Wednesday, 14 July 2010

More on Intermediaries from the Lubanga Trial Chamber: Can it Really Take 'appropriate action'?

A recent 'ruling' by the Trial Chamber in Lubanga has just been brought to my attention. The Chamber chastised Beatrice le Frapper du Hellen, who is a senior official in the Office of the Prosecutor, for remarks that she made in an interview with the blog.
The Chamber referred to the fact that much of the Lubanga trial has not been open to the public.Accordingly,
the public needs to be able to trust the published statements of those involved in the case, as reflecting, in a suitably balanced way, the evidence that has been heard and the decisions that have been made. It is important that in media statements there is a clear and accurate description as to whether issues that are reported have been decided or are still unresolved. Most importantly, and as a matter of professional ethics a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved.
The Chamber said that Beatrice le Frapper du Hellen had not abided by these principles.'in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute'. It said it would take no further action than to express 'the strongest disapproval of the content of this interview' but warned that 'if objectionable public statements of this kind are repeated the Chamber will not hesitate to take appropriate action against the party responsible'.
This issue is not expressly regulated by the Rome Statute or the Rules of Procedure and Evidence, and we may well ask on what the Trial Chamber might base its authority to 'take appropriate action' in the case of 'objectionable public statements'. This is part of a larger issue that is looming with respect to the implied or inherent powers of the judges at the Court. In last week's decision on the stay in Lubanga, the Trial Chamber seemed to think it had the power to order the Prosecutor to do certain things, such as reveal names of 'intermediaries'. But does it really have such a power? I think that its authority to stay proceedings in the event of a flagrant denial of the right to a fair trial cannot be questioned, and to that extent the decision certainly has a legal basis. But that is because the Chamber controls the trial itself. But can it make orders, and sanction people, for activity outside of the courtroom? Where does this power come from? And if it exists, where does it end? Should I, as an ICC-obsessed blogger, start to worry that I might too be subject to 'appropriate action' if I make an 'objectionable public statement'? I am inclined to think that it could stay the proceedings if a third party - such as myself - made an 'objectionable public statement' that drastically compromised the fairness of the trial itself, but that it can do no more than that.
The views of readers of the blog on this issue would be welcomed.
Thanks to Yvonne McDermott


Christian Axboe Nielsen said...

I agree with your analysis, but think that your concern is exaggerated. As an academic who worked on Lubanga earlier at the ICC, I would not be worried that the Trial Chamber would criticize scholars who choose to comment on the proceedings. As you note, any such comments would have to be very drastic (and of very high profile) in order to draw the Trial Chamber's attention.

It seems clear to me that the judges take a dim view of certain statements made by representatives of the Office of the Prosecutor, whose professional role and proximity to the case requires them to take special care when commenting publicly on ongoing trials. Were any scholars to be currently engaged in the trial, for example as consultants or expert witnesses, then they, too, might theoretically face censure depending on the nature of their public comments.

Dov Jacobs said...

I had missed that decision! I took you up on your invitation for comments and posted one on my blog. I basically argue that the Chamber actually gets the fair trial requirements wrong in the first place, and also that I see nothing wrong in the statements made by the OTP staff member.

VC Lindsay said...

Not a very controversial decision, given that the Lubanga court's ruling relates to the conduct of parties to the proceedings and not a third party (the spokeswoman is a member of the prosecution team).

As for third parties, there have been quite a few journalists convicted for revealing confidential information, but that was for violating court orders.

I do not see how the court would have jurisdiction over a third party unrelated to the proceedings, absent violation of an actual court order or a specific provision of law criminalizing speech during the trial (as they have in England and Wales). Even with a treaty provision criminalizing such speech, it seems it would be impossible to enforce such a law in every country around the world.

But I wonder (and I am not judging), has a long arm statute (or a framework directive?) criminalizing certain speech already had an effect on the content of this blog? Maybe actual enforcement isn't necessary.