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RIGHTS OF THE ACCUSED AT THE ICC

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Title: RIGHTS OF THE ACCUSED AT THE ICC


1

2
RIGHTS OF THE ACCUSED AT THE ICC
  • "The history of American freedom is, in no
    small measure, the history of procedure."
  • Justice Felix Frankfurter

3
Rights at the ICC
  • Relatively easy to enumerate rights at the court
    right-spotting
  • More importantly, how do we judge adequacy of
    these rights?

4
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.

5
Liberal model of social order
  • Liberty invasion Crime
  • ICL - The big three
  • Genocide,
  • Crimes against humanity
  • War crimes in part

6
Court procedures implicate these rights by
restriction
  • Liberal model requires binary distinction
  • Innocence or
  • Guilt
  • AND
  • Authorises invasions of fundamental rights to
    achieve determination

7
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

9
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

11
Sources of law
  • The ICC Statute regulates the applicable sources
    of law hierarchically
  • Article 21.

12
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

13
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

14
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.

15
Article 21
  • 2. The Court may apply principles and rules of
    law as interpreted in its previous decisions.

16
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.

17
Issue
  • Article 21 (3) subjects application of all law to
    internationally recognised human rights.
  • Question what rights are these?

18
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.

19
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

20
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

21
Conventions
  • Geneva Conventions esp. Common Article 3
  • Convention against Torture
  • Convention on the Rights of the Child esp.
    Article 40

22
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.

23
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.

25
Structure
  • Generally sources of law
  • Multiple jurisdictions
  • Investigations
  • Arrest Warrants
  • Arresting state
  • Pre-trial
  • Trial
  • Judgement
  • Appeal
  • Remedies

26
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.

27
Multiple jurisdictions
  • Control by ICC over state activities.
  • Compare ad hoc tribunals eg. Nikolic and
    Barayagwiza
  • Is Prosecution responsible?

28
Structure
  • Generally sources of law
  • Multiple jurisdictions
  • Investigations
  • Arrest Warrants
  • Arresting state
  • Pre-trial
  • Trial
  • Judgement
  • Appeal
  • Remedies

29
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.

30
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.

31
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.

32
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

33
Article 54
  • 1. The Prosecutor shall
  • (c) Fully respect the rights of persons arising
    under this Statute.

34
Trust me with your rights, I am a prosecutor.
  • Compare and contrast
  • Trust me with your lettuce, I am a rabbit.

35
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

36
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

37
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

38
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.

39
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

40
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

41
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

42
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.

43
Structure
  • Generally sources of law
  • Multiple jurisdictions
  • Investigations
  • Arrest Warrants
  • Arresting state
  • Pre-trial
  • Trial
  • Judgement
  • Appeal
  • Remedies

44
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.

45
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.

46
Structure
  • Generally sources of law
  • Multiple jurisdictions
  • Investigations
  • Arrest Warrants
  • Arresting state
  • Pre-trial
  • Trial
  • Judgement
  • Appeal
  • Remedies

47
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.

48
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)

49
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, ...

51
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, ...

52
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.

53
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

55
Structure
  • Generally sources of law
  • Multiple jurisdictions
  • Investigations
  • Arrest Warrants
  • Arresting state
  • Pre-trial
  • Trial
  • Judgement
  • Appeal
  • Remedies

56
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

60
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.

61
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.

62
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.

63
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.

64
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 .
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