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Law and Practice of the International Criminal Tribunals—Specific Contexts

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Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings

Part of the book series: International Criminal Justice Series ((ICJS,volume 16))

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Abstract

In this chapter the law and practice of the international criminal tribunals (ICTs) with respect to the question of how to address procedural violations committed in the pre-trial phase of the proceedings is addressed in two specific contexts: arrest and detention, and disclosure. Indeed, this book is concerned with the judicial response to procedural violations committed in the pre-trial phase of international criminal proceedings, which covers not only what at the national level would be described as ‘police illegality’ or ‘unlawfulness’, of which unlawful arrest or detention is an obvious example, but also the violation by the prosecution of its pre-trial obligations, of which disclosure to the defence is a prime example. In this chapter also, the law and practice of the ad hoc Tribunals and that of the ICC are compared. The purpose of this ‘contextual’ chapter is to complement the (general) overview provided in the previous chapter, and thereby provide a fuller picture of the law and practice of the ICTs with respect to the question of how to address pre-trial procedural violations.

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Notes

  1. 1.

    As stated in Chap. 1, this book is concerned with the judicial response to procedural violations committed in the pre-trial phase of international criminal proceedings, which covers not only what at the national level would be described as ‘police illegality’ or ‘unlawfulness’, of which unlawful arrest or detention is an obvious example, but also the violation by the prosecution of its pre-trial obligations, of which disclosure to the defence is a prime example.

  2. 2.

    While this context is not addressed in this chapter, it has been dealt with, indirectly, in Chap. 5, in setting out the law and practice of the ICTs with respect to the exclusion of evidence.

  3. 3.

    This was the approach taken in Chap. 5.

  4. 4.

    It is submitted that the fact that states are under an obligation to cooperate with the ICTs (see Chap. 5, Sect. 5.2) does not make the two institutionally connected, i.e. does not make them part of the same legal system.

  5. 5.

    To borrow from Mirfield 1997, 29.

  6. 6.

    Regarding the latter, most obviously: the right to personal liberty, as provided for in Articles 9 and 5 of the ICCPR and ECHR, respectively. For a comprehensive overview of the standards governing arrest and detention at the ad hoc Tribunals, see De Meester 2014, Chap. 7.

  7. 7.

    See in this regard Chap. 5.

  8. 8.

    Pursuant to Article 19(2) ICTY Statute and Article 18(2) ICTR Statute, the judge who confirms the indictment ‘may, at the request of the Prosecutor’, issue a warrant for the arrest of the person concerned. Usually, warrants of arrest are executed by states, acting through their law enforcement authorities. This certainly seems to be the assumption underlying Rules 55–59 ICTY/ICTR RPE, which further regulate the arrest of persons suspected of crimes falling within the jurisdiction of the ad hoc Tribunals. However, pursuant to Rule 59bis of the ICTY RPE, warrants of arrest may also be transmitted to ‘an appropriate authority or international body’; in this regard it may be observed that a significant number of ICTY arrest warrants have been executed by international organizations.

  9. 9.

    Pursuant to Rule 40 of the ICTY/ICTR RPE, the Prosecutor may, in case of urgency, directly request any state to arrest a suspect ‘provisionally’. In other words, both the ICTY and ICTR RPEs allow for the (provisional) arrest of a suspect or an accused without an arrest warrant, i.e. in the absence of judicial authorization. Rule 40bis of the ICTY and ICTR RPEs provides for the transfer to and provisional detention of suspects against whom no indictment has yet been confirmed in the premises of the detention unit of the relevant tribunal. Regarding the implementation of requests for provisional detention pursuant to Rule 40 ICTY/ICTR RPE, see Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 219: ‘The Appeals Chamber notes that the Statute and Rules of the Tribunal are silent with regard to the manner and method in which an arrest of a suspect is to be effected by a cooperating State under Rule 40 of the Rules at the urgent request of the Prosecution. For example, no mention is made of ensuring the suspect’s right to be promptly informed of the reasons for his or her arrest or the right to be promptly brought before a Judge.’

  10. 10.

    Article 20(2) ICTY Statute provides that: ‘A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.’ (Article 19(2) ICTR Statute contains almost identical wording). In relation to a person suspected of crimes falling within the jurisdiction of the ad hoc Tribunals but against whom no indictment has yet been confirmed, the shared Appeals Chamber of the ad hoc Tribunals has held that ‘a suspect arrested at the behest of the Tribunal [that is, pursuant to Rule 40 ICTY/ICTR RPE] has a right to be promptly informed of the reasons for his or her arrest, and this right comes into effect from the moment of arrest and detention’. See Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 226, referring to Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) para 78. Finally, in respect of arrests executed by international organizations, Rule 59bis(B) ICTY RPE confers on the accused a right to be informed promptly of the charges.

  11. 11.

    The Appeals Chamber has confirmed that a person who has been arrested and detained pursuant to Rule 40 ICTY and ICTR RPEs, i.e. by national authorities at the request of the ad hoc Tribunals, has the right to be brought promptly before a national judge. See Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) paras 231‒233. In respect of suspects transferred to, and provisionally detained, at the relevant ad hoc Tribunal pursuant to Rule 40bis of the ICTY and ICTR RPEs, the right to be brought promptly before the judicial authorities is provided for in Rule 40bis(F) ICTY RPE and Rule 40bis(J) ICTR RPE. Otherwise, upon transfer to the ad hoc Tribunals, whether through state cooperation or by international organizations pursuant to Rule 59bis, Rule 62 ICTY/ICTR RPE provides for the swift initial appearance of the accused, into which the right may be read. See e.g. Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 70.

  12. 12.

    At the ad hoc Tribunals, challenges to the lawfulness of arrest and/or detention have been brought and/or construed as challenges to the exercise of jurisdiction. See e.g. Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002); Prosecutor v Nikolić (Decision on Notice of Appeal) IT-94-2-AR72, A Ch (9 January 2003); and Prosecutor v Tolimir (Decision on Submissions of the Accused concerning Legality of Arrest) IT-05-88/2-PT, T Ch II (18 December 2008) para 12. While the consequence of a successful challenge to the lawfulness of detention within the meaning of Articles 9(4) ICCPR and 5(4) ECHR—‘release’—should be distinguished from the consequence of a successful challenge to jurisdiction on the basis of unlawful arrest or detention—permanent stay of proceedings—such challenges and consequences are ‘related’. As Paulussen points out, ‘although the release of [Articles 9(4) ICCPR and 5(4) ECHR] does not preclude re-arrest, a serious violation of [the right to personal liberty] may nevertheless lead to a [permanent stay of proceedings], not because these provisions say so but because the judge may decide so in his discretion in finding the most appropriate remedy’. See Paulussen 2010, 169‒170.

  13. 13.

    Nowak 2005, 221.

  14. 14.

    See e.g. Prosecutor v Ngirumpatse (Decision on the Defence Motion Challenging the Lawfulness of the Arrest and Detention and Seeking Return or Inspection of Seized Items) ICTR-97-44-I, T Ch II (10 December 1999) paras 56‒57; Prosecutor v Karemera (Decision on the Defence Motion for the Release of the Accused) ICTR-98-44-I, T Ch II (10 December 1999) 6‒7, Prosecutor v Kajelijeli (Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing) ICTR-98-44-I, T Ch II (8 May 2000) paras 34‒35; and Prosecutor v Nzirorera (Decision on the Defence Motion Challenging the Legality of the Arrest and Detention of the Accused and Requesting the Return of Personal Items Seized) ICTR-98-44-T, T Ch II (7 September 2000) para 27. See also Prosecutor v Rwamakuba and others (Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused) ICTR-98-44-T, T Ch II (12 December 2000) para 22, in which the Trial Chamber referred to the aforementioned ICTR authorities, although in that case there had, according to the Trial Chamber, not been a request pursuant to Rule 40 ICTR RPE (see ibid., para 27).

  15. 15.

    See in this regard n 9 and accompanying text.

  16. 16.

    Prosecutor v Kajelijeli (Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing) ICTR-98-44-I, T Ch II (8 May 2000) para 34.

  17. 17.

    Ibid., para 34 (emphasis added).

  18. 18.

    Prosecutor v Ngirumpatse (Decision on the Defence Motion Challenging the Lawfulness of the Arrest and Detention and Seeking Return or Inspection of Seized Items) ICTR-97-44-I, T Ch II (10 December 1999) para 56.

  19. 19.

    See Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 219.

  20. 20.

    Prosecutor v Semanza (Decision on the “Motion to Set Aside the Arrest and Detention of Laurent Semanza as Unlawful”) ICTR-97-20-I, T Ch III (6 October 1999) paras 30‒31. See also Prosecutor v Barayagwiza (Decision on the Extremely Urgent Motion by the Defence for Orders to Review and/or Nullify the Arrest and Provisional Detention of the Suspect) ICTR-97-19- I, T Ch II (17 November 1998) 5.

