibid., para. 31.

184

c h a r g es an d c o n f i r m a tio n h e a r i ng

the Statute”.25 It also stated that “[t]o give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute”.26 At the same time, the Appeals Chamber found that the terms of article 61(9) “do not exclude the possibility that a Trial Chamber modifies the legal characterisation of the facts on its own motion once the trial has commenced”.27 According to the Appeals Chamber, “regulation 55 of the Regulations of the Court was introduced precisely to mitigate the fact that after the commencement of the trial the charges cannot be amended (including by the addition of more serious charges)”.28

III The Confirmation of Charges Hearing a General Principles Relating to the Confirmation of Charges Hearing The Appeals Chamber clearly distinguished the scope of the confirmation of charges hearing from that of a trial. It found that the confirmation of charges hearing “is not a trial to establish guilt or innocence. It is a phase of the proceedings designed to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’.”29 According to the Appeals Chamber, “[o]ne of the purposes of this procedure is to prepare the case for trial and to filter out cases that should not go to trial”.30 It also held that “the threshold for the confirmation of charges (‘substantial grounds’, article 61(7) of the Statute) is lower than for conviction (‘beyond reasonable doubt’, article 66(3) of the Statute) and may be satisfied before the end of the investigation”.31 In addition, while stating that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”, the Appeals Chamber determined 25

26 28

29

30

31

Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. Ibid. 27 Ibid., para. 77. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 56.

co mmen t ar y

185

that “this is not a requirement of the Statute”.32 To the contrary, it held that “the Pre-Trial Chamber [in the Lubanga case] erred in finding that the Prosecutor’s investigation [. . .] must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation”.33 These directions are very important at this early stage of development of the Court, especially bearing in mind that the pre-trial phase takes around one year on average,34 that Confirmation Decisions are often over 100 pages long,35 and, in some cases, the standard of proof applied by Pre-Trial Chambers may be close to that at trial. For instance, in its “Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute” rendered in the Gbagbo case,36 the majority of Pre-Trial Chamber I37 required that in order for the Prosecutor to meet the evidentiary threshold under article 61(7) she must “largely complete her investigation”,38 “present all her evidence”39 and “her strongest possible case”.40 This would also be contrary to the consistent affirmation of the Pre-Trial Chambers of this Court that pretrial proceedings are not a “mini trial”, but have a mere gatekeeper

32

33

34

35

36

37

38

39

Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 54. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. The shortest period between the initial appearance of a suspect before the Court and the decision on confirmation or non-confirmation of charges was 8 months and 19 days (in the case Prosecutor v. Banda & Jerbo). The longest period was 2 years, 6 months and 14 days (in the case Prosecutor v. Gbagbo). In most cases it was slightly below 12 months. Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803tEN, 29 January 2007 (157 pages); Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04–01/07–717, 26 September 2008 (226 pages); Prosecutor v. Bemba, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/ 05-01/08-424, 15 June 2009 (186 pages); Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/01-656, 12 June 2014 (132 pages); Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/ 05-02/09-243-Red, 8 February 2010 (103 pages). Prosecutor v. Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013. Judge Silvia Fernandez de Gurmendi appended a dissenting opinion: see ICC-02/11-01/ 11-432-Anx-Corr-Anx, 3 June 2013. Prosecutor v. Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, paras. 25, 37. Ibid., para. 37 (emphasis added). 40 Ibid., para. 25.

186

c h a r g es an d c o n f i r m a t i o n h e a r i ng

function.41 The jurisprudence of the Appeals Chamber referred to above points the Court’s practice in the right direction to ensure that pre-trial proceedings are efficient, while at the same time fulfil its main purpose; that is, “to filter out cases that should not go to trial”.42

b Evidentiary Rules at the Confirmation of Charges Hearing The evidentiary rules at the confirmation of charges hearing are different from those at trial. While trials are governed by the principle of orality of witness testimony pursuant to article 69(2), article 61(5) provides that for the purposes of confirmation of charges, “[t]he Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial”.43 In addition, where the security of witnesses is at issue, the Prosecutor may, pursuant to article 68(5), withhold evidence at the confirmation stage, and instead submit a summary thereof. The Appeals Chamber has held that the use of summaries by the Prosecutor at the confirmation hearing pursuant to article 61(5) [. . .] is not subject to any explicit condition. Neither the Statute nor the Rules of Procedure and Evidence foresee that such summaries must be approved by the Pre-Trial Chamber prior to their presentation at the confirmation hearing. The use of summaries pursuant to article 61(5) of the Statute leaves the disclosure obligations of the Prosecutor pursuant to article 61(3)(b) of the Statute and rules 76 et seq. of the Rules of Procedure and Evidence unaffected.44

41

42

43

44

Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, para. 22; Prosecutor v. Ruto et al., Order to the Defence to Reduce the Number of Witnesses to be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, ICC-01/09-01/11-221, 25 July 2011, para. 9; Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 26 September 2008, para. 64; Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para. 37; Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09121-Red-Corr, 7 March 2011, para. 31; Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 39. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. Witness statements at trial may be introduced under rule 68 only if the strict conditions of that rule are met: Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 43.

co mmen t ar y

187

Because the use by the Prosecution of summaries of evidence may affect the ability of the Defence to challenge that evidence at the confirmation hearing pursuant to article 61(6)(b),45 the Pre-Trial Chamber must take “sufficient steps to ensure that summaries of evidence [. . .] are used in a manner that is not prejudicial to or inconsistent with the rights of the Accused and with a fair and impartial trial”.46 In a Dissenting Opinion, Judge Pikis specified that “a summary [pursuant article 61(5)] must invariably reveal the essence and substance of the evidence. The summary must no doubt include reference to the provenance of a witness’ statement, that is, the identity of the person making it and in the case of documentary evidence wherefrom it originates.”47 To ensure expeditious confirmation proceedings, the Prosecutor in practice extensively relied on article 61(5) to present its evidence at that stage. With the exception of a few cases where the Prosecutor called one witness, the entirety of the Prosecutor’s witness evidence was submitted in written form. The Defence has mostly followed the same approach. In addition, because Pre-Trial Chambers tend to give very limited weight to statements of witnesses whose identity has not been disclosed to the Defence,48 the Prosecutor has sought to put in place all necessary protective measures prior to the confirmation of charges hearing, so that the identity of the witnesses can be disclosed to the Defence.

c The Pre-Trial Chamber’s Power to Evaluate Evidence Confirmation of charges proceedings are adversarial in nature. According to article 61(6), the Defence may challenge the evidence presented by the Prosecutor and present its own evidence. The PreTrial Chamber will then decide on the basis of all the evidence before it whether there are substantial grounds to believe that the person committed each of the crimes charged.49 45 47

48

49

Ibid., para. 50. 46 Ibid., para. 51. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 7, Sep. Op. See Prosecutor v. Mbarushimana, Decision on the Confirmation of Charges, ICC-01/0401/10-465-Red, 16 December 2011, paras. 49, 78; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 90; Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para. 106. Article 61(7).

188

c h a r g es an d c o n f i r m a t i o n h e a r i n g

In the Mbarushimana case, the Prosecution appealed the decision of Pre-Trial Chamber I not to confirm the charges, among others, on the basis that the Pre-Trial Chamber had erred by conducting an in-depth analysis of the evidence which was inappropriate at the confirmation stage. In particular, according to the Prosecution, it was not the task of the Pre-Trial Chamber to resolve inferences, credibility doubts and perceived inconsistencies against the Prosecution. It should also not have evaluated the credibility and consistency of witness interviews, summaries and statements without having an opportunity to examine the witnesses.50 The Appeals Chamber rejected this appeal. It found that in determining whether to confirm charges under article 61 of the Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses. Any other interpretation would carry the risk of cases proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish substantial grounds to believe the person committed the crimes charged.51

According to the Appeals Chamber this interpretation is necessary to ensure that “the confirmation of charges hearing exists to separate those cases and charges which should go to trial and those which should not [. . .] and to protect the rights of the persons [. . .] to challenge the evidence presented by the Prosecutor and to present his/her own evidence”.52 However, the Appeals Chamber also acknowledged that “the Pre-Trial Chamber’s ability to evaluate the evidence is [not] unlimited [and that] its function in evaluating the evidence is [not] identical to that of the Trial Chamber”.53 According to the Appeals Chamber, the Prosecutor’s reliance on documentary or summary evidence in lieu of inperson testimony will limit the Pre-Trial Chamber’s ability to evaluate the credibility of witnesses. Whilst it may evaluate their credibility, the Pre-Trial Chamber’s determinations will necessarily be presumptive, and it should take great care in finding that a witness is or is not credible. The Prosecutor’s reliance on summary evidence may also mean that the Pre-Trial Chamber 50

51

52

Prosecutor v. Mbarushimana, Corrigendum to the “Prosecution’s Document in Support of Appeal against the ‘Decision on the Confirmation of Charges’ (ICC-01/04-01/10-465Red)”, ICC-01/04-01/10-499-Corr, 13 March 2012. Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, 30 May 2012, paras. 1, 46. Ibid., paras. 39–40. 53 Ibid., para. 47.

jurisprudence will not be presented with all details of the evidence in the possession of the Prosecutor. Where the evidence is insufficient in this regard, the Appeals Chamber recalls that the Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.54

Jurisprudence I The Nature of the Charges 1

Applicable Provisions

“Regulation 52 of the Regulations of the Court thus stipulates that the document containing the charges shall contain three distinct elements: information identifying the accused person, a statement of the facts, and the legal characterisation of these facts. The distinction between facts and their legal characterisation should be respected for the interpretation of Regulation 55 as well.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 97. “The Appeals Chamber notes that the right of the accused person to be informed of the charges is firmly grounded in the Statute and other legal instruments of the Court and has been the subject of several decisions of various Chambers. Article 67(1)(a) and (b) of the Statute provides that an accused is entitled ‘[t]o be informed promptly and in detail of the nature, cause and content of the charge’ and ‘to have adequate time and facilities for the preparation of the defence’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, A5, 1 December 2014, para. 118.

2 Specificity of the Charges “The Appeals Chamber notes that Mr Lubanga was charged and convicted based on the notion of co-perpetration based on a common plan, which resulted, in the ordinary course of events, in the enlistment and conscription of individuals under the age of fifteen years and in their use to participate actively in hostilities. The jurisprudence of the ad hoc tribunals establishes different levels of specificity required of the charges depending on the form of individual criminal responsibility charged. This is addressed in the Blaškić Appeal Judgment in the following terms: ‘210. [. . .] A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case 54

Ibid., para. 48.

189

190

charges and confirmation hearing in an indictment is the nature of the alleged criminal conduct charged. The materiality of such facts as the identity of the victim, the place and date of the events for which the accused is alleged to be responsible, and the description of the events themselves, necessarily depends upon the alleged proximity of the accused to those events, that is, upon the type of responsibility alleged by the Prosecution. [. . .] 211. A distinction has been drawn in the International Tribunal’s jurisprudence between the level of specificity required when pleading: (i) individual responsibility under Article 7(1) in a case where it is not alleged that the accused personally carried out the acts underlying the crimes charged; (ii) individual responsibility under Article 7(1) in a case where it is alleged that the accused personally carried out the acts in question; and (iii) superior responsibility under Article 7(3). [. . .] 213. When alleging that the accused personally carried out the acts underlying the crime in question, it is necessary for the Prosecution to set out the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed “with the greatest precision”. However, where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation or execution of the alleged crimes, then the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.’ [footnotes omitted].’” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 122. “In light of the foregoing, the Appeals Chamber finds that, in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution; (ii) the related mental element; and (iii) the identities of any alleged co-perpetrators. With respect to the underlying criminal acts and the victims thereof, the Appeals Chamber considers that the Prosecutor must provide details as to the date and location of the underlying acts and identify the alleged victims to the greatest degree of specificity possible in the circumstances. In the view of the Appeals Chamber, the underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 123.

jurisprudence “In the view of the Appeals Chamber, the term ‘facts’ refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61(5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the Confirmation Decision, does not support the legal elements of the crime charged.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. “The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90). “[A]part from specifying the political affiliations of the alleged perpetrators and victims, the paragraphs in question do not contain any factual allegation relative to the attack against the civilian population. As such, it cannot be said that the statement in relation to the attack in paragraphs 97 and 105 in itself provided a ‘sufficient [. . .] factual basis to bring the person [. . .] to trial’ within the meaning of regulation 52(b) of the Regulations of the Court or to inform the suspect in detail of the nature, cause and content of the charges against him within the meaning of article 67(1)(a) of the Statute.” Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 42.

3 Confirmation Decision and Auxiliary Documents “As to where and how the detailed information about the charges is to be provided to the accused, the Appeals Chamber underlines [. . .] that, given the Court’s statutory framework and the respective roles of the Prosecutor and the Pre-Trial Chamber in the confirmation process, there can be no doubt that the decision on the confirmation of the charges defines the parameters of the charges at trial [. . .]. If it were otherwise, a person could be tried on charges that have not been confirmed by the Pre-Trial Chamber, or in relation to which confirmation was even declined. However, this does not necessarily exclude that further details about the charges, as confirmed by the Pre-Trial Chamber, may, depending on the circumstances, also be contained in other auxiliary documents.”

191

192

c h a r g es an d c o n f i r m a t i o n h e a r i ng Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 124. “First, given the strong link between the right to be informed in detail of the nature, cause and content of the charges and the right to prepare one’s defence, only information made available before the start of the trial hearings may be taken into account. This is because a trial must commence based on a set of clearly defined charges. This is evidenced by the fact that, once the trial has commenced, no amendment to the charges is permitted, as provided by article 61(9) of the Statute [. . .]. Charges may only be withdrawn with the permission of the Trial Chamber. To the extent that further information is provided in the course of the trial, this can only go towards assessing whether prejudice caused by the lack of detail of the charges may have been cured. Second, in line with the jurisprudence of the Court’s Pre-Trial and Trial Chambers, where submissions by the Prosecutor made in advance of the trial hearings related to the factual allegations provide additional detail, this can be taken into account when determining whether the accused’s right to be informed in detail of the charges has been violated.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 129–130.

II Amendments to the Charges 1 General Principles “[N]ew facts and circumstances not described in the charges may only be added under the procedure of article 61(9) of the Statute [. . .]. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial [. . .]. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “The wording of this provision [article 61(9)] prescribes that an amendment of the charges is no longer possible after the trial has begun. In that regard, the Appeals Chamber notes that opening statements in the present case were made on 10 September 2013 and the first witness was heard on 17 September 2013. Accordingly, irrespective of the precise moment at which the trial begins within the meaning of article 61(9) of the Statute, in the instant case, the trial has commenced.”

j ur i s p r uden ce Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 27.

2 The Relationship between Article 61(9) and Regulation 55 “[A]rticle 61(9) addresses primarily the powers of the Prosecutor to seek an amendment, addition or substitution of the charges, at his or her own initiative and prior to the commencement of the trial; the terms of the provision do not exclude the possibility that a Trial Chamber modifies the legal characterisation of the facts on its own motion once the trial has commenced. Regulation 55 fits within the procedural framework because at the confirmation hearing, the Prosecutor needs only to ‘support each charge with sufficient evidence to establish substantial grounds to believe’, whereas during the trial, the onus is on the Prosecutor to prove ‘guilt beyond a reasonable doubt’. Thus, in the Appeals Chamber’s view, article 61(9) of the Statute and regulation 55 address different powers of different entities at different stages of the procedure, and the two provisions are therefore not inherently incompatible.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. “[R]egulation 55 of the Regulations of the Court was introduced precisely to mitigate the fact that after the commencement of the trial the charges cannot be amended (including by the addition of more serious charges).” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. “[R]egulation 55 of the Regulations of the Court was apparently adopted on the understanding that the Prosecutor could no longer seek an amendment of the charges after the commencement of the trial. Therefore, the main purpose of regulation 55 of the Regulations of the Court was to avoid impunity gaps and to promote judicial economy. In accepting this, in my view, article 61(9) of the Statute should also be interpreted as to allow the Prosecutor to close impunity gaps as long as she still has the right to seek an amendment of the charges. In that case, the amendment process would, at times, only conclude after the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, paras. 21–22. Diss. Op.

193

194

c h a r g es an d c o n f i r m a t i o n h e a r i n g

3 The Entire Process of Amending the Charges must be Completed Prior to the Start of Trial: Article 61(9) “[T]he Prosecutor’s Request to Amend the Charges was filed before the Pre-Trial Chamber on 22 July 2013, that is, before the commencement of the trial. Nevertheless, the Appeals Chamber finds that the wording of article 61(9) of the Statute (‘the Prosecutor may, with the permission of the Pre-Trial Chamber [. . .] amend the charges’) indicates that not only the request to amend the charges has to be filed before the commencement of the trial, but also that the entire process of amending the charges must be completed by that time, including the granting of permission for the amendment by the Pre-Trial Chamber.” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 29.

4 The Prosecutor may Request Postponement of the Trial Pending the Outcome of a Request to Amend the Charges “[T]he Appeals Chamber finds that, once the trial has commenced, it is no longer possible to amend or to add to the charges, irrespective of when the Prosecutor filed her request to amend the charges. The Appeals Chamber does not consider that this unduly prejudices the Prosecutor: if she identifies a need to seek an amendment of the charges shortly before the scheduled start of a trial, she may ask for a postponement of the trial until the amendment process, including any potential appeal in that regard, is concluded.” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 31. “[T]here is no legal provision requiring the Trial Chamber to postpone the commencement date of the trial to account for proceedings relevant to the Prosecutor’s request to amend the charges. Rather, this is a matter solely within the discretion of the Trial Chamber. While the Prosecutor may seek a postponement of the trial date, such a request does not automatically lead to a Trial Chamber postponing the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 19. Diss. Op.

4.1

Dissenting Opinion of Judge Ušacka in the Amendment of the Charges Appeal “[I]t is recalled that the Document in Support of the Appeal was filed on 19 September 2013, that is, nine days after the commencement of the trial. If it were clear that the amendment process needed to have been fully

j ur i s p r uden ce concluded before the commencement of the trial and that the Prosecutor’s relief could no longer be granted, the Appeals Chamber would have had to immediately dismiss the appeal in limine for a number of reasons, primarily for reasons of expeditiousness and judicial economy.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 14. Diss. Op. “[T]here are least two possible options as to the correct interpretation of the word ‘amend’ in this [article 61(9)] context. First, it can be read as requiring a request from the Prosecutor to the Pre-Trial Chamber for permission to amend the charges. Second, it can be read as requiring the Pre-Trial Chamber to grant permission to amend the charges before the commencement of the trial. Possibly, it could even mean that the Prosecutor is required to file an amended document containing the charges before the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 16. Diss. Op. “In support of the first option, it is important to note that the phrase ‘permission of the Pre-Trial Chamber’ is connected by the word ‘and’ with the phrase ‘after notice to the accused’. Evidently, the accused is notified at the time the Prosecutor seeks an amendment. Therefore, the act of seeking an amendment, as opposed to having been granted an amendment (or filing an amended document containing the charges) could be considered sufficient in order to fall within the timeframe required by article 61(9) of the Statute.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 17. Diss. Op. “[I] note that the first sentence of article 61(9) of the Statute suggests that the Prosecutor has a right to amend the charges during the entirety of this period, that is, up until the moment the trial begins. If the first sentence of article 61(9) of the Statute is read as requiring the amendment process to be fully concluded, the Prosecutor would be required to foresee how long the amendment process would take, which could include, for example, the length of a confirmation hearing if a more fundamental amendment is requested, and/or of appeal proceedings, if leave to appeal a decision denying an amendment is granted.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 18. Diss. Op.

195

196

charges and confirmation hearing “[I]mposing a requirement that the amendment proceedings must be concluded before the commencement of the trial, in my view, limits considerably the scope of application of the Prosecutor’s right to amend the charges and appears to be contrary to the overall purpose of article 61(9) of the Statute.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 23. Diss. Op.

III The Confirmation of Charges Hearing 1 General Principles Relating to the Confirmation of Charges Hearing “[A] hearing to confirm the charges is not a trial to establish guilt or innocence. It is a phase of the proceedings designed to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’ prior to confirming any charges and committing the person to a Trial Chamber to be tried on the charges as confirmed. As such, it may be permissible to withhold the disclosure of certain information from the Defence prior to the hearing to confirm the charges that could not be withheld prior to trial.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68. “[T]he right to challenge the evidence [. . .] must be understood in the context of the confirmation hearing, which does not amount to a determination of the guilt or innocence of the suspect. Pursuant to article 61(7)(a) of the Statute, the Pre-Trial Chamber shall confirm those charges in relation to which it has determined that there is sufficient evidence to establish substantial grounds to believe that the suspect committed the crime charged. As the threshold for the confirmation of the charges is lower than for a conviction, the Prosecutor may be able to convince the Pre-Trial Chamber that the threshold for the confirmation of the charges has been reached even if the reliability of the witnesses and other evidence was not fully tested.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 47. “[T]he threshold for the confirmation of charges (‘substantial grounds’, article 61(7) of the Statute) is lower than for conviction (‘beyond reasonable doubt’, article 66(3) of the Statute) and may be satisfied before the end of the investigation. If further investigations lead the Prosecutor to

j u r i s p r ud e n c e reassess his theory about the suspect’s liability for the crimes charged, he may seek, within the limits of article 61(9) of the Statute, an amendment or withdrawal of the charges, as necessary.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 56. “[A] confirmation pursuant to article 61 of the Statute is limited to the specific charges as provided in the document containing the charges. The document containing the charges is an assertion by the Prosecutor that he intends to bring a person to trial for the specific crimes set out in the document; it is not an assertion that he will not seek to put the suspect on trial for other crimes in the future.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. “[T]he Appeals Chamber emphasises that in the confirmation process, the facts, as defined above [factual allegations which support each of the legal elements of the crime charged], must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90). “[T]he prerequisites for the issue of a warrant of arrest and the confirmation of charges are different. Whereas the test for the issuance of a warrant of arrest under article 58(1)(a) and (b) of the Statute is the presence of ‘reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court’ coupled with the existence of grounds warranting detention, the denominator for the confirmation of charges is the existence of ‘sufficient evidence to establish substantial grounds to believe that the person committed the crimes charged’ (article 61(7) of the Statute).” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 14. “[O]ne of the purposes of this [the confirmation] procedure is to prepare the case for trial and to filter out cases that should not go to trial. A case will only be referred to a Trial Chamber if there are ‘substantial grounds to believe’ that the person in question has committed the crimes charged. In addition, the Pre-Trial Chamber has the primary responsibility of ensuring the protection of the rights of suspects during the investigation stage of the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. See also Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third

197

198

c h a r g es an d c o n f i r m a tio n h e a r i ng Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 16. Diss. Op. “[P]ursuant to article 61(6) of the Statute, at the confirmation hearing a suspect may contest both matters of statutory interpretation and evidential aspects of the Prosecutor’s case.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 33; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 27. “[C]hallenges to jurisdiction may be joined to a confirmation proceeding, in which case the jurisdictional challenge shall be decided first [. . .]. It would make little sense to consider and determine, for the purposes of ‘jurisdiction’, the interpretation of ‘organizational policy’ and whether the Prosecutor had submitted sufficient evidence to establish substantial grounds to believe that the crimes were committed in furtherance of such a policy prior to holding a confirmation hearing designed to resolve precisely the same issues.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 34; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 28. “[I]n the context of this case, treating the interpretation and existence of ‘organisational policy’ as jurisdictional matters conflates the separate concepts of jurisdiction and the confirmation process; yet it is the latter that is designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 35; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 29. “This is not to say that the Pre-Trial Chamber’s ability to evaluate the evidence is unlimited or that its function in evaluating the evidence is identical to that of the Trial Chamber. The Appeals Chamber recalls that the confirmation of charges hearing is not an end in itself, but rather serves the purpose of filtering out those cases and charges for which the evidence is insufficient to justify a trial. This limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The Pre-Trial Chamber need not be

jurisprudence convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 47. “[U]nder article 61(7) of the Statute, the Pre-Trial Chamber has three options in determining ‘whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’. It may elect to confirm the charges for which there is sufficient evidence and commit the accused to trial (article 61(7)(a)), decline to confirm the charges for which there is insufficient evidence (article 61(7)(b)), or adjourn the hearing to request the Prosecutor to provide further evidence or conduct further investigation in relation to a particular charge (article 61(7)(c)(i)), or amend the charge where the evidence submitted appears to establish a different crime within the jurisdiction of the Court (article 61(7)(c)(ii)).” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 3. Diss. Op. “I note that the Court’s legal texts, more specifically article 61 of the Statute, do not directly address the consequences on the detention of the charged person of a decision to adjourn the confirmation hearing with respect to all of the charges. In my view, when the Pre-Trial Chamber elects to adjourn the confirmation of charges hearing in relation to ‘all charges’, as in the instant case, it must, at the very least, examine the concomitant impact that such an adjournment has upon the rights of the detained person.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 9. Diss. Op.

2 Evidentiary Rules at the Confirmation Hearing “[T]he Trial Chamber’s argumentation as to the link between the pre-trial and trial phases is unpersuasive. While it is true that there is, and must be, a strong link between the two phases of the proceedings, this does not mean that the same evidentiary rules apply. On the contrary, the rules regarding orality in the pre-trial phase are more relaxed than at trial. Pursuant to article 61(5) of the Statute, for the purposes of the confirmation hearing, the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial’.

199

200

c h a r g e s an d c o n f i r m a t i o n h e a r i n g At the trial, however, the Trial Chamber must respect article 69(2). Witness statements may only be introduced under rule 68 of the Rules of Procedure and Evidence if the strict conditions of that rule are met.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80. “[P]ursuant to article 61(5) of the Statute, for the purposes of the confirmation hearing, the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial’. At the trial, however, the Trial Chamber must respect article 69(2).” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80.

3

Use of Summaries at the Confirmation Hearing under Article 61(5)

“[T]he use of summaries of witness statements and other documents at the confirmation hearing in relation to witnesses of the Prosecutor whose identities have not been disclosed to the Defence prior to the confirmation hearing is, in principle, permissible under the Statute and the Rules of Procedure and Evidence, provided that such summaries are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 40, see also para. 50. “The use of summaries by the Prosecutor at the confirmation hearing pursuant to article 61(5), second sentence, of the Statute is not subject to any explicit condition. Neither the Statute nor the Rules of Procedure and Evidence foresee that such summaries must be approved by the Pre-Trial Chamber prior to their presentation at the confirmation hearing. The use of summaries pursuant to article 61(5) of the Statute leaves the disclosure obligations of the Prosecutor pursuant to article 61(3)(b) of the Statute and rules 76 et seq. of the Rules of Procedure and Evidence unaffected.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 43. See also Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 7. Sep. Op. “[T]he use of summaries [. . .] may affect the ability of the suspect pursuant to article 61(6)(b) to challenge the evidence presented by the

jurisprudence Prosecutor at the confirmation hearing in two respects: first, the Prosecutor is authorised to rely on witnesses whose identities are unknown to the Defence (anonymous witnesses); second, the ability of the defence to evaluate the correctness of the summaries is restricted because the Defence does not receive prior to the confirmation hearing the witness statements and other documents that form the basis of the summaries. However, this does not mean that the use of such summaries at the confirmation hearing is necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 50. “[W]here the Pre-Trial Chamber takes sufficient steps to ensure that summaries of evidence in the circumstances described above are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial, the use of such summaries is permissible. This will have to be determined on a case-by-case basis, also bearing in mind the character of the confirmation hearing.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 51. “[A] summary [pursuant article 61(5)] must invariably reveal the essence and substance of the evidence. The summary must no doubt include reference to the provenance of a witness’ statement, that is, the identity of the person making it and in the case of documentary evidence wherefrom it originates. Authority to substitute a summary for the statement itself or a document does not absolve the Prosecutor of the duty to disclose the evidence (a witness’ statement or a document) untrammelled to the person charged, who would be free to make use of it in any challenge of the evidence of the witness under article 61(6)(b) of the Statute.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, para. 7. Sep. Op.

4 Power of the Pre-Trial Chamber to Review Weight of Evidence 4.1 The Pre-Trial Chamber is Not Precluded from Entering into Matters of Credibility “In determining whether to confirm charges under article 61 of the Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses. Any other interpretation would carry the risk of cases

201

202

charges a nd confirmation hearing proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish substantial grounds to believe the person committed the crimes charged.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, paras. 1, 46. “This provision [article 61] clearly shows that the confirmation of charges hearing exists to separate those cases and charges which should go to trial and those which should not, a fact supported by the drafting history. It serves to ensure the efficiency of judicial proceedings and to protect the rights of persons by ensuring that cases and charges go to trial only when justified by sufficient evidence. It is by its nature an evidentiary hearing, with the Pre-Trial Chamber required to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged. In order to make this determination as to the sufficiency of the evidence, the Pre-Trial Chamber must necessarily draw conclusions from the evidence where there are ambiguities, contradictions, inconsistencies or doubts as to credibility arising from the evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 39. “The Appeals Chamber attaches considerable significance to the fact that article 61(6) of the Statute enshrines the right of the person charged to challenge the evidence presented by the Prosecutor and to present his/her own evidence. If these rights are availed of, the evidence inevitably will be contested. For these rights to have any meaning, the Pre-Trial Chamber must therefore evaluate the contested evidence and resolve any ambiguities, contradictions, inconsistencies or doubts as to credibility introduced by the contestation of the evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 40. The Statute and Rules do not preclude the Pre-Trial Chamber “from evaluating the evidence as is required by article 61(7) of the Statute or otherwise limit the Chamber’s authority to freely assess evidence”. Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 42. “[T]he confirmation of charges hearing [. . .] was deliberately established as a hearing before a Pre-Trial Chamber of three judges at which the

juri sprudence person charged has the right to be present and to contest the evidence and following which the Pre-Trial Chamber must assess the evidence. Such a process clearly requires the Pre-Trial Chamber to go beyond looking at the Prosecutor’s allegations ‘on their face’ as is done in confirming an indictment at the ICTY or ICTR.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 43. “The Appeals Chamber is not persuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot properly evaluate the evidence because it lacks the full evidence. As previously indicated by the Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber. Where the Prosecutor requires more time to complete the investigation, rule 121(7) of the Rules of Procedure and Evidence permits him to seek a postponement of the confirmation of charges hearing. If the evidence is found to be insufficient, article 61(8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 44. See also Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06568 OA3, 13 October 2006, para. 54. “The Appeals Chamber is equally unpersuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot evaluate the credibility of witnesses without their in-person testimony. It is true that the Appeals Chamber has indicated that a Chamber’s ability to assess the credibility of witnesses is limited when such witnesses do not testify in person. However, the Appeals Chamber recognised in that same decision that Trial Chambers may nevertheless receive testimony other than in-person and that ‘rules regarding orality in the pre-trial phase are more relaxed than at trial’.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 45, citing Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/0501/08-1386 OA5 OA6, 3 May 2011, para. 80. “[I]t is for the Prosecutor to plead the facts relevant to establishing the legal elements and for the Pre-Trial Chamber to determine whether those facts, if proven to the requisite threshold, establish the legal elements of

203

204

char ges and confir mation hear ing the attack [under article 7]. The question of how many of the incidents pleaded by the Prosecutor would suffice to prove an ‘attack’ in the present case is a matter for the Pre-Trial Chamber to determine. It is not a question that can be determined in the abstract.” Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 47.

4.2

The Pre-Trial Chamber’s Power to Evaluate Evidence is Not Unlimited “This is not to say that the Pre-Trial Chamber’s ability to evaluate the evidence is unlimited or that its function in evaluating the evidence is identical to that of the Trial Chamber. The Appeals Chamber recalls that the confirmation of charges hearing is not an end in itself, but rather serves the purpose of filtering out those cases and charges for which the evidence is insufficient to justify a trial. This limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The Pre-Trial Chamber need not be convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe. This limited purpose is also reflected in the fact that the Prosecutor may rely on documentary and summary evidence and need not call the witnesses who will testify at trial.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 47. “[T]he Prosecutor’s reliance on documentary or summary evidence in lieu of in-person testimony will limit the Pre-Trial Chamber’s ability to evaluate the credibility of witnesses. Whilst it may evaluate their credibility, the Pre-Trial Chamber’s determinations will necessarily be presumptive, and it should take great care in finding that a witness is or is not credible. The Prosecutor’s reliance on summary evidence may also mean that the Pre-Trial Chamber will not be presented with all details of the evidence in the possession of the Prosecutor. Where the evidence is insufficient in this regard, the Appeals Chamber recalls that the Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 48.

F Disclosure and Redactions

Commentary

reinhold gallmetzer The Statute and the Rules impose a duty on the Prosecution to disclose to the Defence the following categories of information: (a) the names of witnesses whom the Prosecution intends to call to testify and copies of any prior statements made by those witnesses;1 (b) a list of all the evidence that the Prosecution intends to present during the proceeding;2 and (c) evidence in the Prosecution’s possession or control that the Prosecution 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 the prosecution evidence.3 In addition, the Prosecution must permit the Defence to (d) inspect any information in its possession that is material to the preparation of the defence or was obtained from, or belonged, to the Accused.4 The Prosecution’s disclosure and inspection duties are a key pillar in the ICC’s procedural scheme, and are critical in order to fully respect the Accused’s rights under article 67(1) and to ensure the fairness of the proceedings. Disclosure and inspection are particularly important because of the Prosecution’s duty “to investigate incriminating and exonerating circumstances equally”, pursuant to article 54(1)(a). This means 1 2

3

4

Rule 76(1). Rule 121(3). This provision specifically refers to proceedings before the confirmation of charges hearing. However, the same duty is routinely extended also to trial proceedings. See Prosecutor v. Ruto & Sang, Decision on the Schedule Leading up to Trial, ICC-01/0901/11-440, 9 July 2012, para. 11. In addition, rule 77 refers to the Prosecution’s obligation to allow the Defence to inspect information in its possession that is intended for use by the Prosecution as evidence for the purposes of the confirmation hearing or at trial. Article 67(2). This information is also referred to as “potentially exonerating information” or “PEXO”. Rule 77. This information is also referred to as “Rule 77 material”.

