Global Policy Forum

By Heikelina Verrijn Stuart

In a further setback in the case against the first defendant at the ICC, Thomas Lubanga Dyilo, the Trial Chamber (TC) decided on 3 September that it was not satisfied with the proposals of the prosecution to solve the problem through the disclosure of possibly exculpatory evidence, obtained from the UN and NGOs under assurance of confidentiality. The TC still considers the new proposals as an infringement of the rights of the accused to a fair trial. Remarkably, the TC lays the blame completely on the prosecution rather than the information providers, who, according to the TC, have "sought to discharge their respective mandates and entered the agreements with the Office of the Prosecutor (OTP) in good faith." Of course, when a Trial Chamber wants the OTP to properly disclose evidentiary material to the court and to the accused and his defence, it should primarily target the prosecution and not the UN or the NGOs. However, looking at the attitude of the UN towards the ICC, some concerns seem legitimate.

Friend and working partner

When the ICC was established in Rome in 1998, there was a basic understanding that the UN could be considered the future ICC's friend and working partner. The Relationship Agreement of October 2004 between UN and ICC acknowledges that "the International Criminal Court is established as an independent permanent institution in relationship with the United Nations system". In a Rule of Law system the term "independent criminal court" should be considered tautological, since a criminal court can only guarantee a fair trial when it cannot be pressured or manipulated by political, religious or other external powers, even though it will by definition always be functioning in a political context. The UN, however, is still struggling to accept the fact that the ICC can only function as a real criminal court when all UN organs involved put their statements of good intentions into daily practice. The UN, that is to say almost half of its member states, seems to think politics can trump justice and that justice is negotiable. (See former ICTY prosecutor and former High Commissioner for Human Rights in International Herald Tribune, 17 September 2008).

Threatening the ICC fundaments

A first glimpse of a tendency to develop a relationship with the ICC that is much more hands-on and potentially threatening the fundaments of its role as a criminal court, can be found in the March 2005 resolution of the Security Council referring the Darfur situation to the ICC. This Resolution 1593 was met with general elation that the US had abstained, but not vetoed the referral. However, a closer look at the text of this resolution shows not just a willingness to refer a situation, but also an equally strong inclination to limit the power of the ICC. And certainly when reading it in combination with Resolution 1828 of 31 July 2008, extending the mandate of UNAMID - the UN and AU forces - to Darfur, the politics of the states seem to dominate the pursuit of justice.

Article 13 vs. article 16

Why did the referral resolution not mention Article 13 of the ICC Statute, which is the article making possible a referral by the SC of a situation to the ICC, but only Article 16? This negatively formulated article forms the basis for the limitation of the power of the ICC to investigate and prosecute, saying: "No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a Resolution under Chapter VII of the Charter of the United Nations, has requested the Court to that effect." This request can be repeated under the same circumstances. The SC used Article 16 to exclude the possibility of ICC prosecution of officials or personnel of non-member states which contribute troops to Darfur, limiting the jurisdiction over these troops exclusively to the sending states. And, more disturbingly, the SC said in the resolution that the only the states directly involved in the conflict were to cooperate fully with the ICC. All other states were only urged to cooperate, thus mitigating an obligation agreed to by the member states of the ICC.

On 31 July, Resolution 1828 came to pass, with Article 16 ominously looming over the text of the resolution and its procí¨s-verbal, both of them a reflection of how shocked many governments were by the request of the chief prosecutor of the ICC for an arrest warrant against Sudan's president Bashir. China, the Arab League and AU states reacted negatively to the prosecutor's initiative and wanted to include an Article 16 - temporary - blockade of the arrest warrant added to this resolution, which was meant to extend the UNAMID mission. The SC took note of the concerns raised by members of the Council regarding the application for an arrest warrant, but China's proposal was not generally accepted. This time it was the US which stood firm and refused to sign a resolution linking the UNAMID mission to a possible prosecution of Bashir or to bow for threat to the UNAMID forces, stressing the independence of the ICC. China expressed the hope that Article 16 would be invoked as soon as possible. And with almost half of the member states supporting this attitude, what was unthinkable in Rome has become a reality ten years later.

Clever compromise

In Rome, Article 16 was a clever compromise between the states who wanted an independent prosecutor and the US wanting to control the prosecutor through the SC. It was only meant to curb the prosecutor if his actions would, in exceptional circumstances, be considered a threat to international peace and security, not to push political interests of UN member states and not to be the basis for a kind of conditional referral, or a referral under threat of a deferral. Article 16 has certainly never been imagined as a tool in the hands of the SC to suspend an investigation or prosecution based on a referral by the SC itself. How can a prosecutor properly function in an independent way if his power to act can be given and retracted whenever it suits the political powers coming together in the SC?