  21. 21.

    Prosecutor v Rwamakuba and others (Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused) ICTR-98-44-T, T Ch II (12 December 2000) para 23 (emphasis added).

  22. 22.

    Ibid., paras 30, 33 and 45: ‘[t]he Tribunal having no jurisdiction over the conditions of that period of detention, any challenges in this respect are to be brought before the Namibian jurisdictions’.

  23. 23.

    DeFrancia 2001, 1403.

  24. 24.

    The United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium.

  25. 25.

    Regarding that mechanism, see n 8 and accompanying text.

  26. 26.

    Prosecutor v Mrksić, Radić, Šljivančanin and Dokmanović (Decision on the Motion for Release by the Accused Slavko Dokmanović) IT-95-13a-PT, T Ch II (22 October 1997) para 16.

  27. 27.

    Ibid., para 19.

  28. 28.

    Both provisions provide for the right to personal liberty. Article 9(1) provides that: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ Article 5(1) provides that: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the … [cases provided for in subparagraphs (a) to (f) of Article 5(1) ECHR] and in accordance with a procedure prescribed by law’.

  29. 29.

    Prosecutor v Mrksić, Radić, Šljivančanin and Dokmanović (Decision on the Motion for Release by the Accused Slavko Dokmanović) IT-95-13a-PT, T Ch II (22 October 1997) paras 67 and 75.

  30. 30.

    Ibid., paras 57 and 67.

  31. 31.

    Ibid., para 78 (emphasis in original).

  32. 32.

    For a detailed account of such motions, see Sloan 2003.

  33. 33.

    Prosecutor v Simić, Simić, Tadić, Todorović and Zarić (Decision on Motion for Judicial Assistance to be Provided by SFOR and Others) IT-95-9-PT, T Ch III (18 October 2000) para 61 and the ‘Disposition’.

  34. 34.

    Sloan 2003, 92‒93.

  35. 35.

    Prosecutor v Milošević (Decision on Preliminary Motions) IT-99-37-PT, T Ch (8 November 2001) para 35.

  36. 36.

    Ibid., paras 35 and 44.

  37. 37.

    Ibid., para 46.

  38. 38.

    Ibid., para 51. The reference to ‘egregious violations’ is a reference to the ICTR case of Barayagwiza, which is discussed in more detail below.

  39. 39.

    However, it was not the first case to shed light on the availability of a permanent stay of proceedings in case of unlawful deprivation of liberty more generally; earlier, the ICTR case of Barayagwiza had shed light on the availability of a (permanent) stay of proceedings in case of unlawful detention. This case is discussed below; see n 82–109 and accompanying text.

  40. 40.

    The Defence and Prosecution agreed on these facts. See Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 21.

  41. 41.

    Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) paras 10–14.

  42. 42.

    Ibid., para 2.

  43. 43.

    Ibid., para 29.

  44. 44.

    Ibid., paras 25 and 58.

  45. 45.

    Ibid., para 25.

  46. 46.

    Ibid., para 29 (emphasis added).

  47. 47.

    Ibid., para 71.

  48. 48.

    Ibid., para 68.

  49. 49.

    Ibid., para 69. In other words, in light of its conclusion on the attribution of the illegal conduct to SFOR, the Trial Chamber did not find it necessary to discuss whether or not an agency relationship existed between SFOR and the Prosecution, such that such conduct could be attributed to the Prosecution. On appeal (Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003)), the Appeals Chamber first considered the question of whether the facts of the case warranted the remedy sought, i.e. for the Tribunal to decline exercising of jurisdiction. Answering this question in the negative, the Appeals Chamber did not consider it necessary to assess whether the acts of the unknown individuals could be attributed to SFOR and by extension, the Prosecution.

  50. 50.

    See in this regard Chap. 5, n 13−20 and accompanying text.

  51. 51.

    Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 100.

  52. 52.

    Ibid., para 100.

  53. 53.

    Ibid., para 101 (emphasis added).

  54. 54.

    Ibid., para 105.

  55. 55.

    Ibid., para 111, referring to Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 77 and 73. In so doing, the Trial Chamber confirmed that it was the second, integrity ’, limb of the abuse of process doctrine, as it applies at the ad hoc Tribunals that was at stake in this case. See generally Chap. 5, Sect. 5.3.1.1.

  56. 56.

    Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114.

  57. 57.

    Ibid., para 114 (emphasis added), referring to Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 73 (which is discussed in more detail below, under ‘Detention’).

  58. 58.

    Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) para 114 (emphasis added). See also para 106, where the involvement of the prosecuting forum is identified as a factor weighing in favour of finding that a human rights violation has occurred.

  59. 59.

    Ibid., para 114.

  60. 60.

    Ibid., para 115.

  61. 61.

    Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) para 26.

  62. 62.

    Ibid., para 26.

  63. 63.

    Ibid., paras 29‒30.

  64. 64.

    Ibid., para 30. See also Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 206.

  65. 65.

    Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) para 32 (emphasis added).

  66. 66.

    Prosecutor v Tolimir (Decision on Preliminary Motions on the Indictment pursuant to Rule 72 of the Rules) IT-05-88/2-PT, T Ch II (14 December 2007) para 8.

  67. 67.

    Ibid., para 19.

  68. 68.

    Ibid., para 25. For such factual allegations, see para 9.

  69. 69.

    Ibid., para 26.

  70. 70.

    Ibid., para 26.

  71. 71.

    This reasoning is reminiscent of that adopted by ICTR trial chambers in the ‘arrest cases’. See n 14‒18 and accompanying text.

  72. 72.

    Prosecutor v Tolimir (Decision on Submissions of the Accused concerning Legality of Arrest) IT-05-88/2-PT, T Ch II (18 December 2008) para 12.

  73. 73.

    Ibid., para 12.

  74. 74.

    Prosecutor v Tolimir (Decision on Zdravko Tolimir’s Appeal Against the Decision on Submissions of the Accused Concerning Legality of Arrest) IT-05-88/2-AR72.2, A Ch (12 March 2009) para 7.

  75. 75.

    Ibid., para 7.

  76. 76.

    Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 2.

  77. 77.

    Ibid., para 2.

  78. 78.

    Ibid., para 1.

  79. 79.

    Ibid., para 6.

  80. 80.

    Ibid., para 5.

  81. 81.

    Ibid., para 5.

  82. 82.

    This period may be extended twice by 30 days (see Rules 40bis(F) and (G), whilst pursuant to Rule 40bis(H), the total period of provisional detention ‘shall in no case exceed 90 days after the day of transfer of the suspect to the Tribunal’.

  83. 83.

    Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 54 (original footnote omitted, emphasis added).

  84. 84.

    Ibid., para 54 (emphasis added).

  85. 85.

    Ibid., para 61.

  86. 86.

    Ibid., para 67.

  87. 87.

    Ibid., para 63.

  88. 88.

    Ibid., para 69.

  89. 89.

    Ibid., para 70.

  90. 90.

    Ibid., para 71.

  91. 91.

    Ibid., paras 71 and 91‒99.

  92. 92.

    Ibid., para 72.

  93. 93.

    Ibid., paras 73‒77.

  94. 94.

    Ibid., paras 80‒84.

  95. 95.

    Ibid., para 85.

  96. 96.

    In other words, by the time the Appeals Chamber got around to considering the violation of the right to be informed promptly of the charges, it had already declared the abuse of process doctrine applicable on the basis of other rights violations that were clearly attributable to the ICTR. See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 71‒72.

  97. 97.

    Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 87‒90.

  98. 98.

    Ibid., para 73.

  99. 99.

    Ibid., para 77.

  100. 100.

    Ibid., para 77. Nevertheless, it should be noted that the Appeals Chamber’s decision is not a model of clarity as regards the rationales for staying the proceedings or the rationale that it was pursuing. More will be said about this in Chap. 7.

  101. 101.

    Ibid., paras 73‒75. See also the ICTY case of Karadžić, in which the Appeals Chamber confirmed that there are two limbs to the abuse of process doctrine (fair trial and integrity ) and that the Appeals Chamber’s finding in Barayagwiza that, invoking the abuse of process doctrine as a matter of discretion ‘is a process by which Judges may decline to exercise the court’s jurisdiction in cases where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity’ (ibid., para 74), refers to the second limb. See Prosecutor v Karadžić (Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement) IT-95-5/18-AR73.4, A Ch (12 October 2009) para 51.

  102. 102.

    Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) paras 73‒77.

  103. 103.

    See n 91 and n 96.

