RIGHTS OF THE ACCUSED AT THE ICC

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RIGHTS OF THE ACCUSED AT THE ICC

• "The history of American freedom is, in no
  small measure, the history of procedure."
• Justice Felix Frankfurter

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Rights at the ICC

• Relatively easy to enumerate rights at the court
  right-spotting
• More importantly, how do we judge adequacy of
  these rights?

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Rights in general under liberal theory

• Hierarchies of rights
• Life
• UDHR Art 3. Everyone has the right to life,
  liberty and security of person.
• Derivative rights
• Freedom to ..... Move, talk, listen, choose, etc.

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Liberal model of social order

• Liberty invasion Crime
• ICL - The big three
• Genocide,
• Crimes against humanity
• War crimes in part

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Court procedures implicate these rights by
restriction

• Liberal model requires binary distinction
• Innocence or
• Guilt
• AND
• Authorises invasions of fundamental rights to
  achieve determination

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Rights as claims to behaviours by others

• In the context of guilt / innocence
  determination, distinguish between
• Human Rights deriving from liberal social
  model
• eg Right not to be subject to arbitrary arrest
• Process Rights eg Right to confront

8
Process rights

• These are created to produce the binary
  determination guilt / innocence
• Compromise these rights and the determination may
  be flawed

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What causes wrongful convictions?

• False testimony
• Prosecutorial misconduct
• Police misconduct
• False confessions
• Bad identifications
• ....in part...

10
Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Sources of law

• The ICC Statute regulates the applicable sources
  of law hierarchically
• Article 21.

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Article 21

• Applicable law
• 1.
• The Court shall apply
• a) In the first place, this Statute, Elements of
  Crimes and its Rules of Procedure and Evidence

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Article 21

• 1.
• b) In the second place, where appropriate,
  applicable treaties and the principles and rules
  of international law, including the established
  principles of the international law of armed
  conflict

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Article 21

• 1.
• c) Failing that, general principles of law
  derived by the Court from national laws of legal
  systems of the world including, as appropriate,
  the national laws of States that would normally
  exercise jurisdiction over the crime, provided
  that those principles are not inconsistent with
  this Statute and with international law and
  internationally recognized norms and standards.

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Article 21

• 2. The Court may apply principles and rules of
  law as interpreted in its previous decisions.

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Article 21

• 3. The application and interpretation of law
  pursuant to this article must be
• consistent with internationally recognized
  human rights, and be without any adverse
  distinction founded on grounds such as gender as
  defined in article 7, paragraph 3, age, race,
  colour, language, religion or belief, political
  or other opinion, national, ethnic or social
  origin, wealth, birth or other status.

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Issue

• Article 21 (3) subjects application of all law to
  internationally recognised human rights.
• Question what rights are these?

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Article 1(3) of UN Charter

• Universal Declaration of Human Rights
• Article 7. equality before the law
• Article 8. right to an effective remedy for
  violations of fundamental rights
• Article 9. No one shall be subjected to arbitrary
  arrest, detention
• Article 10. Everyone is entitled in full
  equality to a fair and public hearing by an
  independent and impartial tribunal, in the
  determination of his rights and obligations and
  of any criminal charge against him.
• Article 11. presumption of innocence, public
  trial, all the guarantees necessary for his
  defence, no retroactive penal law.

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Internationally recognised rights

• International Covenant on Civil and Political
  Rights
• esp. Articles 9 and 14
• International Covenant on Economic, Social and
  Cultural Rights (er, no actually.)
• Human Rights Committee

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ICC Case Lubanga Dyilo

• CONSIDERING, moreover, that, in accordance with
  internationally recognised human rights, everyone
  arrested or detained is entitled to trial within
  a reasonable time or to release pending trial
• CITES
• Article 5(3)(c) of the ECHR
• Article 7(5) Inter-American CHR
• Article 9 ICCPR
• ICC-01/04-01/06 Case The Prosecutor v. Thomas
  Lubanga Dyilo Decision on the Application for the
  interim release of Thomas Lubanga Dyilo
  18.10.2006

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Conventions

• Geneva Conventions esp. Common Article 3
• Convention against Torture
• Convention on the Rights of the Child esp.
  Article 40

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But caution.....

• Article 14 ICCPR, Article 6 ECHR and derived
  articles are minima.
• Nikolic jurisdiction trial decision, para. 110
  This Chamber observes that these norms only
  provide for the absolute minimum standards
  applicable.

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Other international courts

• ICJ
• ICTY Article 21 Rule 42
• ICTR Article 20 Rule 42
• SCSL Article 20 Rule 42
• etc....
• Report of the Secretary-General on ICTY, para.
  106 internationally recognized standards
  regarding the rights of the accused at all stages
  of its proceedings.

24
ICC Caselaw

• eg. Lubanga Dyilo, Arrêt relatif à lappel
  interjeté par Thomas Lubanga Dyilo contre la
  décision du 3 octobre 2006 relative lexception
  dincompétence de la Cour soulevée par la Défense
  en vertu de larticle 19-2-a du Statut,
  14.12.2006 AC
• Lubanga Dyilo Decision on the Defence Challenge
  to the Jurisdiction of the Court pursuant to
  article 19 (2) (a) of the Statute 3 10 2006 AC
• Cites Barayagwiza, ICTR, and Nikolic, ICTY, as
  authorities on abuse of process.

