Dec
26

Lubanga Disclosure Still an Issue

Trial Chamber I at the International Criminal Court (ICC) in The Hague has issued another decision in the ongoing battle over disclosures by the prosecution in the trial of  Thomas Lubanga Dyilo.  Lubanga’s trial commenced in January of 2009, the defense began its case in January 2010.  Testimony was to have been completed by now, but the chamber issued another decision on December 13, 2010 on disclosure.  The prosecution sought court approval for the names and evidence it has already withheld as “work product.”  The court did order the disclosure of some names and information previously withheld from the defense.

The prosecution had argued the notes of the investigators were not discoverable as they were work product.  The court previously issued a ruling evaluating the disclosure obligations of the Office of the Prosecutor in November, shortly after a ruling that prosecutor had violated its obligations.  In July, the trial chamber stayed the proceedings finding that a “fair trial … is no longer possible.” In October  the appeals chamber found that the trial chamber had not exhausted its power to sanction the prosecution for non-disclosure.  The fact that the prosecution did not disclose information it was ordered to disclose was not in dispute, the prosecution claimed it could not disclose the information because of its obligations to the governments and organizations that had provided the information.

The prosecution had been admonished by the trial chamber for failure to comply with disclosure orders in February 2010 for disclosures that should have been made “no later than December of 2009.”  The ongoing disclosure issues in this case highlight a conflict in the concept of the court and the obligations of the parties.  The Office of the Prosecutor is a semi-diplomatic office with obligations to the U.N. and nations which have provided information.  But in order to guarantee a fair trial it must also provide access to that information to the defense. The conflict has been that even when ordered by the court to disclose information, the prosecution argues that it’s diplomatic obligations prevent it from doing so.  Can the court offer fair trials without full disclosure?  The trial chamber has argued that it cannot but was overruled by the trial chamber with an eye towards greater sanctions on the prosecution.

Lubanga is the first case go to trial at the ICC.  He was brought before the court in 2006.  He is alleged to have been the leader of the Union of Congolese Patriots and is accused of conscripting and recruiting child soldiers in violation of the Geneva Conventions and the Rome Statute, the founding treaty of the ICC.  Lubanga is a citizen of the Democratic Republic of Congo.  The ICC has jurisdiction in the 114 nations that have ratified the Rome Treaty, or over their citizens who commit war crimes, crimes against humanity or genocide as defined by international law.

If there is a conviction in this case, the court could move on to the reparations phase where the victims of war crimes or crimes against humanity could seek orders of the court to make reparations from the funds of Lubanga, or from the trust fund for victims.  The ICC is the first international tribunal to offer a process for reparations and what form those reparations orders will take is still an open question.

Dec
11

Updates on Kenya Cases at the ICC

The Voice of America (VOA) has posted an article about the International Criminal Court (ICC) indictments in the post-election violence in Kenya arguing the Office of the Prosecutor (OTP) will have problems delivering the indictments by December 17 as previously announced.  The VOA says that the OTP is having difficulty in getting the statements of security chiefs who are insisting they should give their statements to Kenyan judges not to OTP investigators.

The ICC has exercised jurisdiction over the 2008 post-election violence in Kenya with the approval of the Kenyan government.  The current difficulties indicate that there is at least some dissent in Kenya, and many think the prosecutions should occur in Kenya and not in The Hague.

The Episcopal Church in Kenya has urged cooperation with the ICC.  Reuters reports the OTP remains on schedule to issue indictments against at least six accused in the next week.

The ICC has jurisdiction to investigate and prosecute crimes against humanity, war crimes and genocide in the 114 countries that have ratified the ICC treaty, or committed by their nationals if those crimes can not or will not be prosecuted by national authorities.  Kenya has accepted that crimes within the jurisdiction of the court occurred in  Kenya in 2008 and invited the court’s investigation.  People who were harmed as victims in the post-election violence may be eligible to participate in the cases as victims and ultimately seek reparations from those convicted or from the Trust Fund for Victims.

Dec
09

Darfur Case Starts Confirmation of Charges Without the Accused Attending

The second Darfur, Sudan case has begun the confirmation of charges hearing at the International Criminal Court (ICC), but without the presence of the accused. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) are accused of directing attacks on African Union peacekeepers in 2007.  Banda and Jerbo appeared voluntarily before the court and have been under court supervision, but not in custody.  The Confirmation of Charges hearing began on December 8th. Banda  and Jerbo have received the approval of the court to not attend the hearings, though their lawyers will be in attendance.

In a previous Darfur case, the accused, Bahr Idriss Abu Garda (Abu Garda), appeared voluntarily before the court and had his case dismissed at the Confirmation of Charges stage.   Abu Garda was also accused of directing attacks on peacekeeping forces and other war crimes.