  104. 104.

    As based on Article 25 ICTR Statute and Rule 120 ICTR RPE.

  105. 105.

    Prosecutor v Barayagwiza (Decision (Prosecutor’s Request for Review or Reconsideration)) ICTR-97-19-AR72, A Ch (31 March 2000) para 71 (emphasis added). See also para 74.

  106. 106.

    Ibid., para 74.

  107. 107.

    Ibid., para 75.

  108. 108.

    In respect of some violations, which in the original decision (Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999)) were attributable to the ICTR, the issue of attribution was not discussed at all upon review. As such, it is fair to assume that these violations remained attributable to the ICTR.

  109. 109.

    Prosecutor v Nahimana, Barayagwiza and Ngeze (Judgement and Sentence) ICTR-99-52-T, T Ch I (3 December 2003) para 1107; Prosecutor v Nahimana, Barayagwiza and Ngeze (Judgement) ICTR-99-52-A, A Ch (28 November 2007) para 1097.

  110. 110.

    The Appellant had been detained in Cameroon at the Prosecutor’s request during ‘two distinct periods’: ‘The first period ran from 15 April 1996, the date of the Prosecutor’s first request under Rule 40, to 17 May 1996, when the Prosecutor informed the authorities in Cameroon that he was dropping his case against the Appellant. The second period of detention ran from 21 February 1997, the date of the Prosecutor’s second Rule 40 request, to 19 November 1997, when the Appellant was transferred to the Tribunal’s Detention Facility.’ See Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) para 79.

  111. 111.

    Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) paras 87 and 90. In relation to the ‘second period of detention’ the Appeals Chamber found that, although the lapse of 18 days between the date at which the Appellant’s right to be informed of the reasons for arrest came into effect and the date on which he was informed of such reasons could be said to constitute a violation of that right, the violation was ‘less serious [than the violation in the first period of detention] since the Appellant had been informed in substance of the nature of the Prosecutor’s charges against him during his first period of detention’. See para 90.

  112. 112.

    See n 83 and accompanying text.

  113. 113.

    Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) para 97. See also paras 91‒96. The Appeals Chamber did not, however, address the question of whether this Rule was in conformity with international human rights jurisprudence; it only appeared concerned with the legislative history: ‘Although the interpretation whereby the time-limit is to be calculated from the day the Order is filed is of course in keeping with the spirit and letter of the Rule adopted on 15 May 1996, the [AC] must take into account the abrogative effect of any legislative amendment.’ See para 96.

  114. 114.

    Ibid., paras 99‒100.

  115. 115.

    Ibid., paras 101‒104.

  116. 116.

    Interestingly, the Appeals Chamber did not refer to international human rights law in this regard. See n 89 and accompanying text.

  117. 117.

    Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) para 107.

  118. 118.

    Ibid., paras 108‒110.

  119. 119.

    Ibid., para 111. The precise meaning of this statement is, however, unclear. Was the Appeals Chamber of the view that the violation could not be attributed to the ICTR for the purpose of providing a remedy?

  120. 120.

    See n 27 and accompanying text.

  121. 121.

    Prosecutor v Semanza (Decision) ICTR-97-23-A, A Ch (31 May 2000) para 114.

  122. 122.

    Ibid., paras 116‒121.

  123. 123.

    Ibid., para 124.

  124. 124.

    Ibid., para 125.

  125. 125.

    Ibid., para 125. For the remedy sought, see para 59.

  126. 126.

    Prosecutor v Semanza (Judgement and Sentence) ICTR-97-20-T, T Ch III (15 May 2003) paras 579‒580 (although the Trial Chamber acknowledged that the violation of the right to challenge the lawfulness of detention had not caused the Appellant material prejudice ), as upheld in Prosecutor v Semanza (Judgement) ICTR-97-20-A, A Ch (20 May 2005) paras 323‒329.

  127. 127.

    In total, the Appellant was in the custody of the authorities of Benin from the date of his initial arrest until his transfer to the custody of the Tribunal for 95 days. During this period, the Appellant was in the custody of Benin authorities for 85 days before being served with an arrest warrant or a confirmed indictment. See Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 210.

  128. 128.

    Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 220. For its finding that ‘[u]nder the prosecutorial duty of due diligence, the Prosecution is required to ensure that, once it initiates a case, “the case proceeds to trial in a way that respects the rights of the accused”’, the Appeals Chamber relied on its earlier findings in the Barayagwiza case. In that case, it had held that: ‘Because the Prosecutor has the authority to commence the entire legal process, through investigation and submission of an indictment for confirmation, the Prosecutor has been likened to the “engine” driving the work of the Tribunal. […] Consequently, once the Prosecutor has set this process in motion, she is under a duty to ensure that, within the scope of her authority, the case proceeds to trial in a way that respects the rights of the accused.’ See Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 92.

  129. 129.

    Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 222.

  130. 130.

    Ibid., para 224.

  131. 131.

    Ibid., paras 226‒227.

  132. 132.

    Ibid., para 227. See also para 251.

  133. 133.

    Ibid., para 229. The Appeals Chamber also referred to Article 9(2) ICCPR.

  134. 134.

    Ibid., para 230.

  135. 135.

    Ibid., para 231, referring to Prosecutor v Kajelijeli (Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing) ICTR-98-44-I, T Ch II (8 May 2000). See also paras 232‒233 and 251.

  136. 136.

    Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 231. See also paras 232 and 251 in this regard.

  137. 137.

    Ibid., para 232.

  138. 138.

    Ibid., para 252 (emphasis added).

  139. 139.

    Ibid., para 239.

  140. 140.

    Ibid., para 250. According to the Appeals Chamber, this constituted ‘extreme undue delay’.

  141. 141.

    Ibid., para 253.

  142. 142.

    Ibid., paras 247‒249.

  143. 143.

    Ibid., paras 248 and 249.

  144. 144.

    Ibid., paras 243‒245 and 253. This right is not discussed here since it is not sufficiently related to the topic of unlawful detention.

  145. 145.

    Ibid., paras 252 and 253.

  146. 146.

    Ibid., para 255.

  147. 147.

    Ibid., paras 255 and 320‒324.

  148. 148.

    Ibid., para 255 in conjunction with para 206, referring to Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) and Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003).

  149. 149.

    Prosecutor v Rwamakuba and others (Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused) ICTR-98-44-T, T Ch II (12 December 2000) paras 30, 33 and 45. See n 22 and accompanying text.

  150. 150.

    Ibid., para 36.

  151. 151.

    Ibid., paras 40 and 43.

  152. 152.

    Ibid., para 43. According to the Appeals Chamber, Rwamakuba had not been offered the assistance of a duty counsel for a period of four months. See Prosecutor v Rwamakuba (Decision on Appeal against Decision on Appropriate Remedy) ICTR-98-44C-A, A Ch (13 September 2007) para 16.

  153. 153.

    Prosecutor v Rwamakuba and others (Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused) ICTR-98-44-T, T Ch II (12 December 2000) para 44.

  154. 154.

    Prosecutor v Rwamakuba (Decision (Appeal against Dismissal of Motion concerning Illegal Arrest and Detention)) ICTR-98-44-A, A Ch (11 June 2001) 4 (emphasis added).

  155. 155.

    Prosecutor v Rwamakuba (Judgement) ICTR-98-44C-T, T Ch III (20 September 2006).

  156. 156.

    Prosecutor v Rwamakuba (Decision on Appropriate Remedy) ICTR-98-44C-T, T Ch III (31 January 2007) para 58.

  157. 157.

    Ibid., 23.

  158. 158.

    Prosecutor v Rwamakuba (Decision on Appeal against Decision on Appropriate Remedy) ICTR-98-44C-A, A Ch (13 September 2007).

  159. 159.

    See n 76 and accompanying text.

  160. 160.

    Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 2.

  161. 161.

    Ibid., para 6 n 17.

  162. 162.

    Ibid., para 6. Nevertheless, the Trial Chamber’s language appears cautious in this regard.

  163. 163.

    Ibid., para 6, referring to, inter alia, Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999) para 42.

  164. 164.

    According to the Trial Chamber, while Rule 55 ICTR (and ICTY) RPE clearly defines such obligations, Rule 40 ICTR (and ICTY) RPE does not. See Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 6.

  165. 165.

    Now that the obligations of the Prosecution under Rule 40 have been ‘aligned … with the obligations outlined in Rule 55’, such argument would also appear to apply to Rule 40. See Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 6, referring to Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) paras 220‒223.

  166. 166.

    Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 6 (emphasis added).

  167. 167.

