Is the first ICC acquittal accidental?

It seems that the acquittal in the Ngudjolo case has exposed a serious flaw in the Office of the Prosecutor of the ICC - the shortfall of professional criminal investigators.
The accused has been acquitted mainly because of poor quality (lack of credibility) of the prosecution evidence.
For some reason, from the very beginning, the OTP has neglected the role of the experienced professional field investigators in the ICC investigations. In the early days of the ICC, according to the vacancy announcements for the investigators’ positions, an experience in conducting journalistic or NGO investigations would qualify a person for the job. One may argue that, while assistance of these categories might be useful in conducting criminal investigations it is no substitute for the relevant experience.

In this regard I would like just to repeat what I wrote in my article “Special Commentary: International Criminal Justice – Some Flaws and Misperceptions” in Criminal Law Forum (see the accepted author’s version of the article here):

“Experienced police field investigators are indispensible in international tribunals. They have the necessary professional training in investigation techniques related to crime scene investigation, protection of witnesses, working with informants and insiders, proper handling of evidence an so on. It is true that the investigation of perpetrators in positions of leadership involves comprehensive analysis and the piecing together of the evidence linking those perpetrators to atrocity based crimes. That said, one still has to prove that crimes were committed; one still has to collect crime-base pattern evidence. This involves extensive field investigations. The investigation of international crimes is not entirely, as is often alleged, akin to domestic white-collar crime investigations. Neither does it merely involve, albeit on a large scale, the investigation of ‘‘ordinary’’ offences such as murder and rape. It is in fact a complex combination of both, and such a combination requires a blend of relevant investigative experience and skill. In this regard, it would appear that the ICC is currently suffering from a lack of experienced, trained, field investigators".

It is noteworthy that there has been no Deputy Prosecutor for Investigation in the ICC since 2007. The newly elected Deputy Prosecutor, a well-known international jurist, like his predecessor, the current Prosecutor, is also the Deputy for Prosecution. Apparently, the criminal investigation is still not considered a priority in the OTP.

Proofing witnesses in the ICC: judge Ozaki dissent

The term “proofing” refers to a meeting held between a party to the proceedings and a witness, usually shortly before the witness is to testify in court, the purpose of which is to prepare and familiarize the witness with courtroom procedures and to review the witness’s evidence.

While the proofing by the parties has been approved by the judges of ad hoc Tribunals, the ICC Trial Chamber in the Lubanga case found that this practice shall not be used in the Court.

Recently, in the Bemba case, the majority of the Trial Chamber reiterated approach taken by the Lubanga Chamber.

Judge Kuniko Ozaki disagreed with the majority and opined that the proofing witnesses by the parties might be necessary in the ICC cases.

She noted that witnesses who will testify before the Chamber come from places far away from The Hague and are not necessarily familiar with the “Western” way of questioning or with court systems in general.

The judge also observed that the witnesses give evidence on events which occurred a number of years ago and their statements were also given months, or even a few years ago. Sometimes those statements were taken before the confirmation of charges, by investigators without legal training or without precise directions regarding specific crime-related evidence to be collected, resulting in statements which lack the degree of specificity required to prove that the crimes charged were committed.

The judge concluded that without proofing, there is an increased likelihood that the evidence given by the witness will be incomplete, confused and ill-structured.

Furthermore, in the opinion of the judge, the Chamber would have considerably benefited from witness proofing, considering the scale, complexity, geographical and temporal scope of the case and cultural and linguistic remoteness from the Court as well as the particular vulnerability of the witnesses.

In order to address potential risks associated with proofing, the judge suggested such safeguards as video-audio recording of the proofing session, presence of a third party such as a representative from the Victims and Witness Unit, and specific training of lawyers for the purpose of proofing.

The judge also opined that it would also be possible for the Chamber to designate a lawyer from the prosecution, other than the trial lawyer examining the witness in court, in order to conduct proofing if there is an apparent risk of contamination of the evidence, but where proofing is nonetheless considered preferable.

Bemba, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, Case No. ICC-01/05-01/08, T. Ch, 24 November 2010.

Lubanga case: Chamber’s orders are binding, but stay of proceedings was premature

Three months ago the Trial Chamber in the Lubanga case had ordered the stay of the proceedings because of the Prosecution refusal to comply with the Chamber’s orders.

Recently the Appeals Chamber delivered its judgement on this issue.

Chamber’s Orders are Binding

The Appeals Chamber endorsed the statement of the Trial Chamber that “no 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.”

The Appeals Chamber emphasized that orders of the Chambers are binding and should be treated as such by all parties and participants 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.

The Chamber also noted 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.

