decision on the prosecutions urgent request for variation of the time-limit to disclose the identity...

8/9/2019 Decision on the Prosecutions Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary

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CourPnale i(^ A m C ^I n t e r n a t i o n a l e s

i n te rn a t i o n a l ^ % ^ ^ ^C r i m i n a lC o u r t

Or igin al : E ng lis h No .: ICC-01/04-01/06Date : 8 Jul y 2010

T R I A L C H A M B E R I

Befo re : Jud ge Ad r i an Fu l fo rd , P re s id in g Jud geJudge E l i zabe th Od io Ben i toJ u d g e R e n B l a t t m a n n

S I T U AT I O N I N T H E D E M O C R AT I C R E P U B LI C O F T H E C O N G OIN THE CASE O F

T H E P R O S E C U T O RV. THOM AS LUBANGA DYILO

P u b l i c

Redac t ed D ec i s ion on the P rosecu t ion ' s Urgen t Re que s t fo r Var i a t i on o f t he Tim e-Lim i t to Disc lo se the Iden t i ty of In te rm ed iary 143 or Al te rn a t ive ly to S tay

Proceed ings Pend ing Fu r the r Consu l t a t i ons w i th t he VWU

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Dec ision/O rder/Jud gm ent to be notified in accordance wit h regula tion 31 of the Regulations of theCourt to:

The Office of the ProsecutorMr Luis Moreno Ocam poMs Fatou Bensouda

Coun sel for the D efenceMs Catherine MabilleMr Jean-Marie Biju-Duval

Legal Repre sentatives of the VictimsMr Luc W alleynMr Franck MulendaMs Carine Bapita Buyan ganduMr Joseph Keta Orw inyoMr Jean Chrysostome Mulam baNsokoloniMr Paul Kabongo T shibangu

Mr H erv D iakiese

Legal Represen tatives of the A pplicants

Unrepresented Victims Unrepresented Applicants forParticipation/Reparation

Th e Office of Pub lic Co unse l for Th e Office of Pub lic Co uns el for theVictims Defence

Ms Paolina M assidda

States Representatives Amicus Curiae

REGISTRY

RegistrarMs Silvana Arbia

Defence Support Section

Victims an d W itnesses Un itMs Maria Luisa Martinod-Jacome

Detention Section

Victims Participation and Repa rations Othe rSection

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("VWU") and was furnished with a report on the securi ty s i tuat ion for 143.^

Under the f inal orders , the Chamber ordered the Office of the Prosecutor

("prosecution") to disclose confidential ly to the defence the names, and other

necessary identifying information, of interm ediar y 143 once the necessary

protec t ive measures hav e been implemented .^

3. O n 3 June 2010, the Cha mb er w as informed that following discussions

betw een repre sentat ive s of the prosec ution and 143 abou t the im pen din g

disclosure of his identi ty, the VWU was confident that i t would be able to

imp lem ent protect ive m easu res for him by 13 June 2010, subject to his

wil l ingne ss to comply.^ O n 8 June 2010, the Cha mb er w as informe d that

because of certain part icular domestic arrangements for the intermediary -

who had been spoken to aga in - the measures would be put in p lace ,

following a delay, d ur ing the we ek of 5 July 2010.^ Fu rthe r disc ussion s abo ut

the date of implem enta t ion o ccurre d on 9 and 10 June 2010, and i t has not

been reported to the Chamber that at any stage during these exchanges the

in termediary indica ted doubts about the proposa ls , or foreshadowed a

possible refusal to comply.^^

4. O n 16 Jun e 2010, du rin g closed session, the following exc han ges occurred.12

D urin g defence quest io ning of witn ess 581, the witne ss was sh ow n the ful l

na m e of interm edia ry 143, as wr i t ten d ow n by prose cution counsel on a piece

of paper. He confirmed that this individual is an intermediary for the

prosecut ion . ^ A little later, in private session, defence counsel put the

fol lowing name to the witness [REDACTED], to which he responded "that 's

^ See ICC-01/04-01/06-2434-Conf-Exp and ICC-01/04-0l/06-2434-Red2, paragraph 42; Victims and WitnessesUnit's report on intermediary D RC-OTP-W WW W-0143, 6 May 2010 , ICC-01/04-01/06-2422-Conf-Exp.^ ICC-01/04-01/06-2434-Conf-Exp and ICC-01/04-01/06-2434-Red2, paragraph 150 i).^ Email com munication from the VWU to a Legal Officer of the Trial Division, 3 June 2010.^ Email com munication from the VWU to a Legal Officer of the Trial Division, 8 June 2010.^ Email co mm unication from the VW U to a L egal Officer of the Trial Division, 9 June 2010; Emailcomm unication from the VWU to a Legal Officer of the Trial Division, 14 June 2010.2 Transcript of hearing on 16 June 2010, ICC-01/04-01/06-T-302-CONF-ENG CT. Although this transcript is

marked con fidential, the m ajority of the submissions and evidence referred to occurred in public session.^ ICC-01/04-01/06-T-302-C ONF-E NG CT, page 39, lines 12 - 2 3.

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the name of Mr 143".^^ The prosecution accepted that at least to a certain

extent, adopting the expression of the Presiding Judge, the cover of 143 was

" b l o w n " . i 5

5. The Cham ber w as informed on 21 June 2010 that 143 had b een told abou t

what had happened in court, as set out above, and he responded that he was

satisfied with the current arrangements and had no further security concerns.

Also, plans continued for the implementation of the full security measures in

ea rly July 2010.16

6. However, on 6 July 2010 the Chamber was informed that the security

measures could not be put in place because 143 either rejected them outright

or intende d to require adjustments.^^ The Chamb er w as informed by the VWU

that, inter alia, a significant financial component had been raised by 143.