    Pursuant to Article 55(1)(d) ICC Statute, any deprivation of liberty of persons under investigation by the ICC be carried out ‘on such grounds and in accordance with such procedures as are established in [the ICC Statute]’. The relevant ‘procedures as are established’ in the ICC Statute can be found in Article 58 (which is concerned with the issuance of warrants for arrest or provisional arrest and summonses to appear), Article 59 (which ‘covers the intermediate stage’, i.e. the arrest and surrender by the custodial state) and Article 60 (which is concerned with the continued detention at the seat of the ICC) ICC Statute. At the ICC, no provision is made for the arrest of a person without judicial authorization, i.e. a warrant of arrest issued by the Pre-Trial Chamber (see Article 58(5) ICC Statute), which may be contrasted to the law of the ad hoc Tribunals. See in this regard n 9 and accompanying text. However, ‘[i]n urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in … [the ICC Statute]’, whereby a time-limit of 60 days applies. For a comprehensive overview of the standards governing arrest and detention at the ICC, see De Meester 2014, Chap. 7.

  168. 168.

    Regarding the latter, most obviously: the right to personal liberty, as provided for in Articles 9 and 5 of the ICCPR and ECHR, respectively.

  169. 169.

    See in this regard De Meester 2014, 647.

  170. 170.

    Currie 2007, 374.

  171. 171.

    Indeed, Article 59(2) provides that ‘the custodial State … shall’ make such determinations.

  172. 172.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 41 (emphasis added).

  173. 173.

    Ibid., para 41.

  174. 174.

    Nevertheless, De Meester laments that the Appeals Chamber does not expressly refer to rights in this context. See De Meester 2014, 645 n 189.

  175. 175.

    Prosecutor v Lubanga (Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute) ICC-01/04-01/06, P T Ch I (3 October 2006) 6 (emphasis added).

  176. 176.

    Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 104 (emphasis added).

  177. 177.

    While in setting out the law and practice of the ad hoc Tribunals with respect to the question of how to address procedural violations arising in the context of arrest and detention it was instructive to distinguish between unlawful arrest cases and unlawful detention cases (see in this regard n 31 and accompanying text), the distinction is less visible in the case law of the ICC. Accordingly, in setting out the relevant law and practice of the ICC, no such distinction will be made.

  178. 178.

    Prosecutor v Lubanga (Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute) ICC-01/04-01/06, P T Ch I (3 October 2006) 9.

  179. 179.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 41.

  180. 180.

    Prosecutor v Lubanga (Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute) ICC-01/04-01/06, P T Ch I (3 October 2006) 9 (emphasis added). Earlier on in the decision, it had held that Article 59(2) ICC Statute did not impose an obligation on the national authorities to review the lawfulness of the arrest and detention of Lubanga in the period prior to the execution of the ICC request for arrest and surrender (ibid., 6).

  181. 181.

    Ibid., 10.

  182. 182.

    Ibid., 10.

  183. 183.

    Ibid., 10‒11.

  184. 184.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) paras 42‒43.

  185. 185.

    See generally Chap. 5, Sect. 5.3.1.1.

  186. 186.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 37.

  187. 187.

    Ibid., para 39.

  188. 188.

    Ibid., para 37. See also Prosecutor v Lubanga (Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction) ICC-01/04-01/06, A Ch (1 December 2014) para 147.

  189. 189.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) paras 36 and 44.

  190. 190.

    See Chap. 5, n 246−252 and accompanying text.

  191. 191.

    Essentially, this means that, cases in which torture or serious mistreatment are alleged aside (see n 182–183 and accompanying text, and see Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 43), the ‘Court is not responsible for detention in the custodial State which was not at the behest of the tribunal’. See De Meester 2014, 650. He argues that: the ‘inherent risk’ of such a position is that ‘it may lead to a situation whereby the ICC Registrar postpones the sending of the request for arrest and surrender until such time that he or she knows that the person can immediately be surrendered’. In this way ‘the Court can avoid incurring responsibility for pre-transfer violations of the suspect’. Ibid., 652.

  192. 192.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 42 (emphasis added).

  193. 193.

    Ibid., para 42.

  194. 194.

    Ibid., para 44.

  195. 195.

    See Prosecutor v Katanga and Ngudjolo (Public redacted version of the “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings” of 20 November 2009 (ICC-01/04-01/07-1666-Conf-Exp)) ICC-01/04-01/07, T Ch II (3 December 2009).

  196. 196.

    Prosecutor v Katanga and Ngudjolo (Judgment on the Appeal of Mr. Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”) ICC-01/04-01/07, A Ch (12 July 2010).

  197. 197.

    Ibid., para 51.

  198. 198.

    Prosecutor v Katanga and Ngudjolo (Public redacted version of the “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings” of 20 November 2009 (ICC-01/04-01/07-1666-Conf-Exp)) ICC-01/04-01/07, T Ch II (3 December 2009) para 39.

  199. 199.

    Ibid., para 40.

  200. 200.

    Prosecutor v Katanga and Ngudjolo (Judgment on the Appeal of Mr. Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”) ICC-01/04-01/07, A Ch (12 July 2010) para 41.

  201. 201.

    Ibid., para 48.

  202. 202.

    Ibid., para 24.

  203. 203.

    Ibid., para 64.

  204. 204.

    Ibid., para 66.

  205. 205.

    See Prosecutor v Katanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/07, T Ch II (7 March 2014).

  206. 206.

    Prosecutor v Katanga (Decision on Sentence pursuant to Article 76 of the Statute) ICC-01/04-01/07, T Ch II (23 May 2014) para 136 (emphasis added, footnotes in original omitted). See also para 138: ‘In the case in point, and as elaborated upon hereunder, the Court considers that Germain Katanga’s detention on behalf of the Court commenced on 18 September 2007. The Court therefore considers that the time in detention in the DRC before this date was not spent on behalf of the Court and it will therefore analyze possible violations only as from 18 September 2007.’

  207. 207.

    Ibid., para 137 (footnotes in original omitted).

  208. 208.

    Ibid., para 138.

  209. 209.

    Ibid., para 139.

  210. 210.

    Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 68.

  211. 211.

    Ibid., para 70.

  212. 212.

    Ibid., para 71.

  213. 213.

    Ibid., para 72.

  214. 214.

    Ibid., para 73.

  215. 215.

    Ibid., para 74.

  216. 216.

    Ibid., paras 75 and 111.

  217. 217.

    Ibid., para 75.

  218. 218.

    Ibid., para 76.

  219. 219.

    Ibid., para 89, referring to Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 37. The Pre-Trial Chamber also referred to other ‘tests’ developed at the national level and referred to by the Appeals Chamber in Lubanga, but which the Appeals Chamber did not adopt as such. See ibid., paras 89 n 135, 91 n 137 and n 138.

  220. 220.

    Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 91.

  221. 221.

    Ibid., para 92.

  222. 222.

    Ibid., para 93.

  223. 223.

    Ibid., para 93.

  224. 224.

    Ibid., paras 96‒97.

  225. 225.

    Ibid., paras 99‒102.

  226. 226.

    Ibid., paras 103‒106.

  227. 227.

    Ibid., para 107.

  228. 228.

    Ibid., para 108.

  229. 229.

    Ibid., para 109, referring to Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 42.

  230. 230.

    Prosecutor v Gbagbo (Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of Articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC-02/11-01/11-129)”) ICC-02/11-01/11, P T Ch I (15 August 2012) para 110.

  231. 231.

    Ibid., para 111.

  232. 232.

    Ibid., para 112.

  233. 233.

    Ibid., para 112.

  234. 234.

    Prosecutor v Muthaura and Kenyatta (Decision on the application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi) ICC-01/09-02/11, T Ch V (19 November 2012) para 6. Article 85(1) ICC Statute provides that: ‘Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’

  235. 235.

    Prosecutor v Muthaura and Kenyatta (Decision on the application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi) ICC-01/09-02/11, T Ch V (19 November 2012) para 7.

  236. 236.

    Ibid., para 9.

  237. 237.

    Ibid., para 8, where the Trial Chamber refers to Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 42.

  238. 238.

    Prosecutor v Muthaura and Kenyatta (Decision on the application for a ruling on the legality of the arrest of Mr. Dennis Ole Itumbi) ICC-01/09-02/11, T Ch V (19 November 2012) para 9.

  239. 239.

    Ibid., para 10.

  240. 240.

    DeFrancia 2001, 1404 (emphasis added).

    ICTs have also relied on the cooperation of international organizations to obtain custody of persons suspected of having committed international crimes. For a detailed review of this practice, see Zhou 2006.

  241. 241.

    See n 8–9 and accompanying text.

  242. 242.

    See n 14–19 and accompanying text.

  243. 243.

    See n 21 and accompanying text.

  244. 244.