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Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Multiple Jurisdictions

• The criminal procedure of the ICC takes place in
  two or more jurisdictions
• evidence is collected within state jurisdictions
• the accused is arrested by state or international
  actors other than tribunal staff
• sentences are carried out by states.

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Multiple jurisdictions

• Control by ICC over state activities.
• Compare ad hoc tribunals eg. Nikolic and
  Barayagwiza
• Is Prosecution responsible?

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Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Investigations Article 42

• 7. Neither the Prosecutor nor a Deputy Prosecutor
  shall participate in any matter in which their
  impartiality might reasonably be doubted on any
  ground.
• eg. disqualification for previous involvement in
  case or related case at national level
  involving the person being investigated or
  prosecuted.
• 8.
• (a) The person being investigated or prosecuted
  may at any time request the disqualification of
  the Prosecutor or a Deputy Prosecutor on the
  grounds set out in this article
• (b) The Prosecutor or the Deputy Prosecutor, as
  appropriate, shall be entitled to present his or
  her comments on the matter.

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Impartial Prosecutor?

• Lon Fuller
• The essence of adversarial procedure
  participation in the decision-making process by
  the presentation of reasoned proofs by partisans
  before a neutral umpire.

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OED Impartial

• UNBIASED, unprejudiced, neutral, non-partisan,
  non-discriminatory, disinterested, uninvolved,
  uncommitted, detached, dispassionate, objective,
  open-minded, equitable, even-handed, fair,
  fair-minded, just without favouritism, free from
  discrimination, with no axe to grind, without
  fear or favour informal on the fence.

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Article 54

• 1. The Prosecutor shall
• (a) In order to establish the truth, extend the
  investigation to cover all facts and evidence
  relevant to an assessment of whether there is
  criminal responsibility under this Statute, and,
  in doing so, investigate incriminating and
  exonerating circumstances equally

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Article 54

• 1. The Prosecutor shall
• (c) Fully respect the rights of persons arising
  under this Statute.

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Trust me with your rights, I am a prosecutor.

• Compare and contrast
• Trust me with your lettuce, I am a rabbit.

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Article 55Rights of persons during an
investigation

• 1. In respect of an investigation under this
  Statute, a person
• (a) Shall not be compelled to incriminate himself
  or herself or to confess guilt

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Article 55Rights of persons during an
investigation

• 1. (b) Shall not be subjected to any form of
  coercion, duress or threat, to torture or to any
  other form of cruel, inhuman or degrading
  treatment or punishment

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Article 55Rights of persons during an
investigation

• 1. (c) Shall, if questioned in a language other
  than a language the person fully understands and
  speaks, have, free of any cost, the assistance of
  a competent interpreter and such translations as
  are necessary to meet the requirements of
  fairness and

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Article 55Rights of persons during an
investigation

• 1 (d) Shall not be subjected to arbitrary arrest
  or detention, and shall not be deprived of his or
  her liberty except on such grounds and in
  accordance with such procedures as are
  established in this Statute.

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Article 55Rights of persons during an
investigation

• 2. Where there are grounds to believe that a
  person has committed a crime within the
  jurisdiction of the Court and that person is
  about to be questioned either by the Prosecutor,
  or by national authorities pursuant to a request
  made under Part 9, that person shall also have
  the following rights of which he or she shall be
  informed prior to being questioned
• (a) To be informed, prior to being questioned,
  that there are grounds to believe that he or she
  has committed a crime within the jurisdiction of
  the Court

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Article 55Rights of persons during an
investigation

• 2 (b) To remain silent, without such silence
  being a consideration in the determination of
  guilt or innocence

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Article 55Rights of persons during an
investigation

• 2. (c) To have legal assistance of the person's
  choosing, or, if the person does not have legal
  assistance, to have legal assistance assigned to
  him or her, in any case where the interests of
  justice so require, and without payment by the
  person in any such case if the person does not
  have sufficient means to pay for it and

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Article 55Rights of persons during an
investigation

• 2 (d) To be questioned in the presence of counsel
  unless the person has voluntarily waived his or
  her right to counsel.

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Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Article 58 warrant of arrest or a summons

• 1 (a) There are reasonable grounds to believe
  that the person has committed a crime within the
  jurisdiction of the Court and
• 1 (b) The arrest of the person appears necessary
• (i) To ensure the person's appearance at trial
• (ii) To ensure that the person does not obstruct
  or endanger the investigation or the court
  proceedings or
• (iii) Where applicable, to prevent the person
  from continuing with the commission of that crime
  or a related crime which is within the
  jurisdiction of the Court and which arises out of
  the same circumstances.

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Issue

• The Prosecutor must tell the PTC The reason why
  the Prosecutor believes that the arrest of the
  person is necessary.
• The Warrant does not contain that information. It
  goes to the state without that information. The
  competent authority in the arresting state acts
  under Article 59 and makes its decision after
  hearing recommendations by the PTC as to
  whether there are urgent and exceptional
  circumstances for release. The Statute is silent
  on the issue of whether the recommendations are
  public and whether they may be made the subject
  of representations by the accused.

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Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Article 59 Arrest proceedings in the custodial
State

• 2. A person arrested shall be brought promptly
  before the competent judicial authority in the
  custodial State which shall determine, in
  accordance with the law of that State, that
• The warrant applies to that person
• The person has been arrested in accordance with
  the proper process and
• The person's rights have been respected.

