International Criminal Court (ICC)—Prosecutorial Strategy

At the recent 7th Diplomatic Briefing of the International Criminal Court (ICC), Chief Prosecutor Luis Moreno‑Ocampo presented the “prosecutorial strategy” of the Court.^[1] Noting the general strategic context of the “One‑Court principle,” in which all of the organs of the ICC (Chambers, Registry, and Prosecutor) work as one body to achieve the goals of the Court, Mr. Moreno‑Ocampo identified the core challenges, principles, and objectives occupying Office of the Prosecutor (OTP) .^[2]

Unfortunately, it has never been more clear that counsel for the defense are not considered to be a part of the formal justice‑seeking structure or the philosophical basis of the International Criminal Court. This is the proverbial elephant in the courtroom.

Dilemmas
Mr. Moreno­‑Ocampo identified three “dilemmas” driving the prosecutorial strategy:

• Initiating investigations through the referral process;
• Conducting investigations without an internal enforcement capability, especially in the midst of an ongoing national or international conflict; and
• Executing arrest warrants without an enforcement capability.^[3]

In discussing these dilemmas, the Chief Prosecutor highlighted the current problem he faces in attempting to implement the five outstanding arrest warrants for Joseph Kony and others in the investigation into the Situation in Uganda.^[4]

Principles
The Chief Prosecutor outlined three “essential principles” designed to advance the mission of the “promotion of national efforts and international cooperation to end impunity for the most serious international crimes.”^[5] Mr. Moreno‑Ocampo also confirmed that alleged victims will have an active and consultative role in all investigations and prosecutions.^[6]

• Positive complementarity—“[C]reating an interdependent, mutually reinforcing international system of justice” marked by effective national justice systems and an absence of ICC trials.^[7]
• Focused investigations and prosecutions—Prosecuting individuals who bear the “greatest responsibility” for the “the most serious crimes.”^[8]
• Maximizing the impact—Conducting investigations and prosecutions that promote prevention and deterrence.^[9]

Objectives
Finally, the Chief Prosecutor announced five objectives for the activities of his office for the next three years:

• “[C]onduct[ing] four to six impartial investigations of those who bear the greatest responsibility in its current or new situations;”^[10]
• Completing two trials and improving the quality of the prosecution;
• Improving national cooperation to “mobilize and facilitate successful arrest operations;”^[11]
• Improving the way the OTP addresses the interests of alleged victims; and
• Establishing “forms of cooperation with states and organizations to maximize the contribution of the OTP to the fight against impunity and the prevention of crimes.”^[12]

The Court’s strategic plan and the OTP prosecutorial strategy will be addressed further at the Fifth Assembly of States Parties in The Hague, November-December 2006.

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[1] 7th Diplomatic Briefing of the International Criminal Court, June 29, 2006.
[2] Id.
[3] Id. at 6.
[4] Id. at 6.
[5] Id. at 7.
[6] Id. at 8.
[7] Id. at 7.
[8] Id. at 7.
[9] Id. at 8.
[10] Id. at 8.
[11] Id. at 8.
[12] Id. at 8.

International Criminal Court (ICC)—Lubanga Case: Extension of Filing Dates

We have been following the international crimes case against Thomas Lubanga Dyilo at the International Criminal Court (ICC) as it proceeds through the pre‑trial phase toward the confirmation hearing, currently scheduled for September 28, 2006.^[1]

On Monday, we noted that the Office of the Prosecutor (OTP) had filed a brief in which it stated that it was unopposed (but respectful of the impact to the Court’s schedule) to the defense request for additional time in which to prepare its next filing on the issue of admissibility of the case.^[2] On Tuesday, the Appeal Chamber granted the defense an extension of five days.^[3] This extension is no more than the minimum period requested and takes into account the fact that defense counsel Jean Flamme has a stated need to travel to the Democratic Republic of the Congo (DRC) to collect necessary information.^[4]

Regulation 65 of the Regulations of the Court sets out deadlines for filing briefs in support of and responding to an appeal.^[5] By default, the appellant has 10 days from the time the Chamber grants leave to appeal in which to file its brief.^[6] The appellee then has 10 days from the time that it receives notice of the brief to file a response.^[7] The Appeal Chamber may grant an extension for “good cause.”^[8]

In this case, the defense was noticed of the Prosecutor’s brief in support of the appeal on July 6, 2006.^[9] The ICC calculates deadlines by counting all calendar days and excluding the day of notification.^[10] If a due date falls on a weekend or an official Court holiday, the document becomes due on the following business day.^[11]

Assuming that the extra days are added to the original 10‑day period without accounting for a (moot) due‑date shift from Saturday to Monday, the original due date is extended to July 21, the last Court day before the summer recess.^[12]

