Ten years of trial proceedings at the International Criminal Court.

• Published date: 22 September 2013
• Author: Aluoch, Joyce
• Date: 22 September 2013

I. INTRODUCTION: STEPS INVOLVED IN PREPARING AND CONDUCTING A TRIAL AT THE ICC

My remarks will address trial proceedings before the International Criminal Court ("ICC") and the early jurisprudence of the ICC's Trial Chambers. As an introduction, this part will outline the steps involved in preparing and conducting a trial at the ICC and describe some of the more notable procedural developments in the Institution's first trials. The article will then discuss some of the biggest achievements and challenges in the ICC's first ten years of existence, giving particular attention to issues related to the fairness and expeditiousness of the proceedings and the recently completed case of The Prosecutor v. Thomas Lubanga Dyilo. (1)

A. From Constitution of the Trial Chamber to Opening Statements

Once an ICC Pre-Trial Chamber confirms the charges, the Presidency constitutes a Trial Chamber, which shall be responsible for the conduct of subsequent proceedings. (2) This step starts the trial phase of the proceedings, but many steps need to be taken before the opening statements and evidence presentation actually begin.

The Trial Chamber needs to hold status conferences with the parties and adopt necessary procedures to facilitate the fair and expeditious conduct of the proceedings). (3) Trial Chambers have held status conferences to a varying extent thus far: Trial Chamber I in Lubanga held a total of 54 status conferences prior to the start of the trial; Trial Chamber II in Katanga and Ngudjolo held 27 status conferences; and Trial Chamber III in Bemba held 16 status conferences.

Many issues need to be resolved in status conferences, and written decisions from the Chamber must be provided before the opening statements are made. These issues include: determining which languages are to be used during the trial, (4) managing any disclosure issues which still exist following the proceedings before the Pre-Trial Chamber, (5) providing for the protection of confidential information, (6) obtaining the cooperation from states in securing the presence of witnesses and evidence, (7) etc. While many procedures are explicitly mentioned for the Trial Chamber to consider in the Court's statutory instruments, Trial Chambers are also entitled to rule on "any other relevant matters" (8) and are generally empowered to exercise the functions of the Pre-Trial Chamber that are relevant and capable of application before the Trial Chamber. (9)

To give some perspective as to how much litigation is generated during this pre-trial portion of the trial phase, approximately 148 written decisions and orders were issued in the Lubanga case prior to the trial, 200 in the Katanga case, and 93 in the Bemba case.

B. From Opening Statements to the Conclusion of the Trial Proceedings

After addressing these preliminary matters, the trial proceedings reach the stage where the opening statements are made and the evidence presentation begins. At the commencement of the trial, the Trial Chamber shall read to the accused the confirmed charges. (10) The Trial Chamber must satisfy itself that the accused understands the nature of the charges and must give the accused the opportunity to admit guilt or plead not guilty. (11)

The Presiding Judge of the Trial Chamber gives directions for the conduct of the proceedings. (12) To date, trials have generally followed a procedure where the prosecution presents its case, followed by the victim's case through legal representatives, and concluding with the defense. The Chamber also has the authority to request the submission of all evidence that it considers necessary for the determination of the truth. (13)

During proceedings, Trial Chambers may rule on the admissibility of any evidence. (14) A test has been developed in the jurisprudence for the admissibility of evidence. Under this test, the Trial Chamber examines, on a preliminary basis, whether the submitted materials (i) are relevant to the trial; (ii) have probative value; and (iii) are sufficiently relevant and probative to outweigh any prejudicial effect that could be caused from their admission. (15) As to witnesses presenting evidence before the Trial Chambers, 67 witnesses were heard in Lubanga over 204 days of hearings, 54 witnesses in Katanga & Ngudjolo over 265 days of hearings, and 40 prosecution witnesses, with an anticipated number of 63 defense witnesses, in Bemba.