205

206

di sclos ure and r edactions

that during its investigations the Prosecution will actively seek exonerating information that must then be disclosed. As a general principle, the Prosecution’s disclosure and inspection obligations apply to information in the Prosecution’s possession or control, “even if it is publicly available”.5 The Appeals Chamber has held that “the tenor of the disclosure regime established by the Statute and the Rules of Procedure and Evidence is that the Prosecutor is ordinarily obliged to make full disclosure, save for where specific provision is made for restrictions on disclosure to be permitted”.6 Accordingly, an assessment of whether something must be disclosed must be conducted in two stages. First, the Prosecutor must determine whether information within its possession or control falls within any of its disclosure obligations. Second, the Prosecution may request a Chamber to apply any “restrictions on disclosure as provided for in the Statute and in rules 81 and 82 [. . .]. Such restrictions include where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93 of the Statute and the protection of the safety of individuals in accordance with article 68 of the Statute”.7 This process also applies to information collected by the Prosecution pursuant to a confidentiality agreement under article 54(3)(e).8

I Right of the Accused to Disclosure and Inspection a Pre-trial Disclosure of Prosecution Witness Statements: Rule 76 According to the Appeals Chamber, disclosure under rule 76 serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence.9 Importantly, the ordinary meaning of the term “statement” is broad and requires the 5

6

7

8

9

Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 34. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 45. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 1, 35. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 43–44. Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 27; Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26.

co mmentary

207

Prosecution to disclose copies of any prior statements made by witnesses that it intends to call irrespective of the form in which such statements are recorded.10 However, rule 76 only requires the Prosecution to disclose statements made by witnesses “when questioned about their knowledge of the case”.11 Conversely, statements provided by witnesses that relate solely to matters other than the facts and circumstances described in the charges, for instance, statements that relate to the credibility of witnesses or to the mitigation of the guilt of the Accused, are more appropriately disclosed in accordance with rule 77 or article 67(2) if they meet the criteria set out in those provisions.12 The main difference between disclosure of witness statements pursuant to rule 76 and the Prosecution’s disclosure and inspection obligations under article 67(2) and rule 77 is the “nature of the Prosecutor’s assessment of material subject to disclosure”.13 While all prior statements of Prosecution witnesses must be disclosed, article 67(2) and rule 77 require disclosure or inspection of information that the Prosecutor believes meets the criteria set out in those provisions. This includes an assessment of whether the information is potentially exonerating or whether it is “material to the preparation of the defence”.14

b

Disclosure of Potentially Exonerating Information: Article 67(2) The Prosecution’s disclosure duties under article 67(2) are not linked to any requirement that the Defence reveals defence(s) in advance,15 but are based, inter alia, on the Prosecutor’s understanding of the case as a whole. The fact that the Prosecutor is required to investigate incriminating and exonerating circumstances equally means that the Prosecution may be aware, during the course of its investigations, of material that may be of assistance to the Defence.16 The Prosecution’s duty to disclose potentially exonerating information does not only apply to trial proceedings, but extends to proceedings on 10

11

12 15

16

Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 27. Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 1, 16, 38. Ibid., paras. 23, 38. 13 Ibid., para. 23. 14 Ibid. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 46. Ibid., para. 36.

208

disclo sure and redactions

the confirmation of charges.17 In case of doubt as to the application of article 67(2), the Court shall decide whether it applies. Notably, “[t]his indicates that the final assessment as to whether material in the possession or control of the Prosecutor has to be disclosed under that provision will have to be carried out by the Trial Chamber and that therefore the Chamber should receive the material”.18 Withholding exculpatory information could result in “a manifest inequality of arms, with little, if any, prospect for fair proceedings”.19 Any such failure by the Prosecution to disclose information “would cloud the proceedings with doubt, rendering them a priori inconclusive”.20

c Inspection of Information Material to the Preparation of the Defence: Rule 77 The Appeals Chamber has repeatedly held that “the term ‘material to the preparation of the defence’ must be interpreted broadly”, and “should be understood as referring to all objects that are relevant for the preparation of the defence”.21 Any assessment to that effect “should be made on a prima facie basis”.22 However, “the right to [inspection] is not unlimited and which objects are ‘material to the preparation of the defence’ will depend upon the specific circumstances of the case”.23 In deciding whether information is material to the preparation of the defence, whether the Defence has already received relevant documents from the Prosecutor may be taken into account. However, caution should be exercised in taking such an approach as it must not undermine the 17

18

19

20

21

22

23

Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 43, 46. Diss. Op. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 72(c) (on the importance of the relevance of the information to the balancing exercise); Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Diss. Op. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, paras. 77–78, 80–81; Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 10. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 2, 42. Ibid., para. 39.

co mmen t ar y

209

paramount right of the Defence to disclosure of all information material to the preparation of the defence.24 Like Pre-Trial and Trial Chambers of the ICC, the Appeals Chamber has also equated the Prosecution’s duty to allow for the inspection of material under rule 77 with its duties of disclosure.25 It held that the Prosecution’s “disclosure” obligation under rule 77 applies “independently of any request from the defence”, in the sense that the Prosecution must proactively search and analyse all information in its possession or control to assess whether it falls within the scope of rule 77.26

d Disclosure in Relation to Applications for Interim Release Although there is no express regime for disclosure in relation to applications for interim release, the Appeals Chamber has held that “the PreTrial Chamber should ensure that in the disclosure process priority is given to those documents that are essential for the person to receive in order effectively to challenge the lawfulness of detention”.27 Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. This would allow the person to challenge his or her detention as soon as he or she is in detention at the Court and in circumstances in which he or she is appraised of the material on which the arrest warrant was based.28 II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) Rule 81(4) provides that a Chamber has the power to take the necessary steps, either on its own motion or at the request of a party or any State, to ensure the confidentiality of information to protect the safety of witnesses and victims and members of their families, including by authorising the non-disclosure of their identity prior to the commencement of the trial. In interpreting this provision, the Appeals Chamber has established the following principles: First, “the overriding principle is that full disclosure should be made”.29 However, the right to disclosure is not absolute. The 24 27

28 29

Ibid., para. 40. 25 Ibid., para. 34. 26 Ibid. Prosecutor v. Bemba, Judgment on Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 33. Ibid., para. 32. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64.

210

d i s c l o s u r e a n d re d a c t i o n s

withholding of disclosure of information from the Defence is permissible so as to preserve the fundamental rights of another individual; not every incident of non-disclosure automatically results in an unfair trial.30 Second, any exception to the general rule of disclosure must be assessed by a Chamber on a case-by-case basis, taking into account all relevant factors and balancing the various interests at stake.31 This includes an assessment of “the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why [. . .] the measure would not be prejudicial to or inconsistent with the rights of the Accused and a fair and impartial trial”.32 In addition, “[t]he relevance of the information to the Defence is another important consideration”.33 Third, the Appeals Chamber has held that “the alleged danger must involve an objectively justifiable risk to the safety of the person concerned [and] the risk must arise from disclosing the particular information to the Defence, as opposed to disclosing the information to the public at large”.34 If a Chamber concludes that it has been demonstrated that the risk in fact exists, it should proceed to assess whether the proposed redactions could overcome or reduce the risk. If not, the redactions should not be granted.35 Fourth, because redactions may result in restrictions of the suspect’s rights, a Chamber should consider the following factors to ensure that any such restrictions are strictly limited: a Chamber should (a) consider whether an alternative measure short of redaction is available and feasible in the circumstances; (b) bear in mind the stage of the proceedings at 30

31

32

33

34

35

Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 46–47. Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 36; Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/ 04-01/07-475 OA, 13 May 2008, para. 66. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 67. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 71. Ibid., para. 72.

co mmentary

211

which the non-disclosure is sought; (c) assess the relevance of the information in question to the Defence – if the information may be of assistance to the case of the suspect or may affect the credibility of the case of the Prosecutor, the Chamber will need to take particular care when balancing the interests at stake; and (d) assess whether nondisclosure would result in the proceedings, viewed as a whole, to be unfair to the suspect.36 Fifth, given that the crimes prosecuted before the Court affect great numbers of persons, including whole communities, the unfortunate reality is that not only witnesses, victims and their families, but an indeterminate number of persons “may be exposed to risk through the activities of the Court”.37 As a result, the Appeals Chamber held that “Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words ‘persons at risk on account of the activities of the Court’.”38 The Appeals Chamber thereby extended the scope of protection under rule 81(4) by interpreting the provision in accordance with the Court’s overall duty of protection under article 68 and the Prosecutor’s power of protection under article 54(3)(f). Sixth, the Appeals Chamber implicitly endorsed the practice of the PreTrial and Trial Chambers that redactions under rule 81(4) may not only be applied until the commencement of the trial, but may, as a protective measure under article 68(1), extend to the entire proceedings. However, “[e]ven if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the [. . .] Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure”.39

III Redactions to Protect Investigations: Rule 81(2) Rule 81(2) allows the Prosecution to apply to the Chamber for permission to withhold from the Defence information that is otherwise disclosable, if disclosure would prejudice further or on-going investigations. The Appeals Chamber has held that redactions under rule 81(2) are 36 38

39

Ibid. 37 Ibid., paras. 45, 54. Ibid., para. 1; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 33. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64.

212

dis cl osur e an d r eda ct ion s

applied similarly to redactions under rule 81(4). It found that a Chamber must rule on those redactions on a case-by-case basis,40 and that “[t]he same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, [to redactions under rule 81(2)]”.41 In addition, a Chamber must keep any decision on redaction under review and alter that decision should changed circumstances make that appropriate.42 The Appeals Chamber has held that both information that falls within the scope of rule 77 and potentially exculpatory information under article 67(2) may be redacted pursuant to rule 81(2).43 However, it also clarified that once a document is assessed to contain disclosable information, it must be disclosed in its entirety,44 subject to redactions.45 This means that redactions may need to be made to information that is in itself not potentially exculpatory or material to the preparation of the Defence. If that is the case, a Chamber will be more likely to authorise redactions. In addition, if a redacted document is disclosed, the Prosecution may still rely on the unredacted portions of the document as evidence in support of its case.46 The Appeals Chamber has held that redactions under rule 81(2) may apply to any type of information, “without excluding per se certain categories of information”.47 In practice, it endorsed redactions under rule 81(2) to the following types of information: (a) the identity and identifying information of potential Prosecution witnesses when the disclosure of such information could impact on their ability to cooperate further with the Prosecution;48 (b) the date, time and place of a witness interview;49 (c) the identity of Court personnel (Prosecution and VWU) 40

41

42 43

44

45

46 47

48

49

Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 52. Ibid., para. 59; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. Ibid., para. 64. Ibid., para. 57; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12. Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Non-disclosure, ICC-01/ 04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, paras. 45–46. Ibid., paras. 45–46 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, paras. 49, 62. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 91.

co mmen t ar y

213

present during such interview;50 and (d) “pending investigative matters” that relate to requests for assistance.51

IV Relationship between Article 54(3)(e) and Disclosure Obligations Under article 54(3)(e), the Prosecution may agree not to disclose, at any stage of the proceedings, documents or information that it obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents. The Appeals Chamber has endorsed the Prosecution’s power to receive information under these conditions.52 However, it stressed that “the use of article 54(3)(e) of the Statute must not lead to breaches of the obligations of the Prosecutor vis-à-vis the suspect or the accused person”.53 According to the Appeals Chamber: the reliance by the Prosecutor on article 54(3)(e) of the Statute may lead to tensions with his disclosure obligations under article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence: by accepting material on the condition of confidentiality, the Prosecutor potentially puts himself in a position where he either does not disclose material that he normally would have to disclose, or breaches a confidentiality agreement entered into with the provider of the material in question [. . .]. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.54

Where material was obtained on the condition of confidentiality, a Chamber will have to respect the confidentiality agreement concluded by the Prosecution and “cannot order the disclosure of the material to the defence without the prior consent of the information provider”.55 On the other hand, the Appeals Chamber has laid out a process aimed at resolving the tension between any confidentiality agreements and the Prosecution’s disclosure obligations. It held that: 50 51

52

53

Ibid. Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/063017 A5 A6, 11 April 2013, para. 12. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 1, 41–42. Ibid., para. 42. 54 Ibid., paras. 43–44. 55 Ibid., para. 48.

214

disclosure and redactions the Chamber will have to determine, in ex parte proceedings open only to the Prosecutor, whether the material would have had to be disclosed to the defence, had it not been obtained under article 54(3)(e) of the Statute. If the Chamber concludes that this is the case, the Prosecutor should seek the consent of the information provider, advising the provider of the ruling of the Chamber. If the provider of the material does not consent to the disclosure to the defence, the Chamber [. . .] will then have to determine whether and, if so, which counter-balancing measures can be taken to ensure that the rights of the accused are protected and that the trial is fair, in spite of the non-disclosure of the information.56

According to the Appeals Chamber, some or all of the following counter-balancing measures may be contemplated: the identification and disclosure of similar exculpatory material, providing the material in summarised form, stipulating the relevant facts, or amending or withdrawing the charges.57 If a Chamber is in no position to assess the availability of any such counter-balancing measures, or if they are not adequate to ensure the fairness of the proceedings, then it is appropriate for a Chamber to stay the proceedings.58

Jurisprudence I Right of the Accused to Disclosure and Inspection 1 General Principles Governing Disclosure “The overriding principle is that full disclosure should be made. It must always be borne in mind that the authorisation of non-disclosure of information is the exception to this general rule.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 70; Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[T]he tenor of the disclosure regime established by the Statute and the Rules of Procedure and Evidence is that the Prosecutor is ordinarily obliged to make full disclosure, save for where specific provision is made for restrictions on disclosure to be permitted.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 45. 56

Ibid.

57

Ibid., para. 44.

58

Ibid., paras. 95, 98.

jurisprudence

215

“[T]he Defence is entitled to full disclosure in relation to the case as a whole as known by the Prosecutor (subject to the statutory regime relating to restrictions on disclosure) [. . .].” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 55.

1.1 The Prosecution’s Obligation to Disclose is Not Contingent upon Disclosure by the Defence “[T]he Statute and the Rules of Procedure and Evidence not only emphasise the duty of the Prosecutor ordinarily to make full disclosure, but also indicate that the Prosecutor’s duty to disclose information to the Defence is not linked to any requirement that the Defence reveal defence(s) in advance.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 46. “[T]he Prosecutor’s ordinarily unfettered duty to disclose must necessarily be based, inter alia, on the Prosecutor’s understanding of the case as a whole, including what is known or anticipated about possible defence(s). The fact that the Prosecutor is required ‘to investigate incriminating and exonerating circumstances equally’, pursuant to article 54(1)(a) of the Statute, means that the Prosecutor will be aware, during the course of his investigations, of material that may be of assistance to the Defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 36. “[T]he lack of any correlation between the right to receive prosecution disclosure and any disclosure obligations of the Defence is evident in that the Prosecutor is duty-bound to provide full disclosure even if an accused elects to remain silent or does not raise a defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 50. “[T]he ordinary expectation as set out in the Statute and the Rules of Procedure and Evidence is that the Defence would be entitled to receive any additional material in the possession or control of the Prosecutor which a line of defence has revealed as exculpatory in nature, regardless of the stage at which the defence was raised.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 53. “[T]he Appeals Chamber is unable categorically to rule out the possibility that if a factual situation arises in which it could be demonstrated that the Defence had unjustifiably and unreasonably held back the revelation of

216

disclosure and redactions a line of defence or issue in circumstances that made it impossible for the Court to ensure the protection of the exculpatory witnesses, it may conceivably be possible for the accused to receive a fair trial notwithstanding the non-disclosure of certain limited material.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 54.

2 Pre-trial Disclosure Relating to Prosecution Witnesses: Rule 76 2.1 General Considerations “Rule 76 [. . .] pertains to the Prosecutor’s obligations to disclose evidence or other material which he has already collected. Rule 111 [. . .] pertains to how the Prosecutor should go about collecting evidence during an investigation, at which stage the Prosecutor normally does not know whether or not he will call questioned persons to testify at trial.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 22. “In interpreting the relevant rules [76 and 111], a distinction must be made between the statement of an individual and the form in which that statement is recorded.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 23. “[R]ule 76 requires the Prosecutor to disclose, prior to the trial, copies of statements of persons he or she intends to call to testify, irrespective of the form in which such statements are recorded. Disclosure serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 27; Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26. “[R]ule 76 requires the Prosecutor to disclose ‘copies of any prior statements’. The Appeals Chamber agrees with the Prosecutor and Messrs Banda and Jerbo that the ordinary meaning of the term ‘statement’ as used in rule 76 is broad and requires the Prosecutor to disclose any prior statements, irrespective of the form in which they are recorded [. . .]. However, there might be statements that are otherwise recorded or given [other than pursuant to rule 111] which would also be subject to disclosure. In particular, the audio- or video-record of the questioning of a person [. . .] and the transcript thereof are records of statements that are

j ur i s p r uden ce potentially subject to disclosure pursuant to rule 76 of the Rules of Procedure and Evidence where the Prosecutor intends to call the person to testify as a witness. By equating ‘statements’ under rule 76 with only those records of statements prepared pursuant to rule 111, the Trial Chamber effectively, and erroneously, limited the Prosecutor’s disclosure obligations, thereby potentially excluding from disclosure other records of statements such as audio- or video-records prepared pursuant to rule 112.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 23.

2.2 The Scope of a Witness Statement under Rule 76 “A system of disclosure, in which only the disclosure of statements made by witnesses when questioned about their knowledge of the case occurs pursuant to rule 76(1) of the Rules of Procedure and Evidence, is not prejudicial to an accused’s fair trial rights.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 1, 16, 38. “The Appeals Chamber considers that the only qualification to be derived from the plain wording of rule 76(1) of the Rules is that the statement must have come from a witness whom the Prosecutor intends to call to testify.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 18. “[T]he Appeals Chamber emphasises that, in order to examine a prosecution witness and prepare for that witness’s future testimony, the Defence needs to know primarily the scope of the proposed testimony. The Appeals Chamber notes that the scope of the proposed testimony reveals to the Defence the witness’s knowledge of the case and, in particular, of the facts usually alleged by the Prosecutor as incriminating the accused.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26. “[S]tatements provided by witnesses, which relate solely to matters other than facts and circumstances described in the charges, are more appropriately disclosed in accordance with rule 77 of the Rules or article 67(2) of the Statute if they meet the criteria set out in those provisions, which is also fully consistent with the accused’s rights guaranteed by the Statute.”

217

218

dis cl osur e an d r eda ct ion s Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 38. “[I]n order to adequately prepare for the examination of a prosecution witness, the Defence may also need to prepare questions relevant to the credibility and potential bias of the witness. Such questions need not be based on the witness’s knowledge of the case but may encompass other issues, including those relevant to the witness’s background [. . .]. [M]aterial that puts a witness’s credibility in doubt or serves to show potential bias is not derived from witness statements alone. This category of material is much broader. The Prosecutor is obliged to disclose such material pursuant to article 67(2) of the Statute if the Prosecutor believes that it may affect the credibility of Prosecution evidence, or rule 77 of the Rules if it is otherwise ‘material to the preparation of the defence’.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 27–28. “[T]he Appeals Chamber considers that the view that witness statements pursuant to rule 76(1) of the Rules are statements relevant to the witness’s knowledge of the case is also supported by the translation requirement contained in rule 76(3) of the Rules. Under this rule, the Prosecutor has the duty to make the statements of her witnesses ‘available in original and in a language which the accused fully understands and speaks’ [. . .]. [T]he requirement to make the disclosed material available in a language which the accused fully understands and speaks is not expressly stated with respect to disclosure under other provisions of the Statute and the Rules. Notably, no such requirement is expressly stipulated for the disclosure of objects which are material to the preparation of the defence (rule 77 of the Rules) and for the disclosure of evidence which may affect the credibility of prosecution evidence (article 67(2) of the Statute).” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 29–30 (emphasis added). “[T]he Appeals Chamber finds that rule 77 of the Rules is not inherently prejudicial, it cannot be argued that an interpretation of rule 76(1) that allegedly excludes some material from the scope of this rule and makes its disclosure dependent on compliance with the criterion set out in rule 77 is, on its own, prejudicial to the rights of the accused.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 37.

jurisprudence

3

Right to Disclosure of Exculpatory Material

“[T]he Prosecutor is bound to collect both incriminating and evidence exonerating the accused in investigating a case, as laid down in article 54(1)(a). The ambit of exculpatory evidence, as defined by the aforesaid provisions of article 67 of the Statute, is very wide.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 16. Diss. Op. “The last sentence of article 67(2) of the Statute provides that ‘[i]n case of doubt as to the application of [article 67(2) of the Statute], the Court shall decide’. This indicates that the final assessment as to whether material in the possession or control of the Prosecutor has to be disclosed under that provision will have to be carried out by the Trial Chamber and that therefore the Chamber should receive the material.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 46. “[W]hile exculpatory material must be disclosed pursuant to article 67(2) of the Statute, the Appeals Chamber does not accept that applications to withhold potentially exculpatory material at the stage of the proceedings prior to the hearing to confirm the charges cannot, in principle, be made pursuant to rule 81(2) [. . .].” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57. “[T]he relevant jurisprudence of the European Court of Human Rights [. . .] demonstrates that the right to disclosure is not absolute, that the withholding of disclosure of information from the Defence is permissible so as to preserve the fundamental rights of another individual and that not every incident of non-disclosure automatically results in an unfair trial. It would be, in every case, for the Pre-Trial Chamber to assess whether the rights of the defendant to a fair hearing were prejudiced on the facts.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/ 04-01/06-1486 OA13, 21 October 2008, paras. 46–47. “In circumstances in which the redaction sought would involve withholding exculpatory information which was required to be disclosed, or would result in ‘a manifest inequality of arms, with little, if any prospect for fair proceedings’, the Pre-Trial Chamber would, no doubt, reject the application. However, this is a question of assessing the facts of an individual case rather than ruling out the possibility of redactions to

219

220

disclo sure and redactions protect people at risk being granted, in principle, in carefully defined circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62, see also para. 72(c) (on the importance of the relevance of the information to the balancing exercise); Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07476 OA2, 13 May 2008, para. 62. “The failure of the Prosecutor to bring forth and disclose evidence tending to exonerate the accused is not confined to the trial, but extends to the confirmation hearing too [. . .].” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 43. Diss. Op. “[K]nowledge of the existence of exonerating evidence not put before the Trial Chamber would cloud the proceedings with doubt, rendering them a priori inconclusive.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Diss. Op. “The use of article 54(3)(e) of the Statute by the Prosecutor must not lead to breaches of his obligations vis-à-vis the suspect or the accused person. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 2, 44.

4 Inspection of Information Material to the Preparation of the Defence: Rule 77 “[T]he Trial Chamber interpreted rule 77 of the Rules of Procedure and Evidence too narrowly because it excluded objects which, while not directly linked to exonerating or incriminating evidence, may otherwise be material to the preparation of the defence. The wording of rule 77 of the Rules of Procedure and Evidence does not suggest that the term ‘material to the preparation of the defence’ should be construed as narrowly as the Trial Chamber did. Rather, the term should be understood as referring to all objects that are relevant for the preparation of the defence.”

jurisprudence Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 77. “[T]he term ‘material to the preparation of the defence’ must be interpreted broadly.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 78, see also paras. 80–81; Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 10. “[T]he Appellant has sufficiently demonstrated that material relating to the general use of child soldiers in the DRC is material to the preparation of his defence [. . .] such material will be relevant because ‘[b]efore setting a defence line, it’s necessary to understand the situation, and it appeared to us that this information was useful to us and even necessary to us able to understand the situation in Ituri at that time’. In his Document in Support of the Appeal, the Appellant further specified that the requested material might be relevant, for example, to understand the phenomenon of the use of child soldiers and their demobilisation in the DRC. In addition to this [. . .] information relating to the general use of child soldiers might be relevant at the sentencing phase of the proceedings, if any, and that Counsel for the Defence will have to prepare herself for such a phase.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 82. “[T]he RFA is a request for assistance from the Prosecutor to the DRC authorities, the response to which was provided in the Letter. The Appeals Chamber further observes that the Letter relates to the determination of the age of D-0040 and D-0041, which is a key issue in dispute in the pending appeal against the Conviction Decision. Therefore, the Appeals Chamber considers that the RFA is a document that is material to the preparation of the defence and falls under rule 77 of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 11. “Rule 77 of the Rules of Procedure and Evidence has two stages. First, it must be determined whether the ‘books, documents, photographs and other tangible objects’ in question are ‘material to the preparation of the defence’. If they are, they must be disclosed to the defence ‘subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82’.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 1, 35.

221

222

d i s c l o s u r e a n d re d a c t i o n s “Any assessment of whether information is material to the preparation of the defence should be made on a prima facie basis.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 2, 42. “The Appeals Chamber emphasises that the disclosure process is essential in ensuring the fairness of the proceedings and that the rights of the defence are respected, in particular the principle of equality of arms. This must remain paramount in decisions that are taken in relation to disclosure. The Prosecutor has an obligation to disclose information that is material to the preparation of the defence pursuant to rule 77 independently of any request from the Defence. In this regard, the Appeals Chamber notes the difference in wording between rule 77 and its equivalent at the ICTY and the [ICTR], in which specific provision is included for a request by the defence to be made. No such requirement appears in rule 77.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 34. “[T]he right to disclosure is not unlimited and which objects are ‘material to the preparation of the defence’ will depend upon the specific circumstances of the case. The Chamber may need to be provided with further information by the Prosecutor about the documents being sought, either in the form of lists of documents or the documents themselves, as well as an accompanying explanation, in order to be placed in the best position to take an informed decision with regard to whether the documents in respect of which disclosure was requested are material to the preparation of the defence.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 39. “Where appropriate, in deciding whether the information sought continues to be material to the preparation of the defence, the Chamber may also take into account whether the Defence has already received relevant documents from the Prosecutor. However, caution should be exercised in taking such an approach as it must not undermine the paramount right of the Defence to disclosure of all information material to the preparation of the defence.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 40.

jurisprudence “The Appeals Chamber notes that the main difference between disclosure in item 1) above (witness statements) and disclosure in items 3) and 4) above (rule 77 of the Rules and article 67(2) of the Statute), is the nature of the Prosecutor’s assessment of material subject to disclosure. Article 67(2) of the Statute requires disclosure of evidence which the Prosecutor believes meets the criteria set out therein. Similarly, rule 77 of the Rules leaves to the Prosecutor the assessment of whether objects are ‘material to the preparation of the defence’ and their inspection should thus be permitted.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 23.

5

Disclosure in Relation to Applications for Interim Release

“There is no express regime for disclosure in relation to applications for interim release in the legal texts of the [ICC]. What is provided for is the following: when arrested, a person has a right to receive a copy of the warrant of arrest. This is clear from rule 117(1) of the Rules. Article 58(3) of the Statute set out what the warrant of arrest shall contain, including, ‘(b) [a] specific reference to the crimes within the jurisdiction of the Court for which the person’s arrest is sought; and (c) a concise statement of the facts which are alleged to constitute those crimes’. Article 60(1) of the Statute provides that ‘[u]pon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her [. . .] right to apply for interim release pending trial’.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 26. “[T]he factual basis for the arrest warrants against [the Appellant] and for the [Decision of 10 June 2008] is provided in that decision which is public and, as such, accessible to the defence.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 25. “Based on the jurisprudence of the ECtHR, the Appeals Chamber considers that, in order to ensure both equality of arms and an adversarial procedure, the Defence must, to the largest extent possible, be granted access to documents that are essential in order effectively to challenge the lawfulness of detention, bearing in mind the circumstances of the case. Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. This would allow the person to challenge his or her detention as soon as he or she is in detention at the Court

223

224

disclosure and redactio ns and in circumstances in which he or she is appraised of the material on which the arrest warrant was based.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 32. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 60. “[T]he ECtHR illustrates that the right to disclosure in these circumstances is not unqualified. The nature and timing of such disclosure must take into account the context in which the Court operates. The right to disclosure in these circumstances must be assessed by reference to the need, inter alia, to ensure that victims and witnesses are appropriately protected [. . .]. The Court has jurisdiction over genocide, crimes against humanity and war crimes; the gravity of the crimes is such that the protection of victims and witnesses is a paramount consideration. An additional consideration is the need to safeguard on-going investigations.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “[T]he Appeals Chamber considers that the Prosecutor [. . .] when submitting an application for a warrant of arrest under article 58 of the Statute [. . .] should, as soon as possible, and preferably at that time, alert the Pre-Trial Chamber as to any redactions that he considers might be necessary.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “[T]he Pre-Trial Chamber should ensure that in the disclosure process priority is given to those documents that are essential for the person to receive in order effectively to challenge the lawfulness of detention.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “In the instant case [. . .] the Appellant had not received all the material relied upon by the Pre-Trial Chamber nor had he received all of the material that was ‘essential in order effectively to challenge the lawfulness of detention’. However, as stated above, the right to the immediate disclosure of such material is not absolute. The Appeals Chamber considers it appropriate to consider the circumstances of the case.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 34. “[T]he Pre-Trial Chamber had to decide to either postpone the decision on interim release until all evidence had been disclosed to the Appellant or to

jurisprudence

225

render a decision on the application in the absence of full disclosure [. . .]. [A] person may, despite the fact that he or she has not yet had full disclosure, wish to raise arguments in relation to interim release in order to have a speedy decision rendered by a Chamber. As soon as the Appellant had received full disclosure, he had the right to apply for interim release again which would have allowed him to make full arguments at that time.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 39. “[T]he right to contest one’s detention requires [. . .] disclosure of every piece of evidence relied upon by the authority seeking detention. The requirement is that everything that would enable the person to effectively challenge the lawfulness of his detention must be disclosed. This has been repeatedly affirmed by the European Court of Human Rights.” Prosecutor v. Bemba, Dissenting Opinion of Judge Pikis in the Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 29. Diss. Op. “The case law of the European Court of Human Rights has acknowledged that disclosure of evidence may be withheld where it exposes the investigation to foreseeable dangers, provided such evidence is inconsequential for the build-up of the premises for detention. But no exception is admitted to the requirement to disclose evidence relied upon in justification of detention.” Prosecutor v. Bemba, Dissenting Opinion of Judge Pikis in the Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 30. Diss. Op.

II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) 1 General Principles “[N]on-disclosure of the identity of the witnesses on whom the Prosecutor intends to rely at the confirmation hearing is an exception.” The general principle is that names of witnesses and prior statements should be disclosed.59 Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 34. 59

The Appeals Chamber reasoned this after referring to the first sentence of rule 76(1) as well as stating that “Rule 76 is part of Chapter 4 of the Rules [. . .] which indicates that rule 76 is applicable to the confirmation hearing as well”, and finding that article 61(3)(b) further supports this reading: Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 34.

226

disclosure and redactio ns “That exceptions to the principle that the names of witnesses and prior witness statements are to be disclosed may occur follows from rule 76(4) of the Rules of Procedure and Evidence [. . .].” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 35. “In circumstances in which the redaction sought would involve withholding exculpatory information which was required to be disclosed, or would result in ‘a manifest inequality of arms, with little, if any prospect for fair proceedings’, the Pre-Trial Chamber would, no doubt, reject the application. However, this is a question of assessing the facts of an individual case rather than ruling out the possibility of redactions to protect people at risk being granted, in principle, in carefully defined circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62, see also para. 72(c) (on the importance of the relevance of the information to the balancing exercise). “More generally, if non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised. In addition, adequate procedural safeguards should be in place to ensure that the interests of the Defence are protected so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 63. “Even if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the Pre-Trial Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure. The overriding principle is that full disclosure should be made. It must always be borne in mind that the authorisation of non-disclosure of information is the exception to this general rule.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64. “[T]he Appeals Chamber reminds the Registrar that redactions to victims’ applications for participation transmitted to the parties should be limited to those that are justified for the purpose of protection and strictly necessary.” Prosecutor v. Lubanga, Decision on the 32 Applications by Victims for Participation, ICC-01/04-01/06-3045-Red2, A4 A5 A6, 27 August 2013, para. 22.

jurisprudence

1.1 Evaluation on a Case-by-Case Basis “In evaluating an application for non-disclosure of the identity of witnesses or of portions of witness statements, a Pre-Trial Chamber must take into account all relevant factors, and will carefully appraise the Prosecutor’s request on a case-by-case basis. The decision by the Pre-Trial Chamber that disclosure of witness identity and of prior statements is the rule and nondisclosure the exception does not exclude such appraisal on a case-by-case basis. The reference in the decision by the Pre-Trial Chamber to the exceptionality of non-disclosure of the names of witnesses or of portions of prior witness statements should not be understood as implying that, necessarily, only a very small number of witness identities will not be disclosed to the person in respect of whom a confirmation hearing is held; whether a request for non-disclosure will be successful will depend on the Pre-Trial Chamber’s case-by-case evaluation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 36. “[T]he Pre-Trial Chamber was also correct in deciding that the nondisclosure of the identity of witnesses or of portions of prior witness statements would be authorised by the Chamber pursuant to rule 81(4) of the Rules of Procedure and Evidence only after an evaluation of the infeasibility or insufficiency of less restrictive protective measures.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 37. “These provisions [article 61(3) and rule 121(2)(b) of the Rules], however, do not vest a Pre-Trial Chamber with the competence to pre-determine the merits of future applications for authorisation of non-disclosure pursuant to rule 81(4) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 39. “[W]hile the non-disclosure of information for the protection of persons at risk is permissible in principle pursuant to rule 81(4) of the Rules, whether any such non-disclosure should be authorised on the facts of an individual case will require a careful assessment by the Pre-Trial Chamber on a case-by-case basis, balancing the various interests at stake.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 66, this includes identities of potential prosecution witnesses (Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, paras. 58, 65) and alleged victims of sexual offences unrelated to the charges (Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the

227

228

disclosure and redacti ons Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, paras. 34–35).

