International Criminal Procedure and Disclosure: An Attempt to Better Understand and Regulate Disclosure and Communication at the ICC on the Basis of a Comprehensive and Comparative Theory of Criminal Procedure [1 ed.] 9783428543434, 9783428143436

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Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Band / Volume 20

International Criminal Procedure and Disclosure An Attempt to Better Understand and Regulate Disclosure and Communication at the ICC on the Basis of a Comprehensive and Comparative Theory of Criminal Procedure

By

Alexander Heinze

Duncker & Humblot · Berlin

ALEXANDER HEINZE

International Criminal Procedure and Disclosure

Beiträge zum Internationalen und Europäischen Strafrecht Studies in International and European Criminal Law and Procedure Herausgegeben von / Edited by RiLG Prof. Dr. Kai Ambos

Band / Volume 20

International Criminal Procedure and Disclosure An Attempt to Better Understand and Regulate Disclosure and Communication at the ICC on the Basis of a Comprehensive and Comparative Theory of Criminal Procedure

By

Alexander Heinze

Duncker & Humblot · Berlin

The Faculty of Law of the Georg-August-University Göttingen accepted this work as thesis in the year 2013.

Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available in the Internet at http://dnb.d-nb.de.

All rights reserved

© 2014 Duncker & Humblot GmbH, Berlin Typesetting: L101 Mediengestaltung, Berlin Printing: buchbücher.de gmbh, Birkach Printed in Germany ISSN 1867-5271 ISBN 978-3-428-14343-6 (Print) ISBN 978-3-428-54343-4 (E-Book) ISBN 978-3-428-84343-5 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Meiner Mutter

Preface “You never truly know someone until you’ve walked a mile in their shoes.” American Adage, Source Unknown

This work started as an attempt to systematise disclosure at the International Criminal Court and became a journey to all aspects of the criminal process. The reader will take part in this journey, along places of law that he or she would never expect to be en route. What will be witnessed in fast motion, became clear to me only gradually and after long periods of consideration: a systematisation of disclosure disregarding legal theory, legal philosophy and the meandering areas of comparative law would be like listening to Bach without the basso continuo. The original working title “Systematisation of the Disclosure Regime in adversarial and international criminal proceedings” was therefore maculation: a systematisation of disclosure requires an analysis of more general questions of law and the concept of “adversarial” proceedings is one of them. Consequently, this work is more than a book about disclosure: it reflects the journey from a rather unrealistic working title to a holistic approach to a procedural issue of high practical relevance. On this journey, many people accompanied me. My doctoral supervisor Prof. Dr. Dr. h. c. Kai Ambos shaped my style of thought and improved my ability of self-reflection. He still inspires me a lot. Dr. Stefanie Bock and Dr. Alexander Thiele have always been there to answer my many questions and I admire their patience with me. Kevin Robinson and Jennifer Dickson – both Public Defenders in Eureka, California – gave me the opportunity to work in a Public Defender’s Office. With their help and advice, I learned many things about the administration of US criminal procedure I would never have learned from any book in the world. Prof. Dr. Paul Roberts changed my approach to legal philosophy during a single coffee break at the cafeteria of the University of Göttingen and Eneas Romero de Vasconcelos has been more than helpful in approving this approach. Robynne Croft called to my mind the bitter truth that I will never be as eloquent in a foreign language as a native speaker is in his own language; thank you, Robynne, for your time-consuming language revision! Last but not least, I would like to express my gratitude to Prof. Dr. Katrin Höffler, the second referee of the work, for her prompt revision and useful comments.

8

Preface

Despite the company of these distinguished people who earned my deepest admiration, this work would not have been possible without the moral support of many people, whose mere presence was sometimes encouraging and comforting enough to continue my journey. I am grateful to my family, especially my parents and grandmother Sigrid, who constantly reminded me to look over the rim of a tea cup and not to forget to eat healthy (an apple a day. . .), get fresh air and visit an art gallery from time to time; to my dear friend Dr. Pia Lange, who with her brilliance, expansive knowledge, and incredible sense of humour, advised and inspired me; to Anina Timmermann, who spent hours with me discussing the depth of categorisation resulting in a painting called “The chicken in the garden with an electric toothbrush”; to Mary Ann and Pete Bansen from Ferndale, California for their overwhelming hospitality (and their incredible tri-tip) during my time at the Public Defender’s Office in Eureka; to Kevin O’Neil from Ferndale, California, without whom I neither would have worked in the Public Defender’s Office nor as a goalkeeper coach of the Eel River Rapids women’s soccer team; to Roísín Rowley-Brooke from the Trinity College Dublin, who never hesitated to send me journal articles (and to An Post, the Irish Post Office, for not losing them); to Dr. Ousman Njikam and Anett Müller for their help and advice; to Pamela Ziehn, who never lost faith in me and patiently answered all my questions about the daily routine of a judge; to Friederike Schultze for her support; and to Stefan Sauer, who has always been able to recognise the point when Bach, Händel and Ron Burgundy had to fix it. Last but not least, I am most grateful to Uta Nolte, who provided invaluable moral support and never complained when I spent countless days and nights in front of my laptop. The publication of this book would not have been possible without the generous financial support by the FAZIT-Foundation (majority shareholder of the Frankfurter Allgemeine Zeitung GmbH); the German Federal Foreign Office; and the Juristische Gesellschaft zu Kassel (the Law Society of Kassel), which – together with the University of Göttingen School of Law – awarded me the University of Göttingen School of Law Prize for the best dissertation in 2013. This book will uncover the dependence of prosecution disclosure rules from the legal background of their interpreters and its results claim to be detached from any legal tradition. To resist the temptation of resolving a procedural contradiction against the backdrop of ones own legal education was one of the big challenges during this book’s origination process; it not only requires constant self-reflection and a strict application of comparative legal research, but also an eye for the cultural identity of persons who apply the law. This facilitates the understanding not only of other persons’ legal decisions, but first and foremost of ones own style of legal thought. “You never truly know yourself until you’ve walked a mile in someone else’s shoes.”

Göttingen, November 2013

Alexander Heinze

Table of Contents A. Introduction and Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 27 29

Four Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Truth and the Pre-Trial Chamber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Analysis of the Relevant Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Communication Obligations – Broad or Narrow . . . . . . . . . . . .

34 34 34 36 38 39

C. Case-by-case Approach or Consistency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The Problem of the Case-by-case Approach. . . . . . . . . . . . . . . . . . . . . . . . II. So What? Or: Is Consistency Necessary? . . . . . . . . . . . . . . . . . . . . . . . . . .

41 41 46

D. How to Interpret the Law at the ICC – Methodology of the ICC? . . . . . I. Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Interpretation in Domestic Legal Systems. . . . . . . . . . . . . . . . . . . . . . . a) Interpretation in Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Interpretation in Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Interpretation of Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Literal Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) The Historical Interpretation. . . . . . . . . . . . . . . . . . . . . . . . (3) Teleological Interpretation (Purpose Approach) . . . . . . bb) Interpretation of Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Interpretation in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Specifics of Interpretation in International Criminal Law . . . . . . . . . a) Specifics of Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) International Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Finding or Justification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

47 48 51 52 52 55 55 56 58 59 60 62 66 69 69 69 71 72 75

E. Interpretation of the ICC Disclosure Regime . . . . . . . . . . . . . . . . . . . . . . . . . . I. The Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Methods of Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Extent of Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77 77 80 80

B. The I. II. III. IV. V.

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Table of Contents

III.

a) Literal Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Contextual Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Teleological Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Contextual/Teleological Interpretation . . . . . . . . . . . . . . . . . . . . . . . 2. Disclosure Inter Partes or Trough the Registry? . . . . . . . . . . . . . . . . . 3. Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. The Broad Contextual Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A New Contextual Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Goals and Extent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Disclosure Rules Transplants or Translation: The Approach of Máximo Langer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Transplants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) “Translations” Instead of “Transplants” . . . . . . . . . . . . . . . . . . . . . . 3. Categorisation of the Procedural System/Criminal Justice System of the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Families of Legal Systems/Legal Tradition. . . . . . . . . . . . . . . . . . . aa) Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Civil Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Models of Criminal Procedure/Criminal Justice. . . . . . . . . . . . . . . c) “Adversarial” and “Inquisitorial” . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Traditional Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Theoretical Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Procedural Type . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Ideal of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Historical Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ff) Máximo Langer: A New Theoretical Framework . . . . . . . . . (1) The Technique for Handling Cases . . . . . . . . . . . . . . . . . . (2) The Procedural Culture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) The Structure of Interpretation and Meaning. . . . . . (b) Internal Dispositions of Legal Actors . . . . . . . . . . . . (3) Ways to Distribute Powers and Responsibilities Between the Main Legal Actors. . . . . . . . . . . . . . . . . . . . . gg) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . hh) Appendix: Adversarial – Accusatorial . . . . . . . . . . . . . . . . . . . d) Packer’s Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) The Crime Control Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Due Process Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e) Packer Extended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f) Value and Principle Approaches. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

80 82 84 85 86 88 89 91 92 95 99 99 100 103 104 104 105 107 110 113 117 118 119 120 120 122 123 124 125 125 126 127 129 131 133 133 135 136 141

Table of Contents

IV.

g) Damaška’s Concept. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h) Other Procedural Models. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Conclusion: Which Model is Suitable? . . . . . . . . . . . . . . . . . . . . . . . . . a) Models of Criminal Procedure and Criminal Justice – How to Find Out of the Jungle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Wrong Modelling in Domestic (Criminal) Procedure . . . . . bb) Wrong Modelling in International (Criminal) Procedure . . b) How to Model ICC Procedure? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) General Identification of a Purpose . . . . . . . . . . . . . . . . . . . . . bb) Concrete Parameters of a Concept . . . . . . . . . . . . . . . . . . . . . . cc) Function of a Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Some Terminological Thoughts. . . . . . . . . . . . . . . . . . . . . (2) Jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) General Jurisprudence with a View to the Purpose of this Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) What Concept is Preferable? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Normative/Descriptive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Value and Principle Approaches . . . . . . . . . . . . . . . . . . . . (2) Packer’s Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Packer Extended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) Vogler’s Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) Damaška’s Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Sociological/Empirical. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Ideal-types. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Sociological/Empirical Elements Within the Said Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Comparative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) General Remarks on Comparative Law Research . . . . . (2) Damaška’s Contribution to Comparative Law Research dd) Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Concluding Remarks on Wrong Modelling . . . . . . . . . . (2) The Inquisitorial/Adversarial Dichotomy and Damaška’s Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Predictability and Weberian Ideal-types. . . . . . . . . . . . . . Damaška and ICC Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Organisation of Authority and Form of Justice in General . . . . . . . . a) Hierarchical or Coordinate? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Policy-implementing or Conflict-solving?. . . . . . . . . . . . . . . . . . . . aa) General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Goals of the ICC, Goals of International Criminal Justice (1) Traditional Goals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Special Goals of International Criminal Justice. . . . . . .

11 144 148 152 152 152 158 162 163 164 166 167 168 170 172 172 174 174 176 177 178 180 180 184 187 187 189 191 192 194 195 200 201 202 207 207 209 211 216

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Table of Contents (a) Provision of an Accurate Historical Record of Events/Substantive Truth Finding . . . . . . . . . . . . . . . (aa) Substantive Truth Finding . . . . . . . . . . . . . . . . . . (bb) Provision of an Accurate Historical Record . . (b) Satisfaction of Victims . . . . . . . . . . . . . . . . . . . . . . . . . (c) Other Goals and Intermediate Conclusion . . . . . . . . 2. Organisation of Authority and Form of Procedure. . . . . . . . . . . . . . . . a) The Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Organisation of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) The Judge Within the Civil Law Tradition . . . . . . . . . . . (2) The Judge Within the Common Law Tradition . . . . . . . (3) The Judge Within the ICC System . . . . . . . . . . . . . . . . . . bb) Form of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) The Decision Maker According to Damaška’s Models (a) The Decision Maker in a Policy-implementing Form of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) The Decision Maker in a Conflict-solving Form of Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) The Decision Maker at the ICC . . . . . . . . . . . . . . . . . . . . . (a) Selected Observations: Evidence and Factual Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) The Role of the Pre-Trial Chamber . . . . . . . . . . . . . . (c) The Existence of a Confirmation Hearing . . . . . . . . (d) The Legal Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . (e) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Organisation of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Form of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Power to Initiate Proceedings . . . . . . . . . . . . . . . . . . . . . . . (2) Obligation to Start Proceedings . . . . . . . . . . . . . . . . . . . . . (3) Enforcement Agencies and Coercive Measures . . . . . . . (4) Investigation of Incriminating and Exonerating (Exculpatory) Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Other Procedural Features . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Case File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Concentration of Proceedings, the “Day in Court” and Live Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Process England/Wales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Process U.S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Process Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) Process ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

218 218 221 223 225 228 229 229 229 231 233 238 238 238 240 243 243 245 247 248 249 250 250 254 254 255 256 257 258 264 264 268 269 273 277 281 284

Table of Contents cc) Oral or Written Testimony and Prior Recorded Testimony dd) The Role of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) The Role of Counsel in a Conflict-solving Form of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) The Role of Counsel in a Policy-implementing Form of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Application of Damaška’s Concept to the ICC . . . . . . . ee) Guilty Plea and Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . 3. Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F. Prosecution Disclosure Before the ICC from a Comparative Perspective with a View to Damaška’s Models . . . . . . . . . . . . . . . . . . . . . . . . I. Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Equality of Arms and Disclosure – General Remarks . . . . . . . . . . . . 2. Equality of Arms and Disclosure Within the Concept of Damaška III. Disclosure Obligations Independent from Trial Stages – Exculpatory Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Exculpatory Material in the U.S.A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Brady v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) United States v. Agurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) United States v. Bagley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Kyles v. Whitley and Strickler v. Greene . . . . . . . . . . . . . . . . . . . . e) The States’ Brady Implementation and Rule 3.8(d) American Bar Association’s Model Rules of Professional Conduct . . . . . . f) A Short Comment on Sanctions and Remedies . . . . . . . . . . . . . . . 2. Unused Material in England/Wales . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Application, Common Law and Development Until the CPIA 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) The CPIA 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) The CPIA 1996 as Amended by the CJA 2003: the Current Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Exculpatory Material at the ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Disclosure Obligations Independent from Trial Stages – Documents and Tangible Objects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. U.S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. UK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Disclosure Obligations Independent from Trial Stages – Prior Statements of the Prosecution Witnesses and Names of Witnesses . . . . . . . . 1. U.S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Witness Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Witness Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. UK. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13 288 290 290 292 294 300 305 309 309 311 311 316 322 322 323 324 325 327 328 330 331 332 335 337 344 350 350 352 355 359 359 359 362 366

14

Table of Contents a) Witness Statements the Prosecution Intends to Use . . . . . . . . . . . aa) Crown Court (Indictable Offences Only) . . . . . . . . . . . . . . . . . bb) Magistrates’ Court (Offences Either Way and Summary Offences) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Witness Statements the Prosecution Does Not Intend to Use . . . c) Withholding of Witness Statements and Witness Identities. . . . . 3. ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Possible Conflict with Rule 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Timing and Anonymity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) “Rolling Disclosure” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d) Witness Proofing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Prosecution Disclosure Prior and at the Confirmation Hearing. . . . . . . . 1. U.S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Preliminary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Grand Jury Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) What Does the Prosecutor Present?. . . . . . . . . . . . . . . . . . . . . . bb) What Does the Defendant Receive? . . . . . . . . . . . . . . . . . . . . . 2. UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Old Committal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) A Case to Answer Before the Crown Court . . . . . . . . . . . . . . . . . . c) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ICC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) The Confirmation Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Disclosure Prior to and at the Confirmation Hearing . . . . . . . . . . c) Conclusion: The Purpose, Aim and Nature of the Confirmation Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII. Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. U.S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Sanctions by Rule or Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Brady-Violation Sanctions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Sanctions by Brady Itself, Due Process and Supervisory Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Civil Actions and Criminal Charges Against Prosecutors for Brady Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Disciplinary Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Other Potential Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. UK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Sanctions and Remedies Available at Trial . . . . . . . . . . . . . . . . . . . aa) Stay of the Proceedings Because of an Abuse of Process (Trial) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Non-disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Insufficient Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

367 367 368 371 373 376 377 380 385 387 391 391 392 394 395 398 401 402 405 407 408 408 411 414 421 421 422 425 425 427 432 434 437 438 438 440 441

Table of Contents

15

bb) Exclusion of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Orders by the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Appeal Because of Disclosure-violations . . . . . . . . . . . . . . . . . . . . aa) Fresh Evidence Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Procedural Irregularities Appeal . . . . . . . . . . . . . . . . . . . . . . . . cc) Stay of the Proceedings Because of an Abuse of Process (Appeal). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. ICC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Stay of Proceedings Because of an Abuse of Process . . . . . . . . . aa) Non-disclosure in Connection with Art. 54(3)(e) ICC-Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Non-disclosure in Connection with Intermediaries . . . . . . . . b) Disciplinary measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) General Prohibitions Against Misconduct and Breach of Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) Staff Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Rules of Professional Conduct. . . . . . . . . . . . . . . . . . . . . . . . . . VIII. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Disclosure Rules in the U.S.A. and England/Wales with a View to Damaška’s Categorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Disclosure Problems in the U.S.A. with Regard to Exculpatory Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Connick v. Thompson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) U.S. v. Stevens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Disclosure Problems in England and Wales with Regard to Unused Material. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . aa) Disclosure Failures Caused by Police and Prosecution . . . . bb) Disclosure Failures Caused by the Disclosure Test Itself . . cc) Intermediate Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c) Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Disclosure Rules at the ICC with a View to the Damaška Categorisation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

443 444 446 448 449

G. The I. II. III.

Solution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Active Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Parties and the System in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . Communication and Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Broad Communication Generally Ensures to Implement ICC Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Broad Communication Specifically Facilitates Disclosure . . . . . 2. Registration – Introduction of the Double-dossier Principle . . . . . . . a) Case File for the Pre-Trial Chamber and the Trial Chamber . . .

451 452 453 454 458 465 465 469 471 476 477 477 479 481 485 485 487 488 489 490 492 499 499 505 508 508 509 509 510 511

16

Table of Contents

IV.

b) Access of the Trial Chamber to a Possible Case File . . . . . . . . . . c) The Record of the Proceedings as a Case File . . . . . . . . . . . . . . . . aa) The Knowledge Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . bb) The Structural Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . cc) The Weight Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . dd) Advantages of the Case File Vis-à-Vis Its Biased Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ee) Solutions for a Case File in Line with Art. 74(2) ICC-Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1) Does Art. 74(2) ICC-Statute Comprise Pre-Trial and Trial Phase? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) No Qualitative Difference in the Weight of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) Contradiction Between Broad Communication and Weight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Separation of the Case Record for the Pre-Trial Phase and the Trial Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (a) Case Record at the Confirmation Hearing: Emphasis of the Knowledge Component . . . . . . . . . (b) Case Record at Trial: Emphasis of the Weight Component . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (aa) First Obstacle: the Prosecutor’s (Alleged) Duty to Continue Investigations Beyond the Confirmation Hearing . . . . . . . . . . . . . . . . . . . . . . (bb) Second Obstacle: Admitted Evidence Before the Pre-Trial Chamber is Not Automatically Admitted Evidence Before the Trial Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) Adoption of the Double Dossier System Known in Italy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d) The Double Dossier System Supplemented by the Adoption of Internal Rule 87(3) of the ECCC Internal Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ff) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summary and Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

512 513 514 516 517 518 520 520 521 521 522 522 523

524

527 529

532 533 535

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 594

Table of Figures Figure 1:

Search for Truth According to the Lubanga (Abu Garda)/Bemba PTCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

35

Figure 2:

Inter Partes Disclosure According to the Lubanga/Bemba PTCs . . .

37

Figure 3:

Communication to the PTC According to the Lubanga/Bemba PTCs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37

Figure 4:

Analysis According to the Lubanga (Abu Garda)/Bemba PTCs . . . .

38

Figure 5:

General Communication Obligations According to the PTCs. . . . . . .

39

Figure 6:

Communication to the Chamber According to the Bemba PTC. . . . .

40

Figure 7:

Methods of Statutory Interpretation (1) . . . . . . . . . . . . . . . . . . . . . . . . . .

65

Figure 8:

Methods of Statutory Interpretation (2) . . . . . . . . . . . . . . . . . . . . . . . . . .

66

Figure 9:

Finding or Justification of a Decision?. . . . . . . . . . . . . . . . . . . . . . . . . . .

76

Figure 10: Interpretation of Rule 121(2)(c) According to the PTCs . . . . . . . . . . .