At the conclusion of the presentation of the evidence, the Trial Chamber goes into deliberations in preparation for issuing its judgment. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings, and this decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. (16)

In the event of a conviction, an appropriate sentence is imposed. (17) This conviction makes victims eligible to receive reparations in ICC proceedings. For this purpose, the Trial Chamber must establish the principles relating to reparations (18) and may make orders for reparations to be paid by the convicted person or through the ICC Trust Fund. (19)

II. NOTABLE PROCEDURAL DEVELOPMENTS IN THE ICC's FIRST TRIALS: ACHIEVEMENTS AND CHALLENGES

Now that the basic outline of an ICC trial has been established, it is time to explore some of the biggest developments in the first ten years of the ICC's trial proceedings. The ICC's first trials have already generated a rich and interesting jurisprudence, and I will focus in particular on Trial Chamber rulings that affected the fairness and expeditiousness of the proceedings.

A. Fairness and Expeditiousness of the Proceedings

1. Fairness to the Accused

The essential provisions for protecting the rights of the accused are explicitly set out in the Rome Statute of the International Criminal Court ("Rome Statute"). (20) Every trial is conducted with these rights in mind. However, the contours of these rights and the logistical challenges they present have played a large role in ICC trial proceedings to date.

Consider the Banda and Jerbo proceedings in Trial Chamber IV, where I serve as Presiding Judge, and the right to have trial proceedings unfold in a language the accused fully understands. The accused, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, each only fully understand one language: Zaghawa. These were the concerns that the prosecution presented to the Chamber about conducting a trial in Zaghawa:

i. Zaghawa is not a written language;

ii. The Zaghawa vocabulary is limited to no more than 5,000 words, rendering it difficult to translate certain words and concepts from languages of the Court such as English, French and Arabic into Zaghawa;

iii. Consequently, the relevant material would first have to be transliterated and then read on to audio tapes in Zaghawa;

...

v. The current page-count of material that needs to be disclosed pursuant to Rule 76 is approximately 3700 pages....

Needless to say, the Trial Chamber needed some creativity to resolve these concerns.

With the input of the parties as to how to proceed, several measures were adopted. First, the prosecution was ordered to disclose its signed witness statements in narrative form and in both their original language and a Zaghawa audio format. (21) Second, in the course of preparing Zaghawa audio versions of witness statements, the prosecution was required to arrange to have the corresponding witness statement page numbers read into the recording. (22) Third, the registry was ordered to prepare a complete audio translation of the Decision Confirming the Charges. (23)

The Trial Chamber's approach is currently being implemented in the Banda and Jerbo cases, but it stands as an example of the kinds of challenges the ICC faces and how these challenges are met. It is important to make sure that the logistical challenges presented by the language rights to which the accused are entitled do not affect the fair and effective functioning of the ICC. It is not always possible to predict which languages will be required in ICC proceedings, but quality interpretation and creative problem solving will go a long way to ensure that trials unfold in the manner prescribed in the Rome Statute.

2. Regulation 55

Another critical component of ensuring that a trial is fair is that the accused must have a clear understanding of the accusations he or she faces. The Rome Statute has laid an important groundwork for giving clarity in this regard by adopting the Elements of Crimes, which are intended to assist the Court in the interpretation and application of the Court's provisions regarding genocide, crimes against humanity, war crimes, and the crime of aggression. (24) The Elements of Crimes (25) exhaustively present every element for every crime in the Rome Statute. They have proven an invaluable resource.

The ICC cases are framed around charges, and a "charge" consists of both facts and a legal characterization of those facts. (26) It is the prosecution's responsibility to create a "document containing the charges" which is submitted before the Pre-Trial Chamber. (27) It is then for the Pre Trial Chamber to determine whether there is sufficient evidence to establish "substantial grounds to believe" that the person committed each of the crimes charged. (28) In its confirmation decision, the Chamber confirms those charges in relation to which it has determined that there is...