McNabb in the News (7/8/06)

Senior Principal Douglas McNabb was a guest on BBC Radio 4’s The Today Programme where he discussed the Extradition Act of 2003 as it relates to the NatWest Three.

International Criminal Court (ICC)—Uganda Situation: Kony Rejects Amnesty

On Wednesday, we noted that Uganda is considering a grant of amnesty for Joseph Kony, one of the Lords Resistance Army (LRA) leaders subject to an arrest warrant from the International Criminal Court (ICC) and Interpol Red Notice. Today, there are two new developments.

Kony Rejects Amnesty
Joseph Kony apparently is rejecting the government’s offer of amnesty from international criminal prosecution.^[1] LRA spokesman Obonyo Olweny is quoted as arguing that “[w]hen we go for negotiations, we negotiate as equal persons on the table so it is... redundant for the president of Uganda to come out and say we are offering amnesty to the LRA leaders.”^[2] The LRA is still scheduled to attend next week’s negotiation meetings with the government in Juba, southern Sudan .^[3]

In response, Ugandan army spokesman Paddy Ankunda stated that "[i]t looks like if they don't want amnesty they don't want to talk peace. If a deal could be reached, then obviously they would benefit from the amnesty, so it is hard to understand."^[4]

In another puzzling response from the nation most vocal in its opposition to the international jurisdiction of the ICC, a spokesperson from the United States embassy in Kampala stated that the U.S. “respects Uganda's decision on this matter, but we believe those who have committed atrocities in this long-standing insurgency should be held accountable for their deeds.”^[5]

ICC Chief Prosecutor Responds
The ICC Chief Prosecutor, Jose Moreno Ocampo issued a defense of his office’s investigation into the situation in Uganda yesterday.^[6] Given the mild tone and conciliatory overtures, it is apparent that the Office of the Prosecutor is taking the challenge seriously.

In his statement, Mr. Ocampo admitted that the actions of his office in issuing arrest warrants for five LRA leaders had contributed to the situation of unrest leading up to Ugandan President Yoweri Museveni’s extreme offer of amnesty against the international criminal charges.^[7] He also acknowledged that the ICC prosecution and the peace process in Uganda are at odds, adding that “[w]hile the current situation is delicate, we believe that peace and justice can work together.”^[8]

However, Mr. Ocampo reinforced the stance of the Court that “Uganda, DRC and Sudan have an obligation to execute the arrest warrants and the international community has a duty to assist these efforts.”

If, in spite of the amnesty rejection, the Ugandan peace process continues, the Rome Statute does contain provisions that would support a de‑emphasis on prosecution.

• Article 18 envisions a situation in which a state that challenged the jurisdiction of the Court during the investigatory stage, and did not receive a deferral, may challenge the admissibility of a case on grounds of “additional significant facts or significant change of circumstances.”^[9] Although investigation and the peace process have been at odds all along, it is not clear whether Uganda has ever entered a formal challenge. This mechanism has not yet been put into practice, so key points may be arguable.
  
• Article 16 permits the United Nations Security Council to table an investigation for at least 12 months by issuing a resolution under its Chapter VII powers.^[10] This postponement is renewable at the request of the Security Council.^[11]
  
• Article 58(4) of the Rome Statute states that a “warrant of arrest shall remain in effect until otherwise ordered by the Court.”^[12] There is no express reference in this article to which organ of the Court is empowered to suspend or revoke an arrest warrant, or what criteria must be met. In earlier drafts of the Statute, this passage was tied to the possibility of amending or revoking an indictment.

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[1] Ugandan Government to Discuss Rebel Amnesty Rebuff, Reuters, July 7, 2006 [hereinafter Reuters].
[2] Uganda LRA Leaders Reject Amnesty, BBC, July 7, 2006 [hereinafter BBC].
[3] Id.
[4] Reuters supra note 1.
[5] BBC supra note 2.
[6] Statement by Prosecutor Luis Moreno-Ocampo, ICC Press Release ICC-OTP-20060706-146-En, July 6, 2006.
[7] Id. (“The negotiations currently taking place are partially a result of pressure from the ICC arrest warrants.”)
[8] Id.
[9] Rome Statute, Art. 18(2) and (7).
[10] Rome Statute, Art. 16.
[11] Id.
[12] Rome Statute, Art. 58(4).

International Criminal Court (ICC)—Lubanga Case: Admissibility Challenge

The International Criminal Court (ICC) Appeals Chamber has dealt another blow to the defense in its latest decision regarding the challenge to the admissibility in the international crimes case against Thomas Lubanga Dyilo.^[1] In summary, the decision keeps alive the defense motion to discontinue its pending appeal against the Pre‑Trial Chamber’s endorsement of admissibility in the arrest warrant for Mr. Lubanga.^[2] However, the Appeals Chamber closed the door on a defense stipulation that would keep the right to challenge the admissibility of the case in spite of ending the appeal. Additionally, the Appeals Chamber refused to grant additional time for the defense to frame the appeal.^[3]

