International Criminal Court (ICC)—DRC/Lubanga: Confirmation Hearing Schedule

Earlier this week we noted that the Pre‑Trial Chamber I at the International Criminal Court (ICC) had officially rescheduled the confirmation hearing in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo) for Thursday, November 9, 2006.^[1]

That date, and related delivery dates, revolve to an extent on the Chamber’s determination that the defense obtained access to all of the discoverable prosecution evidence, both inculpatory and exculpatory, by this past Monday, October 9, 2006.^[2]

According to the Pre‑Trial Chamber’s decision this week, the schedule leading up to the November 9 hearing is as follows:

• October 25, 2006
  
  • Defense must submit a list of evidence it intends to present at the confirmation hearing, if any;^[3]
  
  
  • Defense must file any applications under Rule 81 (restricting the disclosure of confidential information in the interests of protecting alleged victims and witnesses), if any;^[4]
  
  
  • Prosecution must submit all changes or amendments to the charges and evidence, if any; and
    
    
• Prosecutor must file reports and summary evidence documents, as specified in previous orders from the Chamber.^[5]
  
  
• October 26, 2006: Rule 122 hearing to determine “how the confirmation hearing is to be conducted.”^[6]
  
• October 31, 2006: Prosecutor may inspect documentary and tangible evidence that the defense intends to present at the confirmation hearing, if any.^[7]
  
• November 6, 2006: Defense must file all “originals and electronic versions of evidence on which it intends to rely during the confirmation hearing.”^[8]

At the time of this posting, there are no interim status conferences scheduled prior to the confirmation hearing on November 9, 2006.^[9]

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[1] Media Advisory: Confirmation of Charges Will Take Place on 9 November 2006, ICC-20061006-165-En, Oct. 6, 2006. See also Decision on the Date of the Confirmation Hearing, ICC‑01/04‑01/06‑521‑tEN, Oct. 5, 2006 (posted Oct. 10, 2006) [hereinafter Decision].
[2] Decision supra note 1 at 4. See also Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rule of Rules], Rule 121(3).
[3] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 61(6)(c). See also Decision supra note 1 at 4.
[4] Rule 81(6). See also Decision supra note 1 at 4.
[5] Rule 121(4). See also Decision on the Information in respect of the Second Decision on Rule 81 Motions, ICC-01/04-01/06-490, Sept. 28, 2006 (noting that some Rule 81 issues are subject to interlocutory appeal).
[6] Rule 122(1) (stating that this determination is made at the confirmation hearing in the presence of the person charged). The October 26 hearing is closed to the public.
[7] Rule 78. See also Decision supra note 1 at 4.
[8] Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC‑01/04‑01/06, May 15, 2006. See also Decision supra note 1 at 4-5.
[9] ICC Hearing Schedules, available on the ICC website at http://www.icc-cpi.int/cases/Hearing_Schedule.html.

McNabb in the News (10/12/06)

Senior Principal Douglas McNabb has been quoted by Raleigh’s News & Observer in an article about Kevin L. Geddings.

THE LEGAL STRATEGY

The "honest services" statute was first established as case law, then enacted by Congress in 1988. It is coupled with mail and wire fraud laws. Prosecutors often pursue violations of it instead of trying to establish a more defined instance of corruption.
"This is easier to prove -- so much easier than public corruption, which gets into whether someone received a benefit in exchange for an action," said Douglas McNabb, a … defense lawyer who has handled such cases.^[1]

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[1] What Each Side in the Geddings Trial Wants Jurors to Focus On, Raleigh News & Observer, Oct. 12, 2006.