2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(4) “[T]he Pre-Trial Chamber must carefully assess the type of information in respect of which authorisation for non-disclosure is sought. It is imperative that the Pre-Trial Chamber, which will have an overall view of the proceedings as a whole, take fully into account the individual facts and circumstances of each case and each specific request for any individual redaction before it.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 69. “[T]hree of the most important considerations for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81(4) of the Rules of Procedure and Evidence: the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (article 68(1), last sentence, of the Statute).” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 67. “The relevance of the information to the Defence is another important consideration [. . .]. [T]he relevance of any individual potential prosecution witness to the Defence would need to be carefully assessed.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. “In the circumstances under consideration in the present case, nondisclosure pursuant to rule 81(4) may only be authorised if, first of all, disclosure of the information concerned would pose a danger to the particular person. In such circumstances, the Pre-Trial Chamber should consider the following factors in relation to the alleged risk of danger: a) the alleged danger must involve an objectively justifiable risk to the safety of the person concerned; b) the risk must arise from disclosing the particular information to the Defence, as opposed to disclosing the information to the public at large. The Chamber should consider, inter alia, whether the danger could be overcome by ruling that the information

jurisprudence

229

should be kept confidential between the parties. In making this assessment, the circumstances of the individual suspect should be considered, including, inter alia, whether there are factors indicating that he or she may pass on the information to others or otherwise put an individual at risk by his or her actions.”60 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal Against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 71. “If the Pre-Trial Chamber concludes that it has been demonstrated that the risk addressed above in fact exists, it should proceed to assess whether the proposed redactions could overcome or reduce the risk. If not, the redactions should not be granted. If so, the following factors should be considered in determining whether the rights of the suspect will be restricted only as far as strictly necessary: a) the Pre-Trial Chamber should consider whether an alternative measure short of redaction is available and feasible in the circumstances. If a less restrictive protective measure is sufficient and feasible, that measure should be chosen; b) the Pre-Trial Chamber should bear in mind that the non-disclosure is sought at the stage of the proceedings in relation to the hearing to confirm the charges [. . .]; c) the Pre-Trial Chamber should carefully assess the relevance of the information in question to the Defence. If, having carried out that assessment, the Chamber concludes that the information concerned is not relevant to the Defence, that is likely to be a significant factor in determining whether the interests of the person potentially placed at risk outweigh those of the Defence. If, on the other hand, the information may be of assistance to the case of the suspect or may affect the credibility of the case of the Prosecutor, the Pre-Trial Chamber will need to take particular care when balancing the interests at stake; d) if non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 72. “The following additional factors should be taken into account: a) in balancing the various interests at stake, the Pre-Trial Chamber must make sure that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of 60

Given that this “specific guidance” was provided “in the absence of any specific factual application before it, what is said below is only by way of guidance which must be understood to be capable of being interpreted flexibly depending upon the specific circumstances of the particular application”: Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68.

230

disclosure and redactio n s adversarial proceedings and equality of arms; b) prior to ruling on the application for redactions, the Pre-Trial Chamber should give the Defence the greatest possible opportunity to make submissions on the issues involved, necessarily without revealing to the Defence the information which the Prosecutor alleges should be protected; c) even if it is determined that certain information should not be disclosed, such determination should be kept under review by the Pre-Trial Chamber. It may be necessary to disclose the withheld information subsequently, should circumstances change. The Prosecutor should assist the Pre-Trial Chamber in this regard by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 73. The guidance above “must be interpreted flexibly to allow for a factual determination in relation to each specific application. It must also be seen in light of the Appeals Chamber determining this appeal in the context of non-disclosure that may be made prior to the confirmation hearing, as opposed to prior to trial”. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59.

3 Scope of Protection under Rule 81(4) “Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words ‘persons at risk on account of the activities of the Court’ so as to reflect the intention of the States that adopted the Rome Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect that category of persons.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 1; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/ 07-521 OA5, 27 May 2008, para. 33. “Given the severity and the widespread nature of the crimes over which the Court has jurisdiction, affecting large numbers of persons including whole communities, the unfortunate yet unavoidable reality is that any number of persons may be exposed to risk through the activities of the Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 45.

jurisprudence

231

“[T]he specific provisions of the Statute and the Rules for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. “[P]ersons other than witnesses, victims and members of their families, may, at this stage of the proceedings, be protected through the nondisclosure of their identities by analogy with other provisions of the Statute and the Rules. The aim is to secure protection of individuals at risk. Thus, by necessary implication, rule 81(4) should be read to include the words ‘persons at risk on account of the activities of the Court’ so as to reflect the intention of the States that adopted the Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect people at risk.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 56. “Moreover, this interpretation is in adherence with the requirement in article 21(3) of the Statute to apply and interpret the provisions of the Statute and the Rules consistently with internationally recognized human rights [. . .]. The Appeals Chamber considers that the circumstances under consideration in the present appeal may give rise to a situation in which the withholding of certain information from the Defence may be necessary so as to preserve the fundamental rights of an individual put at risk by the activities of the International Criminal Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 57–58. “The Prosecutor has the [. . .] express power either to take necessary measures or to request that necessary measures be taken to ensure the protection of individuals who are at risk. Furthermore, article 54(3)(f) is not the only provision of the Statute and the Rules that provides for the protection of any person who might be put at risk on account of the activities of the Court.”61 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 47. 61

See paras. 44–53, which refer to the other provisions including article 43(6), article 68(4), rules 16–18, particularly rule 17(2), rule 59(2) and rule 87(1).

232

d i s c l o s u r e a n d re d a c t i o n s

4 Summaries as a Protective Measure: Article 68(5)62 “The use of summary evidence pursuant to article 68(5) of the Statute [in contrast to article 61(5)], on the other hand, is primarily a witness protection measure.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 44. “[T]he Pre-Trial Chamber, seemingly acting on its own motion as provided for in rule 81(4) of the Rules of Procedure and Evidence, envisaged that the Prosecutor would present the summaries at the confirmation hearing as evidence and that the Prosecutor would not disclose to the Defence prior to the confirmation hearing the underlying witness statements or documents but only the summaries thereof, which would not divulge the identities of the witnesses. This approach by the Pre-Trial Chamber is, in principle, permissible under the Statute and the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, paras. 45–46. “The use of summaries [. . .] may affect the ability of the suspect pursuant to article 61(6)(b) of the Statute to challenge the evidence presented by the Prosecutor at the confirmation hearing in two respects: first, the Prosecutor is authorised to rely on witnesses whose identities are unknown to the Defence (anonymous witnesses); secondly, the ability of the Defence to evaluate the correctness of the summaries is restricted because the Defence does not receive prior to the confirmation hearing the witness statements and other documents that form the basis of the summaries. However, this does not mean that the use of such summaries at the confirmation hearing is necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 50. “[W]here the Pre-Trial Chamber takes sufficient steps to ensure that summaries of evidence in the circumstances described above are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial, the use of such summaries is

62

See also the digested cases under Chapter E, Charges and Confirmation Hearing, section III(3), Use of Summaries at the Confirmation Hearing under Article 61(5), above.

j u r i s p r ud e n c e permissible. This will have to be determined on a case-by-case basis, also bearing in mind the character of the confirmation hearing.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 51.

III Redactions to Protect Investigations: Rule 81(2) 1 General Principles “The Appeals Chamber observes that rule 81(2) provides generally for the non-disclosure of ‘information’, without excluding per se certain categories of information from non-disclosure.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93. “The Appeals Chamber instead concludes that the correct approach in such circumstances is for the Pre-Trial Chamber to rule on a case-by-case basis, pursuant to rule 81(2), where the balance of interests lies on the facts of a specific application for non-disclosure.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 52. “[P]ursuant to that rule [rule 81(2)], it will be for the Prosecutor seeking redactions to establish that such redactions are warranted and, in particular, that disclosure of the information for which redactions are sought ‘may prejudice further or on-going investigations’.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 97; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “The same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, in the current case, which can be summarised briefly as a thorough consideration of the danger that the disclosure of the information may cause; the necessity of the non-disclosure, including whether it is the least intrusive measure necessary to avoid prejudice to the investigations of the Prosecutor; and the fact that any measures taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Non-

233

234

d i s c l o s u r e a n d re d a c t i o n s disclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[I]n principle, rule 81(2) applies to information ‘which must be disclosed in accordance with the Statute’. While exculpatory material must be disclosed pursuant to article 67(2) of the Statute, the Appeals Chamber does not accept that applications to withhold potentially exculpatory material at the stage of the proceedings prior to the hearing to confirm the charges cannot, in principle, be made pursuant to rule 81(2) on the basis of the plain reading of the terms of that provision quoted above.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57. “[R]ule 81(2), which deals specifically with applications for nondisclosure in circumstances where disclosure may prejudice further or ongoing investigations, provides expressly for ex parte applications to be made. Furthermore, the Appeals Chamber notes that rule 87 applies equally to requests for protective measures by victims and witnesses which, pursuant to that rule, can also only be made on an inter partes basis. However, in relation to applications for non-disclosure of the identity of victims and witnesses prior to the commencement of the trial, ex parte applications can be made pursuant to rule 81(4).” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 54. “[I]f non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised. In addition, adequate procedural safeguards should be in place to ensure that the interests of the Defence are protected so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 63. “Even if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the Pre-Trial Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64. “[O]nce it is established that a document is material to the preparation of the defence, pursuant to rule 77 of the Rules of Procedure and Evidence, the disclosure obligation extends to the entire document and not only to the ‘relevant’ portions of information contained within such a document.”

j u r i s p r ud e n c e Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12.

2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(2) “The same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, in the current case, which can be summarised briefly as a thorough consideration of the danger that the disclosure of the information may cause; the necessity of the non-disclosure, including whether it is the least intrusive measure necessary to avoid prejudice to the investigations of the Prosecutor; and the fact that any measures taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59. “In this context, for redactions to be granted, the Prosecutor will have to establish that the potential prejudice to investigations is objectively justifiable, would result from disclosure to the Defence (as opposed to the general public) and could be overcome or reduced by redactions. Dangers that cannot be overcome by redactions because they are inherent in the situation itself cannot, as such, provide a justification for redactions.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 98; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[T]he Pre-Trial Chamber would need to consider whether there was an objectively justifiable risk of prejudice to the investigations and whether any such risk would arise from disclosing the particular information to the Defence. In circumstances in which an alleged fear ‘is completely hypothetical’ or where there is no factual basis to conclude that any risk arises out of disclosure to the Defence of the identifying information of potential prosecution witnesses, the Pre-Trial Chamber would not, without more, authorise the redaction sought.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 60. “Once it has been established that disclosure of the information to the Defence may prejudice on-going or further investigations and that this risk could be overcome by authorising redactions, the Prosecutor will

235

236

d i s c l o s u r e a n d re d a c t i o n s have to establish that the redactions restrict the rights of the suspect only as far as strictly necessary.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 99. “[A] thorough assessment will need to be made by the Pre-Trial Chamber of the potential relevance of the information to the Defence on a case-bycase basis. If the information is relevant or potentially exculpatory, the balancing exercise performed by the Pre-Trial Chamber between the interests at stake will require particular care.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57, see also para. 62 (“the relevance of the information to the Defence is another important consideration”). “[W]hether other means are available to the Prosecutor to safeguard the investigations also needs to be examined by the Pre-Trial Chamber on a case-by-case basis.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 61.

3 Specific Categories of Information which can be Protected under Rule 81(2) 3.1 Protection of “Potential Prosecution Witnesses” “The Appeals Chamber accepts that further or on-going investigations may be prejudiced if potential prosecution witnesses are interfered with in a manner that could lead to them being unable to cooperate further with the Prosecutor. As such, if it can be demonstrated by the Prosecutor that the disclosure of the identities and identifying information of such individuals to the Defence could lead to the intimidation of or interference with such individuals, further or on-going investigations could be prejudiced. In such a situation, the Pre-Trial Chamber would need to rule, pursuant to rule 81(2), whether the specific information had to be disclosed to the Defence in all the circumstances of the case.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 49. “[T]he Defence is entitled to contact persons who the Prosecutor either has interviewed or is about to interview prior to their becoming prosecution witnesses and recognises that such persons may have information which is potentially relevant to the Defence. In such circumstances, the assessment carried out by the Pre-Trial Chamber in deciding whether or

jurisprudence

237

not to authorise any particular redaction will necessarily take this factor into account.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62.

3.2 Protection of the Identities of OTP and VWU Staff: Rule 111(1) “The Appeals Chamber notes that it is mandatory to record the date, the time and the place of the statement, as well as the persons present – such information shall be contained in any record of a formal statement that has been made. However, the Appeals Chamber considers that such information can be withheld from the Defence in appropriate circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 91. “The Appeals Chamber therefore concludes that it will have to be determined on a case-by-case basis whether the non-disclosure of information that is required to be recorded pursuant to rule 111(1) may be authorised by a Chamber. This will be determined in light of the conditions stipulated by rule 81(2) and/or (4) of the Rules.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93.

3.3 Protection of Pending Investigative Matters “[A]ccording to the Prosecutor, parts of the RFA relate to pending investigative matters that are unrelated to the Letter, and that those parts should therefore be redacted. The Appeals Chamber recalls that, pursuant to rule 81(2) of the Rules of Procedure and Evidence, the Prosecutor may apply for the non-disclosure of material if such disclosure may prejudice further or on-going investigations; therefore, in the present case, the Appeals Chamber treats the Prosecutor’s submissions with respect to redactions as an application under rule 81(2) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 12.

IV Reliance upon Redacted Documents or Summaries “Rule 81(2) of the Rules of Procedure and Evidence ‘does not dictate [. . .] that redactions and/or disclosure must be determined inflexibly by the

238

d i s c l o s u r e a n d re d a c t i o n s unit of the entirety of a “statement” or “document”, such that the statement or document must either be disclosed in its entirety or not considered at the confirmation hearing at all.’ As a consequence, if only parts of a witness statement or document are not disclosed to the Defence prior to the confirmation hearing, the Prosecutor, in principle, may rely on those parts that have been disclosed at the confirmation hearing. To what extent redactions may be authorised or maintained if the Prosecutor seeks to introduce information that is disclosed to the Defence only in part will need to be determined upon the facts of the individual case, taking into account the interests of the Defence and the need for a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, paras. 45–46. “As the threshold for the confirmation of the charges is lower than for a conviction, the Prosecutor may be able to convince the Pre-Trial Chamber that the threshold for the confirmation of the charges has been reached even if the reliability of the witnesses and other evidence was not fully tested.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 47. “[R]ule 81(5) does not address the introduction into evidence of summaries at the confirmation hearing pursuant to articles 68(5) and 61(5) of the Statute; the provision regulates under what conditions the material and information on the basis of which the summaries were compiled may subsequently be introduced into evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 48. “If non-disclosure of any part or aspect of the evidence prejudices the rights of the accused, it is not permissible. The prohibition of nondisclosure of evidence, the withholding of which is prejudicial to the rights of the accused, is not subject to any balancing exercise. Evidence material for the making and preparation of one’s defence must necessarily be disclosed. It cannot be withheld for any reason. And that extends to the identity of a witness too. The provisions at the end part of article 68(5) of the Statute leave no room for exceptions.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, para. 11. Sep. Op.

jurisprudence

239

“Rule 81(2) of the Rules of Procedure and Evidence envisages the disclosure or non-disclosure of a compact piece of evidence or information which is the subject-matter of the rule. A piece of evidence like a witness statement or information is a unified entity that cannot be pierced. It cannot be fragmented because it entails alteration of or detraction from its content [. . .]. There is no halfway house allowing the disclosure of parts of the evidence or information through a process of redaction of its content.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, paras. 15–16. Sep. Op.

V Protection of Confidential Information Gathered under Article 54(3)(e) 1 General Scope and Purpose of Article 54(3)(e) “The Prosecutor may only rely on article 54(3)(e) of the Statute for a specific purpose, namely in order to generate new evidence.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 1, 41. “[A]rticle 54(3)(e) of the Statute [. . .] is separately regulated by rule 82 and concerns information obtained on the condition of confidentiality and ‘solely for the purpose of generating new evidence’ [. . .]. [T]he Prosecutor may not agree to disclose material obtained under article 54(3)(e) of the Statute for the purpose of generating new evidence unless the provider of the information consents.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 56. “The Appeals Chamber acknowledges [. . .] the importance of article 54(3) (e) of the Statute, in particular in the early stages of an investigation. Undoubtedly, article 54(3)(e) of the Statute may be an important tool for the Prosecutor in the conduct of his investigations, which often will take place in challenging circumstances. The Appeals Chamber accepts that the Prosecutor, when receiving material on the condition of confidentiality, may not be able to predict with certainty how this material can be used.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 42. “[T]he references of the Trial Chamber to the ‘highly restricted circumstances’ in which recourse to article 54(3)(e) of the Statute may be had [. . .] and to the exceptional character of the provision was not meant to

240

d isclos ure and r edactions limit the number of documents that could be obtained on the condition of confidentiality, or otherwise to restrict inappropriately the use of the provision. Rather, the Trial Chamber recalled that the purpose for which material could be collected on the condition of confidentiality was limited to the generation of new evidence and that the provision must be applied in light of the other obligations of the Prosecutor.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 55. “Article 54(3)(e) of the Statute does not in terms prescribe either the nature and content or the character of documents or information that the Prosecutor may receive in confidence. The only limitation is that the documents and the information received should be collected solely for the purpose of generating new evidence. The Prosecutor cannot receive such material for any other purpose [. . .]. If a document provided to the Prosecutor constitutes evidence in itself, the duty of the Prosecutor is to gather evidence corresponding to its content. There is no express or implicit limitation of the power of the Prosecutor to gather evidence from persons mentioned or identified in oral or documentary material, or the suppliers or authors of such documents. What the confidentiality agreement prohibits the Prosecutor from doing is to disclose the content of the documents themselves and the information contained therein.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 39. Diss. Op.

2 Relationship between Article 54(3)(e) and Disclosure Obligations “[T]he use of article 54(3)(e) of the Statute must not lead to breaches of the obligations of the Prosecutor vis-à-vis the suspect or the accused person.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 42. “[T]he reliance by the Prosecutor on article 54(3)(e) of the Statute may lead to tensions with his disclosure obligations under article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence: by accepting material on the condition of confidentiality, the Prosecutor potentially puts himself in a position where he either does not disclose material that he normally would have to disclose, or breaches a confidentiality agreement entered into with the provider of the material in question [. . .]. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential

jurisprudence tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 43–44. “The Appeals Chamber is particularly concerned that when accepting large amounts of material from the United Nations, the relevance of which for future cases he could not appreciate at that time, the Prosecutor agreed that he would not disclose the material even to the Chambers of the Court without the consent of the information providers. By doing so, the Prosecutor effectively prevented the Chambers from assessing whether a fair trial could be held in spite of the non-disclosure to the Defence of certain documents, a role that the Chamber has to fulfil pursuant to the last sentence of article 67(2) of the Statute.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 45. “While article 18(3) [of the ICC–UN Relationship Agreement] provides that the Prosecutor may agree that material may not be disclosed to other organs of the Court, including to the Chambers, this does not mean that reliance by the Prosecutor on this provision would be appropriate in all circumstances [. . .]. Whenever material is offered to the Prosecutor on the condition of confidentiality, he will have to take into account the specific circumstances, including the expected content and nature of the documents, and its potential relevance to the Defence. On that basis he will have to determine under what exact conditions he may accept the material in question, bearing in mind his obligations under the Statute, and in particular under its article 67(2).” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 51.

3 Resolving the Tension between Confidentiality under Article 54(3)(e) and Disclosure under Article 67(2) 3.1 Review of the Material by the Trial Chamber Ex Parte “In situations [. . .] where the material in question was obtained on the condition of confidentiality, the Trial Chamber (as well as any other Chamber of this Court, including this Appeals Chamber) will have to respect the confidentiality agreement concluded by the Prosecutor under article 54(3)(e) of the Statute and cannot order the disclosure of the material to the Defence without the prior consent of the information provider.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 48.

241

242

disclosure and redactio ns “[T]he Chamber will have to determine, in ex parte proceedings open only to the Prosecutor, whether the material would have had to be disclosed to the Defence, had it not been obtained under article 54(3)(e) of the Statute. If the Chamber concludes that this is the case, the Prosecutor should seek the consent of the information provider, advising the provider of the ruling of the Chamber. If the provider of the material does not consent to the disclosure to the Defence, the Chamber, while prohibited from ordering the disclosure of the material to the Defence, will then have to determine whether and, if so, which counter-balancing measures can be taken to ensure that the rights of the accused are protected and that the trial is fair, in spite of the non-disclosure of the information.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 48.

3.2

Potential Means Other than Disclosure of the Confidential Information “There might be circumstances in which this tension can be resolved by reverting to some or all of the measures referred to by the Prosecutor in his Document in Support of the Appeal [i.e., the identification of new, similar exculpatory material, providing the material in summarised form, stipulating the relevant facts, or amending or withdrawing the charges], in particular if only small numbers of documents are concerned.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 44. “While the Appeals Chamber cannot exclude that the provision of alternative evidence may, in appropriate circumstances, be one way of ensuring fairness in spite of the non-disclosure of material obtained on the condition of confidentiality under article 54(3)(e) of the Statute, this would require an assessment by a Chamber of the adequacy of the alternative evidence proposed by the Prosecutor, which was not possible in the present case.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 95. “Prior to staying the proceedings, the Trial Chamber had explored several alternatives, including by ordering the submission of summaries of the documents on 3 April 2008 and by giving an undertaking that it would not disclose the material without the consent of the providers.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 98.

G The Protection of Victims and Witnesses

Commentary

reinhold gallmetzer The Prosecution is often investigating situations where conflicts are still on-going, and its investigations frequently involve persons who are in positions of power or continue to have supporters. As a result, the protection of persons cooperating with the Court from the risks arising from that cooperation is one of the Court’s major challenges. While most of the litigation concerning the protection of persons cooperating with the Court took place before Pre-Trial and Trial Chambers and was confidential or even ex parte, the Appeals Chamber had the opportunity to adjudicate a limited number of interlocutory appeals, during which it established the following principles: First, regarding the scope of protection, the Appeals Chamber emphasised that the specific provisions of the Statute and the Rules provide “for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court”.1 According to the Appeals Chamber, this is “indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court”.2 Second, protective measures taken by the Court “shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.3 This does not mean that the protection of persons cooperating with the Court is subordinate to the rights of the accused or that the safety of persons may be compromised to ensure the fairness 1

2 3

Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. Ibid. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50.

243

244

t he p r o t e c t i o n of v i c t i m s a nd wi t n e s s e s

of the proceedings. Rather, the two are paramount principles in the Statute and must be reconciled. The Appeals Chamber held that “while the safety and security of victims is a key responsibility of the Court, when protecting victims the Court must ensure that the rights of the Defence are respected and the trial remains fair”.4 Third, the duty to protect persons at risk as a result of the activities of the Court “is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole”.5 However, “[t]he Chamber has a general power to provide for the protection and privacy of victims and witnesses [. . .] pursuant to article 57(3)(c)”,6 and the ultimate authority with respect to protection lies with the Chamber: “[t]here is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection”.7 Fourth, while the Appeals Chamber affirmed “the authority of the Chambers over the Prosecutor in relation to matters of protection”,8 it affirmed that the Prosecution also “undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses”.9 It held that the Prosecution has a general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.10 4

5

6

7

8

9

10

Prosecutor v. Ngudjolo, Decision on the Participation of Anonymous Victims in the Appeal, ICC-01/04-02/12-140 OA, 23 September 2013, para. 16. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 101. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 95. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. Ibid., para. 51, referring to Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–98. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 59–60. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 80. Ibid., para. 98.

commentary

245

However, “the general mandate of the Prosecutor pursuant to article 68(1) of the Statute does not extend to the preventive relocation of witnesses”,11 which the Appeals Chamber defined as measures that involve the “removing of a witness from their normal surroundings and family ties and resettling that person in a new environment”.12 In any event, “one measure that the Prosecutor can take pursuant to article 68(1) of the Statute is that of making an application for relocation to the Registrar on behalf of a particular witness”.13 Further, “if instances do occur where the VWU has rejected an application for a witness to be relocated and the Prosecutor disagrees with that assessment, the matter should not be resolved by the unilateral action of the Prosecutor in ‘preventively relocating’ the witness, but by an application to the relevant Chamber for a ruling on the matter”.14 Fifth, the VWU is specifically set up “to provide protective measures to victims and witnesses”.15 Its role “in relation to protective measures was not limited to the provision of advice alone”.16 Rather, “[t]he function of the VWU is to provide, inter alia, appropriate protective measures and security arrangements, respecting the interests of the witness and acting impartially [. . .]. At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.”17 In fact, “cooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected [. . .]. The VWU has specific expertise in protection matters; and the Prosecutor is close to the relevant witnesses on the ground and in a position to see where a need for protection may arise.”18 Sixth, the Appeals Chamber acknowledged that in emergency situations, namely, under “exceptional circumstances in which a witness is facing a serious threat of imminent harm that requires an immediate response [. . .] there may need to be some degree of flexibility”.19 It has held that: in an urgent situation in relation to a person for whom relocation is sought, the Prosecutor may request the VWU to take a temporary emergency measure to protect the safety of a witness while the overall application for relocation is under consideration. The Appeals Chamber notes, in this context, the reference to a witness being placed temporarily in a “safe house” while the VWU completes its assessment of whether a witness 11 14 17

Ibid., para. 91. 12 Ibid., para. 104. 13 Ibid., para. 100. Ibid., para. 101, see also paras. 2, 93–94. 15 Ibid., para. 74. Ibid., para. 92. 18 Ibid., para. 101. 19 Ibid., para. 102.

16

Ibid., para. 90.

246

t he p r o t e c t i o n of v i c t i m s a nd wi t n e s s e s should be relocated [. . .]. The Appeals Chamber also cannot rule out that there may be situations in which temporary emergency measures may have to be taken by the Prosecutor in relation to a person for whom relocation is sought, in a situation of urgency.20

Jurisprudence I General Principles “[I]n the context of the present appeal [regarding preventive relocation], cooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected. This is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101. There are “other provisions of the Statute and the Rules [in addition to rule 81(4)] that are aimed at ensuring that persons are not put at risk through the activities of the Court and which are not limited to the protection of witnesses and victims and members of their families only”. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 43 (and setting out the other provisions in paras. 44–53). These provisions “are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court”. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. “This is not to minimise the importance of consultation, where appropriate, between the relevant organs of the Court as specified in the Court’s legal texts and prior jurisprudence or the importance of the Prosecutor alerting the Trial Chamber of information in his possession concerning matters of protection. However, once a judicial order is made, those subject to it are obliged to comply with its terms.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 53, citing Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008.

20

Ibid., paras. 102–103.

juri sprudence “[I]t was a failure by the Prosecutor to outline sufficiently why lesser alternative measures might not be available that led, at least in part, to the Pre-Trial Chamber failing to take factors into consideration which the Prosecutor now alleges are relevant. The Prosecutor should have been more specific in his submissions. The Prosecutor was in no way limited in relation to the submissions that he could make before the Pre-Trial Chamber, having been able to make several written filings and attend a number of ex parte hearings.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 108.

II The Distribution of Powers regarding Protection 1 The Prosecutor’s General Power regarding Protection “[T]he Prosecutor undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 80. “While the VWU is responsible for specific aspects of witness protection, the Prosecutor has a more general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98. “The obligation of the VWU to advise the Prosecutor on, and recommend the adoption of, appropriate protective measures makes sense. It is a reality that the Prosecutor is in the field and will need to take protective measures during the course of his investigations. Consultation, cooperation and advice are all part of ensuring that individuals are not put at risk during the course of the investigations and prosecutions of the Prosecutor [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98.

247

248

t he p r o t e c t i o n of vi c t i m s a n d wi tn e s s e s “However, [. . .] the general mandate of the Prosecutor pursuant to article 68(1) of the Statute does not extend to the preventive relocation of witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 99, see also para. 91. “Notwithstanding the above, the Prosecutor still has a significant role to play in relation to matters of relocation [. . .]. [O]ne measure that the Prosecutor can take pursuant to article 68(1) of the Statute is that of making an application for relocation to the Registrar on behalf of a particular witness.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 100. Articles 68(1), 42(1), 54(3)(f) and 68(4) “confer and acknowledge power on the Prosecutor to take protective measures for victims and witnesses, including, no doubt, relocation whenever their safety so requires”. Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Pikis & Nsereko in the Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 15–19. Diss. Op.

2 The Responsibilities of the Registry and the VWU “[A]rticle 43(6) is the sole provision of the Statute that deals with the setting up of a unit specifically to provide protective measures to victims and witnesses. The VWU is the responsibility of the Registrar and is situated within the Registry. There is no similar provision that establishes a unit for the provision of protective measures within the Office of the Prosecutor; nor is there therefore any provision which places the responsibility for such a unit under the authority of the Prosecutor.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 74. “The neutrality of the Registry was expressly raised as a reason for the VWU to be placed there rather than within the Office of the Prosecutor [. . .]. The role of the VWU in relation to protective measures was not limited to the provision of advice alone.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 90. “The function of the VWU is to provide, inter alia, appropriate protective measures and security arrangements, respecting the interests of the witness and acting impartially.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92.

jurisprudence

249

“At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92. “[C]ooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected. This is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole. The VWU has specific expertise in protection matters; and the Prosecutor is close to the relevant witnesses on the ground and in a position to see where a need for protection may arise. The Appeals Chamber emphasises the vital importance of cooperation on all matters of witness protection, including relocation.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101.

3 Particular Considerations regarding Relocation of Witnesses “It was [. . .] foreseen that experts in witness protection and security would be located within the VWU. Given the serious consequences of relocation, as referred to above, it is appropriate that questions of relocation be considered by those with appropriate expertise.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 77, see also para. 91. “The Prosecutor cannot unilaterally ‘preventively relocate’ witnesses either before the Registrar has decided whether a particular witness should be relocated or after the Registrar has decided that an individual witness should not be relocated.”21 Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 1, 99. “Assigning responsibility for relocation to the VWU ensures that all witnesses, whether ultimately appearing for the Prosecutor, the Defence or otherwise, are treated equally – and by those with relevant expertise – in matters that will significantly affect their interests. Those interests are to be specifically respected by the VWU, which will not be influenced, even unintentionally, when deciding upon whether relocation is appropriate to protect a particular witness, by the additional pressing interest of a party to the case of needing itself to secure the evidence of the witness 21

“It is important to stress at the outset that the question on appeal relates to the practice of ‘preventive relocation’ only and is not a general consideration of protective measures that can be taken in relation to witnesses”: see Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 65.

250

the p rotection of victims and w itnesses concerned [. . .]. At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92. “Given the need for, and expectation of, cooperation in relation to matters of relocation, disagreement between the VWU and the Office of the Prosecutor on relocation matters should be rare [. . .]. [I]f instances do occur where the VWU has rejected an application for a witness to be relocated and the Prosecutor disagrees with that assessment, the matter should not be resolved by the unilateral action of the Prosecutor in ‘preventively relocating’ the witness, but by an application to the relevant Chamber for a ruling on the matter.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101.

4 Protection in Emergency Situations “[T]here might be exceptional circumstances in which a witness is facing a serious threat of imminent harm that requires an immediate response. In such circumstances, the protection of the individual concerned is necessarily paramount. The Appeals Chamber approves generally the scheme set out by the Pre-Trial Chamber at paragraph 36 of the Impugned Decision in this regard, while recognising that, by the very nature of emergency situations, there may need to be some degree of flexibility in this regard.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 102. “[I]n an urgent situation in relation to a person for whom relocation is sought, the Prosecutor may request the VWU to take a temporary emergency measure to protect the safety of a witness while the overall application for relocation is under consideration. The Appeals Chamber notes, in this context, the reference to a witness being placed temporarily in a ‘safe house’ while the VWU completes its assessment of whether a witness should be relocated [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 102. “The Appeals Chamber also cannot rule out that there may be situations in which temporary emergency measures may have to be taken by the Prosecutor in relation to a person for whom relocation is sought, in a situation of urgency [. . .]. However [. . .] relocation, whether ‘preventive’ or otherwise, involves removing a witness from their normal surroundings and family ties and re-settling that person in a new environment. As such, the organisation of the relocation is likely to

jurisprudence involve assessment and planning. The Appeals Chamber therefore regards relocation by the Prosecutor as a protective measure that is unlikely to be necessary or appropriate to protect a witness from a situation that requires an immediate response.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 103–104.

5 The Powers and Role of the Chamber regarding Protection “The Chamber has a general power to provide for the protection and privacy of victims and witnesses where necessary, pursuant to article 57(3)(c) of the Statute. There is nothing to prevent the Prosecutor seeking relocation from the Chamber pursuant to that article, in particular when read with article 68(1) and (4) of the Statute, in circumstances in which the VWU has not agreed to relocate a particular witness.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 95. “The Appeals Chamber finds that any disagreement between the VWU and the Prosecutor about the relocation of a witness should ultimately be decided by the Chamber dealing with the case – and should not be resolved by the unilateral and unchecked action of the Prosecutor [. . .]. In other words, in circumstances where a party – in the present case, the Prosecutor – disagrees with the assessment of the VWU, it is always open to the Prosecutor to come before the Chamber to review that assessment.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–94, see also para. 2. “Decisions in relation to relocation must be taken expeditiously. There is the need for expedition on all sides – both by those bringing the application for relocation and by those deciding upon it – to ensure that effective witness protection can be put in place.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 96. The jurisprudence of the Appeals Chamber cited by the Prosecution “reaffirms the authority of the Chambers over the Prosecutor in relation to matters of protection”. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 51, referring to Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–98;

251

252

the protection of victims and w itnesses Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 59–60. “There is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection. Indeed, article 68(1) of the Statute specifically provides that, whatever measures the Prosecutor may take with respect to the protection of victims and witnesses, ‘[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Reading this provision together with the responsibility of the Trial Chamber to ensure a fair trial, it is clear that the Prosecutor’s duties are subordinate to the authority of the Trial Chamber. Moreover, the responsibility of the Trial Chamber under article 64(2) of the Statute explicitly encompasses ensuring not only that a trial is conducted fairly, expeditiously and with full respect for the rights of the accused, but also that the trial is conducted with ‘due regard for the protection of victims and witnesses’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. “[W]hile the safety and security of victims is the key responsibility of the Court, when protecting victims the Court must ensure that the rights of the defence are respected and the trial remains fair.” Prosecutor v. Ngudjolo, Decision on the Participation of Anonymous Victims in the Appeal, ICC-01/04-02/12-140 OA, 23 September 2013, para. 16.