Unfortunately, at the time of its decision regarding the extension, the Court apparently had not yet ruled on a motion filed by the defense requesting that the calculation‑tolling notice be conditioned on notice in the language that the defendant understands.^[13] In its motion, the defense cited case law directly on point from the two ad hoc international criminal courts, argued that the timeline calculations should be triggered by notice of filings to the defense team in French.^[14]

Mr. Flamme urged the Court to consider the rights of defendants under Article 67 of the Rome Statute, arguing that “the defence is not requesting that the entire proceedings be conducted in French, merely that the right of the defence to effectively participate in French be fully recognised.”^[15] French is one of the working languages of the Court.^[16]

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[1] Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04-01/06-102, May 15, 2006.
[2] Prosecution’s Response to Thomas Lubanga Dyilo’s Request for the Extension of the Time Limit, ICC‑01/04-01/06-187, July 7, 2006.
[3] Decision on the Application by Counsel for Mr. Thomas Lubanga Dyilo to Extend the Time Limit for the Filing of the Response to the Prosecutor’s Document in Support of the Appeal, ICC-01/04-01/06-190, July 11, 2006 [hereinafter Decision].
[4] Id. at para. 4.
[5] Regulations of the Court [hereinafter Reg.], Reg. 65(4) and (5).
[6] Reg. 65(4).
[7] Reg. 65(5).
[8] Reg. 35(2).
[9] Decision supra note 3 at para. 2.
[10] Reg. 33(1)(a).
[11] Reg. 33(1)(b).
[12] Judicial Recess and Official Holidays of the ICC are posted on the ICC website.
[13] Motion Requesting That All Deadlines Run from the Date of Receipt of French Version, ICC‑01/04‑01/06-179-tEN, July 3, 2006 (posted July 11, 2006).
[14] Id. at paras. 13-14.
[15] Id. at para. 14. See also para. 7, noting that Court‑generated translations take up to 2 weeks to produce.
[16] Rome Statute, Art. 50(2). All official documents are translated into the working languages of the Court.

International Criminal Court (ICC)—Uganda Situation: LRA Arrest Warrants Remain in Force

Last week we reported that government of Uganda is planning to offer amnesty to Joseph Kony against prosecution for crimes against humanity, at the International Criminal Court (ICC) in the hopes of advancing the cause of a peaceful resolution to the civil war in that nation. Although Mr. Kony was not initially inclined to accept the offer, government officials are pressing forward.

Yesterday, Ugandan Security Minister Amama Mbabazi flew to The Hague to convince the ICC Chief Prosecutor, Luis Moreno-Ocampo, to drop the charges against all five accused Ugandan Lords Resistance Army (LRA) leaders.^[1] Senior government officials said that "Mbabazi has gone to the Hague to ask the ICC to support the on-going peace talks. He will assure the ICC that there will be no more impunity on the part of the LRA and that the African traditional justice system would be put to use to end the insurgency."^[2]

Delegate spokesman Captain Paddy Ankunda suggested that if the peace process is allowed to go forward, "[w]hat will happen is that the rebels will apologize, there is a cleansing ceremony and reconciliation like it has been done in the post apartheid South Africa, Northern Ireland has also done the same".^[3] President Museveni last week extended the deadline for the end of talks with the rebel LRA.^[4]

In response, the ICC Chief Prosecutor issued a terse statement today, stating that in the meeting with Mr. Mbabazi, “[t]he Government of Uganda did not ask for any withdrawal of the warrants of arrest. The arrest warrants remain in effect. It is the view of the Office of the Prosecutor and the Government of Uganda that justice and peace have worked together thus far and can continue to work together.”^[5]

The Chief Prosecutor’s statements about the proposed amnesty last week, while not ceding any legal or political ground, also referred to the concurrent justice and peace processes.^[6] The state’s amnesty offer poses a serious challenge to the validity and competence of the Court.