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ISSUE

• CJA applies the states law BUT
• decides whether the suspects rights have been
  respected.
• Rights under which law? Answer appears to be
  the state law.
• Lubanga Dyilo Situation in the Democratic
  Republic of the Congo in the Case of the
  Prosecutor v. Thomas Lubanga Dyilo Decision on
  the Defence Challenge to the Jurisdiction of the
  Court pursuant to article 19 (2) (a) of the
  Statute 3 October 2006 (ICC-01/04-01/06-512)

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Article 59 Arrest proceedings in the custodial
State

• 3. The person arrested shall have the right to
  apply to the competent authority in the custodial
  State for interim release pending surrender.
• 4. In reaching a decision on any such
  application, the competent authority in the
  custodial State shall consider whether, given the
  gravity of the alleged crimes, there are urgent
  and exceptional circumstances to justify interim
  release and whether necessary safeguards exist to
  ensure that the custodial State can fulfil its
  duty to surrender the person to the Court. .

50
ISSUE

• Compare Article 59 (4) urgent and exceptional
  circumstances with
• Article 9 (1) and (3) ICCPR
• 1. Everyone has the right to liberty and security
  of person.
• 3. ... It shall not be the general rule that
  persons awaiting trial shall be detained in
  custody, but release may be subject to guarantees
  to appear for trial, ...

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And compare

• The infamous former Rule 65 of ICTY and ICTR
• 65 Provisional Release
• (B) Release may be ordered by a Trial Chamber
  only in exceptional circumstances, ...

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Article 59 Arrest proceedings in the custodial
State

• 5. The Pre-Trial Chamber shall be notified of any
  request for interim release and shall make
  recommendations to the competent authority in the
  custodial State. The competent authority in the
  custodial State shall give full consideration to
  such recommendations, including any
  recommendations on measures to prevent the escape
  of the person, before rendering its decision.

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Article 59 Arrest proceedings in the custodial
State

• 6. If the person is granted interim release, the
  Pre-Trial Chamber may request periodic reports on
  the status of the interim release.
• 7. Once ordered to be surrendered by the
  custodial State, the person shall be delivered to
  the Court as soon as possible.
• Article 60 Upon the surrender of the person to
  the Court, or the person's appearance before the
  Court voluntarily

54
Issue

• What about arrests by non-state actors such as
  SFOR?
• What about arrests that satisfy rights under
  state law but breach ICC rights of the suspect?
• Eg. Lubanga Dyilo "Decision on the Defence
  Challenge to the Jurisdiction of the Court
  pursuant to article 19 (2) (a) of the Statute" 3
  October 2006
• Compare Nikolic and Barayagwiza

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Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

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Article 60

• 2. A person subject to a warrant of arrest may
  apply for interim release pending trial. If the
  Pre-Trial Chamber is satisfied that the
  conditions set forth in article 58, paragraph 1,
  are met, the person shall continue to be
  detained. If it is not so satisfied, the
  Pre-Trial Chamber shall release the person, with
  or without conditions.

57
Issue 1

• Under Article 58, the PTC has already expressed
  itself satisfied that
• The arrest of the person appears necessary
• To ensure the person's appearance at trial
• To ensure that the person does not obstruct or
  endanger the investigation or the court
  proceedings or
• Where applicable, to prevent the person from
  continuing with the commission of that crime or a
  related crime which is within the jurisdiction of
  the Court and which arises out of the same
  circumstances.
• How can the accused BE PERCEIVED to have a fair
  hearing before the same PTC seised of the issue
  again under Article 60?

58
Issue 2

• Release with conditions is unregulated.
• Conditions may be onerous and severely
  curtailing of liberty of accused.
• Yet they are imposed when, under Article 60, the
  PTC is not satisfied that the Article 58
  conditions for an arrest warrant are met.

59
Rule 119 Conditional release

• 1. The Pre-Trial Chamber may set one or more
  conditions restricting liberty,
• including the following
• (a) The person must not travel beyond territorial
  limits set by the Pre-Trial Chamber without the
  explicit agreement of the Chamber
• (b) The person must not go to certain places or
  associate with certain persons as specified by
  the Pre-Trial Chamber
• (c) The person must not contact directly or
  indirectly victims or witnesses

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Rule 119 Conditional release

• (d) The person must not engage in certain
  professional activities
• (e) The person must reside at a particular
  address as specified by the Pre-Trial Chamber
• (f) The person must respond when summoned by an
  authority or qualified person designated by the
  Pre-Trial Chamber
• (g) The person must post bond or provide real or
  personal security or surety, for which the amount
  and the schedule and mode of payment shall be
  determined by the Pre-Trial Chamber
• (h) The person must supply the Registrar with all
  identity documents, particularly his or her
  passport.

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Article 60

• 3. The Pre-Trial Chamber shall periodically
  review its ruling on the release or detention of
  the person, and may do so at any time on the
  request of the Prosecutor or the person. Upon
  such review, it may modify its ruling as to
  detention, release or conditions of release, if
  it is satisfied that changed circumstances so
  require.

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RPE Rule 118

• 3. Before imposing or amending any conditions
  restricting liberty, the Pre-Trial Chamber shall
  seek the views of the Prosecutor, the person
  concerned, any relevant State and victims that
  have communicated with the Court in that case and
  whom the Chamber considers could be at risk as a
  result of a release or conditions imposed.
• Issue The PTCs power to review on its own
  initiative or on the Prosecutors application its
  former ruling on release or conditional release
  is unregulated and no explicit provision for a
  hearing as opposed to seeking views included.