D urin g subm issions on 6 July 2010, ^ the prosecu tion explained that th e

witness wanted the entire proposal set out in writing, so that it could be

discussed w ith h im b y F riday 9 July 2010. ^ If 143 agree s to these m easu res, the

Chamber was told that they cannot be implemented until, at the earHest,

Friday 16 July 2010.2

7. The defence prop osed a comprom ise, nam ely that it received full disclosu re of

the identifying inform ation for 143, for use in question ing in private session

only, with the information restricted to the core defence team in court, Mr

Lubanga and the long-term "resource person" in the Democratic Republic of

^ ICC-01/04-01/06-T-302-C ONF-E NG CT , page 55, lines 15 - 17.^ ICC-01/04-01/06-T-302-CO NF-EN G CT, page 58 , lines 14 - 16.6 Email com munication from the VW U to a Legal Officer of the Trial Division, 21 June 2010.^ Email communication from the VWU to a Legal Officer of the Trial Division, 6 July 2010; Transcript ofhearing on 6 July 2010, ICC-01/04-01/06-T-310-CONF-ENG FT, page 1, lines 15 - 25. Although this transcriptis marked confidential, the submissions and decisions refened to occun ed in public session.^ ICC-01/04-01/06-T-310-CONF-ENG FT.^ ICC-01/04-01/06-T-310-C ONF -ENG ET , pages 56, lines 13 - 22.2 ICC-01/04-01/06-T-310-CONF-ENG ET, page 57, lines 2 - 4 .

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the Congo ("DRC").2i The prosecution opposed this suggestion, arguing that

disclosure should await full protective measures.22

8. On 6 July 2010, once the Cham ber ha d hea rd subm issions, it ruled that the

relevant information, in its entirety, should be provided to the defence

(counsel and their ass istants, and the "resourc e person").2^ It was stressed

"emphatically" that the information should not go beyond those individuals -

that there is an absolute embargo on dissemination of this information to

anyo ne else, and that no investigative steps were to be taken that are based on

this information in any way.24The prosecution unsurprisingly immediately

indicated that the Chamber's order was understood and would be

implemented.25

9. At the end of the hearing on 6 July 2010, the prosecution informed the Co urt

that they intended to apply for leave to appeal, and that they required the full

5 days provided by the Rome Statute framework to file their application. The

Cham ber stayed its order overn ight, to give time for reflection.26

10. At the beginn ing of the hearing on 7 July 2010, the Cham ber, having hear d

subm issions, ruled as follows:

On 12 Ma y 2010, the Cham ber de l ivered i ts decis ion on interm ediar ies . At par agr aph143, the Chamber observed as follows as regards the issue of disclosure of the identityof inte rm edi ary 143: "In the event the C ham ber is sure that, in ord er to enable th eDefence to conduct necessary and meaningful investigations and to secure a fair trialfor the accused, i t is strictly necessary for his identity to be disclosed. Without hisident i ty, th is wi l l not be possible . The Chamber reminds the Defence that th isinformation is disclosed confidentially solely for the purposes of bona fide trialpreparat ion. However, the evidence concerning this in termediary does not meet thecriteria for ordering him to be called in the context of the abuse of process application.

2 ICC-01/04-01/06-T-310-C ONF-E NG ET , page 59, lines 13 - 24.22ICC-01/04-01/06-T-310-CONF-ENG ET, page61 , lines 10 - 22.2 ICC-01/04-01/06-T-310-CONF-ENG ET, page 63, line 5 to page 65, line 5.2 ICC-01/04-01/06-T-310-CONF-ENG FT, page 64, line 22 to page 65, line 5.2 ICC-01/04-01/06-T-310-CONF-ENG FT , page 65, lines 21 - 22.26ICC-01/04-01/06-T-310-CONF-ENG ET, page 89, line 3 to page 90, line 25.

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In the f inal orders of the Chamber in that decis ion, a t paragraph 150 the Chamberordered as follows: "The Prosecution is ordered to: (i) disclose confidentially to theDefence the nam es and other necessary ident i fying informat ion of the inte rme diary143 (. . .) once the necessary protective measures have been implemented." It is clear, onthe basis of those extracts f rom our decis ion on intermediar ies , that the Chamber wasconcerned to ensure that two things occurred: first , that the Defence had fulldisclosure of identifying information in order to enable it to carry out meaningfulinvest igat ions in the DRC; and, second, that before those invest igat ions commencednecessa ry p ro tec tive measures were impleme nted .

Extensive proposals w ere put togethe r in order to ensure that in terme diary 143 isproper ly and suff ic ient ly protected. As rehearsed in this Court yesterday af ternoon,the or iginal plan which had be en explained to intermediary 143 and whic h he ha daccepted w as very recent ly cal led into quest ion by him .

The current position is that i t is unclear as to whether he is simply going to reject theproposals that have been put forward by the Vict ims and Witnesses Uni t , or whetherhe is going to accept them but only on the basis that fur ther ingredients are added tothe p roposa l s .

We are told that we will not know his position in all l ikelihood until the end of Fridayof this week and, thereafter, if the proposals are accepted, whether modified or not,they wil l not be implem ented unt i l the end of next week.

A posi t ion that , as we unders tand i t , was acceptable to the Defence and canvassed inopen court yesterday was that quest ioning of th is wi tness should cont inue with theDefence hav ing bee n prov ide d wi th the full identifying inform ation for 143, bu t thedissemination of that information is for the time being limited to those in the Defenceteam present in Court , including the accused, and the resource person who operatesin the DRC. It was expressly recognised by counsel for the accused that noinvest igat ive s teps would be taken and that informat ion would not be handed on toany other person without pr ior leave of the Chamber.

At the close of play yesterday, Mr Sachdeva on behalf of the Prosecution indicatedthat the Prosecut ion intend to seek our leave to appeal the disclosure order that wemade, which was ent i re ly consis tent wi th the l imited disclosure regime that I havejust outlined. We asked the parties to reflect on the position overnight. Mr Biju-Duvalthis morning has indicated that for the accused i t would be unworkable for him todivide u p his quest ions so that the 143 issues are reserved u nt i l a la ter date . H esubmits that the issues that he wishes to explore as regards that individual areintr ins ical ly boun d u p w ith a l l of the other areas which he w ishes to explore .

