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Chief Prosecutor, draft rules brought the investigation and prosecution
divisions together for initial screening of situations and proposed that
prosecution personnel would join with investigators to develop the

35
REDRESS, ˜˜International Criminal Court: Child Soldiers Prosecution Must Be Seen in
Context™™ (2006); REDRESS, ˜˜Victims, Perpetrators, or Heroes: Child Soldiers before the
International Criminal Court™™ (2006).
120 Building the International Criminal Court

investigation plan. As the OTP has developed, integration has continued.
Cases are now developed by teams that draw on the three divisions “ JCCD,
investigation, and prosecution “ and these interdivisional teams ¬‚exibly
shift personnel as processes continue. The prosecution division, rather than
receiving a completed investigation dossier, is involved in cases ˜˜from the
get-go,™™ as Deputy Prosecutor for Prosecutions Fatou Bensouda put it.36 In
preparation for an investigation, the senior trial lawyer (prosecution) works
with the lead investigator (investigations) to lay out a collection plan.
Missions to the ¬eld are jointly planned and always include a prosecution
team member.

A Sputtering Start
The engine of the court is running. The OTP has its critics, but observers
during its ¬rst years were inclined to be patient, to see if warrants for arrest
would be forthcoming, if cases could be brought to court, and if effective
prosecutions would result. By the autumn of 2007, a record of accom-
plishment was accumulating. One suspect from the Congo was in court and
another was in jail, but trial proceedings had not begun. Warrants for
suspects in Uganda had been issued but were mired in the suspects™ demand
that the warrants be lifted as part of a peace deal. Warrants had been issued
for two Sudanese suspects, but critics charged that the action was too slow
and aimed too low. The OTP had announced the beginning of a formal
investigation into large-scale sexual crimes in the Central African Republic
(CAR), two and a half years after the CAR authorities had referred the
situation to the Court. Those who considered the JCCD ˜˜too political™™
hoped that staff turnover would inject more criminal-law expertise into the
intake end of the engine; others were concerned that investigative opera-
tions were underpowered. Moreno Ocampo™s admirers argued that he was
effectively learning on the job, that the OTP was gathering momentum, and
that he was making the best of very dif¬cult situations. Resistance to the
engine came both from without, in extraordinarily challenging operational
environments, and from frictions generated within the Court itself.


INTERNAL FRICTIONS

During its ¬rst ¬ve years, the ICC moved from a tiny advance team to a
large operational organization, expanding while simultaneously pursuing
investigations and initiating court proceedings. Under pressure to begin

36
Interview, 2006.
121
Building the Court

operating quickly, the top staff experienced both the awkwardness of the
Court™s tripartite structure and confrontations among the three units as they
sought to protect their roles. Three con¬‚icts exempli¬ed these tensions.
First, the Registrar and Prosecutor clashed over administrative and com-
munications responsibilities. Second, the OTP struggled to retain its inde-
pendence against the Pre-Trial Chambers (PTCs) intent on ful¬lling what
they considered to be appropriate guidance responsibilities. Third, and in an
additional demonstration of rivalry between the OTP and the PTC, after the
Prosecutor raised questions about an appearance of possible bias on the part
of the pretrial division, a long battle ensued over procedures for resolving
the dispute.


OTP versus Registry
The Registry and OTP clashed on numerous occasions, leading to relations
between the Chief Prosecutor and the Registrar that some observers
described as poisonous. Among NGOs, it was reputedly the case that, for
long periods of time, Moreno Ocampo and Cathala were not on speaking
terms. The con¬‚icts emerged from the structural characteristics of the Court
and the efforts of its top leadership to preserve prerogatives of their of¬ces
and to pursue what they believed to be the imperatives of the Statute.
Controversies arose over, among other things, how hiring processes would
be implemented, how information would be transferred, and who would be
the primary conduit of communications to states.
When the Chief Prosecutor began building up the of¬ce, he argued that,
for the purposes of prosecutorial independence, all hiring activities should
be undertaken by his own staff. At the same time, however, the Registry™s
Human Resources Section had overall responsibility for recruitment. The
two of¬ces clashed over how personnel recruitment would take place until
an adverse report from the ASP™s Committee on Budget and Finance
rejected the Prosecutor™s argument, on the grounds of bureaucratic dupli-
cation. Hiring was consolidated under the Registry. Under a negotiated
agreement, the OTP would write the job descriptions and conduct candi-
date screening, while the Registry would carry out recruitment and other
administrative functions. The ¬nal hiring decisions for the Prosecutor, of
course, remained with the OTP.
As part of its duties, the Registry provides translation and record-keeping
services, security, and data management technology and has the responsi-
bility to record all transactions such as the transmission of documents
between the prosecution and the Chambers. As the Lubanga (Congo) case
122 Building the International Criminal Court

