More new developments in the Lubanga Case - Defence Motion for Release of the Accused

Exciting new developments in the trial of Thomas Lubanga – after having hinted at the possibility once or twice before, Jean Flamme, Mr. Lubanga’s Belgian defence lawyer, has yesterday file a motion requesting the release of his client.

To – very, very quickly – summarize the motion, Maitre Flamme claims that the arrest and detention of Thomas Lubanga in the DR Congo (from where he was directly transferred to the ICC) were illegal and that this illegality has tainted the proceedings before the ICC in a way that mandates the immediate release of his client.

I will hopefully find the time to go into some more details regarding this question later. For now, let me only note one interesting fact:
As authority for the notion that the illegality of the detention in the Congo is also opposable to the ICC, the motion refers to three decisions – two decisions of the European Court of Human Rights on the concept of “continuing violations”, as well as the ICTR Appeals Chamber’s 3 November 1999 decision in the Barayagwiza case. There, the Chamber, faced with a claim of illegal rendition, had decided to dismiss the indictment and order the immediate release of the accused (while also directing the registrar to deliver the accused to the authorities of the state where he had originally been held). However, what Maitre Flamme fails to note is that in a later decision of 31 March 2000, based on the Prosecution’s (procedurally rather questionable) “Request for Review or Reconsideration”, the Chamber changed this decision and decided that the trial of Barayagwiza should proceed after all, only instructing the Trial Chamber to take into account the illegal rendition in the sentencing phase or to order financial compensation if the accused was found innocent. In the end, Barayagwiza was found guilty and his sentence was reduced from life imprisonment to 35 years (see the judgment at paras. 1106–07).

AFAIK, the ICTY, while also faced with claims (and acknowledged instances) of illegal rendition, has also not ever ordered the release of an accused. It remains to be seen how Pre-Trial Chamber I will deal with this important question.

More on the decision on disclosure in the Lubanga case

As promised, here is the “quick and dirty” version of the Pre-Trial Chamber I decision on disclosure and the history leading up to it.

First, a little bit of background on the disclosure process as such – a process which is probably very alien to most people with a background in “inquisitorial” criminal procedure. In those systems, the Defence has access – at least in principle and at some point of the proceedings – to the complete case file prepared by the Prosecution and/or the investigating Judge.
In the adversarial system, on the other hand, each party first and foremost collects evidence for its own use, but both parties are under an obligation to disclose certain parts of the evidence in their possession to the other party. (One such system is laid down in Rule 16 of the US Federal Rules of Criminal Procedure, which also forms the basis for parts of the ICC disclosure rules)
In most jurisdictions, this obligation will weigh a lot more heavily on the Prosecution, for two reasons: First, there is an imbalance in that the Prosecution has a lot more resources for amassing evidence, thus fair trial considerations and the principle of equality of arms require balancing measures. Second, broad disclosure obligations on the defence might run afoul of the privilege against self-incrimination.

While the ICC is not a fully adversarial system – to give only one example, the OTP is obliged to investigate not only incriminating, but also exculpatory evidence (Art. 54 (1) (a) of the Statute) –, it does follow the adversarial system with regard to evidence, containing disclosure obligations rather than a right of Akteneinsicht.

While there are a number of provisions dealing with disclosure in the ICC legal texts (Art. 61 (3) and 67 (2) of the Statute, Rules 76 – 84 and 121 of the Rules of Procedure and Evidence), these are not very precise regarding the scope of disclosure obligations and the procedure to be followed. Therefore, after the initial appearance of Thomas Lubanga Dyilo, Judge Steiner set up an interim system of disclosure and invited the parties’ comments on several aspects of the disclosure system – and comment they did, both in writing and at a hearing on disclosure matters on 24 April (The transcript of which apparently is not yet up on the Court’s website). The decision of Tuesday marks the end of this process.