Mr Sachdeva, for the Prosecut ion, argues that a divided cross-examinat ion isachievable and that the Chamber should require the Defence to conduct th isexam inat ion in tw o s tages , leaving the 143 issues unt i l af ter protect ive m easure s havebeen implemented. Otherwise there are no proposals before the Chamber as to howwe can proceed, apart from simply adjourning until there is a resolution of thesecurity issues for 143.

Against that background, we re turn therefore to the decis ion that we handed downon intermediar ies . As a l ready s t ressed, the underpinnings of the decis ion on 143included the cr i t ical e lement that disclosure should not undermine proper protect iveme asures . That is a safeguard that we do not in tend to water dow n.

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Addressing the substance, counsel has under l ined the obl igat ion of the Courtgenerally and the Office of the Prosecutor in particular to protect those who areaffected by their interaction with the Court. We interpolate to observe that, in a verylarge number of decis ions that have been issued by this Chamber, that obl igat ion hasbeen recogn ised in full and the Cham ber ha s taken a very large num ber of s teps to t ryto ensure that a l l of those who have had deal ings with the Court are protected to theextent necessary.

Counsel argues that, because of the present state of play in Bunia, an individual is atr isk of being ki l led i f the Hema community considers him or her to be a t ra i tor.Bui lding on that submission, i t i s argued that the order the Court made ear l ier todayplaces 143 at risk.

Given that submission, i t i s of importance to under l ine the his tory to thedeterminat ion that we arr ived at . The or iginal appl icat ion f rom the Defence was for143 to be called as a witness. In our view, some significance is to be attached to thatposition on the part of the accused. It is said on his behalf by counsel that i t ispositiv ely neces sary in order to deve lop his Defence for 143 to be brou gh t to thisCou rt to give evidence and to be cross-examined.

In our decis ion on intermediar ies we concluded that , a l though the threshold had beencrossed for disclosure of his identity to be effected, the circumstances did not,cer ta inly a t th is s tage, jus t i fy him being cal led as a witness . However, because weordered disclosure so that meaningful invest igat ions in the DRC could take place, weord ere d at par ag ra ph 150 of our de cision of 12 Ma y 2010 that all nece ssary prote ctivemeasures should be implemented pr ior to the disclosure of his ident i ty.

As a resul t of that order, the Vict ims and Witnesses Uni t invest igated his presentci rcumstances . Without descending into the detai l of the mat ter, a comprehensiveplan or package was put together which, in the view of the re levant organ of th isCourt, satisfactorily met all of the known security concerns.

That proposa l was com mu nicated to interm ediary 143. He accepted them , but asked -again for reasons which w e need not explore - that their imp lem entat ion w as d elayed .The Vict ims and Witnesses Uni t consul ted with the Court , and we agreed to as ignif icant de lay in imple me ntat ion to match the request that 143 had ma de.Accordingly, these are secur i ty measures approved by the re levant organ of th isCourt , wh ose very job i t i s to make assessm ents of th is kind, and accepted by bo th th eintermediary and the Judges of th is Chamber.

The date for imple me ntat ion was the week im med iate ly fol lowing 2 July. At the verylas t mo me nt , 143 indicated that he now w ished to quest ion the arran gem ents that h adbeen put in place. It isn' t clear, as we indicated this morning, whether he will rejectthe proposals outr ight , or whether addi t ional requests are being made. Ei ther way, i tmeans that a t the ear l ies t any measures wil l not be implemented unt i l the end of nextweek a nd, given the a t t i tud e now d em onstr a ted by 143, there is an appreciable r iskthat implementat ion wil l be delayed s ignif icant ly beyond then.

Against that background, we next need to invest igate the current posi t ion before theChamber. Mr Bi ju-Duval , on behalf of the accused, has begun his quest ioning ofinterm ediary 321. I t has a lwa ys been clear to the Bench and to the par t ies and thepar t ic ipants that one essent ia l ingredient of his examinat ion wil l include therela t ionship, if any, betw een 143 and 321 and other interme diar ies .

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Mr Biju-Duval has indicated two things. The first is that, as a result of the currentposi t ion of 143, he is prepare d to cont inue his que st ioning of321, notwi ths tand ing thefact that the Defence as yet has made no investigations into the position of 143, butsecond he asks that he is given full disclosure of 143's identity l imited to those whoare in this court room and the long-term resource person employed by the Defencewho works for the team in the DRC.

It is his position that he cannot split his questioning so as to deal with non-143 issuesnow, reserving the other par ts of his quest ioning that do involve that individual to alater date. He submits that course would be artificial and it would have too great atende ncy to rend er the examinat ion ineffect ive .

Counsel for the Prosecut ion suggests that the order we have made is premature , thatit will lead to partial disclosure and that i t will gain li t t le, if anything, in terms of theprogress io n of th is t r ia l . We do no t accept that subm ission.Given the position just rehearsed on the part of the Defence, i t is quite clear that if ourdecision of earlier today is implemented, then the questioning of 321 can proceed, ofcourse a lways with the unders tanding that there may be some post- invest igat iveissues that may need to be dealt with discretely, for instance, by way of a video link indu e course . Cri t ical ly, the Defence posi t ion is that the substant ive exam inat ion of 321can con tinue im media te ly.

Wh at , then, are the r isks? The quest ion is posed because th at is the pr incipal - ind eed,the only - reason for counsel asking us today to revisit our decision of this morning.Protective measures in full have been offered to the intermediary. For a significantper iod of t ime, he accepted them and the Court proceeded towards theirimplementat ion. For no reason that has been explained to us he now has decided toquest ion them and to ask for a var ia t ion, but the fundamental posi t ion s t i l l remains .Protect ive measures have been offered, which are deemed by the re levant body of thisCou rt to be satisfactory, a nd that offer has not in any wa y been wi thd raw n.

Furthermore, the l imited disclosure that we have ordered, in our judgment , has theresul t of ensur ing that there is no deter iorat ion in the secur i ty posi t ion of thatindividual . Disclosure wil l be to counsel and to their ass is tants . I t wi l l include theaccused and one individual in the DRC, who has now worked for a substant ia l per iodof t ime with senior and responsible members of the Bar and whose posi t ion is t rus tedby them.