93

Figure 11: Evidence Registered in the Record of Proceedings According to the PTCs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

94

Figure 12: Langer’s Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Figure 13: Langer’s Categorisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 Figure 14: “Adversarial” and “Accusatorial” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Figure 15: Damaška’s Models of Administering Criminal Justice. . . . . . . . . . . . . 147 Figure 16: Damaška’s Models of State Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Figure 17: Models of Criminal Procedure/Criminal Justice (1) . . . . . . . . . . . . . . . 151 Figure 18: Models of Criminal Procedure/Criminal Justice (2) . . . . . . . . . . . . . . . 151 Figure 19: Examples of the Uncertainty of the Label “Adversarial” According to Damaška . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Figure 20: Examples of the Uncertainty of the Label “Inquisitorial” According to Damaška . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Figure 21: The “Strong Ideal-type” and Its Use in Empirical and Evaluative Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Figure 22: The “Weak Ideal-type” and Its Use in Empirical and Evaluative Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Figure 23: The “Non-ideal-type” and Its Use in Empirical and Evaluative Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

18

Table of Figures

Figure 24: Goals of International Criminal Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 Figure 25: Analysis of the “Traditional” Goals of Criminal Justice with a View to the Categories “Policy-implementing” and “Conflictsolving” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Figure 26: Analysis of the “Special” Goals of International Criminal Justice with a View to the Categories “Policy-implementing” and “Conflict-solving”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Figure 27: Comparison of the Procedural Stages: USA – England/Wales – ICC 283 Figure 28: Comparison of the Procedural Stages: USA – Germany – ICC . . . . . 284 Figure 29: Disclosure of Unused Material in England/Wales According to Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 Figure 30: Disclosure of Exculpatory Material at the ICC . . . . . . . . . . . . . . . . . . . . 349 Figure 31: Disclosure of Names and Witness Statements at the ICC . . . . . . . . . . 390 Figure 32: General Prosecution Disclosure Obligations at the ICC . . . . . . . . . . . . 420 Figure 33: The ICC’s Record of the Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511 Figure 34: Standards of Decisionmaking According to Damaška. . . . . . . . . . . . . . 537

List of Abbreviations ABA ACHPR ACHR AcP Admin. L. Rev. Alaska R.Crim.P. Am. J. Comp. L. Am. J. Crim. L. Am. J. Int. L. Am. Soc. Rev. Annals Am.Acad.Pol.& Soc.Sci. APA Newsl. on Phil. and L.

American Bar Association African Charter of Human and Peoples’ Rights American Convention of Human Rights Archiv für die civilistische Praxis Administrative Law Review Alaska Rules of Criminal Procedure American Journal of Comparative Law American Journal of Criminal Law American Journal of International Law American Sociological Review Annals of the American Academy of Political and Social Science American Philosophical Association Newsletter on Philosophy and Law ArCHR Arab Charter on Human Rights Arch.Sozialw. und Sozialpol. Archiv für Sozialwissenschaft und Sozialpolitik ASP Assembly of States Parties Austl. J. Legl Phil. Australian Journal of Legal Philosophy BGB German Code of Civil Law (Bürgerliches Gesetzbuch) BGH Bundesgerichtshof = German Federal Court of Justice (Germany) BGHSt Entscheidungen des Bundesgerichtshofes in Strafsachen = Decisions of the German Federal Court of Justice in Criminal Cases Birt. J. Criminol. British Journal of Criminology Brook. J. Int’l L. Brooklyn Journal of International Law Buff. L. Rev. Buffalo Law Review B.U. Int’l L.J. Boston University International Law Journal BVerfG Bundesverfassungsgericht = German Federal Constitutional Court (Germany) BVerfGE Entscheidungen des Bundesverfassungsgerichts = Decisions of the German Federal Constitutional Court BWV Berliner Wissenschafts-Verlag CAA 1986 Criminal Appeal Act 1968 (England/Wales) CAA 1995 Criminal Appeal Act 1995 (England/Wales)

20

List of Abbreviations

Cal. L. Rev. California Law Review Cap. Def. J. Capital Defense Journal Cardozo J. Int’l & Comp. L. Cardozo Journal of International and Comparative Law Cardozo L. Rev. Cardozo Law Review Case W. Res. L. Rev. Case Western Reserve Law Review Chap. L. Rev. Chapman Law Review Charleston L. Rev. Charleston Law Review Chi.-Kent L. Rev. Chicago-Kent Law Review CICC Coalition for the International Criminal Court CJA 2003 Criminal Justice Act 2003 (England/Wales) CLF Criminal Law Forum Colum. J. Transnat’l L. Columbia Journal of Transnational Law Colum. L. Rev. Columbia Law Review Conn. JIL Connecticut Journal of International Law Cornell Int’l L.J. Cornell International Law Journal CPIA 1996 Criminal Procedure and Investigations Act 1996 (England/Wales) CPR 2005 Criminal Procedure Rules 2005 (England/Wales) CPR 2012 Criminal Procedure Rules 2012 (England/Wales) CPS Crown Prosecution Service CRC UN Convention on the Rights of the Child Crim. L. R. Criminal Law Review Crime Law Soc Change Crime, Law and Social Change DA District Attorney (USA) D.C.L. Rev. University of the District of Columbia Law Review Dick. J. Int’l. L. Dickinson Journal of International Law DPP Director of Public Prosecutions (England/Wales) Draft Code of Professional Draft prepared by the secreteriats of the International Conduct CICC Association of Prosecutors and the Coalition for the International Criminal Court Duke L.J. Duke Law Journal E. & P. International Journal of Evidence & Proof ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECJ Court of Justice for the European Union Edinburgh L. Rev. Edinburgh Law Review EJCL Electronic Journal of Comparative Law EJIL European Journal of International Law EU European Union

List of Abbreviations Eur. J. Crime Crim. L. & Crim. Just. Fordham L. Rev. FRCP FS GA Ga. L. Rev. Ga. St. U. L. Rev. Geo. Wash. L. Rev. GeorgeLJ GVG Harv. Int’l L.J. Harv. L. Rev. Hous. J. Int’l L. HSE Hum. Rts. Q. HuV-I IAP ICC ICC-OTP ICCPR ICC-RPE ICC-Statute ICJ ICJ-Statute ICL ICLQ ICLR ICTR-RPE ICTR-Statute ICTY ICTY-RPE ICTY-Statute

21

European Journal of Crime, Criminal Law and Criminal Justice Fordham Law Review Federal Rules of Criminal Procedure (USA) Festschrift Goltdammer’s Archiv für Strafrecht Georgia Law Review Georgia State University Law Review George Washington Law Review Georgetown Law Journal Gerichtsverfassungsgesetz = German Law on Judicial Organisation (Germany) Harvard International Law Journal Harvard Law Review Houston Journal of International Law Health and Safety Executive (England/Wales) Human Rights Quarterly Humanitäres Völkerrecht – Informationsschriften International Association of Prosecutors International Criminal Court Office of the Prosecutor at the International Criminal Court International Covenant on Civil and Political Rights Rules of Procedure and Evidence of the International Criminal Court Rome Statute of the International Criminal Court International Court of Justice Statute of the International Court of Justice International Criminal Law International and Comparative Law Quarterly International Criminal Law Review Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda Statute of the International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia Statute of the International Criminal Tribunal for the former Yugoslavia

22 IHL Ind. J. Global Legal Studies Ind. L.J. Int. Comm. Ev. Int. J.L.C. Int’l & Comp. L.Q. Int’l J. Evidence & Proof Int’l Law Int’l Legal Persp. IOM JA JbRSoz. J. Crim. & Crim. Just. Res. & Ed. J. Crim. L. J. Crim. L. & Criminology JICJ J. Int’l Crim. Just. J. Int’l L.& Prac. J.L. & Pol’y J.L. Econ. & Pol’y J. Legal Pluralism JLS JuS Just. Sys. J. JW J. World Inv. & Trade JZ Ky. L.J. Law & Phil. Law & Prac. Int’l Cts. & Tribunals Law & Soc. Inquiry Law Quarterly Rev. LJIL Loy.U.Chi.L.J. Max Planck UNYB MCA 1980 McGeorge L. Rev. Melb. J. Int’l L.

List of Abbreviations International Humanitarian Law Indiana Journal of Global Legal Studies Indiana Law Journal International Commentary on Evidence International Journal of Law in Context International and Comparative Law Quarterly International Journal of Evidence and Proof International Law International Legal Perspectives Independent Oversight Mechanism Juristische Arbeitsblätter Jahrbuch für Rechtssoziologie und Rechtstheorie Journal of Criminology and Criminal Justice Research & Education Journal of Criminal Law Journal of Criminal Law and Criminology Journal of International Criminal Justice Journal of International Criminal Justice Journal of International Law and Practice Journal of Law and Policy Journal of Law, Economics and Policy Journal of Legal Pluralism and Unofficial Law Journal of Law and Society Juristische Schulung Justice System Journal Juristische Wochenschrift Journal of World Investment and Trade Juristenzeitung Kentucky Law Journal Law and Philosophy Law and Practice of International Courts and Tribunals Law and Social Inquiry Law Quarterly Review Leiden Journal of International Law Loyola University Chicago Law Journal Max Planck Yearbook of United Nations Law Magistrates’ Court Act 1980 (England/Wales) McGeorge Law Review Melbourne Journal of International Law

List of Abbreviations Mich. J. Int’l L. Miss. L.J. Mod. L. Rev. NACDL Nat’l Law. Guild Rev. N.C.J. Int’l L. & Com. Reg.

23

Michigan Journal of International Law Mississippi Law Journal Modern Law Review National Association of Criminal Defense Lawyers National Lawyers Guild Review North Carolina Journal of International Law and Commercial Regulation NCLR New Criminal Law Review N.C. L. Rev. North Carolina Law Review NGO Nongovernmental Organisation NJW Neue Juristische Wochenschrift NJW-Spezial Neue Juristische Wochenschrift-Spezial NLJ National Law Journal Notre Dame L. Rev. Notre Dame Law Review Nw. U. J. Int’l Hum. Rights Northwestern University Journal of International Human Rights Nw. U. L. Rev. Northwestern University Law Review NYIL Netherlands Yearbook of International Law N.Y.L. Sch. L. Rev. New York Law School Law Review N.Y.U. Ann. Surv. Am. L. New York University Annual Survey of American Law N.Y.U.J. Int’l. Law & Pol. New York University Journal of International Law and Politics Ohio St. L. J. Ohio State Law Journal OJLS Oxford Journal of Legal Studies Okla. City U. L. Rev. Oklahoma City University Law Review OPCD Office of Public Counsel for the Defence PACE Police and Criminal Evidence Act 1984 (England/ Wales) PCMH Plea and Case Management Hearing (England/Wales) Penn St. L. Rev. Penn State Law Review Pepp. L. Rev. Pepperdine Law Review PTC Pre-Trial Chamber RabelsZ Rabels Zeitschrift für ausländisches und internationales Privatrecht RegCourt Regulations of the International Criminal Court Regent U. L. Rev. Regent University Law Review RegOTP Regulations of the Office of the Prosecutor RegRegistry Regulations of the Registry of the International Criminal Court S. & L. S. Social & Legal Studies

24 Santa Clara L. Rev. SCSL SCSL-RPE S.D. L. Rev. Soc. F. Soc.Sci.Q. Stan. L. Rev. S. Tex. L. Rev. StGB STL STL-Statute StPO StuW StV Suffolk Transnat’l L. Rev. Sw. U. L. Rev. Syd LR TEU Tex. Int’l L. J. Tex. Tech L. Rev. Transnat’l L.& Contemp.Probs. Tul. Eur. & Civ. L.F. Tulsa L.J. U.C. Davis J. Int’l L. & Pol’y U.C. Davis L. Rev. U. Chi. L. Rev. U.Cinn.L.Rev. UCLA J. Int’l L. & Foreign Aff. U. C. L. R. UDHR U.N. U. Pa. L. Rev. U.S.A. USC Utah L. Rev. U. Toronto L.J.

List of Abbreviations Santa Clara Law Review Special Court for Sierra Leone Rules of Procedure and Evidence of the Special Court for Sierra Leone South Dakota Law Review Social Forces Social Science Quarterly Stanford Law Review South Texas Law Review German Criminal Code (Germany) Special Tribunal for Lebanon Statute of the Special Tribunal for Lebanon Strafprozessordnung = German Code of Criminal Procedure (Germany) Steuer und Wirtschaft Strafverteidiger Suffolk Transnational Law Review Southwestern University Law Review Sydney Law Review Treaty on European Union Texas International Law Journal Texas Tech Law Review Transnational Law and Contemporary Problems Tulane European and Civil Law Forum Tulsa Law Journal U.C. Davis Journal of International Law and Policy U.C. Davis Law Review University of Chicago Law Review University of Cincinnati Law Review UCLA Journal of International Law and Foreign Affairs University of Colorado Law Review Universal Declaration of Human Rights United Nations University of Pennsylvania Law Review United States of America United States Code (USA) Utah Law Review University of Toronto Law Journal

List of Abbreviations Va. J. Int’l L. Va. L. Rev. Val. U. L. Rev. VCLT Wash. & Lee L. Rev. Wash. U. L. Rev. wistra Wm. & Mary L. Rev. Yale L.J. ZaöRV Zbornik PFZ ZEP ZIS ZRP ZStW

25

Virginia Journal of International Law Virginia Law Review Valparadiso University Law Review Vienna Convention on the Law of Treaties Washington and Lee Law Review Washington University Law Review Zeitschrift für Wirtschafts- und Steuerstrafrecht William and Mary Law Review Yale Law Journal Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zbornik Pravnog Fakulteta u Zagrebu Zeitschrift für Europäisches Privatrecht Zeitschrift für Internationale Strafrechtsdogmatik Zeitschrift für Rechtspolitik Zeitschrift für die gesamte Strafrechtswissenschaft

A. Introduction and Abstract I. The Problem Since the first trial before the International Criminal Court (ICC) started, one issue has been causing problems for all parties involved: the disclosure of evidence. By now, a lot has been written about this problem. Summarised and slightly simplified, authors are taking up the following four positions: First, disclosure of evidence is complicated. Thus, second, disclosure has been a problem in every legal system in the world. Ergo, third, it has to be accepted that there is no such thing as a perfect disclosure regime in the criminal process before the ICC, which is a system sui generis. Consequently, and fourth, we must apply a case-by-case approach to solve disclosure problems. Of those positions, two are actually correct: disclosure of evidence is indeed complicated and it is obvious that it gives rise to great discussions in almost every legal system. However, it is false and dangerous to conclude that it may be the lesser evil to create an environment where the decision about a certain disclosure problem is dependent on the legal background of the decision maker. Further, it is even worse to justify this by noting the procedural system before the ICC is a system sui generis. To create a disclosure regime where the parties will be able to actually foresee the consequences of their conduct (i. e. non-disclosure), it is necessary to understand disclosure. This is easier said than done, because disclosure is not only influenced by its rules but also by the usage of trial participants. Instead of battling one’s way through the jungle without any idea of the right path, it is more helpful to simply get a map. The most important information this map should provide concerns the nature of the procedural system before the ICC. To characterise this system, for various reasons, I will not apply the conventional adversarial-inquisitorial dichotomy. Instead, I will take Damaška’s approach as a basis, analysing the types of authority (hierarchical or coordinate officialdom?) and justice (policy-implementing or conflict-solving?) before the ICC. Characterising the system of the ICC, most authors speak of a system sui generis because it blends different legal traditions. Using this label, one must verify that almost every state has a procedural system sui generis because a pure

28

A. Introduction and Abstract

procedural model is almost obsolete. Thus, calling the ICC system “sui generis” does not get us out of the jungle. Using Damaška’s distinction, I will demonstrate that the ICC and its organs are mainly hierarchically structured and the form of procedure seems to be mainly “policy-implementing” (I will explain this term in detail). However, I will also show that the procedure before the ICC contains many adversarial elements usually found in a system of coordinate authority with a “conflict-solving” form of justice. As long as those elements do not contradict the general structure of the ICC and its procedure, they are acceptable, and in some cases even complement policy-implementation (i. e. to achieve the goals of international criminal justice). This is the way many, and especially continental, systems work. However, the disclosure regime as it has been recently interpreted draws a different picture. In particular, the way that the Office of the Prosecutor (OTP) and also some Chambers apply it requires a model of coordinate authority and scrutinises policy-implementation. In other words: the current disclosure regime has the wrong type of blood. Most interestingly – and inconsequently – in case non-disclosure leads to an abuse of procedural principles, judges tend to apply a model of sanctions which is designed not to endanger policy-implementation (instead of sanctioning one party for the sake of fair conflict, irrespective of whether the policy is implemented or not). So far, this tension has not been resolved. The case-by-case-approach, in connection with the lack of precedent, leads to legal inconsistency, encouraging the parties to file as many motions as they can – who knows which approach will be favoured by the judge this time? Is the judge going to lean back and let the parties try to resolve their conflict? Or will the judge actively involve himself or herself to ensure that the goals of international criminal justice are implemented? In the end, a speedy trial is literally not more than a paper promise. My solution for this involves the structural and procedural facts at the ICC. In a hierarchically structured system with a policy-implementing model that contains many adversarial elements, the parties have to get their information through disclosure and communication. Disclosure has to be conducted by way of open-file-disclosure, i. e. the prosecution has to disclose almost all of their material (as long as it does not violate legitimate disclosure restrictions). This approach is increasingly employed in the U.S.A. and even implemented by some state prosecutors. Communication means that every piece of information that is disclosed between the parties has to be communicated to the Chamber and saved in the record of proceedings. This will safeguard open-file disclosure and takes advantage of procedural areas that have remained idle so far in this respect. The record serves as a double-dossier as it has been known in Italy since the reform of

II. Methodology

29

1989: one dossier for the pre-trial stage and one for the trial stage. I will demonstrate that the structure of the process before the ICC allows for this double-dossier, which encourages the judge to actively involve himself or herself in the proceedings. All in all, this solution will help the process before the ICC to develop a disclosure regime with a matching blood type. I am aware that such an approach may be criticised as being too theoretical and obsolete since the criminal process has been governed by practical and tactical considerations. Nevertheless, a theoretical approach or, in Damaška’s words, logical legalism (i. e. a concrete life situation is evaluated on a network of principles and rules) is in-built in a hierarchical model with policy-implementing justice, while judges of coordinate officialdom and conflict-solving justice apply pragmatic legalism (i. e. a concrete life situation is evaluated on the basis of examples). This convincingly demonstrates that even the mode of thought can contradict an existing procedural structure, e. g. when at the ICC the presiding judge is used to coordinate officialdom and a conflict-solving model. However, in case even this justification of my approach is regarded as too theoretical: it is when pragmatic solutions fail, that logical approaches prove to be a necessary tool. If those approaches are ignored, miscarriages of justice1 will inevitably emerge.

II. Methodology To prove the unpredictability and inconsistency of the recent disclosure regime, this work first provides an overview of Pre-Trial Chamber decisions addressing the following issues: first, the role of the Pre-Trial Chamber; second, the extent of disclosure and communication of exculpatory evidence; third, the requirement of analysing relevant evidence; and fourth, the extent of communication in general. In the course of this study it will become clear that these issues are not small drops in the large ocean of procedural rules at the ICC but are vital for the whole process and more or less intertwined. Thus, it seems only natural to expect the Pre-Trial Chambers to at least develop a basically coherent system to approach and eventually answer the relevant procedural questions stemming from those issues. Unfortunately, as it turned out, this has been wishful thinking, since the PreTrial Chamber has come to different conclusions, using different approaches. This study will address this dilemma: at the end, the reader will not only find answers to the procedural questions asked by the Pre-Trial Chamber 1 About a definition and conceptualisation of “miscarriages of justice” see Jenkins, 40 JLS (2013), 329 ff.

30

A. Introduction and Abstract

but also an approach – a methodology – of how those issues should be approached in a consistent and predictable manner. Of course there is a catch to this goal: it cannot be achieved without taking a closer look at more general questions than those asked by the Chambers. Those “general” questions do not only deal with the international criminal process and the ICC as whole, but are even more general, going to the heart of legal theory, and involving sociological and comparative elements. More concretely, after I have outlined the procedural problems raised by the Pre-Trial Chamber, I will immediately turn to the question of why the judges reached different conclusions by illustrating the methodological tools ICC judges have in general and the tools the judges of the different Pre-Trial Chambers have actually used. This analysis will demonstrate that a certain method of interpretation has been used quite differently – contextual or systematic interpretation. Favouring a broad contextual interpretation, I will then suggest how this method of interpretation should be used, including not only the analysis of the relevant rules and provisions for the issues mentioned at the outset, but also more general elements of legal theory (the concrete elements will be identified and defined extensively). I will come to the conclusion that a contextual interpretation needs nothing less than a “general jurisprudence” in its technical sense at the ICC, which enables the judges to conduct a coherent contextual interpretation or – argumentum e contrario – which avoids different understandings of legal terms and concepts influencing the use of a contextual interpretation and allowing unpredictability through the backdoor, irrespective of the welcomed use of a method of interpretation to reach instead of justify a decision (the latter rather theoretical distinction between reaching and justifying a decision will be dealt with in detail). Having found a common language of terms and concepts that are relevant for the issues mentioned at the outset, I will use this language to categorise the ICC process, identifying the underlying system of this process. This approach has flaws, since it is almost impossible to analyse every single procedural element, drawing a conclusion about its position within the larger picture of international criminal procedure. Almost every procedural aspect before the ICC is disputed. To analyse every procedural aspect would go beyond the scope of this study. Instead, I will only analyse those procedural elements that are important for answering the procedural questions I initially asked. In other words: I will analyse every procedural aspect of the pre-trial disclosure problems I have outlined. The alternative would be to give in to the temptation to conclude that the ICC is simply an organisation that blends several traditions and procedural systems to a unique body of rules that is called “sui generis”. As I will demonstrate, this is not an option.

