International Criminal Court (ICC)—DRC/Lubanga: Interlocutory Appeal Granted

The Pre‑Trial Chamber I at the International Criminal Court (ICC), Judge Sylvia Steiner presiding as single judge, granted in part and rejected in part a request from the defense for interlocutory appeal on issues affecting the upcoming confirmation hearing.^[1] The case is Prosecutor v. Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo(DRC)), ICC‑01/04‑01/06.

The three issues approved for review are:

1. Whether the decision(s) regarding protective non‑disclosure of evidence that the Prosecution will rely on in the confirmation hearing lacked an adequate factual basis. The Chamber admitted that it did not go into the “specific details for each and every Witness…that the single judge took this approach considering that the Decision was issued during ex parte proceedings.”^[2]
   
   The resolution of this question is “closely related to the broader question currently before the Appeals Chamber of the regime encompassed by the term ex parte” in the context of the Court’s decisions concerning the protection of witnesses before trial;^[3]
   
   
2. Whether the Pre‑Trial Chamber misapplied the principle of necessity and proportionality when it included the volatility of the situation in the DRC as a factor in its decision(s) limiting the disclosure of witness identities and evidence to the defense.^[4]
   
   The resolution of this question is “closely related to the question currently before the Appeals Chamber of ‘the determination of the criteria to be met…for non‑disclosure prior to the confirmation hearing’;”^[5] and
   
   
3. Whether the “use at the confirmation hearing of summary evidence in relation to the Prosecution witnesses for which non‑disclosure of identity has been granted is permissible under the Court’s applicable law.”^[6]
   
   Resolution of this question will affect the determination of several pending requests from the Prosecutor to rely on summary evidence at the confirmation hearing.^[7]

Based on these findings, the Pre‑Trial Chamber held that three of the six issues submitted by the defense for review meet the now‑settled criteria for interlocutory review under Article 82(1)(d) as follows:^[8]

1. The issue must have been “dealt with in the relevant decision.”^[9]
2. The issue must be:
   (a) One that will significantly affect either:
   
   (i) The fair and expeditious conduct of the proceedings or
   (ii) The outcome of the trial;^[10] and
   
   (b) One for which “in the opinion of the Pre‑Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.”^[11]

Now that leave to appeal has been granted, according to Rule 155(2) the “appeal shall be heard as expeditiously as possible.”^[12]

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[1] Decision on Second Defense Motion for Leave to Appeal, ICC‑01/04‑01/06‑489, Sept 28, 2006 [hereinafter Decision] (noting that the six issues offered for review were identified as such by the Chamber, in light of the fact that it considered the issues to be unclearly framed in the request).
[2] Id. at 6.
[3] Id. at 11. See also Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rules or Rule], Rules 81(2) and (4).
[4] Id. at 7.
[5] Id. at 12.
[6] Id. at 15.
[7] Id. at 13-14.
[8] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 82(1)(d).
[9] Decision supra note 1 at 4. See also Judgement on the Prosecutor’s Application for Extraordinary Review of Pre‑Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-168, July 13, 2006 at paras. 9-19 (defining Article 82(1)(d) terms including “issue” and "proceedings").
[10] Decision supra note 1 at 4.
[11] Decision supra note 1 at 4.
[12] Rule 155(2).

International Criminal Court (ICC)—DRC/Lubanga: Reg. 33 Time Limits

This week, the Pre‑Trial Chamber I, sitting the in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo) at the International Criminal Court (ICC) issued a decision clarifying the Court’s interpretation for calculating time limits under Regulation 33(1)(b) of the Regulations of the Court.^[1] Although the decision applies specifically to requests for interlocutory appeal, the reasoning is applicable to filing deadlines generally. The calculation issue was raised by the Office of the Prosecutor (OTP) in response to a defense request for interlocutory review of a Rule 81 decision concerning redacted evidence.^[2]

Regulation 33(1)(b) excludes the day of notification of a decision or the day of filing a response from the deadline calculation, thus adding an extra day to the applicable filing periods.^[3] The Chamber held that “the object and purpose of regulation 33 of the Regulations is to establish a clear system to calculate all time‑limits in any proceedings before the Court,” and that to interpret different subsections within the regulation as establishing two different systems of calculating those time‑limits would be “contrary to the said object and purpose.”^[4]

