Over the next week, we will be featuring guest posts from contributors to the Ashgate Research Companion to International Criminal Law: Critical Perspectives, which was published earlier this month. It was edited by myself, William A. Schabas, and Niamh Hayes. The book aims to take a critical approach to a wide variety of theoretical, practical, legal and policy issues surrounding and underpinning the operation of international criminal law as applied by international criminal tribunals.
The book’s 23 chapters, written by well-known authorities in the field of international criminal justice, cover a wide variety of issues, from modes of liability to complementarity and from procedure to politics. The preface is by Judge Chile Eboe-Osuji.
We hope that the forthcoming guest posts, and the book itself, will provide an insight into the continuing challenges of international criminal justice. Thanks to all of our fantastic authors for helping to make this happen!
Uhuru Kenyatta (photo credit: Wikipedia)
Readers of this blog will probably be aware that the Prosecutor of the International Criminal Court spectacularly dropped the charges against Francis Muthaura, co-accused to Kenyan President Uhuru Kenyatta, last month. This occurred after it was revealed that a key prosecution witness (known as Witness 4) had admitted to lying in earlier testimony and had recanted his testimony. This important piece of exculpatory evidence was not disclosed to the defence until after the confirmation of the charges hearing in January 2012, even though the admission had been made in 2010.
On the basis of the Muthaura acquittal and the fact of the non-disclosure, Kenyatta asked for the charges against him to also be dropped. The Kenyatta defence team further pointed to the fact that large swathes of prosecution evidence (including an estimated 24 of the 31 fact witnesses for the prosecution) had been gathered after the confirmation of charges hearing. In the alternative, Kenyatta submitted, the matter should be referred back to the Pre-Trial Chamber for reconsideration of the confirmation of the charges decision.
Last Friday, Kenyatta’s request was denied. Trial Chamber V held that a stay or termination of proceedings would be a disproportionate response. It also held that to refer the case back to the Pre-Trial Chamber on the basis of changes in evidence would exceed the Chamber’s statutory powers, insofar as it would essentially be exercising appellate functions over the original confirmation decision. Nonetheless, the Office of the Prosecutor did not escape censure in the decision. The majority noted its concern at:
the considerable volume of evidence collected by the Prosecution post-confirmation and the delays in disclosing all relevant evidence to the Defence.
Judge van den Wyngaert put her criticisms in even stronger terms, referring to the Prosecution’s ‘negligent attitude’. In a very strong separate opinion, Judge van den Wyngaert pointed out that the prosecution had failed to give any proper justification for the large amount of evidence collected post-confirmation, besides vaguely referring to the security situation in Kenya.
This incident is not the first time the Office of the Prosecutor has been criticised for its investigative conduct, of course. But this decision calls into question the appropriateness and effectiveness of reprimands as remedies, and whether reprimands are sufficiently punitive to deter carelessness when it comes to prosecutorial obligations. A number of alternative sanctions may serve a greater deterrent function. For example, Caianiello has suggested that repeated violations of the disclosure obligation should, in exceptional cases, lead to a permanent stay of proceedings. But, as pointed out in the present decision, this remedy will often be disproportionate to the harm suffered. So what are the alternatives? Continue reading
Photo credit: Al Jazeera
The BBC is reporting that Bosco Ntaganda, founder of the ‘March 23 Movement’ and suspect before the International Criminal Court, has handed himself in to the US Embassy in Kigali.
A warrant of arrest was issued against Ntaganda in 2006, alleging that he had recruited child soldiers into the Patriotic Forces for the Liberation of the Congo (FPLC) in the DRC’s North Kivu province. Last summer, a second warrant of arrest was issued, on charges of muder, rape, persecution, pillage and attacks against civilians. If the charges of rape and sexual violence as war crimes and crimes against humanity were confirmed against Ntaganda and successfully prosecuted, it would do something for the ICC’s less than perfect record on successful prosecution of these crimes to date.
Neither Rwanda nor the United States is party to the Rome Statute, so there is no positive obligation on either state to hand the accused over to the ICC. But this news is undoubtedly welcome to the ICC Prosecutor, who has been criticised in the wake of her dropping the charges against suspect Muthaura in the Kenya situation last week.
UPDATE: Since writing, the U.S. state department has confirmed that Ntaganda is present at their Embassy and has asked to be transferred to the ICC, and is said to be
consulting with a number of governments, including the Rwandan government, in order to facilitate his request.
Thanks to Diane Marie Amann for additional information.