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

Last month we discussed the decision of the Pre‑Trial Chamber I granting interlocutory appeal to the defense in the case against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo (DRC)) at the International Criminal Court (ICC). The appeal is restricted to three issues concerning the disclosure of evidence for the purposes of the confirmation hearing.^[1] This week, the defense filed its brief with the Appeals Chamber on those three issues.^[2]

Issue 1: Factual Sufficiency for Ex Parte Decisions
The defense argued that a decision lacks factual reasoning when the underlying facts are revealed only to the Prosecutor and the Chamber in ex parte hearings. This insufficiency of reasons violates the defendant’s right to a fair trial and offends the principle of equality of arms when it falls short of two fundamental requirements. First, the decision must provide “the minimum amount of information required to satisfy the right of the Defence to be informed of the basis of the decision.”^[3] Second, the decision must meet “the requisite threshold for imposing the protective measure in question.”^[4]

In support of his argument, attorney Jean Flamme cited a holding by the Pre‑Trial Chamber at the International Criminal Tribunal for the Former Yugoslavia (ICTY): “[A]ny ex parte proceedings infringe upon the accused’s right to a fair trial…the accused must be given sufficient information to enable him to decide whether or not to oppose that application.”^[5]

Issue 2: Principle of Necessity and Proportionality
The defense argued that the decision to shield identifying portions of the evidence on which the Prosecution intends to rely at the confirmation hearing failed to meet the prong of necessity by implementing the measure much earlier than was required, thus depriving the defense of the ability to adequately respond to the charges.^[6]

Regarding proportionality, Mr. Flamme referred to the basic tenets adopted by the United Nations General Assembly in the Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power, concluding that “as a matter of law, the Defence should not be forced to abrogate the fairness of the proceedings and the fundamental principle of equality of arms in order to satisfy their [sic, the defendant's] right to a speedy trial.”^[7]

Issue 3: Legality of Summary Evidence
Finally, the defense argued that summary statements of witness testimony are not only “hearsay thrice or more removed,” thus implicating admissibility, but lack “essential information going towards the credibility of the witness,” thus calling into question the probative value of the evidence.^[8] Moreover, when the summaries are simply the “investigator’s impressions of the contents of the witness statements,” the authority of the Court to rule on these factors is “usurped.”^[9]

Mr. Flamme also took issue with the Court’s interpretation of the ambiguities in Articles 61 and 68, stating that “the purpose of utilizing summaries is to protect the witnesses in question from disclosure to the public, rather than disclosure to the Defence.”^[10]

The defense asked that the Appeals Chamber overrule the decisions on disclosure in such a way that would permit the defense to prepare for its task in ensuring that the charges against Mr. Lubanga not be confirmed unless they are supported by sufficient evidence.^[11] The more subtle concern, of course, is at what point the extreme circumstances driving the implementation of grossly intrusive protective measures become so great that the proceedings cannot go forward at all.

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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].
[2] Defence Appeal Brief in Relation to First Decision on the Prosecutor Requests and Amended Requests for Redactions under Rule 81. ICC‑01/04‑01/06‑546, Oct. 10, 2006 [hereinafter Brief]. See also Decision on the Request of Mr. Thomas Lubanga Dyilo for an Extension of Time, ICC-01/04-01/06-562, Oct. 12, 2006 (accepting the appeal brief one day past the deadline for a showing of “good cause” based on technical difficulties with electronic formatting and filing).
[3] Id. at para. 12.
[4] Id. at para. 12
[5] Id. at para. 15, citing Prosecutor v. Brdjanin et al, Decision on Second Motion by the Prosecution for Protective Measures, IT‑99‑36, Oct. 27, 2000.
[6] Id. at paras. 27-34.
[7] Id. at paras. 39-41, citing UNGA Res. 40/34, Nov. 29, 1985.
[8] Id. at paras. 54-55.
[9] Id. at para. 58.
[10] Id. at paras. 50-53. See also Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, Arts. 61(5) and 68(5) (permitting limited disclosure for the purpose of confirming the charges, subject to the defendant’s right to fair trial).
[11] Brief supra note 2 at para. 77.