In addition, the Pre‑Trial Chamber gave a clear indication of its interpretive stance in rejecting the OTP’s “restrictive approach to the literal interpretation,” as well as its reading of the subsection in isolation from the “systematic interpretation…and the teleological interpretation” of the Regulations.^[5]

In its filing, the Prosecutor had urged that Regulation 33(1)(b) should be read as applying only to “responses or replies filed by participants, and not to court documents generally.”^[6] Excluding the extra day would have forced the Chamber to reject the defense request as untimely filed.^[7] The Prosecutor based this argument on the distinctions drawn in Regulation 22 between different types of documents, declaring that the defense filing qualified only as an “application” and not a response or reply for the purpose of Regulation 33(1)(b).^[8]

Given this week’s decision, the time limit for submitting a request for leave to appeal a ruling under Article 82(1)(d) is five days, understood as “full days,” and not counting the day of notification.^[9] The Prosecution has until the close of business today to file its second substantive response to the defense request.^[10]

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[1] Decision on Prosecution’s Response to Thomas Lubang Dyilo’s 21 September 2006 Request for Leave to Appeal, ICC‑01/04‑01/06‑466, Sept. 25, 2006 [hereinafter Decision].
[2] Prosecution’s Response to Thomas Lubanga Dyilo’s 21 September 2006 Request for Leave to Appeal Request for a Preliminary Ruling and Subsidiary Request for Extension of Time, ICC‑01/04‑01/06‑459, Sept. 22, 2006 [hereinafter Response]. See also Request for Leave to Appeal the First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, ICC‑01/04‑01/06‑456, Sept. 21, 2006.
[3] Regulations of the Court, ICC-BD/01-01-04 [hereinafter Regs or Reg], Reg. 33(1)(b) (“Days shall only be understood as “full days”, the day of notification of a document or the day of filing of a response or a reply by a participant to that document not being taken into consideration for the calculation of the time period available to file a document.”).
[4] Decision supra note 1 at pg. 3.
[5] Decision supra note 1 at pg. 3.
[6] Response supra note 2 at para. 6.
[7] Response supra note 2 at para. 7.
[8] Response supra note 2 at para. 7. See also Regs. 22 and 65(1). See also Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rules or Rule], Rule 155(1).
[9] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 82(1)(d). See also Rule 155(1). See also Reg. 33(1)(b).
[10] Decision supra note 1 at pg. 4 (rejecting the request to disallow and permitting an extension of the response deadline for the Prosecution’s showing of good cause).

McNabb in the News (9/27/06) 2

Senior Principal Douglas McNabb was quoted in a Bloomberg article about Kobi Alexander.

The U.S. and Namibia don't have an extradition treaty, said attorney Douglas McNabb, a Washington-based extradition law expert. Namibia has a statute that permits the rendering of fugitives to a designated list of countries, which Namibia amended today to include the U.S.

``It allows Mr. Alexander to be detained under a provisional arrest warrant and gives the U.S. an opportunity to fully prepare a petition for extradition,'' said McNabb, who appeared as an expert witness for the defense in the extradition of three U.K. bankers to the U.S. to face charges stemming from the collapse of Enron Corp. They are now in Houston awaiting trial.

Alexander's lack of U.S. citizenship will have no effect on extradition, McNabb said. Pahukeni Titus, the first secretary of the Namibian embassy in Washington, didn't return a call seeking comment. Bryan Sierra, a Justice Department spokesman in Washington, declined to comment.^[1]

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[1] Allan Dodds Frank and Bob Van Voris, Former Comverse Chief Alexander Arrested in Namibia, Bloomberg, Sep. 27, 2006.

