Right to a Fair Trial in the International Criminal Accountability: Are the Judges at the ICC charming the critics?

By James Nyawo Ph.D

The Chambers of International Criminal Court ‘ICC’ are asserting themselves as the vanguard of right to a fair trial for those accused of atrocity crimes. Some of the Chambers’ recent judgments Bemba Acquittal and Laurent Gbagbo and Charles Blé Goudé Acquittal  should inspire international community and those accused of perpetuating atrocities, with confidence in international criminal accountability system and the ICC in particular. The acquittals should also answer some legitimacy questions that have bedeviled the ICC. The judgments, combined with the previous ones such as the acquittal of Mathieu Ngudjolo Chui in 2015, underscores that the ICC has what it takes to ensure that the accused’s human right to a fair trial is possible even in the context of prosecuting international crimes through either international tribunals or international criminal courts. This should be a huge relieve for the faithful disciples of human rights, those who believe in the protective powers of the principles of fairness and equality before the law. The ICC Chambers are demonstrating their commitment to the principle even for highly charged cases involving genocide, war crimes and crimes against humanity. Otherwise the heinous nature of such cases and the media coverage they receive could easily put judges under pressure not to remain faithful to the principles of fair trial. In the court of public opinion, the accused for such crimes tend to be at prima facie judged guilty as charged. Still, the judges in the Chambers at the ICC seem to have chosen to be guided by the principle of the right to fair trial instead of being influenced by external factors, including the global media.

The right to a fair trial can be traced back to the provision in Magna Carta (1215) where it is stated that ‘no free man shall be arrested or imprisoned …except by the lawful judgment of his peers or by the law of the land.’ This right, which also found its way into the Universal Declaration of Human Rights and elaborated in the legally binding International Covenant on Civil and Political Rights, seeks to ensure that in any legal criminal proceedings, parties are on the same footing. In the Judgement The Prosecutor v. Tadic (Appeal), the Appeal Chamber concluded, ‘that equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case.’ Article 7 of The African Charter on Human and Peoples’ Rights protects the right to a fair trial. In 2013, African Commission on Human and Peoples’ Rights in Communication 302/05 – Mr Mamboleo M. Itundamilamba v. Democratic Republic of Congo held that ‘fairness is severely compromised when certain combined guarantees are not safeguarded: the rights of defence, equality of arms and respect of the adversarial principle.’ The Rome Statute gives the task of ensuring fair trial to the Trial Chamber. In Article 64, the Trial Chamber has the mandate to, ‘ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’ The Pre-Trial Chamber 1 gave its understanding of the fairness of a trial as covering the respect for the procedural rights of the Prosecutor, the Defence and the Victims.[1]  As such whenever, the Prosecution or the Defence felt that some of their rights were violated during proceedings, they have always exercised their right to appeal.

It is noteworthy that there have been instances when the accused referred to a violation by their own States of their right to be tried by a jury of their peers, due to the state’s failure to challenge indictments by ICC.  This was the case in the African Commission Communication 464/14- Uhuru Kenyatta and William Ruto (represented by Innocence Project Africa) v. Republic of Kenya. The Communication was launched at the peak of the tension between Kenya and the ICC following the indictment of Uhuru Kenyatta and William Ruto who later became the President and Deputy President of Kenya. The communication Innocence Project Africa singled out the Kenyan Parliament, Ministry of Justice and the Ministry of Foreign Affairs as being responsible in the ‘aiding and abetting the violations’ of Uhuru Kenyatta and William Ruto. The Parliament of Kenya was singled out for not establishing an independent inquiry to investigate and identify the actual perpetrators of the 2007. Although the Commission was dismissed, the issues it raised points to the preferences by the accused to face trial on their own tuff or by their peers. Perhaps the assumption is that when justice is delivered locally and closer to the crime’s scene, there is a better understanding of the context hence possible fair trial.  This is of course addressed in the Rome Statute, under the complementarity principle. As such the Court is only a court of last resort. It intervenes when the national judiciary systems are either unwilling or unable to prosecute atrocity crimes. 

Whereas the ICC Chambers’ decisions to acquit some of the high-level suspects can be applauded for reflecting the principle of fairness in the application of the rule of law, they have attracted nuanced responses from certain groups within the international community. For instance, when the Appeals Chamber ruled to acquit Jean Bemba,  Elise Keppler, the Human Rights Watch Associate Director for International Justice Programraised concern that victims of serious crimes committed in Central African Republic where left without meaningful redress, Human Rights Watch on Bemba Acquittal. While acknowledging that acquittal was a legitimate outcome, she suggested that its impact was enormous due to the few cases that the ICC was putting to trial. The statement appears to imply that since the Court is having few cases at the trial stage, it cannot afford to acquit some of those on trial. If this reading is accurate, then it is curious that Human Rights Watch would seem to suggest expediency justice. Kersten, while assessing the impact of the acquittals on the victims and survivors of the atrocities, concluded that they did not only deny them justice, but also undermined their ‘victimhood and suffering.’

Madamme Fatou Bensouda, the Chief Prosecutor of the International Criminal Court, expressed similar sentiments in her reaction to Bemba’s acquittal. In her statement, though circumspect, for justice to be seen to be done, victims must be central. In her statement, she mentions victims [13] thirteen times. This was a clear departure from her previous statement for instance in 2015 when the Appeal Chamber dismissed her office’s appeal against the acquittal of Mr Mathieu Ngudjolo Chui. On that occasion she did not only embrace the decision but also suggested that it was an outcome that ‘fully respected the rights of all parties and participants to the proceedings.’ The parties and participants referred to in this case were defendants, victims and survivors. In other words, in the 2015, Madamme Fatou Bensouda’s statement suggested a belief in the datum that justice cannot be for one side alone. However, her position and perhaps that of many supporters of international criminal accountability, has shifted towards justice for one side alone- the victims. The shift poses a serious threat to the legitimacy of the ICC and risks turning it into a kangaroo court or a theatre where the prosecutorial tyranny goes unchecked.

It is undeniable that since its establishment, the ICC has not been able to perform to the satisfaction of its supporters. The number of the suspects that it has let free outnumbers those that it has convicted. This is probably weighing on the Office of the Prosecutor hence its recent shift towards pushing back on decisions that seek to exonerate the suspects. But it is commendable that both the Trial and Appeals Chambers have at least demonstrated that they would not let the Office of the Prosecutor together with its legions of supporters put undue influence, referencing victims, to affect the judicial decisions. In fact, high acquittals at the International Criminal Court should be welcomed as a clear indicator of the institution’s respect of the rights of the accused persons. It is therefore curious that during the general debates at the 17th Session of the Assembly of States Parties to the Rome Statute, there appears to be no single State Party that praised the Appeals Chamber’s decision to acquit Bemba. This is not matched with the reaction received after the conviction of Lubanga and others.

The Court, the Office of the Prosecutor in particular may need to recall the words of Robert Jackson, addressing the American Society of International Law on the Topic ‘The Rule of Law Among Nations’ when he said that: ‘You must put no man on trial before anything that is called a court…under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty.’ Since cases also try courts, perhaps it is for the Office of the Prosecutor to continue with its efforts to strengthen its investigative and evidence gathering systems. At the same time states must continue rendering the Office of the Prosecutor with the much needed supported to access evidence and witness.         


[1] Situation in the Democratic Republic of Congo, Decision on the Prosecutor’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Application for Participation in the Proceedings of VPRSI, VPRS 2, VPRS 3, VPRS 4, VPRS5 and VPRS6, ICC-0’1/04-135-Teng, 31 March 2006.

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