Claire Smith and Fanni Andristyak join JiC for this post on ongoing efforts to ensure that witnesses at the International Criminal Court are adequately protected. Claire is currently at the UNESCO Secretariat examining the protection of cultural heritage in armed conflict and previously interned with a defense team at the International Criminal Tribunal for the Former Yugoslavia (ICTY). Fanni is a research intern at the British Institute of International and Comparative Law prior to which she worked for the Defence Team of Ratko Mladic at the ICTY.
A witness testifies during proceedings at the International Criminal Court (Photo: ICC / CPI)
International criminal justice has a witness problem. In April this year, by a majority, the Judges in the trial of Joshua arap Sang and William Ruto concluded that the prosecution’s case wasn’t strong enough for the trial to continue. Nonetheless, as one judge remarked, it found that the extent of direct and indirect interference with witnesses was ‘enough to make acquittal of the accused grossly unjust’. But the end of the Ruto and Sang trial does not signal a new problem for the ICC; witness tampering in modern international criminal justice has been apparent since Tadić. What it does do, however, is propose a new solution, one without precedent.
Based on existing law, ICC Judges in the Ruto and Sang trial had two conceivable outcomes for the ‘no case to answer’ motions put forward by the Defence: acquit or order a continuation of the proceedings. Their Decision appears to represent a compromise option: vacating the charges against the accused without prejudice to later prosecution. Neither acquittal, nor continuation.
Was it acceptable — from a policy perspective — for the ICC Judges to introduce this concept (essentially the equivalent of mistrial) into international criminal law in order to deal with the effects of witness tampering? Is this new tool likely to achieve the aims for which it was adopted? And if so, at what cost?
Nothing New
Threats, intimidation, injury, bribery, or any other types of coercion of potential or actual witnesses can be issues in any jurisdiction. However, it is and has been especially problematic for international criminal adjudication.
Two comparable cases from the ICTY, Haradinaj et al. and Šešelj, serve to illustrate the ordinary way witness tampering was dealt with up until April this year. In both cases the Judges established that:
(i) a climate of intimidation existed;
(ii) witnesses were intimidated;
(iii) these circumstances could have had a substantial impact upon the outcome of the proceedings; yet
(iv) the Accused were found not guilty and were thus acquitted.
Therefore, neither the problem of witness tampering, nor its substantial effects on the proceedings appear to confront international criminal judges with a new situation.
Anything New? Heal the World
The Ruto and Sang case matches the first three of the above four characteristics. In addition, unlike in Šešelj and quite like in Haradinaj, neither of the Accused were linked to the interference. Based on existing precedent, when the Chamber found that the Accused had no case to answer, an acquittal should have followed. But it didn’t. Is that because this case is different from those previously before international tribunals? Or is the ICC itself different?
As Judge Eboe-Osuji explicitly states, the Majority’s “disposition is unusual”. However, in his account of the circumstances, nothing emerges that would set the case apart from Haradinaj, where it was “the serious witness intimidation that formed the context of the Trial”. What (extra-judicial) consideration would then warrant the adoption of a new approach into international criminal law?
Judge Eboe-Osuji emphasised the need to send a message that political intervention will only result in mistrial and that “extra-judicial conducts, campaigns or demands could not influence the Chamber to acquit or convict the accused”. He stressed that justice must be realised regardless of consequences. In the words of the Judge, “what controls the appropriate result in the circumstances is the public’s interest in seeing justice done — or conversely the need to avoid perversion of justice at all, let alone the scandal of it in the full public view of the whole wide world.”
The obvious undercurrent to the proceedings, clearly, was a “sense of justice” that had not yet been visibly embodied in a rule or precedent in international criminal law. That, is, up until now. Without addressing issues of its legality, let us consider this conceptualisation of justice in the framework it was borne out of: judicial policy-making.
The Ends and The Means
One possible, or at least intended, benefit of declaring a mistrial is to fulfil the aim of deterrence. The Decision purports to send a message to States, the media and any other third party about the futility of non-compliance and obstruction of justice. As stated, it could, at best, ‘only’ result in mistrial.
But there are two problems with this assumption. Firstly, effective deterrence (if it exists at all) would require foreseeability both as to the conduct that may lead to mistrial and as to its potential consequences. However, neither the former nor the latter is fleshed out in sufficient detail in the Decision. As for the conduct, it appears that at its lowest, it may be legitimate media reporting which can still ‘result in declarations of mistrial when media commentary, even with the best intentions, contributes to the tainting of the values of a fair trial’. As legal standards go, negligent contribution to the tainting of the values of a fair trial is a particularly vague one. As for the consequences, what mistrial at the ICC in reality entails remains uncertain, as the issue of admissibility may have to be resolved again if the Prosecutor decides to ‘start afresh another time, if she wishes’. For the very same reason, the aim to allow for a fresh prosecution may not be achieved either. Continue reading