International Criminal Court (ICC)—DRC/Lubanga: Amici Denied

The Pre‑Trial Chamber I, sitting the in the case against Thomas Lubanga Dyilo (Democratic Republic of the Congo (DRC)) at the International Criminal Court (ICC) has rejected a bid from the human rights advocacy group Women’s Initiatives for Gender Justice to submit an amicus brief prior to the confirmation hearing.^[1] The decision is noteworthy not only for its legal interpretation of the rule permitting observations of non‑parties in the context of a case or situation, but also for several substantive and procedural issues left unaddressed.

The Women’s Initiative filed its request to intervene under Rule 103(1) of the Court’s Rules of Procedure and Evidence.^[2] This rule permits a Chamber to hear the observations of a non‑party state, organization, or individual on any issue and at any stage of the proceedings, if the Chamber considers the participation to be “desirable” and “appropriate.”^[3]

The decision this week indicates that the Chamber bases this subjective determination, at least at this phase of the proceedings, on whether or not there is a “link” from the subject matter of the request to the target of intervention in the case or situation (in this case the Article 61 hearing to confirm the charges).^[4]

The Chamber ruled that because the subject matter of the request was gender‑based crimes, and the unconfirmed charges against Mr. Lubanga do not include gender‑based crimes, “the Request has no link with the present case.”^[5]

Given the weight it placed on statements made in the confidential annex to the request, the Chamber could have found that the “subject matter” was the omission of charges in the context of the Pre‑Trial Chamber’s supervisory role over the Prosecutor’s discretion to bring charges.^[6] In Annex I, the group stated that “the absence of charges for gender crimes…is undeniably due to ineffective investigations….and displayed a lack of commitment to gather the relevant information and evidence.”^[7]

The decision also did not address the question of whether Rule 103, permitting observations “in writing or orally,” includes the possibility for a non‑party to be heard at the confirmation hearing.^[8] In its response filed Monday, the Office of the Prosecutor (OTP) argued that the submission’s direct request to “appear at the hearing” was not contained within the scope of Rule 103(1) per se.^[9]

The Chamber did not address most of the arguments presented in the paragraphs of the request beginning with “[i]f granted…the Women’s Initiative proposes to argue….”^[10] In addition to the issues noted above, the request sought leave to challenge the narrowed status of alleged victims at the confirmation stage.^[11] In a response filed last Wednesday by defense counsel, Mr. Lubanga’s team objected to expanding the rights of alleged victims at this phase when to do so would compromise the rights of the defendant.

Finally, although the Chamber rejected participation in the context of the present case against Mr. Lubanga, it invited the group to resubmit its request in the context of the wider and ongoing investigation into the situation in the DRC.^[12]

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[1] Decision on Request Pursuant to Rule 103(1) of the Statute, ICC‑01/04‑01/06‑480, Sept. 26, 2006 [hereinafter Decision].
[2] Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Article 61 Confirmation Proceedings (With Confidential Annex 2) [hereinafter Request], ICC‑01/04‑01/06‑403, Sept. 7, 2006.
[3] Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rule or Rules], Rule 103(1).
[4] Decision supra note 1 at pg. 3 (citing no case law or legislative background for this criterion). See also Prosecution’s Response to Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Article 61 Confirmation Proceedings [hereinafter OTP Response], ICC‑01/04‑01/06‑478, Sept. 25, 2006 at para. 10 (stating without citation that Rule 103 requires the request to be “(i) linked to the case and (ii) appropriate for its proper determination.”).
[5] Decision supra note 1 at pg. 3.
[6] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 61(7). See also Rome Statute, Arts. 58 and 61(1)
[7] Decision supra note 1 at pg. 3.
[8] Rule 103(1).
[9] OTP Response supra note 4 at para. 6
[10] Request supra note 2 at para 7.
[11] Request supra note 2 at para. 8(3).
[12] Decision supra note 1 at pg. 4.

McNabb in the News (9/27/06)

Senior Principal Douglas McNabb has been quoted by DealBreaker.com’s John Carney regarding Jacob “Kobi” Alexander.

So what’s going on? DealBreaker turned to our favorite extradition expert, Douglas McNabb of McNabb Associates for an explanation.

