By Tobias Thienel

Trial Chamber I of the International Criminal Court has, as of last Friday, struck a blow to the Prosecutor, by staying – possibly forever – the Court’s most advanced case. Moreover, the Trial Chamber didn’t exactly hold back in its criticism of the Prosecution. It held that the Prosecution had seriously violated the defendant’s right to a fair trial, and further that the violation had ‘ruptured [the trial process] to such a degree that it is now impossible to piece together the constituent elements of a fair trial.’ Now that’s tough. The decision centres in part on an issue I have previously written about, the fair trial problem posed by secret evidence kept from the defendant. The problem, in the barest outline, was this: the Prosecution has concluded agreements with the United Nations and other actors to obtain evidence against the defendant, under which any evidence obtained was not to be disclosed to anyone other than the prosecutors. This meant that no such evidence could be either (a) disclosed to the Defence, or (b) shown to the Chamber so it might decide on disclosure. This obviously applied to all evidence obtained in this way, whether tending to prove the defendant’s guilt, or exculpatory. The Prosecution claimed a power to do this under Article 54(3)(e) of the Rome Statute of the ICC. That provision authorises the Prosecutor to ‘agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of obtaining new evidence, unless the provider of the information consents.’ The Defence now contended that Article 54 did not in fact authorise the Prosecution to do as it did, and that its chosen approach meant that the Prosecution would fail in its obligation to disclose all exculpatory evidence to the Defence, which it has under Article 67(2) of the Rome Statute. The Court agreed. It explained, first of all, that Article 54(3)(e) of the Statute was to be used only exceptionally, and certainly not in the routine way in which the Prosecution had appeared to apply it. The article also envisaged, the Court held, that the Prosecution would use the material kept secret under Article 54(3)(e) of the Statute to uncover further evidence. That further evidence would not be confidential; it would be used at trial, whereas the secret material itself would never have been adduced in evidence. It would have been lead, or springboard, evidence, as Judge Fulford and now the Trial Chamber have called it (see paras 71-74). I guess this would have meant that all secret evidence would have been an internal matter to the investigation, and would therefore tend to be neither exculpatory nor evidence against the accused. Few problems of disclosure would have arisen (see para 76 of the decision). The article would therefore not have caused too many issues of fairness. Also, as the Trial Chamber notes, to the extent that problems could still have arisen, limited exceptions might have been put in the agreements with the information-providers (para 76 again). The Court further decided that the right to a fair trial (under Article 67(1) of the Statute) itself implied a right to the disclosure of potentially exculpatory evidence (otherwise expressly guaranteed in Article 67(2) of the Statute, but that might not – for want of authority – have allowed the conclusion that disclosure trumps confidentiality). To that end, the Court cited a wealth of authority, both from international criminal tribunals and from the European Court of Human Rights (paras 77-81). It had regard to the latter because Article 21(3) of its Statute enjoined it to apply its principal sources of law consistently with international human rights law. [Incidentally, given that the presiding judge was Sir Adrian Fulford, an English High Court judge, we may perhaps wonder if the Trial Chamber may also have read the fairly recent House of Lords case on secret evidence (if in civil proceedings), Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440. In that case – on which I had a few comments here – the House had decided that it might be impossible to hold a fair trial where a private party in administrative proceedings would not be told of the government’s evidence against his case. The government was therefore given a choice whether to do without the secret evidence, or de-classify it. But, of course, MB isn’t perfectly in point, not only because it was a civil case, but also because it was all about the use of secret evidence, not about failure to disclose it to the other party. Also, being a domestic case, even if one on the ECHR, it may not have been good enough authority to be cited.] The Trial Chamber further held that human rights law required the decision on disclosure to be for the judges where necessary. It was not acceptable that the decision on disclosure should be made by the Prosecution alone, and that the Court would never be in a position to look at the material to determine whether it must be disclosed or not (paras 82-89). Having found violations of the defendant’s right to a fair trial, the Trial Chamber went on to decide on the consequences. Here it clarified that it did not (need to) attribute any mala fides to the Prosecution. That at least is a somewhat face-saving aspect for the Prosecution. On the other hand, it made it easier for the Trial Chamber to arrive at its finding of an (objective) abuse of process. This finding meant that the Trial Chamber imposed a stay on the proceedings. It specifically held that ‘the essential preconditions of a fair trial [were] missing’ and even that there was ‘no sufficient indication that this [would] be resolved during the trial process’ (para 91). I suppose this may be the point at which reasonable people could disagree. If the Appeals Chamber wishes to vacate the Trial Chamber’s principled ruling, it may well be minded to do so on this point. There may conceivably be room for manoeuvre for the Prosecution, such that a fair trial may yet be possible. The Prosecution might, for instance, again seek to obtain the information-providers’ consent for release of any exculpatory information it may have obtained under Article 54(3)(e) agreements. As things stand now, I wouldn’t be at all surprised if that was precisely what the Prosecution is pursuing now (in addition to an appeal?). Nor would I be surprised if such consent was now forthcoming, now that the Trial Chamber has pretty much made such consent a prerequisite of this important case proceeding. This is a critically important point because any mistake on it may mean that the Trial Chamber has failed to attach enough weight to the interests favouring prosecution. The Trial Chamber has noted that its decision meant that issues ‘of significance to the international community’ will not now be decided, and that ‘the victims have, in [a] sense, been excluded from justice’ (para 95). Still, the Appeals Chamber had directed in a previous decision in Lubanga (para 39) that only a situation where ‘the constituent elements of a fair trial’ can no longer be pieced together is sufficient to outweigh ‘the interest of the world community to put persons accused of the most heinous crimes against humanity on trial.’ The Appeals Chamber of the ICTY had chosen a similar balancing test in Prosecutor v Nikolic (paras 29-32), ostensibly requiring egregious violations to be proved before it would set aside jurisdiction. However, it is, of course, arguable that such a violation has been proved in Lubanga. The gravity of the charge, after all, is not only relevant as strengthening the societal interest in prosecution, but it also greatly increases the exigencies of a fair trial (see MB, cited above, para 24). But however that may be, the decision of last Friday seems on any view impressive. It has, admittedly, said some rather less than nice things about the Office of the Prosecutor, but I would suggest that, on balance, this is a good thing. The Court has shown that it is going to interfere if it judges that to be necessary. That is almost immeasurably better than if the Court had glossed over violations committed by the Prosecutor in the – supposed – interest of public relations. In doing its job properly, the Court is doing everyone a huge service. [Incidentally, the House of Lords decided a case on anonymous witnesses on Wednesday – holding that it would be unfair for a conviction to be based only or largely on the evidence of such witnesses – in which it sounded a cautionary note about all and any secret evidence. In particular, Lord Mance reviewed the practice of international criminal tribunals, and recounted one especially impressive story: in Tadic, the ICTY had decided, over the dissent of Judge Sir Ninian Stephen later vindicated in Blaskic, that the identity of witnesses could be concealed from the defence. One such witness then told the Tribunal how he had seen the accused murder 30 people, including the witness’ own father. The defence later managed to identify the witness, and to find his father, who has very much alive. Only faced with this did the witness admit that he had been coached to give false evidence. (See R v Davis [2008] UKHL 36, para 93)]