got under-way in the spring of 2006, a dispute emerged over the proper role
of the Registry in the area of evidence disclosure. Once Thomas Lubanga™s
defense counsel had been selected and began to work, the prosecution was
required to turn over all evidence to the defense except for materials that
might undermine witnesses™ safety.
The Registry proposed a disclosure system under which all evidence to be
turned over to the defense would ¬rst go to the Registry to be recorded, as
the Registrar believed appropriate under the Rules of Procedure and Evi-
dence. The OTP objected, proposing instead that materials be delivered
directly to the defense, with a record of what was turned over to be
delivered to the Registry. Wrangling before the judge demonstrated that
what was at stake was the degree of involvement of the Registry in the
substantive process of disclosure. The OTP sought to keep the Registry™s
role to a minimum; the Registry, acting perhaps in pursuit of the vision of a
civil proceeding in which a ˜˜dossier™™ is developed that fully describes the
case and evidence for eventual use by the judges, appeared to be inserting
itself deeply into the substance of the proceedings.
The PTC ultimately approved the process by which the OTP would turn
materials directly over to defense, with records of the transactions turned over
to the Registry. Meanwhile, it was just one of several points of con¬‚ict between
the OTP and Registry that characterized the early operations of the Court.
The Statute gives to the Registry the responsibility for arranging with
governments the transfer of individuals to be brought for questioning or
incarceration. When the Prosecutor requested of the PTC that an arrest
warrant be issued for Lubanga, he also asked that the arrest warrant be kept
secret until he was ready to publicize it, and that he be empowered to
negotiate with the Congolese authorities for the transfer of the suspect to
The Hague. The PTC decided to issue the arrest warrant but also to pub-
licize it and to assign to the Registrar the task of arranging Lubanga™s
transfer to the Court. It appeared that the OTP had sought to increase its
area of autonomy into a greater role interacting with the state, under the
JCCD; however, the judges defended the Registry (see Chapter 7).


Common Law versus Civil Law and the Prosecutor versus
Pre-Trial Chambers
In the inquisitorial, civil-law system, judges are actively engaged from early
stages in a judicial proceeding and thus help to set the pace of the pro-
ceedings. They are expected to absorb large amounts of substantive
123
Building the Court

information from the prosecution prior to the courtroom proceedings,
which reduces the amount of time spent in open court. Investigating judges
or magistrates help guide the collection of evidence, and judges in court may
seek to verify evidence by asking witnesses questions. In the end, trial judges
decide upon guilt or innocence on the basis of their expert evaluation of
the facts of the case. Prosecutors are expected to provide exculpatory as
well as incriminating evidence to the Court. Much of the case may be
presented to the judge in a trial dossier consisting of evidence and written
reports prior to court hearings. Evidentiary rules are less strict than the
common-law system, with judges ruling on admissibility questions and
balancing the weight given to particular evidence against its quality and
mode of collection.
In contrast, in the common-law, accusatorial, adversarial process,
judges are not exposed to the substance of cases prior to their appearing in
court but are neutral ˜˜umpires™™ of a contest between prosecution and
defense, making sure that the process is fair and legal in order that a jury
can reach a decision about guilt or innocence. Cases are initiated and
driven by prosecutors who exercise discretion about what to pursue,
having received allegations of violation by victims or law enforcement
of¬cials. Prosecutors assemble and lead cases against alleged perpetrators,
while defense lawyers seek to demonstrate that accusations cannot be
proven ˜˜beyond a reasonable doubt.™™ Since the jurors are not trained to
evaluate the quality of evidence, evidentiary rules are very explicit,
and evidence is presented in court in conjunction with direct testimony.
No substantive pretrial or written evidence constitutes part of the trial
record.
In the ICC™s combination of the two systems, the Of¬ce of the Prosecutor
drives the system by bringing cases to the Pre-Trial Chamber for approval of
a formal investigation and then returns with a report of the investigation
and possibly recommendations that warrants of arrest be issued. Thus,
the PTC can exercise considerable control over the OTP. With the PTC
dominated by civil-law judges, they sought to play larger roles than the
OTP believed appropriate.
Former ICTY judge and President Claude Jorda, elected to the ICC
judiciary in 2003, was appointed to the PTCs by Court President Kirsch.
His chamber (PTC I) sat on the Democratic Republic of the Congo situation
as it moved through ICC proceedings. Jorda had published and spoken
eloquently from the time he was on the ICTY about the need to make trial
procedures more ef¬cient, stating at one point that ˜˜a trial should never last
124 Building the International Criminal Court