    DeFrancia 2001, 1408 (emphasis added, footnote in original omitted). The author refers to Prosecutor v Kajelijeli (Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing) ICTR-98-44-I, T Ch II (8 May 2000) para 35.

  245. 245.

    See n 21 and accompanying text.

  246. 246.

    DeFrancia himself does not appear to be convinced by the distinction; on the basis of the distinction, he observes that ‘the ad hoc Tribunals are clearly not wholly committed to taking full responsibility for the due process rights of the suspects from the moment of enforcement’. See DeFrancia 2001, 1408. See also Sluiter 2003, 942‒943.

  247. 247.

    See n 30 and accompanying text.

  248. 248.

    Sluiter 2009, 467 (emphasis added).

  249. 249.

    That is, that goes beyond that which is required to justify an enquiry into the circumstances surrounding an alleged illegal or unlawful detention or an alleged illegal or unlawful arrest, respectively.

  250. 250.

    In respect of some violations, which in the original decision (Prosecutor v Barayagwiza (Decision) ICTR-97-19-AR72, A Ch (3 November 1999)) were attributable to the ICTR, the issue of attribution was not discussed at all upon review. As such, it is fair to assume that these violations remained attributable to the ICTR.

  251. 251.

    See e.g. Prosecutor v Nikolić (Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal) IT-94-2-PT, T Ch II (9 October 2002) paras 56‒69, 113‒114 and 116; Prosecutor v Nikolić (Decision on Interlocutory Appeal Concerning Legality of Arrest) IT-94-2-AR73, A Ch (5 June 2003) para 33; Prosecutor v Tolimir (Decision on Preliminary Motions on the Indictment pursuant to Rule 72 of the Rules) IT-05-88/2-PT, T Ch II (14 December 2007) para 26; Prosecutor v Karadžić (Decision on the Accused’s Holbrooke Agreement Motion) IT-95-5/18-PT, T Ch III (8 July 2009) para 85; and Prosecutor v Karadžić (Decision on the Accused’s Motion for Remedy for Violation of Rights in Connection with Arrest) IT-95-5/18-PT, T Ch III (31 August 2009) para 6.

  252. 252.

    See in this regard n 167 and accompanying text.

  253. 253.

    Sluiter 2009, 473.

  254. 254.

    See n 17 and accompanying text.

  255. 255.

    See n 180–181, 191 and 232 and accompanying text.

  256. 256.

    See n 192 and accompanying text.

  257. 257.

    See n 128 and 138 and accompanying text.

  258. 258.

    Neither the Pre-Trial Chamber nor the Appeals Chamber in Lubanga properly addressed this issue. Taylor and Jalloh are highly critical in this regard: ‘It is … arguable that, by failing to set out standards of prosecutorial due diligence [within the context of the rights of suspects who have been apprehended and detained by national authorities] and effectively looking the other way, the Appeals Chamber placed its imprimatur on the practice of detaining possible ICC suspects in domestic prisons indefinitely or until such time that the Prosecutor decided to file an application for an ICC arrest warrant against the suspect in question. The impact this had … is exemplified by the decision of the Prosecutor not to apply for an arrest warrant against Germain Katanga until June 25, 2007, even though the Prosecution was aware that he had been in detention since March 2005.’ Taylor and Jalloh 2013, 321.

    It is worth noting that in Gbagbo, the Pre-Trial Chamber seemed to reject the duty of care argument. See n 231 and accompanying text.

  259. 259.

    See also Chap. 5, n 267−280 and accompanying text.

  260. 260.

    Paulussen 2010, 460. See also 479‒480.

  261. 261.

    See n 234–239 and accompanying text, and see Chap. 5, n 375−380 and accompanying text.

  262. 262.

    Sloan 2006, 341.

  263. 263.

    See n 80 and accompanying text.

  264. 264.

    Sluiter 2005, 245‒246.

  265. 265.

    See e.g. Taylor and Jalloh 2013, 320–321.

  266. 266.

    Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006) ICC-01/04-01/06, A Ch (14 December 2006) para 37.

  267. 267.

    Sluiter 2009, 471

  268. 268.

    Ibid., 471‒472.

  269. 269.

    Ibid., 472.

  270. 270.

    As stated in Chap. 1, this book is concerned with the judicial response to procedural violations committed in the pre-trial phase of international criminal proceedings, which covers not only what at the national level would be described as ‘police illegality’ or ‘unlawfulness’, of which unlawful arrest or detention is an obvious example, but also the violation by the prosecution of its pre-trial obligations, of which disclosure to the defence is a prime example. The fact that, at the ICTs, disclosure is an ongoing obligation, meaning that, ‘as new material comes into the possession of the [p]rosecution, it should be assessed as to its potentially exculpatory nature and disclosed accordingly’ (Prosecutor v Karadžić (Decision on Prosecution’s Request for Reconsideration of Trial Chamber’s 11 November 2010 Decision) IT-95-5/18, T Ch III (10 December 2010) para 11; thus, it does not mean that the prosecution ‘can delay the disclosure of such material already in its possession, or identify and disclose potentially exculpatory material on a “rolling basis”’ (ibid.)), does not alter the fact such disclosure should, in principle, be effected prior to the commencement of trial, i.e. that prosecution disclosure is, essentially, a pre-trial obligation. Some of the cases below concern the late disclosure of ‘new material’; they have been included on the basis their instructiveness for the question of how violations of the prosecution’s pre-trial disclosure obligations should be addressed.

  271. 271.

    The principle disclosure obligations of the prosecution can be found in Rules 66 and 68 of both the ICTY and ICTR RPEs (both of which are subject to restrictions). While the purpose of the obligation under Rule 66(A) ICTY/ICTR RPE is, essentially, to put the defence on notice as to the case against the accused and allow it to prepare its defence accordingly, Rule 68 imposes on the prosecution an obligation to disclose to the defence ‘as soon as practicable, any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence’. In other words, Rule 68 provides for the disclosure of (potentially) exculpatory material (as well as other material). For a comprehensive overview of the standards governing disclosure at the ad hoc Tribunals, see Gibson and Lussiaà-Berdou 2010; and Fiori 2015.

  272. 272.

    A failure on the part of the prosecution to disclose to the defence information relevant to the case against the accused may raise issues under the right to a fair trial, as provided for in, inter alia, Articles 14 ICCPR and 6 ECHR. Neither of these provisions expressly provides for a ‘right to disclosure’; however, such a right has been read into the provisions. A right to disclosure has been read into Article 14(3)(b) ICCPR, i.e. the right of everyone charged with a criminal offence to have ‘adequate time and facilities for the preparation of his defence’, and linked to the principle of equality of arms (see in this regard HRC ‘General Comment no 32. Article 14: Right to equality before courts and tribunals and to a fair trial’ (23 August 2007) UN Doc CCPR/C/GC/32, para 33). At the ECtHR, the right to disclosure has been expressly linked to the principle of the equality of arms and that of adversarial proceedings, both of which are inherent in the ‘fair hearing’ requirement of Article 6(1) ECHR. In addition, it has been linked to the more specific rights under Article 6(3), and especially the right provided for under Article 6 (3)(b) of the ECHR, which provides that: ‘Everyone charged with a criminal offence has the … [right] … to have adequate time and facilities for the preparation of his defence’. See generally Harris et al. 2014, 416–418.

  273. 273.

    The ICTR RPE does not contain such a rule. However, ICTR chambers have responded to disclosure violations in much the same way as the ICTY has.

  274. 274.

    Prosecutor v Furundžija (The Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution) IT-95-17/1-PT, T Ch II (5 June 1998) para 2.

  275. 275.

    For the nature of such obligations, see n 271 and accompanying text.

  276. 276.

    Prosecutor v Furundžija (The Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution) IT-95-17/1-PT, T Ch II (5 June 1998) 6.

  277. 277.

    Ibid., 6.

  278. 278.

    Ibid., para 8.

  279. 279.

    Ibid., para 12. A similar approach was taken in Karemera, Ngirumpatse and Nzirorera. According to the Trial Chamber, ‘the lack of diligence in the Prosecution’s compliance with its disclosure obligations’ was ‘unacceptable’, ‘offensive’, obstructed the proceedings and was ‘contrary to the interests of justice’. It therefore found that ‘a sanction should be imposed against the Prosecution, by formally drawing the attention of the Prosecutor himself, as the disciplinary body, to this misconduct’. Prosecutor v Karemera, Ngirumpatse and Nzirorera (Decision on Defence Motion for Disclosure of RPF Material and for Sanctions Against the Prosecution) ICTR-98-44-T, T Ch III (19 October 2006) para 17.

  280. 280.

    Prosecutor v Furundžija (The Trial Chamber’s Formal Complaint to the Prosecutor Concerning the Conduct of the Prosecution) IT-95-17/1-PT, T Ch II (5 June 1998) para 11.