Although quest ions have been ra ised by the Prosecut ion in the past as regards hispract ices and his in tegr i ty, there has been no conclusion adverse to that individualthat has been drawn by anyone in a responsible posi t ion in this Court that has beenbrought to our a t tent ion.

It is not unimportant to observe that the position of the accused is that he positivelywishes 143 to be cal led in order to suppo rt his case . W e feel that some wh at te nds toundermine the suggest ion by the Prosecut ion this af ternoon that he is l ikely to beki l led because he is thought to be a t ra i tor, presumably by Mr Lubanga. We areent i re ly sat isf ied that the order that we made this morning was appropria te and ful lysatisfies the protective requirements in relation to this individual. The Court, as westressed this morning, does not in any way water down the requirement that weshould ensure that a l l those who are affected by their in teract ion with the Courtshould receive appropria te protect ion. We consider that in ample measure that hasha pp ene d in re la t ion to 143 and, notw ithstan ding h is present dis incl inat ion to accept

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the offer that has been made, we have secured his posi t ion by l imit ing disclosure tothose present in this Court and to the resource person in the DRC, and with theclearest and firmest instruction that the information that is to be disclosed to theDefence should not be revealed or used for any purposes other than quest ioninginside this court room, absent a fur ther order f rom this Chamber.

We ha ve not dea l t wi th the proc edura l issue. I t seems to us that the importanc e of th ismat ter in terms of t iming is such that i t would be an ar id and unnecessary exercise toconsider, perhaps somewhat pedant ical ly, whether or not , s t r ic t ly, we have authori tyin this situation to revisit this morning's decision.

W e, therefore, order disclosure of this information by half-past-4 this afternoon. Weho pe that w e are not going to be cal led upo n to revis it th is issue again.

We wil l s i t a t half -past-9 tomorrow morning, when Mr Bi ju-Duval wi l l cont inue withhis examination.^^

13. The Court's order was not implemented. Instead, shortly before 16.30 the

Chamber was informed that the prosecution was to file the "Prosecution's

Urgent Request for Variation of the Time-Limit to Disclose the Identity of

Intermediary 143 or Alternatively to Stay Proceedings Pending Further

Consultations with the VWU".^^ In that document, having referred to the 16.30

deadline, the following w as set out:

1. The Prosecut ion has an obl igat ion to comp ly with the Cham ber 's ins t ruct ion, b utalso to fulf il i t s s ta tutory dut ies of protect ion. The P rosec ut ion cons ider tha t i t can notd i sc lose the in fo rmat ion in the cur ren t c i rcumstances , bu t wi l l consu l t wi th theVWU as to whether the secur i ty s i tuat ion a l lows for disclosure now. Also, i t i scr i t ical to know whether there is any need to implement urgent in ter im measurespr ior to disclosure . I t in tends to request such advice f rom VWU on an urgent basis .The Prosecut ion accordingly requests a var ia t ion of the t ime-l imit imposed by theTria l Cha mb er for disclosure unt i l such advice is prov ided by the VW U.

2. Should the Tria l Chamber consider that th is request should not be granted, then theProsecut ion requests , in the a l ternat ive , that t r ia l proceedings be s tayed pendingconsul ta t ions and implementat ion of the necessary protect ive measures , in theinterests of the overall safety and well-being of intermediary 143.

3. The Prosecu t ion i s bound by au tonomous s t a tu to ry du t i e s o f p ro tec t ion tha t i tm ust ho no ur a t a l l t im es. Beyond taking any s tep that ma y have ad verseconsequences for the safety and well-being of a person, the Prosecution must take allnecessary s teps to prevent any r isk or harm.

30 Transcript of hearing on 7 July 2010, ICC-01/04-01/06-T-312-ENG FT WT, page 15, line 21 to page 22, line6. Although this transcript is marked confidential, the submissions and decisions refened to occurred in publicsession.^ ICC-01/04-01/06-2515.

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4. In the ins tan t case , the Prosecu t ion con s ide rs i t ind i sp ensa b le tha t p r io r to an ydisclosure being effected, the Prosecut ion be sat isf ied that i t i s act ing incom plian ce wi th i ts specif ic du t ies un de r the Statute an d the Rules .^^ (emp hasisa d d e d t h r o u g h o u t )

14. At 19.02 the Chamber was provided with a courtesy copy of the

"Prosecution's Urgent Provision of Further Information Following

Consultation with the VWU, to Supplement the Request for Variation of the

Time-Limit or Stay".^^ The C hamb er w as informed that the VW U, having b een

informed of the O rders of the Cham ber, as set out above, maintains its earlier

security assessment.^ The Chamber was informed that the VWU has

interpreted its Order as including a requirement that it should send someone

immediately to inform 143 of the decision of the Chamber, and to discuss

interim measures that can be implemented on an urgent basis to enhance the

current level of protection.^^ xhe Chamber interpolates to observe that in light

of the VWU's submissions set out hereafter, there is reason to doubt the

accuracy and reliability of this submission. It was said that the prosecution

had impressed upon the VWU the need for "immediate action" following the

Chamber's order and "in furtherance of the Prosecution's own effort and

desire to comply with the Chamber's instructions without jeopardizing the

safety of the Intermediary and his family".^6Xhe Prosecutor then set out the

following:

6. The Prosecut ion is sensi t ive to i ts obl igat ion to comply with the Chamber 'sins t ruc t ions . However, i t a l so has an independen t s t a tu to ry ob l iga t ion to p ro tec tpersons put a t r isk on account of the Prosecut ion 's act ions . I t should not comply, orbe asked to comply, wi th an Order tha t may requ i re i t to v io la te i t s separa tes ta tu to ry ob l iga t ion by sub jec t ing the pe r son to fo reseeab le r i sk . The Prosecu to raccord ing ly has made a de te rmina t ion tha t the Prosecu t ion would ra the r f aceadv erse co nseq uen ces in i ts l i t igat io n than expo se a per son to r isk on account ofpr ior in teract ion with this Off ice . This is not a chal lenge to the authori ty of the

ICC-01/04-01/06-2515, paragraphs 1 - 4 .2

^ Prosecution's Urgent Provision of Further Information Following Consultation with the VWU, to Supplementthe Request for Variation of the Time-Limit or Stay, 8 July 2010, ICC-01/04-01/06-2516 (filed on 7 July 2010and notified on 8 July 2010). This was originally filed as confidential and was reclassified public uponinstruction from the Trial Cham ber on 8 July 2010.^ ICC-01/04-01/06-2516, paragraph 2.^ ICC-01/04-01/06-2516, paragraphs 2 - 3 .6 ICC-01/04-01/06-2516, paragraph 4.

