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Joshua Rozenberg
Thursday 27th May 2010
Court Deprecates Misleading and Prejudicial Prosecutor

Judges at the International Criminal Court have expressed "the strongest disapproval" of a "misleading and inaccurate" media interview given by one of three deputies to the court's prosecutor.

Béatrice Le Fraper du Hellen, head of the Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor, was found to have spoken about a case currently before the court "in a manner that is prejudicial to the ongoing proceedings". The judges "deprecated" remarks that "seriously intruded" on their own role.

Trial Chamber I, the three-judge court headed by Sir Adrian Fulford that is currently trying Thomas Lubanga on charges of conscripting child soldiers, concluded its decision by warning Le Fraper du Hellen that she faced contempt charges if she repeated her behaviour. It said:

Although on this occasion the Chamber does not intend to take any action beyond expressing the strongest disapproval of the content of this interview, if objectionable public statements of this kind are repeated the chamber will not hesitate to take appropriate action against the party responsible.

The ruling was issued on May 12 but has not yet appeared on the court's website. Nor has it been circulated by the prosecutor's own media department or by his newly-established Public Information Unit.

Le Fraper du Hellen's interview with a website devoted to the Lubanga trial was published in March. It can be read here. In it, she praised her boss, Luis Moreno-Ocampo, as "a very accurate and fair prosecutor" and said of the defendant: "Mr Lubanga is going away for a long time."

She added: "Mr Lubanga, he is making signs to the audience, he is smiling, he is doing a lot of body language - it is very terrifying for the children to testify in front of him."

It its judgment, the court noted that, for reasons of security, a very considerable part of the proceedings had taken place with the press and public excluded. In these circumstances, the public needed to trust the published statements of those involved in the case.

Most importantly, and as a matter of professional ethics, a party to proceedings is expected not to misrepresent the evidence, to misdescribe the functions of the parties or the Chamber, or to suggest or imply without proper foundation that anyone in the case, including the accused, has misbehaved...

In our judgment, respecting the Chamber, the judicial process and the other participants involves speaking publicly about the proceedings in a fair and accurate way, and avoiding any comment about issues that are for the Chamber to determine.

Ms Béatrice Le Fraper du Hellen's remarks during this press interview breached these restrictions in a manner that is prejudicial to the ongoing proceedings (in the sense that they tend to prejudice the public's understanding of the trial), which tends to bring the Court into disrepute.

The court found that Le Fraper du Hellen had given her view about issues that the court had yet to determine, such as the behaviour of intermediaries in the field who had put prosecutors in touch with witnesses.

From the outset of the case, there has been an issue as to whether some or all of the alleged child soldiers have told the truth about their identities and their histories. In those circumstances, it was additionally inappropriate for the prosecution representative to describe the witnesses unequivocally as very courageous and brave child soldiers, who were, in her view, very credible...

In addition, the remark by the prosecution representative that the Prosecutor had disclosed all the exonerating evidence to the defence in a very timely manner was incorrect and misleading...

The criticism in the press interview suggesting that the defence has failed to respect its disclosure obligations was equally incorrect.

The court made no attempt to conceal its disapproval of the prosecutor's representative.

Ms Béatrice Le Fraper du Hellen seriously intruded on the role of the Chamber in her unequivocally expressed conclusions - before the end of the evidence, the submissions of counsel and any decisions on the part of the Bench - that there has been no abuse of the process by the prosecution; that the defence argument is "just talk"; that the Chamber will reject the defence submissions ("nothing is going to happen"); and that the accused will be convicted, and this will be followed by a long sentence ("Mr Lubanga is going away for a long time").

The Chamber further expresses its concern regarding the incorrect statements of the prosecution representative, alleging misbehaviour by the accused, without justification. In the representative's statement set out at quotation 12, the wholly false impression was created that the alleged former child soldiers had given evidence whilst confronted by Mr Lubanga who was making signs and using body language, thereby frightening them ("it is very terrifying for the children to testify in front of him").

By failing to refer to any of the protective measures (most particularly the Chamber's express order that the witnesses were in each instance to be wholly shielded from the accused, with the result they did not see him at any stage during their evidence) and by juxtaposing the fear of the witnesses and the presence of Mr Lubanga when he was allegedly "making signs", smiling and using body language, the prosecution representative's remarks invited, deliberately or otherwise, the clear conclusion that the witnesses could see the accused and that they were being intimidated by him. This was a seriously misleading statement on the part of Ms Béatrice Le Fraper du Hellen...

Creating the false impression that an accused is intimidating witnesses could well serve to discourage others from participating in the Court's cases, thereby damaging the legitimacy of the institution, and its ability to function.

The Chamber is wholly uninfluenced by these misleading and inaccurate remarks, but it deprecates the prosecution's use of a public interview, first, to misrepresent the evidence and to comment on its merits and weight, and including by way of remarks on the credibility of its own witnesses in the context of a trial where much of the evidence has been heard in closed session with the public excluded; second, to express views on matters that are awaiting resolution by the Chamber, thereby intruding on the latter's role; third, to criticise the accused without foundation; and, finally, to purport to announce how the Chamber will resolve the submissions on the abuse of process application, and, moreover, that the accused will be convicted in due course and sentenced to lengthy imprisonment at the end of the case.

The court made no criticism of the website that published the interview with Le Fraper du Hellen, who has responsibility for liaising with foreign governments. The website had shown a draft of the interview to the prosecutor's office ahead of publication "and changes were suggested to the proposed text, all of which were apparently incorporated". In submissions to the court, Le Fraper du Hellen "suggested that the interview was ‘off-the-record' and ‘private'". She denied that her remarks were intended to prejudge the outcome of the trial and argued that her observations "did not tend to diminish the role of the court".

Le Fraper du Hellen heads one of three divisions reporting to Moreno-Ocampo. Now that this judgment has emerged, it is difficult to see how she can remain in her job. The prosecutor should ask for her immediate resignation. If he maintains that she behaved appropriately, then he should resign.

I have criticised the prosecutor more broadly in my column for today's Law Society Gazette. This ruling simply reinforces my arguments. Moreno-Ocampo and his deputy simply do not understand the difference between a prosecutor and a court, between allegations and proof. It is an extraordinary state of affairs - and one that I predict the 111 states meeting next week to review the court's first eight years will treat with indifference and complacency.

 
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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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