A Response to Gideon Boas by Christian De Vos

Gideon Boas makes a number of valuable points in his comments on my article, not least
of which is the fact that the evidentiary challenges I highlighted with respect to the Lubanga trial are not new.  I particularly appreciate the experiences he recounts from his time at the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), which, like its sister tribunal in Rwanda (‘ICTR’), shares an analogous provision to Article 54(3)(e) of the ICC Statute in Rule 70 of the ICTY and ICTR’s Rules of Evidence and Procedure. Like the ICC, the ad hoc tribunals are also dependent on state cooperation and confidential material has been similarly critical to their proceedings. Rule 70 was designed to encourage third parties (usually states) to share sensitive information with the tribunals, much of which involved disclosure restrictions on the grounds of national security. Unfortunately, the caution that, according to Boas, characterized the terms upon which ICTY prosecutors agreed to accept (or not accept) such information appears to have been absent in the Lubanga trial, where the Prosecution relied too heavily on reports that MONUC had insisted remain confidential.

There is reason to hope that the lessons of Article 54(3)(e) have been learned as, to date, other trials have avoided the sort of disclosure brinksmanship that characterized the Lubanga proceedings. By contrast, the issue of intermediaries will undoubtedly persist. While intermediaries were, to a lesser degree, a feature of the ad hoc tribunals, the ICC’s limited resources, combined with the immensely complicated terrain in which it must carry out its operations, means that intermediaries are likely to be a permanent part of the Court’s landscape.  The Draft Guidelines that my article highlights underscore the likelihood that intermediaries will be increasingly engaged in all stages of the Court’s work, ranging from preliminary examinations to reparations proceedings. As one commentator has noted, ‘Intermediaries provide scalpels for those tasks where the Court may otherwise approach the
situation with a hatchet.’[1]

The precise nature of this relationship — contractual or not, compensated or not — will vary depending on the nature of an intermediary’s engagement with the Court.  Indeed, the most recent version of the Guidelines notes that intermediaries’ functions ‘may differ from one organ or unit of the Court to another,’ suggesting that the degree to which a policy can be effectively ‘standardized’ at a Court-wide level remains an open question.[2] Still, efforts to clarify intermediaries’ status within the ICC institutional framework are welcome, as the events of Lubanga make clear that the Office of the Prosecutor’s (‘OTP’) engagement with intermediaries can pose grave risks to the integrity of trial and the rights of the defense.  The communication chain from situation-country to The Hague is long and perilous and the risk of abuse requires close oversight.

Importantly, the revised Draft Guidelines, current as of August 2011, appear to better understand some of these risks than the previous version, as they lay out with greater clarity three ‘categories‘ of intermediaries = contracted, self-appointed, or those approved by the Court by way of affidavit — with corresponding measures of support that will assist them in carrying out their duties.  The revised Guidelines also acknowledge more forthrightly that intermediaries come to the ICC in a variety of ways — some by choice, others by circumstance — which may affect the nature of their relationship with the Court.  Finally, the Guidelines make clear that organs or units of the Court, like the OTP, can ‘adopt specialized policies’ to guide their relationships with intermediaries.[3]

It is important, then, that the OTP develop a detailed set of policies to guide its relationship with intermediaries. At the same time, such a focus should not diminish the work of intermediaries across other units of the Court as well, particularly the Victims Participation and Reparation Section, which remains grossly underfunded and understaffed.

[1] Holly Dranginis, ‘The Middle Man: The Intermediaries of International Criminal Justice’, 21 August 2011 <http://justiceinconflict.org/2011/08/21/the-middle-man-the-intermediaries-of-international-criminal-justice/>