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Chamber, i t i s ins tead a r e f l ec t ion o f the Prosecu t ion ' s own lega l du ty under theStatute .^^ (emphasis add ed)

15. The Prosecutor then purported to rely on two Decisions of the Appeals

Chamber, quoting passages in which his obligation to ensure that appropriate

protective measures are taken to protect the safety of victims and witnesses

was referred to, in the context of an analysis, inter alia, of the protective roles

that are variously u nde rtak en b y the VWU and the prosecution.^^

16. The Prosecutor suggested his office is "torn between competing obligations"

and that it is endeavouring to resolve the "dilemma" by obtaining an

expeditious resp onse from the VWU , "to ma ke sure that m easures are in place

that w ill pro tect all interests in the proceedings".^^ It was set out that the

length of time needed to follow this course is uncertain, and that the

assessmen t of the VWU {viz. m aintaining its earlier assessm ent) "w arra nts a

limited am endm en t of the o rder .

17. On 8 July at 13.51, the VWU informed the Chamber that the disclosure of the

name of 143 to the defence under the conditions ordered by the Chamber does

no t pose a threa t to the intermediary.^^

IL Appl icable Law

18. In accordance with Article 21(1) of the Statute, the Trial Chamber has

considered the following provisions:

^ ICC-01/04-01/06-2516, paragraph 6.^ Judgment on the appeal of the Prosecutor against the "Decision on Evidentiary Scope of the ConfirmationHearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules" ofPre-Trial Chamber I, 26 November 2008, ICC-01/04-01/07-776, paragraph 80; Judgment on the appeal of theProsecutor against the decision of Pre-Trial Chamber I entitled "First Decision on the Prosecution Request forAuthorisation to Redact Witness Statem ents", 13 May 20 08, ICC-01/04-01/07-475 , paragraphs 44 and 47.^ ICC-01/04-01/06-2516, paragraph 8.^ ICC-01/04-01/06-2516, paragraphs 9 - 10." Email communication from the VWU to the Legal Adviser of the Trial Division, 8 July 2010.

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Artic le 64 of the R om e Statute ("Statute")Func t ions and powers o f the Tr ia l Chamber

[. . .]2. The Trial Chamber shall ensure that a trial is fair and expeditious and is conductedwith full respect for the rights of the accused and due regard for the protection ofvict ims and witnesses .3. Upon assignment of a case for trial in accordance with this Statute, the TrialChamber ass igned to deal wi th the case shal l :(a) Confer with the parties and adopt such procedures as are necessary to facili tate thefair and expedi t ious conduct of the proceedings;[. . .](c) Subject to any other relevant provisions of this Statute, provide for disclosure ofdocuments or informat ion not previously disclosed, suff ic ient ly in advance of thecommencement of the t r ia l to enable adequate preparat ion for t r ia l .

Art ic le 67 of the StatuteRights of the accused

[. . .]2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall ,as soon as practicable, disclose to the defence evidence in the Prosecutor 's possessionor control which he or she bel ieves shows or tends to show the innocence of theaccused, or to mitigate the guilt of the accused, or which may affect the credibili ty ofprosecut ion evidence. In case of doubt as to the appl icat ion of th is paragraph, theCourt shal l decide.

Art ic le 68 of the StatutePro tec t ion of the v ic t ims and wi tnesse s and the i r pa r t i c ipa t ion in the p roc eed ing s

1. The Cou rt shal l take app ropria te m easures to protect the safety, physical an dpsychological wel l -being, digni ty and pr ivacy of vic t ims and witnesses . In so doing,the Court shall have regard to all relevant factors, including age, gender as defined inar t ic le 7 , paragraph 3, and heal th , and the nature of the cr ime, in par t icular, but notl imited to , where the cr ime involves sexual or gender violence or violence againstchi ldren. The Prosecutor shal l take such measures par t icular ly dur ing theinvest igat ion and prosecut io n of such cr imes. These mea sures shal l not be prejudicia lto or inconsistent with the rights of the accused and a fair and impartial trial .[ . . .]

4. The Vict ims and Witnesses Uni t may advise the Prosecutor and the Court onappropria te protect ive measures , secur i ty arrangements , counsel l ing and ass is tance asreferred to in article 43, pa rag rap h 6.[. . .]

Rule 76 of the Rule s of Proced ure an d Evidenc e ("Rules")Pre - t ri a l d i sc losure re la t ing to p rosecu t io n wi tn esses

1. The Prosecutor shal l provide the defence with the nam es of wi tnesses w ho m theProsecutor intends to call to testify and copies of any prior statements made by thosewitnesses . This shal l be done suff ic ient ly in advance to enable the adequatepreparat ion of the defence.2. The Prosecutor shal l subsequent ly advise the defence of the names of anyaddi t ional prosecut ion witnesses and provide copies of their s ta tements when thedecision is made to call those witnesses.

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3. The s ta tem ents of prosecut ion witnesses shal l be m ad e avai lable in or iginal and in alanguage which the accused ful ly unders tands and speaks.4. This rule is subject to the protection and privacy of victims and witnesses and theprotection of confidential information as provided for in the Statute and rules 81 and82.