“There is no extradition treaty between the two countries. However, any country can expel anyone they want. If he’s in the country illegally, they can deport him to the US. If he’s there with a visa, they can revoke his visa,” McNabb said. “From this report, it seems that they have passed special legislation—a unilateral extradition statute—that allows for the extradition of someone the US wants,”

McNabb told DealBreaker that similar legislation has been passed in the UK. The US has an extradition treaty with the UK, but the parliament has also unilaterally passed legislation reducing the burden of proof required for extradition from probable cause to a simple presentation of charges against the accused. McNabb served as an expert witness in the NatWest Three extradition case.

McNabb also noted that Costa Rica—which also has a treaty with the US—often doesn’t bother to go through a formal extradition process. “In Costa Rica they just revoke your visa. It becomes an immigration issue rather than an extradition issue. At that point, you are in the country illegally and so they take you to the airport, where US Marshalls are waiting,” McNabb said.

There aren’t many place where a fugitive can hide from US law enforcement, according to McNabb. “In the first place, most places that don’t have a treaty with the US aren’t places you would want to be. Second, as this case shows, just because there isn’t an extradition treaty, doesn’t mean that the US won’t get you,” McNabb said.^[1]

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[1] John Carney, DealBreaker Special Report: You Can Run, But You Cannot Hide, DealBreaker.com, Sep. 27, 2006.

International Crimes—U.N. Hariri Court Report No. 2

This Friday, September 29, 2006, the head of the U.N. International Independent Investigation Commission (IIIC) Serge Brammertz will present his second and final report on the investigation into the death of former Lebanese Prime Minister Rafiq Hariri to the United Nations Security Council.^[1]

The report is said to be exclusively in the hands of the Security Council and a U.N. spokesperson stated at yesterday’s press briefing that no official presentation of the report will happen until this Friday’s session.^[2] Even then, because “[t]his is an update report to the Security Council,” the Secretary‑General is not likely to comment.

However, a good bit of information from the report has been provided to the media, most of it concerning the reported results of the fact‑finding expedition “established to a…evidential standard.”^[3] Should the court be commissioned, much of the information alleged in the report is likely to be presented one day as evidence on which a prosecutor hopes to obtain a conviction at trial.

While there isn’t necessarily any serious legal problem with this “probably cause”‑like process, the combination of publication through the global media and a Security Council finding of worthiness of the IIIC information as the basis for blessing a new court inevitably means that at least some evidence will walk into court with a great deal of prejudicial weight.

Referring to the recent expansion of the investigation to include other alleged assassinations, U.S. Ambassador to the U.N. John Bolton stated that "[this evidence] about linkages between 15 assassinations…is something that Mr. Brammertz himself has deemed to be important because [it] can have a cumulative effect in showing the pattern, the activity and perhaps the direction and control of who actually ordered the assassinations as well as how they were carried out, and who carried them out…When the report speaks of raising evidence to an evidential level, that's a sign of progress."^[4]

And yet, perhaps because the report is said to avoid naming any suspects, a UN diplomatic source in New York characterized Brammertz's report as "procedural, like the one he presented earlier this year."^[5]

Mr. Brammertz previously held the position of Deputy Prosecutor and head of the investigation branch of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC).^[6] The Security Council is empowered to create a new international criminal tribunal to investigate and prosecute the alleged assassination of Mr. Hariri by Resolution 1664 (2006).^[7] The new court could be the first to include acts of terrorism as an international crime.^[8]

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[1] Daily Press Briefing By The Offices Of The Spokesman For The Secretary-General And Spokeswoman For The General Assembly President, Sept. 25, 2006.
[2]Id.
[3] Brammertz Confirms Truck Bomb Killed Hariri But Refrains from Pointing Fingers, Daily Star, Sept. 26, 2006 (discussing a tooth with an “distinguishing mark” and “32 pieces of remains from the person believed to be the attacker, who was likely 20-25 years old” found at the scene of the bombing) [hereinafter Daily Star]. See also U.N. Building Case in Lebanese Assassination, Reuters, Sept. 26, 2006 (reporting that “[t]he U.N. team ‘continues to finalize its primary crime scene work . . . and is satisfied that it has largely established the facts to an evidential standard,’ the latest report said").
[4] Peter Heinlein, Hariri Probe Uncovers Links to Other Lebanese Assassinations, Voice of America, Sept. 25, 2006.
[5] Daily Star supra note 3.
[6] ICC Deputy Prosecutor (Investigations) Serge Brammertz to Head the UNIIIC in Lebanon, ICC‑OTP‑20060111-120-En, Jan. 11, 2006.
[7] United Nations Security Council Resolution 1664, SC/1664 (2006).
[8] Irwin Arieff, UN Probe of Lebanese PM’s Murder Nearer to Trial, Reuters, Sept. 25, 2006.

