Comment on Independent Expert Review of the ICC and the Rome Statute System

[Beth S. Lyons has been a criminal defence attorney for more than 30 years, practicing almost exclusively in Legal Aid programs in New York City (trial and appellate levels) and in the international courts and tribunals; she currently is one of the counsel representing Mr. Dominic Ongwen.]

As a criminal defence attorney at the International Criminal Tribunal for Rwanda (ICTR), and now at the International Criminal Court (ICC) (in the Ongwen case), I am always curious to read the analyses of those who are not involved daily with the trial litigation in my cases.  It is important to know how the communities outside the courtroom – in the “situation country,” in the legal arena, in academia and in the amorphous international community view what goes on in the courtroom and in the pleadings.  This is a check for the litigator – to gauge how the arguments are received outside the courtroom.  Sometimes, a counsel can glean perspectives that s/he may have overlooked.

With these considerations in mind, I searched for references to the Ongwen case in the Final Report of the Independent Expert Review (IER) of the ICC and the Rome Statute System, 30 September 2020 (IER). 

 I stopped in the beginning of the IER, at paragraph 489, which concerns the Ongwen Confirmation of Charges decision (‘CoC Decision’).  My fellow Ongwen counsel, Chief Charles A. Taku, pointed out paragraph 489 to me.  It reads: 

“… [t]he formulation of the decision confirming the charges in the Ongwen case is, however, an example of the clarity that would result were the Division as a whole to adhere to the agreed recommendation contained in the Chambers Practice Manual [fn. 317 refers to the Ongwen Confirmation of Charges Decision].”

First, the IER statement assumes clarity in the operative part (essentially, the Document Containing the Charges from the Prosecution which is incorporated with modifications into the Ongwen CoC Decision).

Second, the IER statement holds out the Ongwen CoC Decision as an example of the distinction between the confirmed charge and the Pre-Trial Chamber’s (‘PTC’) reasoning, as stated in the Manual, 2019 as well as earlier ones.

I wondered: Why is the IER looking at the Ongwen CoC Decision (‘CoC’) as an example of clarity?  From my viewpoint, Mr Ongwen was prosecuted on confirmed charges and modes of liability which were patently unclear and violated his fair trial right to notice. 

At paragraph 59, the Manual states the requirement that the Prosecutor present and the PTC confirm “clear and unambiguous” charges.  Thus, “clear and unambiguous” charges are a predicate for the PTC’s confirmation of charges decision.

But in the Ongwen case the Prosecutor’s charges and the confirmed charges are replete with defects.  The most egregious and prejudicial effect of these defects is the violation of Mr Ongwen’s right to notice, the cornerstone of fair trial. 

The right to notice is a fundamental principle of fair trial within the international courts and tribunals.  It states that an accused has the right “[t]o be informed promptly and in detail of the nature, cause and content of the charges […].”  This language is found in Article 67(1) of the Rome Statute (Statute), which mirrors the language of Article 14(3)(a) of the International Covenant on Civil and Political Rights (‘ICCPR’), and other international instruments, including, inter alia, Article 11 of the Universal Declaration of Human Rights (‘UDHR’),  Article 6(3) of the European Convention on Human Rights (‘ECHR’)  and Article 6 of the African (Banjul) Charter on Human and Peoples’ Rights (‘ACHPR’), as interpreted by the African Commission.

The remaining fair trial rights, especially Article 67(1)(e) of the Statute – the right to raise defences and to examine witnesses, including direct and cross examination – all emanate from the initial right to be informed of the charges, as enshrined in Article 67(1)(a) of the Statute. In addition, all these fair trial rights are interdependent.

The ICC Appeals Chamber in the Lubanga case has held that the right to notice is a fundamental right and “[t]he right to be informed in detail of the ‘nature and cause’ of the charges” is embodied in the ICCPR, the ECHR, and the ACHR.  The Appeals Chamber further stated that the facts “must be identified with sufficient clarity and detail.” (Lubanga AJ, paras. 120-121).  Moreover, the Appeals Chamber recognized the connection between the right to adequate notice and the right to prepare a defence.  (Lubanga AJ, at para. 129).

More recently, in the Bemba case, where the Defence for Mr Bemba averred that Mr Bemba did not have sufficient notice regarding specific criminal acts, the Appeals Chamber found that:

“[I]t considers axiomatic that an accused person be informed promptly and in detail of the nature, cause and content of a charge.” (Bemba AJ, at para. 186, and fn. 368).

In short, there is unequivocal judicial precedent for the principle of notice, but its application and interpretation is the subject matter of defence motions on the charging instrument and requests for motions to dismiss for facial deficiency (i.e. failure of charging instrument to meet the legal requirements).

In the Ongwen case, the Defence objections are well-preserved and concisely listed in a Trial Chamber Decision on Defence Motions Alleging Defects in the Confirmation Decision. (Defects Decision, at para. 11).

The Defence’s basic objection is that the CoC Decision violates the right to a fair trial in respect to the notice requirement.  This is evidenced by the lack of clarity and specificity which permeate the confirmed charges and modes of liability throughout the 104-page CoC Decision.  This is detailed in five pleadings – the Defects Series at Defects Series I-IV and a fifth pleading related to defects in the CoC decision regarding sexual and gender-based crimes.