Ru le 11 of the Ru lesInspect ion of mater ia l in possess ion or control of the Prosecutor

The Prosecutor shall , subject to the restrictions on disclosure as provided for in theStatute and in rules 81 and 82, permit the defence to inspect any books, documents ,photographs and other tangible objects in the possess ion or control of the Prosecutor,which are mater ia l to the preparat ion of the defence or are intended for use by theProsecutor as evidence for the purposes of the confirmation hearing or at trial , as thecase ma y be, or were obtained from or belonge d to the person .

Ru le 81 of the Rule sRes t r i c t ions on d i sc losure

1. Reports , mem ora nd a or other internal docum ents pre pare d by a par ty, i t s assis tantsor representat ives in connect ion with the invest igat ion or preparat ion of the case arenot subject to disclosure.2. Where material or information is in the possession or control of the Prosecutorwhich must be disclosed in accordance with the Statute , but disclosure may prejudicefur ther or ongoing invest igat ions , the Prosecutor may apply to the Chamber deal ingwith the mat ter for a rul ing as to whether the mater ia l or informat ion must bedisclosed to the defence. The matter shall be heard on an exparte basis by theChamber. However, the Prosecutor may not in t roduce such mater ia l or informat ioninto evidence dur ing the confi rmat ion hear ing or the t r ia l wi thout adequate pr iordisclosure to the accused.3. Where s teps have been taken to ensure the confident ia l i ty of informat ion, inaccordance with articles 54, bl, 64, 72 and 93, and, in accordance with article 68, toprotect the safety of witnesses and victims and members of their families, suchinformat ion shal l not be disclosed, except in accordance with tho se ar t ic les . W hen thedisclosure of such information may create a risk to the safety of the witness, the Courtshal l take measures to inform the witness in advance.4. The Chamber deal ing with the mat ter shal l , on i ts own motion or a t the request ofthe Prosecutor, the accused or any State, take the necessary steps to ensure theconfiden tiality of informa tion, in accordan ce wit h articles 54, 72 and 93, and , inaccordance w ith ar t ic le 68, to protect the safety of wi tnesses and vict ims and me mb ersof their families, including by authorizing the non-disclosure of their identity prior tothe commencement of the t r ia l .5. Where material or information is in the possession or control of the Prosecutorwhic h is wi th held u nde r ar t ic le 68, para grap h 5, such mater ia l and informat ion ma ynot be subsequent ly int roduced into evidence dur ing the confi rmat ion hear ing or thetr ia l wi thout adequate pr ior disclosure to the accused.6. W her e materi al or information is in the possessio n or control of the defence w hichis subject to disclosure, i t may be withheld in circumstances similar to those whichwo uld a l low the Prosecutor to re ly on art ic le 68, par agr aph 5, and a summ ary thereofsubmit ted ins tead. Such mater ia l and informat ion may not be subsequent lyintroduced into evidence dur ing the confi rmat ion hear ing or the t r ia l wi thoutadequate pr ior disclosure to the Prosecutor.

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Rule 84 of the RulesDisc losure and add i t iona l ev idence fo r t r i a l

In order to enable the parties to prepare for trial and to facili tate the fair andexpedi t ious conduct of the proceedings, the Tria l Chamber shal l , in accordance witharticle 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject toar t ic le 68, par agra ph 5, make an y necessary orders for the disclosure of docu me nts orinformat ion not previously disclosed and for the product ion of addi t ional evidence.To avoid delay and to ensure that the t r ia l commences on the set date , any suchorders shal l include s t r ic t t ime l imits which shal l be kept under review by the Tria lC h a m b e r.

Ru le 87 of the Rule sPro tec t ive measures

1. Upon the motion of the Prosecutor or the defence or upon the request of a wi tnessor a victim or his or her legal representative, if any, or on its own motion, and afterhaving consul ted with the Vict ims and Witnesses Uni t , as appropria te , a Chamberma y order m easure s to protect a vic t im, a witness or another p erson at r isk on accou ntof tes t imon y given by a witness pu rsua nt to ar t ic le 68, para grap hs 1 and 2. TheChamber shal l seek to obtain , whenever possible , the consent of the person in respectof whom the protect ive measure is sought pr ior to order ing the protect ive measure .2. A motio n or request und er sub-rule 1 shal l be governe d by rule 134, prov ided that :(a) Such a mo tion or reque st shall not be subm itted ex parte;(b) A request by a witness or by a victim or his or her legal representative, if any, shallbe served on both the Prosecutor and the defence, each of whom shal l have theoppor tun i ty to respond ;(c) A motion or request affecting a particular witness or a particular victim shall beserved on that witness or victim or his or her legal representative, if any, in additionto the other par ty, each of whom shal l have the opportuni ty to respond;(d) When the Chamber proceeds on i ts own motion, not ice and opportuni ty torespond shal l be given to the Prosecutor and the defence, and to any witness or anyvictim or his or her legal representative, if any, who would be affected by suchprotect ive measure; and(e) A motion or request may be filed under seal, and, if so filed, shall remain sealedunt i l o therwise ordered by a Chamber. Responses to motions or requests f i led underseal shall also be filed under seal.3. A Cham ber m ay, on a mo tion or request und er sub -rule 1 , hold a hear ing, wh ichshal l be conducted in camera, to determine whether to order measures to prevent therelease to the public or press and information agencies, of the identity or the locationof a victim, a witness or other person at risk on account of testimony given by awitness by ordering, inter alia:(a) That the name of the victim, witness or other person at risk on account oftes t imony given by a witness or any informat ion which could lead to his or herident if ication, be expung ed from the publ ic records of the C ham ber;(b) That the Prosecutor, the defence or any other par t ic ipant in the proceedings beprohibi ted f rom disclosing such informat ion to a thi rd par ty;(c) That tes t imony be presente d by electronic or other special mean s, including th e u seof technical means enabling the alteration of pictures or voice, the use of audio-visualtechnology, in particular videoconferencing and closed-circuit television, and theexclusive use of the sound med ia;(d) That a pseudonym be used for a vic t im, a witness or other person at r isk onaccount of testimony given by a witness; or

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(e) That a Chamber conduct partof its proceedings in camera.

