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Investigative Delegations: Predictable Predicaments

  • Nancy Amoury Combs (a1)

Extract

When a Trial Chamber of the International Criminal Court (ICC) dismissed the court's very first case before trial, it made headlines worldwide. The Trial Chamber dismissed the case because the prosecutor repeatedly failed to disclose exculpatory evidence. He did so because he had obtained the evidence from the UN and NGOs pursuant to confidentiality agreements that prevented disclosure without permission, which the UN and NGOs had not granted. The prosecutor, stuck between two competing obligations—the disclosure obligation that he owed the accused and the confidentiality obligation that he owed the UN—adhered to the latter, a decision that the Trial Chamber deemed to “rupture” the trial process to such a degree that a fair trial was impossible.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 See Prosecutor v. Lubanga, Case No ICC-01/04-01/06-1401, Decision on the Consequences of Non-Disclosure of Exculpatory Materials covered by Article 54(3)(e) Agreements (June 13, 2008).

2 Id. at paras. 35–41, 64.

3 Id. at para. 44.

4 Id. at para. 93. The prosecution eventually obtained the relevant consents, and the case proceeded to trial.

6 Heikelina Verrijn Stuart, The ICC in Trouble, 6 J. Int'l Crim. Just. 409, 414–15 (2008); Christian M. De Vos, Investigating from Afar: The ICC's Evidence Problem, 26 Leiden J. Int'l L. 1009 (2013).

7 Christian M. De Vos, Prosecutor v. Lubanga - Someone Who Comes Between One Person and Another: Lubanga, Local Cooperation and the Right to a Fair Trial, 12 Melb. J. Int'l L. 217, 229–35 (2011); De Vos, supra note 6.

8 Rebecca Hamilton, User-Generated Evidence, 57 Colum. J. Transnat'l L. 1, 3 (2018).

10 See Andrew B. Mamo, History and the Boundaries of Legality: Historical Evidence at the ECCC, 29 Colum. J. Asian L. 113, 141 (2015).

11 David Re, Fact-Finding in the Former Yugoslavia: What the Courts Did, in Quality Control in Fact-Finding 279, 294–96 (Morten Bergsmo ed., 2013).

12 Id. at 296–97.

13 Id. at 296.

14 Morten Bergsmo & Michael Keegan, Case Preparation for the International Criminal Tribunal for the Former Yugoslavia, in Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers 6 (2d ed. 2001); see also John Hagan, Justice in the Balkans: Prosecuting War Crimes in The Hague Tribunal 133–37 (2003).

15 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, para. 6 (Nov. 9, 2007).

16 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Redacted Decision on Intermediaries, para. 2 (May 31, 2010).

17 See Caroline Buisman, Delegating Investigations: Lessons to be Learned from the Lubanga Judgment, 11 Nw. J. Int'l Hum. Rts. 30, 33–61 (2013).

18 Id. at 40–45.

19 Prosecutor v. Ngudjolo, Case No. ICC-01/04-02/12, Judgment Pursuant to Article 74 of the Statute, paras. 117–20 (Dec. 18, 2012).

20 See Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10, Decision on the Confirmation of Charges, paras. 113–20 (Dec. 16, 2011).

21 Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, para. 35 (June 3, 2013).

22 Federica D'Alessandra, The Accountability Turn in Third Wave Human Rights Fact-Finding, Utrecht J. Int'l & Eur. L. 59, 67 (2017).

23 Id.

24 Id. at 66.

25 Morten Bergsmo & William H. Wiley, Human Rights Professionals and the Criminal Investigation and Prosecution of Core International Crimes, in Manual on Human Rights Monitoring: An Introduction for Human Rights Field Monitors 1, 1 (3d ed. 2008).

26 See Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Decision on the Prosecutor's Bar Table Motions, paras. 29–30 (Dec. 17, 2010). See also Prosecutor v. Gbagbo, supra note 21, para. 29.

27 Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice 297 (4th ed. 2012).

28 GA Res. 71/248, para. 4 (Dec. 21, 2016).

29 Syria Justice and Accountability Centre, Responding to Misconceptions Regarding the IIIM (Aug. 2, 2017).

30 See Beti Hohler & Elizabeth Pederson, The Syria Mechanism: Bridge to Prosecutions or Evidentiary Limbo?, E-Int'l Rel. (May 26, 2017).

31 See, e.g., Hamilton, supra note 8; Lindsay Freeman, Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trials, 41 Fordham Int'l L. J. 283, 289–90 (2018); Emma Irving, Social Media Platforms: The New Kids on the Block at the ICC (draft on file with author).

32 Prosecutor v. Al Mahdi, Case No. ICC-01/12-01/15, Judgment and Sentence, paras. 31–52 (Sept. 27, 2016).

33 Prosecutor v. Al-Werfalli, Case No. ICC-01/11-01/17, Warrant of Arrest, paras. 11–22 (Aug. 15, 2017).

34 See, e.g., Hamilton, supra note 8, at 8.

35 Id. at 39–42.

36 Carsten Stahn & Dov Jacobs, The Interaction Between Human Rights Fact-Finding and International Criminal Proceedings: Toward a (New) Typology, in The Transformation of Human Rights Fact-Finding 255, 256–57 (Philip Alston & Sarah Knuckey eds., 2016).

37 Id. at 257.

39 Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 Law & Contemp. Probs. 163, 174–75 (2013).

40 Buisman, supra note 17, at 33–34.

42 These include the failure to press for the surrender of indictees. See, e.g., David Kaye et al., The Council and the Court: Improving Security Council Support of the International Criminal Court, U.C. Irvine Int'l Just. Clinic (May 2013).

43 John Langbein, Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources, 50 U. Chi. L. Rev. 1, 108 (1983); see generally T.A. Critchley, A History of Police in England and Wales 47–57 (1978).

44 J.M. Beattie, Crime and the Courts in England 1660-1800, at 369 (1986).

45 Langbein, supra note 43, at 108.

46 Id. at 108–14.

47 Id. at 114; see also Beattie, supra note 44, at 369.

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