Through the most recent proceedings initiated by the Prosecutor of the International Criminal Court (ICC) against Walter Barasa, the issue of proceedings for alleged offences against the administration of justice pursuant to Article 70 of the Rome Statute has gained relevance for both legal practice and in the academic field. The regime established by the article differs significantly from the one applicable to the ad-hoc tribunals as it shifts power from the Chamber to the Prosecution. This article aims at exploring the implications this changed legal framework has for the upcoming legal proceedings, taking into account in particular the rights of the accused and the risks of the OTP’s investigatory and prosecutorial monopoly. It will further explore the legal tools available to ICC judges in order to remedy these implications and discuss the possibilities for applying lessons learned.
In November2013arrest warrants against members of the Bemba defence team where issued and executed the following weekend. These cases will not be dealt with in detail here as they raise far-reaching issues and because most of the underlying facts are not yet publicly known see Pre-Trial Chamber II Prosecutor v. Bemba et al. ICC-01/05-01/13-1-Red2 20 November 2013.
Pre-Trial Chamber IIProsecutorv. Katanga and Ngudjolo ICC-01/04-01/07-3319 21 November 2012 with dissenting opinion by Judge van den Wyngaert.
Jacobssupra note 5. See also Aurélie Vernichon ‘L’outrage au Tribunal devant les deux Tribunaux ad hoc le Tribunal penal pour le Rwanda et le Tribunal penal international pour l’ex-Yougoslavie’ in Chile Eboe-Usuji (ed.) Protecting Humanity (Martinus Nijhoff Leiden 2010) 661–687 p. 687; Bohlander supra note 22 pp. 110–111; and D’Ascoli supra note 22 p. 755 highlighting the civil law inclination of the Rome Statute.
Entry into force: 5 September2013.
Trial Chamber V (b)Prosecutorv. Kenyatta ICC-01/09-02/11-747 31 May 2013 paras. 13 et seq.
Fedorovasupra note 41 pp. 330–332 notes among other measures the establishment of the OPCD with mandates to represent and protect the rights of the Defence during the initial stages of investigation and to provide legal assistance and support to defence teams during the trial.
Fedorovaibid. p. 186; Håkan Friman et al. Informal expert paper: Measures available to the International Criminal Court to reduce the length of proceedings 2003 ICC-OTP para. 28 <www.icc-cpi.int/iccdocs/asp_docs/library/organs/otp/length_of_proceedings.pdf> 26 November 2013.
Trial Chamber V (b)Prosecutorv. Kenyatta ICC-01/09-02/11-756 11 June 2013 para. 13 noted the difficulties the Defence is facing and ordered prosecutorial assistance to be given to the Defence in providing documents.
Defence for LubangaProsecutorv. Lubanga ICC-01/04-01/06-2715 1 April 2011 para. 5. For a similar problem see Pre-Trial Chamber II Prosecutor v. Bemba et al. ICC-01/05-01/13-1-Red2 20 November 2013 paras. 3–5.
The Appeals ChamberProsecutorv. Lubanga ICC-01/04-01/06-1486 paras. 76–77 confirmed that art 64 (2) in conjunction with Article 21 (3) allows for a stay of proceedings even though such a stay is not explicitly foreseen in the Statute and the RPE.
Pre-Trial Chamber IIProsecutorv. Ruto and Sang ICC-01/09-01/11-49 12 April 2011 para. 12 reiterated that in accordance with Articles 42(1) and 54; ‘[…] the Prosecutor enjoys discretion entailing the power to select and investigate cases which is a matter that falls within the pure mandate of the Prosecutor; this is not dealt with by the Chamber except to the extent provided for in Article 53(3) of the Statute’. See also Pre-Trial Chamber II Prosecutor v. Ruto and Sang ICC-01/09-01/11-371 9 December 2011 para. 16.
Trial Chamber IProsecutorv. Lubanga ICC-01/04-01/06-T-350-Red2-ENG CT3 WT 14-04-2011 14/67 PV T. See also Trial Chamber I Prosecutor v. Lubanga ICC-01/04-01/07-T-190-Red-ENG WT 22-09-2010 3/89; Trial Chamber II Prosecutor v. Katanga and Ngudjolo ICC-01/04-01/07-2731 24 February 2011 para. 18.