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Article 60

• 4. The Pre-Trial Chamber shall ensure that a
  person is not detained for an unreasonable period
  prior to trial due to inexcusable delay by the
  Prosecutor. If such delay occurs, the Court shall
  consider releasing the person, with or without
  conditions.

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Article 60

• 5. If necessary, the Pre-Trial Chamber may issue
  a warrant of arrest to secure the presence of a
  person who has been released.
• Probably not the intention of the drafters to
  initiate another Article 59 process.

65
RPE Rule 118

• 2. The Pre-Trial Chamber shall review its ruling
  on the release or detention of a person in
  accordance with article 60, paragraph 3, at least
  every 120 days and may do so at any time on the
  request of the person or the Prosecutor.

66
RPE Rule 118

• 3. After the first appearance, a request for
  interim release must be made in writing.
• The Prosecutor shall be given notice of such a
  request. The Pre-Trial Chamber shall decide after
  having received observations in writing of the
  Prosecutor and the detained person. The Pre-Trial
  Chamber may decide to hold a hearing, at the
  request of the Prosecutor or the detained person
  or on its own initiative. A hearing must be held
  at least once every year

67
Lubanga Dyilo

• ... there is a distinct and independent
  obligation imposed upon the Pre-Trial Chamber to
  ensure that a person is not detained for an
  unreasonable period prior to trial under article
  60 (4) of the Statute. While the review under
  article 60 (3) ensures that any ruling upon an
  application for interim release is specifically
  reconsidered at least every 120 days, there is,
  in addition, an obligation upon the Pre-Trial
  Chamber to review the overall period of the
  detention of the suspect under article 60 (4).
• Appeals Chamber 13.02.2007

68
Article 58 Summons

• 7. As an alternative to seeking a warrant of
  arrest, the Prosecutor may submit an application
  requesting that the Pre-Trial Chamber issue a
  summons for the person to appear. If the
  Pre-Trial Chamber is satisfied that there are
  reasonable grounds to believe that the person
  committed the crime alleged and that a summons is
  sufficient to ensure the person's appearance, it
  shall issue the summons, with or without
  conditions restricting liberty (other than
  detention) if provided for by national law, for
  the person to appear.

69
RPE Rule 119

• 5. When the Pre-Trial Chamber issues a summons to
  appear pursuant to article 58, paragraph 7, and
  intends to set conditions restricting liberty, it
  shall ascertain the relevant provisions of the
  national law of the State receiving the summons.
  In a manner that is in keeping with the national
  law of the State receiving the summons, the
  Pre-Trial Chamber shall proceed in accordance
  with sub-rules 1, 2 and 3. If the Pre-Trial
  Chamber receives information that the person
  concerned has failed to comply with conditions
  imposed, it shall proceed in accordance with
  sub-rule 4.

70
Rule 119, Sub-rule 4

• (4) If the Pre-Trial Chamber is convinced that
  the person concerned has failed to comply with
  one or more of the obligations imposed, it may,
  on such basis, at the request of the Prosecutor
  or on its own initiative, issue a warrant of
  arrest in respect of the person.

71
Article 19 Challenge to the admissibility

• 1. The Court shall satisfy itself that it has
  jurisdiction in any case brought before it. The
  Court may, on its own motion, determine the
  admissibility of a case in accordance with
  article 17.
• 2. Challenges to the admissibility of a case on
  the grounds referred to in article 17 or
  challenges to the jurisdiction of the Court may
  be made by
• (a) An accused or a person for whom a warrant of
  arrest or a summons to appear has been issued
  under article 58

72
Admissibility challenge

• The admissibility of a case or the jurisdiction
  of the Court may be challenged only once by any
  person referred to in paragraph 2.
• The challenge shall take place prior to or at the
  commencement of the trial. In exceptional
  circumstances, the Court may grant leave for a
  challenge to be brought more than once or at a
  time later than the commencement of the trial.
  Challenges to the admissibility of a case, at the
  commencement of a trial, or subsequently with the
  leave of the Court, may be based only on article
  17, paragraph 1 (c).

73
Article 17 inadmissibility grounds

• (a) State investigating or
• (b) State decided not to prosecute or
• (c) State already tried the suspect within
  meaning of Article 20 ne bis in idem or
• (d) Case insufficiently grave.

74
Prosecutor v. Kony et al.

• ...it appears hardly debatable that the
  statutory framework envisages as a possible
  scenario that the issue of admissibility may be
  discussed more than once in the course of the
  proceedings. PTC 10 03 2009
• ie. Article 19 admissibility may be raised by
  accused when appears as well as on his behalf by
  Regulation 76(1) appointed counsel in absence.

75
Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

76
Article 66

• 1. Everyone shall be presumed innocent until
  proved guilty before the Court in accordance with
  the applicable law.

77
Article 67 Rights of the accused

• 1. In the determination of any charge, the
  accused shall be entitled to a public hearing,
  having regard to the provisions of this Statute,
  to a fair hearing conducted impartially, and to
  the following minimum guarantees, in full
  equality

78
PUBLIC HEARING Article 64

• 7. The trial shall be held in public. The Trial
  Chamber may, however, determine that special
  circumstances require that certain proceedings be
  in closed session for the purposes set forth in
  article 68, to protect victims and witnesses or
  an accused or to protect confidential or
  sensitive information to be given in evidence.
• And Article 72 Protection of national security
  information

79
Public hearing

• And Regulation 20 Public hearings
• 1. All hearings shall be held in public, unless
  otherwise provided in the Statute, Rules, these
  Regulations or ordered by the Chamber.
• 2. When a Chamber orders that certain hearings be
  held in closed session, the Chamber shall make
  public the reasons for such an order.

