Wednesday, 6 April 2011

More on Inherent Powers at the International Criminal Court

The issue of ‘inherent powers’ is full of interest and the law on this matter remains unsettled, as a recent decision demonstrates. An item on the point was posted on the blog about a year ago.
In the Lubanga trial at the International Criminal Court there was a dispute about the numbering of defence exhibits. There was a misunderstanding between the Trial Chamber and defence counsel about admission of certain documents. When this became apparent, the defence asked that the documents not be listed in the record.
The substance of the dispute is not as interesting as the bigger legal issues, as described in the majority opinion :
First, whether a Chamber is able to vary its case-management decisions or orders - those that are essentially administrative in nature - and, second, the circumstances when (if at all) a Chamber is entitled to depart from a decision on an issue of substance {viz. as regards the law or the facts of the case).

There is nothing in the Rome Statute or the other applicable legal instruments allowing for reconsideration of a decision once deadlines for filing an appeal have expired. According to the majority, ‘The jurisprudence of the ad hoc tribimals supports the interpretation that in certain circumstances a Chamber is entitled to depart from its decisions on matters of substance as regards the law or the facts of the case.’ The majority adopted a test whereby ‘irregular decisions can be varied if they are manifestly unsound and their consequences are manifestly unsatisfactory’.
Judge Blattmann wrote a separate opinion because he disagreed with the reasoning of the majority. Noting the reliance by the majority on case law of the ad hoc tribunals, he said ‘the transference into the ICC framework of this jurisprudential development which allows for broad judicial law-making powers requires some analysis’ and he said he disagreed with the majority on the matter. He resisted the idea of an ‘inherent discretionary power’ of the judges, although he found that the matter could be resolved in the same way as the majority without resorting to such a power.

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