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A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence

Published online by Cambridge University Press:  01 March 2008

DAVID SCHEFFER
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Abstract

Negotiators of the Rome Statute of the International Criminal Court (ICC) did not intend the Pre-Trial Chamber (PTC) to act as a de facto investigating judge; rather, their intent was that the PTC ensure that the Prosecutor act responsibly and within well-defined limits. Several opportunities have arisen in the Lubanga case before the ICC's PTC and the Appeals Chamber to examine the Prosecutor's duty and performance in disclosing documentary evidence and the identities of witnesses at the pre-trial stage. International criminal tribunals necessarily must bridge the evidentiary magnitude of atrocity crimes with a pragmatic focus on one person's role. The PTC judge should aggressively narrow the charges and focus the Prosecutor on the requirement of minimal evidence to meet the sufficiency standard for the remaining charges, direct the Prosecutor to share existing and emerging evidence with the accused in a timely manner and not wait until 30 days prior to confirmation hearing, and use statutory power to ensure timely non-disclosure requests and determinations.

Keywords

atrocity crimesevidenceInternational Criminal Courtinternational criminal lawpre-trial chamberpre-trial procedures
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court
Information
Leiden Journal of International Law , Volume 21 , Issue 1 , March 2008 , pp. 151 - 163
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

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References

1. Letter from Chief Judge Mark L. Wolf to Attorney General Alberto Gonzales, 29 June 2007, available at www.masslawyersweekly.com/archives/pdf/ma/07/letter2.pdf; letter by Chief Judge Mark L. Wolf to Constance Vecchione, Board of Bar Overseers, 29 June 2007, available at www.masslawyersweekly.com/archives/pdf/ma/07/letter.pdf.

2. A. Liptak, ‘Federal Judge Files Complaint against Prosecutor in Boston’, New York Times, 3 July 2007, A11.

3. See D. J. Scheffer, ‘The United States and the International Criminal Court’, (1999) 93 AJIL 12, at 15; D. J. Scheffer, ‘Staying the Course with the International Criminal Court’, (November 2001–February 2002) 35 Cornell International Law Journal 47, at 76, 81–2.

4. For an explanation of the term ‘atrocity crimes’, see D. J. Scheffer, ‘Genocide and Atrocity Crimes’, (2006) 1 Genocide Studies and Prevention, 229–50; D. J. Scheffer, ‘The Merits of Unifying Terms: “Atrocity Crimes” and “Atrocity Law”’, (2007) 2 Genocide Studies and Prevention 91. The purpose in using such terminology is to simplify the description of relevant crimes falling within the jurisdiction of the international and hybrid criminal tribunals and to avoid the errors that often occur when referring to only one category of crimes (e.g. genocide) when in fact the broader range of atrocity crimes (including crimes against humanity and war crimes) is the intended area of inquiry. This need for terminological accuracy and comprehensive application is particularly true for the International Criminal Court. The above-referenced articles explore this in depth, and critiques of my proposed terminology are published in the Spring 2007 issue of Genocide Studies and Prevention cited above.

5. Rome Statute, Art. 58(2)(d) (emphasis added).

6. Ibid., Art. 61(5) (emphasis added).

7. See, e.g., W. Pizzi, ‘Overcoming Logistical and Structural Barriers to Fair Trials at International Tribunals’, (2006) 4(1) Fairness and Evidence in War Crimes Trials, Berkeley Electronic Press, available at www.bepress.com/ice/vol4/iss1/art4.

8. Rome Statute, Art. 121(3).

9. Ibid., Art. 67(2).

10. ICC Rules of Procedure and Evidence, Rule 121(2)(b).

11. The same principle would hold true for the person under investigation and the 15-day condition for disclosure set forth in Rule 121(6).

12. Rome Statute, Art. 57(3)(c).

13. See D. J. Scheffer, ‘The Extraordinary Chambers in the Courts of Cambodia’, in C. Bassiouni (ed.), International Criminal Law (2008, forthcoming); the documents of the Extraordinary Chambers in the Courts of Cambodia are available at www.eccc.gov.kh/english/default.aspx and www.cambodiatribunal.org.

14. ECCC Internal Rules, Rules 71–74.

15. Art. 57(3)(c) of the Rome Statute reads, ‘3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: . . . (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information.’

16. Decision to Convene a Status Conference, Situation in the Democratic Republic of Congo (ICC-01/04), Pre-Trial Chamber I, 17 February 2005.

17. M. Miraglia, ‘The First Decision of the ICC Pre-Trial Chamber’, (2006) 4 Journal of International Criminal Justice 188.

18. Decision to Hold Consultation under Rule 114, Situation in the Democratic Republic of Congo (ICC-01/04), Pre-Trial Chamber I, 21 April 2005.

19. Decision on the Prosecutor's Request for Measures Under Article 56, Situation in the Democratic Republic of Congo (ICC-01/04), Pre-Trial Chamber I, 26 April 2005.

20. See supra note 17.

21. Decision on the Final System of Disclosure and the Establishment of a Timetable, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06), Pre-Trial Chamber I, 15 May 2006.

22. Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’. See supra note 21, Appeals Chamber, 13 October 2007.

23. supra note 21.

24. supra note 22, para. 39.

25. Ibid., paras. 53–54.

26. Ibid., para. 67.

27. Decision Convening a Hearing on the Defence Request for Order to Disclosure [sic] Exculpatory Materials, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–640), Pre-Trial Chamber I, 1 November 2006.

28. Decision Concerning Defence Request for Order to Disclose Exculpatory Materials, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–649), Pre-Trial Chamber I, 2 November 2006.

29. Decision on the Prosecution Application Pursuant to Rule 81(2) of 3 November 2006, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–658), Pre-Trial Chamber I, 3 November 2006.

30. Decision on the Defence ‘Request to exclude video evidence which has not been disclosed in one of the working languages’, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–676), Pre-Trial Chamber I, 7 November 2006.

31. Decision on Defence Requests for Disclosure of Materials, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–718), Pre-Trial Chamber I, 17 November 2006.

32. Decision Ordering the Defence to File a Public Redacted Version of its ‘Application for Leave to Appeal the Pre-Trial Chamber I's 29 January 2007 “Décision sur la confirmation des charges”’, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Thomas Lubanga Dyilo (ICC-01/04–01/06–813), Pre-Trial Chamber I, 7 February 2007.

33. Decision on the Office of Public Counsel for Victims (OPCV) ‘Request to access documents and materials’, Situation in Uganda in the Case of the Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen (ICC-01/04–01/05–222), Pre-Trial Chamber II, 16 March 2007.

34. See D. J. Scheffer, ‘International Criminal Court: Introductory Note to Decision on the Prosecution Application under Article 58(7) of the Statute in the Case of The Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Al Abd-Al-Rahman (‘Ali Kushayb’) ICC Pre-Trial Chamber I’, (2007) 46 ILM 532.