II. Methodology

31

Of course a large part of this study will evolve around the procedural elements of disclosure and communication. Contrary to other procedural elements, this issue will be addressed both incompletely and extensively: incompletely, because the analysis does not deal with disclosure issues that are irrelevant for the issues illustrated at the outset of this study; and extensively, because those issues that are relevant will be dealt with in great detail, including comparative issues. Having analysed the ICC, its process and especially the procedural element of disclosure, I will have identified the system of the ICC by using a certain conceptual tool (this rather general description of my result shall suffice at this point of the study, but will of course be clarified in detail). This result serves as a basis for recourse to the different Pre-Trial Chamber decisions that have been addressed at the beginning of this study. It is now possible to conduct a coherent and broad contextual interpretation of disclosure and communication provisions. The result of this interpretation will be presented at the end of the study. However, before I can begin, some parameters must be drawn: Everyone who has the privilege of speaking in front of an international audience will at some point realise that critical comments are usually twofold: first, the reference to the law of a foreign state always bears the risk of being criticised for not knowing that law well enough; and second, the reference of an academic to the legal practice bears the risk of being criticised for not knowing that practice well enough. The author of this study is an academic with a German legal background. Although this study has regard to the law of the United States, England and Wales or other legal systems on many occasions, it is not possible for the author to know this law well enough. I refer to a statement of Glendon et al. in this regard: “Comparative law by its very nature requires intercultural comparison and crossdisciplinary work. Ideally, a comparatist should have a grasp of history, law, economics and sociology as well as the necessary foreign language abilities. A person engaged in the task of comparing domestic and foreign law not only should have a basic knowledge of the elements of that foreign law, including its sources, structure and characteristics, but should also comprehend the function of jurists within the system concerned. Some understanding of the social milieu wherein the legal rules are applied, including familiarity with the political, economic and cultural institutions of the country concerned is desirable as well.”2

Thus, it is important to stress that the purpose of this study is not to compare different legal systems, but to compare different procedural models, choose one model and adapt it to the existing law at the ICC. In case I describe the procedural features of domestic legal systems, I am only doing 2

Glendon, Gordon and Osakwe, Comparative Legal Traditions (1985), p. 8.

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A. Introduction and Abstract

this exemplarily to supplement the adaption of Damaška’s models. Those models are ideal-types (I will define this phrase later), which do not exist as such in any legal system. Thus, when I use procedural features of a certain domestic legal system in order to illustrate an existing feature of these ideal-types, it is by no means my intention to neglect that the opposite feature of that ideal-type probably exists in the same legal system. For instance, the selection of judges to a state court within a certain legal system usually differs from the selection of judges to the supreme court or constitutional court in the same legal system. In my view, that does not necessarily reduce the argumentative legitimacy of that feature, since it is only supposed to illustrate the adaption of ideal-types and since it demonstrates, that no legal system entirely resembles such an ideal-type. As I noted above: eventually all legal systems can be labelled as “sui generis”. For the same reason I will – and this may come as a surprise – only occasionally refer to the law of the ad hoc Tribunals. As I have already stated, I will not label the procedural system of the ICC as sui generis but I will present an overview (for many reasons called “concept”) of how this system can be labelled. It would therefore be inconsequent to award the law of the ad hoc Tribunals any legitimacy that goes beyond a mere indicative effect. In other words, reference will only be made to the ad hoc Tribunals for informative and comparative purposes, and not to prove that a procedural element at the ICC implies a certain categorisation of the process as a whole. What can also be concluded from the Glendon et al.’s aforementioned statement is, that I cannot have consideration for all domestic peculiarities of legal principles. This study contains many important references to legal theory and legal philosophy. However, it would go far beyond the scope of this study to view those disciplines from all domestic angles. I am aware that the legality principle – for instance – plays a different role within the Common Law and Civil Law tradition. However, I will only take those differences into account if this is of any benefit for the purpose of this study – if this is not the case, these differences will only be mentioned as a side note (as dissatisfying as this might be). In sum: this study could be described as an exegesis. It has strong descriptive elements, but the main purpose is normative: to suggest how a contextual interpretation should be conducted. The work starts with concrete Pre-Trial Chamber decisions and finishes with them. It therefore resembles a Sonata form: the issues are presented in the exposition, elaborated and contrasted in the development and finally resolved thematically in a recapitulation. The reason for this methodology is not choice but a necessity since it is the only way to answer the questions asked at the outset

II. Methodology

33

properly.3 In other words, it is simply not sufficient to describe the differing Pre-Trial Chamber decisions on disclosure and communication and to make suggestions on how those decisions should have turned out, since behind those decisions lie far greater decisions that have to made first. The matter of disclosure and communication is highly dependent upon larger issues, which involve not only both narrow and broad disclosure rules, but also have cultural and methodological dimensions.

3 The rather rhetorical use of the word “necessity” shall not neglect that the argument of necessity is controversial, see generally Roberto Mangabeira Unger, False Necessity (London and New York: Verso, 1987, repr. 2001), p. xvii: “We can understand ourselves and our history without imagining ourselves to be the objects of a law-giving fate. [. . .] We can explain what has happened and what might happen, giving due weight to the reality of constraints on the transformative will, without either diminishing our explanatory ambition or surrendering to the illusions of false necessity.”

B. The Four Issues I. Introduction When addressing the final system of disclosure and the establishment of a timetable in the cases against Thomas Lubanga Dyilo, Callixte Mbarushimana (both DRC/PTC I); Bahar Idriss Abu Garda, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus (all Darfur, Sudan/PTC I); Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali (all Kenya/PTC II); Jean-Pierre Bemba Gombo (CAR/PTC III); and Laurent Gbagbo (Côte D’Ivoire/PTC III), the Pre-Trial Chambers have dealt with four larger issues: first, the role of the Pre-Trial Chamber; second, the extent of disclosure and communication of exculpatory evidence; third, the requirement of analysing relevant evidence; and fourth, the extent of communication in general.

II. Truth and the Pre-Trial Chamber With regard to the first issue, Pre-Trial Chambers provided different answers. According to the Pre-Trial Chamber in the Bemba case [hereinafter Bemba PTC], “the search for truth is the principal goal of the Court as a whole. In contributing to this ultimate goal, the Pre-Trial Chamber, in particular, shall prevent cases which do not meet the threshold of Art. 61(7) of the Statute to proceed to the trial stage. In order to fulfil its duty, the Chamber considers it vital not only to conduct properly the confirmation hearing but to organize meaningfully the disclosure proceedings.”1 Contrary to the Bemba PTC, the Pre-Trial Chamber in the Lubanga case [hereinafter Lubanga PTC] takes up a different position. “(T)he Pre-Trial Chamber is not a finder of truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued” (footnote omitted).2 In the case against Abu Garda, the PTC (and 1

Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-55, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the Parties (July 31, 2008), para. 11. 2 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-102, Decision on the Final System of Disclosure and the Establishment of a Timetable, annex (May 15, 2006), para 55, italics added, citing Shibahara, in: Triffterer, ed., Commentary

II. Truth and the Pre-Trial Chamber

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Figure 1: Search for Truth According to the Lubanga (Abu Garda)/Bemba PTCs

again single judge Sylvia Steiner) repeated this view.3 With regard to disclosure obligations and its role, the Lubanga PTC further remarks: “In the view of the single judge, if all materials disclosed by the Prosecution before the confirmation hearing, on which neither party intends to rely, were filed in the record of the case and presented thereat, the nature of the confirmation hearing would be significantly altered and the right of the Defence to decide whether to rely on such materials at the hearing would be infringed on.”4

(1999), p. 771, 790. (I note in passing that the only assertation by Shibahara that could tend into the direction of declining that the Pre-Trial Chamber is not a finder of truth is the sentence: “[S]ubstantial activities to prove the existence of the offense should be conducted at the trial stage, not this stage.” (p. 790, mn. 29) However, to conclude from this that the Pre-Trial Chamber is not a finder of truth, appears to be slightly exaggerated. Interestingly, this sentence disappeared in the later edition, see Shibahara and Schabas, in: Triffterer, ed., Commentary (2008), pp. 1171–1181. 3 Prosecutor v. Bahar Idriss Abu Garda, No. ICC-02/05–02/09–35, Second Decision on issues relating to Disclosure (July 15, 2009), para. 10. 4 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 54.

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B. The Four Issues

III. Exculpatory Evidence The second issue can be broken down into three questions: first, whether disclosure of exculpatory evidence shall take place inter partes or through the Registry. Second, to what extent must exculpatory evidence be communicated to the Pre-Trial Chamber? Third, what is the chronology of disclosure, inspection and communication? While both Chambers (Bemba and Lubanga PTC) agree that there should be inter partes disclosure prior and after the confirmation hearing, they differ in how much disclosure should take place. On the one hand the Bemba PTC requires the Prosecution “to disclose the evidence which is of true relevance to the case, whether that evidence be incriminating or exculpatory”.5 On the other hand the Lubanga PTC considers it sufficient to disclose the “bulk” of exculpatory evidence prior to the confirmation hearing and all exculpatory evidence thereafter.6 Likewise, the Chambers differ heavily on the question of how much exculpatory evidence should be communicated to the Chamber. In Bemba, the PTC states: “The Chamber is of the opinion that the Prosecutor’s obligation to investigate incriminating and exonerating circumstances equally is a further reason why it must request communication of all exculpatory evidence.”7 However, the Lubanga PTC takes a different view and clearly states that only the exculpatory evidence on which the parties intend to rely at the confirmation hearing has to be communicated to the Chamber.8 Similarly, the Chambers differ regarding the question how much evidence should be registered into the record of the proceeding. While the Bemba PTC requires “that all evidence is to be registered into the record of the case by the Registry and that, for the registration, they are to accord the Registry a reasonable time”,9 according to the Lubanga PTC “only the evidence on which the parties intend to rely at the confirmation hearing is communicated to the Pre-Trial Chamber by filing it in the record of the case.”10 Again, the latter view was confirmed by the Abu Garda PTC: 5 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 67, italics added. 6 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 119 ff., 124. 7 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 28, italics added. 8 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 41, 50 ff. 9 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 55. 10 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 47, 57.

III. Exculpatory Evidence

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Figure 2: Inter Partes Disclosure According to the Lubanga/Bemba PTCs

Figure 3: Communication to the PTC According to the Lubanga/Bemba PTCs

“Therefore, all materials subject to disclosure on which the parties do not intend to rely upon at the confirmation hearing do not need to be filed in the record of the case.”11 Finally, the Chambers agree on the chronology of disclosure, inspection and communication. From various statements within the decisions it follows that disclosure and inspection have to take place prior to the communication to the Chamber.12 11 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 11; Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, Annex I, para. 50–58. 12 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 47: “Therefore, the Chamber considers that evidence previously inspected by the parties is to be communicated to the Chamber.”; see also para. 51. Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 75.

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B. The Four Issues

IV. Analysis of the Relevant Evidence The Bemba PTC raised the issue of an analysis of the relevant evidence before disclosure.13 It stated, “[t]he Chamber considers that disclosure of truly relevant evidence presupposes an in-depth analysis by the Prosecutor of each piece of evidence prior to its disclosure, whether that evidence is incriminating or exculpatory.”14 While the Lubanga PTC did not touch this aspect, the Abu Garda PTC did. Because the Abu Garda PTC with presiding Judge Steiner (who was the single judge of the Lubanga PTC) followed the Lubanga PTC to great extent, one might expect the PTC to take a different view from the Bemba PTC and reject the analysis obligation upon the Prosecution. However, it decided differently from the Lubanga PTC, being in line with the Bemba PTC, saying: “(I)n order to facilitate the Defence in the analysis of the material disclosed under article 67(2) of the Statute, the Prosecution shall provide a further elaboration of such material by including in the Disclosure Note, together with the list of the items disclosed and their reference numbers: (i) a concise summary of the content of each item; and (ii) an explanation of the relevance of such item as potentially exculpatory.”15 With regard to inspection, it continues, “[s]imilarly, with respect to material covered by rule 77 of the Rules, the Majority is of the view that, in order to facilitate the Defence in the identification of the items which it wishes to inspect physically, the Prosecution shall include in

Figure 4: Analysis According to the Lubanga (Abu Garda)/Bemba PTCs 13 14 15

Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 68 ff. Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 68. Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 15.

V. General Communication Obligations – Broad or Narrow

39

the Pre-Inspection Report, with respect to those items which are material to the preparation of the defence, together with the list of the items submitted and their reference numbers: (i) a concise summary of the content of such items; and (ii) an explanation of the relevance of such items for the preparation of the defence.”16

V. General Communication Obligations – Broad or Narrow As a conclusion, there are great disagreements between the Lubanga and Bemba PTC regarding disclosure and communication of evidence. While the Bemba PTC prefers broad disclosure and communication obligations, the Lubanga PTC firmly believes in narrow disclosure and communication obligations. Both Chambers have received support by other judges: both the Nourain and Jerbo Jamus PTC and Abu Garda PTC with presiding judge Steiner (who was the single judge in the Lubanga PTC) supported the Lubanga PTC by stating: “[t]he disclosure system adopted by the Chamber in the proceedings related to the confirmation of charges in the Lubanga Case and the Katanga and Ngudjolo Case ‘proved to be fair and efficient and has operated successfully in the two cases’17 and that ‘there are no compelling

Figure 5: General Communication Obligations According to the PTCs 16 17

Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 16. ICC-02/05–02/09-T-3-Conf-ENG at page 5, lines 10–11.

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Figure 6: Communication to the Chamber According to the Bemba PTC

reasons to depart from that system that was put in place by this same PreTrial Chamber’”.18 By contrast, in his dissenting opinion, Judge Cuno Tarfusser rejected the arguments presiding Judge Steiner had advanced and supported the Bemba PTC instead. He provides a good explanation of the rationale for the differences between the two Chambers: “The provisions relevant to the disclosure process at the pre-trial stage in preparation of the confirmation hearing have been construed in different manners by different Pre-Trial Chambers of the Court. This difference in approach stems not only from a different reading of the relevant provisions but also, more broadly, from different conceptions of the role of the Pre-Trial Chamber (and of the Single Judge whom may have been appointed to exercise its functions) within the context of both the disclosure process and the pre-trial procedure as a whole.”19

18

Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 12 with reference to ICC-02/05-02/09-T-3-Conf-ENG at page 5, lines 14–15. 19 Dissenting opinion of Judge Cuno Tarfusser in Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 1.

C. Case-by-case Approach or Consistency As we have seen, though applying the law, a procedural question before the ICC can be decided differently by different Chambers. The reason for this phenomenon is that the drafters of the ICC-Statute relied on the “constructive ambiguity” of legal texts.1 In the words of Christoph Safferling: “A procedural system, which is so complex that the rules could be interpreted in a purely positivistic way, does not exist at the international level.”2 Thus, since the ICC-Statute leaves room for interpretation, it apparently became en vogue to decide procedural matters on a so-called case-bycase basis.3 The ICC-OTP in particular seems to accommodate such an approach.4 In its policy paper from September 2007 on the interests of justice, it declares that the paper’s scope would only “offer limited clarification in the abstract” as “the particular approach then will necessarily have to depend on the facts and circumstances of the case or situation.”5 Thus, international criminal procedure highly depends on the persons involved.6 As I have illustrated, the composition of the chamber can play an important role in determining how the Statute and the Rules are interpreted.7 Issues arising in different chambers may be resolved in slightly different ways.8

I. The Problem of the Case-by-case Approach Decisions on procedural issues made on a case-by-case basis are without doubt welcomed by many legal actors before the ICC. The advantages of this approach are apparent: it increases the flexibility of legal actors and facilitates the application of the ICC-Statute. However, this approach has an Achilles heel, being even more vulnerable in the context of an interna1

Safferling, International Criminal Procedure (2012), p. 112. Safferling, International Criminal Procedure (2012), p. 112. 3 In the same vein Swoboda, Verfahrens- und Beweisstrategien (2013), p. 203, seeing no alternative to a case-by-case approach. 4 Safferling, International Criminal Procedure (2012), p. 110. 5 ICC-OTP, Policy Paper on the Interests of Justice, p. 7 Fn. 9. http://www.icccpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Policies+and+ Strategies/Policy+Paper+on+the+Interests+of+Justice.htm 6 Safferling, International Criminal Procedure (2012), p. 111. 7 Rutledge, 16 Regent U. L. Rev. (2003–2004), 151, 162–163. 8 Christensen, 6 UCLA J. Int’l L. & Foreign Aff. (2001–2002) 391, 414. 2

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tional (criminal) trial. The situation is obvious: if a trial participant cannot predict to a certain extent the answer to a procedural question, he or she will of course try everything to ensure that this question is answered in his or her favour. Considering the concrete legal questions this study is about, if neither the Statute nor the Rules are clear about the obligation to disclose certain evidence, the participant will simply try his or her luck and either hide important evidence or make broad claims that the other side constantly violates its disclosure obligations. This phenomenon came to pass in the case against Lubanga, where the Trial Chamber stated in its final judgement: “In its final submissions, the defence asserts that the prosecution failed to fulfil its obligations as regards disclosure and to investigate exculpatory circumstances, arguing that these suggested failures ‘impair the reliability of the entire body of evidence presented at trial by the Prosecution’ to such an extent that it cannot support findings ‘beyond all reasonable doubt’. The prosecution argues that it met its disclosure and investigative obligations, and it is submitted that the proceedings have not been vitiated in the manner complained of.”9

The constant claim the opponent has violated procedural rules, regardless of whether he or she has in fact failed to disclose evidence, causes delays and high costs.10 Many observers claim that international criminal proceedings are too costly, too long and no longer politically or financially viable.11 As I have shown, an important reason for this is a certain degree 9 Prosecutor v. Thomas Lubanga Dyilo, Judgment pursuant to Article 74 of the Statute, No. ICC-01/04-01/06-2842, para. 119 (March 14, 2012) (fn. omitted); see also Ambos, 12 ICLR (2012), 115, 128. 10 See generally Boas, The Miloševic´ Trial (2007), pp. 131 ff. It is worthwhile recalling in this context that the Chamber needed almost a year to prepare the opening of the trial (cf. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06, Decision Regarding the Timing and Manner of Disclosure and the Date of Trial, para. 29 (November 9, 2007) setting the commencement date for 31 March 2008). 11 See, e. g., Higgins, 5 J. Int’l Crim. Just. (2007), 394, 394; Zacklin, 2 JICJ (2004), 541, 543–545; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 235, 343 ff.; Kwon, 5 JICJ (2007), 360 ff. Others, on the contrary, regard the costs of international criminal justice relatively low in comparison to the costs of other trials, projects or institutions, see Romano, 4 Law & Prac. Int’l Cts. & Tribunals (2005), 281, 303, who compares the costs of the ad hoc Tribunals to the costs of “several high profile trials and investigations” such as the Lockerbie trial ($80 million), the Oklahoma City bombing investigation ($82,5 million), the Whitewater and Monica Lewinsky investigations ($62,5 million) etc. See also the instructive overview in McLaughlin, International Criminal Tribunals (2012), p. 77, who compares the costs of combined international criminal tribunals 1993–2015 (including the ICTY, ICTR and ICC: $6,28 billion) with the Wall Street bonuses 2011 ($20 billion), the London Olympics 2012 ($15 billion), the U.S. Federal Court System budget 2012 ($6 billion), the U.S. presidential election 2012 ($6 billion), the sale of the L.A. Dodgers 2012 ($2 billion) and the Apple Samsung Verdict 2012 ($1 billion).

