The following commentary first ran in Legal Eye on the ICC, a regular e-letter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the Legal Eye newsletter, click here.
On March 29, 2011, in The Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber I requested observations from the parties and participants on the procedure to be adopted for Article 70 of the Rome Statute.[i] Article 70 concerns offenses against the administration of justice; in particular subsection (1)(c) covers ‘corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence’.[ii] The request came after an inquiry by the Victims and Witnesses Unit (VWU) raised the issue of direct and indirect threats administered by victims against defense witnesses in the proceedings. Details of the VWU inquiry have not been made public. The Chamber ordered the parties and participants to submit observations on the appropriate organ of the Court, or external body, to conduct an Article 70 investigation. The Prosecution, Defense and the Legal Representatives of Victims provided their observations on April 1, 2011. This is the first time Article 70 has been engaged in a proceeding at the ICC.
The Legal Representatives of Victims (LRV)[iii] were the first to respond with comprehensive observations outlining the various options available to the Chamber. In regards to the Court’s own jurisdiction on the matter, they noted that the Chamber may exercise jurisdiction over the matter or refer it to an appropriate State Party, taking into consideration its competence and experience in breaches of this kind. Should the Court decide to delegate its authority over the matter to a State Party, the filing suggested that the Court carefully consider the factors contained in Rule 162(2)[iv] as well as the potential impact of such delegation on victims and witnesses. The LRV submission also suggested following a procedure similar to that of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) to address investigations into this kind of breach, which in contrast to the statutory framework of the ICC, provide that the Chamber may ask the Registrar to seek an amicus curiae from an independent party or body. This option would preclude any potential conflict of interest within the Office of the Prosecutor.
In its observations,[v] the Prosecution asserted that it was the only organ of the Court authorized by the Statute to conduct investigations, including for an Article 70 breach as explicitly foreseen in Rule 165 of the Rules and Regulations of the Court. Regarding any role to be played by the Registry, the Prosecution emphasized that its only responsibilities are over ‘non-judicial aspects of the administration and servicing of the court’.[vi] It also asserted that in the event a conflict of interest is found, it could create internal divisions within the Office for the purpose of the Article 70 investigation.
The Defense[vii] recognized that conducting investigations, including into offenses to the administration of justice, falls within the competence of the Office of the Prosecutor, as stated in Rules 163 and 165. However, it stressed the potential conflict of interest and the need for an independent body to conduct an Article 70 investigation given that the investigation requires that Defense witnesses be interviewed by the Prosecution, an organ adversarial to the position of the Defense. The Defense maintained that such an investigation could impact the impartiality and fairness of the proceedings. Therefore, it reiterated the suggestion that an independent body should investigate any potential offence, analogous to the procedures contemplated by the ad hoc tribunals.
At the time of writing, the issue is awaiting decision by the Trial Chamber.
[i] ICC-01/04-01/06-2716 footnote 1; the request for observations was made by email from the Legal Officer to the Chamber to the parties and participants.
[ii] Article 70(1)(c) of the Statute. Article 70(1) provides an exhaustive list of violations that fall within the scope of the Court’s jurisdiction, with emphasis on violations that were committed intentionally.
[iv] Factors to consider in Rule 162(2) include: availability and effectiveness of prosecution in a State Party; seriousness of the offense; possible joinder of charges under article 70 with charges under Articles 5 to 8; need to expedite proceedings; links with an ongoing investigation or trial before the Court; and, evidentiary considerations.
[vi] ICC-01/04-01/06-2716 para 4 referencing Article 43(1).