Generally, there is no evidentiary support for the legal elements of the charges and modes of liability, and, in some cases, elements are simply missing.  Here are a few examples of defects in the CoC Decision, which are detailed in the Defence pleadings:

a) The CoC Decision fails to identify the mens rea elements for the modes of liability charged. For example:

1.  The pleading of indirect co-perpetration is defective because it omits the objective element of ‘power to frustrate the commission of the crime’ and the subjective element of ‘awareness of the power to frustrate the crime.’ (Lubanga AJ, para. 469; Lubanga PTC I Decision on the confirmation of charges, 29 January 2007, para. 367.)
2. The pleading of command responsibility is defective because it simply tracks the statutory language and provides no factual allegation in support of each of the elements of command responsibility. It is also incomplete, because the elements of mens rea and failure to take all necessary and reasonable measures to prevent or repress their commission are not pleaded.
3. The pleading of common purpose liability is vague because it omits the level of contribution required.

b) The pleading of the crime of persecution is defective because there are no allegations of the required persecution intent/animus in respect to Mr Ongwen. In addition, the confirmed charge of persecution fails to identify the elements of the underlying crimes which are not enumerated and not supported with evidence.

c) The confirmation of the crime of forced marriage is jurisdictionally defective because it is not found in the Statute and there is no specificity as to the legal element of mens rea, nor is there a specific link to Mr Ongwen.

d) The crime of enslavement fails to include a definition of its elements.

e) The CoC Decision fails to specify the evidence underlying the contextual elements of war crimes and crimes against humanity.

f) In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

In respect to the confirmed charges on child soldiers, there are no factual allegations to support the legal elements of mens rea which Mr Ongwen is alleged to have possessed.

The Trial Chamber’s decision rejected the Defence’s defects motions (see above).  The Trial Chamber’s decision was based on its interpretation of Rule 134(2) of the Rules of Procedure and Evidence and timeliness and held that no exceptional circumstances existed for the jurisdictional defects alleged to be considered during trial.  Hence, the Trial Chamber did not reach the merits of the arguments. 

The Appeals Chamber, on 17 July 2019, affirmed the Trial Chamber’s decision and held that Mr Ongwen could advance his arguments on appeal on challenges to the formulation of charges, if convicted.

Based on the appellate holding, it is my view that the Appeals Chamber recognized that the fair trial issues of notice can and do affect the proceedings during the trial.  Implicitly, this means that limiting objections to the commencement of trial without leave of the Trial Chamber (as per Rule 134(2)) should not be used as a barrier to raising fair trial issues throughout the proceedings, related to the confirmation of charges and modes of liability.

At a minimum, I would have expected the IER to at least acknowledge the contentious legal issues attached to the Ongwen CoC decision.  At stake is the fundamental issue of fair trial and notice.  This is particularly pertinent given the context of this CoC Decision: Mr Ongwen is the only single defendant at the ICC (and, to my knowledge, in an international court or tribunal) to be prosecuted on 70 counts and 7 modes of liability. 

Even if one were to dismiss my comments as those of a “disgruntled” defence attorney, the IER did not acknowledge the fifty-page Separate Opinion of J. Marc Perrin de Brichambaut (Separate Opinion), a member of the PTC.

While concurring with the decision, Judge de Brichambaut was explicitly critical of its lacunae, which fall short of the applicable PTC Practice Manual requirements.  These advise that confirmed charges must be distinguished from the underlying reasons of the confirmation (Separate Opinion, at para. 10).  He concludes that the “….[r]easoning [in the Ongwen CoC Decision)] was seriously deficient….”  (Separate Opinion, at para. 16). 

Judge de Brichambaut provides numerous examples in his Separate Opinion, including the failure of the decision to provide definitions of alleged crimes by Mr Ongwen at the IDP camps (at paras. 18 and 19); failure to define the contextual elements of war crimes and of crimes against humanity (at para. 20); “a small amount of evidence in support of five to six modes liability brought in relation to the attacks on the [IDP] camps” (at para. 23); no evidence in support of contribution as an indirect perpetrator re the common plan at Pajule (at para. 24); and no evidence in support of the crime of persecution (at para. 24).

Most significantly, Judge de Brichambaut links the CoC Decision’s deficient reasoning and the right of fair trial.  In his Partially Dissenting Opinion on the PTC’s decision on the Defence’s request for leave to appeal the CoC Decision, decision at paragraph 29, he finds:

“The fair conduct of the trial is seriously affected in the instant case because the weakness of the reasoning set out in the Bench’s own decision restricts the rights of the defence. The way in which the Decision on the confirmation of charges was drafted does not provide the Defence with details of what evidence was relied on or how the Chamber defined the crimes. The principle of equality of arms is violated since the Defence is not in a situation to examine the legal and factual bases for the Bench’s Decision on the confirmation of charges. The outcome of the trial may well be affected.”

It is evident in the IER that the notion of fair trial rights and the rights of the accused have been considered by the drafters throughout.  In fact, in Recommendation 191 (R191), the Report states:

“Throughout the conduct of confirmation proceedings, Judges should have regard to the purpose of the confirmation process as a filter for inadequately supported charges and to ensure the fair trial rights of the accused, including by conducting efficient and expeditious proceedings leading to a clear and unambiguous confirmation of charges decision.”

With this recommendation in mind, it is incumbent upon the IER to review its erroneous description of the Ongwen CoC Decision as an example of clarity and modify its analysis in line with its own recommendation – to be consistent with the notion of fairness.

Many thanks to Tibor Bajnovič and Parisa Zangeneh in her capacity as Opinio Juris Editorial Assistant for their assistance.