I. The Problem of the Case-by-case Approach

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of uncertainty and unpredictability12 or a lack reliability and foreseeability.13 Already the “adversarial nature” of the ICTY proceedings “coupled with the absence of precedent” was accused of being responsible for such unpredictability, to the extent that it was alleged to have given “too much leeway to judges deciding motions at each stage of the trial.”14 Since the ICC-RPE contain some similarities to the ICTY Rules,15 this statement could also be valid for the situation at the ICC. Thus, under the jurisdiction of international tribunals, judges apply different methods of interpretation, depending on their legal background. In the words of George Christie: “Most people in the western world accept that there are fundamental human rights and are generally in agreement on what those rights are. They are not, however, in agreement on how disputes as to the violation of those rights should be tried and, in particular, how much deference is to be paid to the conclusions of the bodies that made the initial decisions in those disputes. Achieving agreement on these questions may prove much harder than many people think. Matters such as the style of judicial reasoning, that may seem unimportant to those who think in terms of the big picture, can assume crucial importance in practical life. One ignores such factors only at one’s peril.”16

It is a fact, that courts operating in different legal cultures17 can reach different conclusions on the same issue, not just because they take a different view of the merits of the issue involved, but also because they have a different view of the judicial function and/or utilise different judicial techniques.18 For instance, while a judge in an inquisitorial process gives explicit reasons for his or her decision on guilt or innocence,19 in an adversarial trial the final arguments of the prosecution would set limits for the legal reasoning of the judgement.20 12 Groome, 25 Penn St. Int’l L. Rev. (2006–2007), 791, 802: “International criminal justice must establish with certainty and predictably our resolve to end impunity – it must become expected and routine. The future of international criminal law lies in it becoming our ordinary response to extraordinary crimes.” 13 Safferling, International Criminal Procedure (2012), p. 111. 14 Johnson, 10 Int’l Legal Persp. (1998), 111, 170. 15 Rutledge, 16 Regent U. L. Rev. 151 (2003–2004), 151, 186. 16 Christie, 8 Tul. J. Int’l & Comp. L. (2000), 217, 232. 17 I adopt Fikentscher’s definition of “culture” in Fikentscher, Modes of Thought, nd 2 ed (2004), p. 23: “Culture is the attribute of a society that refers to the patterns of conduct of its participants – traditional but open to change – in social situations concerning knowledge, belief, art, morals, law, custom or other mentally reflected themes.” 18 Cf. Christie, 8 Tul. J. Int’l & Comp. L. (2000), 217, 224, observing different interpretations of the Warsaw Conventions. 19 See infra E. III. 3 a) bb) and c); IV. 2. c) bb) (3). 20 Öberg, 24 CLF (2013), 113, 114–115.

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The drafters of the Rome Statute blended different legal cultures and traditions. Thus, one could say that they accepted a certain degree of inconsistency, unpredictability and unreliability. This is compounded by the fact that the Rules of Procedure and Evidence are influenced by the Rules of Procedure and Evidence at the ad hoc Tribunals,21 which are based on a draft by the United States.22 Those rules are said to be adversarial in nature.23 If this is true, the drafters of the Rome Statute intentionally favoured a case-by-case approach and a certain degree of inconsistency. Renowned scholars such as Jeremy Bentham and Robert Kagan associated “Common Law” or “adversarial legalism” with unpredictability, legal uncertainty and costliness.24 Bentham polemically puts it like this:

21 Boas et al., International Criminal Procedure, ICL Practitioner Library Series Vol. III (2011), p. 39. 22 Boas et al., International Criminal Procedure, ICL Practitioner Library Series Vol. III (2011), p. 24; Ntanda Nsereko, 5 CLF (1994), 507, 508, stating that the ICTY “relied heavily on proposals from the U.S. government and from non-governmental organizations such as the U.S.-based Lawyers Committee for Human Rights”. 23 In the First Annual Report of the ICTY, President Cassese stated that the Statute of the ICTY had adopted “a largely adversarial approach to its procedures, rather than the inquisitorial system prevailing in continental Europe and elsewhere”, see ICTY Report, UN Doc. A/49/342, 29 August 1994, para. 71; see also Boas et al., International Criminal Procedure, ICL Practitioner Library Series Vol. III (2011), p. 14; Jackson, 7 JICJ (2009), 17, 18; Mégret, 14 UCLA J. Int’l L. Foreign Aff. (2009), 37, 43 76 (“The strong presence of U.S. lawyers in the prosecutor’s office of the ICTY, at least in the early days, meant that more heavily adversarial methods were brought to bear.”); Weisbord and Smith, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 255, 263 with further references (“[S]cholars who choose to adopt the procedural rules of adversarial systems as their model look to the procedures of the ad hoc tribunals established by the UN Security Council after the dissolution of the former Yugoslavia and the massacres in Rwanda to determine whether these accorded with the highest standards of due process expected of adversarial systems. The authors employing this methodology are often American, so it is not surprising that the most sophisticated analyses of this type employ the due process framework of the U.S. legal system as a standard.”). 24 Kagan, Adversarial Legalism (2003), p. 4; Bentham, in: Bowring, ed., The Works of Jeremy Bentham, Vol. V (1792/1843), 231, 235; see also Bonomy, 5 JICJ (2007), 348, 349 ff. Recently, this even implied the U.S. Supreme Court in a decision about plea bargaining (resp. charge bargaining): “[W]e accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to halt.”, see Lafler v. Cooper, 132 S.Ct. 1376, 1397 (2012); see also Metzger, 122 Yale L.J. (2013), 2550, 2554 (“The Court’s anxiety about adversariness is not limited to shoring up the viability of the plea bargaining system. Rather, this anxiety extends to adversarial constitutional criminal procedures in the trial process itself.”, at 2555 [fn. omitted]).

I. The Problem of the Case-by-case Approach

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“Scarce any man has the means of knowing a twentieth part of the laws he is bound by. Both sorts of law are kept most happily and carefully from the knowledge of the people: statute law by its shape and bulk; common law by its very essence. It is the judges . . . that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won’t tell a man beforehand what it is he should not do – they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law? Only by watching their proceedings: by observing in what cases they have hanged a man, in what cases they have sent him to jail, in what cases they have seized his goods, and so forth. These proceedings they won’t publish themselves, and if anybody else publishes them, it is what they call a contempt of court, and a man may be sent to jail for it.”25

This statement is certainly exaggerated and other authors would disagree.26 However, it can hardly be debated that international criminal trials suffer from these shortcomings.27 By contrast, Civil Law countries are said to lean more towards a stricter system consistency and predictability,28 whereby consistency should not be confused with coherence: coherence is typically meant to designate something more than mere logical consistency, although it is not quite clear what this additional feature is taken to be.29 25 Bentham, in: Bowring, ed., The Works of Jeremy Bentham, Vol. V (1792/ 1843), 231, 235. 26 For instance, Dworkin defended the idea of consistency in Common Law. For him, law as integrity refuses to accept the conclusion of legal pragmatism which “denies that a community secures any special benefit by requiring that judges’ adjudicative decisions be checked by any supposed right of litigants to consistency with other political decisions made in the past.”, see Dworkin, Law’s Empire (1986), p. 95. Rather, “[l]ike conventionalism, [law as integrity] accepts law and legal rights wholeheartedly [. . .] It supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.” (pp. 95–96) See also Christie, 157 Duke L.J. (1987), 157, 166. 27 See, for instance, Kwon, 5 JICJ (2007), 360, 364 ff.; Swoboda, Verfahrensund Beweisstrategien (2013), p. 391. 28 Kagan, Adversarial Legalism (2003), p. 4. 29 Marmor, Interpretation and Legal Theory, 2nd ed (2005), p. 48, explaining: “One is tempted to say that coherence is the requirement of consistency as applied to theories. This would make the example irrelevant since the two propositions cannot be conceived of as belonging, together, to any theory whatsoever. This answer, though perhaps basically correct, is insufficient. In fact, it begs the question, for in what sense is a theory more than a set of consistent propositions? In other words, it only pushes the question one step further.” See recently Amaya, 19 Legal Theory (2013), 1 ff.

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II. So What? Or: Is Consistency Necessary? If the reader claims that I have painted a very general and one-sided picture of the nature of the proceedings before the ICC and cultural/legal specificities of Common Law and Civil Law countries, he is certainly right. Even worse, I may have irritated the reader with many terms I did not define, terms like “adversarial”, “Common Law” or “Civil Law”. Indeed, the question of consistency is much more difficult to answer than it appears. Is the process before the ICC really adversarial in nature? If yes, does this really mean, that consistency is not important? What about the precedent in English or American proceedings? As I have illustrated above, several procedural questions have been answered differently, depending on the chamber dealing with them. Those questions are not marginal. The disclosure of evidence can be decisive for the determination of guilt. In other words: whether the accused can go free or has to spend years in prison largely depends on the evidence that is available to the participants.30 Thus, if the procedural question of what evidence has to be disclosed depends on the legal background of the judge, the future of the defendant depends on which chamber his case is assigned to. This, on the one hand, creates an outcry for many scholars, but it also, on the other hand, provokes the rhetorical question “so what?”. What if a certain degree of inconsistency is in line with the ICC-Statute and ICCRPE? What if the drafters of the ICC-Statute wanted the Rome system to have a certain degree of inconsistency?31 These questions form part of the more general issues that this work is about. I emphasise that these questions are not abstract questions, although they will include a great amount of legal theory and philosophy. They will be combined with the very concrete and important procedural issues of disclosure and communication. The question this study asks in general terms is therefore very simple: how does a judge have to decide the procedural questions outlined above? With “how”, I do not only refer to the outcome of his decision, but also to his or her approach, or – in other words – his or her methodology.

30

About the importance of disclosure and its role within the “adversarial” process see infra F. II. 31 In fact, pragmatism would criticise the idea of consistency in any system, see Dworkin, Law’s Empire (1986), pp. 151 ff.

D. How to Interpret the Law at the ICC – Methodology of the ICC? Because of the mixed nature of international criminal law, it is not easy to identify a common methodology to approach the gaps between rules and their application.1 The main reason is that the word “methodology” itself is understood differently, depending on the knowledge of the persons using that word.2 A legal methodology may be defined “as a systematic general approach to the duly purposive and consistent execution of a recurrent type of major task arising in the making or application of law”.3 One of this “major tasks”, at least in many jurisdictions within developed Western systems, is the interpretation of statutes.4 As Alexander Zahar and Göran Sluiter point out, one of the most important areas of controversy and confusion in international criminal law has been the tribunals’ choice and use of sources, to define, among other things, the elements of crimes and forms of personal criminal liability.5 This critique is understandable since the interpretation at the ICC is more or less based on coincidence.6 Moreover, Safferling considers it as rather “eclectic” to revert to unreflected argumentation in order to quickly reach the favoured result.7 It appears that the recourse on both the case law of the ad hoc Tribunals and comparative law arguments depends on the desired outcome of the case.8

1

Safferling, Internationales Strafrecht (2011), p. 76. Ibid. 3 Summers, Form and Function in a Legal System (2006), p. 241. 4 Ibid. Other tasks are, for instance, interpreting contracts and interpreting written constitutions. Methodologies may also exist for the application of case-law precedent, and for the drafting of statutes, and of contracts. 5 Zahar and Sluiter, International Criminal Law (2007), p. 79. 6 Safferling, Internationales Strafrecht (2011), p. 76. 7 Ibid, pp. 76–77. 8 Ibid, p. 77; See also the dissenting opinion of Judge Kaul in Situation in the Republic of Kenya, No. ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, para. 28 ff. (March 31, 2010). 2

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D. How to Interpret the Law at the ICC – Methodology of the ICC?

I. Sources Art. 21 ICC-Statute has a positivistic structure and defines the “applicable law” before the ICC. The article originates from Art. 38 ICJ-Statute, which contains the sources of international law.9 Art. 21 provides for a hierarchy between different sources of international criminal law and differentiates between an international law stage ((1) and (2)) and a domestic law stage. Moreover, Art. 21 refers to both internal sources of law and external sources of law.10 As for internal sources, the ICC has to apply the legal texts. According to Art. 21(1)(a) ICC-Statute the Court shall apply – in the first place – the ICC-Statute. The ICC-Statute is an international treaty and serves as the central source of international criminal law.11 In addition to the ICC Statute, the Court shall apply the Elements of Crimes and its Rules of Procedure and Evidence. In the second place, the Court shall apply “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict”. The provision refers explicitly to the “principles and rules of international law” and thus to customary international law and general principles in the sense of Art. 38 ICJ-Statute.12 Art. 21(1)(c) ICC-Statute makes reference to general principles – as a subsidiary source or default rule (“[F]ailing that”) – in their traditional comparative law sense. This is an important point for the purpose of this study. As Kai Ambos puts it: “While it is true that international custom and general principles are difficult to determine, precisely these sources must serve as the constructive starting point for the establishment and development of ICL norms as long as there is no specific treaty rule, they have not lost all their importance with the entry into force of the Rome Statute since the Statute contains many gaps and leaves many issues consciously ambiguous.”13

Thus, the “applicable law” of the ICC already implies that the Statute is indeed ambiguous and leaves room for interpretation and that comparative Verdross and Simma, Universelles Völkerrecht, 3rd ed. (1984), para. 516 ff. Bitti, in: Stahn and Sluiter, eds., Emerging Practice (2009), 285, 288. 11 Safferling, Internationales Strafrecht (2011), p. 77. 12 Cf. McAuliffe deGuzman, in: Triffterer, ed., Commentary (2008), p. 701, 702, mn. 11 ff.; Melloh, Einheitliche Strafzumessung (2010), pp. 199 ff.; favouring a continued validity of customary law and the “existence of two compounds of law” Stuckenberg, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht (2007), pp. 7 ff.; on the function of customary law to fill in gaps cf. Zahar and Sluiter, International Criminal Law (2007), p. 17; Burghardt, Vorgesetztenverantwortlichkeit (2008), pp. 68 ff.; critical regarding ICTY/ICTR practice ibid., pp. 35 ff. 13 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, pp. 73 f. 9

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law is a source of international criminal law. Ambos distinguishes between a traditional and a modern understanding of “general principles”: within the traditional understanding a judge before the ICC is supposed to identify “general principles” on the basis of a comparative survey of the most important legal systems of the world.14 The predominant opinion,15 however, requires that the judge should take into account international “soft law”,16 as a kind of opinio juris without concordant state practice.17 Such a modern understanding of general principles leads to an assimilation of international customary law and general principles in terms of overall “principles und rules of international law” within the meaning of Art. 21(1)(b) ICC-Statute.18 The discussion reflects the two central questions of comparative law: first, what to compare; and second, how to compare. As I will demonstrate that comparative law is a crucial element of the sought concept to analyse the process before the ICC, both questions are dealt with later in more detail.19 At this point, it shall therefore suffice to point out that general principles of international law cannot be found by merely identifying and comparing general principles of certain domestic legal systems. As I will show, the ICC is in need of a general jurisprudence that cannot be too considerate of domestic legal principles.20 As to the second question – how to compare? – the answer will be given at a later point of this study, since at this point it is only important to identify comparative law as a way to identify general principles according to Art. 21 ICC Statute and thus to be – at least indirectly – a source of the law before the ICC.21 However, this does not 14

Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 76; see also cf. Kreß, 111 ZStW (1999), 597, 608 ff.; Raimondo, General Principles (2008), pp. 54 ff., 183 ff.; Jesse, Der Verbrechensbegriff des Römischen Statuts (2009), pp. 93 ff.; van der Wilt, 10 ICLR (2010), 209, 214; Prosecutor v. Ieng Tirith, Ieng Sary and Khieu Samphan, No. 002/19–09–2007-ECCC/OCIJ(PTC38), Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), para. 86 (May 20, 2010). 15 Ambos, 37 AVR (1999), 318, 332 ff. with further references. 16 On the term see Shelton, “Soft Law”, in: Armstrong, ed., Routledge Handbook of International Law (2009), pp. 68–80; Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 76 (“This includes dicta of non judicial international organs, efforts of codification, declarations of diplomatic conferences, etc.”); Verdross and Simma, Universelles Völkerrecht, 3rd ed. (1984), para. 540 ff. 17 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 76; Bassiouni, 11 MichJIL (1990), 768 ff. 18 Ambos, ibid.; cf. also Verhoeven, 23 NYIL (2002), 2, 9: “basic customary rules”; contrary Melloh, Einheitliche Strafzumessung (2010), p. 198. 19 See infra E. III. 4. c) cc). 20 See infra E. III. 4. b) cc). 21 For a suggestion how to conduct the comparative law survey see Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, pp. 77 ff.

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mean that the questions of how to conduct this survey are not important. It is quite the opposite: this question will be one of the important questions of this study.22 At this point, it shall suffice to point out that the inclusion of comparative law in Art. 21 ICC-Statute does not result in more consistency or predictability. What exactly does “national laws of legal systems of the world” mean? Some suggest that this wording rather refers to “legal families” such as the Common Law, Civil Law and Islamic Law.23 Both phrases clearly have to be distinguished.24 The confusion and practical difficulties are demonstrated by a quote of Judge Schomburg of the ICTY: “Before continuing, I would like to apologize for restricting my following comments to German law and jurisprudence. Unfortunately, the workload does not allow for in-depth comparative research. However, the quoted regulations and case law may serve as an example for many similar systems. Moreover, up until today nobody has successfully claimed that this approach violates the fundamental rights to be informed and to be heard.”25

As a subsidiary means for the determination of the rules, judicial decisions and doctrines can be taken into account (Art. 38(1)(d) ICJ-Statute: “. . . judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”)26 Moreover, Art. 21(2) ICC-Statute provides: “The Court may apply principles and rules of law as interpreted in its previous decisions.” However, this does not mean that those “previous decisions” have any binding effect in terms of the stare decisis doctrine known in most Common Law jurisdictions.27 Art. 21(2) only allows for the consideration of previous decisions under the respective Chamber’s discretion (“may”).28 22

See, e. g., infra E. III. 4. Pellet, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1051, 1074; Verhoeven, 23 NYIL (2002), 2, 10. 24 About the difference between “legal systems” and “legal families” in more detail see infra E. III. 3. a). 25 Prosecutor v. Mikaeli Muhimana, No. ICTR-95–1B-A, Appeals Chamber Judgement, para. 9 (May 21, 2007), para. 9 of the Dissenting Opinion (emphasis added), cited in Bohlander, 24 LJIL (2011), 393, 407. 26 Cf. Verdross and Simma, Universelles Völkerrecht, 3rd ed. (1984), para. 617 ff.; Brownlie, Principles of Public International Law, 7th ed (2008), pp. 19 ff. 27 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 79. Under the doctrine of stare-decisis (“to stand by things decided”) it is necessary for a court to follow earlier decisions when the same point arises again in litigation. The court must thus adhere to precedent, see Garner, Dictionary (2008), p. 1443 (“stare decisis”). See also infra D. II. 1. b) bb). 28 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 79; McAuliffe deGuzman, in: Triffterer, ed., Commentary (2008), mn. 20 ff.; critically Verhoeven, 23 NYIL (2002), 2, 13; Heinsch, Die Weiterentwicklung des humanitären Völkerrechts (2007), pp. 328 ff., for whom ICL neglects the doctrine of stare 23

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At the ICTY, the situation is different. There “in the interest of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interest of justice.”29 Thus, to make it clear, that the Court “may” apply its previous decisions is a dispensation with the stare decisis doctrine, which entitles the Court to change its interpretation in each of its judgements.30 Taking into consideration the fact that judges shall hold office for a term of nine years and are not eligible for re-election31 this may intensify resulting inconsistencies.32

II. Interpretation Having outlined the hierarchy of sources when dealing with the disclosure regime before the ICC, we now draw our attention to the interpretation of those sources.33 The clear separation of those two methodological elements (the hierarchy of sources on the one hand and their interpretation on the other hand) shall not imply that they are completely separate from each other. However, this work’s purpose is to clarify that both elements are by no means amalgamated into Art. 21 ICC-Statute. This provision, to say it very clearly, is incomplete in the view of methodology before the ICC. Thus, in addition to a hierarchy, it is necessary to outline the interpretation of sources before the ICC. In the words of Marmor, interpretation is the bridge over the gap between a rule and its application.34 Interpretive methodologies vary somewhat from decisis (p. 333) and Art. 21(2) ICC-Statute adopts a “soft case law approach” (pp. 335–336). 29 Prosecutor v. Zlatko Aleksovski, No. IT-95-14/1-A, Judgement, para. 107 (March 24, 2000). The ICTR adopted this view in Prosecutor v. Laurent Semanza, No. ICTR 97-20-A, Decision, para. 92 (May 31, 2000). 30 Verhoeven, 23 NYIL (2002), 2, 10. 31 See Art. 36(9)(a) ICC-Statute. 32 Bitti, in: Stahn and Sluiter, eds., Emerging Practice (2009), 285, 293. See, however, Dworkin’s comparison between literature and law, Dworkin, Law’s Empire (1986), pp. 228 ff. Dworkin constructs an “artificial genre of literature” that he calls “chain novel”. In this enterprise “a group of novelists writes a novel seriatim; each novelist in the chain interprets the chapters he has been given in order to write a new chapter, which is then added to what the next novelist receives, and so on.” (p. 229) For Dworkin, judges holding office for a certain term are those novelists, who all contribute to the same “chain novel”, whereas their contributions differ, depending on the interpretation they choose. 33 It goes beyond the scope of this research to elaborate in depth the meaning of interpretation. See in more detail Marmor, Interpretation and Legal Theory, 2nd ed (2005), pp. 9 ff. 34 Marmor, Interpretation and Legal Theory, 2nd ed (2005), p. 112.