International Criminal Court (ICC)—Darfur: Expert Observations No. 2 (Louise Arbour)

The United Nations High Commissioner for Human Rights Louise Arbour has submitted her comments on the involvement of the International Criminal Court (ICC) in the Situation in Darfur. The comments come in response to an invitation by the Pre‑Trial Chamber for observations by the Commissioner and by former Chair of the International Commission of Inquiry on Darfur, Antonio Cassese.^[1] We have discussed Professor Cassese’s comments and the response from the Office of the Prosecutor in previous posts. ^[2]

In her observations, Commissioner Arbour argued that the ICC investigations should have an “increased visible presence” in Darfur.^[3] She based her recommendation on conclusions drawn from the extensive experience of her office in conducting human rights investigations in many troubled regions of the world.^[4] However, she restrained the scope of her comments to the issue of the protection of alleged victims and potential witness, leaving apart the adequate protection of the field investigators themselves as a separate issue.^[5]

Noting that although “a proactive field presence increases the protection space and opens up points of contact for a comprehensive protection strategy…an element of inherent or residual risk is thus almost always present in the conduct of investigations.”^[6] In short, “human rights investigators cannot absolutely assure the safety of the witnesses.”^[7]

In documenting the missions of the Office of the High Commission for Human Rights’ (OHCHR) in Darfur since 2004, the Commissioner made clear the inescapably high degree of risk inherent in investigating human rights violations in the region. However, the Commissioner concluded that the presence of investigators could not be linked with an increased risk of either arbitrary detention or physical harm to alleged victims in the region.^[8]

Although the Commissioner’s observations were more subtle and more grounded in empirical data than in legal reasoning than the observations submitted by Prof. Cassese last September, the general message was in accord with his comments. Ms. Arbour stated that, with the cooperation of the Security Council, the OHCHR, and the government of Sudan, the ICC “has the potential of being effective during armed conflicts and to contribute to the effective prevention of current crimes and the general reduction of violence.”^[9]

The High Commissioner insists that the experience of the OHCHR affirms the former, but at what cost to the real mission of a conducting a thorough and impartial forensic investigation into the commission of alleged criminal acts?

Ultimately, the type of intervention recommended by the expert observers blurs the lines between judicial accountability for criminal conduct and the political mission of assisting states in observing their global human rights obligations. There must be adequate consideration given to the impact on the judicial process and the meaning of the rule of law if this degree of geopolitical convergence is the future of the ICC.

The OTP and defense counsel have the opportunity to file written responses to the Commissioner’s observations within 10 days of notification of this report.^[10]

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[1] Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC‑02/05‑10, July 24, 2006 [hereinafter Decision].
[2] Observations of the United Nations High Commissioner for Human Rights Invited in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05-19, Oct. 10, 2006.
[3] Id. at Executive Summary.
[4] Id. at paras. 1-8.
[5] Id. at para. 9-10 (noting that her use of the term “victim” in the context of an investigation includes both witnesses and “actual victims”).
[6] Id. at para. 13.
[7] Id. at para. 13(d).
[8] Id. at paras. 11-36 (offering the assistance and “best practices” of the OCHCR and noting that OCHCR investigators have already provide 9 boxes of evidentiary materials to the ICC).
[9] Id. at para. 76.
[10] Decision supra note 1.

International Criminal Court (ICC)—President Kirsch Addresses UN

In an address yesterday to the United Nations General Assembly, Judge Philippe Kirsch, President of the International Criminal Court (ICC), emphasized the reliance of the Court on cooperation from States Parties, non‑States Parties, and intergovernmental organizations like the U.N. in “gathering evidence, providing logistical support to operations in the field, relocating witnesses, arresting and surrendering persons and enforcing the sentences of the convicted.”^[1]

Judge Kirsch noted that the Court does not have its own police force and cited the inability of the Court to execute arrest warrants in the investigation in Uganda.^[2] Uganda, a State Party to the Rome Statute, has disregarded a Court‑requested Interpol Red Notice and extended offers of amnesty to the individuals.