I won’t go into the nitty-gritty details, such as the precise timetable and the deadlines for the several types of evidence to be disclosed, but instead focus on a couple of the most salient points:

• First of all, the decision states that disclosure is a process that has to happen first and foremost between the parties (Prosecution and Defence), without any other actors being involved in the process. (The interim system had provided for disclosure between the Parties through the Registry, something which both parties had vehemently protested). To ensure transparency and a permanent record of this procedure, parties are required to file “disclosure notes” or “inspection reports” (depending on the type of evidence) in the record of the case (On this aspect, see paras. 16–27 and 61–76 of (the reasoning for) the decision).

• After disclosure between the parties, evidence “disclosed … for the purposes of the confirmation hearing” is to be communicated to the Pre-Trial Chamber (Rule 121 2 (c) RPE). In this regard, the decision makes clear that this only applies to material which the parties intend to use at the hearing – not, e.g., to material the Prosecution has disclosed to the Defence as potentially exculpatory under Art. 67 (2) of the Statute, but which the Defence does not plan to rely on (yet) (see paras. 50–58 of the decision). This is significant in that it sends certain signals about the scope of the confirmation hearing – this will not be a "mini-trial", but will be limited to scrutinizing the evidence presented and deciding whether there is a reasonable basis to proceed with a trial (this is specifically stated in paras. 55–56).

• At the same time, Judge Steiner also rejects the Prosecution argument that “the bulk of disclosure” is supposed to occur between the confirmation hearing and the beginning of the actual trial, and instead obliges the OTP to disclose most, if not all, of the disclosable material to the Defence before the confirmation hearing (see paras. 119–131, especially para. 124, of the decision). In fact, drawing an e contrario argument from Art. 61 (9) of the Statute (which allows the OTP to amend the charges after the hearing), she states that, in general, the OTP will not be allowed to continue the investigation in the case after the hearing (paras. 130–131).

More on other developments in the DR Congo situation and the Thomas Lubanga case (such as questions of the participation of victims in the proceedings) soon.

20th ratification of the Protocol on Explosive Remnants of War

I am a little late with this post (seeing my sporadic blogging these weeks you might guess what my time schedule looks like), but I wanted to comment on the 20th ratification of the Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention) of 28 November 2003.

With this ratification made on May 12th the protocol, which was concluded by 91 states parties to the Conventional Weapons Convention in 2003, reached its quorum and will enter into force in 6 month from that date.

The main problem addressed by the Protocol is that, while there has been major progress in reducing the threat by anti-personal mines, which are also addressed by this protocol, unexploded and abandoned ordnance pose a grave threat that was not an issue in existing legal instruments. According to various sources, the numbers of civilians killed or injured by those forms of explosive remnants of war may come close to the numbers of mine victims (see this Report on Explosive Remnants of War).

The protocol requires the parties to an armed conflict to inter alia clear all unexploded and abandoned ordnance that threatens civilians, peacekeepers and aid workers after the fighting has ended. In detail it obliges the parties to:

- Art. 4: Record information on explosive remnants used or abandoned by their armed forces and share that information with those involved in clearance activities.

- Art. 5 / Art. 6: Take all feasible precautions to protect civilians and humanitarian missions from the effects of remnants of war, including marking and fencing off dangerous areas.

- Art. 3: Survey, mark and clear explosive remnants of war in areas under their control after the conflict.

- Art. 7 / Art. 8: Provide technical and financial assistance for the removal of remnants left by their armed forces in areas not under their control.

What seems interesting to me, in regard to the further development on the ratification status of the protocol, is that normally the problem of weapons control is to balance its humanitarian motives with the military necessity that often suggests the use of the weapons in question.
As I don’t see any military necessity of retaining the remnants of war, I don’t think there is any military interest that prevents states from ratifying the protocol.

Hopefully many states see this as I do and will ratify the protocol as soon as possible; and more important implement it.

ICC Update - Decision on disclosure in Lubanga case

One of the most interesting developments at the ICC at the moment is the preparation of the confirmation hearing in the case of the first suspect in the custody of the Court, Thomas Lubanga Dyilo from the Democratic Republic of the Congo. (The date for this hearing has been tentatively set for the 27 June 2006)

The purpose of the Confirmation Hearing, as provided for in Art. 61 (7) of the Rome Statute, is for the Pre-Trial Chamber to decide on whether there is “sufficient evidence to establish substantial grounds to believe” that the suspect committed the crimes charged. If the charges are confirmed, the case will then proceed to the actual trial before a Trial Chamber.