Stay of the Proceedings Lifted

At the same time, the Appeals Chamber lifted the stay of proceedings in this case.

The Chamber emphasized that a stay of proceedings is an exceptional remedy.

The Chamber found 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 and Rule 171 before resorting to imposition of a stay of proceedings.

In particular, pursuant to Rule 171 of the ICC Rules, if an official of the Court or a defence counsel refuses to comply with direction by the Court, the Presiding Judge of the Chamber may order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 days.

In the view of the Appeals Chamber, 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.

Lubanga, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 entitled “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”, Case No. ICC-01/04-01/06 (OA 18), App. Ch., 8 October 2010

The Appeals Chamber has also reversed the Trial Chamber’s decision to release the accused, as that decision was predicated on the decision to stay proceedings.

Lubanga, Judgment on the Appeal of Prosecutor against the Oral Decision of Trial Chamber I of 15 July 2010 to Release Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (OA 17), App. Ch., 8 October 2010.

See also previous post: “The ICC Prosecutor refused to comply with the Chamber's order”

Another ICC decision on the victim’s participation in trial

In its recent decision in the Katanga and Ngudjolo case, the ICC Appeals Chamber noted that victims do not have a right to present evidence pertaining to the guilt of the accused. Under Article 68(3) of the ICC Statute they may only present their “views and concerns”, and this only if their personal interests are affected.

However, according to the Chamber, there may be instances where, in requesting to present their views and concerns, victims bring to the Trial Chamber evidence that the Chamber may consider necessary for the determination of the truth.

The Appeals Chamber found that the possibility for the victims to testify on matters including the role of the accused in the crimes charged against them, grounded on the Trial Chamber’s authority to request evidence necessary for the determination of the truth, is not per se inconsistent with the rights of the accused and the concept of a fair trial.

Disclosure by the Victims

The Appeals Chamber also held that it is not incompatible with the accused’s right to a fair trial if, during the course of the trial the Trial Chamber requests victims to submit evidence that was not previously disclosed to the accused.
In such a situation, the Trial Chamber shall order disclosure of the evidence to the accused sufficiently in advance of its presentation at the trial, and take any other measures necessary to ensure the accused’s right to a fair trial, in particular the right to have adequate time and facilities for the preparation of the defence.

The Appeals Chamber found that, although no general obligation must be imposed on victims, there may be specific instances in which a Trial Chamber may require victims to disclose exculpatory evidence in their possession to the accused.

In addition, according to the Chamber, where the submissions in the victims’ applications for participation indicate that victims may possess potentially exculpatory information, the Prosecutor’s investigation should extend to discovering any such information in the victims’ possession. Such information would then be disclosed to the accused.

Katanga and Ngudjolo, Judgment on the Appeal of Mr. Katanga against the Decision of Trial Chamber II of 22 January 2010 entitled "Decision on the Modalities of Victim Participation at Trial", Case No. ICC-01/04-01/07, App. Ch., 16 July 2010.

Lubanga case: release of the accused and formal warning to the Prosecutor and his Deputy

Leave to appeal granted

On 8 July 2010, the Trial Chamber in the Lubanga case had stayed the trial proceedings as an abuse of the process of the Court.

(See previous post: “The ICC Prosecutor refused to comply with the Chamber's order”

The Prosecution appealed the stay of the proceedings.
Yesterday, 15 July, the Trial Chamber granted the Prosecution leave to appeal on two issues: whether it was necessary to stay the proceedings as an abuse of the process of the Court because of: i) the Prosecution’s material noncompliance with the Chamber’s orders; and ii) the Prosecutor’s intention not to implement the Chamber’s orders tmade in regard to protective measures, if he considers they conflict with his interpretation of the Prosecution’s other obligations.

Release of the accused

The Presiding judge emphasised that the trial was halted because it was no longer fair. The accuse, in the Chamber's opinion, cannot be held in preventative custody on a speculative basis; namely, that at some stage in the future the proceedings may be resurrected.
Accordingly, the Chamber ordered the release of the accused unconditionally.
This order, however, will not be enforced until the five day time limit for an appeal has expired. If the Prosecution appeals this order the accused will not be released until the Appeals Chamber resolves whether this order granting release is to be suspended.

Warning the Prosecution of sanctions

The Chamber also formally gave the Prosecutor and the Deputy Prosecutor an oral warning of sanctions in the event of any continuing breach of Chamber’s orders.

Lubanga, transcript, Case No. ICC-01/04-01/06, 15 July 2010.

The accused has been detained since March 2006. 
Trial began in January 2009. 
Lubanga denies charges of war crimes in the Democratic Republic of Congo by recruiting, training and deploying hundreds of children to carry out murders, looting and rapes.