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system to system, and thus converge differently on the paradigm.35 Judges, officials, lawyers, and still others in a developed Western system generally seek to interpret statutes in accord with an authoritative methodology.36 To find out how the sources of international criminal law should be interpreted, I will analyse forms of interpretation in domestic legal systems and whether there exists a form of interpretation in international law. Since in international law, the methodology contains aspects of the methodology of domestic legal systems,37 I will analyse the domestic methodology prior to the forms of interpretation in international law, irrespective of the fact that the ICC-Statute is an international treaty and therefore subject to the requirements for the interpretation of international treaties contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties.38 Subsequently, I will outline the specifics of interpretation in criminal law before I will explain which form I choose to interpret the Statute. 1. Interpretation in Domestic Legal Systems In this subsection, I will expose the general differences in domestic legal systems in interpreting their sources of law. Because of the restrictions of space, I will only refer to the general differences between a system that interprets codified sources and systems interpreting non-codified sources. a) Interpretation in Germany In Germany, the prevailing view recognises the following forms of interpretation: Grammatical (textual, semantic) interpretation, systematical (contextual, structural) interpretation, historical interpretation,39 teleological (purposive) interpretation, interpretation consistent with the Grundgesetz, interpretation in conformity with European Law, and interpretation consistent with Human Rights.40 The classical forms of interpretation (Grammatical, Systema35

Summers, Form and Function in a Legal System (2006), p. 242. Ibid., p. 243. 37 Safferling, International Criminal Procedure (2012), p. 118. 38 See infra D. II. 2. 39 Crit. Rüthers, Rechtstheorie (1999), § 22 mn. 790 ff. 40 The latter interpretative methods serve as supplementation to the “classical methods”, since those methods are said to be positivist, cf. Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 232 with further references; Odersky (the then President of the German Federal Supreme Court), 2 ZEP (1994), 1 ff.; Zimmermann, 56 Cambridge L.J. (1997), 315, 320. About the purposive interpretation in more detail Shapiro, Legality (2011), pp. 252 ff. 36

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tic, Historic and Teleological) can be traced back to Friedrich-Carl von Savigny,41 who introduced four “elements” of interpretation: the grammatical, logical, historical and systematic element of interpretation.42 The previously mentioned forms of interpretation are not congruent with these elements of interpretation but go far beyond these.43 The hierarchy of these forms of interpretation has been a matter of debate ever since: some suggest that there is no hierarchy amongst these forms of interpretation.44 Others distinguish between means of interpretation (Auslegungsmittel) on the one hand and the goal of interpretation (Auslegungsziel) on the other hand:45 while the goal of interpretation is the purpose of the rule, the means of interpretation are the ordinary meaning, the systematic interpretation and the historical interpretation – in this hierarchical order.46 Grammatical interpretation aims at uncovering the grammatical meaning of the term in question.47 In practical terms, this meaning is rather hard to find since it is dependant on its systematic context.48 Grammatical interpretation refers to what is pertinently and specifically stated by the law concerning the legal problem to be solved.49 Systematical interpretation in41 von Savigny and Heuser, System des heutigen Römischen Rechts, Vol. I (1840), pp. 212 ff. See also Larenz and Canaris, Methodenlehre, 3rd ed (1995), pp. 141 ff.; Hassemer and Kargl, “§ 1 StGB”, in: Kindhäuser, Neumann and Paeffgen, eds., Nomos Kommentar zum Strafgesetzbuch, 3rd ed., Vol. I (2010), § 1 mn. 105. 42 Von Savigny and Heuser, System des heutigen Römischen Rechts, Vol. I (1840), pp. 213. 43 Larenz, Methodenlehre, 6th ed (1991), p. 343; Bydlinski, Methodenlehre (1982), p. 437. 44 Hager, Rechtsmethoden (2009), 2nd Ch. mn. 76; Canaris, “Rangverhältnis” in Beuthien et al., eds., FS Medicus (1999), pp. 25, 58 f.; Hassemer, ZRP 2007, 213, 216; Larenz, Methodenlehre, 6th ed (1991), p. 345, who nevertheless prioritises the grammatical interpretation: “Besteht danach auch kein festes Rangverhältnis in dem Sinne, dass das Gewicht der einzelnen Kriterien ein- für allemal feststünde, so stehen [die Auslegungskriterien] doch nicht beziehungslos nebeneinander. Da der Wortsinn die möglichen Auslegungen einer Bestimmung begrenzt, empfiehlt es sich, bei ihm zu beginnen; [. . .].” 45 See in more detail Bydlinski, Methodenlehre (1982), pp. 428 ff. 46 Rüthers, Rechtstheorie (1999), § 22 mn. 725 ff.; Koch and Rüßmann, Juristische Begründungslehre (1982), pp. 176 ff. 47 See generally Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 234 ff. 48 Hager, Rechtsmethoden (2009), 2nd Ch. mn. 64. 49 For a detailed discussion, see Zippelius, Juristische Methodenlehre, 6th ed (1994), pp. 25–33. See generally Larenz, Methodenlehre, 6th ed (1991), pp. 250– 264. In France, were the Code is sometimes less specific than German codes, the grammatical interpretation is supplemented by a “logical interpretation”. De Cruz described the approach in this way: “If application of the grammatical meaning approach suggests more than one possible interpretation, the text may be construed in

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cludes “case law”,50 i. e. the analysis of the judges’ interpretation of the rule in question.51 However, rules do not only have a systematic connection but also a historical context.52 Thus, the historical interpretation comprises both the rule’s enactment and its development. This form of interpretation analyses the notion, intention and valuation the legislator had in mind.53 Teleological interpretation means to work out the ratio legis of the rule. This method of interpretation “forms part of the textual, contextual and historical approaches to statutory construction in the sense that what was said and willed by lawmakers leads to the identification of the purpose of the law or provision.”54 Apart from the classical forms of interpretation traced back to von Savigny, there are other forms of interpretation in German Law. Interpretation consistent with the Grundgesetz requires that the interpretation of a rule must not be contrary to the German Grundgesetz, especially its fundamental principles.55 Interpretation in conformity with European Law means that “domestic law has to be interpreted in the light of European Law, giving European Law an indirect effect on domestic law.”56 This rule follows not only from the traditional methods of interpretation,57 but also from Euroaccordance with the ‘logical interpretation’ approach.” See de Cruz, Comparative Law, 3rd ed (2007), p. 267. 50 Hassemer and Kargl, “§ 1 StGB”, in: Kindhäuser, Neumann and Paeffgen, eds., Nomos Kommentar zum Strafgesetzbuch, 3rd ed., Vol. I (2010), § 1 mn. 107; Hager, Rechtsmethoden (2009), 3rd Ch. mn. 87. 51 Safferling, Internationales Strafrecht (2011), p. 80. 52 Schwacke, Juristische Methodik, 5th ed (2011), p. 97. 53 Schwacke, Juristische Methodik, 5th ed (2011), p. 97; in more detail Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 240. 54 Winfried Brugger, ibid., 242. 55 Cf. BVerfGE 51, 304, 323. On the Fundamental Principles see Kay Heilbronner and Marcel Kau, “Constitutional Law”, in: Mathias Reimann and Joachim Zekoll, eds., Introduction to German Law (The Hague: Kluwer Law International, 2005), pp. 53, 56 f. 56 Satzger, International and European Criminal Law (2012), § 7 mn. 87. See generally Hecker, Europäisches Strafrecht, 4th ed (2012), § 10; more concretely with regard to interpretation in conformity with a directive or framework decision see Klip, European Criminal Law (2012), pp. 296 ff. In fact, because of the high practical relevance of directives, most authors usually speak of “interpretation in conformity with a directive”. Nevertheless, strictly speaking “interpretation in conformity with a directive” is only a subset of the interpretation in conformity with EU-Law, cf. Hecker, Europäisches Strafrecht, 4th ed (2012), § 10 mn. 2. About other interchangeably used terms of that method of interpretation see Krieger, Gemeinschaftsrechtskonforme Auslegung (2005), pp. 20 ff. 57 Satzger, International and European Criminal Law (2012), § 7 mn. 88: “[T]he traditional domestic methods of legal interpretation, with regards to wording, con-

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pean Law itself.58 If several interpretations are possible, “domestic courts have to choose one which does not conflict with European Law, thereby avoiding that the domestic rule is neutralised and cannot be applied to the case at all.”59 Last but not least, as a result of the Görgülü-Decision of the Bundesverfassungsgericht,60 the result of interpretation must be consistent with human rights. b) Interpretation in Common Law aa) Interpretation of Statutes Although the main source of English law and American law is the noncodified Common Law, many statutes have been developed in order to codify certain specific issues.61 However, those statutes by no means create such extensive codification as is inherent in continental legal systems like Germany or France.62 Similar to continental legal systems, the English system knows a grammatical and systematical interpretation (literal rule), a historic interpretation (Pepper v. Hart) and a teleological interpretation (purpose approach).

text, genesis of the norm and its object and purpose (’telos’), generally require such an interpretation.” [fn. omitted]. 58 See Art. 4(3) of the Treaty on European Union (TEU): “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.” See also Court of Justice of the European Union (ECJ), Sabine von Colson and Elisabeth Kamann vs. Land Nordrhein-Westfalen, No. 14/83, para. 28 (April 10, 1984): “It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”, which means that “indirect effect of European Law does not replace any direct effect but is limited to cases in which the domestic law leaves a margin for interpretation in the light of European Law”, see Satzger, International and European Criminal Law (2012), § 7 mn. 88; see also Hecker, Europäisches Strafrecht, 4th ed (2012), § 10 mn. 3. 59 Satzger, International and European Criminal Law (2012), § 7 mn. 87, who continues: “In German law, this method of interpretation resembles the generally recognised practice of interpreting ordinary statutory law in the light of the constitution.” 60 BVerfGE 111, 307. 61 Hager, Rechtsmethoden (2009), 2nd Ch. mn. 126. 62 Hager, Rechtsmethoden (2009), 2nd Ch. mn. 126; about the different approaches to codification see infra E. III. 3. a) bb).

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(1) Literal Rule The literal rule features the plain meaning of the words within the statute, i. e. the meaning of the statute according to a general understanding.63 This restrictive approach was chosen because statutes are seen as “breaking” the Common Law.64 The literal rule is supplemented by a systematical interpretation in a sense of the following rule: “The statute must be read as a whole.”65 In the words of Viscount Simons: “[W]ords, and particularly general words, cannot be read in isolation, their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use ‘context’ in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those other legitimate means, discern the statute was intended to remedy.”66

Consequently, statutes do not solely have to be read in conjunction with other statutes but with the Common Law.67 In England, the literal rule is curtailed by the so-called “golden rule”. As early as 1877, Lord Blackburn stated: “I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which, though less proper, is one which the Court thinks the words will bear.”68

Thus, the systematic approach has to be balanced against a possible inconsistency and both justice and fairness deliberations.69 Due to the extinction of the literal rule and the increasing acceptance of the purposive approach,70 nowadays the golden rule is of little relevance.71 63

Hager, Rechtsmethoden (2009), p. 62. Hager, Rechtsmethoden (2009), p. 62. 65 Ingman, The English Legal Process, 12th ed (2008), p. 180. 66 A-G v. Prince Ernest Augustus of Hanover, [1957] A. C. 436, 461; cf. Cross, Bell and Engle, Statutory Interpretation, 3rd ed (1995), pp. 55 f. 67 Re Sigsworth, Bedford v. Bedford, [1935] 1 Ch. 89, 92. 68 River Wear Commissioners v. Adamson, (1877) 2 App. Cas. 743, 764–765. 69 Hager, Rechtsmethoden (2009), p. 64; cf. Vogenauer, Auslegung, Vol. II (2001), pp. 864 ff. 70 See infra D. II. 1. b) aa) (3). 71 Vogenauer, Auslegung, Vol. II (2001), pp. 1126 ff.; Hager, Rechtsmethoden (2009), p. 64. 64

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Similarly to the literal rule in England, one form of interpretation in American law is the “ordinary meaning” of a statute.72 Evidence of this usage may be marshalled from dictionaries and other standard literary reference works, such as relevant judicial pronouncements on the ordinary meaning of such words, prior legal history, including the evolution of the statute and other sources.73 Understandings of grammar, syntax, punctuation and the like may also play a role in an interpretation of this type.74 Apart from the ordinary meaning, the judges consider the “technical meaning” of a statute, i. e. if a provision concerns a special activity with a technical language of its own, it ought to be interpreted so as to give technical terms and phrases their technical sense (not their ordinary meaning).75 Similarly to the English form of interpretation, in the U.S.A. the “ordinary meaning” is read in conjunction with a contextual interpretation.76 According to Robert S. Summers, this form of interpretation consists of the following elements: (a) how the words in issue fit with the rest of the sentence in which the words appear;77 (b) how the sentence in which the words in issue appear fits with the rest of the specific paragraph or specific section involved;78 (c) how the same words as the words in issue are used elsewhere in the statute;79 (d) how far a proposed meaning of the words in issue affirmatively harmonizes with other sub-sections of the same section of the statute and 72 Summers, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 407, 408. 73 See, for example, Ernst and Ernst v. Hochfelder, 425 U.S. 185, 199 (1976); Pittston Coal Group v. Sebben, 109 S. 0. 414, 420 (1988). 74 See, for example, U.S. v. Ron Pair Enters. Inc., 109 S.O. 1026, 1030–31 (1989). 75 MacCormick and Summers, in: id., eds., Interpreting Statutes (1991), p. 511, 513; See, for example, Kungys v. U.S., 485 U.S. 759, 770 (1988); La. Pub. Servo Comm. V. F.CC, 476 U.S. 355 (1986). 76 Summers, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 407, 413. 77 See, for example, Mills Music v. Snyder, 469 U.S. 153, 167–68 (1985). 78 See, for example, Quelle Shell Oil CO. v. Iowa Dept. Revenue, 488 U.S. 19, 25 n. 6 (1988) (“Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . . . .”). (citing NLRB v. Federbush Co., 121 F. 2d 954,957 (2nd Cir. 1941). 79 See, e. g., Mohasco Corp. V. Silver, 447 U.S. 807, 818, 826 (1980).

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with other sections of the same statute, and with related sections of closely related statutes;80 (e) the fact that a proposed meaning of the words in issue would or would not render part of the statute redundant;81 and (f) any other relevant internal elements, such as titles and section headings, and the bearing of such notions as “words grouped in a list should be given related meaning”.82 (2) The Historical Interpretation When interpreting statutes, English courts have always taken into account the legal situation prior to the enactment of the statute (the so-called “mischief rule”).83 However, it was disputed whether this applies for both preparliamentary and parliamentary materials.84 Recourse to parliamentary materials was prohibited by the so-called “exclusionary rule”.85 This dispute was decided in favour of the use of both forms of materials, i. e. including parliamentary materials, by the famous case of Pepper (Inspector of Taxes) v. Hart. In this case, Lord Browne-Wilkinson said as representative of the majority: “Reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.”86 80 See, e. g., Public Employees Retirement System of Ohio v. Betts, 109 S.O. 2854, 2868 (1989); American Textile Manufacturers Institute v. Donovan, 452 U.S. 490 (1981) and Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 115– 116 (1983). 81 See, e. g., Mountain States Tel. and Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985). 82 See, e. g., Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 8 (1985). 83 Hager, Rechtsmethoden (2009), p. 64. 84 Parliamentary materials are materials of parliamentary debates, e. g. those published on Hansard (the printed transcripts of parliamentary debates in the Westminster system of government). Pre-parliamentary materials are those materials that were published before the parliamentary debate, i. e. reports, papers etc. Cf. Hager, Rechtsmethoden (2009), p. 64; In detail see Ingman, The English Legal Process, 12th ed (2008), pp. 192 ff.; Vogenauer, Auslegung, Vol. II (2001), pp. 967 ff.; Brudney, 85 Wash. U. L. Rev. (2007), 2 ff. 85 Cf. Radin, 43 Harv. L. Rev. (1929–1930), 863, 871. 86 Pepper (Inspector of Taxes) v Hart, [1993] A.C. 593, 634.

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However, three conditions were imposed on the relaxation of the exclusionary rule. Parliamentary rules were only allowed to be used “where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”87 In the U.S.A., judges use legislative history, too.88 Legislative history used in the United States for statutory interpretation is not limited to ministry or comprehensive committee reports about proposed legislation, but includes cryptic conference reports mediating final language between two houses of Congress, speeches made on the legislature’s floor, and even speeches and testimony from committee hearings.89 Opportunities for manipulation of such materials are obvious;90 statutory interpretation of this sort “renders statutes opaque and guts guidance to the law-abiding.”91 Adverse reaction to such manipulation has encouraged the development of a new approach to statutory interpretation, known as “new textualism”, which excludes references to legislative history.92 (3) Teleological Interpretation (Purpose Approach) As previously mentioned, both the literal rule and the golden rule do not leave much room for the ratio of the rule. Thus, case law in 1949 and the Law Commission in 1969 introduced an approach to take recourse to the purpose of the rule, the so-called purpose approach.93 In a “Draft Clause” in 1969 the Law Commission laid down: “The following shall be included among the principles to be applied in the interpretation of Acts, namely [. . .] that a construction which would promote the general legislative purpose underlying the provision in question is to be preferred to a construction which would not; [. . .].”94 With respect to case law, Pepper (Inspector of Taxes) v. Hart became a landmark decision for the purpose 87

Ibid., 640. See generally Mammen, Using Legislative History (2002). 89 Cf. Maxeiner, 41 Val. U. L. Rev. (2006–2007), 517, 549. 90 Martineau, 62 Geo. Wash. L. Rev. (1993) 1, 14. 91 Cf. Maxeiner, 41 Val. U. L. Rev. (2006–2007), 517, 549. 92 Schwartz, 45 N.Y.L. Sch. L. Rev. (2001), 149, 152. 93 Klatt, Making the Law Explicit (2008), p. 8. 94 The Law Commission and The Scottish Law Commission, Law Com. No. 21, Scot. Law Com. No. 11, The Interpretation of Statutes (London: Her Majesty’s Stationery Office, 9th June 1969), p. 51, Appendix A. 88

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approach,95 as well as the approach of Lord Denning in Nothman v Barnet LBC.96 In the U.S.A., there was less reluctance than in the UK to use the purpose approach for the interpretation of statutes. As statistics show, recourse to legislative history and the purpose of a statute is far more common in the US Supreme Court than in the English House of Lords.97 However, it seems that these statistics rather refer to the purpose of the statute the legislator had in mind. In the U.S.A., this subjective approach is called “intentionalism”.98 By contrast, the purpose of the statute detached from the legislator’s intention, i. e. an objective approach, is called “purposivism”.99 However, a side effect of that interpretation in US law is, that statements of purpose tend to be vague and encourage judges to follow their own policy views under the guise of “discovering” the legislator’s “intent”.100 bb) Interpretation of Case Law Generally, the forms of statutory interpretation cannot be used in the interpretation of case law.101 A Common Law legal system is characterised by a system of binding precedents.102 That means that the hierarchically higher court’s precedent binds the lower courts (stare decisis).103 Not everything in a reported case sets a precedent: precedent is limited to the rule of law on which the decision is founded. This rule, which is an abstraction from the facts of the case, is known as the ratio decidendi of the case.104 The ratio decidendi (Latin for “reason for deciding”) of a case may 95 “The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The court now adopts a purposive approach.”, see Pepper (Inspector of Taxes) v Hart, [1993] A.C. 593, 600, 617. 96 “Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind.”, see Nothman v Barnet London Borough Council, Court of Appeal, [1978] 1 W.L.R. 220, 228. 97 Brudney, 85 Wash. U. L. Rev. (2007), 2, 31 ff. 98 See generally Marmor, Interpretation and Legal Theory, 2nd ed (2005) pp. 119 ff.; Eskridge, Dynamic Statutory Interpretation (1994), p. 14. 99 Generally Shapiro, Legality (2011), p. 248 ff.; Eskridge, Dynamic Statutory Interpretation (1994), p. 14. 100 Scalia, A Matter of Interpretation (1997), pp. 18–23; Klatt, Making the Law Explicit (2008), p. 7. 101 Safferling, Internationales Strafrecht (2011), p. 80. 102 See in more detail infra E. III. 3. a) cc). 103 Hager, Rechtsmethoden (2009), p. 93.