In a related development, the ICC released the results of DNA tests aimed at establishing the identity of a body said to be that of Mr. Kony’s alleged LRA cohort Dominic Ongwen. The results, unsealed last Tuesday, showed that the DNA testing failed to prove that the dead man was Mr. Ongwen.^[7] In spite of persistent media reports that Mr. Ongwen was killed in battle last year, he remains subject to an ICC arrest warrant and is considered by the Court to be “at large” and on the move in the Sudan.^[8]

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[1] Uganda Minister Travels to The Hague to Have ICC Drop Indictments Against Rebels, BBC, July 12, 2006 (citing The New Vision website, Kampala).
[2] Amama Asks ICC to Lift LRA Case, The New Vision, July 11, 2006.
[3] Uganda: Rebels Increase Number of Negotiators Ahead of Talks with Government, BBC, July 12, 2006 (citing The New Vision website, Kampala).
[4] Sudan: Uganda Government, LRA Peace Talks Delayed, IRIN News, July 12, 2006.
[5] Statement by the Chief Prosecutor Luis Moreno-Ocampo, ICC-OTP-20060712-149-En, July 12, 2006.
[6] Statement by Prosecutor Luis Moreno-Ocampo, ICC Press Release ICC-OTP-20060706-146-En, July 6, 2006.
[7] ICC Unseals Results of Dominic Ongwen DNA Tests, ICC-OTP-20060707-147-En, July 7, 2006.
[8] Id.

International Criminal Court (ICC)—Saddam Defense Requests Investigation

Defense attorneys for Saddam Hussein have filed a request with the International Criminal Court (ICC) for an investigation into possible violations of international law in the treatment of defendants and defense witnesses before the Iraqi Higher Criminal Court.^[1] For several reasons, this request is likely to fail.

Although the appeal to the ICC may inspire a prosecutorial inquiry, it is not likely that the matter will be authorized as a full investigation. The Office of the Prosecutor (OTP) may undertake a discretionary inquiry into the allegations based on an oral report or a written report like the one submitted by defense attorneys on behalf of the Iraqi High Criminal Court victims/prisoners.^[2] If the information leads the Prosecutor to conclude that there is a “reasonable basis to proceed with an investigation,” it will submit a request to the Pre‑Trial Chamber for authorization to initiate an investigation.^[3]

If the Pre‑Trial Chamber agrees, and it finds that the Court has jurisdiction, it may authorize the investigation as a referral from the OTP proprio motu.^[4] In all other cases, an investigation may be referred to the ICC only by a State Party to the Rome Statute or the United Nations Security Council. Finally, because neither Iraq nor the United States are States Parties to the Rome Statute, the ICC can only claim jurisdiction over the alleged acts and individuals if either consents to the jurisdiction of the Court.^[5]

Even if the Court did authorize an investigation, the application (as reported by news sources) makes weak assertions of prosecutable criminal activity within the scope of the Rome Statute. The international news service AFP has reported that defence attorneys Emmanuel Ludot and others filed a written application alleging that Hussein has been subjected to degrading treatment in prison, including having photographs taken while he was unclothed and then later published in popular Western magazines, and has been unable to have confidential communications with defense attorneys.^[6]

The application charges U.S. personnel with committing acts in breach of the laws of war. The statement alleges that Saddam Hussein is a “prisoner of war within the meaning of the Geneva Convention and thus [comes] under ICC jurisdiction as applied to cases of war crimes, crimes against humanity, genocide and aggression."^[7] The attorneys also charge that the Iraqi Court has no authority to act and that its incorporation of the death penalty violates international conventions.^[8]

Although these allegations may have some merit, the ICC can exercise jurisdiction only over the crimes defined within its statute.^[9] The bare allegation only states one of the preconditions for bringing specific charges of war crimes under the Rome Statute. It does not address any legal element for the crimes of genocide or crimes against humanity. With regard to the crime of aggression, it will not possible to prosecute an individual at the ICC for acts so classified until the Rome Statute is amended, if at all, to include a definition for that crime.^[10]

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[1] Saddam Lawyers Invoke International Criminal Court, AFP, July 6, 2007 [hereinafter AFP]. See also Tom Henry, Hussein Lawyers Ask Criminal Court to Investigate Violations, Jurist, July 7, 2006 [hereinafter Jurist].
[2] Rome Statute, Art. 15(2).
[3] Rome Statute, Art. 15(3).
[4] Rome Statute, Art. 15(4) and Art. 13(c).
[5] Rome Statute, Art. 12.
[6] AFP supra note 1. See also Saddam Underwear Photo Angers US, BBC, May 20, 2006.
[7] Jurist supra note 1.
[8 ] AFP supra note 1.
[9] Rome Statute, Art. 5.
[10] Rome Statute, Art. 5(2). See also Art. 121 (the Rome Statute may not be amended until “seven years from the entry into force of this Statute”).