The right to discontinue an appeal is authorized in Rule 157 of the ICC Rules of Procedure and Evidence. This right is extended to any party who has been granted leave to appeal a decision and may be exercised at any time before a judgment is rendered.^[4] The only procedural step is to “file with the Registrar a written notice of discontinuance of appeal.”^[5]

In his brief urging conditional discontinuance of the appeal, defense counsel Jean Flamme cited Article 19 of the Rome Statute as authority for his request that the Court rule against a complete waiver of the issue consequent to pulling his appeal.^[6] Article 19(4) states that although an accused may challenge the admissibility of a case only once prior to the confirmation of the charges, “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.”^[7] The challenge to admissibility was raised for the first time in open court at the initial appearance of Mr. Lubanga on March 20, 2006.^[8]

The Appeals Chamber held that the defense may choose to discontinue by following the Rule 157 procedure, but that a discontinuance request submitted to the Appeal Chamber in the appellate brief is ineffective under a plain reading of rule 157.

Further, the Chamber noted that neither the Statute nor the Rules contemplate a conditional discontinuance of an appeal and denied the request entirely without further consideration of the discretionary power conferred in Article 19.^[9] However, since a direct challenge to admissibility is properly brought before the Pre‑Trial Chamber rather than the Appeal Chamber, the door remains open for the defense to sever its request from its notice of discontinuance and to petition the Pre‑Trial Chamber for an Article 19 ruling that the challenge to admissibility may be continued or renewed.

In initiating his attack on admissibility as an appeal issue against the Pre‑Trial Chamber warrant decision rather than as a frontal attack on the Prosecutor’s finding of admissibility, Mr. Flamme may have given himself a few more options to pursue, at least procedurally. However, with regard to the appeal itself, the defense now stands in a position where it may have to either drop the appeal or press ahead in spite of having insufficient time and information to fully brief the issues. Either way, there is a risk of losing the right to continue fighting admissibility at this phase.

We noted in a previous post that the Court has imposed a catch‑22 situation on the defense by limiting its access to redacted‑only information from the Prosecutor and by otherwise requiring defense counsel to make specific requests for information that is unknown to it prior to disclosure. This stance was affirmed with regard to the arrest warrant in the May 30, 2006 decision in which the Appeals Chamber denied the defense request for additional time and information in support of its appeal.^[10] The May 30 decision immediately preceded the defense motion to discontinue the present appeal.

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[1] Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal, ICC-01/04-01/06-176, July 3, 2006 [hereinafter Decision].
[2] Id. at 2. See also Warrant of Arrest, ICC‑01/04‑01/06-2‑tEN, Feb. 10, 2006.
[3] Id. at 2.
[4] ICC Rules of Procedure and Evidence, Rule 157.
[5] Id.
[6] Mémoire en Désistement de l’Appel, ICC-01/04-01/06-146, June 12, 2006.
[7] Rome Statute, Art. 19(4).
[8] Transcript of the First Appearance Hearing, Prosecutor v. Lubanga, Case No. ICC‑01/04‑01/06, Mar. 20, 2006.
[9] Decision supra note 1 at 4.
[10] Decision of the Appellant’s Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court, ICC-01/04-01/06-129, May 30, 2006.

McNabb in the News (7/6/06)

Senior Principal Douglas McNabb has been quoted in a Telegraph article about the NatWest Three.

The FBI Marshal Service will fly them to Houston, where they will be fitted out in orange jumpsuits, handcuffs, chains around their waist and manacles around their legs.

On the next business day, they will appear before a federal judge for a bail hearing before they are sent to the Houston Federal Detention Centre. They are certain not to get bail because, after their extensive protests in Britain, any judge would consider them a definite flight risk.

…

Only then will they be sent on to the Houston centre for an indefinite period on remand.

"Remand prisoners in the Houston Federal Detention Centre tend to be tried within two or three months," said Douglas McNabb, a leading … lawyer who has studied the case closely.

"But the NatWest Three will probably be on remand for a year or more because the case is so complicated and involves so many documents and witnesses in the UK."^[1]

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[1] Harry Mount, Three Face Total Lockdown in a Wire Cage, Telegraph (UK), Jul. 6, 2006.

International Criminal Court (ICC)—Uganda Situation: Amnesty

There has been a very interesting development in the international criminal investigation into the state‑referred situation in Uganda at the International Criminal Court (ICC). The referring state of Uganda has announced that it may extend a grant of amnesty to alleged Lords Resistance Army (LRA) leader Joseph Kony. ^[1] Ugandan President Yoweri Museveni is said to favor the promotion of a peaceful resolution to the 19‑year long civil war in the region and is offering “total amnesty” as an incentive for Mr. Kony to call off his rebel forces.^[2] In exchange, Uganda is willing to risk breaching treaty obligations in order to shield Mr. Kony from international criminal prosecution.

So what good is an ICC arrest warrant if it can be disregarded by the political act of a referring state? What does this mean for the conferred jurisdiction of the ICC over international criminal matters generally?