The ICC Prosecutor refused to comply with the Chamber's order

In the Lubanga case, the Prosecution refused to comply with the Trial Chamber’s order to disclose to the Defence the identifying information of some of the Prosecution’s intermediaries. 

See previous post: “Lubanga case: disclosure related to Prosecution intermediaries”.

The Prosecution argued that it has “an independent statutory obligation to protect persons put at risk on account of the Prosecution’s actions. It should not comply, or be asked to comply, with an Order that may require it to violate its separate statutory obligation by subjecting the person to foreseeable risk.”

Today, the Trial Chamber ordered the stay of the proceedings.
The Chamber emphasized that no 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.

The Prosecutor, according to the Chamber, cannot be allowed to continue with the Prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. 

The Chamber concluded that in these circumstances, it is necessary to stay the proceedings.

Whilst the stay of the proceedings is in place, the Chamber will deal with any application for leave to appeal on this or any related issue that is filed.
Otherwise, the Chamber will only entertain submissions regarding the possible application of Article 71 of the Statute (“Sanctions for misconduct before the Court”) on 8 July and submissions on the accused’s detention on 15 July.

Lubanga, Redacted 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, Case No. ICC-01/04-01/06, T. Ch., 8 July 2010.

See also See also “Lubanga case: Chamber’s orders are binding, but stay of proceedings was premature”, and "Lubanga case: disclosure related to Prosecution intermediaries" on this blog.

Lubanga case: Defence material not subject to disclosure

In the Lubanga case (ICC), the Prosecution, in preparation for the Defence case, sought disclosure of photographs of particular Defence witnesses, in order to investigate their identities.

In this regard, the Trial Chamber noted that there is a clear dividing line between, on the one hand, the accused\s obligation to disclose in advance the material he anticipates using during the trial, and, on the other, the accused’s right to remain silent and not to incriminate himself.

The Chamber found that, as the Defence does not intend to utilise the photographs as part of its evidence, there is no proper basis under the Rome Statute that would justify an order for their disclosure to the Prosecution. They are simply part of the Defence background preparatory materials, which are ordinarily protected from inspection.

Lubanga, Redacted Second Decision on Disclosure by the Defence and Decision on whether the Prosecution may Contact Defence Witnesses, Case No. ICC-01/04-01/06, T. Ch., 20 January 2010.

Lubanga case: disclosure related to Prosecution intermediaries

In the Lubanga case, the Prosecution used intermediaries (NGOs, aid workers, etc.) to contact approximately half of its witnesses.

Recently, the Trial Chamber ordered the Prosecution disclose to the Defence identifying information of some of the intermediaries and to call some of them to testify.

The Chamber noted that the role of the intermediaries increasingly became a focus of scrutiny since the commencement of the trial, leading to the application by the Defence for disclosure of their identities.
The Chamber conceded that the precise role of the intermediaries together with the manner in which they discharged their functions became an issue of major importance in the trial.

The Prosecution based his objection to disclosure, in particular, on a suggested analogous protection that is provided to informants who assist national courts.
However, the Chamber noted that there is a real basis for concern as to the system employed by the Prosecution for identifying potential witnesses. According to the Chamber, on the evidence, there was extensive opportunity for the intermediaries, if they wished, to influence the witnesses as regards the statements they provided to the Prosecution, and there is evidence that this may have occurred.

The Chamber concluded that in the circumstances it would be unfair to deny the Defence the opportunity to research this possibility with all of the intermediaries used by the Prosecution for the relevant witnesses, where the evidence justifies that course.

Accordingly, the Chamber ordered the Prosecution disclose to the Defence identifying information of some of the intermediaries and to call some of them to testify.

Lubanga, Decision on Intermediaries, Case No. ICC-01/04-01/06, T. Ch., 31 May 2010

ICC: Prosecution’s “freedom of speech” is not absolute

In the Lubanga case, the Trial Chamber issued a decision concerning a press interview with the Head of one of the Divisions of the Office of the Prosecutor. In the decision, the Chamber expressed its “strongest disapproval” of the content of the interview.

In particular, the Chamber “deprecated” the Prosecution’s use of a public interview, first, to misrepresent the evidence and to comment on its merits and weight, and including by way of remarks on the credibility of its own witnesses in the context of a trial where much of the evidence has been heard in closed session with the public excluded; second, to express views on matters that are awaiting resolution by the Chamber, thereby intruding on the latter’s role; third, to criticise the accused without foundation; and, finally, to purport to announce how the Chamber will resolve the submissions on the abuse of process application, and, moreover, that the accused will be convicted in due course and sentenced to lengthy imprisonment at the end of the case.