  281. 281.

    Prosecutor v Furundžija (Oral Decision) IT-95-17/1-T, T Ch II (14 July 1998) 729–730. See also Prosecutor v Furundžija (Judgement) IT-95-17/1-T, T Ch II (10 December 1998) para 22.

  282. 282.

    Prosecutor v Furundžija (Oral Decision) IT-95-17/1-T, T Ch II (14 July 1998) 741.

  283. 283.

    Ibid., 729–730.

  284. 284.

    Ibid., 729–730. The Defence argued that striking off the evidence was intended to punish the Prosecution, not the witness. See ibid., 736.

  285. 285.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 5.

  286. 286.

    Ibid., para 6.

  287. 287.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23. At the ICTR, Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68) ICTR-00-56-T, T Ch II (22 September 2008) para 13.

  288. 288.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23. See also Prosecutor v Blaškić (Judgement) IT-95-14-A, A Ch (29 July 2004) para 268 and Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 3.

  289. 289.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23.

  290. 290.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23, referring to Prosecutor v Blaškić (Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68) IT-95-14-T, T Ch I (28 September 1998) 3. See also Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 3 and Prosecutor v Orić (Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules) IT-03-68-T, T Ch II (13 December 2005) para 32.

  291. 291.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 24. See also Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 4.

  292. 292.

    Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 28.

  293. 293.

    Ibid., para 29.

  294. 294.

    Ibid., paras 29‒30.

  295. 295.

    Ibid., para 31.

  296. 296.

    Prosecutor v Krstić (Judgement) IT-98-33-A, A Ch (19 April 2004) para 187.

  297. 297.

    Ibid., para 153 (emphasis added, footnotes in original omitted), referring to, inter alia, Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002). Other decisions to emphasize this point include: Prosecutor v Blaškić (Judgement) IT-95-14-A, A Ch (29 July 2004) para 295; Prosecutor v Kordić and Čerkez (Judgement) IT-95-14/2-A, A Ch (17 December 2004) para 179; Prosecutor v Kajelijeli (Judgement) ICTR-98-44A-A, A Ch (23 May 2005) para 262; Prosecutor v Karemera, Ngirumpatse and Nzirorera (Decision on Joseph Nzirorera’s Interlocutory Appeal) ICTR-98-44-AR73.6, A Ch (28 April 2006) para 7; Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68) ICTR-00-56-T, T Ch II (22 September 2008) para 14.

  298. 298.

    Prosecutor v Krstić (Judgement) IT-98-33-A, A Ch (19 April 2004) para 180. See also Prosecutor v Orić (Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules) IT-03-68-T, T Ch II (13 December 2005) para 20.

  299. 299.

    Prosecutor v Krstić (Judgement) IT-98-33-A, A Ch (19 April 2004) para 196.

  300. 300.

    Ibid., para 197.

  301. 301.

    Ibid., para 199.

  302. 302.

    Ibid., paras 200 and 210.

  303. 303.

    Ibid., paras 213‒214.

  304. 304.

    Ibid., para 214.

  305. 305.

    Ibid., para 215.

  306. 306.

    Prosecutor v Orić (Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules) IT-03-68-T, T Ch II (13 December 2005) para 2.

  307. 307.

    Prosecutor v Orić (Decision on Alleged Prosecution Compliance with Disclosure Obligations under Rules 66(B) and 68(i)) IT-03-68-T, T Ch II (29 September 2005) 3.

  308. 308.

    Ibid., 3.

  309. 309.

    See in this regard n 271 and accompanying text.

  310. 310.

    Prosecutor v Nahimana, Ngeze and Barayagwiza (Decision on the Prosecutor’s Oral Motion for Leave to Amend the List of Selected Witnesses) ICTR-99-52-T, T Ch I (26 June 2001) para 32; Prosecutor v Bagosora, Kabiligi, Ntabakuze and Nsengiyumva (Decision on the Defence for Bagosora’s Motion for Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF) ICTR-98-41-T, T Ch III (30 September 2002) para 13; and Prosecutor v Zigiranyirazo (Decision on Rule 66 of the Rules of Procedure and Evidence) ICTR-01-73-T, T Ch III (10 October 2005) 2.

  311. 311.

    That is, of prosecution evidence not properly disclosed or evidence relating to facts to which the exculpatory material pertains. See Zappalà 2004, 627.

  312. 312.

    Prosecutor v Karemera, Ngirumpatse and Nzirorera (Decision on Defence’s Motion to Report Government of a Certain State to United Nations Security Council and on Prosecution Motions under Rule 66(C) of the Rules) ICTR-98-44-T, T Ch III (15 February 2006) para 25; and Prosecutor v Zigiranyirazo (Decision on Rule 66 of the Rules of Procedure and Evidence) ICTR-01-73-T, T Ch III (10 October 2005) 2.

  313. 313.

    Prosecutor v Bagosora, Kabiligi, Ntabakuze and Nsengiyumva (Decision on Defence Motion to Preclude Certain Portions of the Anticipated Testimony of Prosecution Witnesses DCH, for the Postponement of Witness DCH’s Testimony, and for the Appointment of Defence Counsel for DCH) ICTR-98-41-T, T Ch I (29 March 2004) para 6.

  314. 314.

    Ibid., para 7. See also Prosecutor v Zigiranyirazo (Decision on Rule 66 of the Rules of Procedure and Evidence) ICTR-01-73-T, T Ch III (10 October 2005) 2.

  315. 315.

    See e.g. Prosecutor v Bagosora, Kabiligi, Ntabakuze and Nsengiyumva (Decision on the Defence for Bagosora’s Motion for Postponement or Quashing of the Testimonies of Witnesses Ruggiu, XAM and ZF) ICTR-98-41-T, T Ch III (30 September 2002).

  316. 316.

    Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 4‒5. Regarding the order to conduct a search for Rule 68 material relevant to the Defence and to provide the Trial Chamber with a declaration in this regard, see similarly Prosecutor v Krnojelac (Decision on Motion by Prosecution to Modify Order for Compliance with Rule 68) IT-97-25-PT, T Ch II (1 November 1999).

  317. 317.

    Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 3 (emphasis added). The language of the Trial Chamber in this regard is stronger than that of the Trial Chamber in Brđanin (see n 288 and accompanying text). See also the language of the Appeals Chamber in Prosecutor v Blaškić (Judgement) IT-95-14-A, A Ch (29 July 2004) para 268.

  318. 318.

    Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 3, referring to Prosecutor v Blaškić (Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68) IT-95-14-T, T Ch I (28 September 1998) 3 and Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23.

  319. 319.

    Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 4.

  320. 320.

    Ibid., 4.

  321. 321.

    Ibid., 4.

  322. 322.

    Prosecutor v Orić (Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules) IT-03-68-T, T Ch II (13 December 2005) para 7.

  323. 323.

    Ibid., para 7.

  324. 324.

    Ibid., para 32.

  325. 325.

    Ibid., para 33.

  326. 326.

    Ibid., para 35. It is worth noting that nowhere in the decision does the Trial Chamber refer to Rule 68bis ICTY RPE. See also Prosecutor v Orić (Judgement) IT-03-68-T, T Ch II (30 June 2006) paras 76–77.

  327. 327.

    Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68) ICTR-00-56-T, T Ch II (22 September 2008) para 14.

  328. 328.

    Prosecutor v Orić (Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 of the Rules) IT-03-68-T, T Ch II (13 December 2005) para 27, referring to Prosecutor v Blaškić (Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings) IT-95-14-A, A Ch (26 September 2000) para 38. See also Prosecutor v Karemera, Ngirumpatse and Nzirorera (Oral Decision on Stay of Proceedings) ICTR-98-44-T, T Ch III (16 February 2006).

  329. 329.

    Prosecutor v Karemera, Ngirumpatse and Nzirorera (Decision on Defence Motion for Disclosure of RPF Material and for Sanctions Against the Prosecution) ICTR-98-44-T, T Ch III (19 October 2006) para 13.

  330. 330.

    Ibid., paras 14–15.

  331. 331.

    Ibid., para 17.

  332. 332.

    Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68) ICTR-00-56-T, T Ch II (22 September 2008) para 59.

  333. 333.

    Ibid., paras 27, 31 and 33.

  334. 334.

    Ibid., para 59.

  335. 335.

    Ibid., para 59.

  336. 336.

    Ibid., para 59.

  337. 337.

    Earlier on in the decision the Trial Chamber had observed that the ‘Prosecution’s obligation to disclose exculpatory material is essential to a fair trial’. Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68) ICTR-00-56-T, T Ch II (22 September 2008) para 12.

  338. 338.

    Ibid., para 59.