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be understood as the statement of the law applied in deciding the legal problem raised by the concrete facts of the case.105 By contrast, any statement of law that is not an essential part of the ratio decidendi is referred to as obiter dictum (obiter dicta in the plural), i. e. said “by the way”.106 Although obiter dicta do not form part of the binding precedent, they are persuasive authority and can be taken into consideration in later cases if the judge in the later case considers it appropriate to do so.107 The main mechanisms employed to alter or avoid the use of precedents are overruling and distinguishing. Overruling is the procedure whereby a higher court sets aside a legal ruling established in a previous case.108 Distinguishing means demonstrating that the ratio decidendi is different in two separate cases.109 Judges use the device of distinguishing where they find a significant difference in the material facts of the previous and the present case. The law reports provide many examples of strained distinctions where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.110 Interestingly, American judges give judicial decisions interpreting statutes the binding force of precedents.111 Lower courts must follow higher court interpretations, not because their interpretations are better, but because they are authoritative.112 By giving interpretations of statutes the force of law, higher courts arrogate to themselves the determination of what the law is until the legislature acts again.113 This practice has another destructive, but largely unappreciated, effect on “law-finding” in concrete cases. When judges find law, they often begin not with a statute that the legislature drafted to cover a multitude of cases, but with a precedent that an appellate court wrote to decide one particular case.114 As a result, the generality of law, and therefore its predictability, suffers.115 104 Swoboda, Verfahrens- und Beweisstrategien (2013), p. 164; Slapper and Kelly, English Legal System, 10th ed (2009), p. 120. 105 Slapper and Kelly, op. cit. 106 Swoboda, Verfahrens- und Beweisstrategien (2013), p. 164. 107 Slapper and Kelly, op. cit. 108 Ibid., p. 122. 109 Safferling, Internationales Strafrecht (2011), p. 81; Fikentscher, Methods of Law (1975), p. 95; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 164. 110 Slapper and Kelly, English Legal System, 10th ed (2009), p. 125. 111 Cf. Maxeiner, 41 Val. U. L. Rev. (2006–2007), 517, 549. 112 Ibid. 113 See Strauss, 70 U. C. L. R. 225 (1998), 225, 244. 114 Cf. Maxeiner, 41 Val. U. L. Rev. (2006–2007), 517, 549. 115 Ibid.

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c) Intermediate Conclusion Despite the differences between Common Law and Civil Law, which I will outline in greater detail below,116 there are certain categories of statutory interpretation which play a role in both legal traditions. Especially in response to the Human Rights Act 1998, English judges apply the classical methods of interpretation to a certain extent.117 Section 3(1) of the Human Rights Act 1998 provides that “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This provision “requires construing the enactments in question according to the wider European system of purposive construction”118 and is a novelty within the English legal tradition, establishing a “far reaching new approach to the construction of statutes”.119 Thus, following MacCormick and Summers, one can identify the following categories of statutory interpretation inherent in the legal systems previously mentioned: (1) Linguistic interpretation, i. e. the interpretation using the ordinary meaning and the technical meaning. Ordinary meaning describes the interpretation in accordance with the meaning an ordinary speaker of the language would ascribe to it as its obvious meaning, unless there is sufficient reason for a different interpretation; if ordinary meaning allows for more than one interpretation, the more obvious ought prima facie to be preferred.120 “Technical meaning” as a form of interpretation takes into account that a provision is one that concerns a special activity with a technical language of its own; it ought to be interpreted so as to give technical terms and phrases their technical sense (not their ordinary meaning).121 (2) A systemic interpretation: As MacCormick and Summers correctly point out, the way how a systemic interpretation is conducted greatly depends on the legal system and legal family respectively. The first “systemic argument” that can be found within both the Civil Law and Common Law legal tradition is the contextual-harmonization, requiring the interpretation 116

See infra E. III. 3. a). See Wilson v. Secretary of State for Trade and Industry [2003] HRLR 33, [2003] UKHL 40; See generally Safferling, International Criminal Procedure (2012), p. 117. 118 Klatt, Making the Law Explicit (2008), p. 13. 119 R v. Lambert [2002] 2 AC 545 (HL), para. 78 (Lord Hope). 120 MacCormick and Summers, in: id., eds., Interpreting Statutes (1991), p. 511, 513. 121 Ibid. 117

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of a statute within a larger scheme, whether a single statute or a set of related statutes.122 The second argument is the application of the rules of precedent that usually govern the interpretation of case law. If a statutory provision has previously been subjected to judicial interpretation, it ought to be interpreted in conformity with the interpretation given to it by other courts.123 Obviously, this systemic argument is typical for most Common Law traditions and – at least in theory – rather alien to the Civil Law tradition.124 The third systemic argument is the argument by analogy: if a statutory provision is significantly analogous with similar provisions of other statutes, or a code, or another part of the code in which it appears, then, even if this involves a significant extension of or departure from ordinary meaning, it may properly be interpreted so as to secure similarity of sense with the analogous provisions either considered in themselves or considered in the light of their prior judicial interpretations.125 However, in most legal systems the principle of legality126 prohibits an analogical application of a legal norm “in malem partem”.127 Fourth, the logical conceptual interpreta122

Ibid. Ibid. 124 See in more detail infra E. III. 3. bb) and cc). 125 MacCormick and Summers, op. cit. 126 For instance, in Germany the “Gesetzlichkeitsprinzip” is laid down in Article 103(2) Grundgesetz, which reads: “A deed can only be punished if the punishability was statutorily determined before the deed was committed”. As to the relationship between the legality principle and the rule of law, Kenneth S. Gallant points out: “Legality in criminal law is one manifestation of the more general notion of the rule of law in society.”, see Gallant, Legality (2009), p. 15 (fn. omitted). 127 For Argentina, see Zuleta-Puceiro, in: MacCormick and Summers, eds., Interpreting Statutes (1991), pp. 29, 47, 66. For Germany, see the decision of the German Federal Constitutional Court in BVerfGE 71, 108, 115, which found that “the need for legal certainty excludes [. . .] analogical or customary justifications of criminal sanctions. Here, ‘analogy’ must not be understood in the narrower, technical sense: rather, each application is excluded which exceeds the content of a statutory norm of sanction. [. . .] The possible meaning of the wording of a statute marks the outer limit of admissible judicial interpretation. [T]his meaning of the wording is to be determined from the citizen’s point of view.”, translated by Alexy and Dreier, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 73, 81. For the situation in Italy see La Torre, Pattaro and Taruffo, in: MacCormick and Summers, eds., Interpreting Statutes (1991), pp. 213, 218, 243. This even applies in the USA, where the analogical extension of criminal statutes to interpret or to fill gaps is not permitted, see Summers, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 407, 447. In France, however, some scholars, distinguish between “analogia iuris” (the rule is deduced from the spirit of the legal system as a whole) and “analogia legis” (the applicable rule is that which is applicable to a similar case). While “analogia iuris” is prohibited, “analogia legis” is frequently used although that expression is never mentioned, see Troper, Grzegorczyk and Gardies, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 171, 201. 123

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tion identifies a “doctrinally elaborated general legal concept that is used in the formulation of a statutory provision”.128 Thus, the result of the interpretation must be consistent with that legal concept. However, that legal concept should not be confused with a general principle of law. This form of interpretation (fifth) identifies general principles or principles law influencing the interpretation of the statute. (3) Historical interpretation, i. e. reference to the statute’s history. However, disputes arose about what materials may be used when the history of a statute was analysed. Parliamentary and pre-parliamentary materials may be used. Furthermore, the history of the statute as a whole is taken into account, including the legislator’s intent.129 (4) Teleological interpretation is regarded as one of the most important forms of interpretation. It takes into account the purpose of the statute from an objective point of view, i. e. disregarding the purpose (intent) the legislator had in mind. According to this form of interpretation, the statute’s interpretation in the concrete case must be compatible with the postulated point and purpose.130 In some legal systems, teleological interpretation comprises the “argument from substantive reasons”: the governing idea here is that, if there is some goal or state of affairs considered to be of value or some conception of rightness which is considered fundamentally important to the legal order, and if this can be promoted by one rather than another interpretation of a given statutory provision, then the statute ought to be interpreted so that its application is compatible with (or favourable to) securing that goal or upholding that state of affairs or conception of rightness.131 Alexy distinguishes between six canons: The semantic argument concerns the linguistic usage of a term; the genetic argument refers to the intention of the legislator; the historical argument uses facts concerning the history of the legal problems under discussion; the comparative argument looks at different legal systems; the systematic argument examines the position of a norm or single term in a legal text; and the teleological argument considers the purpose, aims and goals of a legal norm.132

128

MacCormick and Summers, in: id., eds., Interpreting Statutes (1991), p. 511,

514. 129 130 131 132

Ibid. Ibid. Ibid. Alexy, A Theory of Legal Argumentation (1989), pp. 234–244.

II. Interpretation I. Textual interpretation

1. legal usage

“what is specifically said”

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a) statutory definitions b) legal fictions c) judicial doctrines

2. professional usage 3. general usage

II. Contextual interpretation

1. substantive context

a) narrow context b) broad context

“what is said in context”

2. functional, institutional context

a) legislature b) executive c) judiciary

3. real-world context

a) case b) rule c) system, sphere or life

III. Historical interpretation

1. historical interpretation in the genuine sense

a) factual interpretation then – now b) ideational interpretation then – now

“what was willed”

2. genetic interpretation

a) factual interpretation then – now b) ideational interpretation then – now

IV. Teleological interpretation

1. legal certainty

a) case level b) norm level

“what is the purpose”

2. legitimacy

a) case level b) norm level

aa) freedom bb) equality cc) dignity dd) wealth ee) . . .

3. practicability

a) case level b) norm level

Source: Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 234.

Figure 7: Methods of Statutory Interpretation (1)

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Source: Brugger, 42 Am. J. Comp. L. (1994), 395, 403.

Figure 8: Methods of Statutory Interpretation (2)

2. Interpretation in International Law The core requirements for the interpretation of international treaties are contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties of 23 May 1969.133 Art. 31 VCLT reads: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 133

See generally Gardiner, Treaty Interpretation (2008/repr. 2010).

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3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” This Article is supplemented by Art. 32 VCLT: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”

These rules are applicable as customary law,134 and must be applied in interpreting (justifying legal decisions respectively)135 not only the ICCStatute, but also “any other norm-creating instrument”,136 including the Statutes of the ICTY and ICTR.137 As Arts. 31 and 32 VCLT illustrate, the interpretive methods of domestic legal systems138 apply to a certain extent to international criminal law.139 Like in other legal systems, the “starting point for interpretation”140 in inter134 On the significance of the Vienna Convention to customary law, see Iran v. USA, ICJ, judgment of 12 December 1996 (Case Concerning Oil Platforms), ICJ Rep. 1996, p. 803, para. 23; Indonesia/Malaysia, ICJ, Judgment of 17 December 2002, ICJ Rep. 2002, p. 23, para. 37. 135 Von Bogdandy and Venzke, 12 German L.J. (2011), 1341, 1344. 136 Prosecutor v. Tadic, No. IT-94–1-A, Judgment, para. 303 (July 15, 1999). Kittichaisaree, International Criminal Law (2001), p. 46. 137 See, e. g., Prosecutor v. Aleksovski, No. IT-95–14/1-A, Judgment, supra note 29, S. 51, para. 98 (“References to the law and practice in various countries and in international institutions are not necessarily determinative of the question as to the applicable law in this matter. Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.)”; Cassese, International Criminal Law, 2nd ed (2008), pp. 15 ff. 138 See supra D. II. 1. 139 Thus, e. g., Prosecutor v. Tadic, No. IT-95–14/1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 71 ff. (October 2, 1995), distinguishes between the “literal”, “teleological”, and “logical and systematic interpretation”. Prosecutor v. Mucic al., No. IT-96–21-T, Judgement, para. 158 ff. (November 16, 1998), uses the “literal rule”, the “golden rule”, and the “mischief rule of interpretation”. See also von Bogdandy and Venzke, 12 German L.J. (2011), 1341, 1344.

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national criminal law is the wording, that is, the “ordinary meaning”.141 Art. 31(2) VCLT refers to the “context for the purpose of the interpretation” (together with para. 1), which portrays the systematic interpretation.142 The phrase “in the light of its object and purpose” in Art. 31(1) VCLT makes reference to a teleological interpretation.143 Considering the similarities between the domestic forms of interpretation and their counterparts in international criminal law, it is not surprising that the historic interpretation is classed as a “supplementary means of interpretation” that is subsidiary to grammatical, teleological, and systematical interpretation (Art. 32 VCLT). It takes on independent significance only if other means of interpretation lead to an ambiguous or manifestly absurd or unreasonable result (Art. 32(a)(b) VCLT). This approach recalls the words of Lord Denning in Nothman v. Barnet LBC: “Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind.”144 With regard to the question about what language of the international treaty should be used as a basis of interpretation, Art. 33 VCLT provides: “1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree. 3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”145

Werle, Principles of International Criminal Law, 2nd ed (2009), mn. 174. In more detail see Linderfalk, On the Interpretation of Treaties (2007), pp. 29 ff. 142 Werle, Principles of International Criminal Law, 2nd ed (2009), mn. 174; Safferling, Internationales Strafrecht (2011), p. 83; In more detail see Linderfalk, On the Interpretation of Treaties (2007), pp. 101 ff., 133 ff. 143 Safferling, Internationales Strafrecht (2011), p. 83. 144 See Nothman v. Barnet London Borough Council, Court of Appeal, [1978] 1 W.L.R. 220, 228. 145 See Kempen and Hillgruber, Völkerrecht (2007), § 12 mn. 72; Fronza and Malarino, 118 ZStW (2006), 927 ff. 140 141

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3. Specifics of Interpretation in International Criminal Law If the judges before the ICC strive to apply the above methods of interpretation, they must be aware of certain limitations international criminal law imposes on those methods. a) Specifics of Criminal Law In criminal law, there is general problem and a specific international problem with respect to interpretation. aa) General Traditionally, criminal law is sceptical of statutory interpretation by judges.146 For a long time criminal law judges were considered as “subsumption machines” who apply the law without exercising any discretion.147 Of course, this view has been overcome and rejected.148 However, because of its repressive character, criminal law in most societies is governed by principles of law such as of lex praevia (formulated in the principle of the prohibition of retroactive criminal laws in malem partem or prohibition of laws ex post facto) and lex certa (that is, the certainty of the elements of the crime and of the type and size of the penalty).149 This principle of legality is incorporated in both multilateral treaties (Art. 11 of the Universal Declaration of Human Rights [UDHR]; Art. 15 of the International Covenant on Civil and Political Rights [ICCPR]; Art. 40(2)(a) of the UN Convention on the Rights of the Child [CRC]) and regional human rights treaties (Art. 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR]; Art. 49 of the of Charter of Fundamental Rights of the European Union; Arts. 7–9 of the American Convention on Human Rights [ACHR]; Art. 7(2) of the African Charter of Human and Peoples’ Rights [ACHPR]; Art. 15 of the Arab Charter on Human Rights [ArCHR]).150 Thus, the principle of certainty has an important 146

Safferling, Internationales Strafrecht (2011), p. 84. Hassemer, ZRP 2007, 213, 214 f.; See generally Ogorek, Richterkonig oder Subsumtionsautomat? (1986). 148 Safferling, Internationales Strafrecht (2011), p. 84. 149 For a detailed analysis of the principle of legality from a comparative and international perspective see Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. III, pp. 88 f.; see also Gallant, Legality (2009); BGHSt 39, 1, 29; Raimondo, General Principles (2008), p. 2. 150 See generally Gallant, Legality (2009), pp. 156 ff.; see also Pinto Soares, 23 CLF (2012), 161, 164 ff. 147

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impact on interpretation insofar as it gives strict priority to the ordinary meaning of a statute.151 Especially in criminal law, if “rule of law” values such as stability, predictability and certainty are to amount to more than mere words, legal indeterminacy needs to be constrained.152 This has also effect on the previously mentioned interpretation in conformity with European Law.153 In Telecom Italia, the ECJ remarked that the obligation on the national court “to refer to the content of the Directive when interpreting the relevant rules of its national law is not unlimited, [. . .].”154 The Court points out that in cases that concern “the extent of liability in criminal law”, the principle of legality limits an extensive interpretation of a domestic criminal law provision due to European Law. Legal determinacy, i. e. stability, predictability and certainty, is also the reason why based on the doctrine of the limits of the wording, the German theory of legal “argumentation” distinguishes sharply between two sets of methods, namely interpretation and judicial development of the law.155 Of 151 Hassemer and Kargl, “§ 1 StGB”, in: Kindhäuser, Neumann and Paeffgen, eds., Nomos Kommentar zum Strafgesetzbuch, 3rd ed., Vol. I (2010), § 1 mn. 115 f.; Safferling, Internationales Strafrecht (2011), p. 85. See, again, the decision of the German Federal Constitutional Court in BVerfGE 71, 108, 115: “The possible meaning of the wording of a statute marks the outer limit of admissible judicial interpretation. [T]his meaning of the wording is to be determined from the citizen’s point of view.”, translated by Alexy and Dreier, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 73, 81. The Court stresses the “recognisability and foreseeability of the impending punishment for the addressee of the norm” (BVerfGE 71, 108 (115)), see pp. 95, 106. Interestingly, the same applies to the interpretation of criminal statutes in England and Wales: with respect to these statutes, the the “ordinary” or “obvious” meaning is usually favoured, see Bankowski and MacCormick, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 359, 394. A similar situation occurs in the USA. In the case Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) the Supreme Court decided that “when assessing the reach of a federal criminal statute, we must pay close heed to language, legal history, and purpose in order strictly to determine the scope of the conduct the enactment forbids.” (p. 213). As Robert S. Summers points out, “in criminal cases, when a sufficiently credible argument from a standard ordinary meaning of ordinary words favours a defendant, it will usually override any competing arguments, see Summers, in: MacCormick and Summers, eds., Interpreting Statutes (1991), p. 407, 434. 152 Klatt, Making the Law Explicit (2008), p. 2. 153 Supra D. II. 1. a). 154 ECJ, References to the Court by Procura della Repubblica presso la Pretura Circondariale di Torino, No. C-74/95 and C-129/95, para. 24 ff. (December 12, 1996): “The national court must therefore ensure that [the principle of legality] is observed when interpreting, in the light of the wording and the purpose of the Directive, the national legislation adopted in order to implement it.” (para. 26). See generally Satzger, International and European Criminal Law (2012), § 7 mn. 90 ff.; Hecker, Europäisches Strafrecht, 4th ed (2012), § 10 mn. 33 ff., 48 ff.