Judge Kirsch noted the Secretary‑General’s acknowledgment that the judicial process of the Court is having a deterrent effect on international crime and calling on the international community to “see that its fundamental commitment to ending impunity is upheld and ensure the support and cooperation needed.”^[3] In his formal report he added that “[t]he Court endeavours to carry out its functions autonomously but in some areas it cannot operate without support.”^[4]

In addition to general information about the judicial activities of the Court between August 2005 and August 2006, the report included the following announcements:

• Of seven referred situations analyzed by the Office of the Prosecutor in 2006, two have been dismissed (Venezuela and Iraq), two are in review and have been made public (Central African Republic and Cote d’Ivoire), and three others are in confidential review.^[5]
• The Court “is preparing for future proceedings to be held in situ in appropriate conditions,” pursuant to its authority to hold proceedings away from the seat of the Court under Article 3 of the Rome Statute.^[6]
• The Court maintains “fixed presences” within the Democratic Republic of the Congo, Uganda, and Chad (Situation in Darfur).^[7] Furthermore, the Court conducts ongoing outreach programs in affected areas to “provide accurate information regarding its work and to make accessible its judicial proceedings.”^[8]
• The ICC Office of Public Counsel for the Defense has approved 152 international criminal attorneys to provide defendants with counsel of choice and to “represent the interests of the defence in forensic examinations and proceedings related to victims participation [sic].”^[9] Judge Kirsch emphasized that in order to succeed in fulfilling the mission of the Court “it is vital that the rights of the accused are adequately ensured”^[10]

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[1] ICC President, Judge Philippe Kirsch, Addresses United Nations General Assembly, ICC-20061009-167-En, Oct. 9, 2006. See also Report of the International Criminal Court, UN Doc. A/61/217, Oct. 9, 2006 [hereinafter Report].
[2] Report supra note 1 at 1. See also Address to the United Nations General Assembly, Oct. 9, 2006 [hereinafter Address] at 1 (noting that DNA tests have confirmed that one of the persons named in the original arrest warrant, Raska Lukwiya, is deceased).
[3] Address supra note 3 at 6, citing Secretary‑General’s Progress Report on the Prevention of Armed Conflict, U.N. Doc A/60/891 (July 18, 2006) at para. 41. See also Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble.
[4] Report supra note 1 at para. 20 (in the context of successes in the investigation in the DRC).
[5] Address supra note 3 at 3 (Noting that the Cote d’Ivoire is a non‑State Party that has accepted the jurisdiction of the Court). See also Report supra note 1 at paras. 30-32 (noting that referrals are made public by the Court only after they are made public by the referring entities).
[6] Address supra note 3 at 4. See also Rome Statute, Art. 3(3).
[7] Address supra note 3 at 4 (noting that the field office in Chad was briefly abandoned because of heightened security concerns earlier this year).
[8] Report supra note 1 at para. 33.
[9] Report supra note 1 at para. 15.
[10] Report supra note 1 at para. 14.

International Criminal Court (ICC)—DRC/Lubanga: Confirmation Hearing

The International Criminal Court (ICC) has announced that the hearing to confirm the charges against Thomas Lubanga Dyilo (Situation in the Democratic Republic of the Congo) will take place on Thursday, November 9, 2006.^[1] The hearing had been postponed pending the resolution of issues concerning the disclosure of exculpatory evidence and the protection of alleged victims.^[2] The Prosecutor has until 15 days before the hearing (October 25) to submit amendments to the charges and evidence.^[3]

This is the first confirmation hearing to be held at the ICC. The procedure for the confirmation hearing is as follows:

• Presiding Judge Claude Jorda will ask an officer of the Registry to read the charges.^[4]
• If the defense challenges jurisdiction or admissibility, the Pre‑Trial Chamber must deal with that issue before other issues.^[5]
• Judge Jorda will ask if Mr. Lubanga and his counsel intend to raise objections to the proper conduct of the hearing.^[6] If so, the Chamber will hear the party’s arguments before proceeding and may either enter a decision or adjourn to resolve the issue.^[7] Any procedural objections not raised at this time are waived and may not be raised in future proceedings.^[8]
• The Prosecutor will present evidence on the merits of the charges.^[9]
• The defense may object to or challenge the evidence and may present rebuttal evidence.^[10]
• The Prosecutor may present “final observations.”^[11]
• The defense may have the last word in presenting its “final observations.”^[12]
• The Pre‑Trial Chamber will adjourn to deliberate.