The ICC has jurisdiction to prosecute war crimes, crimes against humanity, and genocide occurring since 2002 in the territories of the 114 nations that have ratified the ICC treaty, or by their nationals, or in the situations referred to the ICC by the United Nations Security Council.  The situation in Darfur is the first case to come to the court at the direction of the U.N. Security Council for the ongoing concerns of genocide, crimes against humanity and war crimes alleged to be ongoing in Darfur, though Sudan is not a signatory to the ICC treaty.

In addition to the three accused who have appeared voluntarily before the court, the court has publicly issued warrants for the arrest of the President of Sudan, Omar al-Bashir, the minister of Humanitarian Affairs of Sudan, Ahmad Harun, and the rebel leader Ali Kushayb.  The warrant for Bashir was the first public indictment of a sitting head of state by an International Tribunal.  The indictments against Banda, Jerbo and Abu Garda were not made public until they appeared before the court.  It is not known how many indictments have been issued under seal.

Dec
04

Trial Chamber III Restricts the Right of Victims to Select Counsel

Trial Chamber III of the International Criminal Court (ICC), currently hearing the case against Jean-Pierre Bemba Gombo (Bemba)  has ordered that all victims seeking to participate at trial will be represented by one of two lawyers designated by the court.  On November 18, the court ruled on the applications of the first 772 victims seeking to participate at trial and authorized 624 them to proceed to trial. An additional 653 victims have filed requests to participate in the trial, those applications are still pending.

In an order issued just prior to the beginning of trial, the chamber re-iterated the decision that the victims would be represented by two lawyers at trial, and determined that the 653 victims whose applications have not yet been decided would be represented by the Office of Public Counsel for Victims (OPCV):

On 10 November 2010, the Chamber issued it “Decision on common legal
representation of victims for the purpose of trial” whereby it, inter alia,
authorised the Registry to designate two common legal representatives from the
Central African Republic (“CAR”) to represent the totality of the victims allowed
to participate in the case and recalled that where it is appropriate, the OPCV may
appear before the Chamber in “respect of specific issues.”

Those two representatives, Marie-Edith Douzima Lawson and Assingambi Zarambaud are now the sole lawyers authorized to appear at trial on behalf of the 624 victims whose applications have been approved and of those whose applications are eventually approved.  This of course, raises the question, can two lawyers effectively represent more than a 1,000 victims in a single case during trial?

As noted by the court, the victims have a right to participate in the trial:

The Trial Chamber notes that, pursuant to Article 68(3) of the Rome Statute,
“the Court shall permit the victims to present their views and concerns at stages
of the proceedings determined to be appropriate by the Court and in a manner
which is not prejudicial to or inconsistent with the rights of the accused and a fair
and impartial trial. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.”

Can two lawyers, engaged full time in trial have time to consult with more than a thousand victims and then timely present their “views and concerns” to the court?

The court noted that many of the victims have not selected counsel, or have indicated a willingness to be represented by the OPCV or by one of the two lawyers selected to represent victims at trial.

the Chamber is of the view that, in the present circumstances and in
light of the time constraints, it is to the benefit of the Applicants to be represented
by the OPCV in court at the commencement of the trial until a decision on their
applications to participate in the trial proceedings is issued, at which point they
will be represented by one of the two common legal representatives designated
by the Registry.

The chamber does not specifically address the question of what happens if a victim selected their own counsel who is not the OPCV or one of the selected representatives, but presumably this order means that the victim’s selected counsel may not appear at the trial to present that victim’s “views and concerns.”

Has the court gone too far in restricting victim’s right to counsel?  It does appear that the court is concerned that victims slow down the process and is looking for ways to expedite the cases and limit victim participation.  Because the court and the process is new, the answers are not clear, but it seems unlikely that two lawyers, even with a small staff, engaged full time in a mass atrocity trial could effectively communicate with 1,000 or more clients and seek their input on the case.  Whether this case will be a model for future ICC cases or its approach will be scrapped remains to be seen.  The question for the chamber should be how seriously do we take the right of the victims to participate, and what steps should be taken to ensure adequate and direct representation of the victims? Following the trial the victims have an opportunity to seek reparations for the harms they have suffered, will they still be restricted to one of two lawyers at the reparations stage?

The ICC prosecutes cases of war crimes, crimes against humanity and genocide.  Are they focused on getting the cases tried and over with, on building a record of the alleged crimes, on a fair trial for the accused, or on justice for the victims?   Certainly speed of the trial should be last consideration, not the first.

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