Mr. Kony is the subject of a November 2005 arrest warrant issued by the ICC for alleged acts of crimes against humanity. In June 2006, Interpol issued a Red Notice at the request of the ICC Office of the Prosecutor (OTP). The effect of this notice is that all 184 Interpol member countries have an obligation to implement the ICC warrant. Uganda is subject to the Interpol member country obligation as well as to the independent ICC State Party obligation to cooperate with the Court’s investigation.^[3] However, there may be some statutory arguments that Uganda could make that would avoid acting in breach of its agreements.

Loopholes in Complementary Jurisdiction
The Rome Statute states that the jurisdiction of the ICC is complementary to national jurisdictions.^[4] This provision means that the ICC may only prosecute international crimes when a nation is either unable or unwilling to adjudicate the matter itself.^[5]

However, the language of the Rome Statute regarding “unwillingness” is vague enough to be read as permitting alternatives to court adjudication in satisfaction of this criterion.^[6] Specifically, the complementarity criterion looks for whether or not the country in question has made a decision not to prosecute, has acted in ways that indicate a desire to shield a person from criminal responsibility, or has acted in other ways “inconsistent with the an intent to bring the person to justice.”^[7]

It could be argued that an alternative accountability process, such as a peace and reconciliation commission or an impeachment process, would be consistent with bringing justice. Because the Rome Statute does not expressly rule out this possibility in its complementarity scheme, the government of Uganda might argue that establishing a quid pro quo in which Mr. Kony agrees to cease all allegedly criminal acts and accept responsibility for past acts in exchange for a pass on ICC prosecution. Therefore, Uganda would argue, the ICC prosecution of Mr. Kony should be judged inadmissible.

Granted, this argument would be more persuasive if the Court had not already made and affirmed the finding that Uganda is not pursuing a meaningful criminal prosecution. Even so, the Rome Statute is silent as to how the Court should deal with a change in the ability or willingness of a state to deal with a referred criminal matter. Can the Court simply disregard national extra‑judicial measures and continue the prosecution or is it barred for all purposes? Or can the ICC move ahead with its prosecution when the state opts for an out‑of‑court form of justice? What would happen if the government of Sudan, for instance, decided that it was willing and able to prosecute Mr. Kony, or to broker a peace agreement?

Suspension of Investigation
Alternatively, the ICC prosecution of Mr. Kony could be suspended in either of two ways. First, Article 19 of the Rome Statute permits a state claiming jurisdiction over the case to challenge the Court’s jurisdiction on the grounds that it is investigating or prosecuting the matter. Although this language is fairly specific, Uganda could find enough room to assert alternative processes based on a reading of this article together with the Court’s jurisdiction and admissibility provisions.^[8]

Second, the government of Uganda could prevail upon the UN Security Council (UNSC) to exercise its power under Article 16 of the Rome Statute to defer an investigation.^[9] So long as the purpose of deferral is not to afford impunity under international law, the ICC probably would have to honor such a request. One effect of such a timing measure is that the OTP could lose ground in the collection of evidence, thus jeopardizing the progress of all prosecutions associated with the referred situation. Given the possibility that the UNSC can renew the request (repeatedly) without meeting any additional conditions for doing so, this could be a nuclear tactic.

Although the drafters of the Rome Statute never intended to allow the Security Council to exercise a blanket veto over the ICC, thus destroying its autonomy, there are two UN resolutions in place now that do sanction that power in specific situations. Security Council Resolutions 1422 (July 12, 2002) and 1487 (June 12, 2003) can be invoked to immunize UN peacekeepers from ICC prosecution by way of a request that the OTP suspend its investigation.^[10] This power, coupled with the Article 16 deferral authority, provides wide‑open space for political derailment of the ICC criminal process.

Moreover, the Rome Statute arguably permits non‑states parties to shield their own nationals from ICC prosecutions by way of “Article 98” agreements. Article 98 of the Rome Statute requires the Court to table a surrender request that would cause a state to “act inconsistently with its obligations under international agreements” unless it attains the requested state’s consent. The United States has signed approximately 100 bilateral immunity agreements with countries that will now refuse to hand over American citizens to the ICC for criminal prosecution.^[11]

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[1] Jeevan Vasagar, Lord’s Resistance Army Leader is Offered Amnesty by Uganda, The Guardian, July 5, 2006.
[2] Id.
[3] Uganda is a Member Country of Interpol and became a State Party to the ICC Rome Statute in June 2002 when it deposited its instrument of ratification with the UN Secretary‑General. See also Rome Statute, Art. 86.
[4] Rome Statute, Preamble.
[5] Rome Statute, Art. 17(1)(b).
[6] Rome Statute, Art. 17(2).
[7] Id.
[8] Rome Statute, Art. 19(1)(b) and (7). See also Art. 17. The challenge must be made prior to the commencement of trial.
[9] Rome Statute, Art. 16 (“No investigation or prosecution may be commenced or proceeded with…for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII…has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”).
[10] UNSC Resolution 1422, S/Res/1422 (July 12, 2002). See also UNSC Resolution 1487, S/Res/1422 (June 12, 2003). The resolutions can be invoked to shield UN peacekeepers and personnel from ICC prosecutions during peacekeeping missions.
[11] Status of Bilateral Immunity Agreements by Region, The Coalition for the International Criminal Court fact sheet, April 2006.