80
Public hearings

• Regulation 20 Public hearings
• 3. A Chamber may order the disclosure of all or
  part of the record of closed proceedings when the
  reasons for ordering its non-disclosure no longer
  exist.

81
PUBLIC HEARING Regulation 21

• Broadcasting, release of transcripts and
  recordings
• Issue What about future witness pollution?

82
Privacy right?

• Bemba (ICC-01/05-01/08), Decision on the Second
  Defence's Application for Lifting the Seizure of
  Assets and Request for Cooperation to the
  Competent Authorities of the Republic of
  Portugal, 14 November 2008, para. 29.

83
Privacy right from where?

• 29. However, the Chamber, concerned with Mr
  Jean-Pierre Bemba's right to privacy, deems it
  appropriate to order the parties and the Registry
  to prepare a public redacted version of the said
  documents in order to keep confidential any
  personal data relating to the details of his bank
  accounts as stated in the confidential Annex to
  the present decision. The respective public
  redacted versions of these documents, both in
  English and French, where applicable, will then
  be filed in the record of the case.

84
Fair hearing

• All the enumerated rights plus
• General residual evaluation of fairness.

85
IN FULL EQUALITY

• Principle of equality of arms
• All chambers and cases have cited equality of
  arms.
• Not a right to be equal but a right to combat
  the Prosecution on equal terms and right under
  Art 67 (1) (e) to call evidence on same terms
• BUT....

86
The Principle of Equality of Arms

• CONSIDER ... Eg. Article 54
• 2. The Prosecutor may conduct investigations on
  the territory of a State
• In accordance with the provisions of Part 9 or
• As authorized by the Pre-Trial Chamber under
  article 57, paragraph 3 (d).
• ISSUE WHY IS THERE NO EQUIVALENT FOR THE
  DEFENCE?

87
Article 67 Rights of the accused

• 1. (a) To be informed promptly and in detail of
  the nature, cause and content of the charge, in a
  language which the accused fully understands and
  speaks
• BUT consider the size of some cases in ICL eg
  Milosevic....

88
Hunting of the Snark

• The indictment had never been clearly expressed,
• And it seemed that the Snark had begun,
• And had spoken three hours, before any one
  guessed
• What the pig was supposed to have done.

89
Milosevic

• 3 joined indictments allegedly 1 transaction.
• 66 counts, 23 different types of crime over a
  decade.
• Kosovo deportation count covered over 64
  different locations

90
Tale of Two Cities

• Charles Darnay had yesterday pleaded Not Guilty
  to an indictment denouncing him (with infinite
  jingle and jangle) for that he was a false
  traitor to our serene, illustrious, excellent,
  and so forth, prince, our Lord the King, by
  reason of his having, on divers occasions, and by
  divers means and ways, assisted Lewis, the French
  King, in his wars against our said serene,
  illustrious, excellent, and so forth that was to
  say, by coming and going, between the dominions
  of our said serene, illustrious, excellent, and
  so forth, and those of the said French Lewis, and
  wickedly, falsely, traitorously, and otherwise
  evil-adverbiously, revealing to the said French
  Lewis what forces our said serene, illustrious,
  excellent, and so forth, had in preparation to
  send to Canada and North America...

91
Milosevic

• By November 2005 over 1.2 million pages of
  disclosure.
• Prosecution exhibits over 85,000 pages and over
  100 videos.
• 30 changed Prosecution witness lists.
• No definitive exhibit list.

92
(No Transcript)
93
Article 67 Rights of the accused

• 1. (b) To have adequate time and facilities for
  the preparation of the defence and to communicate
  freely with counsel of the accused's choosing in
  confidence
• 1. (c)To be tried without undue delay

94
Milosevic

• By November 2005
• Transcripts over 46,000 pages.
• Written filings 2,600 separate briefs, motions,
  etc
• Estimate - 3 year trial
• What might a Bashir trial look like?

95
(No Transcript)
96
TIME

• Article 6 of the ECHR
• ... everyone is entitled to a fair and public
  hearing within a reasonable time by an
  independent and impartial tribunal established by
  law.

97
(No Transcript)
98
Article 63 Trial in the presence of the accused

• 1. The accused shall be present during the trial.
• 2. Removal for disruption

99
Article 67 Rights of the accused

• 1. (d) Subject to article 63, paragraph 2, to be
  present at the trial, to conduct the defence in
  person or through legal assistance of the
  accused's choosing, to be informed, if the
  accused does not have legal assistance, of this
  right and to have legal assistance assigned by
  the Court in any case where the interests of
  justice so require, and without payment if the
  accused lacks sufficient means to pay for it

100
Presence

• Article 56
• (a) a unique opportunity to take testimony or
  a statement from a witness or to examine, collect
  or test evidence, which may not be available
  subsequently for the purposes of a trial

101
Presence

• Article 56
• (b) PTC may take such measures to protect
  the rights of the defence.
• collection and preservation of evidence and the
  questioning of persons
• admissibility governed at trial by article 69,
  and given such weight as determined by the Trial
  Chamber.

