Apr
21

Lubanga Trial Closes Evidence Phase

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

Apr
13

Lubanga Closing Scheduled

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

Apr
09

Lubanga Aide Testifies that Lubanga Would Not Use Child Soldiers

Thomas Lubanga Dyilo’s personal secretary testified at the International Criminal Court (ICC) in The Hague, Netherlands,  this week that Lubanga would never have approved the use or recruitment of child soldiers.  The aide, Michel Angayika Baba, testified that he never saw minors in Lubanga’s bodyguard or entourage.  This is consistent with the testimony of an earlier witness for Lubanga.

Also this week the defense again complained about late disclosure of documents.  Failure to provide disclosures has been an ongoing issue in the case,  once stopping the trial, and the subject of repeated orders by the court. The prosecution offered three documents this week, which the defense argued should have been disclosed earlier.  The prosecution said one of the documents was simply a cleaner copy of an earlier document, two more “became relevant” because of the testimony of  a defense witness.  The prosecution’s determination of what is and what is not relevant and necessary to disclose had led the trial chamber to find last year that Lubanga could not get a fair trial, but that finding was reversed by the appeals chamber.

The prosecution’s position, that it must decide what material is relevant for disclosure has been troubling to some trial watchers and practitioners as well as to the trial chamber.  The prosecution takes the position that much of was it has cannot be disclosed to the defense, but only used a basis to find new evidence since the information has come through diplomatic channels and must be private.  This, of course, raises the question of whether or not the accused can be offered a fair trial if he cannot see the evidence against him or if potentially exculpatory evidence is being hidden, or ignored by the prosecution.

The question to be resolved is, do the rules provide an adequate protection of the accused?  Rule 77 says:
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.

Part of the issue comes from the hybrid nature of the court.  The court is both a civil law (European) and a common law (U.K./U.S) system. In a traditional civil law system the prosecution has a duty to fully investigate the case, including any exculpatory evidence before presenting the case to the court.  In common law systems the adversarial nature of the process, with full disclosure for the parties is presumed to better serve the interests of justice.  In a hybrid system, does the prosecutor have a greater duty to justice and full and fair investigation, or to build a case against the accused with the defense having an opportunity to present its own case?  Can the defense adequately present its case without all the files available to the prosecution?

In the end, the answers to these question, provided, in part, by the Lubanga case will determine whether or not the ICC is credible.  If the accused cannot get a fair trial, then what is the point of the court?

Lubanga is the first person to face trial in the ICC.  He is alleged to have been using child soldiers in the Democratic Republic of Congo, (DRC).  He was brought to the court in 2006, his trial began in January 2009, and the defense began presenting its case in January 2010.

Apr
07

Kenya Asks ICC to Drop Cases

The Government of Kenya has made an application to the International Criminal Court, (ICC)to withdraw the case against six senior government ministers for orchestrating post-election violence in 2007.   In a case which could define the issue of complentarity, the Government of Kenya says it now has the means to try these cases in it’s national courts and no longer needs the assistance of the ICC.

In March, Pre-Trial Chamber II of the ICC issued summonses: against William Samoei Ruto,  a suspended Minister of Higher Education, Science and technology of the Republic of Kenya; Henry Kiprono Kosgey,   Minister of Industrialization of the Republic of Kenya and the Chairman of the Orange Democratic Movement; and Joshua Arap Sang,  head of operations at Kass FM in Nairobi; and Francis Kirimi Muthaura,  Head of the Public Service and Secretary to the Cabinet of the Republic of Kenya; Uhuru Muigai Kenyatta,  Deputy Prime Minister and Minister for Finance of the Republic of Kenya; and Mohammed Hussein Ali, Chief Executive of the Postal Corporation of Kenya.

In it’s submission the government argues that a new constitution and other changes made in 2010:

The new Constitution incorporates a Bill of Rights which significantly
strengthens fair trial rights and procedural guaiantees^ within the Kenyan
criminal justice system,

The Constitution gives effect to a comprehensive range of judicial reforms
which fundamentally transform the administration of justice in Kenya.
Deficiencies and weaknesses from the past have been specifically targeted to
guarantee the independent and impartial dispensation of justice.
National courts will now be capable of trying crimes from the post-election
violence, including the ICC cases, without the need for legislation to create a
special tribunal, thus overcoming a hurdle previously a major stumbling block,
The new Constitution guarantees the independence of the State’s investigative
organs and ushers in wide-ranging reforms to the police services.

An independent Commission for the Implementation of the Constitution is
established to monitor, facilitate and oversee the development of legislation
and administrative procedures required to implement the Constitution,

Kenya argues the case is now inadmissible, meaning the ICC has no jurisdiction over the case.  The ICC was created by the Treaty of Rome and a major point of the court is something called “complementarity.”  Complementarity means the court complements rather than supplants national court systems.  The ICC can act only if the national authorities with jurisdiction to prosecute the court can not or will not prosecute or even investigate.  Having first said it could not prosecute, can Kenya now prosecute and withdraw the case from ICC jurisdiction?  Does a newly found will to prosecute render a case inadmissible before the court?

The ICC prosecutor delivered a list of 20 names to the pre-trial chamber in March, 2010.  From this information, the court announced its summonses to six persons last month.  Three of those six appeared at the ICC today, Kosgey, Ruto and Sang.  They are charged with war crimes

This case presents a real test of the complementarity of the court as a concept.  Is a case admissible only as long as the government agrees that it is?  Or having once agreed, can the country not retract the case?  Kenya argues that since it is now possible to guarantee fair trials of the accused they belong in Kenyan courts.  Kenya also argues that its government rejected an overwhelming (“near-unaminous” in its argument to the court) vote of the parliament to withdraw from the ICC. The government has withstood the popular sentiment so far, but apparently fears for its stability if this issue is not resolved.

The ICC has been in existence since 2002, none of these issues have come up before and it is not clear what the court will do with the cases.  It seems likely the court would seek to defend its turf and find that if the case was admissible when submitted to the chamber, it remains admissible even if conditions in the country where the incidents occurred has changed and can now prosecute.  If so, would Uganda be able to withdraw the indictments against its rebels who later join with the government? There are many questions to be answered in this case.

Apr
02

Katanga and Chui Begin Defense Case

Germain Katanga and Matthieu Ngdolo Chui began presenting their defense last week.  Katanga and Chui are alleged to have committed war crimes and crimes against humanity as the leaders of the Patriotic Resistance Force in Ituri (FPRI) in the Democratic Republic of Congo.

Katanga and Chui are accused in an indictment of the following crimes:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

Katanga and Chui were brought before the court in February of 2008, their trial began in November of 2009.  The Katanga team has estimated that it would take 122 hours to present its defense witnesses and Chui team estimates 200 hours of court time.  According to the Katanga trial website, if the prosecution takes an equivalent amount of time to cross-examine the witnesses, then the defense case will require 644 hours of court time or about 16 months given the court’s schedule, roughly equivalent to the time the prosecution needed to present its case.

Katanga and Chui were the second case to go to trial at the International Criminal Court (ICC) in The Hague, Netherlands, following the case of Thomas Lubanga Dyilo.  The third case, Jean-Pierre Bemba Gombo from the Central African Republic, started trial in November 2010, another case, against Abdallah Banda and Saleh Jerbo from Darfur has completed confirmation of charges and is now headed for trial.  The latest case, against Callixte Mbarushimana is scheduled for confirmation of charges in July.

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