Tag Archives: The Hague

The Hague, The Netherlands, seat of the International Criminal Court.

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.

ICC Rules on Disclosure Obligation of the Prosecution

Trial Chamber I of the International Criminal Court (ICC) has issued a ruling on the obligation of the prosecution to disclose information.  Trial Chamber I has been hearing the case against Thomas Lubanga Dyilo, the first ICC case to go to trial.  The Lubanga case has been stopped several times because of disputes over the disclosure of evidence in the possession of the prosecutor.   According to a post at the Open Society blog on the Lubanga trial, the issue came to light on March 5, 2010 when the defense noted to the court that the prosecution appeared to be cross-examining a defense witness based on undisclosed information.

It is clear in the Rome Statute, that the prosecution has a duty to disclose exculpatory information.  This ruling makes it clear the obligation is broader and the prosecution must disclose not just exculpatory information but information that may help explain the case, that may be used in cross examination and that “may otherwise be material to the preparation of the defence.”

While this clarification of the obligations may seem surprising to some in the Office of the Prosecutor, it is consistent with the spirit of the rules.  The obligation is based on the American Supreme Court case of Brady v. Maryland, which requires disclosure of exculpatory material or information that may lead to exculpatory material.  This obligation is ongoing.  Essentially, that appears to be the ruling of court.

The U.S. Department of Justice was involved in the drafting of the rules of the Rome Statute in the late 1990s.  Their input was to add an American style overlay to the system and require disclosure similar to that in U.S. federal court. The Office of the Prosecutor has adopted a more narrow approach, offering to disclose information they know to be exculpatory, or specifically requested by the defense.   The court seems to have broadened that understanding to include information that  “may significantly assist the accused in understanding the incriminating and exculpatory evidence, and the issues, in the case.”

This ruling makes the possibility of acquittal by the Trial Chamber seem more likely.  In June, the Trial Chamber suspended the proceedings finding that the prosecution’s failure to disclose the identity of a witness and the ongoing failure of the prosecution to disclose information as required meant that “a fair trial of the accused is no longer possible.”

If a fair trial was not possible because of the failure to meet disclosure obligations, and the prosecution has never met those obligations in the four years that Lubanga has been in The Hague, does this new ruling compel a finding of not guilty?

Lubanga was the leader of the Union of Congolese Patriots in the Democratic Republic of the Congo, he is accused of the war crimes of conscripting and enlisting child soldiers.  Lubanga was the first defendant in the custody of the court, arriving in 2006, his trial began in January 2009 and the defense began presenting its case in January 2010. The trial is expected to conclude this month.

U.S. State Department Official Describes “Positive Engagement” with the ICC

A U.S. State Department official has described the current administration‘s position on the International Criminal Court (ICC) as “positive engagement.”  The Bush administration had been openly hostile and sought agreements from other countries that no U.S. nationals would be transferred to the court and further threatened that it would use military force if any U.S. nationals were brought to the court.  Human Rights Watch described the law containing this threat,  the American Servicemembers Protection Act (ASPA) of 2002 as “The Hague Invasion Act” for its provision allowing such a use of force.

The Clinton administration had participated in the drafting of the Rome Treaty, but did not support the final version.  President Clinton signed the treaty on December 31, 2000, the final day to allow for continued participation in negotiating changes to the treaty.  President Clinton did not send the treaty to the Senate for ratification, and in a signing statement recommended that his predecessor not do so either,  because the ICC prosecutor was not “accountable” to the Security Council.  It appears that the main U.S. objection was that a member state, in particular the United States, could not veto or otherwise stop a prosecution.

In 2002, when the court’s jurisdiction began, the Bush administration sent a notice to the court withdrawing from the treaty.  A chronology of the U.S. attitude towards the court is offered by the American NGO Coalition for the International Criminal Court (AMICC). The Bush administration sought bi-lateral agreements with other nations promising not to transfer U.S. citizens to the ICC if indicted, apparently tying the signing of such an agreement to aid.  The Coalition for the International Criminal Court (ICCNOW) has offered a list of some of those agreements here.

There have been statements from U.N. Ambassador Susan Rice, signaling a change in policy towards the ICC, and Secretary of State Hilary Clinton has described it as “a great regret” that the U.S. is not a state’s party. It is clear that the U.S. is not as openly hostile to the ICC as the Bush administration. Though it seems unlikely the administration will expend any political effort or capital on seeking ratification of the treaty when it is clear that would not be 66 votes to ratify.  It is not clear how many Senators would support ratification, there are no public statements of support by any U.S. Senators that have been located in preparing this post.

The purpose of the ICC is to have a permanent international court to prosecute mass atrocity cases, those crimes against humanity, war crimes and acts of genocide that are not or cannot be effectively prosecuted by national authorities.  The principle of complementarity, preventing prosecution by the ICC when a national authority has jurisdiction has been sufficient for the 114 nations which have ratified the treaty.  The ICC is intended as a court of last resort, not to prosecute crimes generally.

The Rome Statute, founding document of the ICC, does not create new obligations, but rather creates an enforcement mechanism for violations of the Geneva Conventions of 1949, ratified by 194 countries, including the U.S.  The newest addition to the statute is a definition of the crime of aggression, or committing aggressive war.  The Nuremberg trials after World War II included a count of waging aggressive war and the U.N. charter includes an obligation of the member states, including the U.S. not to wage aggressive war.  The ability of an international court to enforce treaty obligations by prosecution appears to be the area of concern which prevent U.S. support for the ICC.

Judges Again Fault Office of the Prosecutor for Late Disclosure

Presiding Judge Adrian Fulford, hearing the case against Thomas Lubanga at the International Criminal Court, (ICC) has again raised concerns about the conduct of the prosecution in failing to identify a witness. The prosecution apparently had interviewed a witness, determined the testimony was not credible, but did not disclose the information to the defense.  The prosecutor has an affirmative duty to disclose exculpatory information to the defense.

The trial has previously been suspended for several months because of the non-disclosure to the defense. In giving the prosecution until Friday November  5 to make the disclosure, Judge Fulford said, “We will reflect on the approach taken by the OTP in relation to disclosure,”

Thomas Lubanga Dyilo is the first person to face trial at the ICC.  He was brought to the court in 2006. Lubanga was the leader of the Union of Congolese Patriots (UPC), and is the first person to face trial at the ICC in The Hague, Netherlands.  Lubanga is accused of the war crimes of  using and conscripting child soldiers. The trial began in January 2009, the defense began presenting its case in January 2010.  The case has been delayed several times,  and just resumed after a lengthy delay when the trial court suspended the case over concerns that Lubanga could not get a fair trial because of the repeated refusal of the Office of the Prosecutor to disclose the identity of a prosecution investigator accused of bribing witnesses.  The other delays are recounted here. The appeals chamber determined that  the case could continue, and that the court could impose sanctions on the Office of the Prosecutor to induce compliance with the court’s orders.

Testimony in the case is expected to conclude this month.  The defense is to complete its written argument requesting dismissal of the case because of prosecutorial misconduct for not properly disclosing witnesses or complying with its obligations.