H Fairness, Expeditiousness of the Proceedings, and Rights of the Accused

Commentary

g e o r g e m u g w a ny a Human rights in general, and fair trial guarantees in particular, are a core norm underlying the Court’s justice system. Indeed, “[h]uman rights underpin the Statute; every aspect of it [. . .]. Its provisions must be interpreted and, more importantly, applied in accordance with internationally recognised human rights; first and foremost, in the context of the Statute [and] the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety.”1 The right to fair trial is immutable.2 A fair trial is the only means to do justice, and where breaches of the Accused’s rights are such as to make it impossible for the Accused to make his or her defence within the framework of his or her rights, the trial may be stayed.3 Since the Court’s inception, to date the Appeals Chamber has elucidated various aspects of fair trial guarantees. Other Chambers, the Presidency and the Plenary have also played a critical role. There are, however, some areas that require further elaboration.

I The Mandate of the Court: Ensuring a Fair and Expeditious Trial Under article 64(2), every Trial Chamber shall ensure that “[a] trial is fair and expeditious and is conducted with full respect for the rights 1

2

3

Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37. Prosecutor v. Lubanga, Decision on Disclosure Issues, Responsibilities for Protective Measures and Other Procedural Matters, ICC-01/04-01/06-1311-Anx2, 8 May 2008, para. 94. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 37, 39.

253

254 fairness, expeditio usnes s of p roceedings, & rights

of the Accused and due regard to the protection of victims and witnesses”.4 How has the Court construed the concepts of fairness and expeditiousness? Fairness and expeditiousness in the conduct of proceedings are more than mere components of a fair trial. They are vehicles for ensuring the proper administration of justice. They lie at the heart of the Court’s duties to do justice and to determine the truth.

a The Concept of Fairness or Fair Trial Fairness or the right to a fair trial is “a concept broadly perceived and applied, embracing the judicial process in its entirety”.5 Notwithstanding its broad scope, fairness in particular embraces the principles of adversarial proceedings and equality of arms of all participants in the proceedings.6 An adversarial hearing, according to the Appeals Chamber, “means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party”.7 Moreover, “‘equality of arms’ in the sense of a ‘fair balance’ between the parties [. . .] implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponents”.8 Does the Court’s definition of “fairness” mean that not only the Accused, but also the Prosecutor, is entitled to a right to fair trial/ hearing? There is an absence of unanimity at the Appeals Chamber. However, arguably, the jurisprudence leans more towards the existence of a right to fair trial accruing both to the Accused and the Prosecutor. In Ngudjolo, the majority of the Appeals Chamber declined to determine “whether and to what extent the Prosecutor has a ‘right to fair trial’ in the 4

5

6

7

8

Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 254. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37. Situation in the DRC, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-135tEN, 31 March 2006, para. 38. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 18, fn. 46. Sep. Op. Ibid., para. 29, fn. 47.

co mmen t ar y

255

abstract”.9 This was in response to the Prosecutor’s appeal which found fault with the Trial Chamber’s management of the Accused’s alleged interference with victims and witnesses.10 The majority took the position that what was in issue in the alleged errors was not the overall fairness visà-vis the Prosecutor11 or a fair trial question.12 Rather, the alleged errors were procedural errors under article 81(1)(a)(i). Although the majority declined to address whether and to what extent the Prosecutor has a right to fair trial in the abstract, they noted that “[i]t is commonly understood that the right to a fair trial/fair hearing in criminal proceedings, first and foremost, inures to the benefit of the Accused”.13 Moreover, “the specific rights entrenched in article 67(1) of the Statute are specifically tailored to the needs of the accused person”.14 While agreeing with the majority in finding that the alleged errors were procedural in nature and fell within the scope of article 81(1)(a)(i), the dissenting judges disagreed with the majority in relation to the latter’s ruling that such errors do not fall within the scope of article 64(2) concerning the right to a fair trial.15 In their view, “the errors alleged by the Prosecutor, first, fall within the scope of article 64(2) of the Statute, governing the Trial Chamber’s powers for the proper conduct of the proceedings and, secondly, affect its core judicial duty to establish the truth”.16 They also agreed with the Prosecutor that 9

10

11

12

13

14 15

16

Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Ibid., paras. 235, 249, 259, 274; Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12-271-AnxA, 27 February 2015, para. 4. Diss. Op. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Prosecutor v. Ngudjolo, Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271-AnxA, 27 February 2015, para. 5. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 255. Ibid., para. 255. Prosecutor v. Ngudjolo, Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271-AnxA, 27 February 2015, para. 5. Ibid., para. 5.

256 f a i r n e s s , e x p e d i t i o us n es s of p r o c e e d i n g s , & r i g ht s

the article 64(2) right to a fair trial was enjoyed by all parties to the proceedings, including the Prosecutor.17 Notwithstanding the disagreement, in principle, the majority and the dissenting judges confirm the concept of equality of arms which lies at the heart of the concept of fairness and inures to all the parties to the proceedings.18 Noting the provisions of article 69(3) (which entitle the parties to submit evidence relevant to the case), the majority found that “the principle that parties must be afforded an adequate opportunity to present their case has been adopted by Pre-Trial Chambers I and II and the ad hoc Tribunals [. . .]”.19 Also referring to the obligation of the Prosecutor under article 54(1) “to establish the truth” and the Trial Chamber’s duty to actively contribute to that goal, the majority concluded that “the Prosecutor may raise errors alleging that her ability to present her case has been violated as procedural errors under article 81(1)(a)(i) of the Statute”.20 The emphasis above highlights critical elements of the notion of the equality of arms, the cardinal lenses through which the ad hoc tribunals have construed the concept of fairness.21

b The Principle of Expeditiousness The principle of expeditiousness is more than a fair trial right, but “an independent and important value in the Statute to ensure the proper administration of justice [. . .]”.22 Expeditiousness not only promotes fairness to the Accused, but also assures victims “of receiving justice and of going through a healing process quickly. For witnesses, it relieves them as soon as possible of the anxiety of having to appear in court to give evidence. Unreasonable delay in commencing or finalizing a trial may also diminish public interest and public support for, and cooperation with the Court.”23 The ultimate duty of ensuring fairness and expeditiousness lies with the 17 18

19

20

21

22

23

Ibid., para. 6. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Ibid., para. 256, citing the ICTY’s Prosecutor v. Haradinaj et al., IT-04-84-A, Judgment, 19 July 2010, para. 48 (emphasis added). Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 257 (emphasis added). E.g., Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, Appeals Judgment (Reasons), 1 June 2001, para. 55. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01-/04-01/07-2259 OA10, 12 July 2010, para. 47. Ibid., para. 46.

commentary

257

Chamber, and cannot be delegated by or removed from it.24 Moreover, the Chamber’s duty subsists regardless of the conduct of the parties,25 who also must play a role in ensuring that these values are respected.26 Thus, Chambers must take measures where the parties’ conduct is inappropriate.27 And wherever there is any conflict between the parties’ perception of their duties and the Trial Chamber’s orders, “the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair.”28 While expeditiousness is an important value, it cannot justify a deviation from statutory provisions or the full respect of the Accused’s other rights.29 It does not, for instance, exempt the Prosecution from disclosing information material to the defence preparation.30 A speedy conduct of the proceedings should also occur “without prejudice to the rights of the parties or participants concerned”.31

II Fair Trial Guarantees Article 67 enshrines a catalogue of minimum fair trial guarantees that accrue to the Accused in the determination of any charge and are to be enjoyed in full equality.

a Scope of Protection Although worded slightly differently, the Court has recognised that article 67 closely resembles the fair trial guarantees enshrined in global and regional human rights instruments,32 and therefore reflects internationally 24

25

26 27

28

29

30

31

32

Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 47. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 50. Ibid., para. 43. Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175, 12 June 2012, para. 18. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. Prosecutor v. Katanga & Ngudjolo, Judgment on Unlawful Detention and Stay of Proceedings, ICC-01/04-01/07-2297, 28 July 2010, para. 47. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501, 28 August 2013, para. 37. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 48. E.g., Prosecutor v. Lubanga, Decision on the Consequences of Non-disclosure of Exculpatory Materials covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain other Issues Raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008, para. 57;

258 fairness, expeditiousness of p roceedings, & rights

recognised human rights.33 Based on the plain terms of article 67, besides the enumerated minimum guarantees above, an accused is also entitled to the rights embedded within the chapeau of article 67: namely, (a) the right to a public hearing; (b) the right to a fair hearing conducted impartially; and (c) the right to equality before the Court. Moreover, since article 67 describes its catalogue of rights as minimum guarantees, this also suggests that the list of rights is not exhaustive,34 and other rights exceeding those mentioned in the article may be required in appropriate circumstances to ensure the fairness of the proceedings. Indeed, other provisions of the Statute are relevant as acknowledged in the Lubanga case.35 These other rights include article 64(2) and (3), obligating the Trial Chamber to ensure a fair and expeditious trial; article 63 (trial in one’s presence); article 74 (requiring Chambers to provide a reasoned opinion, which is indispensable to the parties’ exercise of the right to appeal); article 66 (the presumption of innocence); article 81 (the right to appeal); and article 21(3) (which ensures the application of internationally recognised human rights in the interpretation of the Statute). The reference in article 67 to the rights of the Accused in the determination of a charge may suggest that these rights only inure to accused persons (whose charges have been confirmed) or applies only during the actual trial. However, Pre-Trial Chamber I has rejected such a restrictive reading. It has held that the safeguards in article 67 apply at all stages of the proceedings, including the investigation stage.36 The Appeals Chamber has also recognised that breaches of rights at the pre-trial stages may have implications on the proceedings and may affect the outcome of the trial.37 But the Appeals Chamber has also found that “internationally recognised human rights standards do not

33

34

35 36

37

Prosecutor v. Ruto and Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, para. 32. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 83. Prosecutor v. Lubanga, Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04-01/06-102, 15 May 2006, para. 97. Ibid., para. 97. Situation in the DRC, Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-135tEN, 31 March 2006, paras. 34–35. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 11.

commentary

259

necessarily extend all the rights enshrined in article 67 of the Statute to persons who have not yet been surrendered to the Court or appeared voluntarily before it”.38

b Right to a Fair Hearing Conducted Impartially The chapeau to article 67 provides that the Accused shall be entitled to a fair hearing conducted impartially. An impartial hearing is not only the right of every accused, but, as emphasised by the Presidency, is also a safeguard to the integrity of the Court’s administration of justice.39 The judges, the Prosecutor and Deputy Prosecutor have a duty to ensure that the Accused enjoys an impartial hearing.40 Impartiality is one of the essential qualities of any ICC judge, Prosecutor, Deputy Prosecutor, Registrar and Deputy Registrar.41 These officers may be disqualified from acting in a case in which their impartiality might reasonably be doubted based on a non-exhaustive list of factors.42 Besides the Prosecutor, the person being investigated or prosecuted may request the disqualification of a judge based on claims of lack of impartiality.43 Moreover, there is under rule 35, “[a] duty upon a judge to request to be excused in the absence of a request for disqualification should he or she believe that a ground of disqualification exists”.44 A similar duty also extends to the Prosecutor and Deputy Prosecutor.45

38

39

40 43 44

45

Prosecutor v. Gaddafi & Al-Senussi, Judgment on Admissibility Appeal on Al-Senussi, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 147. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 4. Rule 35. 41 Articles 36(3), 42(7), 45. 42 Articles 41(2)(a), 42(7); rule 34. Article 41(2)(b). Article 42(7); Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 4; Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the Case of The Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 4. Rule 35.

260 f a i r n e s s , ex p e d i t i o u s n e ss of proceedings , & rights

i Actual Bias and Appearance of Bias As is the practice at ad hoc tribunals,46 “the assessment of judicial impartiality requires not only that a judge be impartial in the sense of being subjectively free from bias, but also that there is no objective appearance of bias”.47 In other words, the bias standard has two components: (a) actual bias, and (b) the appearance of bias. Therefore, a judge, Prosecutor or Deputy Prosecutor is not impartial if it is shown that actual bias exists, or there is an appearance of bias. Where, for instance, there is a conflict of interest, there is actual bias.48 Thus, where a judge who is a member of the Presidency submits to the Presidency a request to be excused from participating in a case, such a judge cannot be part of the Presidency when it is adjudicating his or her request.49 Apparent bias includes all other types of allegations of bias. Examples include the bases enshrined in article 41(2), as well as rule 34(1)(c) and (d), which according to the Appeals Chamber “concern an objective appearance of impartiality due, inter alia, to extra-judicial activities and the Presidency has found that an objective appearance of impartiality may be denied when a judge previously made determinations of fact based upon 46

47

48

49

See, e.g., Rutaganda v. Prosecutor, ICTR-96-3-A, Judgment, 26 May 2003, para. 46; Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 682. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, pp. 4–5; Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 11. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06925-AnxI, 21 October 2015, pp. 1–2. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06925-AnxI, 21 October 2015, pp. 1–2.

co mmen t ar y

261

consideration of the same issues and evidence, from which it would appear that he or she is not free to depart”.50 The relevant standard of assessing apparent bias, is “whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias [. . .]”.51 This test is concerned “not only with whether a reasonable observer could apprehend bias, but whether any such apprehension was objectively reasonable”.52 To disqualify a judge based on the appearance of bias, the applicant must meet a higher threshold of demonstration than the threshold required to prove actual bias. This is because, as is the practice at ad hoc tribunals,53 there is a presumption of impartiality that attaches to all ICC judges, who are professional judges and are capable of deciding issues solely based on the evidence adduced.54 ii Assessing the Appearance of Bias based on a Judge’s Extra-judicial Activities and Previous Involvement in a Case The above general standards have guided the Court in its adjudication of applications for the disqualification of judges. Many applications thus far have been concerned with the judges’ previous involvement in a case, under article 41(2)(a).55 Important principles can be discerned from these decisions. Critical among them is that not every previous involvement by a judge in 50

51

52 53

54

55

Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5. Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 11. Ibid., para. 13. See, e.g., Prosecutor v. Akayesu, ICTR-96-4-A, Judgment, 1 June 2001, para. 91; Prosecutor v. Furundzija, IT-95-17/1-A, Judgment, 10 December 1998, para. 196. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, para. 14. One case was concerned with other factors, such as a shared nationality by the judge and the victims of the alleged crimes; public opinions expressed by the judge prior to appointment at the Court; and the judge’s endorsement by a State or group of States for judgeship during elections of judges at the Court. See Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, paras. 16–32. Although this decision was not unanimous, it appears that the Court subjects allegations of an appearance of bias based on these and other factors to a high standard of demonstration.

262 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e e d i n g s , & r i g ht s

a case, whether before the Court or in a related criminal case at the national level prior to the person’s appointment as an ICC judge, will suffice to create an appearance of bias in terms of article 41(2)(a) as to be incompatible with an accused’s right to an impartial trial. Rather, only previous engagements in a case that gives rise to a reasonable ground to doubt a judge’s impartiality can lead to a judge’s disqualification from the case at hand.56 To reach a decision, a case-by-case assessment must be undertaken which evaluates “the ‘degree of congruence between the legal issues’ and whether ‘the factual determinations’ would be ‘based on the same evidence’ in considering requests for excusal on grounds of [the judge’s] previous involvement in the case”.57 Moreover, “‘it may reasonably appear to an objective observer that’ a judge lacks impartiality where he or she is ‘not free to depart from previous factual findings which [he or she] made upon consideration of the same issues and evidence’”.58 Overall, the decisions reveal a restrictive stance. Disqualification or excusal will be granted only in exceptional cases where a judge’s previous engagement in the case involved a similar assessment of facts or factual determination, for instance, concerning the Accused’s culpability. Once there is congruence as to the underlying facts, the purpose of the current assessment of facts and the standard or threshold of that assessment are immaterial. For instance, regarding an assessment of a person’s culpability, it is irrelevant that the judge’s previous involvement concerned the “responsibility” determination for purposes of meeting the low 56

57

58

Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 5. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/0501/13-1329-AnxI, 2 October 2015, p. 3; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-925-AnxI, 21 October 2015, pp. 3, 4; Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 5. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in the case of Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1329-AnxI, 2 October 2015, pp. 3–4.

commentary

263

standard for the issuance of a warrant of arrest, and the current engagement is for assessing culpability using a higher threshold of proof to either convict or acquit the Accused. Thus, if a judge previously served with the Prosecution or sat in the Pre-Trial Chamber to determine whether or not to issue a warrant of arrest, or to confirm the charges, the same judge cannot sit in the trial of the Accused or in an appeal adjudicating the Accused’s culpability or innocence. Accordingly, in a decision relating to excusal of Judge Fernandez in the Ntaganda case,59 the Presidency granted recusal in any appeal in relation to that case, given Judge Fernandez’s previous participation as ICC Prosecution Head of the Jurisdiction, Complementarity and Cooperation Division, in the preliminary examinations and investigations of the DRC situation. The Presidency found a significant degree of congruence between the legal issues and the factual determinations made during the preliminary examinations and appeals emanating from the Ntaganda case. It considered that the preliminary examinations in which Judge Fernandez had participated were extensive. They involved, among others, the assessment of those believed to be most responsible, and discussions leading to the issuance of a warrant of arrest of Ntaganda. On the other hand, the Presidency did not find the requisite congruence established between the judge’s engagement in the Bemba trial in relation to Judge Aluoch and Judge Ozaki,60 and their participation in another Chamber dealing with a compensation claim by one of the Defendants in the Bemba et al. article 70 case.61 In the Presidency’s view, the issues in the request for compensation “neither refer[red] to the facts underlying the Bemba or Bemba et al. proceedings nor pertain to legal issues relevant to either proceeding”.62 Based on these examples, a judge participating in pre-trial proceedings (e.g., for the confirmation of charges), may sit in a future Trial Chamber or the Appeals Chamber or other Chamber when auxiliary matters unrelated to the assessment of facts relating to culpability or responsibility are no longer in issue. Such auxiliary matters include the review of sentence or compensation, or the correction of transcripts, as was the case in the 59

60

61

Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/0402/06-925-AnxI, 21 October 2015. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in the case of Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu & Narcisse Arido, ICC-01/05-01/13-1329-AnxI, 2 October 2015. Ibid., pp. 4–5. 62 Ibid., p. 4.

264 fairness, e xpeditiousness of proceedi ngs, & rights

recusal request relating to Judge Ušacka.63 This is because “such limited involvement does not constitute a ground on which impartiality [. . .] might reasonably be doubted”.64 iii Impartiality of the Prosecutor The Prosecutor, like the judges and the Deputy Prosecutor, “is expected at all times to act impartially”.65 Under article 42(7), “[n]either the Prosecutor nor Deputy Prosecutor shall participate in any matter in which their impartiality might be reasonably doubted on any ground”.66 A person being investigated or prosecuted may seek the disqualification of the Prosecutor before the Appeals Chamber.67 This includes persons being investigated or prosecuted for article 70 offences.68 Article 42(7) and rule 34(1) provide for a non-exhaustive list of grounds on which disqualification may be sought. So far, the Court has not adjudicated many cases alleging the absence of impartiality, including allegations based on the Prosecutor’s or Deputy Prosecutor’s previous engagements. But it has adjudicated a case alleging the absence of impartiality based on the Prosecutor’s expression of opinions through communication to the media that “objectively” could adversely affect the required impartiality of the person concerned, under rule 34(1)(d). In the view of the Appeals Chamber, the use of the term “objectively” in rule 34 and the phrase “might reasonably be doubted” in article 42(7), “indicates that it is not necessary to establish an actual lack of impartiality on the part of the Prosecutor. Rather, the question [. . .] is whether it reasonably appears that the Prosecutor lacks impartiality.”69 63

64 65

66

67

68

69

Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the Case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009. Ibid., p. 7. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 18. See also Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 18. Article 42(8); Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 18. Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 17. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 20.

commentary

265

In making such a determination the yardstick is the perspective of a reasonable observer, properly informed.70 While a similar test may apply where the impartiality of a judge is disputed, it appears that at the Court, when such a dispute is based on the public expression of an opinion on the case, a more heightened threshold of demonstration is required to have the Prosecutor or Deputy Prosecutor disqualified than is required to disqualify a judge. This is based on the different role of the Prosecutor vis-à-vis that of the judges – the guilt or innocence of an accused is determined, not by the Prosecutor, but by the judges. Thus, in a case where the Prosecutor at the time was found to have inappropriately expressed opinions on the liability of a suspect which was incompatible with the presumption of innocence, nevertheless, the Appeals Chamber held that the ground for disqualification from the case was not demonstrated. In its view: [a] reasonable observer, properly informed, is aware of the functions of the Prosecutor. Such [an] observer would have understood that the Prosecutor’s statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence. That the Prosecutor manifested a certain conviction about the evidence is to be expected. A reasonable observer, properly informed, would not conclude that the Prosecutor’s conviction was not based on the evidence, was otherwise biased or would lead to the neglect of his duties under article 54(1)(a) and (c) of the Statute. As such, the Appeals Chamber finds that the Prosecutor’s statements do not lead to the conclusion that his impartiality might reasonably be doubted.71

c Right to a Public Hearing and Public Judgments The chapeau to article 67(1) enshrines the right to a public hearing. Under regulation 20 of the RoC, “[a]ll hearings shall be in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber”. The publicity of the hearing may extend beyond the courtroom,72 and may be communicated through broadcasting by the 70 72

Ibid., para. 20. 71 Ibid., para. 34. Regulation 21(1) of the RoC; Prosecutor v. Kony et al., Decision on Setting the Date for the Initial Appearance of Dominic Ongwen and the Date for a Status Conference, ICC-02/0401/15-188 1/5 SL PT, 16 February 2015, para. 7; Prosecutor v. Bemba, Decision Authorising Photographs at the Confirmation of the Charges Hearing on 12 January 2009, ICC-01/05-01/08-351, 8 January 2009, p. 3; Prosecutor v. Ngudjolo, Decision Scheduling the First Appearance of Mathieu Ngudjolo Chui and Authorising Photographs at the Hearing of 11 February 2008, ICC-01/04-01/07-273, 7 February 2008, p. 2.

266 f a i r n e ss , ex p edi t i o us n es s o f p roc eed ings, & rights

Registry or release of transcripts or recordings, unless otherwise ordered by the Chamber. “Publicity” thus also covers written material, such as documents and written submissions in a case.73 In keeping with the rule of publicity, any party, participant, or even the Registrar, who submits any materials with a confidential classification, is duty bound to apply to the Chamber to reclassify them where the basis for such classification no longer exists, under regulation 23bis (3) of the RoC.74 Article 74(5), without any qualification, requires that the Trial Chamber’s final judgment on the guilt or innocence of the Accused be delivered in open court. The same requirement is imposed on the Appeals Chamber.75 There is a “general principle of publicity in [the] Court’s proceedings, which can be derived from Article 67(1) and 64(7) of the Statute [. . .]”.76 The Court, like other international courts and institutions,77 holds that a public hearing is an important safeguard not only to the Accused, but also to the integrity of the Court’s judicial process and the public trust held in the Court.78 However, the guarantee of a public hearing is subject to exceptions and has to be balanced against other competing interests of the Court, such as the protection of vulnerable witnesses and victims.79 But protective measures shall be considered to be an exception to the general rule of publicity.80 For instance, according to Trial Chamber II, “[u]nder no circumstances the Chamber will allow victims to testify anonymously vis-à-vis the Defence”.81 73

74 76

77

78

79 80

81

Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 43. Ibid., paras. 43–44. 75 Article 83(4). Prosecutor v. Ruto & Sang, Decision on the Conduct of Trial Proceedings (General Directions), ICC-01/09-01/11-847-Corr, 9 August 2013, para. 30. E.g., UN Human Rights Committee, CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (1984), para. 6; Prosecutor v. Delalić et al., IT-96-21, Decision on the Prosecution’s Motion for the Redaction of the Public Record, 5 June 1997, para. 23; ECtHR, Werner v. Austria, Appl. no. 21835/93, “Judgment”, 24 November 1997, para. 45; ECtHR, Pretto & Ors v. Italy, Appl. no. 7984/77, “Judgment”, 8 December 1983. Prosecutor v. Katanga & Ngudjolo, ICC-01/04-01/07-T-189-ENG ET WT, 20 September 2010, 11/19 EA T, p. 10. Ibid., pp. 10–11. Prosecutor v. Ruto and Sang, Decision on the Conduct of Trial Proceedings (General Directions), ICC-01/09-01/11-847-Corr, 9 August 2013, para. 30. Prosecutor v. Katanga & Ngudjolo, Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07-1665-Corr, 1 December 2009, para. 22(c).

com men t ar y

267

d Right to Prompt and Detailed Notification of the Charges in a Language the Accused Fully Understands and Speaks Under article 67(1)(a), the Accused is entitled “[t]o be informed promptly and in detail of the nature, cause and content of the charge, in a language in which the Accused fully understands and speaks”. i Notification of Charges The right to be promptly informed of the charges is “firmly grounded in the Statute and other legal instruments of the Court”,82 and is critical to ensuring that the Accused fully exercises his or her rights to defend him- or herself. Indeed, the Appeals Chamber reads this right together with the right “to have adequate time and facilities for the preparation of the defence”.83 The right to be notified of the charges accrues from the time of one’s arrest or detention (including in a State).84 Further, when an accused arrives at the Court, the relevant Chamber must ensure that his or her right is respected both before the confirmation of the charges hearing (conducted by a Pre-Trial Chamber) and the commencement of trial (conducted by a Trial Chamber). Thus, under article 61(3), “within a reasonable time prior to the hearing on the confirmation of charges, the Accused shall ‘[b]e provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial’”.85 Moreover, “[t]he Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing”.86 Under article 64(8), “[a]t the commencement of the trial, the Trial Chamber shall have read to the Accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the Accused understands the nature of the charges [. . .].” Based on the right to be notified of the charges under article 67(1), the Document Containing the Charges (“DCC”) must include, inter alia, “[a] statement 82

83 84

85

86

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 118. Ibid., para. 118. Article 58(2), (3) and (7). For the ad hoc tribunals, see, e.g., Barayagwiza v. Prosecutor, ICTR-97-19-AR72, Decision, 3 November 1999, para. 80; Semanza v. Prosecutor, ICTR97-20-A, Decision, 31 May 2000, para. 78. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 119. Rule 121(3); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 119.

268 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s

of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial [. . .]”.87 But the DCC need not plead the evidence supporting the factual allegations.88 Therefore, if a Chamber errs in its approach to the admission of evidence during a trial, the Accused’s right to be informed of the charges is not engaged as long as he had received the DCC and other documents conveying the charges.89 In a nutshell, “the right to be informed of the charges is not concerned with the timing of admissibility rulings”.90 As to the degree of specificity with which facts (meaning factual allegations that support each element of the charged crime) must be pleaded, the Appeals Chamber has emphasised that they “must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute”.91 The Appeals Chamber has also invoked jurisprudence from ad hoc tribunals,92 to the effect that the degree of specificity (for instance, regarding the identification of names of victims, locations, the time of the crimes), is dependent on the alleged criminal conduct charged.93 In other words, a decisive criterion is the proximity of the Accused to the alleged events. The further away the Accused is removed from the actus reus, the lesser the degree of specificity. In determining whether an accused has been sufficiently notified of the charges, the inquiry must consider not only the DCC or the Confirmation Decision, but all other auxiliary documents, such as the list or summary of the evidence.94 Only documents provided before trial are relevant in determining whether the Accused received sufficient notification of the charges.95 87

88

89 91

92

93

94

95

Regulation 52(b) of the RoC; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, 1 December 2014, para. 119. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64. Ibid., paras. 63–65. 90 Ibid., para. 64. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. Regulation 52(b) of the RoC; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 122, citing Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, paras. 210–213. E.g., Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, paras. 210–213; Nahimana et al. v. Prosecutor, ICTR-99-52-A, Judgment, 28 November 2007, para. 322; Prosecutor v. Sesay et al., SCSL-04-16-A, Appeal Judgment, 20 October 2009, para. 48. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 12 December 2012, paras. 124–136. Ibid., para. 129.

co mmen t ar y

269

However, even documents furnished thereafter may be considered in the context of assessing whether any prejudice arising from any deficient charges was cured.96 Some aspects of the existing ICC jurisprudence on the degree of specificity of the charges require further elucidation. For instance, in Lubanga, since the Accused was not alleged to have directly carried out the actus reus of a crime and was charged on the basis of a common plan, it is not clear whether the DCC should have required, as found by the Appeals Chamber, details as to the date and location of the Accused’s underlying acts and the identity of the victims.97 However, on the other hand, it may be argued that the Chamber pursues a flexible approach – in the sense that charges would not be rejected for not providing such details in some circumstances – because the Judgment underlines that those details should be provided “to the greatest degree of specificity possible in the circumstances”.98 But the Judgment also appears less clear as to the degree of specificity where the DCC alleges a pattern of criminality (spanning a wide perimeter in terms of time, locations and affecting many victims), as Lubanga’s DCC partly did with respect to the enlistment, conscription or use of children under the age of fifteen years in hostilities. In upholding the charges based on a pattern approach, the Appeals Chamber held that it is sufficient that further details such as the names of the victims are furnished in other documents, for example, the summary of the evidence.99 This raises the issue of whether the Appeals Chamber could have reached a different conclusion if no further specification of victims had been conveyed in other documents beyond the DCC. Yet it may be argued that where charges are based on a pattern of criminality perpetrated in the circumstances just described, a low degree of specificity would suffice. ii Language Article 67(1)(a) requires the suspect or accused to be notified of the charges in a language that he or she fully speaks and writes. The Statute enshrines a similar language standard in article 67(1)(f), relating to the right to interpretation. The Appeals Chamber has underscored that the inclusion of the right provided in article 67, as a whole, indicates that this right is a sine qua non for the holding of a fair trial.100 The Appeals Chamber has also underscored that the plain text of article 67(1)(a) and (f) imposes a higher language standard than embraced by 96 100

97 98 99 Ibid. Ibid., para. 123. Ibid. Ibid., paras. 131–132. Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 41.

270 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s

other international instruments.101 The Katanga case illustrates this distinction. During his initial appearance, in response to the Presiding Judge’s question as to whether he spoke French or any other language, Katanga responded, “I speak Lingala best.”102 Asked to clarify if he also understood French, Katanga replied, “Not really.”103 Pressed on further to explain if he did not speak and understand French, Katanga replied, “[I] do not speak French fluently, and sometimes it is difficult for me to understand [. . .].”104 Relying on the case law of the European Court of Human Rights, the Single Judge found that Katanga’s competency in French met the standards set by article 67(1)(a) and (f), and rejected Katanga’s request for Lingala interpretation.105 On appeal, this decision was overturned. The Appeals Chamber emphasised that article 67’s use of the words “fully understands and speaks” engages a higher threshold of language competency – the accused must both understand and speak the language “in full manner [. . .] without deficiency”.106 And “[g]iven the addition of the word fully [. . .] the language requested [by the accused] should be granted unless it is absolutely clear on the record that the person fully understands and speaks one of the working languages of the Court and is abusing his or her right under article 67 of the Statute”.107 But, “[a]n accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer”.108 Notably, article 67(1)(a) and (f) relates to the language ability and knowledge of the suspect or accused, not of his or her counsel or the Defence team.109

e Right to Adequate Time and Facilities for Defence Preparation Under article 67(1)(b), the accused has a right “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”. The right to adequate time and facilities “presupposes that the Defence team will have sufficient time to conceive, prepare and raise meaningful and effective grounds of defence which are tailored to its case”.110 This 101 105 109

110

102 103 104 Ibid., paras. 42, 48, 56, 62. Ibid., para. 5. Ibid. Ibid. 106 107 108 Ibid., paras. 6–8, 21, 36. Ibid., para. 40. Ibid., para. 61. Ibid. Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 11. Prosecutor v. Katanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/ 07–3436-t-ENG, 7 March 2014, para. 1572.

co mmen t ar y

271

reinforces the principles of fairness, especially the principle of equality of arms.111 Whether the right to adequate time and facilities has been violated “[c]annot be a wholly abstract analysis. Everything turns on the specific circumstances of the case which the accused, counsel and the members of the defence team had to confront and the nature and status of the proceedings”.112 Article 67 does not preclude the legal recharacterisation of facts in the course of the trial under regulation 55, as long as such re-characterisation does not render the trial unfair.113 It is to avoid the violation of such rights as the right to have adequate facilities for defence preparation that “regulation 55(2) and (3) set out several stringent safeguards for the protection of the rights of the defence”.114

f Right to be Present at Trial and to Legal Representation Under article 67(1)(d), the Accused is entitled, subject to article 63(2), to be present at trial. Based on the Appeals Chamber jurisprudence, the presence of the Accused at trial is not only a right, but also an obligation under article 63(1). Concerning the former, the Accused has a right to be present at trial, but a Chamber may exceptionally remove him or her if he or she continuously disrupts the proceedings, under article 63(2).115 Such disruptive conduct “may be construed as an implicit waiver of his or her right to be present”.116 Concerning the latter, the Appeals Chamber has held that: article 63(1) of the Statute establishes that the accused shall be present during the trial, reflecting the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice. The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein [. . .] It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed [. . .].117 111 113

114 115

116

Ibid., para. 1572. 112 Ibid., para. 1573. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. Ibid., para. 85. Prosecutor v. Ruto and Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 51. Ibid., para. 51. 117 Ibid., para. 49.