102
Article 69

• The testimony of a witness at trial shall be
  given in person, except to the extent provided by
  the measures set forth in article 68 or in the
  Rules of Procedure and Evidence. The Court may
  also permit the giving of viva voce (oral) or
  recorded testimony of a witness by means of video
  or audio technology, as well as the introduction
  of documents or written transcripts, subject to
  this Statute and in accordance with the Rules of
  Procedure and Evidence. These measures shall not
  be prejudicial to or inconsistent with the rights
  of the accused.

103
RPE Rule 68 Prior recorded testimony

• When the Pre-Trial Chamber has not taken measures
  under article 56, the Trial Chamber may, in
  accordance with article 69, paragraph 2, allow
  the introduction of previously recorded audio or
  video testimony of a witness, or the transcript
  or other documented evidence of such testimony,
  provided that

104
RPE Rule 68 Presence

• (a) If the witness who gave the previously
  recorded testimony is not present before the
  Trial Chamber, both the Prosecutor and the
  defence had the opportunity to examine the
  witness during the recording or
• (b) witness present

105
Presence and fairness

• ADMISSIBILITY HEARING
• I f the Pre-Trial Chamber makes a determination
  that the case against a suspect is admissible
  without the suspect participating in the
  proceedings, and the suspect at a later stage
  seeks to challenge the admissibility of a case
  pursuant to article 19 (2) (a) of the Statute, he
  or she comes before a Pre-Trial Chamber that has
  already decided the very same issue to his or her
  detriment. A degree of predetermination is
  inevitable.
• DRC Appeals Chamber "Judgment on the Prosecutor's
  appeal etc.13 July 2006
• BUT...

106
Presence

• Uganda AC Kony, 16 09 2009 said 2006 decision
  concerned admissibility determination on gravity
  AND in camera AND with only Prosecutor present.
• In Kony AC said only issue was state proceedings
  which would not cause prejudice to absent
  accused. Admissibility determination in absence
  was therefore OK.

107
Legal assistance

• counsel of the accused's choosing".
• Regulation 74 (2) When represented by defence
  counsel, the person entitled to legal assistance
  shall, subject to article 67, paragraph 1 (h)
  unsworn statement act before the Court through
  his or her Counsel, unless otherwise authorised
  by the Chamber.

108
Code of Conduct Article 14

• Performance in good faith of a representation
  agreement
• 1. The relationship of client and counsel is one
  of candid exchange and trust, binding counsel to
  act in good faith when dealing with the client.
  In discharging that duty, counsel shall act at
  all times with fairness, integrity and candour
  towards the client.
• 2. When representing a client, counsel shall
• (a) Abide by the clients decisions concerning
  the objectives of his or her representation as
  long as they are not inconsistent with counsels
  duties under the Statute, the Rules of Procedure
  and Evidence, and this Code and
• (b) Consult the client on the means by which the
  objectives of his or her representation are to be
  pursued.

109
Article 56 (2) (d) unique investigative
opportunity

• "measures ... to ensure the efficiency and
  integrity of the proceedings and, in particular,
  to protect the rights of the defence" (article 56
  (1) (b) of the Statute)
• Authorizing counsel etc ... or where there has
  not yet been such an arrest or appearance or
  counsel has not been designated, appointing
  another counsel to attend and represent the
  interests of the defence.

110
Appointed counsel

• ...it is clear from the legal and procedural
  context that Counsel for the Defence was not
  appointed to speak for, or on behalf of, the four
  individual suspects in the sense that his
  submissions would be attributed to them,
  potentially also in later proceedings.
• Uganda AC Kony, 16 09 2009

111
Article 67 Rights of the accused

• 1. (e) To examine, or have examined, the
  witnesses against him or her and to obtain the
  attendance and examination of witnesses on his or
  her behalf under the same conditions as witnesses
  against him or her. The accused shall also be
  entitled to raise defences and to present other
  evidence admissible under this Statute

112
ISSUE

• The role of the victims... who, if their
  interests are affected by the issue, can be given
  leave to call evidence of the guilt of the
  accused and challenge the admissibility of the
  accuseds evidence.
• the right to introduce evidence during trials
  before the Court is not limited to the parties.
• Leave needed
• Lubanga Dyilo, Judgment on the Appeals of the
  Prosecutor and the Defence Against Trial Chamber
  Is Decision on Victims Participation of 18
  January 2008, 11 07 2008 paras. 94, 109

113
During drafting victims right to present
evidence re guilt rejected

• Report of the Inter-Sessional Meeting in
  Zutphen, UN Doc. A/AC.249/1998/L.13, 4 February
  1998, p. 117 Report of the Preparatory
  Committee on the Establishment of an
  International Criminal Court, Addendum, UN Doc.
  A/CONF.183/2/Add.1, 14 April 1998.

114
Victims calling evidence and challenging evidence

• (i) application,
• (ii) notice
• (iii) demonstration of personal
• Interests affected by the specific proceedings,
• (iv) disclosure and obeying protection orders,
• (v) TCs decision that victims calling of
  evidence or challenge to accuseds evidence is
  appropriate and
• (vi) consistent with the rights of the accused
  and a fair trial.