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course the same is not entirely applicable to Common Law systems, where at least some rules exist that are stated in court decisions rather than statutes.156 However, the Common Law legal systems compensate that lack of certainty with the process of judicial development of crimes.157 To demonstrate the working of both systems, Herbert L. A. Hart remarks: “Much of the jurisprudence of this century [the twentieth] has consisted of the progressive realization (and sometimes the exaggeration) of the important fact that the distinction between the uncertainties of communication by authoritative example (precedent), and the certainties of communication by authoritative general language (legislation) is far less firm than [a] naïve contrast suggests.”158 Whether the ideal of lex certa can actually be absolute as a rule of legality in criminal law, remains controversial.159 bb) International Criminal Law It is important to note that criminal law statutes were not the first and foremost statutes the drafters of the VCLT had in mind when they formulated it.160 As previously mentioned, the VCLT prescribes a teleological interpretation when it says: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” (Art. 31(1) VCLT). However, it is not clear and rather disputed what the “object and purpose” of the ICC-Statute is.161 Thus, as Safferling points out, those who understand the teleological interpretation as effet utile,162 rather ignore the specifics of criminal law.163 Furthermore, international criminal law has two additional specific rules of interpretation: first, treaty provisions, to the extent they can be ascribed to a norm of customary law, are to be interpreted in accordance with this corresponding norm of customary law (so-called “interpretation in confor155

Klatt, Making the Law Explicit (2008), p. 4. Gallant, Legality (2009), p. 32. 157 Ibid. Hall, 47 Yale L.J. (1937–1938), 165, 171. 158 Hart, The Concept of Law, 2nd ed (1961/1994), p. 126. 159 See Gallant, Legality (2009), p. 33, who thinks the ideal of lex certa can never be absolute as a rule. See, by contrast, Matthew R. Kramer, who argues that strict legality is possible, and desirable, in criminal law, even in the face of indeterminacy, see Kramer, Objectivity and the Rule of Law (2007), p. 120. 160 Safferling, Internationales Strafrecht (2011), p. 84. 161 Wessel, 44 Colum. J. Transnat’l L. (2005–2006), 377, 415; Lietzau, 32 Cornell Int’l L.J. (1999), 477, 484; Safferling, Internationales Strafrecht (2011), p. 84. 162 Werle, Principles of International Criminal Law, 2nd ed (2009), mn. 175. 163 Safferling, Internationales Strafrecht (2011), p. 84. 156

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mity with customary law”).164 As the ICTY puts it: “[i]n case of doubt and whenever the contrary is not apparent from the text of a statutory or treaty provision, such a provision must be interpreted in light of, and in conformity with, customary international law”.165 However, especially in criminal law the principle of legality represents a fundamental principle for the interpretation of rules. In International Criminal Law, this principle contains the basic components, i. e. lex praevia and lex certa.166 With regard to the ICC, Arts. 22–24 ICC-Statute even include those elements of the legality principle that are generally recognised in legal systems within the Civil Law tradition, i. e. lex praevia, lex certa, lex stricta, and lex scripta.167 Thus, recourse to customary law is not unproblematic.168 b) Language Another limitation to interpretation in international criminal law is the question of language. According to Art. 50(1) ICC-Statute, “[t]he official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish.” Art. 128 ICC-Statute gives those languages similar authenticy. The problem of multilingualism shall not be a subject of this research. However, in order to prevent the danger of underestimating that topic within the broader context of interpretation, I will make some brief comments. The reason for those brief comments are of practical nature: despite the fact that Art. 128 ICC-Statute gives the several languages similar authority, there is one language that practically prevails against other languages – English. In December 2001, the Economist wrote about the English language: “It is the language of globalisation – of international business, politics and diplomacy. It is the language of computers and the Internet. You’ll see it on posters in Côte d’Ivoire, you’ll hear it in pop songs in Tokyo, you’ll read it in official documents in Phnom Penh. Deutsche Welle broadcasts in it. Bjork, an Icelander, sings Werle, Principles of International Criminal Law, 2nd ed (2009), mn. 175. See also Kittichaisaree, International Criminal Law (2001), p. 45. 165 Prosecutor v. Tadic, No. IT-94–1-A, Judgment, para. 287 (July 15, 1999). The of the ICTY Statute intended to remain within the framework of customary international wherever they did not explicitly deviate from it, see ibid., para. 287, 296. 166 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. III, pp. 88 f. See also Lamb, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. I (2002), pp. 733 ff. 167 See in more detail Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. III, pp. 90 ff. 168 See generally Gallant, Legality (2009), p. 352 ff.; see also Safferling, Internationales Strafrecht (2011), p. 85. 164

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in it. French business schools teach in it. It is the medium of expression in cabinet meetings in Bolivia.”169

As useful as this might seem – a global language like English permits judges to access a great range of sources – there are some shortcomings to this, highly influencing the methods of interpretation of judges at international courts and tribunals. The truth is, the English language and the legal system in England are more intertwined than most people think. The renowned scholar George P. Fletcher puts this rather clearly: “It is more than a coincidence that all English-speaking peoples have adopted the English common law system and further, that this system has not lent itself to translation into any other language of the world. English and the common law come together as a cultural package.”170 This has an impact on the interpretation of the ICC-Statute of high practical relevance. Everyone whose first language is not English will have realised at some point, that terms like “probable cause” and “affirmative defence” are not as easily translated as it might initially seem. Terms from other legal systems do not carry this limitation, as Fletcher correctly points out: “The French system has found adoption in many countries, notably in Latin America, to some extent in Italy, and in Romania. This is hardly a counter-example, however, for all of these national languages derive from Latin and therefore translation from French is easy. German law has had a more imperialistic career. Greeks, Japanese, and Russians all adopted some aspects of the German codes and the German conceptual system. In many cases, this was achieved simply by coining a special technical language for translating the German terms.”171

In sum, different languages reflect different experiences and express different concepts, contexts and legal thoughts.172 Because of the interdependence of language, law, and society, legal meanings and legal concepts cannot easily be transferred from one legal system to another and be understood by foreign lawyers.173 Therefore, taking into account the similar authority of the languages, it remains unclear how to deal with different versions of a particular source. Interpreting the ICC-Statute, when should a judge conduct a comparison of different language versions? Obviously, there are two possibilities: a) the judge should always consult all language versions; b) the judge should only consult other language versions if a party refers to a divergent version of a rule over an article.174 In other words, in 169 http://www.economist.com/node/883997?Story_ID=883997, last visited 19 September 2013. 170 Fletcher, 46 Am. J. Comp. L. (1998), 683, 697. 171 Ibid. 172 Solan, 34 Brook. J. Int’l L. (2008–2009), 277, 294. 173 Kjaer, in: Van Hoecke, ed., Epistemology and Methodology of Comparative Law (2004), pp. 377–398.

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context of treaty interpretation (here of the ICC-Statute), does language comparison serve as a mandatory form of interpretation (just like the ordinary meaning, a systematic interpretation etc.) or should it be regarded as an exception, a subsidiary form of interpretation like the historical interpretation method?175 This problem is only discussed on a general international level and rather ignored by scholars with respect to international criminal law.176 Although the issue of interpretation within a multi-lingual context is not the focal point of this study, it will nevertheless provide an answer to the above-mentioned questions. In respect thereof, it is important to note that the question is not whether other language versions have to be consulted but when and to what extent they have to be consulted.177 This study will demonstrate that with a general jurisprudence as a tool for the interpretation of rules, the need for consulting other language versions becomes a subsidiary means, because unclear and ambiguous wording requires even more to conduct other methods of interpretation. As the contextual interpretation includes elements of comparative law research, the immediate recourse to other language versions of the text becomes unnecessary.178 Only in a scenario where all methods of interpretation are exhausted and the judge is still unsure about the meaning of a rule (or parts of the rule), he or she may consult other (ideally all) language versions of the text. Nevertheless, this approach has its limits, namely when methods of interpretation other than the literal interpretation exceed the ordinary meaning of the rule or statute. In this scenario the specifics of criminal law become apparent: while Art. 33(4) VCLT simply requires the judge to choose a meaning that “best reconciles the text, having regard to the object and purpose of the treaty”,179 this approach is prohibited in criminal law. Instead, the best solution is to invoke Art. 22(2) ICC-Statute in these cases: “In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”

174

Fronza and Malarino, 118 ZStW (2006), 927, 931. Ibid., 935. 176 Ibid., 934, 940. 177 Ibid., 951. 178 See infra E. II. 4. and III. 4. c) cc). 179 See in more detail Vismara, in: Barbara Pozzo and Valentina Jacometti, eds., Multilingualism and the Harmonisation of European Law (2006), pp. 61, 65 ff. Rainer J. Schweizer goes even further and proposes the relativization of the strict priority of a text’s ordinary meaning, see Schweizer, in: Hilpold, Steinmair and Parathoner, eds, Rechtsvergleichung an der Sprachgrenze (2011), p. 13, 26. 175

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III. Finding or Justification The legal jurisprudence distinguishes between methods of interpretation that are directed at the “finding” of the law (Rechtsfindung) and those that are directed at the justification of the law (Rechtsbegründung).180 In more concrete terms, it is said that lawyers, especially judges, justify their decisions to the outside, in order to appear to comply with the rule of law, but actually find (i. e. reach) those decisions in another way, namely intuitively, instinctively, based on their sense of justice or on common sense.181 Accordingly, the justification of a decision has merely a secondary function, since it rationalises a posteriori a by itself irrational decision and, at its highest, performs a control function.182 Ideally, the judge’s justification of a decision constitutes a logically flawless conclusion.183 According to Popper, methods of interpretation can only be directed at the justification of a decision, but never at its finding.184 This – rather psychological – differentiation between finding and justification of a decision has several shortcomings.185 The greatest danger that may be caused by the artificial separation of a legal finding and legal justification are so-called pseudo-justifications (Scheinbegründungen).186 A striking example for such a pseudo-justification is a German case called “Badewannenfall”, which was decided by the Reichsgericht.187 In this case a mother wanted to kill her illegitimate newborn by drowning him in a bathtub, but was too weak to put her plan into operation. She therefore asked her sister to do it, which she eventually did. The Reichsgericht faced a dilemma in this case: if it had seen the sister as the sole perpetrator, the death penalty would have been inevitable. By contrast, if it had held that the mother was the sole perpetrator and the sister 180 However, see Shapiro, Legality (2011), p. 248: “The object of legal reasoning is the discovery of the law.” 181 See, e. g., Isay, Rechtsnorm und Entscheidung (1929), pp. 56 ff.; about the justification of decisions, especially of factual determinations and value judgements see Puppe, NStZ 2012, 409 ff. 182 See, e. g., Isay, Rechtsnorm und Entscheidung (1929), pp. 177 ff. 183 Puppe, NStZ 2012, 409, 410. Puppe believes that the requirements imposed on the judge’s justification differ with respect to factual judgements on the one hand and value judgements on the other hand: while a factual decision can be wrong or correct and is justified by giving evidence of that decision, a value judgement can be plausible or implausible and is justified by convincing another person of the judgement’s accuracy (at 413). 184 See Popper, Logik der Forschung, 11th ed (2005), pp. 7 f. 185 See Engish, Einführung in das juristische Denken, 11th ed (2010), pp. 92 ff. 186 See generally Brecher, in: Bötticher, ed., FS Nikisch (1958), pp. 227 ff.; Scheuerle, 167 AcP (1967), 305, 305; Kriele, Theorie der Rechtsgewinnung, 2nd ed (1976), pp. 218 ff. 187 RGSt 74, 84.

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Figure 9: Finding or Justification of a Decision?

was only the aider, both mother and sister would have received a rather lenient sentence, because the former § 217 StGB provided for a reduced sentence where a mother killed her child in a special situation of conflict, and the principle of accessoriness would have prevented the aider from receiving a severe penalty. Unsurprisingly, in order to avoid the sister receiving the death penalty, the Reichsgericht favoured an extreme subjective theory under which the perpetrator or aider/abettor is identified by his will to commit the crime on his own (animus auctoris) or on behalf of another as an aider (animus socii). Because the sister acted for her sister, the Reichsgericht found that she had an animus socii and can therefore only be held liable as an aider – despite the fact that she drowned the baby with her own hands. Commenting on this decision, Hartung stated that the Reichsgericht “constructed” the sister’s aiding by applying the subjective theory in an “exaggerated” form in order to avoid the application of the death penalty.188 I would not like to delve deeper into the discussion of whether justification for and the legal finding of a decision can in fact be separated.189 In my view, the answer to this question largely depends on whether the judge seeks the “right answer” or only the “correct answer”.190 This question, in turn, depends on the cultural background of a judge. I will address this issue a little later.191 188

Hartung, JZ 1954, 430, 430. In favour of a separation see, e. g., Esser, Vorverständnis und Methodenwahl, 2 ed (1970), pp. 132 ff., 175 ff. Against a separation see Engish, Einführung in das juristische Denken, 11th ed (2010), pp. 92 ff. See also Larenz and Canaris, Methodenlehre, 3rd ed (1995), 210 f. 190 In a similar vein Engish, Einführung in das juristische Denken, 11th ed (2010), p. 95. 191 See, inter alia, infra E. III. 3. a); E. III. 4. c) dd) (3); G. IV. 189 nd

E. Interpretation of the ICC Disclosure Regime Above, I have briefly outlined the methods of interpretation at the ICC, in comparison to domestic methods of interpretation. I would now like to return to the procedural questions initially asked at the beginning of this study. As I have demonstrated, the Chambers differed in their answers to these questions. I will now examine what law the Pre-Trial Chambers applied and which methods of interpretation they chose.

I. The Applicable Law To anticipate the result of this section: it is not the applicable law taken into account by the Chambers that gives rise to disagreement. Compared, for instance, to the problem of witness proofing, which fortunately caused incisive studies of the applicable law at the ICC and its hierarchy,1 the law applied by the Chambers with regard to the disclosure and communication problems mentioned above is rather unspectacular. Since the Pre-Trial Chambers apply the same law with regard to the issues of communication and disclosure, I will analyse the applicable law of the latter issue in more detail. As already mentioned, while both Pre-Trial Chambers (Bemba and Lubanga) agree that there should be inter partes disclosure prior to and after the confirmation hearing, they differ on how much disclosure should take place: the Bemba PTC requires the Prosecution “to disclose the evidence which is of true relevance to the case, whether that evidence be incriminating or exculpatory”,2 while the Lubanga PTC considers it sufficient to disclose the “bulk” of exculpatory evidence prior to the confirmation hearing and all other exculpatory evidence thereafter.3 Both Chambers applied the ICC-Statute and the ICC-RPE as provided for in Art. 21(1)(a) ICC-Statute to reach these outcomes. Interestingly, in other cases the judges or the single judge have followed the decisions in 1 See, e. g., Kai Ambos, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 599 ff.; id., 21 LJIL (2008), 911 ff. and Vasiliev, 20 CLF (2009), 193 ff. 2 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 67. 3 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 119 ff., 124.

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Bemba or Lubanga, depending on which Chamber the case was assigned to. The disclosure regime established by Judge Steiner in the Lubanga case has been confirmed in the cases Abu Garda (Darfur), Banda Nourain/Jerbo Jamus (Darfur) and Mbarushimana (Darfur). All four cases are assigned to the PTC I and Judge Steiner is either single Judge or one of three judges. Apart from the Lubanga case, in all the other cases mentioned, Judge Tarfusser dissented and followed the Bemba approach. This said, in the case against Abu Garda, “the Majority agrees with the Prosecution that the disclosure system adopted by the Chamber in the proceedings related to the confirmation of charges in the Lubanga Case and the Katanga and Ngudjolo Case ‘proved to be fair and efficient and has operated successfully in the two cases’4 and that ‘there are no compelling reasons to depart from that system that was put in place by this same Pre-Trial Chamber’.”5 However, compared to its approach in Lubanga, the Chamber deemed it “necessary to further improve the current system in order to facilitate the Defence’s assessment of the potentially exculpatory evidence disclosed or subject to inspection. This would also enable the Chamber to better perform its role under rule 121(2)(b) of the Rules to ‘ensure that disclosure takes place under satisfactory conditions.’ ”6 This “improved” approach was adopted by the PTC I in Banda Nourain/Jerbo Jamus7 and Mbarushimana.8 On the contrary, the disclosure regime established by Presiding Judge Diarra in the case against Bemba was confirmed in the same case by single Judge Kaul. In a later decision he stated: “With regard to the necessity that the Chamber treat both parties in an equal manner, the Single Judge does not consider that the established disclosure system – 4

ICC-02/05-02/09-T-3-Conf-ENG at page 5, lines 10–11. Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 12, with reference to ICC-02/05-02/09-T-3-Conf-ENG at page 5, lines 14–15. 6 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 13. 7 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, No. ICC-02/05-03/09-49, Decision on Issues Relating to Disclosure, para. 3 (June 29, 2010), with reference to ICC-02/05-03/09-T-5, at page 11, lines 18–19: “At the Hearing, the Prosecutor expressed satisfaction with the disclosure system as implemented in the latest case before the Chamber, i. e. the case of The Prosecutor v. Bahar Idriss Abu Garda (‘Abu Garda case’).” 8 Prosecutor v. Callixte Mbarushimana, No. ICC-01/04-01/10-87, Decision on Issues Relating to Disclosure, para. 9 (March 30, 2011): “The Chamber recalls its ‘Second Decision on issues relating to Disclosure’ in the Abu Garda case (‘Decision on Disclosure in the Abu Garda case’), [fn. omitted] whereby the Majority established (Judge Cuno Tarfusser partly dissenting) the following principles. [. . .] The Chamber, Judge Tarfusser partially dissenting, will apply the aforementioned principles to the present case.” 5

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which equally applies to the defence and which has not been challenged by it – prejudices or affects the fair balance between the parties and that this system denies the Prosecutor the opportunity to present his case, including his evidence, under conditions that place him at a substantial disadvantage vis-à-vis the defence.”9

Most interestingly, the approach in Bemba was also adopted by the PTC II in the case against Muthaura et al. and by Judge Tarfusser in his dissents in Abu Garda and Banda Nourain. The former distinguishes itself from the other decisions by not only being the latest statement on the matter but also by being the first decision that adopted an approach from another Chamber. In this decision Judge Trendafilova recalled: “The decision of 31 July 2008 issued by Pre- Trial Chamber III in the case of the Prosecutor v. Jean-Pierre Bemba Combo, in which it developed the principles underlying evidence disclosure between the parties for the purposes of the confirmation hearing (the ‘31 July 2008 Decision’).10 The Single Judge has no reason to depart from the principles as laid down in the 31 July 2008 Decision, and accordingly, will apply them in the present decision.”11

The latter contributions to the dispute, i. e. the dissenting opinions of Judge Tarfusser in the cases against Abu Garda and Banda Nourain/Jerbo Jamus are rather declaratory with respect to the applicable law and will play a far greater role in the analysis of the methods of interpretation adopted by the Chambers. Nevertheless, Tarfusser’s dissenting opinion summarises the law applicable to the said procedural questions perfectly: “As recalled in the Single Judge’s ‘Decision scheduling a hearing on issues relating to disclosure between the parties’ (the ‘First Decision on Disclosure’),12 the provisions relevant to the disclosure process at the pre-trial stage in preparation of the confirmation hearing have been construed in different manners by different Pre-Trial Chambers of the Court. This difference in approach stems not only from a different reading of the relevant provisions but also, more broadly, from different conceptions of the role of the Pre-Trial Chamber (and of the Single Judge whom may have been appointed to exercise its functions) within the context of both the disclosure process and the pre-trial procedure as a whole.”13 9 Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-75, Decision on the Prosecutor’s application for leave to appeal Pre-Trial Chamber III’s decision on disclosure, para. 37 (August 25, 2008). 10 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34. 11 Prosecutor v. Muthaura et al., No. ICC-01/09-02/11-48, supra note 11, S. 79, para. 7. 12 ICC-02/05-02/09-18. 13 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 1. See also his dissent in Prosecutor v. Nourain and Jerbo Jamus, No. ICC-02/05-03/09-49, supra note 7, S. 78, para. 3 (June 29, 2010), para. 6: “As recalled above, Judge Cuno Tarfusser appended a partly dissenting opinion to the Decision on disclosure in the Abu Garda

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II. Methods of Interpretation 1. The Extent of Communication Probably the most obvious methodological difference between the Chambers becomes apparent with regard to the question of how much evidence should be communicated to the Chamber? As mentioned above, in Bemba the PTC states: “The Chamber is of the opinion that the Prosecutor’s obligation to investigate incriminating and exonerating circumstances equally is a further reason why it must request communication of all exculpatory evidence.”14 The Lubanga PTC takes a different view and remarks that only the exculpatory evidence on which the parties intend to rely at the confirmation hearing has to be communicated to the Chamber.15 a) Literal Interpretation In order to reach a decision, the first method of interpretation conducted by the Chambers is a literal one. The Lubanga PTC explicitly states: “According to its literal interpretation, rule 121 (2) of the Rules expressly refers to evidence under article 61 (3) of the Statute, which is the evidence on which the Prosecution intends to rely at the confirmation hearing. The single judge therefore considers that the reference to ‘all evidence’ in paragraph (c) of rule 121 (2) of the Rules must be understood as all evidence on which the Prosecution intends to rely at the confirmation hearing.”16

This literal interpretation was supported by the majority in the Abu Garda case: “In the view of the Majority, whereas disclosure is to be conducted inter partes between the Prosecution and the Defence,17 the duty of communication to the Chamber of ‘[a]ll evidence disclosed between the Prosecutor and the person for case. His dissent was based on a reading of the relevant provisions and, more broadly, of the role of the Pre-Trial Chamber other than the one adopted by the Majority and focused on the scope of the duty of communication to the Chamber of the disclosed material. The reasons for that dissent still stand and are hereby recalled and reiterated in their entirety, in particular as regards the view that also material of a purportedly exculpatory nature falls within the scope of the parties’ duty of communication to the Chamber. Since the views of the Majority equally stand, however, disclosure in the case will be governed by the same principles and rules as adopted in the Abu Garda case.” 14 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 28. 15 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 41, 50 ff. 16 Ibid., para. 41, italics added. 17 Ibid., page 5.