272 fairness, expeditio usnes s of p roceedings, & rights

Moreover, “the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice”.118 However, the obligation is not absolute and a Chamber may allow a trial to continue in the absence of the Accused, if among others, he or she expressly waived the right to be present.119 But, as the Appeals Chamber has underscored, the discretion the Trial Chamber enjoys under article 63(1) is limited and must be exercised with caution.120 In addition to an express waiver of the right, the Appeals Chamber identified the following limitations on the discretion of the Trial Chamber to excuse an accused from presence during trial: [(i)] the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.121

Under article 67(1)(d), the Accused is entitled to conduct his or her defence in person or through legal assistance of the Accused’s choosing. This right is universally recognised.122 Moreover, “the choice of counsel lies with the person and once appointed, counsel can conduct the defence of the individual”.123 But like other rights the right must be “reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial, including [. . .] the reasonableness of the time within which the proceedings must be held.”124 Therefore, an accused, whose previous counsel has left, cannot be allowed an indefinite time frame to choose a replacement. Effective representation “is not dependent on the number of staff involved in a Defence team, but instead on whether the accused received meaningful 118 122

123

Ibid. 119 Ibid., paras. 2, 62. 120 Ibid., para. 2. 121 Ibid., para. 62. Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC01/04-01/06-844 OA8, 9 March 2007, para. 12. Ibid., para. 12. 124 Ibid., para. 15.

commentary

273

representation”.125 In making such a determination, a Chamber may consider such factors as the Defence’s filings, which in the Bemba case, “reveal[ed] that Mr Jean-Pierre Bemba remain[ed] effectively represented”.126

g Right to a Presumption of Innocence The presumption of innocence requires that the burden of proof of guilt lies on the Prosecutor.127 Indeed, the rebuttal of an Accused’s defence is on the Prosecutor, not the Accused.128 Moreover, when an Accused adduces evidence, the burden is on the Prosecutor to discredit such evidence – for instance, its authenticity – through cross-examination or by calling witnesses.129 Under article 54(1)(c) (respecting investigations), the Prosecutor shall “[f]ully respect the rights of persons arising under the Statute, including the right to be presumed innocent as guaranteed by article 66 of the Statute [. . .]”.130 Within the context of court or trial proceedings, “the accused shall be presumed innocent until proven guilty beyond a reasonable doubt and shall not have imposed on him or her any reversal of the burden of proof or any onus of rebuttal”.131 The right to a presumption of innocence broadly imposes duties courtwide, applying to the judges, the Prosecutor and other organs of the Court alike.132 But as shown below, the requirement of impartiality imposes differing obligations and thresholds of scrutiny on the Prosecutor, the judges and the Registry. By virtue of the Accused’s right to a presumption of innocence, in an on-going trial, the judges are prohibited from publicly expressing an opinion on guilt or innocence, 125

126 127

128

129

130

131

Prosecutor v. Bemba, Decision on the Defence’s Application to Suspend the Proceedings, ICC-01/05-01/08-530, 18 September 2009, para. 14. Ibid., para. 14. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-71, 27 February 2015, para. 172; Prosecutor v. Ngudjolo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, 18 December 2012, paras. 146–147; Prosecutor v. Bemba et al., Decision on Arido Defence Request to Withdraw the Charges, ICC-01/05-01/13-876, 27 March 2015, para. 12. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271, 27 February 2015, para. 172. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 23. Ibid., para. 25. 132 E.g., ibid., paras. 23–33.

274 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s

within or outside the court proceedings,133 except when they publicly issue in open court a final judgment under article 74 or 83 at the end of their private deliberations.134 The Court has similarly construed the presumption of innocence as imposing very strict obligations on the Registrar. For instance, in the Lubanga case, a Pre-Trial Chamber found a violation of the presumption of innocence by the Registrar’s categorisation of Mr Lubanga as an accused before the confirmation of the charges against him.135 There are two aspects to the Prosecutor’s expression of opinions on culpability that relate to the presumption of innocence. First, the Prosecutor is expected, and indeed reasonably required, to express such an opinion, at least within the context of court proceedings.136 One such example is an opinion on the guilt or innocence of the accused on the evidence – an action which would be inappropriate if made by a judge in an on-going trial.137 Secondly, he or she may comment on an on-going case outside court proceedings, but important restrictions are imposed on what he or she may say by virtue of the presumption of innocence.138 Indeed, like other officials of the Court, his or her duty to respect the presumption of innocence requires that he or she does not prejudge the outcome of the trial.139 Thus, while public statements by the Prosecutor merely describing allegations of suspicion are permissible, those declaring guilt in a pending case violate the presumption of innocence.140 In determining whether the particular statements of the Prosecutor violate the presumption of innocence, the Court must consider them “in light of all the relevant circumstances”,141 which entails assessing, for instance, whether the statement merely mentioned the evidence without giving the impression that the factual issues have been determined or could not be contested.142 If there is a violation of the presumption of innocence by the Prosecutor, it is the responsibility of the Chamber to take measures to ensure fair and expeditious proceedings.143 These measures include directing the Prosecutor to limit his or her public statements; various remedial measures to address any damage done by 133

134 135 136

137 142

Ibid., para. 25 (noting that the Prosecutor may express opinions in the court proceedings which would be inappropriate if made by a judge in an on-going trial). Articles 74(5) and 83(4). Prosecutor v. Lubanga, ICC-01/04-01/06-T-30-EN, 9 November 2006, p. 19, ll. 7–15. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. Ibid. 138 Ibid., paras. 26–35. 139 Ibid., para. 26. 140 Ibid., para. 28. 141 Ibid. Ibid., paras. 31, 34. 143 Ibid., para. 35.

commentary

275

such statements; the issuing of a reminder to the Prosecutor of his or her obligations; a judicial reprimand or expression of discontent; or, where appropriate and subject to the rules and protections of due process, the institution of proceedings for misconduct under articles 46, 47 or 71.144

h Right not to be Compelled to Testify or to Confess Guilt and to Remain Silent, and the Right to Disclosure Under article 67(1)(g), an accused has the right “[n]ot to be compelled to testify or to confess guilt and to remain silent”,145 and “is entitled to exercise that right without silence being a consideration in the determination of guilt or innocence”.146 The accused is entitled to full disclosure of all exculpatory evidence and information material to his/her preparation from the Prosecutor,147 except where specific provision is made for restrictions on disclosure to be permitted, and the Prosecutor “is dutybound to provide full disclosure even if the accused elects to remain silent or does not raise a defence”.148 The expectation is that the Accused is entitled to receive any additional material in the possession or control of the Prosecutor which a line of defence has revealed as exculpatory in nature, regardless of the stage at which the defence was raised.149 However, the Appeals Chamber has noted that it is unable categorically to rule out the possibility that if a factual situation arises in which it could be demonstrated that the Defence has unjustifiably and unreasonably held back the revelation of a line of defence or issue in circumstances that made it impossible for the Court to ensure the protection of the exculpatory witnesses, it may conceivably be possible for the accused to receive a fair trial notwithstanding the non-disclosure of certain limited material.150

The right to remain silent is not absolute. Although the ICC legal framework does not provide for a reciprocal disclosure regime and the scope and timing of the Defence’s disclosure obligations tend to differ from that of the Prosecutor, certain provisions of the Court’s legal regime 144 145

146

147 148

149

Ibid. Prosecutor v. Gbagbo & Blé Goudé, Directions on the Conduct of the Proceedings, ICC02/11-01/15-205, 3 September 2015, para. 24. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 42. Article 67(2) and rule 77. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 50. Ibid., para. 53. 150 Ibid., para. 54.

276 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s

impose a disclosure obligation on the Defence. For instance, under rule 79, the Defence shall notify the Prosecutor of its intent to raise an alibi or other grounds for excluding criminal responsibility.151 The rationale is to secure a fair and expeditious trial.152 Under rule 78, the Defence has an obligation to permit inspection by the Prosecutor of any books, photographs and other tangible objects in its possession or control which are intended for use at trial.153

i Right to Trial Without Undue Delay This right is linked to the principle of expeditiousness. Whether there is undue delay or certain actions that cause undue delay is a fact-driven inquiry. Article 67 does not preclude the legal re-characterisation of facts in the course of the trial under regulation 55 of the RoC, as long as such re-characterisation does not render the trial unfair.154 Although such recharacterisation may cause delay, “the Appeals Chamber does not consider that a change of the legal characterisation of the facts pursuant to Regulation 55 as such will automatically lead to undue delay of the trial”.155 Indeed, “[w]hether a re-characterisation leads to undue delay will depend on the specific circumstances of the case”.156 j Right to Examine Witnesses, to Call Witnesses and to Present a Defence Under article 67(1)(e), the Accused shall be entitled 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 151

152

153

154

155

E.g., Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/061235-Corr-Anx1, 20 March 2008; Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/04-01/07-2388, 14 September 2010; Prosecutor v. Bemba, Decision on Defence Disclosure and Related Issues, ICC-01/05-01/08-2141, 24 February 2012. Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/0401/07-2388, 14 September 2010, para. 37; Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/06-1235-Corr-Anx1, 20 March 2008, paras. 27–41; Prosecutor v. Bemba et al., Decision on Prosecution Request for Production of Evidence in Possession of the Defence, ICC-01/05-01/13-907, 15 April 2015, para. 14. Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/06-1235Corr-Anx1, 20 March 2008, para. 30; Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/04-01/07-2388, 14 September 2010, para. 39. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. Ibid., para. 86. 156 Ibid.

commentary

277

conditions. Moreover, the Accused shall also be entitled to raise defences and to present other evidence admissible under the Statute.157 According to Judge Pikis of the Appeals Chamber, this “right introduces an adversarial hearing”.158 An adversarial hearing affords each party the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other.159 It also enables the Defence to challenge prosecution witnesses through questioning before the judges. The right under article 67(1)(e) enforces the equality of arms, another critical component of a fair trial.160 The right entitles the Accused to be afforded a reasonable opportunity to present his or her case, including the attendance and examination of witnesses, under conditions that do not place him or her at a substantial disadvantage vis-à-vis the Prosecution.161 The Accused’s right to examine witnesses is not limited to those called by the Prosecution, but may extend to additional witnesses a Chamber may order to be called under article 69(3).162 Under rule 140 (2), the Accused has the right to be the last to examine any witness. The Accused’s right to obtain the attendance and examination of witnesses on his or her behalf and to cross-examine witnesses against him or her is not unlimited. The Court’s statutory regime enshrines parameters within which the right may be exercised. Judges also enjoy trial management discretion on the basis of which they may regulate the exercise of that right in the interest of the fair and expeditious conduct of the trial.163 Therefore, “[a]lthough the parties’ [sic] are entitled to a degree of deference in the selection and presentation of their evidence, their discretion is not unlimited. The Chamber may intervene in these matters in order to ensure the fair and expeditious conduct of the trial, as foreseen in Articles 64(2) and (9), 67(1)(c) and 69(4) of the Statute.”164 Under article 69(4), only evidence relevant to the case, taking into account, inter alia, its probative value, may be submitted by the parties 157 158

159 162

163

164

Article 67(1)(e). Prosecutor v. Lubanga, Decision of the Appeals Chamber on the Joint Application of Victim a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, ICC-01/04-01/06-925, 13 June 2007, Separate Opinion of Judge Georghios M. Pikis, para. 18. Sep. Op. Ibid., fn. 46. 160 Ibid. 161 Ibid., fn. 47. Prosecutor v. Ntaganda, Decision on the Conduct of Proceedings, ICC-01/04-02/06-411619, 2 June 2015, para. 13. Prosecutor v. Bemba et al., Decision on Relevance and Propriety of Certain Kilolo Defence Witnesses, ICC-01/05-01/13-1600, 4 February 2016, para. 6. Ibid., para. 6.

278 f a i r n e s s , e x p e d i t i o us n es s of p r o c e e d i n g s , & r i g ht s

and admitted by the Chamber.165 A Chamber may thus deny the Accused’s request to call a witness on the grounds that their evidence is irrelevant in the determination of his or her culpability.166 Under article 69(7), evidence obtained (whether by the Prosecution or the Accused) in violation of the Statute or internationally recognised human rights shall not be admissible if (a) the violation casts substantial doubt on its reliability; and (b) the admission of such evidence would be antithetical to and would seriously damage the integrity of the proceedings.167 Moreover, regarding sexual crimes, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or a witness.168 Neither the Prosecution nor the Defence can question victims or witnesses regarding their prior or subsequent sexual conduct. While, as a general principle, the Accused, like the Prosecution, enjoys a degree of deference as to the manner in which he or she presents the case, such as the witnesses to call and sequencing of the witnesses, this deference is not unlimited.169 It is subject to judicial oversight. Indeed, a Chamber may control the number of witnesses, the duration of a party’s examination of each witness and witness sequencing.170 Under rule 140(2)(b), the Accused, like the Prosecution, may only question witnesses presented by the opposing party “about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters”.171 Under article 64(8) and rule 140, the Presiding Judge may give directions for the conduct of proceedings. Such directions may cover, inter alia, the manner in which parties are to examine witnesses.172 Under regulation 43 of the RoC, “[s]ubject to the Statute and the Rules, the Presiding Judge, in consultation with the other members of the Chamber, shall determine the mode and order of questioning witnesses and 165

166

167

168 169

170 171

172

Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. Prosecutor v. Bemba et al., Decision on Relevance and Propriety of Certain Kilolo Defence Witnesses, ICC-01/05-01/13-1600, 4 February 2016, para. 8. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 52. Ibid., para. 52. E.g., Prosecutor v. Bemba, Public Redacted Version of the Chamber’s 11 November 2011 Decision regarding the Prosecution’s Witness Schedule, ICC-01/05-01/08-1904-Red, 15 November 2011, paras. 22–36. E.g., ibid., paras. 22–36. Prosecutor v. Ntaganda, Decision on the Conduct of Proceedings, ICC-01/04-02/06-411619, 2 June 2015, para. 31 (emphasis added). E.g., ibid., paras. 21–36.

juri sprudence

279

presenting evidence so as to (a) make the questioning of witnesses and the presentation of evidence fair and effective for the determination of the truth; (b) avoid delays and ensure the effective use of time”. The Chamber may thus reject certain lines of questioning it considers irrelevant, abusive or repetitive, and may impose time limits for crossexamination.173 The Accused has a right to choose not to call evidence or witnesses.174 Where on the closure of the Prosecution case, a Chamber exercises its discretion to rule on whether the Accused has “a case to answer”,175 the Accused may call witnesses, or adduce defence (if he or she so chooses), only if a Chamber rules that he or she has a case to answer.176

III Conclusion Since its inception, to date the Appeals Chamber has elucidated various aspects of fair trial. Although some issues still require clarity, while others have so far only been addressed by other Chambers, the Presidency and the Plenary, the Appeals Chamber may be credited for clarifying critical aspects of the Court’s fair trial framework.

Jurisprudence I General Principles 1 Fairness “Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial. In those circumstances, the interest of the world community to put persons accused of the most heinous crimes against humanity on trial, great as it is, is outweighed by the need to sustain the efficacy of the judicial process as the potent agent of justice.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 39. “Human rights [. . .] aim to sustain the core of humanity and the right to a fair trial is amongst the most consequential ones. Laxity in their protection beholds, as history teaches, great dangers for humanity, such that no 173 175

176

Ibid., paras. 24, 25. 174 Ibid., para. 18. Prosecutor v. Ruto and Sang, Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on “No Case to Answer” Motions), ICC-01/09-01/11-1334, 3 June 2014, paras. 10–18. See generally, ibid.

280 fairness, e xpeditiousness of proceedi ngs, & rights court of law should countenance [. . .]. Necessitous circumstances, grave as they may be, do not overshadow human rights, including, no doubt, the right to liberty.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, paras. 17–18. Diss. Op. “The authority of the judges over the parties within the context of the trial does not negate any Statutory duties of the Prosecutor, but [. . .] it does mean that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “The Appeals Chamber has previously found that proper management of the disclosure regime, including on-going monitoring of the necessity of maintaining redactions, is a key part of ensuring a fair trial, holding, in logic which even more strongly applies to a Trial Chamber, that Pre-Trial Chambers have a continuing duty to review restrictions on disclosure to ensure they are necessary and sufficiently counterbalanced by other procedures.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 58. “The Appeals Chamber has had specific regard to, and emphasises the importance of, the rights of the accused to a fair trial, as detailed in article 67 of the Statute.” Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 86.

1.1

Joint Trials “[R]eference to Mr Ngudjolo Chui’s rights is in itself not improper, given that the trial is a joint one. It would have been improper if the Trial Chamber relied on Mr Ngudjolo Chui’s rights at the expense of Mr Katanga’s rights.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 83.

1.2

Remedy for Unfair Proceedings “A conditional stay of the proceedings may be the appropriate remedy where a fair trial cannot be held at the time that the stay is imposed, but where the unfairness to the accused person is of such a nature that a fair

jurisprudence trial might become possible at a later stage because of a change in the situation that led to the stay. If the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay of the proceedings may decide to lift the stay of the proceedings in appropriate circumstances and if this would not occasion unfairness to the accused person for other reasons, in particular in light of his or her right to be tried without undue delay (see article 67(1)(c) of the Statute).” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 4–5.

1.3 Administrative Detention “[T]he Appeals Chamber recalls that Mr Ngudjolo is currently detained at an administrative detention centre at Schiphol airport, in connection with his request for asylum in the Netherlands. His detention is governed by the ‘Internal Rules and Regulations for Aliens Detention Centre’ [. . .]. As such, Mr Ngudjolo is under the jurisdiction of the Dutch authorities and the Appeals Chamber is not the competent judicial body to review the detention conditions pursuant to the Internal Rules and Regulations. Rather, the Appeals Chamber’s jurisdiction is limited to an assessment of whether the conditions of his detention infringe upon Mr Ngudjolo’s fair trial rights in relation to the proceedings before this Court.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 OA, 24 April 2013, para. 8. “The Appeals Chamber finds that the conditions in the administrative detention centre [daily access to counsel, access to hard copies of his case file, unmonitored phone calls to privileged contacts and the presence of a co-detainee], as laid out by the Internal Rules and Regulations and as described by Mr Ngudjolo, do not infringe upon his fair trial rights in relation to the proceedings before this Court.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 OA, 24 April 2013, para. 13.

1.4 Legal Certainty “Under the European Convention the need for certainty is an indispensable element of a right to a fair hearing.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 59. Diss. Op. “Thus, in order to achieve certainty, a Chamber, when faced with an issue that is not regulated by a relevant legal provision, should compensate for the lack of such a provision that would otherwise provide certainty.

281

282 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s In doing so, the Chamber provides the necessary certainty and predictability to the parties and it ensures that the proceedings are properly organised. This in turn guarantees due respect for the rights of the parties. In this respect, Chambers should have in place a clear policy which will indicate to the parties how it expects the proceedings to unfold and in particular, as far as the issue at stake is concerned, that parties are expected to file motions, not otherwise regulated by law, whenever they are in a position to effectively exercise their right. This is an assessment that depends primarily on the facts of each particular case.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 60. Diss. Op.

2 Expeditiousness “The Appeals Chamber observes that expeditiousness is a recurrent theme in the Court’s legal instruments. The Statute and the Rules of Procedure and Evidence place an onus on all those involved in the trial to act in a diligent and expeditious manner in the performance of their obligations. The duty applies to the Chambers of the Court, the parties and participants. As regards the accused person, where he or she is represented by counsel, the Code of Professional Conduct for Counsel enjoins counsel to represent him or her ‘expeditiously with the purpose of avoiding unnecessary delay in the conduct of the proceedings’.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 43. “The need to act expeditiously must also be viewed in the context in which the Court operates. The crimes under the Court’s jurisdiction are by their nature complex and their adjudication takes time. It is vital for cases to be properly managed from the start to forestall unnecessary delays.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 45. “An expeditious trial is beneficial to victims. It assures them of receiving justice and of going through the healing process quickly. For witnesses, it relieves them as soon as possible of the anxiety of having to appear in court to give evidence. Unreasonable delay in commencing or finalising a trial may also diminish public interest [in] and public support for, and cooperation with, the Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 46.

jurisprudence “Expeditiousness is thus an independent and important value in the Statute to ensure the proper administration of justice, and is therefore more than just a component of the fair trial rights of the accused. For this reason, article 64(2) enjoins the Trial Chamber to ensure that the trial is both fair and expeditious.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 47. “We do not disagree that there is a need for, and obligation on, Chambers to ensure that trials before the Court are conducted expeditiously. However, Chambers are equally required to ensure ‘full respect for the [other] rights of the accused’, as guaranteed not only through article 64(2) but also through an independent provision dealing with the issue – article 67. In this regard, the rights of the accused must not be infringed at the expense of expeditiousness.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 47. Diss. Op. “[T]he onus of ensuring expeditiousness falls squarely on the relevant Chamber. As a result, regardless of the conduct of the parties, it is the duty of the judicial authority in question, namely, the Trial Chamber in this instance, to ensure expeditiousness.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 50. Diss. Op. “While expeditiousness is an important component of a fair trial, it cannot justify a deviation from statutory requirements.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 55.

3 Proportionality between Fairness and Expeditiousness “In its [the Appeals Chamber’s] view, when dismissing the Defence Motion, the Trial Chamber appropriately balanced Mr Katanga’s rights and the need for expeditiousness. Requiring the accused person to act in an expeditious manner is not in itself inconsistent with full respect for his rights [. . .]. [T]he accused’s rights are given full respect as long as the accused person has been given adequate opportunity to assert them [. . .]. Mr Katanga was given an adequate opportunity to

283

284 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e e d i n g s , & r i g ht s raise his alleged unlawful arrest and detention in the DRC. He did not, however, avail himself of this opportunity.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 64. “The Appeals Chamber finds that in issuing the Order of 13 November 2008, the Trial Chamber was discharging its duty to be fair to Mr Katanga, in the sense of giving him a chance to raise, inter alia, the issue of his alleged unlawful pre-surrender arrest and detention in the DRC. By inviting the parties to present relevant issues a month after it was constituted, the Trial Chamber was seeking to ensure that the trial proceeded fairly and expeditiously.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 65. “The Appeals Chamber therefore finds that the Trial Chamber respected the principle of proportionality in the present case, ensuring fairness to Mr Katanga and the expeditiousness of the proceedings when concluding that Mr Katanga had not furnished it with any convincing reasons why the Defence Motion [alleging pre-surrender unlawful arrest and detention and seeking a stay of Proceedings] was filed seven months after the Order of 13 November 2008 and declining to consider its merits.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 67. See also Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/0401/07-2297 OA10, 28 July 2010, para. 99. Diss. Op.177

II Right to be Informed of the Charges and to Adequate Time to Prepare Defence “[A]rticle 67(1)(a) of the Statute does not preclude the possibility that there may be a change in the legal characterisation of facts in the course of the trial, and without a formal amendment to the charges. This is supported by the jurisprudence of the ECtHR on article 6(3)(a) of the Convention for the Protection of Human Rights and Fundamental 177

In their Dissenting Opinion, the judges held that “[t]he Trial Chamber also erred in the exercise of its discretion by failing to properly balance the factors contained in article 64(2) and, in particular, by placing too much emphasis on the requirement for expedition without considering the rights of the accused”.

jurisprudence Freedoms and of the Inter-American Court of Human Rights on article 8(2)(b) of the American Convention on Human Rights.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 84. “[H]uman rights law demands that the modification of the legal characterisation of facts in the course of the trial must not render that trial unfair. The Appeals Chamber notes in this context that article 67(1)(b) of the Statute provides for the right of the accused person to ‘have adequate time and facilities for the preparation of the defence’. It is to avoid violations of this right that regulation 55(2) and (3) set out several stringent safeguards for the protection of the rights of the accused. How these safeguards will have to be applied to protect the rights of the accused fully [. . .] will depend on the circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. “[A]rticle 67(1)(a) of the Statute is not concerned with the timing of rulings on the admissibility of evidence. The accused person enjoys the right to be informed of the nature, cause and content of the charges against him. This information has already been provided to Mr Bemba: Mr Bemba was, at the pre-trial stage, served with the document containing the charges, the evidence supporting those charges and the Confirmation Decision. The evidence upon which the Prosecutor intends to rely at trial has also been disclosed to him. In addition, the Trial Chamber ordered the Prosecutor to submit an updated ‘in-depth analysis chart’, setting out in detail how the documentary evidence and witness statements related to the Prosecutor’s factual allegations. Thus, Mr Bemba has been made fully aware of the factual and legal allegations against him.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 63. “[T]he Appeals Chamber notes that article 67(1)(a) of the Statute is based on similar provisions in international human rights treaties. In respect of article 6(3)(a) of the European Convention on Human Rights, the European Court of Human Rights [. . .] and the European Commission of Human Rights (hereinafter: ‘ECommHR’) have held that the ‘cause’ of a charge are ‘the acts [the accused] is alleged to have committed and on which the accusation is based’, and that the ‘nature’ is the legal characterisation of those alleged acts. The ECommHR has held that the information as to the charges does not ‘necessarily [have to mention] the evidence on which the charge is based’. This jurisprudence thus also indicates that the right to be informed of the charges is not concerned with the timing of admissibility rulings.”

285

286 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64. “[T]he Appeals Chamber notes that Mr Ngudjolo’s Counsel is providing him with hard copies of the documents which are necessary for the preparation of his defence. As such, Mr Ngudjolo does have access to his case file, albeit not electronically. The Appeals Chamber considers that the lack of electronic access to his case file does not prejudice Mr Ngudjolo’s ability to prepare his defence.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 A, 24 April 2013, para. 10.

III Right of the Accused to Silence “[T]he accused has the right to remain silent and is entitled to exercise that right without silence being a consideration in the determination of guilt or innocence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 42. “The Appeals Chamber does not regard the Impugned Decision as having impacted upon the exercise by the accused of his right to silence. The points raised by the relevant part of the Impugned Decision could only arise if the accused voluntarily chose to raise a defence or issue at a stage in proceedings that was ‘unnecessarily and unjustifiably late’.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 44. “The lack of any correlation between the right to receive prosecution disclosure and any disclosure obligations of the Defence is evident in that the Prosecutor is duty-bound to provide full disclosure even if an accused elects to remain silent or does not raise a defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 50. “The very invitation of the Trial Chamber to the accused to disclose his lines of defence does suggest that the right to silence is not absolute. The undoubted right of the accused to silence, without such silence drawing adverse inferences, proclaimed in the decision of the Trial Chamber [. . .] signifies [. . .] that the accused, be it at some stage of the proceedings, is under a duty to disclose his lines of defence. And if he fails to do so, there may be consequences [. . .].”

jurisprudence Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 11. Diss. Op. “The right to silence, guaranteed by article 67(1)(g) of the Statute as the fundamental right of the accused, is in no way qualified, save in relation to the specific defences prescribed in rule 79 of the Rules. The Statute does not merely guarantee the right to silence as the inalienable right of the accused, but further provides that its exercise should draw no adverse consequences for him/her. By the decision of the Trial Chamber, the exercise of the right to silence can draw adverse consequences, of which the accused is warned. The decision compromises the right of the accused to silence in a direct way.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 14. Diss. Op. “[T]he Statute assures to the accused the right ‘not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal’. The right to silence is interwoven with the presumption of innocence of the accused. The accused is presumed to be innocent. He does not have to prove his innocence. What he must do in order to free himself from the accusation is to cast doubt on its validity; it is his right to be acquitted unless the accusations against him are proven beyond reasonable doubt.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 14. Diss. Op.

IV Right of the Accused in Relation to Languages 1 Standard Required by the ICC “The language in paragraph (1)(a) and (1)(f) is similar in that the phrase ‘fully understands and speaks’ is repeated. On its face it is clear that this standard is not low. It is a language an accused must both understand and speak and this, fully understand and speak. ‘Fully’ is defined in the online Oxford English Dictionary as ‘[i]n a full manner or degree; to the full, without deficiency; completely, entirely; thoroughly, exactly, quite’. The French version of ‘fully’ in the Statute is ‘parfaitement’ which is defined in Le Nouveau Petit Robert, Dictionnaire Alphabétique et Analogique de la Langue Française’ as, inter alia, ‘[d] une manière parfaite, [s]avoir parfaitement une langue’ and ‘[a]bsolument, complètement, entièrement, être parfaitement hereux [. . .]’. It suffices to state that the meaning of this provision based on these definitions provides that the standard that must be required under article 67 is very high.”

287

288 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 40. “Given the addition of the word fully, and the drafting history, the standard must be high. Therefore, the language requested should be granted unless it is absolutely clear on the record that the person fully understands and speaks one of the working languages of the Court and is abusing his or her right under article 67 of the Statute. An accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer. If there is any doubt as to whether the person fully understands and speaks the language of the Court, the language being requested by the person should be accommodated. Ultimately, the Chamber in question is responsible for ensuring the fair trial of the accused.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 61. “‘[A]rticle 67(1)(a) and (f) of the Statute relates to the language ability and knowledge of the suspect and/or accused, not of his/her [c]ounsel and/or defence team’.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 11, citing Prosecutor v. Mbarushimana, Decision on the Defence Request for Reconsideration, ICC-01/04-01/10-505 OA4, 23 March 2012, para. 10. “[T]here is no general requirement that filings of parties and participants submitted in English be translated into French, or vice versa [. . .].” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 10. “[N]one of the documents of which translations have been requested [the Prosecution’s Document in Support of the Appeal, the Decision Granting Leave to Appeal and the Dissenting Opinion of Judge Fernandez de Gurmendi to the Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute] may be considered to be documents which would serve to inform Mr Gbagbo of the ‘nature, cause and content of the charge’ against him within the meaning of article 67(1)(a) of the Statute. Similarly, given the nature and context of the present appeal, the Appeals Chamber does not consider that the requested translations into the language that Mr Gbagbo fully understands and speaks ‘are necessary to meet the requirements of fairness’ within the meaning of article 67(1)(f) of the Statute.”

jurisprudence Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 12. “The Appeals Chamber considers that Mr Gbagbo’s counsel must be in a position to explain to him the issues raised in the present appeal. In this regard, the Appeals Chamber notes the Prosecutor’s submission that Mr Gbagbo’s defence team has in the past demonstrated that it is perfectly capable of understanding and responding to decisions by Chambers and submissions of the Prosecutor and Registrar that were filed in English. The Appeals Chamber notes the finding of the Single Judge of Pre-Trial I that ‘based on the previous course of proceedings in this case, [. . .] the unavailability at present of an official French translation of the Decision does not affect the ability of Mr Gbagbo’s Defence to properly represent his interests’.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 13.

2 Relationship between the ICC Standard and the Standards of Other Courts “The rights set out in paragraph (1)(a) and (f) are not dissimilar to comparable provisions to be found in legal texts associated with other courts and tribunals. However, those legal texts, contrary to article 67 of the Statute, do not, in relevant part, include the word ‘fully’.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 42. “All of these provisions use the term ‘understands’ or ‘understand or speak’; article 67 of the Statute refers to ‘fully understands and speaks’. As a result, the assistance to be derived from any jurisprudence interpreting these provisions is limited in light of the differences between the relevant provisions. The jurisprudence does not offer direct guidance as to what the standard under article 67 of the Statute should be; it indicates how the standard ‘understands’ has been implemented in practice at the international level.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 48. “There seems to have been an intention to grant to the accused before the Court, rights of a higher degree than in other courts referred to. There must be a difference between an entitlement to a language one understands or speaks (or simply understands) and a language one fully understands and speaks.”

289

290 f a i r n e s s , ex p edi t i o us n es s o f p roc eed ings, & rights Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 49. “[T]he Appeals Chamber considers that the standard applicable under the Statute is high – higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR. To give effect to this higher standard must mean that an accused’s request for interpretation into a language other than the Court’s language must be granted as long as he or she is not abusing his or her rights under article 67 of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 62.

V Right of the Accused to Trial without Undue Delay/Expeditious Proceedings “In face of accusation the rights of a person should ideally be determined immediately, if possible. Reality makes this unachievable. This is one of the principal reasons that human rights prescribe that the accused should be tried without delay or within a reasonable time. The right of the accused to trial without undue delay is assured as his/her fundamental right by article 67(1)(c) of the Statute, in pari passu with the other rights safeguarded to the accused by the same article. The time factor is in itself an element in the configuration of a fair trial [. . .]. Undue delay is evidenced by the very fact of stay of the proceedings [. . .]. [A]menity to hold a fair trial is determined from the viewpoint of the time perspective at which the trial should be held.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 14. Diss. Op. “Not only is trial without undue delay assured as a right of the accused, but the Statute goes a step further. Article 64(2) of the Statute binds the Court to hold, not only a fair, but an expeditious trial too. Expeditiousness denotes the speedy doing or transaction of something. The standard introduced by article 64(2) of the Statute is more stringent than the one imported by the requirement of trial being held without undue delay, which is incorporated in the notion of a fair trial; a standard that the Court is duty bound to uphold.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 15. Diss. Op. “The timelines of the proceedings is singled out in mandatory terms as a distinct element of a trial under the Statute, not only as an attribute to a fair trial.”

jurisprudence Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 31. Diss. Op. “The object of article 64(2) is to ensure that the trial is managed properly and expeditiously whilst giving full respect to the rights of the accused. However, full respect for the rights of the accused does not mean that a Trial Chamber may not control the manner in which an accused person acts in the proceedings. Under article 64(2) of the Statute, the Trial Chamber has the power to regulate the conduct of the parties and participants so as to ensure, among other considerations, that such conduct does not cause undue delay to the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 53. “Requiring the accused person to act in an expeditious manner is not in itself inconsistent with full respect for his rights [. . .]. [T]he accused’s rights are given full respect as long as the accused person has been given the adequate opportunity to assert them.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 64.