more than eighteen months total™™37 and calling for more vigorous moni-
toring and shaping of trial procedures by the judges.
A French judge with extensive trial experience, Jorda was quite explicit
in his advocacy of civil-law mechanisms to control prosecutors, to speed
trials, and to shift the emphasis toward victims. Dealing with the DRC
situation, it soon appeared that the division of labor and authority between
the PTC and the OTP would be a major area of contention in the devel-
opment of the practice of the ICC. In general, the PTCs for both the DRC
and Uganda sought much deeper involvement than the OTP appeared
prepared to accept, but since the role of the PTCs had not been de¬nitively
spelled out in the Statute and rules, precedents established in Court “ and
possibly by the decisions of the Appeals Chamber “ will determine future
practice.
Judge Jorda wrote in June 2005 that the ICC PTC did not ¬t the mold of
existing civil-law structures, being the equivalent of neither an investigating
magistrate nor an investigating chamber. ˜˜It is dif¬cult today to de¬ne the
pre-trial procedure of the ICC within the context of an existing national or
international procedural system,™™38 he observed, and went on to argue that
the role of the PTC would be worked out in operation. In Jorda™s view, the
PTC was intended to help protect the interests of the states, the defense, and
the victims, with the ˜˜ultimate goal™™ of ensuring the integrity of the pro-
ceedings.39 As pretrial proceedings continued, PTC I took measures that
appeared to interpret its duties broadly, including seeking to accelerate OTP
activities, much to the apparent dismay of the Prosecutor. Jorda appeared to
be pressing his idea that the Pre-Trial Chamber was the ˜˜embryo of a true
Investigative Chamber™™40 that would play a large role in steering the
Prosecutor.
It is conceivable that some form of consultation between judges and the
OTP in advance of formal proceedings could have narrowed areas of dif-
ference between them; however, efforts in this direction failed. After formal
proceedings began, OTP personnel explained the formalities as being more
open for other potential parties to disputes (such as victims or defense
attorneys) than informal agreements would have been.41 The initial tool

37
Petit, ˜˜Interview: Claude Jorda, Judge at the International Criminal Court™™ (2005), 4.
38
Jorda and Saracco, ˜˜The Raisons d™etre of the Pre-Trial Chamber of the International
Criminal Court™™ (2006), 1.
39
Ibid., 2.
40
Jorda, ˜˜The Major Hurdles and Accomplishments of the ICTY: What the ICC Can Learn
From Them™™ (2004), 578.
41
Interviews.
125
Building the Court

used by PTC I was the ˜˜status conference,™™ a meeting to which it sum-
moned the OTP to report on the progress of its investigations. As described
further in Chapter 7, the OTP has complied with these requests with
something less than enthusiasm, ¬nding them to be PTC interference with
the OTP™s independence. The status conference was used frequently by the
ICTY judges to gain information about the Prosecution™s intentions. While
the mechanism isn™t foreseen in the ICC Statute or rules, judges with ICTY
experience brought it with them and began scheduling such conferences
when they felt that the information ¬‚ow from the OTP was too sparse.
In the late spring of 2006, PTC I used another device, this one based in
the ICC Statute, to increase its role in directing prosecution activities. Out
of mounting frustration that, despite a year of investigations following the
OTP™s receipt of the report of the Commission of Inquiry on Darfur, ICC
investigations were not yet taking place in Darfur and warrants of arrest did
not appear to be close, the PTC asked for comments from two amicus curiae
(friends of the court) known to be critical of the ICC™s slow progress, in
effect pressurizing the OTP to accelerate its activities (see Chapter 7).


Judges Have the Last Word
Interorgan tensions that bear upon cases before the Court ultimately wind up
coming before the judges. As these matters are sorted out, accumulated judicial
precedents and standardized procedure should reduce the level of internal
strife and confusion, and the Court should be able more ef¬ciently to expend
efforts on its investigations and cases. However, there is no guarantee that such
con¬‚icts themselves will be decided expeditiously, as shown by a controversy
that began in early 2006 involving the OTP, the Uganda and Congo PTCs, and
the Presidency. The prosecution charged that since the newly appointed senior
legal adviser to the Pre-Trial division (all the pretrial judges), Gilbert Bitti, had
previously worked for the OTP, he should be barred from being in any way
involved in the Uganda and Congo cases because such involvement would
raise the appearance of a potential lack of PTC judicial neutrality. After eleven
months of acrimonious legal briefs, no de¬nitive decision was reached.
Bitti had been a member of the French delegation to the Rome Confer-
ence, and subsequently to the PrepCom. Soon after the ICC began operating
in July 2002, he joined the Court, serving ¬rst in the Registry and, from
January 1, 2004, as Morten Bergsmo™s deputy in the OTP legal advisory
section. In October 2005, Bitti left his position with the OTP to become the
senior legal adviser to the Pre-Trial division, working on legal matters
assigned to him by the judges of the division.
126 Building the International Criminal Court

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