Regulation 42of the Regulationsof the CourtApplication and variation of protective me asures

1. Protective measures once orderedin any proceedings in respect of a victim orwitness shall continueto have full forceand effect in relation to any other proceedingsbefore the C ourtand shall continue after proceedings have been concluded, subjecttorevision b y a Chamber.2. When the Prosecutor discharges disclosure obligationsin subsequent proceedings,he or she shall respect the protective measuresas previously orderedby a Chamberand shall inform the defence to whom the disclosure is being made of the nature ofthese protective mea sures.3. Any application to vary a protective measure shall firstbe made to the Chamberwhich issued the order. If that Chamber is no longer seized of the proceedings inwhich the protective measure was ordered, application maybe made to the Chamberbefore which a variation of the protective measureis being requested. That Chambershall obtain all relevant information from the proceedings in which the protectivemeasure was first ordered.4. Before making a determination under sub-regulation3, the Chamber shall seektoobtain, whenever possible, the consent of the person in respect of whom theapplication to rescind, varyor augment protective measures has been made.

I I I . Analysis

19. The Chamber observes that it was unnecessar y to seek a further repo rt from

the VWU because the disclosure that it ordered was restricted to a very few

identified individuals, and accordingly, as set out above, there are no

enhanced securi ty risks for intermedia ry 143. The Appea ls Cha mber has

appro ved, in different context, limited disclosure of this kind. 2 pro secut ion

counsel's argument that this order may lead in these circumstances to

inadvertent disclosure is unsustainable - that risk must be negligible given the

extensive directions from the Chamber. No allegations of bad faith were

advanced, save indirectly by reference to some previous allegations that have

been made against the defence "resource person". These have not led to any

findings that have been brought to the Chamber's attention that are adverse to

that individual.

42 ICC-01/04-01/07-475, paragraphs 70 and71.

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20. The history set out above reveals two con current bu t essentially different

problems. The first - the immediate cause of the present hiatus - is the

Prosecutor's unequivocal refusal to implement the repeated orders of this

Chamber to disclose the identity of 143 (in highly restricted circumstances,

determined by the Chamber). It may well be that this first difficulty is time-

limited, in the sense that a delay of a few days or weeks may result in the

prosecution's objections evaporating once protective measures, acceptable to

143, have been implemented. No doubt, if that occurs, the Chamber will be

asked to continue with the evidence of 321 (and the trial, if it is stayed)

because it is proposed that in those altered circumstances he can be

questioned by the defence on a fair basis. However, if the identifying

information for 143, despite the orders of the Chamber, is not disclosed to the

defence, then the Chamber will need to scrutinize the impact of this

eventuality in the context of its overall assessment of the evidence in the case,

and the fairness of the proceedings against the accused. Notably, the C ham ber

is currently hearing evidence on a confined, but significant, issue that includes

the allegation that the prosecution has knowingly employed, or made use of,

intermediaries who influenced individuals to give false testimony, thereby

abusing its powers. Failure to disclose information which is relevant for the

examination of witnesses testifying in this context is likely to be relevant to

defence abus e app lication.

21 . The second problem, however, reveals a more profound and enduring

concern. The Prosecutor, by his refusal to implement the orders of the

Chamber and in the filings set out above, has revealed that he does not

consider that he is bound to comply with judicial decisions that relate to a

fundamental aspect of trial proceedings, namely the protection of those who

have been affected by their interaction with the Court, in the sense that they

have had dealings with the prosecution. Essentially, for the issues covered by

Article 68 in this way, he appears to argue that the prosecution has autonomy

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to comply with, or disregard, the orders of the Chamber, depending on its

interpretation of its responsibilities under the Rome Statute framework.

Article 68(1) of the S tatute prov ides as follows:

The Court shall take appropriate measures to protect the safety, physical andpsychological well-being, dignity and privacy of victims and witnesses. In so doing,the Court shall have regard to all relevant factors, including age, gender as defined inarticle 7, paragraph 3, and health, and the nature of the crime, in particular, but notlimited to, where the crime involves sexual or gender violence or violence againstchildren. The Prosecutor shall take such measures particularly during theinvestigation and prosecution of such crimes. These measures shall not be prejudicialto or inconsistent with the rights of the accused and a fair and impartial trial.

22. A very considerable part of this Chamber's judicial work during the presenttrial has related to protective measures that have been subject of Rulings,

following contact between prosecution witnesses and other individuals who

were contacted by the prosecution (and their families) in the context of the

Prosecutor's obligations to disclose materials to the defence under Articles

64(3)(c) an d 67(2) of th e S tatute, an d Rules 76 and 11 of th e Ru les. Essentially,

the Chamber has decided on the extent of disclosure, and particularly whether

redactions are to be imposed , maintained , varied or lifted.

23 . The Rome Statute framewo rk mak es it clear that the Cham ber, once seized of

the case, is the only organ of the Court with the power to order and vary

protective measures vis--vis individuals at risk on account of work of the

ICC. Rules 81 and 87 of the Rules are explicit in the sense that only a Chamber

may order protective measures, such as those accorded to intermediary 143,

and generally it is for the Chamber to make necessary orders for disclosure,

under Rule 84 of the Rules. Further, Regulation 42 of the Regulations of the

Court provides that measures ordered by a Chamber shall remain in place

subject to revision by the Cham ber.

24. Article 68 of the Statute gives the Prosecutor positive protective obligations

when investigating and prosecuting crimes - "the Prosecutor shall take such

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measures part icularly during the invest igat ion and prosecution of such

crimes" - but those responsibilities do not give him licence, or discretion, or

autonomy to d is regard judic ia l orders because he cons iders the Chamber ' s

Decision is inconsistent w ith his interpretat ion of his obligat ions. As frame d in

Article 68(1) of the Statute, the prosecution's obUgations are subject to the

Chamber 's overarching responsibi l i ty to ensure that the accused receives a fair

trial - "[t]hese measures shall not be prejudicial to or inconsistent with the

rights of the accused and a fair and impartial trial". The latter decision is

solely for the Chamber, and it is not for the prosecution to seek to determine

for the purposes of this trial what constitutes fairness for an accused.

