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Thursday, October 14, 2010

Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it's "definitely" not going to happen, says the President of the ASP.

I ended my previous post on the possible next steps after the Appeals Chamber Judgment reversing the stay of proceedings in the Lubanga case. I would like to make a couple of follow-up comments on this point.

For one, it is likely that contempt proceedings be initiated by the Court in accordance with article 71 of the Statute. In accordance to Rule 171 of the RPE, the Chamber can pronounce the removal from the proceedings of a person who has failed to comply with an order of the Court, or even, if the person is an official of the Court, order an interdiction to exercise their function for a period up to 30 days. And of course, they can fine the person as well.
I still don't see how this is linked to the opportunity of staying the proceedings or not. If the prosecutor were being accused of bribing witnesses (which is not far removed from the underlying accusations against the OTP intermediaries in this case...), would the Chamber have an obligation to keep the trial going while it initiated proceedings under 71, even if it means that corrupt witnesses are testifying? It wouldn't make sense. You have to make sure that the underlying cause justifying the stay has ceased to exist before you can resume the trial.

Another (independent) avenue is action by the ASP. This could lead to disciplinary measures (Article 47) which may be (very scary) "(a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned" (RPE, Rule 32). Or, if the conduct is sufficiently serious, the ASP can vote by an absolute majority of States a removal from office (Article 46). There is no middle-ground between the two, such as a temporary suspension. However, this oversight is partly compensated by the fact that the Chamber can suspend the person temporarily. It should also be pointed out that the proceedings are not initiated directly by the ASP, but should be triggered through a formal complaint to the Presidency, or proprio motu by the Presidency (Rule 26 RPE).

In relation to the latter possible proceedings at the ASP, the Asser Institute hosted a lecture by Ambassador Wenaweser last night, where the President of the ASP shared some of his thoughts on the Kampala Conference and more generally on what lies ahead for the ICC. In response to a comment he made on strenghtening the role of the ASP, I asked him if he had any thoughts on the ASP using its powers to sanction or even remove Prosecutor Ocampo. He was fairly evasive on the ASP looking into things more generally, but his answer was crystal clear on the removal aspect: this will definitely not happen. Of course, this is unsurprising politically. But this statement is problematic, both substantially and procedurally.

From a substantial point of view, you have to wonder what the Prosecutor must do to be removed, if his conduct in the Lubanga case is not sufficient to at least consider the possibility. In Lubanga alone, he has voluntarily misrepresented the Statute not to communicate UN documents to the defense. He has refused to obey Court orders. Also, we mustn't forget the underlying situation behind the recent current events, which have taken a backseat to the procedural drama of the stay of proceedings : his intermediaries are alleged to have interfered with witnesses, which, if established, would be a massive breach of the fairness of the proceedings.

Beyond this substantial aspect, it is problematic that the President of the ASP would express a preconceived opinion about the possible outcome of a formal procedure provided for by the Statute and the Rules of Procedure and Evidence. This is just as inappropriate as a judge saying in advance that a defendant will go free before his hypothetical trial takes place.

This is a sign of the general impunity for the organs of international tribunals, which is ironic given that their overarching mandate is specifically to fight impunity. Judges have been caught sleeping. Prosecutors have been accused of paying witnesses. Decisions have been taken that clearly undermine the rights of the defense on a daily basis, both subanstially (for example new crimes being added through the haphazard use of customary law) and procedurally (for example the very lax rules on the admission of evidence). All these events would constitute serious miscarriages of justice by any normal standard, but end up having little to no consequences in international tribunals under the guise of the superior moral objective of these institutions. Of course, I'm not equating some of the procedural improprieties that I mention previously, to the serious crimes alledgedly committed by the defendants. But the underlying principle behind these tribunals should apply in their daily working: if there is no accountability, there cannot be justice.

To come back to the specific issue at hand, one could argue that it wouldn't look good and would be a sign of weakness for the ICC to remove (or sanction) its Prosecutor. But for me, this is a short-sighted analysis. On the long-run, the legitimacy of the Court will depend on its capacity to publicize its successes, but also to accept the consequences of its failures. It is a sign of the maturity of an institution that it can acknowledge its mistakes, rather than sweep them under the carpet, as it keeps doing in the Lubanga case. All they will achieve is to create this increasing mound of dust over which Justice, as the long-term goal of the institution, can only stumble eventually.