Two arrest warrants, against Harun and Kushayb, have already been issued as a result of the SC Darfur referral, investigations are under way since 2005, witnesses have been traced and heard, victims alerted. Should all this be put on hold for a year or more? Or would the SC consider solely blocking - for the time being - the case against Bashir? Of course the often cynical reality is that the UN is the sum of the member states who will hold on to their political and economic interests. In its relationship with the ICC, however, the UN should act as a partner with a clear-cut policy, not the result of ad hoc political influences.

The politics of peace and justice

Shortly before the request for the arrest warrant of Bashir had been announced, UN Secretary-General Ban-ki-Moon, according to UN News Service on 13 July, emphasized to the Sudanese President that the ICC is independent and that he does not have any influence on the ICC prosecutor. At a later press conference however, he said that "in principle" he believed that peace and justice should go hand in hand, but that he would have "to assess the whole situation when there is an announcement by the ICC".

"Peace" is the keyword for states when justice is feared to work contrary to their political, economic or other state interests. Undoubtedly, sometimes peace might genuinely be at stake. From the UN angle, the interest of peace could be a reason to act against the prosecutor. The SC, indeed, can only base a referral or suspension on the interest of international peace and security in Chapter VII. And thus, even when there is a near impossibility to assess whether, in an individual situation, a prosecution will influence peace positively or negatively, or at all for that matter, peace will be the cover for the defence of political interests. Besides, all too often the so-called peace processes are merely mirages and political rhetoric, and no reason to stop or postpone attempt to bring perpetrators of horrendous crimes to justice. The position of the ICC is complicated enough as it is in a less than peaceful world. If this court is seen as a tool or instrument in the hands of political powers, which will be the result of an SC keeping the prosecutor on a tight leash, it will damage the very fundaments of the ICC. How convincing is the court as an independent institution, when the SC can hand out jurisdiction over states who have not ratified the ICC treaty while at the same time freeing member states of their obligation to cooperate with the court?

Who controls the ICC prosecutor

From the very start, the question has been: who controls the ICC prosecutor? The states or the judges of the court? In this light, the approach by the UN legal affairs office towards the ICC in the Lubanga case might prove to be even more disruptive than the political machinations within the Security Council. The refusal by the UN to make disclosure of exculpatory evidence in material provided by the UN troops in Congo possibly goes to the heart of the daily procedures at the ICC. The ICC Statute gives room in Article 54(3) for non-disclosure of documents obtained on the condition of confidentiality and solely for the purpose of generating new evidence. The Office of the Prosecutor has, certainly in the first investigations in DRC, widely and routinely collected evidence from both the UN troops, MONUC, and NGOs, who understandably wanted to protect their people on the ground. The ICC judges have spoken critically about this blanket agreement, holding the prosecution responsible for not doing their job. However, the role of the UN as a partner in this enterprise merits scrutiny too. Take the letter of 20 June 2008, written by the UN under Secretary-General for Legal Affairs at the time, Nicholas Michel, proposing that the judges of the Lubanga Trial Chamber would be allowed to read the documents, not at their ICC offices but at the Peace Palace. They would not be allowed to take notes, make copies or any other form of written or verbal record. Notes to the files were allowed to be taken outside the room only. Understandably the TC was irritated and stayed the proceedings just ten days before the trial would have started.

Fair trial

In the recent Decision to prolong the stay, the TC notes that the new proposal by the UN, as negotiated by the prosecution, allows the judges to see the material in their own office, but still objects to them making copies. Notes made by the judges must be redacted, and the documents will not remain at the ICC. This would mean, that only the TC will have seen the evidentiary material, and will not be able to compare details later on when evidence is presented by the parties at trial, and that in the judgement the TC will have to refer to evidence unseen by the accused an his defence. In appeal the Chamber will not be able to see the documents, and will have to rely completely on the Trial Chamber in this respect. A criminal trial is continuously developing, with new evidence coming up, other evidence being withdrawn, witnesses coming and going, new insights in situations and relations growing and in need of being weighed against earlier notions. Undoubtedly the prosecution should never have committed itself to excluding the accused, and the judges, from - exculpatory - evidentiary material, but the UN as an institution should be much more aware of the character of the ICC as a criminal court. The UN has shown a lack of respect for, or understanding of, the ICC as a criminal court and the essence of a fair trial.