The Chamber reminded that in the Lubanga trial, for reasons of security, a very considerable part of the proceedings took place in camera. Given that members of the public have been excluded from a significant part of the trial, anyone interested in the case is significantly hampered in understanding “first-hand” what has occurred during these lengthy proceedings. Accordingly, the numerous closed-session hearings have increased the responsibility of the parties to be scrupulously accurate and balanced in public interviews.
The Chamber emphasized that as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.

Lubanga, Decision on the Press Interview with Ms Le Fraper Du Hellen, Case No. ICC-01/04-01/06, T. Ch., 12 May 2010

Standard of proof and standard of assessment

In the Garda case, the Pre-Trial Chamber of the ICC had found that the evidence brought by the Prosecution was not sufficient to confirm the charges against the suspect.
In its application for leave to appeal the Decision, the Prosecution argued that the Chamber should have applied a different standard to the assessment of the evidence at the confirmation of the charges stage.

The Pre-Trial Chamber, in its Decision of 25 April, found that the Prosecution’s proposition is without any legal basis.
The Chamber emphasized that the difference between the various stages of the proceedings lies instead in the threshold of proof to be met during the respective stages of the proceedings: for the confirmation of charges the standard of proof is “substantial grounds to believe” that the person committed the crime charged, and for the conviction, the standard is higher - “beyond reasonable doubt” that the accused is guilty.
In the case in question, the Chamber found that the Prosecution failed to meet the threshold of proof required for confirmation of the charges.

As to the assessment of the evidence, the Chamber noted that neither the Statute nor the Rules of the ICC, contrary to the Prosecution’s assertion, draws a distinction as to the way evidence shall be assessed before a Trial Chamber and a Pre-Trial Chamber.

Garda, Decision on the "Prosecution's Application for Leave to Appeal the 'Decision on the Confirmation of Charges'", ICC-02/05-02/09, T. Ch., 25 April 2010.

Questioning witnesses by the judges (ICC)

Pursuant to Rule 140.2(c) of the ICC Rules, the Trial Chamber has the right to question a witness before or after a witness is questioned by a participant.

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.

ICC: examination of witnesses by anonymous victims

A few days ago, the Trial Chamber in the Lubanga case reiterated that if a victim who previously has been anonymous vis-à-vis the accused wishes to question Defence witnesses, it is likely that the Chamber will require anonymity to be lifted as regards the Defence.

Previously the same Chamber held that when resolving a request for anonymity by a victim who has applied to participate, it will scrutinise carefully the precise circumstances and the potential prejudice to the parties and other participants.

The Appeals Chamber of the International Criminal Court ruled on the standard of proof for confirmation of charges

Recently, in the Bashir case, the Appeals Chamber of the ICC held that requiring, as the Pre-Trial Chamber had done, 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.
According to the Appeals Chamber, 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”
.
Accordingly, the Appeals Chamber found that the standard the Pre-Trial Chamber had developed and applied was higher and more demanding than what is required under Article 58 (1) (a) of the ICC Statute.

The International Criminal Court deals with a hostile Prosecution witness

In the Lubanga case, a witness, having been called by the Prosecution, suggested that he had provided a false name to the Prosecution, and that his first witness statement was substantially inaccurate.
By its Decision of 1 February, the Trial Chamber ordered the Prosecution to take further statement from the witness in order for the witness to clarify his evidence.

Subsequently, the Prosecution concluded that the witness is unreliable and decided not to recall him. If, however, the witness is recalled, the Prosecution sought to cross-examine him.
The Trial Chamber considered that the witness remained a Prosecution witness whose evidence was adjourned. The Chamber further found that, once a party has called a witness, he or she cannot be withdrawn before their testimony is complete, without the leave of the Court.

The Chamber held that notwithstanding the Prosecution’s desire to abandon the witness, the latter will be recalled to continue giving evidence as a Prosecution witness. At the same time, the Chamber allowed the Prosecution to cross-examine the witness since he shown “hostility” towards the Prosecution.

International Criminal Court: the legal characterisation of facts cannot be changed at trial if the changes exceed the facts in the indictment

Pursuant to Regulation 55(2) of the International Criminal Court, if, at any time during the trial, it appears to the Trial Chamber that the legal characterisation of facts may be subject to change, the Trial Chamber shall give notice to the participants of such a possibility.


In the Lubanga case, the Trial Chamber opined that this provision allows it to change the legal characterisation of facts “based on facts and circumstances that, although not contained in the charges, ... are established by the evidence at trial.” The Appeals Chamber in its Judgment of 8 December found this interpretation erroneous. According to the Appeals Chamber, Regulations 55 (2) and (3) may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.