One main task for the Pre-Trial Chamber in the preparation for the hearing is to supervise the disclosure of documents and other evidence from the Prosecution to the Defence (and, to a certain extent, vice versa) so that both parties (especially the Defence, which by far does not have the same resources and possibilities for investigation in the field as does the Prosecution) are well prepared for the hearing.

Earlier today, Judge Sylvia Steiner, the Single Judge of Pre-Trial Chamber I, responsible for inter alia the question of disclosure, released the “Decision on the final system of disclosure and the establishment of a timetable”. I will post a first short summary of this decision and the process leading to it soon. In the meantime, the decision itself can be accessed here.

More navel-gazing and some lawyer-nerdyness

First of all, a quick-round of self-congratulations to our blog for having passed the 1.000 visitor mark – I am sure only about 300-400 of those visits where by Tobi, Nicki and me…


Now for some more ICC-related, if somewhat “lawyer-nerdy” content:

On 10 April, the International Criminal Court and the European Union adopted the “Agreement between the International Criminal Court and the European Union on Cooperation and Assistance”, which entered into force on 1 May.

The content of this agreement, while certainly very welcome for the Court and a sign of the widespread acceptance it enjoys in Europe, is probably not very revolutionary: The agreement lays down a general obligation of mutual cooperation and assistance as well as more detailed rules on assistance (mostly) given to the Court by the EU, such as the provision of documents and information, the testimony of EU officials before the Court, the provision of personnel, facilities and services, and the lifting of privileges and immunities of EU officials who are suspects before the Court.

The question that this agreement poses for me is rather one of general public international law – it concerns the public international law status of the EU. I am not fully up to date on this discussion, but I know that at least a couple of years ago, the prevailing view was that the EU, lacking its own organs that could arrive at a “EU will” separate from that of the member states, was lacking international legal personality – despite its treaty-concluding powers laid down in Arts. 24 and 38 EU Treaty, which it had already used to conclude treaties with several “ex-Yugoslav” states. The other view was that, precisely because of this treaty-making power, the EU was already, or was on the way to becoming, an international organisation with legal personality. (For a rather recent view on this question, see e.g. a short paper presented to the Founding Conference of the European Society of International Law by Carmela Pérez Bernárdez, available here)

All the while, the ECJ has begun breaking down the barrier between the EC and the realm of intergovernmental cooperation under the framework of the EU (“second and third pillar”) – e.g. in the 2005 Pupino judgment (Case C-105/03), where the Court found that Member States are obligated to interpret national laws in conformity with EU framework decisions, thus approximating framework decisions to EC directives.

Given this background, what does the conclusion of an agreement with the ICC – which surely possessed international legal personality (Art. 4 (1) Rome Statute) – tell us with regard to the question of the EU’s status?
Does it mean that the EU must by now have attained international legal personality? Or is it another step on the way towards gradual acceptance as a subject of international law?
And in case the EU still does not have legal personality, what is the status of the agreement? Could it be an agreement with the EU Member States on question concerning their work in the context of the EU?

All questions that I am not going to answer today – it’s Friday afternoon, after all – but interesting questions nonetheless. As usual, comments are very welcome.

ICC postings will begin shortly

I have finally clarified all the details regarding posting on the blog while I am at the ICC.
In the following days, I will put up a couple of posts to lay the groundwork and show the situation in which the Court finds itself at the moment. After that, I will try to keep up with major new developments as they occur.

Even though what follows should go without saying, let me make two short disclaimers to the ICC-related posts that will follow:

• First, what I write in this blog is obviously my own opinion and does not (necessarily) reflect that of the ICC or any of its organs.


• Second, I will limit myself to information that is publicly available, especially decisions available on the Court’s website. Of course, having access to other information might sometimes color my reading of the public documents -- to avoid any potential problems, my posting in the next months will probably be a little more restrained and “positivist” than before.