VI Right of the Accused to Legal Representation “The right of the accused to legal representation by counsel as well as the corresponding right of a person against whom charges have been laid is safeguarded as his/her fundamental right under provisions of article 67(1) (d) of the Statute and rule 121(1) of the Rules of Procedure and Evidence. Such a right is a universally recognized human right (see article 21(3) of the Statute) [. . .].” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “The Regulations of the Court must be read subject to the fundamental right of the accused to legal representation.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “The right to legal representation by counsel of one’s choice like every other human right of a litigant must be exercised in a manner attuned to and consistent with the principles of a fair trial, with which it is interwoven, and within the framework of the Statute, the Rules of Procedure and Evidence and the Regulations of the Court. Hence, it must be

291

292 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s exercised with due regard to the requisites of a fair trial, including those designed to assure that the proceedings are conducted within a reasonable time.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 4. “What cannot be denied to the accused or a person under charge is a reasonable opportunity to appoint counsel of their choice and affording them adequate time and facilities to prepare their defence.” However, “[t]he right to choose Counsel for the representation of a person in legal proceedings must, like every right of the accused or the person under charge, be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, paras. 13, 15. “Article 67(1)(d) provides that the accused person shall have the right to be present at the trial and provides for a right to legal assistance. The first and second sentences of rule 121(1) of the Rules of Procedure and Evidence extend these rights to persons who appear before the Pre-Trial Chamber pursuant to a warrant of arrest or summons to appear.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 65. “The plain meaning of this provision [rule 121(1)] clearly shows that the ‘person’ referred to in the second sentence of the provision refers to persons appearing before the Pre-Trial Chamber, and not to those for whom warrants of arrest or summons to appear have been issued, but who have not yet appeared before the Court.” As a result, “the Pre-Trial Chamber was not obliged to appoint counsel to represent the four suspects” in admissibility proceedings when those suspects had not yet been arrested. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 66, 68. “[R]egulation 83 of the Regulations of the Court provides a specific and exhaustive procedure for the determination and review thereof of the scope of legal assistance to which an accused may be entitled.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15.

jurisprudence

VII Right of the Accused to Be Heard and Right to a Reasoned Decision 1

Denial of the Right to be Heard

“This [Mr Katanga’s right to be heard] is a fundamental right that is guaranteed at the national level, such as in the procedural due process context, and also at the international level.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 56. Diss. Op. “[T]he right to be heard is not absolute and may be subject to limitations [. . .]. In the absence of adequate opportunity to be heard, a fundamental right, such as the right to a fair hearing, is only restricted in human rights and ad hoc tribunal jurisprudence through a proportionality assessment that looks to whether the restriction is in service of a sufficiently important objective that must impair the right no more than is necessary to accomplish the objective.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 57. Diss. Op.

2 Right to a Reasoned Decision “[T]he right to a reasoned decision is an element of the right to a fair trial and that only on the basis of a reasoned decision will proper appellate review be possible [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30. “The ex parte character of the proceedings [does] not reduce the need for the Impugned Decision to be properly reasoned, but [makes] the provision of proper reasoning more necessary because the Appellant [cannot] rely on the context in which the Impugned Decision was made to determine how the Pre-Trial Chamber reached its decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 22; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33.

293

294 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s “The extent of the reasoning will depend on the circumstances of the case, but it is essential that it indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 46, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 10. Diss. Op. “[D]espite those shortcomings of the Impugned Decision [lack of detailed analysis and reference to footnotes instead of stated conclusions], the Appeals Chamber does not consider that the decision is so lacking in reasoning that it can be said that the Pre-Trial Chamber failed to comply with its obligations to provide a reasoned decision and therefore made an error of law.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 48. “Reasoning is at the heart of a judicial decision and an important aspect of the right to a fair trial. Articles 64(2) and 67(1) of the Statute require the Court to conduct a fair trial. Beyond that, article 21(3) of the Statute stipulates that the legal texts of the Court must be interpreted and applied in accordance with internationally recognised human rights, to which the principle of a fair trial belongs.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 8. Diss. Op. “The need to have reasoned judicial decisions is supported by the jurisprudence of human rights bodies [. . .]. The jurisprudence and opinions of all these bodies clarify that providing reasoning is a requirement of a fair trial that contributes to the acceptance of the decision by the parties and to preserving the rights of the defence. It requires that courts indicate with sufficient clarity the grounds upon which they base their decisions. While they are not obliged to give a detailed answer to every argument raised, the courts must base their reasoning on objective arguments and it must be clear from the decision that the essential issues of the case have been addressed. Further, and importantly, reasoning is the basis for raising an appeal and allows the appellate body to review a decision.”

jurisprudence Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 9. Diss. Op. “[I]n the absence of sufficient reasoning in the Decision of 13 July 2012, an assessment of ‘changed circumstances’ in the current view of detention is problematic.” Prosecutor v. Gbagbo, Separate Opinion of Judge Kourula in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx1 OA4, 29 October 2013, para. 2. Sep. Op. See also Prosecutor v. Gbagbo, Dissenting Opinion of Judge Kourula in the Judgment on Interim Release, ICC-02/11-01-11-278-Red OA, 26 October 2012, para. 2. Diss. Op.

VIII Defence Strategy or Discretion to Present its Case “While a party has a discretion to organise and conduct his or her case in a manner that he or she deems appropriate, that discretion is not absolute [. . .]. [T]he discretion may be circumscribed by the Statute, Rules of Procedure and Evidence and the Regulations of the Court. Additionally, the Appeals Chamber must also emphasise that the Trial Chamber’s obligation to regulate the proceedings to ensure that the trial is fair and expeditious under article 64(2) of the Statute. Thus, while the parties are allowed some leeway in deciding how to conduct their cases, this cannot override the Trial Chamber’s said obligation. The defence strategy must respect both the procedural framework established by the Court’s legal instruments and the overall interests of the administration of justice.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 77. “The Appeals Chamber sees merit in the Trial Chamber’s conclusion that strategic reasons in themselves could not justify the untimely filing of the motion.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 79. “[W]e do not find that a counsel has an unlimited right to strategise at the expense of the trial as a whole, but he must have a certain right. There is a difference between strategic decisions that are made as part of an overall defence strategy to the case and decisions that amount to strategic efforts to undermine the conduct of proceedings.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of

295

296 fairness, e xpeditiousness of proceedi ngs, & rights Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 89. Diss. Op.

IX Stay of Proceedings for Denial of Fairness or Abuse of Process “Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04-01/06-772 OA4, 14 December 2006, para. 39; Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10.

1 Legal Basis for a Stay of Proceedings: Article 21(3) “Abuse of process is a principle associated with the administration of justice [. . .]. It is a principle evolved by English case law constituting a feature of the common law adopted in many countries where this system of law finds application.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 26. “[In application of this principle], [a]uthority is acknowledged to a court of law to stop a judicial proceeding, at the outset and less frequently in the process, by declining jurisdiction in a judicial cause, where to do otherwise would be odious to the administration of justice.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 27. “The doctrine of abuse of process as known to English law finds no application in Romano-Germanic systems of law. The principle encapsulated in the Latin maxim male captus bene detentus has received favourable reception [in a number of cases].178 But where serious violations of the fundamental rights of the accused or international law are involved, the rule is mitigated.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 33, see generally paras. 26–33.

178

The Chamber noted that “[t]he principle received a favourable reception in the French case of Re Argoud; a less enthusiastic one in the old French case of Re Jollis. The German Constitutional Court, too, appears to have endorsed like principles to those approved in Re Argoud”.

juri sprudence

297

“Jurisdiction apart, admissibility is the only ground envisaged by the Statute for which the Court may validly refrain from assuming or exercising jurisdiction in any given cause. Abuse of process is not listed as a ground for relinquishing jurisdiction in article 17 of the Statute.”179 Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34. See also Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, paras. 100–101. “The Appeals Chamber shall not examine the implications of article 4(1) of the Statute for under no circumstances can it be construed as providing power to stay proceedings for abuse of process. The power to stay proceedings for abuse of process, as indicated, is not generally recognised as an indispensable power of a court of law, an inseverable attribute of the judicial power. The conclusion to which the Appeals Chamber is driven is that the Statute does not provide for stay of proceedings for abuse of process as such.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 35. See also Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. “The Statute safeguards the rights of the accused as well as those of the individual under interrogation and of the person charged. Such rights are entrenched in articles 55 and 67 of the Statute. More importantly, article 21(3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 36. “Article 21(3) of the Statute stipulates that the law applicable under the Statute must be interpreted as well as applied in accordance with internationally recognized human rights. Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 37. 179

It challenges merely the exercise of jurisdiction once jurisdiction itself is affirmed insofar as the claim of abuse of process represents a sui generis application, an atypical motion. See also the digested cases under Chapter B, Jurisdiction and Admissibility, section I, Jurisdiction of the Court, above.

298 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e e d i n g s , & r i g ht s

2 Principles Guiding a Stay of Proceedings “Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 37. “Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed [. . .]. Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial. In those circumstances, the interest of the world community to put persons accused of the most heinous crimes against humanity on trial, great as it is, is outweighed by the need to sustain the efficacy of the judicial process as the potent agent of justice.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 39. See also Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. “The power of a court of law to stay proceedings should be sparingly exercised [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 31. “Not every infraction of the law or breach of the rights of the accused in the process of bringing him/her to justice will justify stay of proceedings. The illegal conduct must be such as to make it otiose, repugnant to the rule of law to put the accused on trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 30. “Room for its exercise [stay of proceedings] is provided where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 31. “‘[I]f, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved

jurisprudence during the trial process, it is necessary [. . .] that the proceedings should be stayed.’” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 76. “[T]he Court’s legal instruments do not bar an accused person from bringing a motion challenging his or her alleged unlawful pre-surrender arrest and detention with a view to seeking a stay of proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 48, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 36–39.

3 Circumstances in which a Stay of Proceedings has been Contemplated “Instances of stay of proceedings on grounds of the principle of abuse of process are provided by cases involving a) delay in bringing the accused to justice, b) broken promises to the accused with regard to his prosecution, c) bringing the accused to justice by illegal or devious means.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 29. A stay of proceedings was upheld by the Appeals Chamber where “a large number of documents containing potentially exculpatory information or information relevant to the preparation of the defence was in the possession of the Prosecutor, but could not be disclosed to [the accused]. Nor could the Trial Chamber have access to the documents in order to assess whether a fair trial could be held even without the disclosure of the documents”. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 97.

4 Circumstances in which the Stay of Proceedings has not been Upheld by the Appeals Chamber 4.1 Refusals to Comply with Orders of a Chamber “[T]he Prosecutor’s refusal to comply with or to be bound by the orders of the Trial Chamber [related to matters of protection of those affected by their interaction with the Court, in the sense that they had dealings with the Prosecution] extended to a significant part of the trial and concerned issues of the trial’s fundamental fairness. It threatened not only Mr Lubanga Dyilo’s right to be tried without undue delay but also the fairness of the proceedings as a whole. If a Trial Chamber loses control of such

299

300 f a i r n e ss , ex p edi t i o us n es s o f p roc eed ings, & rights a significant and fundamental part of proceedings because of the Prosecutor’s refusal to comply with its orders, it would indeed be impossible to ensure a fair trial, and a stay of proceedings would then be justified.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 58. “However, the Appeals Chamber finds that the Trial Chamber had not yet lost control of the proceedings in this case. The Appeals Chamber notes that article 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when faced with the deliberate refusal of a party to comply with its directions [. . .]. [S]anctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. “Recourse to sanctions enables a Trial Chamber, using the tools available within the trial process itself, to cure the underlying obstacles to a fair trial, thereby allowing the trial to proceed speedily to a conclusion on its merits. Doing so, rather than resorting to the significantly more drastic remedy of a stay of proceedings, is in the interests, not only of the victims and of the international community as a whole who wish to see justice done, but also of the accused, who is potentially left in limbo, awaiting a decision on the merits of the case against him by the International Criminal Court or another court.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60. “In predicating the stay of proceedings on its perceived loss of control over proceedings from that point forward [because of the Prosecutor’s evinced intention not to comply with orders of the Chamber on matters of protection], the Trial Chamber did not conclude that a fair trial already had become irreparably impossible. To the contrary, the Trial Chamber considered that, if the circumstances changed, a fair trial could conceivably become possible once again. There was, as such, no obstacle to imposing sanctions and allowing them a reasonable opportunity to induce compliance and, therefore, to change the very circumstances which made a fair trial prospectively impossible [. . .]. It is the view of the Appeals Chamber that, before ordering the stay of proceedings, the Trial Chamber should have imposed sanctions and given such sanctions a reasonable time to bring about their intended effects.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 61.

j u r i s p r ud e n c e “The Appeals Chamber does not preclude the possibility that, in some situations, a fair trial may have become irreparably impossible, including for reasons unrelated to the refusal of a party to comply with its orders, and that a stay would be justified before the imposition of sanctions.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, p. 26, fn. 135.

4.2 To Assist Litigation “No need arises to do so [to stop the proceedings where justice could not be done] in this case inasmuch as what the application of Mr Lubanga Dyilo really aims at is a respite in order to submit the documents due with the benefit of counsel’s help and advice. Effective representation is sought in order to enable him to fulfil [sic] his obligations in the litigation in hand. The Regulations of the Court acknowledge in regulation 35(2) power to a Chamber to extend the time set down by its directions for the presentation of a party’s case before it.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 11.

5 Permanent Stay versus Conditional Stay of Proceedings “Stay of proceedings for an indefinite or indeterminate period of time is an extreme measure, not lightly countenanced in any jurisdiction.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. A permanent stay of proceedings was considered in the context of allegations that the accused had been “illegally detained and ill-treated by the Congolese authorities and that the Prosecutor had illegally colluded with these authorities, in contravention of the rights of the Appellant. The nature of the allegations was such that, if established, the breaches of the rights of the Appellant might have led to an objectively irreparable and incurable situation. Accordingly, [. . .] a stay of proceedings imposed on such a basis would be absolute and permanent.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 79. “If the unfairness to the accused person is of such nature that – at least theoretically – a fair trial might become possible at a later stage because of a change in the situation that led to the stay, a conditional stay of the proceedings may be the appropriate remedy. Such a conditional stay is not entirely irreversible: if the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay may decide to lift it in appropriate circumstances and if this would not occasion unfairness to

301

302 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s the accused person for other reasons, in particular in light of his or her right to be tried without undue delay (see article 67(1)(c) of the Statute). If a trial that is fair in all respects becomes possible as a result of changed circumstances, there would be no reason not to put on trial a person who is accused of genocide, crimes against humanity or war crimes – deeds which must not go unpunished and for which there should be no impunity [. . .].” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 80. “At the same time, the right of any accused person to be tried without undue delay (article 67(1)(c) of the Statute) demands that a conditional stay cannot be imposed indefinitely. A Chamber that has imposed a conditional stay must, from time to time, review its decision and determine whether a fair trial has become possible or whether, in particular because of the time that has elapsed, a fair trial may have become permanently and incurably impossible. In the latter case, the Chamber may have to modify its decision and permanently stay the proceedings.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 81.

I Offences against the Administration of Justice and Misconduct before the Court Commentary

g e o r g e m u g w a ny a Article 70 of the Statute grants the Court jurisdiction over “offences against the administration of justice”, or what the ad hoc tribunals refer to as “contempt of court”.1 These offences are a means of protecting the Court against efforts to undermine the reliability of evidence presented before it and the impartiality of its decision-making process.2 There is no immunity for these offences. The Presidency has held that even counsel practising before the Court and persons supporting such counsel, are liable for prosecution if they engage in the proscribed conduct.3 1

2

3

See rule 77(A), of the respective Rules of Procedure and Evidence of the UN Tribunal for the former Yugoslavia, the UN Tribunal for Rwanda and the Special Court for Sierra Leone. Piragoff, D., “Article 70: Offences against the Administration of Justice”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1338. Situation in the Central African Republic, Decision on the Urgent Application of the Single Judge of Pre-Trial Chamber II of 19 November 2013 for the Waiver of the Immunity of Lead Defence Counsel and the Case Manager for the Defence in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3001, 20 November 2013, paras. 8–13. Counsel or persons supporting such counsel would not benefit from the Headquarters Agreement between the International Criminal Court and the Host State (The Hague, 7 June 2007, in force 1 March 2008, ICC-BD/04-01-08) or the Agreement on the Privileges and Immunities of the International Criminal Court (New York, 9 September 2002, in force 22 July 2004, ICC-ASP/1/3) for conduct depicted in article 70. The immunity enjoyed under these agreements is available only to the extent necessary for the independent performance of their functions. The legitimate functions to be performed by counsel and persons assisting them do not extend to the types of conduct proscribed under article 70. See para. 10. In any case, to the extent that counsel may claim any immunity, the Presidency has a duty to waive it if (a) it would impede the course of justice, and (b) it can be waived without prejudice to the purpose for which it was accorded, see paras. 11–13. Here, granting counsel immunity from arrest or detention may impede the course of justice “were those persons [. . .] to flee and evade investigation or prosecution for article

303

304

offences ag ainst the adminis tration

So far, the Appeals Chamber has not yet elaborated on the substantive elements of the article 70 offences.4 Only Pre-Trial Chamber II and Trial Chamber VII, in the Bemba et al. case, have elucidated the substantive elements of three offences: giving false testimony under an obligation pursuant to article 69; presenting false or forged evidence; and corruptly influencing a witness.5 Further litigation before the Appeals Chamber on the elements of these crimes is still likely. Indeed, the first appeals from convictions for article 70 offences that have recently been submitted to the Appeals Chamber appear to contest aspects of the substantive elements of some of these offences.6 The Appeals Chamber has, however, resolved some procedural matters as part of its interlocutory litigation. This includes the mandate of the Prosecutor to initiate and prosecute these offences, and the overall seriousness of the offences vis-à-vis the crimes of genocide, crimes against humanity and war crimes. The following materials comment on these two matters. A brief commentary is also made on misconduct before the Court (article 71 of the Statute).

I The Prosecutor’s Mandate to Initiate Investigations and Prosecutions The power to initiate or conduct investigation into article 70 offences is vested in the Prosecutor, and not in any other entity.7 In contrast

4

5

6

7

70 offences [. . .]”, see para. 12. Concerning condition (b), the waiver of the immunity cannot prejudice the purpose for which the immunity was accorded because the commission of article 70 offences falls outside the purpose for which such immunities are normally granted to counsel, see para. 13. At the date of the delivery of this manuscript for publication, the appeal briefs had been submitted in Prosecutor v. Bemba et al., ICC-01/05-01/13. Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/05-01/13-749, 11 November 2014, paras. 28–30; Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Judgment Pursuant to Article 74 of the Statute, ICC-01/05-01/13-1989-Red, 19 October 2016, paras. 19–50. See, e.g., Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Public Detailed Notice of Appeal, ICC-01/05-01/13-2017, 14 February 2017, para. 20(c) (Mangenda notified his intention to challenge the Trial Chamber’s alleged failure “to distinguish between indications of permissible witness preparation and criminal coaching”. In addition, he claims that the Chamber “erred in inferring that reporting on witnesses’ performance in court was indicative of a coaching scheme as opposed to a lawful scheme to effectively defend [the accused]”). Prosecutor v. Lubanga, Decision on the Request of the Defence in Relation to Investigations Conducted Pursuant to Article 70 of the Statute, ICC-01/04-01/06-3114, 17 June 2014, para. 19.

commentary

305

to the ad hoc tribunals,8 not even a Chamber has this mandate, even if it initially alerts the Prosecutor to a potential crime perpetrated before it. Rather, pursuant to rule 165, “the Prosecutor may initiate and conduct investigations with respect to offences defined in article 70 [. . .] on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source. It follows that the decision whether to initiate or conduct investigations on alleged offences as provided by article 70 of the Statute lies within the purview of the Prosecutor.”9 The Lubanga case provides a helpful example of this relationship in practice. There, a Trial Chamber had communicated to the Prosecutor pursuant to article 70 of the Statute and rule 165 of the Rules its findings in the decision on conviction that two Prosecution witnesses may have encouraged, persuaded or assisted witnesses to give false evidence.10 The Chamber’s communication did not amount to an order that the Prosecutor initiate or carry out an investigation – the Prosecutor retained discretion to pursue the matter further. In the Lubanga case, the Prosecutor chose to engage an independent consultant to examine available evidence, and on the basis of his report, and the Prosecutor’s own assessment, the Prosecutor chose not to pursue further investigations and/or prosecution of the named persons.11 The Appeals Chamber did not intervene in these matters, and dismissed Lubanga’s requests to do so.12

II Gravity of Article 70 Offences vis-à-vis Articles 5–8 Crimes Article 70 offences are proscribed as offences “against the administration of justice”,13 and are independent from articles 5–8 crimes. Article 70(1) provides that offences against the administration of justice must be committed intentionally. The Appeals Chamber has held that while they are strictly not as grave as articles 5–8 crimes, article 70 offences 8

9

10

See the respective rule 77(C) in the ICTY, Rules of Procedure and Evidence (as amended 8 July 2015), in force 14 March 1994, UN Doc IT/32/Rev.50; ICTR, Rules of Procedure and Evidence (as amended 13 May 2015), in force 29 June 1995, UN Doc ITR/3/REV.1; and SCSL, Rules Of Procedure and Evidence (as amended 31 May 2012), 16 January 2002, in force 12 April 2002. Prosecutor v. Lubanga, Decision on the Request of the Defence in Relation to Investigations Conducted Pursuant to Article 70 of the Statute, ICC-01/04-01/06-3114, 17 June 2014, para. 19. Ibid., para. 20. 11 Ibid., paras. 12–15. 12 Ibid., para. 23. 13 Article 70(1).

306

offences ag ainst the adminis tration

are “certainly serious in nature”.14 According to Pre-Trial Chamber II, article 70 offences “threaten or disrupt the overall fair and efficient functioning of the justice in the specific case to which they refer” and “ultimately undermine the public trust in the administration of justice and the judiciary”.15

III Misconduct before the Court Article 71 of the Statute empowers the Court to sanction “persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions”. Unlike article 70 offences, the Court may only impose “administrative measures” other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. The purpose of article 71 sanctions is not merely to punish, but to ensure that a Chamber retains control over the proceedings which is necessary to achieve a fair trial. In the view of the Appeals Chamber, article 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when 14

15

Prosecutor v. Bemba et al., Judgment on the Appeal of Mr Aimé Kilolo Musamba against the Decision of Pre-Trial Chamber II of 14 March 2014 entitled “Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/0501/13-588 OA2, 11 July 2014, para. 64. Prosecutor v. Bemba et al., Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/05-01/13-259, para. 23. On appeal against this decision, the Appeals Chamber did not disturb these findings. See Prosecutor v. Bemba et al., Judgment on the Appeal of Mr Aimé Kilolo Musamba against the Decision of PreTrial Chamber II of 14 March 2014 entitled “Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/05-01/13-588 OA2, 11 July 2014, para. 65. The ad hoc tribunals have similarly emphasised that the prosecution of contempt crimes entails preventing the obstruction, frustration, prejudice or abuse of a court’s ability to exercise jurisdiction over core crimes and preserving the integrity and dignity of the judicial process. For the ICTY, see, e.g., Prosecutor v. Duško Tadić, IT-94-1-A-R77, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, paras. 33, 16; Prosecutor v. Blagoje Simić et al., IT-95-9-R77, Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000, para. 91; Prosecutor v. Dragan Jokić, IT-05–88-R77, Judgment on Allegations of Contempt, 27 March 2009, para. 38; Prosecutor v. Beqa Beqaj, IT-03-66-T-R77, Judgment on Contempt Allegations, 27 May 2005, paras. 13, 14. For the ICTR, see, e.g., Prosecutor v. GAA, ICTR-07-90-R77-I, Judgment and Sentence, 4 December 2007, para. 10; Prosecutor v. Leonidas Nshogoza, ICTR-07-91-T, Judgment, 7 July 2009, para. 218. For the SCSL, see, e.g., Independent Counsel v. Samura, SCSL-2005-01, Judgment in Contempt Proceedings, 26 October 2005, para. 15.

jurisprudence

307

faced with the deliberate refusal of a party to comply with its directions. The purpose of such sanctions is not merely, as the Prosecutor suggests, to punish the offending party, but also to bring about compliance.16

This, according to the Appeals Chamber, is evidenced by rule 171(4) of the Rules of Procedure and Evidence, which provides that, in relation to fines imposed under article 71, “in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative”. Given their specific inclusion in the Statute and Rules of Procedure and Evidence, sanctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.17

While misconduct before the Court, such as the deliberate refusal of a party to comply with the Court’s orders, is serious because it may threaten the fairness of the trial, a Chamber “should seek to bring about that party’s compliance through the imposition of sanctions under article 71 before resorting to imposition of a stay of proceedings”.18

Jurisprudence “[A]rticle 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when faced with the deliberate refusal of a party to comply with its directions. The purpose of such sanctions is not merely, as the Prosecutor suggests, to punish the offending party, but also to bring about compliance. This is evidenced by rule 171(4) of the Rules of Procedure and Evidence, which provides that, in relation to fines imposed under article 71, ‘in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative’. Given their specific inclusion in the Statute and Rules of Procedure and Evidence, sanctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. “Recourse to sanctions enables a Trial Chamber, using the tools available within the trial process itself, to cure the underlying obstacles to a fair trial,

16

17

Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. Ibid., para. 59. 18 Ibid., para. 60.

308

offences ag ainst t he admi nis tration thereby allowing the trial to proceed speedily to a conclusion on its merits.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60. “[T]he Appeals Chamber finds that, to the extent possible, a Trial Chamber faced with a deliberate refusal of a party to comply with its orders which threatens the fairness of the trial should seek to bring about that party’s compliance through the imposition of sanctions under article 71 before resorting to imposition of a stay of proceedings.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60.

J Conduct of Trials

Commentary

reinhold gallmetzer The conduct of trial proceedings was one of the most controversial issues during the drafting of the Statute and the Rules. A participant in the negotiations characterised the discussion as a “clash of cultures between the civil law and the common law”.1 Because it was difficult to reach agreement, many aspects are not regulated in detail by the Statute or the Rules but are instead left to be determined by the judges, exercising their discretion within the legal framework. According to the Appeals Chamber, the “trial” is “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding”.2 Further, “a reading of article 58(1)(b)(i) in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter”.3 In the first fifteen years of the Court’s operation, very few aspects regarding the conduct of trial proceedings have been litigated before the Appeals Chamber. Nevertheless, the emerging jurisprudence of the Appeals Chamber provides some guidance on aspects such as (i) the admission of evidence; (ii) modification of the legal characterisation of facts pursuant to regulation 55 of the RoC; (iii) trial in the presence of the accused under article 63(1) and excusal from trial; and (iv) whether the Trial Chamber is obliged to entertain a “no case to answer” motion.

1

2

3

Lewis, P., “Trial Procedure”, in Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational: New York, 2001), pp. 547–551. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/083249-Red OA11, 20 May 2015, paras. 36–37. Ibid., para. 40.

309

310

con duc t of t rial s

I Admission of Evidence The Statute’s approach vis-à-vis the admission of evidence is to eschew most of the technical rules on admissibility,4 in favour of a system of utmost flexibility.5 The provisions in the Statute and the Rules are brief and their purpose is to promote fair and expeditious trials, giving the Trial Chamber wide discretionary power and flexibility to achieve this goal. Article 69(4) provides generally that the Court “may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness [. . .]”.6 While under rule 63(2) the Trial Chamber may freely assess all evidence submitted in order to determine its relevance or admissibility in accordance with article 69(4), it may not impose a requirement of corroboration,7 and it shall not apply national laws governing evidence, other than in accordance with article 21.8 The following seven principles emerge from the Appeals Chamber’s jurisprudence on the admission of evidence: First, a Trial Chamber’s decision to admit evidence is a discretionary decision under articles 64(9)(a) and 69(4),9 in which the Trial Chamber must assess whether evidence is relevant, has probative value or would be prejudicial to the accused. In addition, it must determine whether evidence was obtained in violation of the Statute or human rights, or relates to the prior or subsequent sexual conduct of a victim or witness.10 Second, the Trial Chamber must provide a reasoned decision for the admission of each individual item of evidence and explain how the relevant criteria apply to that item.11 Third, under article 69(4), the Trial Chamber has the power to rule on relevance or admissibility when evidence is submitted to the Trial Chamber and then to determine the weight to be attached to the evidence at the end of the trial. Alternatively, the Trial Chamber may defer its consideration of the criteria relevant to the admissibility of evidence until 4

5

6 9

10

The only rules on exclusion of evidence are found in article 69(7) (evidence obtained by means of a violation of the Statute or internationally recognised human rights) and rule 71 (evidence of prior or subsequent sexual conduct of a victim or witness). Piragoff, D. K., “Evidence”, in Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational: New York, 2001), p. 351. 7 8 See also article 64(9)(a). Rule 63(4). Rule 63(5). Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. Ibid., para. 53. 11 Ibid., paras. 53, 59.

commentary

311

the end of the proceedings, making it part of its assessment when determining the guilt or innocence of the accused person.12 Irrespective of the approach the Trial Chamber chooses, it will have to consider the relevance, probative value and the potential prejudice of each item of evidence at some point in the proceedings – when evidence is submitted, during the trial, or at the end of the trial.13 Fourth, the submission of the evidence and its discussion at trial are prerequisites under article 74(2) for evidence to be taken into consideration by the Trial Chamber for its judgment. To that end, it is insufficient for a party to merely add an item on its list of evidence.14 Fifth, article 69(2) establishes a general rule that witness evidence at trial must be provided by way of in-court personal testimony:15 [t]he importance of in-court personal testimony is that the witness giving evidence under oath does so under the observation and general oversight of the Chamber. The Chamber hears the evidence directly from the witness and is able to observe his or her demeanour and composure, and is also able to seek clarification on aspects of the witness’ testimony that may be unclear so that it may be accurately recorded.16

However, the Statute and the Rules allow for exceptions to this rule. For instance, witness evidence can be admitted in documentary form as a measure under article 68 “to protect witnesses, victims or an accused”.17 In addition, the Appeals Chamber acknowledged that rule 68, the scope of which has recently been broadened by the Assembly of States Parties,18 sets out exceptions to the general principle of orality of witness evidence.19 Rule 68 (both the former and current version) constitutes lex specialis to other general provisions regarding the admission of documentary evidence, such as article 69(2) and (4).20 In any event, when admitting witness evidence in documentary form, the Trial Chamber must ensure that this is not inconsistent with the rights of the accused or the fairness of the proceedings. Factors that may be taken into consideration to that end include: (i) whether the evidence relates to issues that are not materially in dispute; (ii) whether that evidence is not 12 17 18

19

20

Ibid., para. 37. 13 Ibid. 14 Ibid., paras. 43–45. 15 Ibid., para. 76. 16 Ibid. Ibid., para. 77. Amendments to the Rules of Procedure and Evidence, 27 November 2013, ICC-ASP/12/ Res.7. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 77. Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 86.

312

c on duct of t ria l s

central to core issues in the case, but only provides relevant background information; and (iii) whether the evidence is corroborative of other evidence.21 Sixth, the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, namely, the Prosecutor and the Defence.22 Seventh, the Trial Chamber must ensure that the Prosecution and the Defence can raise objections to the admission of evidence before the Trial Chamber rules on its admission.23

II Modifying the Legal Characterisation of Facts Regulation 55 of the RoC provides that the Trial Chamber, in its decision under article 74, may change the legal characterisation of the facts 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. This provision has proved to be critical in the proceedings before the Court. It has been applied in the first two cases concluded thus far.24 To limit the use of regulation 55 of the RoC, the Prosecution has increasingly resorted to presenting cumulative legal characterisations of the charges, in particular with respect to the forms of participation under articles 25 and 28, but also with respect to the crimes under articles 7 and 8.25 Pre-Trial Chamber I recently found that when alternative legal 21

22

23

24

25

Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 78; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 85. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 93. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 48. In the Lubanga case, the Trial Chamber changed the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character: see Prosecutor v. Lubanga, Judgment Pursuant to Article 74, ICC-01/04-01/ 06-2842, 14 March 2012, para. 556. In the Katanga case, the Trial Chamber, after severing the case from the co-accused Ngudjolo, changed the legal characterisation of the facts to accord to Katanga’s form of participation under article 25(3)(d): see Prosecutor v. Katanga, Judgment Pursuant to Article 74, ICC-01/04-01/07-3436-tENG, 7 March 2014, paras. 1422–1595. See Prosecutor v. Blé Goudé, Document Containing the Charges, ICC-02/11-02/11-124Anx2-Corr-Red, 10 December 2014 (French only).

co mmen t ar y

313

characterisations of the same facts proposed by the Prosecutor are satisfactorily established by the evidence, it is appropriate that the charges be confirmed with the various available alternatives in order for the Trial Chamber to determine whether any of those legal characterisations is established to the applicable standard of proof at trial. Taking stock of the experience of the Court, the Pre-Trial Chamber also held that confirming all applicable alternative legal characterisations on the basis of the same facts is a desirable approach as it may reduce future delays at trial, and provides early notice to the Defence of the different legal characterisations that may be considered by the trial judges.26 On three occasions, the Appeals Chamber has nevertheless had an opportunity to give guidance on the interpretation and application of regulation 55 of the RoC.

a Purpose of Regulation 55 of the RoC The Appeals Chamber held that a principal purpose of regulation 55 of the RoC is to close accountability gaps, a purpose that is fully consistent with the Statute. According to the Appeals Chamber, this provision is intended to prevent acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial.27 b Any Application of Regulation 55 of the RoC must be Consistent with the Full Protection of the Rights of the Accused The Appeals Chamber is of the view that regulation 55 of the RoC is not inherently in breach of an accused’s fair trial rights. Whether a recharacterisation leads to a violation of such rights will depend on the specific circumstances of the case and the application by the Trial Chamber of the safeguards under regulation 55(2) and (3) of the RoC.28 For instance, a decision giving notice of potential change to the 26

27

28

Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, paras. 227–228. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 21–22, 104. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, paras. 85–87; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 88, 97.