  339. 339.

    Ibid., para 61.

  340. 340.

    Ibid., para 61.

  341. 341.

    Ibid., para 62.

  342. 342.

    Ibid., para 63.

  343. 343.

    Ibid., para 14.

  344. 344.

    Ibid., para 64.

  345. 345.

    Ibid., para 64.

  346. 346.

    Ibid., the disposition.

  347. 347.

    Ibid., para 14.

  348. 348.

    Prosecutor v Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu (Decision on Ndindiliyimana’s Motion to Recall Identified Prosecution Witnesses and to Call Additional Defence Witnesses) ICTR-00-56-T, T Ch II (4 December 2008).

  349. 349.

    See e.g. Prosecutor v Karadžić (Decision On Accused’s Eighteenth To Twenty-First Disclosure Violation Motions) IT-95-5/18-T, T Ch III (2 November 2010).

  350. 350.

    Prosecutor v Karadžić (Decision on Accused’s Motion for New Trial for Disclosure Violations) IT-95-5/18-T, T Ch III (3 September 2012) para 15.

  351. 351.

    Prosecutor v Karadžić (Decision On Accused’s Eighteenth To Twenty-First Disclosure Violation Motions) IT-95-5/18-T, T Ch III (2 November 2010) para 42.

  352. 352.

    Ibid., para 43. See also Prosecutor v Stanišić and Simatović (Decision on Defence Motion for Exclusion of Prosecution Witnesses Due to Late Disclosure of Their Unredacted Statements) IT-03-69-PT, T Ch III (6 March 2008) 3.

  353. 353.

    Prosecutor v Karadžić (Decision on Accused’s Thirty-Seventh to Forty-Second Disclosure Violation Motions with Partially Dissenting Opinion of Judge Kwon) IT-95-5/18-T, T Ch III (29 March 2011), Partially Dissenting Opinion of Judge Kwon, para 4.

  354. 354.

    Ibid., para 5.

  355. 355.

    Ibid., para 7 (emphasis added).

  356. 356.

    See e.g. Prosecutor v Karadžić (Decision on Accused’s Sixtieth, Sixty-First, Sixty-Third, and Sixty-Fourth Disclosure Violation Motions) IT-95-5/18-T, T Ch III (22 November 2011) para 37 n 68.

  357. 357.

    Prosecutor v Karadžić (Decision on Accused’s Motion for New Trial for Disclosure Violations) IT-95-5/18-T, T Ch III (3 September 2012) para 3.

  358. 358.

    Ibid., para 4.

  359. 359.

    Ibid., para 12.

  360. 360.

    Ibid., para 14.

  361. 361.

    Ibid., paras 14–16.

  362. 362.

    Ibid., para 17.

  363. 363.

    Ibid., para 17.

  364. 364.

    Ibid., para 19.

  365. 365.

    Ibid., para 19.

  366. 366.

    Ibid., para 19.

  367. 367.

    Prosecutor v Haradinaj, Balaj and Brahimaj (Decision on Joint Defence Motion for Relief from Rule 68 Violations by the Prosecution and for Sanctions pursuant to Rule 68bis) IT-04-84bis-T, T Ch II (12 October 2011) para 42.

  368. 368.

    Ibid., para 43.

  369. 369.

    Ibid., paras 56–57.

  370. 370.

    Ibid., paras 64 and 20.

  371. 371.

    Ibid., para 60.

  372. 372.

    Ibid., para 66.

  373. 373.

    Prosecutor v Haradinaj, Balaj and Brahimaj (Decision on Prosecution’s Motion for Reconsideration of Relief Ordered pursuant to Rule 68bis with Partially Dissenting Opinion of Judge Hall) IT-04-84bis-T, T Ch II (27 March 2012) para 42.

  374. 374.

    Ibid., para 43.

  375. 375.

    Ibid., para 36.

  376. 376.

    Ibid., para 37.

  377. 377.

    Ibid., para 38.

  378. 378.

    Rule 70(B) ICTR RPE contains almost identical wording.

  379. 379.

    O’Sullivan and Montgomery 2010, 529. At the time, Rule 68 ICTY RPE read as follows: ‘The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.’

  380. 380.

    Prosecutor v Brđanin and Talić (Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002) IT-99-36-T, T Ch II (23 May 2002) para 19. See also paras 20–21.

  381. 381.

    Whiting 2009, 212.

  382. 382.

    Ibid., 212.

  383. 383.

    Prosecutor v Brđanin and Talić (Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002) IT-99-36-T, T Ch II (23 May 2002) para 12.

  384. 384.

    Prosecutor v Karadžić (Decision on Accused’s Application for Certification to Appeal Decision on Rule 70(B)) IT-95-5/18-PT, T Ch III (12 February 2009) para 8.

  385. 385.

    Whiting 2009, 213–214.

  386. 386.

    It should be noted that, at the ICC, provision is made for an elaborate confirmation of charges procedure, which (unlike at the ad hoc Tribunals) takes place after the issuance of an arrest warrant or summons to appear, and at which the suspect will, ‘as a general rule’, be present. Moreover, the suspect can ‘participate actively in the proceedings’, by, inter alia, presenting his or her own evidence and challenging the evidence relied on by the prosecution for the purposes of such proceedings. For the purpose of this procedure, the ICC Statute and ICC RPE provide for the disclosure of information to the defence (Article 61(3)(b)). In addition, the ICC Statute and ICC RPE contain disclosure provisions that apply to the proceedings in their entirety (including the confirmation stage), e.g. Article 67(2) ICC Statute. The latter provision imposes on the prosecution an obligation to disclose to the defence (potentially) exculpatory material. While on the one hand it may be observed that the level of disclosure required at the confirmation stage of the proceedings is lower than that required at the trial stage (in light of the different evidentiary thresholds applicable at each stage), on the other, it is important to note that ‘the bulk of disclosure will take place before the confirmation of charges’ (see Tochilovsky 2013, 1089 (emphasis added)). For a comprehensive overview of the standards governing disclosure at the ICC, see Gibson and Lussiaà-Berdou 2010; and Fiori 2015.

  387. 387.

    See in this regard n 272 and accompanying text.

  388. 388.

    Aside from the procedural step envisaged in Rule 121(8) ICC RPE: ‘The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired.’

  389. 389.

    On two earlier occasions, a stay was imposed in this case. See n 434 and 459–460 and accompanying text.

  390. 390.

    Prosecutor v Lubanga (Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”) ICC-01/04-01/06, T Ch I (7 March 2011) para 206.

  391. 391.

    Ibid., para 207.

  392. 392.

    Ibid., paras 210–211.

  393. 393.

    Ibid., para 212.

  394. 394.

    Ibid., para 212.

  395. 395.

    Ibid., para 212.

  396. 396.

    Ibid., para 212.

  397. 397.

    Prosecutor v Lubanga (Judgment pursuant to Article 74 of the Statute) ICC-01/04-01/06, T Ch I (14 March 2012) para 122.

  398. 398.

    Prosecutor v Ntaganda (Public redacted version of ‘Decision on Defence requests seeking disclosure orders in relation to witness P-0901 and seeking the postponement of the witness’s cross-examination’, ICC-01/04-02/06-840-Conf-Exp, issued on 18 September 2015’) ICC-01/04-02/06, T Ch VI (5 October 2015) para 64.

  399. 399.

    Prosecutor v Kenyatta (Decision on defence application pursuant to Article 64(4) and related requests) ICC-01/09-02/11, T Ch V (26 April 2013) paras 93–94.

  400. 400.

    Ibid., para 93.

  401. 401.

    Ibid., para 94.

  402. 402.

    Ibid., para 95.

  403. 403.

    Ibid., para 96.

  404. 404.

    Ibid., para 96.

  405. 405.

    Ibid., para 97.

  406. 406.

    Ibid., para 97.

  407. 407.

    Rule 77 ICC RPE provides that: ‘The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in Rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.’

  408. 408.

    Prosecutor v Bemba (Decision on “Defence Request for Relief for Abuse of Process”) ICC-01/05-01/08, T Ch III (17 June 2015) para 90.

  409. 409.

    Ibid., paras 90 and 84.

  410. 410.

    Ibid., para 118.

  411. 411.

    Ibid., para 118.

  412. 412.

    Prosecutor v Bemba (Decision on “Defence Motion Regarding Prosecution Disclosure”) ICC-01/05-01/08, T Ch III (3 September 2012) para 12.

  413. 413.

    Ibid., para 11.

  414. 414.

    Ibid., para 13.

  415. 415.

    Ibid., para 13.

  416. 416.

