Thursday, September 18, 2008

Brady v. Maryland in International Criminal Law

Proceedings before the International Criminal Court (ICC) in the Thomas Lubanga Dyilo (right) case (Democratic Republic of Congo) have come to a grinding halt.
Dyilo was the first individual to be brought to the ICC’s custody. He has been indicted for the war crime of conscripting and enlisting children under the age of 15 into the military wing of the Union des Patriotes Congolais (UPC) and using them to participate actively in hostilities in Ituri from September 2002 to August 2003.

On June 13, 2008, Trial Chamber I rendered a decision staying sine die (indefinitely) the proceedings against Dyilo on the ground that a fair trial was impossible. The stay stems from a determination that the prosecutor, Luis Moreno-Ocampo (below left), misused his powers under Article 54(3)(e) to keep potentially exculpatory evidence from the accused.
Article 54(3)(e) allows the prosecutor to receive information on the condition of confidentiality so long as such information will not be used at trial and will be used only for the purpose of generating new evidence. Article 67(2) sets forth the prosecutor’s disclosure duties. It provides:

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 possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

The information in question apparently came from the United Nations itself as well as from various NGOs.

Several weeks after staying the proceedings, the Trial Chamber ordered Dyilo’s release, reasoning that this was “the logical – indeed the inevitable – consequence” of the stay. The Chamber explained that none of the reasons for pre-trial detention remained valid since the trial was indefinitely suspended. Rule 58(1)(b) allows for pre-trial detention where it is necessary

►to ensure the accused’s appearance at trial,
►to ensure the accused does not hinder investigations or court proceedings or
►to prevent the commission of more crimes.

In so ruling, the Trial Chamber rejected arguments by the victims that Dyilo’s release may send a dangerous message to, and ignite tensions in, Ituri and place victims at risk. The Appeals Chamber subsequently ordered the release to be suspended pending the prosecutor’s appeal, which is still pending.

In the meantime, the prosecutor has been scrambling with information providers to put agreements and procedures in place (such as in camera review, ex parte proceedings, redactions, the use of summaries, the oral presentation or recitation of evidence, et cetera) to reach the necessary balance between disclosure and confidentiality that will convince the Trial Chamber to lift the stay.

On September 3, 2008, the Chamber rejected the prosecutor’s application to re-commence proceedings. The Chamber noted that some of the disclosure requirements set previously by the Chamber had been met. (Some information providers, including the UN, have released the prosecutor from particular confidentiality agreements, but many NGOs have not). At the same time, the Trial Chamber concluded that the accused could still not be guaranteed a fair trial unless it (and later the Appeals Chamber if necessary) could adequately review the documents in question and ensure that the accused would be given sufficient access to any documents deemed to be exculpatory.

Other cases are pending involving the Ituri region of the DRC (map of DRC above right) involving defendants Germain Katanga, Mathieu Ngudjolo Chui, and Bosco Ntaganda. Presumably, all of these cases involve information subject to confidentiality agreements as well as disclosure.

What a mess...


lorenzowakefield said...

I agree, what a mess. The Prosecutor's office should have known that keeping evidence from the defence is a huge violation of the rules of evidence and procedure to which the ICC prescribes.

Bad move Luis!

Unknown said...

I'm with you as well, that's a fundamental error. I just talked to one of the top criminal defense lawyers in San Diego and they told me that this actually happens more often than you think. That's scary.