314

co nduc t of t rial s

legal characterisation of facts should provide “details as to the elements of the offences the inclusion of which it contemplated, [and should] consider how these elements were covered by the facts and circumstances described in the charges”.29

c Any Re-characterisation is Limited to the Facts and Circumstances in the Charges Consistent with article 74(2), regulation 55 of the RoC may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.30 All facts included in the charges may be the subject of a change in the legal characterisation.31 The incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial.32 However, a change in the narrative of a case does not exceed per se the facts and circumstances described in the charges. Focusing on certain facts to the exclusion of others will necessarily alter the narrative: indeed, it would appear inevitable that a change in characterisation would result in a change of narrative to a certain extent.33 d Timing of the Application of Regulation 55 of the RoC While it is preferable that notice under regulation 55(2) of the RoC should always be given as early as possible,34 a Trial Chamber may give notice of a possible re-characterisation of the charges at “any time during trial”, as long as it can ensure that the trial remains fair.35 This includes the deliberation stage. In fact, nothing prevents the Trial Chamber, upon carefully analysing the material and evidence that was presented in its totality, from re-opening the hearing 29

30

31

32

33

34

Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 109; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 100–101. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, paras. 1, 49, 88, 93. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 50; Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 37. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 48. Ibid., para. 24. 35 Ibid., para. 1.

co mmen t ar y

315

of evidence at the deliberations stage of the proceedings to give the parties and participants an opportunity to make oral or written submissions.36 If notice under regulation 55(2) of the RoC is only given at the deliberation stage, the Trial Chamber will need to be particularly vigilant in ensuring an accused’s right to be tried without undue delay.37 Notice may also be given at an early stage of the proceedings, when the Trial Chamber is seised of a case and before opening statements are heard.38 While notice under regulation 55(2) of the RoC is given at any time during the trial, the actual change in the legal characterisation will, if at all, only take place in the Trial Chamber’s decision under article 74. It is only in that decision that the Trial Chamber will have to demonstrate that the legal characterisation of the facts has changed without exceeding the “facts and circumstances described in the charges”.39

III Trial in the Presence of the Accused and Excusal from Trial a Background The majority of Trial Chamber V(a) in the Ruto & Sang case granted Mr Ruto’s request not to be continuously present at trial.40 While the majority recognised that under article 63(1), “the general rule as to presence [. . .] is one of continuous presence at trial”,41 it held that the Trial Chamber’s “general power” under article 64(6)(f) afforded it “discretion [. . .] to excuse an accused, on a case-by-case basis, from continuous presence at trial”.42 The majority exercised this discretion to excuse Mr Ruto from article 63(1)’s attendance requirement on the basis of his election as his country’s executive Deputy Head of State and the duties attached to this function.43 36 38

39

40

41

42

Ibid., paras. 17–18, 20–21. 37 Ibid., para. 99. Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 51. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 45; Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 53. Prosecutor v. Ruto & Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, paras. 1–2. Judge Herrera Carbuccia dissented: see ICC-01/09-01/11-777-Anx2. Prosecutor v. Ruto & Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, para. 49. Ibid., paras. 47, 49. 43 Ibid., paras. 27, 53, 71.

316

con duc t of t rial s

It concluded that Mr Ruto was required to attend only the opening44 and closing45 of his trial and any hearings “when victims present their views and concerns in person”.46 The Trial Chamber otherwise excused his attendance.47 The Prosecution appealed this decision arguing that the majority erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial. According to the Prosecution, the language of article 63(1), as well as its drafting history, clearly establish the accused’s presence as a fundamental requirement or condition of the trial.48

b The Appeals Chamber’s Determination The majority of the Appeals Chamber held that article 63(1) does not operate as an absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused.49 It found that, although the presence of the accused must remain the general rule,50 in exceptional circumstances a Trial Chamber may exercise its discretion to excuse an accused person, on a case-by-case basis, from continuous presence at trial.51 In the view of the Appeals Chamber, a measure of flexibility in the management of the proceedings in such circumstances accords with the duty of the Trial Chamber to ensure that a trial is fair and expeditious, and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses under article 64(2).52 As a result, the Appeals Chamber set out a test that should guide a Trial Chamber in the exercise of its limited discretion to excuse an accused from attending portions of the trial. Accordingly: (i) the absence of the accused can take place only in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must be considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; 44 47 48

49

50

Ibid., para. 3(a)(i). 45 Ibid., paras. 3(a)(ii), 3(a)(iv). 46 Ibid., para. 3(a)(iii). Ibid., paras. 104(a), 104(b). Prosecutor v. Ruto & Sang, Prosecution appeal against the “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, 29 July 2013, ICC-01/ 09–01/11–831 OA5. Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 1, 55. Judges Kourula and Ušacka issued a joint Separate Opinion: see ICC-01/09-01/11-1066-Anx OA5. Ibid., paras. 49, 61. 51 Ibid., para. 56. 52 Ibid., paras. 50, 54.

co mmen t ar y

317

(iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.53 The Appeals Chamber concluded that by providing Mr Ruto with a blanket excusal without exploring any alternative options or excluding Mr Ruto on a case-by-case basis and when strictly necessary, the Trial Chamber exceeded the limits of its discretionary power.54

c Subsequent Developments At its 12th Plenary Meeting, the ASP unanimously adopted rule 134ter of the Rules, which codifies the test for excusal from presence at trial previously developed by the Appeals Chamber. In addition, the ASP adopted rule 134bis, according to which an accused subject to a summons to appear may, on a case-by-case basis, be allowed to be present at the trial through the use of video technology. Finally, the new rule 134quater allows a Trial Chamber to excuse an accused subject to a summons to appear who is “mandated to fulfil extraordinary public duties at the highest national level” from being present at the trial.55 Shortly thereafter, Trial Chamber V(a) conditionally excused Mr Ruto from presence at trial pursuant to the new rule 134quater, to allow him to “perform the functions of the Deputy President of Kenya”.56 The Prosecution sought leave to appeal this decision on 53 54

55

56

Ibid., paras. 2, 62. Ibid., para. 63. In their joint Separate Opinion, Judges Kourula and Ušacka held that they would have found that article 63(1) establishes a requirement that the accused be present during the trial and that the Trial Chamber erred in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused, on a case-by -case basis, from continuous presence at trial (see ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 5). Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013. The Trial Chamber first rendered an oral decision on 15 January 2014 (see transcript ICC01/09-01/11-T-72-ENG, pp. 67–68). On 18 February 2014, the Trial Chamber provided the reasons for its decision: Prosecutor v. Ruto and Sang, Reasons for the Decision on

318

co nd uct of t rial s

the question of whether rule 134, as well as its application by the Trial Chamber, was consistent with articles 63(1), 21(3) and 27(1),57 noting that the Rules must be read “subject to the provisions of the Statute”.58 The Trial Chamber rejected this application.59

IV “No Case to Answer” Motions In the Ntaganda case the Appeals Chamber was asked to rule on the question of whether it is mandatory for a Trial Chamber to entertain a “no case to answer” (NCTA) motion after the Prosecution presented its evidence and before the commencement of the Defence case. This issue arose in that case as the Trial Chamber did not entertain such a motion by the Defence and, therefore, did not follow the example of the Ruto & Sang case, where the Trial Chamber, for the first time in any case before the ICC, entertained such a motion and, as a result, vacated the charges and discharged the accused.60 The Appeals Chamber held that the Trial Chamber was correct in concluding that it had broad discretion to determine whether to entertain an NCTA motion. Although the core legal texts do not expressly refer to an NCTA motion, such a procedure is nevertheless permissible. A Trial Chamber has discretion pursuant to its powers under article 64(6)(f) and rule 134(3) to decide whether to conduct or decline to conduct such a procedure in the exercise of its discretion. However, it must exercise its discretion in a manner that ensures that the trial is fair and expeditious.61 The Appeals Chamber further held, in that case, that the Trial Chamber did not err in the exercise of its discretion by declining to

57

58 59

60

61

Excusal from Presence at Trial under Rule 13quater, 18 February 2014, ICC-01/09-01/111186; see paras. 63–66. Regarding the conditions imposed on Mr Ruto, see para. 79. Judge Eboe-Osuji issued a Separate Further Opinion: see ICC-01/09-01/11-1186-Anx. Prosecutor v. Ruto & Sang, Prosecution’s Application for Leave to Appeal the Decision on Excusal from Presence at Trial under Rule 134quater, ICC-01/09-01/11-1189, 24 February 2014. Rules, explanatory note. Prosecutor v. Ruto & Sang, Decision on “Prosecution’s Application for Leave to Appeal the Decision on Excusal from Presence at Trial under Rule 134quater”, ICC-01/09-01/111246, 2 April 2014. Prosecutor v. Ruto & Sang, Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/11-2027-Red-Corr, 5 April 2016, p. 1. Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/ 04-02/06-2026 OA6, 5 September 2017, paras. 1, 42–45.

j ur i s p r uden ce

319

entertain Ntaganda’s NCTA motion. According to the Appeals Chamber, the adoption of a “party-driven” system of presentation of evidence – which is a characteristic of adversarial common law proceedings which typically provide for NCTA motions – does not mean that the Trial Chamber was required to entertain an NCTA motion. The critical question was whether the decision not to entertain an NCTA motion violated Ntaganda’s fair trial rights and, in particular, his rights to “raise defences and to present other evidence admissible under [the] Statute” under article 67(1)(e), and his right “not to be compelled to testify [. . .] and to remain silent” under article 67(1)(g).62 In addition, the Appeals Chamber held that internationally recognised human rights law does not limit a Trial Chamber’s discretion on the issue, nor does its choice to adopt an adversarial trial structure. The Court’s legal framework combines features of Common Law and Romano-Germanic legal traditions. It includes fair trial guarantees that are not typically found in Common Law procedures, including the Prosecutor’s duty to investigate incriminating and exonerating circumstances equally pursuant to article 54(1)(a), and the Trial Chamber’s duty under article 61(7) to establish whether there are substantial grounds to believe that the person committed the crime prior to referring a case to trial. These safeguards ensure, on the whole, that the accused before the Court receives a fair trial. As such, references to particular national or international systems do not establish that the accused’s rights were violated.63

Jurisprudence “The ordinary meaning of the word ‘trial’, according to Black’s Law Dictionary, is ‘[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, paras. 36–37. “[A] reading of article 58(1)(b)(i) of the Statute in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, para. 40.

62

Ibid., paras. 46–47.

63

Ibid., paras. 48–56.

320

c on duct of t r ial s

I Admission of Evidence 1 The Principle of Orality and its Exceptions 1.1 General Considerations “The direct import of the first sentence of this provision [article 69(2)] is that witnesses must appear before the Trial Chamber in person and give their evidence orally. This sentence makes in-court personal testimony the rule, giving effect to the principle of orality.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 76; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/ 11-2024 OA10, 12 February 2016, para. 84. “The importance of in-court personal testimony is that the witness giving evidence under oath does so under the observation and general oversight of the Chamber. The Chamber hears the evidence directly from the witness and is able to observe his or her demeanour and composure, and is also able to seek clarification on aspects of the witness’ testimony that may be unclear so that it may be accurately recorded.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 76.

1.2

Exceptions to the General Rule

a A Cautious Approach “Nevertheless, in-court personal testimony is not the exclusive mode by which a Chamber may receive witness testimony. The first sentence of article 69(2) also provides for exceptions, namely, for measures taken under article 68 of the Statute or under the Rules of Procedure and Evidence ‘to protect witnesses, victims or an accused’. In addition, under the second sentence of article 69(2), the Chamber may inter alia permit the introduction of ‘documents or written transcripts’. This power is, however, ‘subject to this Statute’ and must be exercised ‘in accordance with the Rules of Procedure and Evidence’. Thus, under the second sentence of article 69(2) of the Statute, a Chamber has the discretion to receive the testimony of a witness by means other than in-court personal testimony, as long as this does not violate the Statute and accords with the Rules of Procedure and Evidence. The most relevant provision in the Rules of Procedure and Evidence is rule 68 [. . .].” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 77.

jurisprudence

321

“In deviating from the general requirement of in-court personal testimony and receiving into evidence any prior recorded witness testimony a Chamber must ensure that doing so is not prejudicial to or inconsistent with the rights of the accused or with the fairness of the trial generally [. . .]. [T]his requires a cautious assessment. The Trial Chamber may, for example, take into account, a number of factors, including the following: (i) whether the evidence relates to issues that are not materially in dispute; (ii) whether that evidence is not central to core issues in the case, but only provides relevant background information; and (iii) whether the evidence is corroborative of other evidence.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 78; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/ 11-2024 OA10, 12 February 2016, para. 85.

b Lex Generalis vis-à-vis Lex Specialis: Rule 68 “The Appeals Chamber notes that rule 68 of the Rules (former and current) sets out certain scenarios in which prior recorded testimony may be admitted into evidence. It follows that, where the specific circumstances of a case fall within the parameters set out in rule 68 of the Rules, the legal requirements of that provision must be observed for the prior recorded testimony to be admissible. If those requirements are not met, recourse to article 69(2) and (4) of the Statute is not permissible given that such a course of action would render rule 68 of the Rules meaningless and would enable the party seeking the introduction of the evidence to avoid the stringency of the latter provision.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 86.

c

The Chamber’s Discretion and Limitations to the Admission of Evidence “The above provisions [articles 64(9)(a) and 69(4) of the Statute] accord the Trial Chamber discretion when admitting evidence at trial. As borne out by the use of the word ‘may’ in article 69(4), the Trial Chamber has the power to rule or not on relevance or admissibility when evidence is submitted to the Chamber [. . .] and then determine the weight to be attached to the evidence at the end of the trial. In that case, an item will be admitted into evidence only if the Chamber rules that it is relevant and/or admissible in terms of article 69(4), taking into account ‘the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness’. Alternatively, the Chamber may defer its consideration of these criteria until the end of the proceedings, making it part of its assessment of the evidence

322

con duc t o f tr ial s when it is evaluating the guilt or innocence of the accused person [. . .]. [I]rrespective of the approach the Trial Chamber chooses, it will have to consider the relevance, probative value and the potential prejudice of each item of evidence at some point in the proceedings – when evidence is submitted, during the trial, or at the end of the trial.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. “[T]he right to be informed of the charges is not concerned with the timing of admissibility rulings.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64.

d

The Admission of Evidence is a Case-by-Case and Reasoned Determination “The scheme established by article 69(4) and (7) of the Statute and rule 71 of the Rules of Procedure and Evidence thus anticipates that a Chamber’s determination of the relevance or admissibility of evidence be made on an item-by-item basis.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 53. “Whether evidence is relevant, has probative value or would be prejudicial to the accused will depend on the specific characteristics of each item of evidence; the factors that will require consideration will not be the same for all items of evidence. Similarly, whether evidence was obtained in violation of the Statute or human rights or relates to the prior or subsequent sexual conduct of a victim or witness can only be determined on an item-specific basis.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 53. “Pursuant to rule 64(2) of the Rules of Procedure and Evidence, a ‘Chamber shall give reasons for any rulings it makes on evidentiary matters’. The Appeals Chamber has previously held, albeit in a different context, that a Chamber must explain with sufficient clarity the basis of its decision. In other words, ‘it must identify which facts it found to be relevant in coming to its conclusion’ [. . .]. [R]ulings on the admissibility of evidence must be made on an item-by-item basis. This analysis must be reflected in the reasons. This is not to say that the Trial Chamber may not

j u r i s p r ud e n c e rule on the relevance or admissibility of several items of evidence in one decision. However, it must be clear from the reasons of the decision that the Chamber carried out the required item-by-item analysis, and how it was carried out.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 59.

e The Chamber must Base its Judgment on Evidence “Submitted and Discussed” at Trial “[A]rticle 74(2) of the Statute provides that a Trial Chamber may base its decision at the end of the trial only on evidence that was ‘submitted and discussed before it at the trial’. Accordingly, the Trial Chamber may not rely, for the purposes of its final decision, on items that have come to the Chamber’s knowledge but that have not been submitted and discussed at trial.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 45. “It is clear from the above provisions, [articles 69(3), 64(8)(b), 74; rules 140, 64(1)], first, that evidence is ‘submitted’ if it is presented to the Trial Chamber by the parties on their own initiative or pursuant to a request by the Trial Chamber for the purpose of proving or disproving the facts in issue before the Chamber. Second, the submission of evidence must conform to the directions of the Presiding Judge or the manner agreed upon by the parties. Depending on the manner directed or agreed upon, the submission may also take place outside of the trial hearings; however, in such a case, the procedure for the submission of evidence must be clear.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 43. “[W]hen the Prosecutor filed the Lists of Evidence, he did not do so with a view to submitting the items as evidence for the trial, but for the ‘purpose of informing the Trial Chamber and the other parties and participants of the materials that [he] intends to use at trial’ and as a ‘case management tool’. The actual submission of the evidence was to take place later in the proceedings, when the Prosecutor would call witnesses or tender documents.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 44.

323

324 f

c on duc t of tr ial s

Only Parties may Submit Evidence “The Appeals Chamber considers it important to underscore that the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, namely, the Prosecutor and the Defence. The first sentence of article 69(3) is categorical: ‘[t]he parties may submit evidence relevant to the case, in accordance with article 64’. It does not say ‘parties and victims may’.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93. “The language of article 69(3) cited above, and article 64(6)(d), which provides that the Court shall have the authority to ‘[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’ clearly envisions that evidence presented during the trial would be presented by the parties.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93. “The Rome Statute framework contains numerous provisions which support this interpretation [that only Prosecution and Defence/parties may submit evidence] such as those pertaining to the role assigned specifically to the Prosecutor in, inter alia, investigating the crimes, formulating the charges and determining what evidence should be brought in relation to the charges (articles 15, 53, 54, 58 and 61(5) of the Statute). Article 66(2) of the Statute provides: ‘[t]he onus is on the Prosecutor to prove the guilt of the accused’. Presumptively, it is the Prosecutor’s function to lead evidence of the guilt of the accused. In addition, the regime for disclosure contained in rules 76–84 of the Rules which set out the specific obligations of the parties in this regard is a further indicator that the scheme is directed towards the parties and not victims.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93.

g

Right of the Parties to Raise Objections to the Admission of Evidence “Rule 64(1) of the Rules of Procedure and Evidence entitles the parties to raise issues as to the relevance or admissibility of evidence at the time when the evidence is submitted to a Chamber. The rule ensures that the parties have the chance to raise objections to the evidence before it is admitted into evidence. The Trial Chamber has to give effect to this right and, therefore, cannot admit items into evidence without first giving the parties an opportunity to raise issues.”

j u r i s p r ud e n c e Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 48. “[T]he Appeals Chamber considers that, in exercising its discretion under article 69(4) to admit the items of evidence without first giving the parties an opportunity to raise issues regarding their relevance or admissibility, the Trial Chamber failed to effectively evaluate any potential prejudice that such evidence may cause to a fair trial, in particular Mr Bemba’s right to a trial without undue delay [pursuant to article 67(1)(c)].” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 70. “[T]he Appeals Chamber notes that under rule 64(1) of the Rules of Procedure and Evidence, the parties have the right to raise issues concerning the relevance or admissibility of the evidence when it is submitted [. . .]. [T]he Trial Chamber failed to give effect to this right before admitting the evidence. Therefore, rather than merely having to raise issues as to the relevance or admissibility of the evidence, Mr Bemba now has the additional burden of disproving the admissibility of items on which the Chamber has already ruled.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 73.

II Records of Questioning: Rules 111 and 112 1 Purpose and Interaction of Rules 111 and 112 “As reflected in their titles, rule 111 governs the record of questioning ‘in general’, while rule 112 governs the recording of questioning ‘in particular cases’. The Appeals Chamber is of the view that rule 111 establishes the general rule, but that rule 112 governs exceptions thereto and its application in particular cases.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “The essential purpose of rules 111 and 112 is that a record must be made of the questioning of persons, and this purpose can be fulfilled through either a written record pursuant to rule 111 or an audio- or video-record pursuant to rule 112.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26.

325

326

c on duc t of tr ial s “The Appeals Chamber notes that rule 112, sub-rules 1(a) and 2 provide that where questioning is not audio- or video-recorded as would normally be required, the procedure in rule 111 shall be followed. In the view of the Appeals Chamber, these provisions indicate that rules 111 and 112 set out two alternative procedures for the recording of questioning.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “Furthermore, the Appeals Chamber observes that rule 112(4) provides for audio- or video-recording where this could assist in reducing any subsequent traumatization of victims of sexual or gender violence, children or persons with disabilities in providing their evidence. The Appeals Chamber considers that requiring such individuals to review and to sign an additional written record setting out the content of their statements might result in their re-traumatization and thus defeat the purpose of this sub-rule.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “The Appeals Chamber considers that the proper interpretation of rules 111 and 112 becomes clear when these rules are interpreted not in isolation but rather in the context of the overall framework for investigations and judicial proceedings set out in the Rules of Procedure and Evidence and their purposes.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 27.

2 Specific Purpose of Rule 112 “Rule 112 serves to protect the rights of questioned persons by ensuring that, in the particular circumstance where there are grounds to believe a person committed a crime within the jurisdiction of the Court, the Prosecutor must create the best possible record of that person’s statements, and it permits the Prosecutor to create such a record in other circumstances.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26.

III Modifying the Legal Characterisation of Facts “[T]he question of modification of the legal characterisation of facts is an important question that directly impacts on the trial [. . .].” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69.

jurisprudence A decision giving notice of potential change to the legal characterisation of facts should provide “details as to the elements of the offences the inclusion of which it contemplated, [and should] consider how these elements were covered by the facts and circumstances described in the charges”. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 109.

1 Regulation 55 is Consistent with the Statute and does not Inherently Violate the Rights of the Accused “[T]he Appeals Chamber does not consider that Regulation 55 is inherently in breach of Mr Lubanga Dyilo’s right to a fair trial.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 87. “[A] principal purpose of Regulation 55 is to close accountability gaps, a purpose that is fully consistent with the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 22, 104. “Mr Lubanga Dyilo’s interpretation of article 61(9) of the Statute [that any modification of the legal characterisation of the facts amounts to an amendment of the charges] bears the risk of acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial. This would be contrary to the aim of the Statute to ‘put an end to impunity’ (fifth paragraph of the Preamble).” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 22. “[A]rticle 67(1)(a) of the Statute does not preclude the possibility that there may be a change in the legal characterisation of facts in the course of the trial, and without a formal amendment to the charges.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 84. “[H]uman rights law demands that the modification of the legal characterisation of facts in the course of the trial must not render that trial unfair [. . .]. It is to avoid violations of this right that Regulation 55(2) and (3) sets

327

328

con duc t o f tr ial s out several stringent safeguards for the protection of the rights of the accused. How these safeguards will have to be applied to protect the rights of the accused fully [. . .] will depend on the circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 85; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 88. “[T]he Appeals Chamber does not consider that a change of the legal characterisation of the facts pursuant to Regulation 55 as such will automatically lead to undue delay of the trial. Whether a re-characterisation leads to undue delay will depend on the specific circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 86; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 97. “Any change from, for example, being alleged to be a principal to being alleged to have in fact been an accessory will always necessarily involve a change in the characterisation of the role. Were such a change not to be permissible, it would defeat the purpose of regulation 55 of the Regulations of the Court. The Trial Chamber would be constrained exclusively to using the precise characterisations established by the Pre-Trial Chamber at a much earlier stage of the proceedings and with a necessarily more restricted view of the case as a whole.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 57. “[R]egulation 55(2) and (3) of the Regulations of the Court makes specific provisions, inter alia, for notice of a possible re-characterisation to be given to the parties and for the receipt of their submissions thereon, in particular ensuring that the accused has adequate time and facilities to prepare the defence in accordance with article 67(1)(b) of the Statute and has the opportunity to examine witnesses or to present other evidence in accordance with article 67(1)(e) of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 87. “The Trial Chamber thereafter [after the accused is given the opportunity to make submissions] will need to assess whether it remains possible for Mr Katanga effectively to prepare his defence in light of both the manner in which the trial has been conducted to date and the re-characterisation that is now proposed. The Trial Chamber will also need to consider what measures may need to be implemented to ensure that the trial as a whole remains fair. Such consideration could include an assessment by the Trial

jurisprudence Chamber of whether Mr Katanga has, in fact, been prejudiced by a recharacterisation made at this [deliberations] stage, including in particular whether he has been deprived of mounting the defence in relation to article 25(3)(d) of the Statute that he otherwise would have wished to present.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 95. “[U]nder article 67(1) of the Statute, the accused is entitled to be informed of the ‘nature, cause and content’ of the charges, which includes both the factual allegations and their legal characterisation. In light of this provision, the purpose of regulation 55(2) of the Regulations of the Court is to ensure that the accused is informed of a possible change to the legal characterisation. This reading is consistent with the jurisprudence of the ECtHR, according to which notice of an envisaged change in the legal characterisation of the facts is required so as to allow the accused to exercise his or her rights in a practical and effective manner. By issuing the Impugned Decision, the Trial Chamber informed Mr Katanga of the potential change from article 25(3)(a) to article 25(3)(d) of the Statute, thereby ensuring that Mr Katanga remains informed of this aspect of the charges, namely their legal characterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 100. “[I]f a Trial Chamber gives notice under regulation 55(2) of the Regulations of the Court, the Trial Chamber may also need to indicate upon which specific facts, within the ‘facts and circumstances described in the charges’, it intends to rely. This is, in particular, because the charges before this Court usually cover complex factual allegations, and more detailed information about the factual allegations to which the potential change in the legal characterisation of the facts relate will therefore often be required to enable the accused to defend himself or herself effectively.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 101. “[A]t this [deliberations] stage, the Trial Chamber is in the best position to determine what level of factual detail has to be provided to Mr Katanga in order not to prejudice his right to be informed of the charges against him, taking into account, inter alia, the way in which the trial has been conducted to date when combined with what it now proposes by way of recharacterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 102. “Regulation 55 of the Regulations of the Court specifically empowers the Trial Chamber give such notice, even in the absence of a request by the

329

330

c on duc t of tr ial s Prosecutor to that effect. Giving such notice is therefore a neutral judicial act, which, without more, has no impact on the impartiality of the Judges exercising their powers.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 104. “Regulation 55 of the Regulations of the Court vests in a Chamber the authority ‘to modify the legal characterisation of facts’ and to do so ‘at any time during the trial’. In so doing, it places itself at the crossroads between two fundamental, albeit inherently conflicting, tenets of the right to a fair trial: the right to be tried without undue delay, on the one hand, and the right to be adequately informed of the nature, cause and content of the charges, on the other. Both these components are duly enshrined in the Statute, respectively under article 67(1)(c) and article 67(1)(a).” Prosecutor v. Katanga, Dissenting Opinion of Judge Tarfusser in the Decision on the Implementation of Regulation 55, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 5. Diss. Op.

2 Regulation 55 is Limited to the Facts and Circumstances Described in the Charges “Regulation 55(2) and (3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, paras. 1, 88. “[A]rticle 74(2) of the Statute confines the scope of Regulation 55 to the facts and circumstances described in the charges and any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 93. “[T]he incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “[T]he most obvious obstacle to the Trial Chamber’s interpretation of Regulation 55 is article 74(2) of the Statute. The second sentence of that provision reads as follows: ‘The decision [of the Trial Chamber at the end of the trial] shall not exceed the facts and circumstances described in the charges and any amendments to the charges.’”

jurisprudence Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para 89; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 49. “According to the Trial Chamber’s interpretation of Regulation 55, the Chamber could adjudicate, at the end of the trial, not only the facts described in the charges or any amendment thereto, but also additional facts that were introduced into the trial through a ‘change’ of their legal characterisation under Regulation 55. The Appeals Chamber considers that this interpretation would result in a conflict with article 74(2) of the Statute because these additional facts would not have been described in the charges or any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. “The Appeals Chamber recalls at the outset that the Impugned Decision is a decision rendered pursuant to regulation 55(2) of the Regulations of the Court, which provides that if ‘it appears to the Chamber that the legal characterisation may be subject to change, the Chamber shall give notice to the participants of such a possibility’. The actual change in the legal characterisation will, if at all, only take place in the Trial Chamber’s eventual decision under article 74 of the Statute. It is only in that decision that the Trial Chamber will have to demonstrate that the legal characterisation of the facts has changed without exceeding the ‘facts and circumstances described in the charges’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 45. “The Appeals Chamber is not persuaded by Mr Katanga’s argument that, necessarily, only ‘material facts’, but not ‘subsidiary or collateral facts’, may be the subject of a change in the legal characterisation. There is no indication of any such limitation in the text of article 74(2) of the Statute or regulation 55(1) of the Regulations of the Court. Rather, those provisions stipulate that any change cannot exceed the ‘facts and circumstances’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 50; Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 37. “The Appeals Chamber also does not accept that a change in the narrative exceeds per se the facts and circumstances described in the charges. As pointed out by the Trial Chamber, focusing on certain facts to the exclusion of others will necessarily alter the narrative: indeed, it would

331

332

con duc t of t rial s appear inevitable that a change in characterisation would result in a change of narrative to a certain extent. Whether the change of narrative is of such an extent or nature that it does, in fact, exceed the facts or circumstances is something on which the Appeals Chamber will only be able to rule if and when the Trial Chamber has changed the legal characterisation in its decision under article 74 of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 58. “In determining whether it is immediately apparent that the proposed change in the legal characterisation would exceed the facts and circumstances described in the charges, the Appeals Chamber has had particular regard to the factors64 to which the Trial Chamber referred in the Impugned Decision in deciding to give notice, pursuant to regulation 55(2) of the Regulations of the Court, that the legal characterisation of facts may be subject to change.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 54, 55. “Having reviewed the Impugned Decision in light of the documents describing the charges, the Appeals Chamber concludes that, at the present [deliberations] stage of the proceedings, it is not immediately apparent that the contemplated change in the legal characterisation of the facts [co-perpetration under article 25(3)(a) to contribution to the commission of a crime by a group under article 25(3)(d)] would exceed the facts and circumstances described in the charges.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 56.

3

Timing of the Application of Regulation 55

“Notice of a possible modification of the legal characterisation of facts under regulation 55(2) of the Regulations of the Court may be given at the deliberations stage of the trial proceedings. However, the Trial Chamber must ensure that the trial remains fair.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 1; Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 49. 64

Paragraph 55 lists the following factors: “the attack on Bogoro on 24 February 2003; the same alleged crimes; an analysis of the role played by the Ngiti combatants based in Walendu-Bindi collectivité; local commanders who were members of that group; and Mr Katanga’s contribution which led to the realisation of the objective elements of the crime”.

jurisprudence “Pursuant to regulation 55(2) of the Regulations of the Court, notice of a possible re-characterisation may be given ‘at any time during the trial’. The Appeals Chamber observes that, at the time the Impugned Decision was rendered, the trial was at the deliberations stage and no decision under article 74 of the Statute had yet been rendered. Furthermore, nothing in the Statute, the Rules of Procedure and Evidence or the Regulations of the Court prevents the Trial Chamber from re-opening the hearing of evidence at the deliberations stage of the proceedings. The Appeals Chamber therefore concludes that, for the purposes of regulation 55 of the Regulations of the Court, the trial is on-going at the present time. The timing of the Impugned Decision was therefore not incompatible with regulation 55 of the Regulations of the Court.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 17, 20. “[T]he reference to the ‘appropriate stage of proceedings’ relates to the opportunity to be given to the participants to make oral or written submissions. In other words, the participants must be given an opportunity to make submissions at an appropriate stage of the proceedings, following notice of a possible re-characterisation, but this does not limit the Trial Chamber’s power to give such notice ‘at any time during the trial’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 18. “The Appeals Chamber observes that changing the legal characterisation of the facts may become necessary not only in the course of the hearing of evidence as, for example, an immediate reaction thereto, but also thereafter. At the latter stage, the Trial Chamber may realise, upon carefully analysing the material and evidence that was presented in its totality, that the legal characterisation on the basis of which the charges were confirmed may be subject to change. That this may be necessary at the deliberations stage is particularly the case in light of the length, complexity and evidentially voluminous nature of the proceedings that come before this Court. As the Prosecutor correctly points out, if regulation 55 of the Regulations of the Court were inapplicable at the deliberations stage of the proceedings, the Trial Chamber would have to acquit in such a situation, even if the evidence presented clearly established his or her guilt based upon the appropriate legal characterisation of the facts.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 21. “[T]he last sentence of regulation 55(2) of the Regulations of the Court provides that the Trial Chamber may, when considering a possible change in the legal characterisation of facts and having given notice, either

333

334

con duc t o f tr ial s suspend the hearing or, ‘if necessary’, ‘order a hearing to consider all matters relevant to the proposed change’. The Appeals Chamber interprets this to mean that the hearing may be suspended to enable effective preparation if notice is given during a hearing; but that there is also provision for a hearing to be ordered ‘if necessary’, which implies that notice can be given, inter alia, after the hearing of evidence has been concluded, such as at the deliberations stage.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 23. “[W]hile it is preferable that notice under regulation 55(2) of the Regulations of the Court should always be given as early as possible, Mr Katanga’s argument that the timing of the Impugned Decision is incompatible with the terms of regulation 55(2) of the Regulations of the Court is not persuasive.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 24. “The wording of the regulation, stating that notice of a possible recharacterisation may be given ‘at any time during the trial’, is so clear as to prompt the well-known Latin maxim in claris non fit interpretatio: when the wording of a legal provision is univocal, the meaning and content of that provision must be determined based solely on such wording, with no need to recur to systematic or teleological arguments, or to look elsewhere. As long as it can be said that the trial is on-going (i.e., from the first hearing until a decision under article 74 of the Statute has been rendered), regulation 55 of the Regulations of the Court may in principle be triggered.” Prosecutor v. Katanga, Dissenting Opinion of Judge Tarfusser in the Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC01/04-01/07-3363 OA13, 27 March 2013, para. 2. Diss. Op. “The question arising, however, is whether by the terms of regulation 55 of the Regulations of the Court, the Trial Chamber is precluded from issuing notice of a possible recharacterisation of the facts at an early stage of the proceedings, namely, when it is seised of a case and before opening statements are heard. In this respect, the Appeals Chamber disagrees with Mr Gbagbo’s restrictive interpretation of the phrase ‘at any time during the trial’ in regulation 55(2) of the Regulations of the Court, as being limited to the stage where the hearing of evidence has begun. While the Appeals Chamber is not called upon to consider whether the term ‘trial’ has the same interpretation when used in other contexts throughout the legal framework of the Court, in its view, the ordinary meaning of the phrase ‘at any time during the trial’ in the context of regulation 55 does not exclude the stage after a Trial Chamber is seised of a case and before opening statements. This is because regulation 55(2) of the Regulations of

jurisprudence the Court requires notice to be issued when it ‘appears’ to the Trial Chamber that the legal characterisation of facts may be subject to change. This may become apparent to the Trial Chamber at any time before a decision under article 74 of the Statute is rendered. In these circumstances, to restrict the issuance of such a notice to a stage at which opening statements have been heard would be inconsistent with the requirement that notice be issued as ‘early as possible’ and prejudicial to the accused person.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 51. “Internationally recognised human rights do not require a different interpretation of this [regulation 55] legal provision. The cases of the ECtHR referred to by the Trial Chamber demonstrate that changes to the legal characterisation of facts may be addressed at late stages of the proceedings, including at the appeals stage, or in review proceedings before the highest domestic courts, without necessarily causing unfairness. The jurisprudence of the ECtHR equally provides that notice of a possible re-characterisation is necessary in order to give the accused the possibility to defend himself or herself in a practical and effective manner and in good time against any such possible re-characterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 93. “[T]he Appeals Chamber cannot conclude, at this stage, that proceeding with the proposed re-characterisation would result in a violation of his right to an effective defence [without knowing the precise nature of the recharacterisation, nor evidence the TC may rely on, nor the impact on Katanga’s defence as a whole]. Any such determination by the Appeals Chamber would be premature.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 96. “[N]otice of a legal re-characterisation at a late state of the proceedings does not, in and of itself, violate the right to a fair trial. As such, there is no reason of principle as to why, without more, the timing of the notice of recharacterisation would result in a violation of Mr Katanga’s right to be informed properly of the charges under article 67(1)(a) of the Statute in the present case.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 94. “The Appeals Chamber emphasises that it is concerned that the Impugned Decision was rendered almost six months into the deliberations of the Trial Chamber. Nevertheless, at the present time it is not clear that ‘undue

335

336

con duc t o f tr ial s delay’ will be caused as a result of the Impugned Decision. However, given that notice under regulation 55(2) of the Regulations of the Court was given at the deliberations stage, the Trial Chamber will need to be particularly vigilant in ensuring Mr Katanga’s right to be tried without undue delay. Recalling article 64(2) of the Statute, the Appeals Chamber emphasises that the Trial Chamber will have to ensure that the proceedings, taken as a whole, are fair and expeditious.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 99. “[T]he Appeals Chamber specifically finds that the [deliberations] stage of the proceedings at which regulation 55 of the Regulations of the Court was invoked also does not give rise to an appearance of bias.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 105.