International Criminal Court (ICC)—Lubanga: Challenge to Admissibility (Continued)

Last Thursday, we discussed the failure of the defense to discontinue its appeal of the Pre‑Trial Chamber’s admissibility decision in the case of Thomas Lubanga Dyilo at the International Criminal Court (ICC).[1] The order dismissing the defense request that the Appeal Chamber grant discontinuance was based on purely procedural grounds: Rule 157 permits an appellant to end an appeal at any time, but requires that the discontinuance be submitted in the form of a notice to the Registrar, not a request to the Appeals Chamber.[2]

This morning, defense attorney Jean Flamme filed a new motion with the Appeals Chamber, asking that it reclassify and remand his admissibility challenge back to the Pre‑Trial Chamber and provide a continuance sufficient to prepare the appeal.[3] Should the Appeals Chamber refuse to remand, the defense moved that the Registrar consider the motion as a Rule 152 written notice of discontinuance of the appeal.[4]

The defense has picked a difficult basis on which to enter its requests. However, there really isn’t a clear and easy way to go about it. The interaction between the often vaguely‑worded Rules and Statute is completely untested and uninterpreted. The big threat here is that the defense could lose its opportunity for a full hearing of the admissibility challenge if the Court rules that it has to dump it on procedural grounds. The language of Article 19 states that “[t]he admissibility of a case or the jurisdiction of the Court may be challenged only once” unless the Court grants leave to rehear or continue the challenge in “exceptional circumstances.”[5]

With regard to the appeal, the Appeals Chamber has already denied the request for additional time and Mr. Flamme does not appear to assert any arguments that the Appeals Chamber has not already denied.[6] However, the defense is now arguing that because the appeal of the arrest warrant decision should be considered the defendant’s (only) pre‑confirmation hearing challenge to admissibility under Article 19 and therefore must be heard by the Pre‑Trial Chamber rather than treated as an ordinary appeal to a pre‑trial decision.[7] However, in his alternative request, the defense has asked that the Court consider the request for discontinuance as a Rule 152 motion rather than a Rule 157 motion, based on a characterization of the appeal as an ordinary appeal.

The difference between a Rule 152 motion to discontinue the appeal and a Rule 157 motion is that the Rule 157 applies to appeals that either do not require the leave of the Court or for which leave has been granted.[8] These appeals include appeals of the verdict (Rule 154, Article 81), decisions affecting jurisdiction, admissibility, or interim release (Rule 154, Article 82), and interlocutory or expedited appeals (Rule 155, Article 82).[9]

On the other hand, Rule 152 applies to all other appeals, including those filed against convictions, acquittals, sentences, and reparations orders (Article 81).[10] It remains to be seen whether recharacterizing the appeal has an effect either on its longevity or its elasticity.

In a related filing, the Office of the Prosecutor stated that it does not oppose the defense motion for more time in which to prepare an appeal brief.[11] However, it noted that the extension of the appeal will affect the date of the confirmation hearing, now scheduled for September 28, 2006. The OTP (smarmily) stated that “the Prosecution does not take any position at this stage as to whether the requested extension of time is excessive or not, a matter that, it is respectfully submitted, ought to be decided by the Appeals Chamber in light of its own schedule and work plans.”[12]

The ICC will be adjourning for the summer break on July 21, 2006 for approximately three weeks.[13]

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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] ICC Rules of Procedure and Evidence [hereinafter Rule], Rule 157.
[3] Demande de Renvoi à la Chambre Préliminaire/Désistement d’Appel en Ordre Subsidiare, ICC‑01/04‑01/06-189, July 10, 2006 [hereinafter Demande].
[4] Id.
[5] Rome Statute, Art. 19(4).
[6] Demande at 9-11 (reasserting the principle of equality of arms and the fact that the disclosure of discovery from the Prosecutor is incomplete).
[7] Demande at paras. 12-17. See also Rome Statute, Art. 19(4) and (6).
[8] Rule 157.
[9] Id. See also Rule 154. See also Rome Statute, Art. 81. See also Rome Statute, Art. 82(1) and (2).
[10] Rule 152. See also Rome Statute, Art. 81.
[11] Prosecution’s Response to Thomas Lubanga Dyilo’s Request for the Extension of the Time Limit, ICC‑01/04-01/06-187, July 7, 2006.
[12] Id. at para. 3.
[13] Judicial Recess and Official Holidays of the ICC are posted on the ICC website.

McNabb in the News (7/9/06)

Senior Principal Douglas McNabb was quoted in The Sunday Times in an article discussing the NatWest Three.

Tony Blair offered last week to help get the three of them bail when they arrive in Houston, perhaps even to be allowed to return and prepare their case in Britain. But Doug McNabb, a … federal criminal defence lawyer, considers that unlikely: “I believe the court will find them to be a flight risk because they fought being in the US.” In other words, the three men might be shackled to each other on the journey, then jailed in maximum security prisons for as long as two years while awaiting trial.^[1]

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[1] John-Paul Flintoff, ”We are Being Royally Shafted”, The Sunday Times (UK), Jul. 9, 2006.