Gender Report Card on the International Criminal ... - YWCA Canada

Trial Proceedings
As described above, the Defence’s application for
a permanent stay of the proceedings based on
an abuse of process by the Prosecution followed
the Appeals Chamber’s reversal of the Trial
Chamber’s order for a permanent stay based on
the Prosecution’s failure to comply with its order
to disclose the name of one of the Prosecution’s
intermediaries. 1287 The Appeals Chamber’s
decision may have increased the Trial Chamber’s
reluctance to permanently stay the proceedings
even in the face of serious fair trial concerns.
In contrast to the abuse of process claims in
Bemba, although Trial Chamber I refused to
order a stay, it found that many of the issues
raised by the Defence may affect its subsequent
rulings on the evidence. Additionally, the
Chamber reserved its right to impose sanctions
if deliberate late disclosure on the part of
the Prosecutor is proven. Thus, despite Trial
Chamber I’s refusal to grant a permanent stay
of proceedings, the allegations made by the
Defence may still hold major implications for,
and could direct the outcome of, the trial.
Article 70 offences against the
administration of justice in
Lubanga case
On 29 March 2011, in The Prosecutor v. Thomas
Lubanga Dyilo, Trial Chamber I requested
observations from the parties and participants
on the procedure to be adopted for initiating
an investigation pursuant to Article 70 of
the Rome Statute. 1288 Article 70 addresses
intentional offences against the administration
of justice. In particular, subsection (1)(c) covers
‘corruptly influencing a witness, obstructing or
interfering with the attendance or testimony
of a witness, retaliating against a witness for
giving testimony or destroying, tampering with
or interfering with the collection of evidence’. 1289
The Chamber’s request followed an inquiry
by the Victims and Witnesses Unit (VWU)
concerning the issue of direct and indirect
threats by victims against defence witnesses
in the proceedings. Details of the VWU inquiry
have not been made public. The Chamber
ordered the parties and participants to submit
observations on the appropriate organ of the
Court, or external body, to conduct an Article
70 investigation. This is the first time Article 70
has been engaged in a proceeding at the ICC. As
of the writing of this <strong>Report</strong>, no decisions have
been made public concerning the Article 70
investigation, nor any additional details of the
underlying circumstances that led to the VWU’s
inquiry.
The Legal Representatives of Victims (LRV) filed
comprehensive observations, outlining the
options available to the Chamber. 1290 They noted
that the Chamber may exercise jurisdiction
over the matter, or refer it to an appropriate
1287 These events are described in greater detail in <strong>Gender</strong>
<strong>Report</strong> <strong>Card</strong> 2010, p 139-144.
1288 ICC-01/04-01/06-2716, fn 1; the request for observations
was made by email.
1289 Article 70(1)(c) of the Statute. Article 70(1) provides an
exhaustive list of violations that fall within the scope of
the Court’s jurisdiction, with an emphasis on violations
that were committed intentionally.
1290 ICC-01/04-01/06-2714.
223