115
PIKIS AND KIRSCH

• The proof or disproof of the charges is a matter
  affecting the adversaries. The victims have no
  say in the matter. Their interest is that justice
  should be done... Partly Dissenting Opinion of
  Judge Pikis

116
PIKIS AND KIRSCH

• It would, in my view, be perfectly legitimate
  for victims to present their views and concerns
  in relation to the evidence submitted by the
  parties where it affects their personal
  interests. However, there is a sizeable
  difference between presenting views and concerns
  in relation to issues that arise at the trial
  that affect the personal interests of victims and
  presenting a prosecution case by leading
  additional evidence - independent of that led by
  the Prosecutor - on guilt.
• Partly Dissenting Opinion of Judge Philippe Kirsch

117
Article 67 Rights of the accused

• (f) To have, free of any cost, the assistance of
  a competent interpreter and such translations as
  are necessary to meet the requirements of
  fairness, if any of the proceedings of or
  documents presented to the Court are not in a
  language which the accused fully understands and
  speaks

118
Article 67 Rights of the accused

• (g) Not to be compelled to testify or to confess
  guilt and to remain silent, without such silence
  being a consideration in the determination of
  guilt or innocence

119
Article 67 Rights of the accused

• (h) To make an unsworn oral or written statement
  in his or her defence and

120
Article 67 Rights of the accused

• (i) Not to have imposed on him or her any
  reversal of the burden of proof or any onus of
  rebuttal.

121
Article 67 Rights of the Accused

• 2. In addition to any other disclosure provided
  for in this Statute, the Prosecutor shall, as
  soon as practicable, disclose to the defence
  evidence in the Prosecutor's possession or
  control which he or she believes shows or tends
  to show the innocence of the accused, or to
  mitigate the guilt of the accused, or which may
  affect the credibility of prosecution evidence.
  In case of doubt as to the application of this
  paragraph, the Court shall decide.

122
Disclosure RPE Rule 77

• Inspection of material in possession or control
  of the Prosecutor
• The Prosecutor shall, subject to the restrictions
  on disclosure as provided for in the Statute and
  in rules 81 and 82, permit the defence to inspect
  any books, documents, photographs and other
  tangible objects in the possession or control of
  the Prosecutor, which are material to the
  preparation of the defence or are intended for
  use by the Prosecutor as evidence for the
  purposes of the confirmation hearing or at trial,
  as the case may be, or were obtained from or
  belonged to the person.
• Exception Rule 81

123
RPE Rule 84 Disclosure and additional evidence
for trial

• In order to enable the parties to prepare for
  trial and to facilitate the fair and expeditious
  conduct of the proceedings, the Trial Chamber
  shall, in accordance with article 64, paragraphs
  3 (c) and 6 (d), and article 67, paragraph (2),
  and subject to article 68, paragraph 5, make any
  necessary orders for the disclosure of documents
  or information not previously disclosed and for
  the production of additional evidence.
• To avoid delay and to ensure that the trial
  commences on the set date, any such orders shall
  include strict time limits which shall be kept
  under review by the Trial Chamber.

124
Trust me, I am a Prosecutor

• AND
• Lubanga Dyilo, TC, Decision on the Consequences
  of Non-disclosure of Exculpatory Materials
  Covered By Article 54(3)(e)... etc, 13 06 2008
• Lubanga Dyilo, AC, Judgment on the Appeal of the
  Prosecutor etc 21 10 2008

125
AND

• Lubanga Dyilo, AC, Judgment on the Appeal of the
  Prosecutor Against the Decision of Trial Chamber
  I entitled Decision on the Release of Thomas
  Lubanga Dyilo, 21 10 2008

126
False testimony Lubanga Dyilo

• First witness on 28 January 2009, prosecution
  witness 298 initially testified that he and his
  friends were coming home from school when armed
  UPC soldiers took them to a military training
  camp but later said in light of the oath he had
  taken to tell the truth before the Court, the
• questioning was causing him problems and said his
  testimony came from someone else.
• Said testimony not true.
• He said, "they taught me that over three and a
  half years. I don't like it. I would like to
  speak my mind as I swore before God and before
  everyone."

127
False testimony

• After 2 week adjournment, the witness recanted
  his recantation.
• Prosecution used 7 intermediaries to contact
  about half the incriminating witnesses and 23
  individuals or organisations as intermediaries
  overall.
• Chamber initially resisted disclosure of IDs.

128
False testimony

• PW 15 testified on 16 June 2009.
• ...I met the OTP's intermediary who told me the
  following. He said. You have to change your name,
  you have to change your identity. Don't give the
  true story that took place in other words, there
  was a story that they were telling to the
  witnesses. And I say that they're crooks. Why is
  it that I say that they're crooks and swindlers?
  Well, instead of letting me tell the true story
  of what took place and instead of letting me
  describe all of the events that I lived through,
  they are inventing statements in order to
  manipulate the investigation. Said original
  statement wrong and "they're doing that to get
  rich

129
False testimony

• Defence witnesses described intermediaries as
  collecting witnesses, promising money and
  concocting stories.
• 03 02 2010 Chamber requested full information on
  all intermediaries and individuals who may not be
  referred to as intermediaries, facilitators of
  contact with potential witnesses.

130
False testimony

• Defence have shown considerable evidence of
  conspiracy to perjure, and even inappropriate
  behaviour by Legal Representatives of Victims
  has been alleged - which they have completely
  denied.

