"The history of American freedom is, in no small measure, the history of procedure." Justice Felix...

"The history of American freedom is, in no small measure, the history of procedure."

Justice Felix Frankfurter

Rights at the ICC

Relatively easy to enumerate rights at the court – ‘right-spotting’

More importantly, how do we judge adequacy of these rights?

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.

Liberal model of social order Liberty invasion = Crime

ICL - The big three:

Genocide, Crimes against humanity War crimes [in part]

Court procedures implicate these rights by restriction Liberal model requires binary distinction:

Innocence or Guilt

AND

Authorises invasions of fundamental rights to achieve determination

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

Process rights

These are created to produce the binary determination – guilt / innocence

Compromise these rights and the determination may be flawed

What causes wrongful convictions? False testimony Prosecutorial misconduct Police misconduct False confessions Bad identifications

....in part...

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

Sources of law

The ICC Statute regulates the applicable sources of law hierarchically

Article 21.

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;

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;

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.

Article 21

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

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.

Issue

Article 21 (3) subjects application of all law to ‘internationally recognised human rights’.

Question: what rights are these?

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.

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

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

Conventions

Geneva Conventions esp. Common Article 3

Convention against Torture Convention on the Rights of the Child

esp. Article 40

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.”

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.”

ICC Caselaw eg. Lubanga Dyilo, Arrêt relatif à l’appel interjeté par

Thomas Lubanga Dyilo contre la décision du 3 octobre 2006 relative l’exception d’incompétence de la Cour soulevée par la Défense en vertu de l’article 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.

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.

Multiple jurisdictions

Control by ICC over state activities.

Compare ad hoc tribunals eg. Nikolic and Barayagwiza

Is Prosecution responsible?

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.

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.

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.

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;

Article 54

1. The Prosecutor shall:

(c) Fully respect the rights of persons arising under this Statute.

“Trust me with your rights, I am a prosecutor.”

Compare and contrast:

Trust me with your lettuce, I am a rabbit.

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;


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;


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


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.


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;


2 (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;


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


2 (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

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.

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.

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.

ISSUE CJA applies the state’s law BUT

decides whether the suspect’s ‘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)


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. […].

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, [...]

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, [...]


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.


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…”

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

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.

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?

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.

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;

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.

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.

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 PTC’s power to review on its own initiative or on the Prosecutor’s application its former ruling on release or conditional release is unregulated and no explicit provision for a hearing – as opposed to seeking views included.

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.

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.

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.

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

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

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.

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.

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.

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;

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).

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.

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.

Article 66

1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.

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:

‘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

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.

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.

PUBLIC HEARING: Regulation 21

Broadcasting, release of transcripts and recordings

Issue: What about future witness pollution?

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.

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.”

‘Fair hearing’

All the enumerated rights plus General residual evaluation of

fairness.

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....

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?

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....

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.

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

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...

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.

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;

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?

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.”

Article 63 Trial in the presence of the accused

1. The accused shall be present during the trial.

2. [Removal for disruption]

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;

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…”

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.

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.

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:

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]

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...

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.

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.

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 client’s decisions concerning

the objectives of his or her representation as long as they are not inconsistent with counsel’s 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.

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.

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

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;

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 accused’s 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 I’s Decision on Victims’ Participation of 18 January 2008, 11 07 2008 paras. 94, 109

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.

Victim’s 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) TC’s decision that victims’ calling of

evidence or challenge to accused’s evidence is appropriate and

(vi) consistent with the rights of the accused and a fair trial.

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

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

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;

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;

Article 67 Rights of the accused (h) To make an unsworn oral or written

statement in his or her defence; and

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.

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.

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

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.

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

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

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."

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.

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”

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.

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.

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.”

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.

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).”

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.”

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.”

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.”

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.

ICC Case Lubanga Dyilo RAISES Issue of conspiracy to pervert the course

of justice The Prosecutor’s Impartiality Role of Abuse of process doctrine at

ICC General right to fair trial Article 67 (1)

WATCH THAT SPACE

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.

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.

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.

Article 82 – Appealing other decisions

Re jurisdiction or admissibility; Re. release of the person being

investigated or prosecuted; Re PTC’s 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.

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.

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.

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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