International Criminal Court (ICC)—DRC/Lubanga: Interim Release

Today, the Pre‑Trial Chamber I sitting in the international crimes case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo) at the International Criminal Court (ICC), considering the defense request for interim release, issued a decision permitting the Prosecutor and the legal representative of the alleged victims to file written comments on the request by October 9, 2006.^[1]

In his request for interim release, defense counsel Jean Flamme invoked Article 60 of the Rome Statute which requires the Court to release Mr. Lubanga pending trial if it finds that he has been held for “an unreasonable period prior to trial due to inexcusable delay by the Prosecutor.”^[2] He argued that Prosecution glitches in complying with Court‑ordered filing and disclosure protocols, evidenced by a “proliferation of ex parte hearings” (excluding the defense from participating in decisions affecting the schedule), had slowed the pace of progress toward trial.^[3]

Moreover, Mr. Flamme charged that the Court must proactively and periodically review pre‑trial detention and that in fact, the “mandate of the Registry to keep Thomas Lubanga Dyilo in detention effectively expired on 10 June 2006. He has therefore been detained illegally by the Court for the last 3 months and 10 days.”^[4]

The defense argued that the Court should interpret the statutory provisions regarding pre‑trial detention as does the European Court on Human Rights—that release should be the rule rather than the exception.^[5] By the same authority, because particularized circumstances justifying detention might change over time the defense also should be allowed to challenge the justification “at reasonable intervals.”^[6] In addition, neither the severity of the criminal charges nor the fact that a defendant wishes to challenge the jurisdiction of the Court should figure into the Court’s assessment regarding pre‑trial detention.^[7]

Finally, the defense urged that the Court “should not be forced to choose between Thomas Lubanga Dyilo’s right to expeditious proceedings, and the right of the Defence to adequate time and facilities to prepare.^[8] A violation of either right must have an effective remedy.”^[9] Given the dual violation in this case, Mr. Flamme argued, the “only appropriate remedy is for him to be granted immediate conditional release, pending the decision of the Chamber on his challenge to jurisdiction.”^[10]

The issue of interim detention was first raised at Mr. Lubanga’s initial appearance last April. At that time, the defense refrained from filing a formal request for release at the risk of waiving the right to argue jurisdictional challenges during pre‑trial and trial proceedings.^[11]

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[1] Decision Establishing a Deadline in Relation to the Defence Request for the Interim Release of Thomas Lubanga Dyilo, ICC-01/04-01/06-465, Sept. 22, 2006 (posted Sept. 25, 2006).
[2] Request for Further Information Regarding the Confirmation Hearing and for Appropriate Relief Safeguarding the Rights of the Defence and Thomas Lubanga Dyilo, ICC-01/04-01/06-452, Sept. 20, 2006 [hereinafter Request] at para. 34. See also Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Art. 60(2) and (4).
[3] Id. at paras. 35-37.
[4] Id. at para. 33.
[5] Id. at para. 40.
[6] Id. at para. 43, citing Imre v. Hungary, Application No. 53129/99, ECHR December 2003, para. 47; Neumeister v. Austria (No.1) (1879-80) 1 EHRR 91; and Bezicheri v. Italy (1990) 12 EHHR 210.
[7] Id. at para. 46.
[8] Id. at para. 52.
[9] Id. at para. 52.
[10] Id. at para. 54.
[11] Transcript of Initial Appearance, Prosecutor v. Lubanga, ICC‑01/04‑01/06‑T‑3, Mar. 20, 2006 at pp. 7-10.