In mid-November, delegates to the
Assembly of States Parties were told how the Court would conclude its second
trial with a judgment before year-end (see the Report on the Activities of the
Court, ICC-ASP/11/21, para. 10). This is the case of Katanga and Ngudjolo,
dealing with a massacre that took place in the Democratic Republic of the
Congo.
But the Assembly had not anticipated a
ruling issued on 21 November that severs the case into two, and may have as a
consequence the prolongation of the Katanga case by perhaps a year or even
more. Judgment in Ngudjolo will be delivered on 18 December.
In a ruling based upon Regulation 55,
the Trial Chamber decided to recharacterise the mode of liability upon which
Katanga’s trial was based and to proceed on the basis of a different provision
of the Rome Statute.
Nothing like this can take place at the
ad hoc tribunals, because there is no equivalent to Regulation 55.
Regulation 55
Authority of the Chamber to modify the legal characterisation of
facts1. In its decision under article 74, the Chamber may change the legal
characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal
characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular,
ensure that the accused shall:
(a) Have adequate time and facilities for the effective preparation of
his or her defence in accordance with article 67, paragraph 1 (b); and
(b) If necessary, be given the opportunity to examine again, or have
examined again, a previous witness, to call a new witness or to present other
evidence admissible under the Statute in accordance with article 67,
paragraph 1 (e).
Most
criminal lawyers in national systems will also be astonished that this can
happen (well, perhaps it is possible in places like Iran, or Zimbabwe). The
Regulations of the Court are crafted by the judges and then tacitly confirmed
by the Assembly of States Parties, which may object if it is not content but
which has not done so. Although the conformity of Regulation 55 with the Rome
Statute itself has already been confirmed by the very judges who adopted it, it
is not the idea of reframing the charges but rather the consistency of its
interpretation with fair trial principles that is at the heart of the decision.
Judge Van den Wyngaert issued a very
strong dissenting opinion that most persuasively protests the decision of her
two colleagues to recast the legal debate because of the unfairness it creates
for the defendant. The majority decision and the dissent represent one of the
most profound debates about fairness in the Court’s proceedings to have taken
place to date.
Reading between the lines, one may see
that the majority judges concur that the mode of liability upon which both
prosecutor and defendant have based their case, and on which evidence was led,
is likely to lead to an acquittal. So they have found another mode of liability
that they find more suitable and that will, presumably, result in a conviction.
Of course, the parties can insist on making new submissions, and even on
calling new evidence.
What is so astonishing about the
decision is that it takes place not at the close of the prosecution’s case, or
even in the midst of the defendant’s case, but more than a year after the
evidentiary phase of the trial was completed and six months after the judges
had received the final submissions from the parties.
Critics of the judgment will be tempted
to point out that the two majority judges of the Trial Chamber, both of whom
have already passed the expiration of their terms of office, have now extended
their own employment contracts with the Court and, in the case of one of them,
increased the pension entitlement. Two recently elected judges will have to
wait still longer before taking office, and will have their own terms of office
reduced accordingly.
As Judge Van den Wyngaert notes in her
eloquent and compelling dissent, part of the unfairness is due to the fact that
the recharacterisation of the liability of Katanga is based in part upon his
own testimony. Katanga took the stand in his own defence on the belief that he
was to answer upon one form of liability, but now finds himself charged based
upon another form of liability that results in part from what he himself said
in Court.
If this decision is allowed to stand, it
will have a very significant impact upon defence strategies in future trials.
Defence counsel will have to advise their clients that should they choose to testify,
the evidence they give may be used not only in defence to the charges but also
in what amounts to a new trial, on a new charge. For the Prosecutor,
cross-examination of a defendant who chooses to testify will have the potential
to become a fishing expedition where new charges and forms of liability will be
explored. The notion of ‘relevance’ may take on a whole new meaning.
For the two majority judges, who come
from a culture of inquisitorial proceedings, the idea of reframing a mode of
liability in this way is perhaps not as unusual as it might be for a judge from
a background in adversarial proceedings. They are more comfortable with
procedure where it is the judge rather than the parties who drives the
proceedings. But they may not have taken into account the unfairness that
results when there are adversarial proceedings, like those prescribed by the
Rome Statute, where the scope of the judicial debate is set at the outset of
the trial and where the parties produce evidence pursuant to such an agreed
understanding.
Regulation 55 allows the judges to
intervene and propose changes to the charges, but this is not really that
different from a situation where the prosecutor proposes an amendment to the
charges. It is acceptable – within reasonable bounds – while the trial is
underway, and especially before the defence has played its hand, but it becomes
increasingly intolerable from the standpoint of fairness as the trial advances.
To allow this a year after the trial
itself has concluded was surely not adequately contemplated by the judges when
the adopted Regulation 55 or by the Assembly of States Parties when it
confirmed the Regulations of the Court. Surely many of them believed at the
time that this was something that would take place early in the trial, and in a
manner fully respectful of the rights of the accused. If the majority of the
Trial Chamber thinks this should be possible, it should proceed by proposing an
amendment to the Regulations (which obviously could not apply in a pending
trial in a manner designed to ensure conviction, as seems to be the case with
Katanga) rather than ambush the defendant in this way.
The decision is available in French only
at this point, which may explain why it is not getting the attention it
deserves. But Judge Van den Wyngaert’s dissenting opinion, which is annexed to
the ruling itself, is in English.
3 comments:
This sounds similar to, albeit an extension of, the case of Akayesu, where judge Pillay pretty single-handedly pushed the prosecutor into adding charges to the indictment midway through the case.
I guess you are reading the judgment. My French is a bit rusty but i found para. 47 interesting.
"Afin de déterminer si une allégation du Procureur a été prouvée, la Chambre n'a pas limité son analyse aux preuves qu'ont expressément visées les parties et les participants dans leurs plaidoiries. Elle a examiné, au cas par cas, si elle pouvait se fonder sur des éléments de preuve figurant au dossier et non expressément visés pour établir une allégation factuelle en tenant compte des prescriptions énoncées aux articles 64-2 et 74-2 du Statut. Elle s'est, en particulier, assurée que la Défense avait eu la possibilité de s'exprimer sur les éléments de preuve en question."
How do you interpret this? Has the Trial Chamber considered evidence not discussed by the parties during trial?
Very inspiring article.
This fundamental issue deserves more attention.. the triggering of Regulation 55 in Katanga clearly undermines due process, and leads to interrogate oneself on the norm's parameters of application.
You might be interested in reading my LL.M thesis on the issue: "The 'Fair Fight' against Impunity: A Proposal on the Modalities for Implementation of Regulation 55".
I am very interested in knowing your opinion/position.
Post a Comment