Mr. Lubanga has the right to be present at the confirmation hearing but may waive that right, subject to the Court’s approval.^[13] Based on its findings with regard to the sufficiency of the evidence in support of the charges, the Pre‑Trial Chamber may confirm, deny, or request additional evidence or modifications of the charges.^[14] The Chamber must publish its decision and reasoning within 60 days of the end of the confirmation hearing.^[15]

If the charges are confirmed, the case will be transferred to a Trial Chamber.^[16] If the charges are rejected, the Prosecutor may or may not choose to bring new charges and to seek a new warrant for Mr. Lubanga’s arrest.^[17]

Although the Statute, Rules, and Regulations do not specify that a defendant must be released immediately if the charges are not confirmed, if the charges are discarded the arrest warrant on which pre‑trial detention is based can no longer be in force. However, in “exceptional circumstances,” the Court may decide to continue the period of detention, even after a judgment of not guilty.^[18]

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[1] Media Advisory: Confirmation of Charges Will Take Place on 9 November 2006, ICC-20061006-165-En, Oct. 6, 2006.
[2] Media Advisory: Confirmation of Charges has been Postponed, ICC-20060921-163-En, Sept. 21, 2006.
[3] Rules of Procedure and Evidence, UN Doc. PCNICC/2000/INF/3/Add.3 [hereinafter Rule of Rules], Rule 121(4). See also Submission of the Document Containing Charges Pursuant to Article 61(3)(a) and of the List of Evidence Pursuant to Rule 121(3), ICC‑01/04‑01/06‑356, Aug. 28, 2006.
[4] Rule 122(1).
[5] Rule 122 (2). But see the Court’s decision last week at Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2) of the Statute, ICC‑01/04‑01/06, Oct. 3, 2006.
[6] Rule 122(3).
[7] Rule 122(5) and (6).
[8] Rule 122(4).
[9] Rule 122(7). See also Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 61(5).
[10] Rome Statute, Art. 61(6).
[11] Rule 122(8).
[12] Rule 122(8).
[13] Rule 124.
[14] Rome Statute, Art. 61(7).
[15] Regulations of the Court, ICC‑BD/01‑01‑04, Reg. 53.
[16] Rome Statute, Art. 61(11).
[17] Rome Statute, Art. 61(8).
[18] Rome Statute, Art. 81(c).

McNabb in the News (10/7/06)

Senior Principal Douglas McNabb has been quoted in Arkansas’ The Morning News concerning former Wal-Mart vice chairman Tom Coughlin.

Coughlin has paid his fines and restitution, according to court documents filed Sept. 21 in Fort Smith. That and his behavior over the next 27 months could determine whether he has to serve all of his home detention, said Douglas McNabb, a … criminal attorney.

"If you pay all your financial obligations, then you can petition the court for early termination. Most courts won't do it if the probation office disapproves. But if you get along well with your probation officer ... you have a shot at getting off early," he said. "If (Coughlin) just really behaves himself, doesn't complain, obeys the rules, and the probation officer likes you ... he could petition the court (for early release)."
…
McNabb said the biggest complaint his clients had about home detention was restricted movement.

"It's sort of a double-edged sword," he said. "On one hand, they're grateful it's home detention instead of a federal penitentiary. On the other hand, their flexibility is reduced. But I must say that, on balance, home detention is super for a defendant in that he is allowed to do all the things he couldn't do if he was (in prison). It's just that he has a curfew. Home detention really is a privilege."^[1]

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[1] Anita French, Coughlin Facing New Kind of Bored Room, The Morning News, Oct. 7, 2006.