Laws of Gravity Finally Revealed by Appeals Chamber

In February 2006, a Pre-Trial Chamber of the International Criminal Court issued a ruling authorizing an arrest warrant of Thomas Lubanga Dyilo. Trial in this case was due to begin in June 2008, and is now postponed indefinitely. The February 2006 ruling contained an important discussion of admissibility issues before the Court, and has been much discussed and commented upon (and taught by lecturers like myself) since then. It was the only serious judicial pronouncement on the subject by a Chamber of the Court. Of particular note was its insistence upon the issue of ‘gravity’ as a factor in determining whether a case was admissible (see art. 17(1)(d)). That decision was never appealed because all concerned - the Prosecutor, the victims (or their representatives) and even the defendent himself - were delighted that the case would be transfered to The Hague.
What we have only learned in recent weeks is that on the same day in February 2006, the Pre-Trial Chamber dismissed another application for an arrest warrant, in the case of Bosco Ntaganda, on the grounds that it was not of sufficient gravity: http://www.icc-cpi.int/library/cases/ICC-01-04-02-06-20-Anx2-ENG.pdf. That decision was appealed by the Prosecutor, and overturned by the Appeals Chamber in July 2006: http://www.icc-cpi.int/library/cases/ICC-01-04-169-tFRA.pdf (note that on the Court’s website the French and English versions of the judgment are transposed, so for the time being one needs to click on ‘French’ in order to get the English version). A few weeks afterward the Appeals Chamber judgment, in August 2006, the same Pre-Trial Chamber issued an arrest warrant for Bosco Ntaganda, but under seal.
The Appeals Chamber decided to make its ruling public in late September 2008. The Appeals Chamber was dismissive of the theories advanced by the Pre-Trial Chamber about gravity, and dramatically reduced the significance (if any) of the gravity issue as a condition for admissibility of a case. It is an important decision in terms of the law of the Court. What a curious institution it is, to keep a truly seminal ruling of its Appeals Chamber on a key point of law a secret for more than two years!
The Ntaganda materials were kept under seal at the Prosecutor’s request. Now the Prosecutor says he suspects that Ntaganda knows of the arrest warrant, so there is no longer any point in the secrecy.
Keeping arrest warrants secret proved to be a rather questionable strategy at the International Criminal Tribunal for the former Yugoslavia, and I believe that it was soon abandoned, with perhaps a few exceptions. The opposite has been the case at the International Criminal Court, although as with the Yugoslavia Tribunal it does not appear to have produced very much. And of course we now have a very striking contrast in the application for an arrest warrant for the president of Sudan, which was made public even before being issued by the Pre-Trial Chamber. Probably publicity rather than secrecy is more helpful in bringing suspects to justice, as a general rule.