Tuesday, October 12, 2010

Self Promotion: the ICJ, Kosovo and the Twilight Zone Effect

The Hague Justice Portal has just published my new commentary on the ICJ Kosovo advisory opinion. It's part of an online series discussing the issue, with Jean d'Aspremont, Eric de Brabandere, Jure Vidmar and Tarcissio Gazzini.

I basically argue that the difficulties arising from the decision come from the fact that the Court accepted to answer a question about the legality of the conduct of individuals under international law, which is outside its natural jurisdiction. It should have refused to answer the question asked, or, alternatively, tried to attribute the conduct to the ultimate entity in charge, in this case, the UN.  

Friday, October 8, 2010

International Justice marches (limps...) on (again): ICC Appeals Chamber reverses stay of proceedings in Lubanga

In July, Trial Chamber I ordered a stay of proceedings in the Lubanga case because the OTP was refusing to comply with an order to disclose the name of an intermediary to the defense. As I related at the time, the TC considered that it had lost control over its capacity to insure the fairness of the proceedings if the OTP could decide unilaterally to not comply with an order of the Court. A few days later it ordered the release of Lubanga.

The Appeals Chamber just issued its Judgment on the Prosecutor's appeal, and the result is unfortunately not surprising. Once again the AC recognises that the OTP has violated its obligations under the Statute... but there is no immediate consequences and Lubanga remains in jail (see separate Judgment on that)!
More specifically, the OTP had raised three issues.

The first one was that the OTP was under an autonomous duty to protect witnesses and should be able to not comply with a TC order, should it consider that it would violate this autonomous duty. The AC rightly recalled that orders of the TC are binding on all the parties until changed or suspended by the AC.

The second related issue was that the burden to insure fair trial was a shared one between the Court's organs, and that in case of contradiction between OTP and TC, there should be a coordination of the two until accepted adjustments are reached. On this, the AC affirmed that the the TC is the ultimate guardian of fair trial and that the OTP cannot supplant TC orders. Any conflict between the two should be resolved in favour of the TC. I of course agree with the AC and I find it a little shocking that the Prosecutor, who has so often shown his attachment to fairness by, for example, publicly misrepresenting Court decisions to imply that the issuance of an arrest warrant is tantamount to a finding of guilt, as in the Bashir case, should have the chutzpah to claim that the duty to insure the fairness of the proceedings also rests on his office...

Finally, the OTP argued that the stay of proceedings was a "premature and excessive" remedy and that the TC could have used its powers under article 70(1) to punish the Prosecutor and find alternative ways to compensate Lubanga. The AC agreed with the TC that the conduct of the Prosecutor, who claimed that he could decide not to implement a Court order based on his own interpretation of the Statute, could indeed constitute a grave enough situation where it would be impossible to insure a fair trial and could therefore justify a stay of proceedings. HOWEVER (of course, however...), the TC erred in concluding that it had lost control over the trial in this specific instance. It could have used Article 71 and impose sanctions on the Prosecutor to try and obtain compliance BEFORE ordering the stay of proceedings. The decision of the TC is consequently reversed. As a result, the decision to release Lubanga is also reversed, and the AC considered that it was not appropriate to make a finding on whether the Prosecutor's actions constituted an "inexcusable delay" that might justify release under Article 60(4) of the Statute.

So, as usual, the Appeals Chamber is entirely predictable in his reasoning, ultimately not wanting to jeopardize the ICC's first trial too much, despite the Prosecutor's continued best efforts to sabotage it. Although it is disappointing that the Prosecutor is once again given a chance to repair the damage, rather than reaping the consequences of what he sowed, there is some satisfaction to be found in the clear slap of the wrist received by the OTP for its conduct. I do have an issue with the reasoning of the Court on the last point raised by the Prosecutor. I'm not sure I see the link between the order of a stay of proceedings and the possible sanctions under Article 70(1) and 71. Indeed, whether or not sanctions are possible, the fact remains that the official position of the OTP is still that he doesn't have to comply with TC decisions and that is the basis for the stay of proceedings. Until that position changes, whether through a voluntary change of mind, or sanctions, the trial cannot go on and the stay is justified in my opinion.

In any case, the next step is twofold. First, the TC should definitely initiate proceedings under 70(1) and 71 for offences against the administration of justice, which could even justify, according to KJH at Opinio Juris, his removal by the ASP. Second, the defense should file a new motion under article 60(3) to obtain Lubanga's release. If this doesn't constitute "inexcusable delay" on the part of the Prosecutor, I don't know what does. Until then, international justice marches (limps...) on...