25. This Chamber in i ts "Decision on the consequences of non-disclosure of

excu lpatory mater ials covered by Art icle 54(3) (e) agre em ents and the

applicat ion to s tay the prosecution of the accused, together with certain other

issues rais ed at the Status Confe rence on 10 Jun e 2008",^^ set ou t at p ar ag ra ph

88:

[. . .] The ultimate responsibili ty for securing justice and ensuring fairness has beengiven to the Chamber (Article 64(2) of the Statute) and these responsibili t ies cannot bedelegated by, or removed from, the judges [. . .] .^^

26. In i ts Judgment on the appeal of the Prosecutor against the above Decision of

Trial Ch am ber I, ^ the App eals C ham ber observ ed as fol lows:

The Trial Chamber correctly noted its responsibili ty under article 64 (2) of the Statuteto ensure the fairness of the proceedings and the obligation under article 21 (3) of theStatute to apply and to interpret the Statute consis tent ly with internat ional lyrecognised human rights.^^

"^ Decision on the consequences of non-disclosure of exculpatory materials covered by A rticle 54 (3)(e)agreements and the application to stay the prosecution of the accused, together with certain other issues raised atthe Status Conference on 10 June 200 8, 13 June 2008, ICC-01/04-01/06 -1401.^ ICC-01/04-01/06-1401, paragraph 88." Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on theconsequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and theapplication to stay the prosecution of the accused, together with certain other issues raised at the StatusConference on 10 June 2008", 21 October 2008, ICC-01/04-01/06-1486.6 ICC-01/04-01/06-1486, paragraph 76.

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27. No criminal court can operate on the basis that whenever i t makes an order in

a part icular area, i t is for the Prosecutor to elect whether or not to implement

i t , depending on his interpretat ion of his obligat ions. The judges, not the

Prosecutor, decide on protect ive measures during the t r ial , once the Chamber

is seized of the relevant issue, as regards vict ims, witnesses and others

affected b y the wor k of the Court , and the prose cution c annot choose to ignor e

i ts rul ings. I t is for the Chamber to determine whether protect ive measures are

necessary (fol lowing consultat ion with the VWU under Art icle 68(4) of the

Statute); their nature; and whether they are consistent with the accused's r ight

to a fair trial. These are issues for the Court, and the Court alone, to determine,

having heard submissions and having considered al l the information the

judges consider necessary and relevant . The Prosecutor now claims a separate

authori ty which can defeat the orders of the Court , and which thereby

involves a profound, unacceptable and unjust if ied intrusion into the role of

the judiciary.

28. The Prosecutor has chosen to prosecute this accused. In the Chamber 's

judgment, he cannot be al lowed to continue with this prosecution if he seeks

to reserve to himself the r ight to avoid the Court 's orders whenever he decides

that they are inconsistent with his interpretat ion of his other obligat ions. In

order for the Chamber to ensure that the accused receives a fair trial, i t is

necessary that i ts orders , decisions and rul ings are respected, unless and unti l

they are overturned on appeal , or suspended by order of the Court .

29. The Chamber has cons idered the two author i t ies f rom the Appeals Chamber

rel ied on by the prosecution. Although reference is made in those Decisions to

Article 54(3)(f) of the Statute and the prosecution's right to take or request

necessary measures to protect any individual during invest igat ions, the

Appeals Chamber was not address ing the s i tua t ion - as here - when the

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Chamber is seized of the matter and has ruled, and the Prosecutor thereafter

decl ines to implement the order. The Appeals Chamber specif ical ly set out the

principle that disclosure should be made "in ful l" , and that non-disclosure is

the exception to this general rule.^^ Fur therm ore, the App eals Ch am ber

expressly indicated that disagreements as to protect ive measures {i .e .

relocat ion) are to be decided by the Chamber deal ing with the case, "and

[they] should not be resolved by the unilateral and un-checked act ion of the

Pr os ec uto r" . ^

30. The Appeals Chamber has endorsed the Tr ia l Chamber ' s r ight - indeed

obligation - to stay the proceedings if they constitute an abuse of the process,

because "it is impossible to piece together the constituent elements of a fair

t r ial" . ^ The Chamber ruled that a condit ional s tay cannot be imposed

indefinitely.5

IV. Conc lus ions

31. Therefore, the Prosecutor has elected to act uni lateral ly in the present

circumstances, and he decl ines to be "checked" by the Chamber. In these

overal l c ircumstances, i t is necessary to s tay these proceedings as an abuse of

the process of the Court because of the material non-compliance with the

Ch am ber 's ord ers of 7 July 2010, and m ore general ly, becau se of the

Prosecutor ' s c learly ev inced in tention not to impleme nt the Cham ber ' s orders

that are made in an Article 68 context, if he considers they conflict with his

interpretat ion of the prosecution 's other obligat ions. Whilst these

circumstances endure, the fair trial of the accused is no longer possible, and

justice cannot be done, not least because the judges will have lost control of a

signif icant aspect of the t r ial proceedings as provided under the Rome Statute

^' ICC-01/04-01/07-475, paragraph 70.^ ICC-01/04-01/07-776, paragraph 93.^ ICC-01/04-01/06-1486, paragraphs 77 and 78.^ ICC-01/04-01/06-1486, paragraph 81.

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framework. Whilst the stay of the proceedings is in place, the Chamber will

deal with any application for leave to appea l on this or any related issue tha t is

filed.

32. Otherwise, the Chamber will only entertain submissions regarding the

possible application of Article 71 of the Statute at 15.30 on 8 July2010, 1 and

subm issions on the accu sed's detention at 9.30 on15 July 2010.

^ The parties and participants were notified by way of email on 7 July 2010 at 18.08.

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Done in both E nglish and French, the English version being authoritative.

mAdrianFulforcudge A drian Fulf ord

Judge Elizabeth Odio Benito Judge Ren B lattmann

Da ted this 8 July 2010

At The Hag ue, The Netherlands

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decision on the prosecutions urgent request for variation of the time-limit to disclose the identity...

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