Prosecutor survives, but only just

An appeals chamber at the International Criminal Court has just overturned the decision of the trial chamber to release Thomas Lubanga, the alleged Congolese warlord who was the first defendant to stand trial.

The judgment is available here.

Appeal judges confirmed that the prosecutor, Luis Moreno-Ocampo, had no justification for deliberately refusing to obey court orders to disclose the name of an intermediary.

But the appeal chamber said the trial judge should have tried punishing Moreno-Ocampo to see whether sanctions would have persuaded him to comply with court orders.

They decided that it was still possible for Lubanga’s trial to go ahead.

The court said:

Recourse to sanctions enables a Trial Chamber, using the tools available within the trial process itself, to cure the underlying obstacles to a fair trial, thereby allowing the trial to proceed speedily to a conclusion on its merits.

Doing so, rather than resorting to the significantly more drastic remedy of a stay of proceedings, is in the interests, not only of the victims and of the international community as a whole who wish to see justice done, but also of the accused, who is potentially left in limbo, waiting a decision on the merits of the case against him by the International Criminal Curt or another court.

Accordingly, the Appeals Chamber finds that, to the extent possible, a Trial Chamber faced with a deliberate refusal of a party to comply with ts orders which threatens the fairness of the trial should seek to bring about that party’s compliance through the imposition of sanctions under article 71 before resorting to imposition of a stay of proceedings.

In predicating the stay of proceedings on its perceived loss of control over proceedings from that point forward, the Trial Chamber did not conclude that a fair trial already had become irreparably impossible.

To the contrary, the Trial Chamber considered that, if the circumstances changed, a fair trial could conceivably become possible once again. There was, as such, no obstacle to imposing sanctions and allowing them a reasonable opportunity to induce compliance and, therefore, to change the very circumstances which made a fair trial prospectively impossible.

In the view of the Appeals Chamber, the Trial Chamber therefore exceeded its margin of appreciation when it found that it had lost control of the proceedings and that, consequently, a fair trial had become impossible and a stay of proceedings was required.

It is the view of the Appeals Chamber that, before ordering the stay of proceedings, the Trial Chamber should have imposed sanctions and given such sanctions a reasonable time to bring about their intended effects.

Moreno-Ocampo looked grim as a summary of the judgment was read out by the president of the court, Judge Sang-Hyun Song. Until the judge reached the passage quoted above, it looked as if if Moreno-Ocampo’s first trial at the International Criminal Court was about to end in an acquittal because of the prosecutor’s stubborn and arrogant failure to obey the law.

For some two years, I have been calling on Moreno-Ocampo to resign. Only somebody with no feeling for the rule of law could stay in office after appeal judges had confirmed that he was in contempt of court and deserved to be fined until he obeyed court orders.

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