4 Whether Re-characterisation is Limited to “Lesser Included Offences” “[T]he text of regulation 55 does not stipulate, beyond what is contained in sub-regulation 1, what changes in the legal characterisation may be permissible. The Appeals Chamber will not consider the issue [whether re-characterisation is limited to “lesser included offences”] any further, but notes, in any event, that the particular circumstances of the case will have to be taken into account.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 100.

5 Not Contingent on Whether Amendment of Charges was First Sought “With respect to Mr Gbagbo’s argument that by resorting to regulation 55 at this stage of the proceedings, the Trial Chamber is effectively subverting the coherent procedure set out in the Statute and allowing an amendment of the charges without the authorisation of the Pre-Trial Chamber, the Appeals Chamber finds this argument to be misdirected. Notwithstanding the fact that regulation 55 of the Regulations of the Court is part of the ‘coherent procedure’ available to the Trial Chamber, the Appeals Chamber finds that the mere issuance of notice of a possible recharacterisation does not amount to an amendment of the charges. As previously stated by the Appeals Chamber, ‘article 61(9) of the Statute and regulation 55 address different powers of different entities at different stages of the procedure, and the two provisions are therefore not inherently incompatible’ [. . .]. Furthermore, as indicated by the Prosecutor, resort to regulation 55 by the Trial Chamber is not contingent

jurisprudence on whether the procedure under article 61(9) of the Statute for the amendment of charges was applied. On the contrary, regulation 55 is only triggered where it appears to the Trial Chamber that the legal characterisation of the facts and circumstances may be subject to change. Mr Gbagbo’s argument is therefore rejected.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 53.

IV Excusal from Trial “The discretion that the Trial Chamber enjoys under article 63(1) of the Statute is limited and must be exercised with caution. The following limitations exist: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 2, 62. “[T]he Appeals Chamber notes that article 63(1) of the Statute establishes that the accused shall be present during the trial, reflecting the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 49. “During the course of prolonged criminal proceedings, unforeseen circumstances may arise, necessitating the absence of the accused person on a temporary basis. The Appeals Chamber considers that the interests of justice and the psychological well-being of witnesses would not be best served if the trial had to be automatically adjourned in each such instance. A measure of flexibility in the management of proceedings in such circumstances accords with the duty of the Trial Chamber to ensure

337

338

con duc t of tr ial s that a trial is ‘fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’ under article 64(2) of the Statute and helps to ensure [. . .] ‘justice in each individual case’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 50. “[A] trial may be continued in the absence of the accused, in accordance with article 63(2) of the Statute, when he or she continuously disrupts the trial. In the case of article 63(2) of the Statute, the requirement that the accused be present during the trial is superseded by the duty of the Court to ensure that proceedings are carried out in an orderly manner in the interests of the fair and proper administration of justice. In such cases, the continuously disruptive behaviour of the accused may be construed as an implicit waiver of his or her right to be present. The Appeals Chamber considers that the fact that a continuously disruptive accused person may be ‘excused’ from the courtroom against his will supports the conclusion that an excusal may be permissible if the accused voluntarily waives his or her right to be present.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 51. “[T]he travaux préparatoires, as a secondary means of interpretation, show that, although a number of exceptions to the requirement of the accused’s presence at trial other than that set out in article 63(2) of the Statute were discussed and ultimately deemed unnecessary, the question of whether an accused person could be excused from attending the trial in circumstances where he or she was, in principle, present for the trial, but had waived the right to be present, was not explicitly addressed. However, it is noteworthy in this regard that, during the Rome Conference, the more peremptory language – ‘the trial shall not be held except in the presence of the accused and his lawyer’– was considered but not adopted.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 52. “In formulating article 63 of the Statute, the drafters initially aimed to establish the presence of the accused during the trial as a general rule. As the debate evolved, discussions relative to article 63 of the Statute became more focused on the issue of whether to explicitly include or exclude the possibility of holding trials in absentia. Ultimately, concerns in relation to the rights of the accused, as well as the practical utility of trials in absentia and their potential to discredit the Court prevailed and

jurisprudence article 63(1) of the Statute was incorporated in order to preclude this possibility.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 53. “[P]art of the rationale for including article 63(1) of the Statute was to reinforce the right of the accused to be present at his or her trial and, in particular, to preclude any interpretation of article 67(1)(d) of the Statute that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 54. “[A]rticle 63(1) of the Statute does not operate as an absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 1, 55. “[T]he Appeals Chamber concludes that the Trial Chamber did not err in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused person, on a case-by-case basis, from continuous presence at trial. However, the Appeals Chamber is of the view that the Trial Chamber’s reference to article 64(6)(f) of the Statute as the basis for this discretion is misplaced. As set out above, the Trial Chamber enjoys a measure of discretion under article 63(1) of the Statute and, in these circumstances, it is not necessary to resort to the powers of the Trial Chamber to rule on ‘any other relevant matter’ pursuant to article 64(6)(f) of the Statute.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 56. “[T]he Appeals Chamber recalls that the presence of the accused must remain the general rule and that article 63(1) of the Statute clearly limits the Trial Chamber’s discretion to excuse an accused person from presence during the trial. The restrictions on the removal of a disruptive accused, explicitly set out in article 63(2) of the Statute, are also instructive in determining the limits of the Trial Chamber’s discretion under article 63(1) of the Statute. Article 63(2) of the Statute makes it clear that the removal of a disruptive accused can take place only in exceptional circumstances and as a last resort, that is, after other reasonable alternatives have proved inadequate. Furthermore, the removal of the accused shall

339

340

c on duct of t ria l s take place only for such duration as is strictly required. Finally, even if removed, the accused must still be represented by and in a position to instruct counsel.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 61. “The Appeals Chamber concludes that the Trial Chamber in the present case interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power. In particular, the Trial Chamber provided Mr Ruto with what amounts to a blanket excusal before the trial had even commenced, effectively making his absence the general rule and his presence the exception. Furthermore, the Trial Chamber excused Mr Ruto without first exploring whether there were any alternative options. Finally, the Trial Chamber did not exercise its discretion to excuse Mr Ruto on a case-by-case basis, at specific instances of the proceedings, and for a duration limited to that which was strictly necessary.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 63.

Joint Separate Opinion of Judges Kourula and Ušacka “[S]hort absences from particular hearings of the nature referred to above65 may be considered to be de minimus in the context of the overall trial. In this sense, we would find that although the strict terms of article 63(1) of the Statute do not appear to permit any absence of the accused during the trial, absences from particular hearings or parts of hearings may be considered to be so insignificant that they do not amount to a violation of the fundamental requirement of presence. No right mathematical formula can be applied to determine with certainty the point at which it would become necessary to adjourn the trial rather than continue in the absence of the accused; a common sense approach must be adopted to the management of proceedings based on the facts of the particular case.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 3. Sep. Op. 65

See Prosecutor v. Lubanga, Transcript of Hearing, 12 May 2009, ICC-01/04-01/06-T-172Red3-ENG, pp. 1–2; Prosecutor v. Bemba, Transcripts of Hearings, 7 November 2011, ICC-01/05-01/08-T-183-Red-ENG, pp. 1–2; 12 April 2013, ICC-01/05-0l/08-T-306-RedENG, p. 62; 17 June 2013, ICC-01/05-01/08-T-324-ENG, pp. 16–17; 17 June 2013, ICC01/05-01/08-T-324bis-CONF-ENG, p. 1; 27 June 2013, ICC-01/05-01/08-T-331-CONFENG, pp. 2–3.

j ur i s p r uden ce “[T]he practical difficulties that may be encountered in enforcing the requirement established in article 63(1) of the Statute to the strict letter of the law should not be used as a justification for interpreting article 63(1) of the Statute so that it is found to provide the Trial Chamber with a general discretion to excuse an accused from presence at trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 3. Sep. Op. “[W]e would have found that article 63(1) of the Statute establishes a requirement that the accused be present during the trial and that the Trial Chamber erred in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused, on a case-by-case basis, from continuous presence at trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 5. Sep. Op. “In our view, the ordinary meaning [in conformity with the VCLT] of article 63(1) of the Statute is clear and unambiguous: ‘[t]he accused shall be present during trial’. The use of the word ‘shall’ clearly establishes that the presence of the accused is a requirement of the trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, paras. 6, 10. Sep. Op. Four reasons why article 63(1) requires the presence of the accused at trial: “[f]irst, exceptions to the requirement that the accused be present are explicitly set out in the Statute, most notably in article 63(2) thereof, which deals with the removal of a continuously disruptive accused. Second, the possibility for the accused to waive his or her right to be present at the confirmation hearing is explicitly set out in article 61(2)(a) of the Statute [. . .]. Third, article 58(1)(b) and 58(7) of the Statute allow the Pre-Trial Chamber to issue a warrant of arrest ‘[t]o ensure the person’s appearance at trial’ or a summons to appear if ‘a summons is sufficient to ensure the person’s appearance’. It is clear that excusing an accused from the obligation to attend trial would make a warrant or summons issued on this basis redundant. Fourth, article 67(1)(d) of the Statute incorporates the right of the accused to be present at trial. The inclusion of this provision setting out the right of the accused to be present would be entirely redundant if article 63(1) of the Statute were interpreted as itself encapsulating such a right.”

341

342

c on duc t of tr ial s Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 7. Sep. Op. “In interpreting article 63(1) of the Statute, it seems indisputable that the establishment of the presence of the accused as a requirement is consistent with the gravitas of the proceedings and their importance from the perspective of the victims of the alleged crimes and the international community as a whole.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 8. Sep. Op. In regard to the travaux préparatoires: “[e]ven delegations that supported the creation of broader exceptions to the rule, or the possibility of holding trials in absentia were in agreement that the general rule should remain that the accused would be present”. Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 13. Sep. Op. “The second noteworthy point which may be derived from the travaux préparatoires is that, although proposals for other exceptions to the requirement of presence of the accused were extensively discussed, none were ultimately agreed upon.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 14. Sep. Op. “[H]ad the intention of the drafters been to preclude the possibility of holding a trial in absentia, it would have been possible to frame a provision in those terms, leaving discretion to the Court to excuse an accused person in other circumstances. On the contrary, the drafters agreed on the insertion of an explicit provision requiring the accused to be present during the trial, to which only one exception was articulated. In this case, it is the terms of article 63 of the Statute as ultimately agreed upon that provide the clearest and most obvious point of reference as to the intention of the drafters.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 15. Sep. Op.

jurisprudence

V “No Case to Answer” Motions 1

The Trial Chamber has Discretion to Determine Whether to Entertain a “No Case to Answer” Motion

“While the Court’s legal texts do not explicitly provide for a ‘no case to answer’ procedure in the trial proceedings before the Court, it nevertheless is permissible. A Trial Chamber may, in principle, decide to conduct or decline to conduct such a procedure in the exercise of its discretion.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 1, 45. “[T]he Appeals Chamber observes that the Court’s legal texts do not expressly provide for a ‘no case to answer’ procedure. Moreover, the Appeals Chamber is not aware of any proposals made or discussions held during the drafting of the Statute or the Rules of Procedure and Evidence (‘Rules’) in relation to such a procedure. Nevertheless, in the view of the Appeals Chamber, a ‘no case to answer’ procedure is not inherently incompatible with the legal framework of the Court. A Trial Chamber may decide to conduct such a procedure based on its power to rule on relevant matters pursuant to article 64(6)(f) of the Statute and rule 134(3) of the Rules. A decision on whether or not to conduct a ‘no case to answer’ procedure is thus discretionary in nature and must be exercised on a case-by-case basis in a manner that ensures that the trial proceedings are fair and expeditious pursuant to article 64(2) and 64(3)(a) of the Statute.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 43, 44.

2 Declining to Entertain a “No Case to Answer” Motion is Permitted “The discretion of the Trial Chamber as to whether or not to conduct a ‘no case to answer’ procedure was not limited by internationally recognised human rights or as a result of the adoption of an adversarial trial structure.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 2, 56. “The Appeals Chamber further observes that, as stated by the ICTY, a ‘no case to answer’ procedure protects ‘the right of an accused not to be called on to answer a charge unless there is credible evidence of his implication in the offence with which he is charged’. In the context of the Statute, such a procedure is, therefore, most directly connected with the right of the accused ‘to raise defences and to present other evidence admissible under

343

344

c on duct of t r ial s this Statute’ pursuant to article 67(1)(e) of the Statute and, in addition, with the right ‘[n]ot to be compelled to testify [. . .] and to remain silent’ pursuant to article 67(1)(g) of the Statute.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 46. “The Appeals Chamber is not persuaded that the judgment of the ECtHR invoked by Mr Ntaganda, that is Stojkovic v. France and Belgium, establishes that a ‘no case to answer’ procedure constitutes an indispensable safeguard against interference with the right of accused persons not to incriminate themselves. The Appeals Chamber observes that this case is primarily concerned with the accused’s right to legal assistance under the ECtHR, which is not under consideration in this appeal. Accordingly, the ECtHR’s reference to the right of the accused not to incriminate himself or herself does not indicate that, in general, a ‘no case to answer’ procedure is required as a safeguard of the right to a fair trial. Moreover, whilst the ECtHR referred to a ‘no case to answer’ procedure as a safeguard in respect of the right to silence and the right not to incriminate oneself in another case, namely, John Murray v. the United Kingdom, it did so in relation to the specific question whether incriminating inferences may be drawn from the silence of the accused. This matter also falls outside the scope of this appeal and the Appeals Chamber notes that, in any event, the accused in proceedings before the Court are shielded from such inferences under article 67(1)(g) of the Statute. Therefore, this case does not support a general requirement to conduct a ‘no case to answer’ procedure to ensure a fair trial either.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 48. “The Appeals Chamber has, in addition, not been able to deduce from the views of the Human Rights Committee or other jurisprudence of the ECtHR that a ‘no case to answer’ procedure is necessarily required to protect any of the other rights of the accused pursuant to article 14 of the International Covenant on Civil and Political Rights and article 6 of the European Convention on Human Rights.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 49. “The Appeals Chamber recalls that the Court’s legal framework combines elements from the Common Law and Romano-Germanic legal traditions. Notably, it contains certain fair trial safeguards that are not typically found in Common Law systems, such as the obligation of the Prosecutor to ‘investigate incriminating and exonerating circumstances equally’ under article 54(1)(a) of the Statute and the need for a Pre-Trial Chamber to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the persons concerned committed each

jurisprudence of the crimes charged’ prior to committing the person concerned to trial pursuant to article 61(7) of the Statute. Thus, whilst other jurisdictions may strive to protect the rights of the accused through procedures not found in the Court’s legal texts, the latter espouse other safeguards aimed at protecting these rights. The safeguards defined in the Statute and Rules ensure, on the whole, that the accused before the Court receive a fair trial. In such circumstances, reference to particular domestic and international systems does not, as such, establish that Mr Ntaganda’s fair trial rights required the Trial Chamber to conduct a ‘no case to answer’ procedure.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 52.

345

K Sentencing

Commentary

ge orge m ugw an ya The Court’s legal regime enshrines “a comprehensive scheme for the determination and imposition of a sentence”.1 However, the regime nonetheless includes many elements that require judicial interpretation. With one Appeals Chamber2 and four Trial Chamber sentencing judgments3 rendered since the Court’s inception, it may be too early to speak of a settled ICC sentencing pattern. Because some critical sentencing issues were “deferred” by the Appeals Chamber,4 further litigation will also be necessary for a more concrete sentencing jurisprudence to emerge. This commentary addresses a few issues arising in the Court’s sentencing jurisprudence, with a focus on jurisprudence from the Appeals Chamber. The Court’s legal regime establishes a single sentencing framework that applies to all crimes referred to in article 5,5 without specifying a penalty or a scale of penalties for each individual crime or 1

2 3

4

5

Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 32. Ibid. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 04-01/06-2901, 10 July 2012; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/083399, 21 June 2016; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016. As discussed below, in Lubanga, the Appeals Chamber declined to address the interaction between article 78 and rule 145, and the nexus, if any, between the convicted person and aggravating circumstances. See Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 61–66, 90–91. The sentencing framework discussed herein does not cover sanction for article 70 offences against the administration of justice.

346

commentary

347

mode of liability.6 Rather, the regime directs the judges to consider a variety of factors in determining a sentence, while allowing them a wide margin of discretion. This commentary particularly assesses how the judges have construed and applied their sentencing discretion.

I Applicable Penalties Under article 77(1) of the Statute and rule 145(3) of the Rules, a Chamber may impose a sentence of imprisonment that does not exceed thirty years, unless “the extreme gravity of the crimes and the individual circumstances of the convicted person” warrant a term of life imprisonment.7 In addition to imprisonment, the Court may order a fine or forfeiture.8 Based on article 77’s plain terms, no other penalties may be imposed. Non-custodial sentences or physical punishment are excluded. Moreover, fines and forfeitures cannot be ordered exclusively or alternatively, but in addition to imprisonment. So far, the Court’s Chambers have imposed neither a life sentence nor thirty years’ imprisonment.9 They have also not ordered fines or forfeitures. The Lubanga and Katanga Trial Chambers justified these decisions on the absence of “any aggravating factors in [the] case”,10 citing article 77 and/or rule 145(3).11 As noted above, both article 77(1) (b) and rule 145(3) provide that “[l]ife imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”, but to this, rule 145(3) adds “as evidenced by the existence of one or more aggravating circumstances” (emphasis added). Since the existence of one or more aggravating factors is one of the prerequisites for the imposition of a life sentence, it is critical that 6

7

8

9

10

11

Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 91. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, paras. 21, 94. Article 77(2); Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 22. In Lubanga, the Prosecutor had specifically requested the Chamber to impose a thirtyyear sentence on Lubanga: Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 95. Ibid., para. 96; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 144 (also noting the existence of two mitigating circumstances in the case). Ibid., paras. 94, 96; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 142.

348

sentencing

the Court carefully construes what constitutes “aggravating factors”.12 Arguably, it should also not easily place factors normally categorised as aggravating factors into a different classification, such as the gravity of the crimes or the degree of the convicted person’s participation in the crimes. Thus, a Chamber’s conclusion that there were no aggravating circumstances can be reached only after a careful evaluation and correct categorisation of all the relevant factors before it. In the Lubanga and Katanga cases, it remains an open question as to whether the Trial Chambers properly found that there were no aggravating factors. This is because certain factors, such as Lubanga’s and Katanga’s “abuse of authority or trust”, arguably constituted aggravating factors. In Lubanga, the Appeals Chamber rejected the Prosecutor’s appeal against the Trial Chamber’s failure to consider abuse of authority or trust as an aggravating factor.13 Rather, it concluded that “the Trial Chamber did not err in not taking into account Mr Lubanga’s abuse of power as an aggravating factor when it had already considered it in its assessment of the gravity of the crime”.14 It also noted that “rule 145(2)(b) [. . .] requires a Chamber to take into account, as appropriate, abuse of power or official capacity as an aggravating circumstance”.15 The Lubanga Trial and Appeal Judgments are contentious. First, although rule 145(2)(b)(ii) allows a Chamber to consider any aggravating factor as appropriate, the Trial Chamber did not elucidate why it was not appropriate to consider abuse of authority as an aggravating factor in the case. Arguably, it should have explained why the absence of “abuse of authority” on the part of Lubanga undermined the sufficiency of his contribution to the common plan. On appeal, the Appeals Chamber, too, did not closely assess the appropriateness or correctness of the Trial Chamber’s approach.16 It could also be argued that the findings in the Conviction Judgment that the Trial Chamber referred to in the Sentencing Judgment when considering Lubanga’s degree of participation and intent17 dealt with Lubanga’s role in the common plan other than his abuse of authority or 12

13

14 17

In addition, the Prosecutor’s decision to categorise any factor, for instance, as either part of the “gravity of the crimes” or as an “aggravating factor” must be the result of a careful assessment. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 78–85. Ibid., para. 85. 15 Ibid., para. 81 (emphasis added). 16 Ibid., para 18. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 52, referring to the Conviction Judgment, para. 1356.

commentary

349

trust. Therefore, the consideration of abuse of authority as an aggravating factor would not have amounted to “double counting”. The jurisprudence of the ad hoc tribunals is instructive on this point. In Nikolić, for instance, the ICTY’s Appeals Chamber found that in sentencing there was a distinction between an accused’s role in the crimes and his abuse of authority.18 Therefore, there is no “double counting” if a Trial Chamber takes into account an accused’s role in the crimes when assessing the gravity of the crimes and his or her abuse of position or authority as an aggravating factor.19

II Determination of Sentences and Scope of Judicial Discretion The Court’s statutory regime does not specify a penalty for each crime. Although it specifies the nature and scope of penalties that may be imposed and identifies factors that judges are to consider in determining sentences, the Appeals Chamber has underscored that it does “not lay down any explicit requirements for how the factors should be balanced”.20 The sentencing framework thus confers a measure of discretion on judges in the determination of sentences.21 This, however, raises a critical issue that confronts virtually all criminal justice systems, both national and international;22 in determining sentences, how in practice are the judges to construe statutory regimes respecting the scope of their discretion? How has the Appeals Chamber interpreted such discretion? Has it construed it as more or less unfettered or as limited by identifiable sentencing criteria? Sentencing Decisions are appealable as of right by both the convicted person and the Prosecutor.23 Based on the Appeals Chamber’s approach in the sole existing sentencing judgment thus far, is the appeal process a viable additional safeguard for redressing abuses of sentencing discretion and for laying a strong foundation for a systematic and consistent sentencing 18

19 20

21 22

23

Prosecutor v. Momir Nikolić, IT-02-60/1-A, Judgment on Sentencing Appeal, 8 March 2006, paras. 59–61. Ibid. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 40. Ibid., para. 34. See Meernik J., “Proving and Punishing Genocide at the International Tribunal for Rwanda”, International Criminal Law Review Vol. 1 (2004); Drumbl, M. and Gallant, K., “Sentencing Policies and Practices in the International Criminal Tribunals”, Federal Sentencing Reporter Vol. 15, Issue 2 (2002). Article 81(2)(a).

350

sentencing

practice? These issues are important. Unfettered sentencing discretion creates room for different Chambers at the Court to return Sentencing Decisions that are unsystematic across time and cases. While sentences must be tailored to the individual circumstances in each case, inconsistencies in sentencing, especially in relation to substantially similar cases, may violate the principles of legality and equality of protection.24

a Statutory Sentencing Factors vis-à-vis Sentencing Discretion Based on their “intimate knowledge of the case”, Trial Chambers are obligated to identify, take into account and balance all relevant factors before them in determining a sentence.25 This determination involves an exercise of discretion.26 In exercising discretion, the aim of every Chamber must always be “to impose a proportionate sentence that reflects the culpability of the convicted person”.27 Therefore, regulating the judges’ sentencing discretion are key factors and certain principles embedded in the sentencing framework and/or elucidated by the Appeals Chamber, notably totality, proportionality and individualisation. Article 78(1) “[r]equires that a Trial Chamber consider ‘such factors as the gravity of the crime and the individual circumstances of the convicted person’”.28 Under rule 145(1)(c), a Chamber is also under an obligation “to give consideration to a non-exhaustive list of additional factors”.29 These include the extent of the damage caused, in particular the harm caused to the victims and their families; the nature of the unlawful behaviour and the means employed to execute the crime; the degree of 24

25

26 28

29

See van Zyl Smit, D., “Sentencing and Punishment”, in Chaskalson et al. (eds.), Constitutional Law of South Africa (Juta: Kenwyn, SA, 1996), pp. 28–32; Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 756; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 74 (referring to the Prosecutor’s submissions on the point). Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 32–34. In his Partly Dissenting Opinion, Judge Song takes the view that every Chamber should take into account three overall factors when determining sentence, namely: the gravity of the crime; aggravating and mitigating circumstances; and individual circumstances of the convicted person: Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Sang-Hyun Song, ICC-01/04-01/06-3122, 1 December 2014, para. 4. Ibid., para. 34. 27 Ibid. (emphasis added). Ibid., para. 32 (emphasis added). See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 17, 23. Ibid.

co mmen t ar y

351

participation of the convicted person; the degree of intent; the circumstances, manner, time and location; and the age, education, social and economic condition of the convicted person. Moreover, pursuant to rule 145(2), a Chamber is required “to take into account, ‘as appropriate’ ‘[i]n addition to the factors mentioned’ in rule 145(1)(c) of the Rules of Procedure and Evidence, any mitigating and aggravating circumstances”.30 The weight to be accorded to a factor lies in the Trial Chamber’s discretion,31 and the Appeals Chamber “will only intervene if the Trial Chamber’s exercise of discretion [. . .] was so unreasonable as to constitute abuse of discretion”.32 In the Appeals Chamber’s view, regardless of the interpretative approach given as to how article 78 and rule 145 interact,33 after identifying and taking into account all the relevant factors, a Chamber is under an obligation to “balance all the relevant factors and pronounce a sentence”.34 In all situations, a Chamber must also consider the overarching requirement that the totality of any sentence must reflect the culpability of the convicted person, pursuant to rule 145(1)(a).35 Finally, once the sentence has been determined, a Chamber must deduct “[a]ny time that the convicted person spent in detention upon an order of the Court”.36 The Court may also deduct time during which the convicted person was “otherwise” detained “in connection with conduct underlying the crime”.37

b Determination of Relevance From the above summary of the ICC’s sentencing jurisprudence, it is clear that although judges have discretion, certain restrictions are imposed. One of the restrictions concerns the judges’ identification and consideration of relevant factors. How far does this restriction go? On the one hand, the jurisprudence suggests that certain factors specifically mentioned in the sentencing framework are mandatory, based on the use of “shall” in the Statute or Rules.38 Yet, on the other hand, a key 30 33

34

35 36

37 38

Ibid., para. 32 (emphasis added). 31 Ibid., paras. 43, 111. 32 Ibid., para. 72. The contentions arising from the Appeals Chamber’s refusal to address how these provisions interact are discussed below. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 33. Ibid. Ibid., para. 35. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 24. Ibid. Article 78; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras.

352

s e n t e nc i n g

conclusion in Lubanga – the only sentencing appeal judgment thus far – appears to create confusion as to whether judges have discretion in determining the relevance of factors specifically identified by the statutory regime as mandatory. Following its review of the statutory provisions on sentencing (i.e., articles 77, 78 and rule 145), and reaching the conclusions discussed above, the Lubanga Appeal Judgment underscored that these provisions “indicate that, in order to determine a sentence, the Trial Chamber, based on its intimate knowledge of the case, will have to balance all factors it considers relevant”.39 Can a Chamber consider a mandatory sentencing factor irrelevant? Or are such mandatory factors always relevant? Arguably, because certain sentencing factors are mandatory (such as the gravity of the crime and the individual circumstances of the convicted person), a Trial Chamber must take them into account and balance them with all other (non-mandatory) factors in determining a sentence.

c The Convicted Person’s Culpability and the Principle of Proportionality: Gravity in Abstracto or in Concreto? As noted above, the Appeals Chamber has underscored that an overarching requirement is that the totality of any sentence must reflect the culpability of the convicted person,40 and there must be proportionality between the sentence and the convicted person’s culpability.41 It has stated that “[p]roportionality is generally measured by the degree of harm caused by the crime and the culpability of the perpetrator, and in this regard relates to the determination of the length of the sentence”.42 The ad hoc tribunals have also added that proportionality does not imply that one’s sentence must be proportionate to the sentence of other offenders in other cases.43 Based on this jurisprudence, an argument

39

40 41

42 43

32–33 (finding that the Court is “required” to consider the specified factors) and para. 42; Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 04-01/06-2901, 10 July 2012, para. 23. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 34 (emphasis added). Ibid., paras. 33, 40. Ibid., para. 40. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 26, 36, 93. Ibid., para. 40. For the ICTR, see, e.g., Kamuhanda v. Prosecutor, ICTR-99-54A, Judgment, 9 September 2005, para. 359. For the ICTY, see, e.g., Prosecutor v. Dragan Nikolić, IT94-2-A, Judgment on Sentencing Appeal, 4 February 2005, para. 21.

co mmen t ar y

353

raised by Lubanga that he was not “among those most responsible for the events” in further support of a “proportionate” sentence is legally wrong.44 But what does “culpability of the convicted person” mean? Beyond the above statements, thus far the ICC’s Appeals Chamber has not elucidated this concept, although Trial Chambers, including in Lubanga, expressed an opinion on it. Indeed, in Lubanga the Appeals Chamber declined to take a definitive position on the relationship between article 78 and rule 145. By declining to interpret this interaction, the Appeals Chamber’s approach omits a critical aspect of the ICC’s sentencing framework. This would have provided useful guidance to Trial Chambers. For instance, as already noted, article 78 obligates every Trial Chamber to consider, among other things, the “gravity of the crime” and the “individual circumstances of the accused”. But how is the gravity of an accused’s crime to be determined? Is it by assessing the objective seriousness of the crime in the abstract? Or is it an examination of gravity in concreto, by assessing the totality of the surrounding circumstances in a specific case, including the form or degree of the accused’s participation in the crimes, the degree of intent, the scale and cruelty in the perpetration of the crimes (etc.)? And in this context, how do the factors enumerated in rule 145(1) (c) interact, if at all, with article 78? At the ad hoc tribunals, overall, the Appeals Chambers have taken a definite position, preferring an evaluation of gravity in concreto.45 In the Lubanga case, the Appeals Chamber only identified potential interpretative approaches, without committing itself to any one of them. The first one views article 78(1) as setting out the mandatory factors as separate from those listed in rule 145(1)(c).46 Under this approach, gravity is assessed in abstracto, and the factors in rule 145 are evaluated separately.47 As a variation of this approach, “it would also be possible to conclude that some of the factors of rule 145(1)(c) [. . .] are subsumed by 44

45

46

47

Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 83. In their view, determination of the “gravity of the crime” requires consideration of the particular circumstances of the case, as well as the form and degree of the convict’s participation in the crime. For the ICTR, see, e.g., Prosecutor v. Bikindi, ICTR-01-72-A, Judgment, 18 March 2010, para. 145; Rukundo v. Prosecutor, ICTR-2001-70-A, Judgment, 20 October 2010, para. 243. For the ICTY, see, e.g., Prosecutor v. Kupreškić, IT-95-16-A, Judgment, 23 October 2001, paras. 442, 852. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 62. Ibid.

354

s e n t en c i n g

the factors set out in article 78(1) of the Statute, but others remain separate factors”.48 Finally, another approach takes the view that “[t]he factors listed in rule 145(1)(c) [. . .] could be seen as part of, and must be taken into account for purposes of assessing, the factors listed in article 78(1) of the Statute. In this respect, these factors could be said to