In its decision of 18 March in the Lubanga case, the Trial Chamber noted that there is no foundation in the Rome Statute framework or in any relevant jurisprudence of the Court, or otherwise, for the suggestion that the Chamber is unable to ask questions about facts and issues that have been ignored, or inadequately dealt with, by counsel. According to the Chamber, the general evidence in the case is not restricted to the facts and circumstances described in the charges and any amendments to the charges, and under Article 69(3) the Chamber is entitled to request the submission of all evidence that it considers necessary for the determination of the truth.
The Chamber emphasised that it is for the judges to decide whether, when they intervene, it is appropriate to use leading questions, and addressing the defence submission that the Chamber must ensure that its questions cannot be perceived as revealing a preliminary view of the court, the appropriate manner of questioning will always depend on the circumstances, which is quintessentially a matter for judicial determination.
The Chamber noted that the Romano-Germanic and the common-law systems of law do not identify by way of a list, or a catalogue, the nature or the form of the questions that judges are entitled to ask, and such a limitation would involve a serious interference with the independence of the judiciary.
The Chamber also found that there is no basis in the Rome Statute framework or national judicial systems generally for the suggestion that the parties (or the participants) are entitled to challenge the form or content of judicial questions. Furthermore, such an approach would put the Chamber in the unrealistic position of ruling on its own questions, following objection and submissions.
Lubanga, Decision on judicial questioning, Case No. ICC-01/04-01/06, T. Ch., 18 March 2010, paras 41, 46.