ICTR Criticizes Prosecutor for Failing to Disclose Exculpatory Evidence

by Kevin Jon Heller

What is it with international prosecutors and their duty to disclose exculpatory evidence?  First the ICC stays the Lubanga trial because of the Prosecutor’s abuse of Article 54.  And now the ICTR has had to formally reprimand its Prosecutor, Hassan Jallow, for failing to disclose exculpatory evidence in the high-profile Military II trial:

In their ruling dated September 22, 2008, the three-bench judges, led by Asoka de Silva (Sri Lanka), emphasized and reminded the Prosecution of “Its responsibility as ministers of justice to assist the Chamber discover the truth about the allegations in the indictment and to do justice to the international community, the victims and the accused.” Other members of the bench are Seon Ki Park (South Korea) and Taghrid Hikmet (Jordan)…

[snip]

“The Prosecution must always exercise the highest standards of integrity and care in discharging its obligations,” the ruling underscored.

The Chamber also ordered each defence team within 14 days from the date of the decision, file motions to recall each identified prosecution witnesses or additional defence witnesses based on the statements for which the Prosecution has been found in violation of disclosure obligations.

According to the decision, among the materials which the Prosecution is compelled to disclose are three statements relevant to the disclosure of the files of the former Rwandese Patriotic Front (RPF) rebels in the killings of former Minister of Social Affairs Lando Ndasingwa and former President of the Constitutional Court, Joseph Kavaruganda, among others. These killings,according to the Chamber, are ascribed to the accused. The judges also ordered disclosure of 16 other statements relevant specifically to the case in question.

Actions like these are unaccepable, because they strike at the very heart of the defendant’s right to a fair trial. As the ICTY Appeals Chamber pointed out in Kordic and Cerkez, “[t]he prosecution is required to carry out these searches because of its superior access to material which may be exculpatory in character…. The prosecution’s obligation under Rule 68 is not a secondary one, to be complied with after everything else is done; it is as important as the obligation to prosecute.”

The ICC and ICTR seem increasingly willing to discipline prosecutors who fail to live to their obligations as “ministers of justice.”  That is a hopeful sign for international criminal justice as a whole.

http://opiniojuris.org/2008/10/08/ictr-criticizes-prosecutor-for-failure-to-disclose-exculpatory-evidence/

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