131
Lubanga Dyilo

• TC Decision on the press interview with Ms Le
  Fraper du Hellen 12 05 2010
• 15 March 2010 OTP senior staff member interviewed
  by internet journalist
• Enthusiastic endorsement of intermediaries We
  are very careful about who we choose as
  intermediaries ... There was absolutely no
  abuse of process. Prosecutor Moreno-Ocampo is a
  very accurate and fair prosecutor. ... So this
  is just talk ... I understand the defence
  entirely ... it's their last chance but nothing
  is going to happen. Mr Lubanga is going away for
  a long time.

132
Trust me, I am a Prosecutor

• 17 03 2010 - Chamber observed that strong
  support for the intermediaries was a theme of the
  interview, and thus it was presumably founded on
  firm and substantial evidence. As a result, the
  Chamber was concerned by the absence of any
  prosecution evidence in line with this
  unequivocal and firm indication. TC ordered
  disclosure.

133
Trust me, I am a Prosecutor

• TC asked the Prosecutor whether it is now the
  position of the Prosecutor that it is for him to
  determine, first, whether facts have been proven
  in the case and, second, the trial's ultimate
  outcome that the accused is to be convicted and
  thereafter sentenced to a long period of
  imprisonment (particularly given the unqualified
  statement that Mr Lubanga is going away for a
  long time).

134
Trust me, I am a Prosecutor

• TC said 43. In addition, the remark by the
  prosecution representative that the Prosecutor
  had disclosed all the exonerating evidence to the
  defence in a very timely manner was incorrect and
  misleading. Put shortly, the delays in service of
  the prosecution's exculpatory material and that
  covered by Rule 11 of the Rules were considerable
  and they have been extensively documented.

135
Trust me, I am a Prosecutor

• TC said 46. Repeatedly, the Trial Chamber has
  reminded the prosecution of its duty to disclose
  potentially exculpatory material, due to
  inexcusable delays in fulfilling its obligations.

136
Trust me, I am a Prosecutor

• TC said 47. The criticism in the press
  interview suggesting that the defence has failed
  to respect its disclosure obligations was equally
  incorrect. The Chamber has described the extent
  of these obligations in various Decisions, and
  the defence has abided by those rulings.

137
Article 69

• (7) Evidence obtained by means of a violation of
  this Statute or internationally recognized human
  rights shall not be admissible if
• (a) The violation casts substantial doubt on the
  reliability of the evidence or
• (b) The admission of the evidence would be
  antithetical to and would seriously damage the
  integrity of the proceedings.

138
ICC Case Lubanga Dyilo

• RAISES
• Issue of conspiracy to pervert the course of
  justice
• The Prosecutors Impartiality
• Role of Abuse of process doctrine at ICC
• General right to fair trial Article 67 (1)
• WATCH THAT SPACE

139
Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

140
Judgement

• Article 74 (5) The decision shall be in writing
  and shall contain a full and reasoned statement
  of the Trial Chamber's findings on the evidence
  and conclusions.

141
Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

142
Appeal

• Article 81
• Appeal against decision of acquittal or
  conviction or against sentence
• Procedural error,
• Error of fact,
• Error of law, or
• Any other ground that affects the fairness or
  reliability of the proceedings or decision.

143
Acquitted but in custody

• Art 81 (c) In case of an acquittal, the accused
  shall be released immediately, subject to the
  following
• (1) Under exceptional circumstances, and having
  regard, inter alia, to the concrete risk of
  flight, the seriousness of the offence charged
  and the probability of success on appeal, the
  Trial Chamber, at the request of the Prosecutor,
  may maintain the detention of the person pending
  appeal
• (2) A decision by the Trial Chamber under
  subparagraph (c) (i) may be appealed in
  accordance with the Rules of Procedure and
  Evidence.

144
Article 82 Appealing other decisions

• Re jurisdiction or admissibility
• Re. release of the person being investigated or
  prosecuted
• Re PTCs proprio motu acting on its own
  initiative under article 56, paragraph 3
• Re decision involving issued significantly
  affecting the fair and expeditious conduct of the
  proceedings or the outcome of the trial, and for
  which, Chamber thinks an immediate resolution by
  the Appeals Chamber might materially advance the
  proceedings.

145
Interlocutory Appeal

• Katanga and Chui AC "Judgement on the
  Prosecutor's Application for Evidentiary Review
  of Pre-Trial Chamber I's 31 March 2006 Decision
  Denying Leave to Appeal 13 July 2006
• a. Is there an "appealable issue"
• b. Can it significantly affect
• i. fair and expeditious conduct of the
  proceedings or ii. outcome of the trial and
• c. Would immediate resolution by AC materially
  advance the proceedings.

146
Article 84 revision

• (a) New evidence unavailable at time of trial,
  without fault by moving party and
• sufficiently important that if proved at trial
  would have been likely to have resulted in a
  different verdict
• (b) newly discovered that decisive evidence,
  taken into account at trial was false, forged or
  falsified
• (c) One or more of the judges who participated in
  conviction or confirmation of the charges has
  committed, in that case, an act of serious
  misconduct or serious breach of duty as to
  justify removal from office under article 46.

147
Structure

• Generally sources of law
• Multiple jurisdictions
• Investigations
• Arrest Warrants
• Arresting state
• Pre-trial
• Trial
• Judgement
• Appeal
• Remedies

148
Article 85 Compensation

• Unlawful arrest or detention
• Conviction reversed on the ground of miscarriage
  of justice based on new fact, punishment gives
  rise to compensation if no fault as to
  non-disclosure.
• In exceptional circumstances, where conclusive
  facts show there has been a grave and manifest
  miscarriage of justice, court has discretion to
  compensate .