    Prosecutor v Ruto and Sang (Decision on Ruto Defence Request for the Appointment of a Disclosure Officer and/or the Imposition of Other Remedies for Disclosure Breaches of 9 January 2015 (ICC-01/09-01/11-1774-Conf) ICC-01/09-01/11, T Ch V(A) (16 February 2015) paras 26, 52 and 55.

  417. 417.

    Ibid., para 55.

  418. 418.

    Ibid., para 55 (emphasis added).

  419. 419.

    Ibid., para 57.

  420. 420.

    Ibid., para 59.

  421. 421.

    Ibid., paras 59 and 9.

  422. 422.

    Ibid., para 62.

  423. 423.

    Ibid., para 61.

  424. 424.

    The same issue arose in the case of Katanga and Ngudjolo, but prior to the confirmation of charges. For how the Pre-Trial Chamber addressed the situation, see Prosecutor v Katanga and Ngudjolo (Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material to the Defence’s Preparation for the Confirmation Hearing) ICC-01/04-01/07, P T Ch I (20 June 2008).

  425. 425.

    Prosecutor v Lubanga (Decision Regarding the Timing and Manner of Disclosure and the Date of Trial) ICC-01/04-01/06, T Ch I (9 November 2007) para 25.

  426. 426.

    Ibid., para 28.

  427. 427.

    See also Whiting 2009, 215–217.

  428. 428.

    Prosecutor v Lubanga (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) ICC-01/04-01/06, T Ch I (13 June 2008) paras 17, 19, 36–41, 49, 67 and 69.

  429. 429.

    Ibid., para 20. See further paras 21–22 and 51.

  430. 430.

    Ibid., paras 42, 50 and 51.

  431. 431.

    Ibid., para 44.

  432. 432.

    Ibid., para 44.

  433. 433.

    Ibid., para 51.

  434. 434.

    Ibid., para 51.

  435. 435.

    Ibid., para 51.

  436. 436.

    Whiting 2009, 217.

  437. 437.

    Prosecutor v Lubanga (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) ICC-01/04-01/06, T Ch I (13 June 2008) paras 61–62.

  438. 438.

    Ibid., para 72. See also para 73.

  439. 439.

    Ibid., para 72.

  440. 440.

    Ibid., para 75 (emphasis added).

  441. 441.

    Ibid., para 76.

  442. 442.

    Ibid., paras 92‒93.

  443. 443.

    Ibid., paras 90–91.

  444. 444.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials discovered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/04-01/06, A Ch (21 October 2008) paras 4, 75 and 80.

  445. 445.

    Ibid., para 75.

  446. 446.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials discovered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/04-01/06, A Ch (21 October 2008) para 44 in conjunction with para 28. See also Prosecutor v Banda and Jerbo (Public redacted version of the “Second Decision on Article 54(3)(e) documents”) ICC-02/05-03/09, T Ch IV (26 October 2012) para 9; and Prosecutor v Banda and Jerbo (Public Redacted Version of the “Third Decision on Article 54(3)(e) documents”) ICC-02/05-03/09, T Ch IV (21 June 2013) para 12.

  447. 447.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials discovered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/04-01/06, A Ch (21 October 2008) para 44.

  448. 448.

    Ibid., para 46. According to the Appeals Chamber, this approach has been confirmed by the ECtHR, e.g. in the cases of Jasper v UK App no 27052/95 (ECtHR, 16 February 2000) and Rowe and Davis v UK App no 28901/95 (ECtHR, 16 February 2000) (ibid., paras 46–47). Whiting is critical in this regard, noting also that this marks a shift from the relevant case law at the ICTY, and from the approach initially adopted by the Trial Chamber in Lubanga. Whiting 2009, 220–221.

  449. 449.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials discovered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/04-01/06, A Ch (21 October 2008) para 49.

  450. 450.

    Ibid., para 97 (emphasis added).

  451. 451.

    Prosecutor v Lubanga (Oral Decision) ICC-01/04-01/06, T Ch I (18 November 2008) 3–4. The oral decision was followed by a written decision: Prosecutor v Lubanga (Reasons for Oral Decision lifting the stay of proceedings) ICC-01/04-01/06, T Ch I (23 January 2009).

  452. 452.

    Prosecutor v Banda and Jerbo (Decision on Article 54(3)(e) documents) ICC-02/05-03/09, T Ch IV (23 November 2011) para 17.

  453. 453.

    Prosecutor v Banda and Jerbo (Public redacted version of the “Second Decision on Article 54(3)(e) documents”) ICC-02/05-03/09, T Ch IV (26 October 2012) para 8.

  454. 454.

    Ibid., para 9.

  455. 455.

    Ibid., paras 11‒21. See also Prosecutor v Banda and Jerbo (Public Redacted Version of the “Third Decision on Article 54(3)(e) documents”) ICC-02/05-03/09, T Ch IV (21 June 2013) paras 10‒18.

  456. 456.

    See n 446 and accompanying text.

  457. 457.

    Prosecutor v Banda and Jerbo (Public redacted version of the “Second Decision on Article 54(3)(e) documents”) ICC-02/05-03/09, T Ch IV (26 October 2012) para 19.

  458. 458.

    Ibid., para 19.

  459. 459.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July entitled “Decision on 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”) ICC-01/04-01/06, A Ch (8 October 2010) para 20.

  460. 460.

    Prosecutor v Lubanga (Redacted Decision on 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) ICC-01/04-01/06, T Ch I (8 July 2010) para 20.

  461. 461.

    Ibid., para 31. See also para 21. See Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July entitled “Decision on 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”) ICC-01/04-01/06, A Ch (8 October 2010) para 57.

  462. 462.

    Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July entitled “Decision on 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”) ICC-01/04-01/06, A Ch (8 October 2010) para 31.

  463. 463.

    Ibid., para 58.

  464. 464.

    Ibid., para 59.

  465. 465.

    Ibid., paras 57–58.

  466. 466.

    Ibid., para 60.

  467. 467.

    Ibid., para 61.

  468. 468.

    See n 281–282 and accompanying text.

  469. 469.

    See n 348 and accompanying text.

  470. 470.

    See n 326 and accompanying text.

  471. 471.

    Gibson and Lussiaà-Berdou 2010, 336.

  472. 472.

    Zappalà 2004, 627.

  473. 473.

    See n 394–395 and accompanying text.

  474. 474.

    Fiori 2015, 238.

  475. 475.

    Khan and Dixon 2013, 490.

  476. 476.

    De los Reyes similarly distinguishes between remedies and sanctions in the context of disclosure. See De los Reyes 2005, 595.

  477. 477.

    See e.g. the ICTY case of Furundžija, as set out above (see n 281–282 and accompanying text).

  478. 478.

    See n 304 and accompanying text. In other decisions, chambers have held that for remedies, prejudice must be shown, in the same breath as referring to Rule 68 bis. See e.g. Prosecutor v Brđanin (Decision on “Motion for Relief from Rule 68 Violations by the Prosecutor and for Sanctions to Be Imposed Pursuant to Rule 68bis and Motion for Adjournment while Matters Affecting Justice and a Fair Trial Can Be Resolved”) IT-99-36-T, T Ch II (30 October 2002) para 23; Prosecutor v Blaškić (Judgement) IT-95-14-A, A Ch (29 July 2004) para 268; and Prosecutor v Orić (Decision on Urgent Defence Motion Regarding Prosecutorial Non-Compliance with Rule 68) IT-03-68-T, T Ch II (27 October 2005) 3. However, given that these decisions also seem to treat Rule 68bis as an ‘umbrella’ provision, covering both remedial measures and ‘sanctions proper’ (see n 475–476 and accompanying text), it may be that the point regarding prejudice is only meant to apply to the ‘remedial aspect’ of that rule.

  479. 479.

    See e.g. the ICTY cases of Furundžija, as set out above (see n 274–280 and accompanying text), Krstić, as set out above (see n 301 302 and accompanying text, but see also n 304 and 478 and accompanying text) and Haradinaj, Balaj and Brahimaj, as set out above (see n 369–370 and accompanying text).

  480. 480.

    See n 393–396 and 421 and accompanying text.

  481. 481.

    See e.g. Zappalà 2004, Gibson and Lussiaà-Berdou 2010, 320–322, 327 and 335–338, and, most recently, Fiori 2015, 237–239, 292–293, 343–345.

  482. 482.

    This may be because, at the ICTY at least, the prosecution has generally been able to obtain consent from the information providers to disclose potentially exculpatory material to the defence. See n 385 and accompanying text.

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    Kelly Pitcher

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Pitcher, K. (2018). Law and Practice of the International Criminal Tribunals—Specific Contexts. In: Judicial Responses to Pre-Trial Procedural Violations in International Criminal Proceedings. International Criminal Justice Series, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-219-4_6

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