Integrity with fairness: Confronting witness interference at the ICC
The Discussion Paper, ‘Offences against the administration of justice and fair trial considerations before the ICC’ draws on court documents and consultations with practitioners to analyse the current practices and assess how Article 70 proceedings fit in with the requirements of fairness and due process, and to provide the basis for a policy-level discussion on this important area of the ICC’s work.
New IBA Discussion Paper on ‘Offences against the administration of justice and fair trial considerations before the International Criminal Court’
Article 70 of the Rome Statute criminalises behaviour that seriously undermines ICC proceedings, including witness interference in the form of intimidation, corruption and threats. These crimes fall under the broad umbrella of acts that threaten the integrity of the Court, also referred to as ‘contempt of court’.
The Discussion Paper looks at contempt investigations and prosecutions from a comparative perspective, taking into account the practices of other tribunals. It examines the two most significant contempt investigations that have taken place at the ICC to date. In the Bemba et al case, Trial Chamber VII found Jean-Pierre Bemba Gombo, two members of his defence team and two associates guilty of corruptly influencing 14 defence witnesses and presenting false evidence to the Court in the Bemba main case. In the Ntaganda case, allegations of attempted witness interference by the accused were first made in the pre-trial period, and have continued to be raised by the Prosecution during the ongoing trial.
What are the key areas covered by the 2017 IBA Discussion Paper?
Implementing the ICC’s jurisdiction over offences against the administration of justice consistent with international standards of fairness
The ICC, along with other international criminal courts and tribunals are held to the highest standard of fairness, due to their role as international standard setters, and due to the importance of fairness for the legitimacy of the institution. The Rome Statute makes clear that the same standards of procedural fairness apply to all proceedings at the ICC, including contempt proceedings.
At the ICC, a number of Article 70 investigations have involved an accused in detention and facing trial on other charges. The IBA urges special attention to the rights of such persons, in particular as individuals in custody are in a more vulnerable position and do not benefit from the same due process protections during the investigation as they are due during a trial.
The roles of the prosecution and judges in implementing Article 70 offences
In the Discussion Paper, the IBA notes that the ICC’s framework for addressing these crimes differs in some respects from that of other international criminal tribunals. While the ICTY, ICTR, STL and SCSL have all conducted investigations and prosecutions into contempt cases, at those tribunals judges held the discretion to investigate and prosecute contempt, whereas the ICC places that discretion with the Prosecutor.
This has led to calls to amend the Rome Statute to give the mandate to judges instead of the Prosecutor. However in light of the Court’s jurisprudence that has confirmed the Prosecutor’s discretionary mandate to investigate contempt cases, and given that amending the Statute is a long and difficult process, the IBA makes a number of recommendations to ensure the current mandate is implemented fairly. These include developing clear guidelines and policies regarding conflicts of interest for OTP staff appointed on Article 70 and Article 5 cases, and ensuring that all contempt allegations are investigated thoroughly and transparently, no matter whether they are raised by the prosecution, defence, or chamber.
The IBA also underscores the important role of judges in both the pre-trial and trial chambers. Pre-trial chambers, in presiding over the prosecution’s investigation into suspected contempt, are called on to strictly limit ex parte proceedings, ensure representation for the rights of the accused where appropriate, ensure timely and complete disclosure, and protect the privacy and legal privilege of the accused in detention. The trial chamber is called on to ensure that a pre-trial chamber takes over any investigation at the earliest possible moment that contempt allegations are made, to ensure that the ‘main case’ is not unduly affected by the contempt investigation. Trial chambers can also strictly limit the use of material derived from the contempt investigation in the main case.
Taking Article 70 forward
With this Discussion Paper, the IBA seeks to prompt further examination and discussion of policy-level issues that affect the fairness of the ICC’s investigation and prosecution of Article 70 matters. As noted throughout the report, a number of the issues addressed are before the Appeals Chamber in the Bemba and Bemba et al cases, which will in time bring additional guidance on these practices.
In addition to the roles of the OTP and chambers in ensuring that the Article 70 mandate is implemented with full respect for the rights of the accused, the IBA also urges States Parties to ensure that they have domestic legislation in place to prosecute contempt, in keeping with Rome Statute requirements.
Allegations of witness interference and other offenses against the administration of justice remain a pressing concern for the Court, and must be addressed to protect the integrity of its proceedings. It is hoped that, over time, any allegations brought under Article 70 will follow a consistent and transparent set of procedures, with additional necessary safeguards for the rights of the accused.
About the IBA ICC & ICL Programme
The IBA International Criminal Court and International Criminal Law (ICC & ICL) Programme monitors issues related to fairness and equality of arms at the ICC and other Hague-based war crimes tribunals and encourages the legal community to engage with the work of these Courts. The IBA’s work includes thematic legal analysis of proceedings, and ad hoc evaluations of legal, administrative and institutional issues which could potentially affect the rights of defendants, the impartiality of proceedings and the development of international justice. Based at the Peace Palace in The Hague, the ICC & ICL Programme consults and interacts with Courts’ officials, civil society organisations, academics and international lawyers.