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the purposes of the confirmation hearing’ envisaged in rule 121(2)(c) of the Rules implies, according to the precedents of this Chamber, the filing of the evidence to be presented at the confirmation hearing in the record of the case.”18

By contrast, the Bemba PTC drew a completely different conclusion from its literal interpretation: “The Chamber notes that under rule 121(2)(c) of the Rules ‘all evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the Pre-Trial Chamber’. The reference to ‘all evidence’ in rule 121(2)(c) of the Rules implies that communication to the Chamber comprises all the evidence disclosed between the parties and that it is not limited to the evidence which the parties intend to rely on or to present at the confirmation hearing.”19

Drawing the attention on the ordinary meaning of Rule 121(2)(c), the conclusion of the Bemba PTC is far more convincing. The Chamber says: “all evidence” means all evidence.20 This understanding of the ordinary meaning is conducted, as previously mentioned, in many legal systems and supported by Art. 31 VCLT. In the same vein Judge Tarfusser states: “‘All’ is used in the English language to refer to ‘the whole quantity or extent of a particular group or thing’.21 It appears therefore hardly debatable that the evi18

Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 8. Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 43. 20 In the same vein Prosecutor v. Muthaura et al., No. ICC-01/09-02/11-48, supra note 11, S. 79, para. 7: “In this context, the Single Judge considers that ensuring an effective disclosure process, which ultimately aims at reaching a proper decision as to whether or not to send the cases to trial, requires that all evidence disclosed between the parties, shall be communicated to the Chamber, regardless of whether the parties intend to rely on or present the said evidence at the confirmation hearing. This reading is compatible with a literal as well as a contextual interpretation of the Statute and the Rules thereto and in particular, the last sentence of rule 121(2) (c) of the Rules, which requires that ‘all evidence disclosed [. . .] be communicated to the Pre-Trial Chamber’. This means that the Chamber shall have access to the following disclosed evidence: (a) all evidence in the Prosecutor’s possession or control (pursuant to article 67(2) of the Statute) which he believes shows or tends to show the innocence of the suspects, or to mitigate their alleged guilt, or may affect the credibility of the Prosecutor’s evidence; (b) all names of witnesses and copies of their prior statements on which the Prosecutor intends to rely at the confirmation hearing, regardless of whether the Prosecutor intends to call them to testify (rule 76); (c) all rule 77 material in possession or control of the Prosecutor (incriminatory, exculpatory, or mixed in nature), which is 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 was obtained from or belonged to the person; (d) all rule 78 material in possession or control of the Defence, which is intended for use as evidence for the purposes of the confirmation hearing; and (e) all evidence the Defence may present as per rule 79, on which the suspect intends to rely, to establish an alibi or a ground for excluding criminal responsibility.” 19

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dence disclosed by the parties falls in its entirety within the scope of the communication to the Pre-Trial Chamber, irrespectively of its purportedly incriminating rather than exculpatory nature. Accordingly, the duty of communication vis-à-vis the Pre-Trial Chamber encompasses any and all piece of evidence disclosed, including material of a purportedly exculpatory nature.”22

Thus, when Judge Steiner observes that “[a]ccording to its literal interpretation, rule 121 (2) of the Rules expressly refers to evidence under article 61 (3) of the Statute, which is the evidence on which the Prosecution intends to rely at the confirmation hearing”, this resembles a contextual than a literal interpretation. In fact, as I have already mentioned, the literal interpretation cannot be completely separated from the contextual interpretation, since the “ordinary meaning” is sometimes difficult to identify because it is dependent on its systematic context.23 The difficulty to distinguish a literal from a contextual interpretation is demonstrated by Judge Tarfusser in his dissenting opinion in the Abu Garda case: “It is worth highlighting the different wording between rule 121(2)(c), on the one hand, and rules 121(3) and 121(6), on the other hand: respectively, they refer to evidence disclosed between the parties ‘for the purposes’ of the hearing and evidence to be presented ‘at the hearing’. Therefore, Rule 121 envisages two different categories of evidence, namely (i) evidence disclosed between the parties for the purposes of the confirmation hearing and (ii) evidence that the parties intend to present at the confirmation hearing. The former category may be (and will usually be) broader than the latter one. More importantly, the two categories are subject to a different regime as regards access to it by the Pre-Trial Chamber: while all evidence disclosed for the purposes of the confirmation hearing shall be ‘communicated’ to the Pre-Trial Chamber, the evidence to be presented at the confirmation hearing by either party shall be included in a list to be ‘provided’ to the Chamber within the time-limit respectively provided for the Prosecutor and for the Defence.”24

b) Contextual Interpretation Reading Tarfusser’s statement, it is hard to say whether the judge conducts a literal or a contextual interpretation and it is probably more accurate Oxford Dictionary of English, 2nd ed (2003), p. 41. Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 9, italics added. 23 Hager, Rechtsmethoden (2009), 2nd Ch. mn. 64; see also the literaral interpretation in England, where the literal rule is supplemented by a systematic interpretation in a sense of the following rule: “The statute must be read as a whole.” (Ingman, The English Legal Process, 12th ed (2008), p. 180). 24 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 4. 21 22

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to say that he does both. In the same vein, the reaction of the Bemba PTC to the argument of Judge Steiner in the Lubanga PTC25 is a contextual one: “Furthermore, the Chamber notes that rule 121(2)(c) of the Rules is to be interpreted ‘in accordance with article 61 paragraph 3’ of the Statute referring also to information which the Chamber may order to be disclosed pursuant to the second sentence of article 61(3) of the Statute. This allows the Chamber to have access to evidence other than that on which the parties intend to rely at the confirmation hearing.”26

This said, contextual interpretation is conducted differently by the PTC in the Lubanga case: “According to its contextual interpretation, rule 121 (2) of the Rules must be interpreted in light of rule 122 (1) of the Rules, which also requires that the evidence on which the Defence intends to rely at the confirmation hearing be filed in the record of the case before the hearing commences.”27

The statement reflects a very strict contextual interpretation. Yet, just as it is not possible to conduct a literal interpretation without referring to the context, it not possible to conduct a contextual interpretation by disregarding all other classical methods of interpretation: contextual interpretation forms part of the textual, contextual and historical approaches to statutory construction in the sense that what was said and willed by lawmakers leads to the identification of the purpose of the law or provision.28 In that sense, after the Bemba PTC declined to adopt the Lubanga PTC’s approach by a literal interpretation, it continued: “The travaux préparatoires29 of that rule indicate that it was first placed in the section of disclosure as draft rule 5.12, preceding rules concerning both disclosure stricto sensu and inspection which have now become rules 76 to 79 of the Rules. However, delegations decided that draft rule 5.12 would be better placed in the rule concerning the confirmation hearing. Without any modification,30 that draft rule was then transferred and incorporated into the present rule 121 of the Rules. In the Chamber’s view, this is a further indication that the drafters intended rule 25 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 41: “According to its literal interpretation, rule 121 (2) of the Rules expressly refers to evidence under article 61 (3) of the Statute, which is the evidence on which the Prosecution intends to rely at the confirmation hearing.” 26 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 44. 27 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 42. 28 Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 242. 29 Document PCNICC/1999/L.3/Rev.l, Proceedings of the Preparatory Commission at its first session (16-26 February 1999), 2 March 1999, p. 15. 30 Brady, in: Lee, ed., International Criminal Court (2001), p. 403, 407, with fn. 15.

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121(2)(c) of the Rules to cover all elements of disclosure referred to in what are now rules 76 to 79 of the Rules.”31

This approach principally reflects a historical interpretation. However, it would only be half of the truth to ignore that this historical interpretation is also intertwined with a contextual interpretation. c) Teleological Interpretation In addition, a teleological interpretation was conducted by Judge Tarfusser in his dissenting opinion in the Abu Garda case. He instructed that “[t]he difference in wording witnesses to a difference in meaning and purpose.”32 Tarfusser recognises that the communication facilitates both the work of the parties and of the Pre-Trial Chamber.33 With regard to the former, “it facilitates the task to best prepare for the hearing and to be in a position to address the Pre-Trial Chamber on every single item contained in the list.”34 With regard to the latter, in Tarfusser’s view broad communication has a twofold purpose: first, “it substantiates the provision contained in the chapeau 61(7) of the Statute, which stipulates that the Chamber shall determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged ‘on the basis of the hearing’.”35 Second, it facilitates the disclosure process for – again – two reasons: first, “the prescribed ‘communication’ of all evidence disclosed between the parties appears critical for the Pre-Trial Chamber to be in a position to meaningful exercise its functions, starting from the function ‘to ensure that disclosure takes place under satisfactory conditions’ throughout its duration.”36 Second, “[p]ursuant to article 61(3), the Pre-Trial Chamber is entitled to issue orders regarding the disclosure of information for the purposes of the confirmation hearing. Rule 79 of the Rules, addressing disclosure by the defence, reiterates that the Chamber is entitled to order ‘disclosure of any other evidence’, despite the fact that the Defence is only obligated to notify the Prosecutor of its intent to 31 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 43, italics added in the last sentence. 32 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 5, italics added. 33 Ibid. (“On the one hand, the parties’ obligation to include all evidence to be presented at the confirmation hearing in a list to be ‘provided’ to both the other party and the Pre-Trial Chamber in advance of the hearing serves a twofold purpose.”) 34 Ibid. 35 Ibid. 36 Ibid., para. 6.

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raise either the existence of an alibi or a ground for excluding criminal responsibility.”37

However, compare this to the teleological interpretation by Judge Steiner in the Lubanga case: “[A]ccording to their teleological interpretation, rules 121 (2) and 122 (1) of the Rules serve several purposes. These include enabling the Pre-Trial Chamber to properly organise and conduct the confirmation hearing; ensuring that the parties will have access to the evidence to be presented at the confirmation hearing before it commences, regardless of problems arising during the disclosure process; and enabling the victims to properly exercise their procedural rights during that hearing. In the view of the single judge, these goals will be achieved if, following the literal and contextual interpretation of rules 121 (2) and 122 (1) of the Rules referred to above, only the evidence on which the parties intend to rely at the confirmation hearing is communicated to the Pre-Trial Chamber by filing it in the record of the case.”38

d) Contextual/Teleological Interpretation To return to the relationship between the methods of interpretation: a teleological interpretation cannot always be separated from a contextual interpretation. Observe, for instance, the question raised by the Lubanga PTC whether, in addition to the evidence on which the parties intend to rely, any other materials that the Prosecution must disclose to the Defence before the confirmation hearing must also be presented and therefore need to be previously filed on the record of the case.39 The Lubanga PTC answered this question in the negative40 with the following arguments: “Rule 79 of the Rules makes it clear that the Defence may raise any alibi or any other defence, under article 31 (1) of the Statute, either at the confirmation hearing or at the trial. Likewise, under article 61 (5) of the Statute and rule 121 (6) of the Rules, the Defence need not present any evidence at the confirmation hearing. Hence, while articles 67 (1) (b) and 67 (2) of the Statute and rule 77 of the Rules impose on the Prosecution the obligation to disclose to the Defence before the confirmation hearing those materials that are potentially exculpatory or are otherwise material for the Defence’s preparation for the confirmation hearing, the Defence need not rely on those materials at the confirmation hearing if it considers that this option will be advantageous to its success at trial.”41 37

Ibid., para. 7. Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 57. 39 Ibid., para. 50, continuing: “These would include e. g. potentially exculpatory materials (article 67 (2) of the Statute) or those otherwise material for the Defence’s preparation for the confirmation hearing (article 67 (1) (b) of the Statute and rule 77 of the Rules).” 40 Ibid., annex, para. 51. 38

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What Judge Steiner does is a synopsis of different procedural rules (contextual). However, what she also does is a search for the purpose of Art. 121(2) ICC-Statute, i. e. whether these provisions intend to require communication of all evidence or only the evidence the participants intend to rely on (teleological). Similar confusion regarding the methods of interpretation causes the “reply” to those arguments from Judge Tarfusser in his dissenting opinion in Abu Garda. Tarfusser starts by conducting a contextual interpretation, saying that “[a]part from the unambiguous wording of rule 121(2)(c), reasons for making the duty of communication vis-à-vis the Chamber fully independent from the purportedly incriminating as opposed to exculpatory nature of the disclosed evidence flow from other provisions of the Statute.”42 He then refers to Art. 67(2) ICC-Statute, which mandates the Prosecutor disclose to the defence, as soon as practicable, evidence in his or her possession or control “which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”. It also establishes that, in case of doubt, “the Court shall decide”. However, in addressing the issue of whether Art. 67(2) ICC-Statute is applicable to the Pre-Trial phase,43 Tarfusser crosses over into conducting a teleological interpretation: “For the Pre-Trial Chamber to be in a position to meaningfully exercise the task to decide in case of doubt as to the exculpatory or potentially exculpatory nature of a given piece of evidence, it seems crucial that the Pre-Trial Chamber be granted (by way of communication pursuant to rule 121(2) (c)) access to all of the material disclosed between the parties: not only may the exculpatory nature of a document be debatable on its face, but it may also only become apparent in light of other material equally disclosed among the parties.”44

2. Disclosure Inter Partes or Trough the Registry? Another problem, which highlights how differently the interpretation of the Rules and the Statute can be conducted, is the “question of whether the broader disclosure process should be inter partes or carried out via the Registry?”45 Although this question, raised by the Lubanga PTC, suggests great 41

Ibid., annex, para. 53. Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 10. 43 Ibid.: “The applicability of this provision to the pre-trial phase (and, accordingly, the need to replace the reference to the ‘accused’ with reference to the suspect) is beyond controversy. It anticipates conflicts of views between the parties as to the nature of a specific material and vests the Chamber with a decisive role, thus assuming that the exculpatory nature of a given material may be controversial.” 44 Ibid. 42

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differences between the Chambers, those differences are actually less relevant as it appears from the wording of the Lubanga PTC. As I will show, the question has to be rephrased as to “whether the broader disclosure process should be merely inter partes or also facilitated through the Registry?” Thus, the analysis of the methods of interpretation is far more interesting than the outcome of that interpretation. Again, of all Pre-Trial Chambers, PTC I (Judge Steiner) conducts the most explicit interpretation, since the Judge names her methods of interpretation, while other Pre-Trial Chambers conduct their interpretation more implicitly. In the Lubanga case, Judge Steiner conducts a literal, contextual and a teleological interpretation. According to a literal interpretation, Rule 121(2)(c) ICC-RPE refers to an inter partes exchange between the parties.46 The same result is reached by a contextual interpretation47 and a teleological interpretation.48 By contrast, the Bemba PTC differs with regard to the interpretation of Rule 121(2) ICC-RPE. It does not refer to the different language versions of the phrase “all evidence disclosed between the Prosecution and the person”, as the Lubanga PTC did, but to the word “facilitated”: “The Single Judge recalls that the Chamber decided that the disclo45 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 61. 46 Ibid., annex, para. 62: “From a literal perspective, the single judge agrees with the Prosecution and the Defence that the expression ‘all evidence disclosed between the Prosecution and the person’ (‘tous les moyens de preuve ayant fait l’objet d’u échange entre le Procureur et la personne concernée’ in the French version and ‘todas las pruebas que el Fiscal haya puesto en conocimiento del imputado’ in the Spanish version) in rule 121 (2) (c) of the Rules, which is the main provision on the communication of evidence to the Pre-Trial Chamber, refers to a previous inter partes exchange between the parties.” 47 Ibid.: “Moreover, the single judge observes that a number of provisions dealing with the Prosecution and Defence disclosure obligations, such as article 67 (2) and rules 76 to 79 of the Rules, refer to a direct exchange between the parties.” and para. 63: “In the view of the single judge, a contextual interpretation of the relevant provisions also leads to the conclusion that the disclosure process can only be inter partes and prior to any communication of evidence to the Pre-Trial Chamber through its filing in the record of the case.” 48 Ibid., annex, para. 66: “From a teleological perspective, the rules on disclosure seek to guarantee Thomas Lubanga Dyilo’s right to a fair trial by ensuring that the Defence can properly prepare for the confirmation hearing. (footnote omitted) The single judge concurs with both the Prosecution and the Defence that this overriding goal will be best achieved if the disclosure process takes place directly between the parties in order to ensure that it is expeditious and effective. Doing this will permit the Defence, as soon as possible before the confirmation hearing, to be in a position to decide on the scope of defence and to select the evidence on which it intends to rely at the hearing.”

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sure process between the parties shall be facilitated through the Registry [. . .].”49 It continues: “Further, it is recalled that the Chamber decided that the disclosure process between the parties be only facilitated through the Registry (emphasis added).50 Facilitating the disclosure process means to provide assistance and help forward51 and does not mean to ‘replace’ by, ‘substitute’ for or ‘delegate’ the duties and functions of the parties to another organ of the Court, as alleged or implied by the Prosecutor. Thus, the First Issue presented in this spirit by the Prosecutor appears to be based on a clear misrepresentation of the Chamber’s ruling and falls outside the scope of the Decision.”52

The same result is drawn from a teleological interpretation.53 3. Intermediate Conclusion Based on two procedural questions that were raised before the different Pre-Trial Chambers, I have demonstrated, what methods of interpretation those Chambers apply and how they conduct those methods of interpretation. I have chosen those two specific procedural questions for a practical reason: the methods of interpretation were either explicitly named or at least implicitly applied in an obvious way in respect of those questions, i. e. one could tell which method of interpretation the Chamber applied. However, as I have shown, the methods of interpretation have often been mixed and combined, especially historical, contextual and teleological methods of interpretation. This combination does not violate any rule nor can it be regarded as false or inappropriate. However, this combination may cause confusion and irritation to the extent that it is harder to say whether the interpretation is conducted properly. This impression is further intensified by the observation made in the following section.

49

Prosecutor v. Bemba, No. ICC-01/05-01/08-75, supra note 9, S. 79, para. 30. ICC-01/05-01/08-55, p. 22, letter (a) of the operative part of the Decision; see also para. 34–35, 52. 51 Brown (ed.), Shorter Oxford English Dictionary, vol. 1, 5th ed (2002) p. 911. 52 Prosecutor v. Bemba, No. ICC-01/05-01/08-75, supra note 9, S. 79, para. 32. 53 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 19: “The Chamber considers that it cannot fulfil this filtering function at the pre-trial stage without having access to the evidence exchanged between the Prosecutor and the defence, in particular to exculpatory evidence.” and para. 34: “Vis-à-vis the parties, the Chamber considers that the Registry first and foremost has the role of a simple carrier, a communication channel between them. The Chamber recalls that the Registry must under no circumstances be considered a third party with a role in the assessment of the evidence to be disclosed.” 50

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4. The Broad Contextual Interpretation Apart from the – technical and partly linguistic – arguments outlined above, the Chambers additionally advanced some arguments that go to the heart of the process before the ICC. Those arguments at first sight appear to be in the form of contextual interpretation, but could, however, also be historical or teleological. For instance, as an argument against the requirement that the participants communicate all evidence instead of only the evidence that the participants intend to rely on, the Lubanga PTC stated: “In the view of the single judge, if all materials disclosed by the Prosecution before the confirmation hearing, on which neither party intends to rely, were filed in the record of the case and presented thereat, the nature of the confirmation hearing would be significantly altered and the right of the Defence to decide whether to rely on such materials at the hearing would be infringed on.”54

What exactly does the Pre-Trial Chamber mean by the “nature of the confirmation hearing”? As we shall see, the answer to that question is not as straightforward as it might appear.55 Furthermore, the question of whether disclosure should take place merely inter partes or also through the Registry caused the Lubanga PTC to refer to the “Court’s unique criminal procedure”.56 We shall see below whether this procedure is indeed unique.57 Another issue of disagreement between the Pre-Trial Chambers is the role of the Pre-Trial Chamber. The majority in the Abu Garda case declined to recognise an obligation to communicate all evidence (in casu evidence the prosecution intends to rely plus exculpatory evidence) to the PreTrial Chamber and stated: “[T]he Chamber’s role is ‘limited to distinguish those cases that should go to trial from those that should not’.58 Accordingly, as stated in the Lubanga Case, it 54 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 54, italics added. The “nature of the confirmation hearing” was also referred to in para. 64. 55 See infra E. IV. 2. c) bb) (4); F. IV. 3. a). 56 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 65: “Consequently, in the view of the single judge, the consistency of the disclosure process and the need to safeguard the Court’s unique criminal procedure require that disclosure be carried out inter partes with regard to (i) the evidence that subsequently must be communicated to the Pre-Trial Chamber by filing it in the record of the case, that is the evidence on which the parties intend to rely at the confirmation hearing; and (ii) the other materials that the Prosecution must disclose to the Defence before the confirmation hearing but that neither party intends to present at that hearing.” 57 See infra E. IV. 3.

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would be contrary to the role of the Pre-Trial Chamber to have potentially exculpatory and other materials disclosed by the Prosecution before the hearing filed in the record of the case and presented at the confirmation hearing, if neither party intends to rely on those materials at the hearing.”59

Obviously, the role and function of the Pre-Trial Chamber is seen differently by the Bemba PTC, which favours broad communication obligations: “Creating and maintaining a record of the proceedings containing all evidence exchanged between the parties, the Registry will enable the Chamber to fulfil properly its function of preparing the trial, since the record of the proceedings created pursuant to rule 121(10) of the Rules is to be transmitted to the Trial Chamber pursuant to rule 131(2) of the Rules.”60

This leads us to the main argument advanced to reject or favour broad communication obligations, i. e. the question of whether the Pre-Trial Chamber is a finder of truth or not. For the Lubanga PTC, the Pre-Trial Chamber is clearly not a finder of truth. Instead, according to Art. 61(7) ICC-Statute it must merely determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.”61 Because of this role of the Pre-Trial Chamber, for the Lubanga PTC it follows “that it would be contrary to the role of the Pre-Trial Chamber to file in the record of the case and present at the confirmation hearing potentially exculpatory and other materials disclosed by the Prosecution before the hearing, if neither party intends to rely on those materials at that hearing.”62

58 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/0401/07-428-Corr, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, para. 6 (April 25, 2008); see also. Appeals Chamber Judgment ICC-01/04 01/07-475, para. 68. 59 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 10, with reference to Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 56, italics added. 60 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 25, italics added. 61 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 55, with reference to Shibahara, in: Otto Triffterer, ed., Commentary (1999), p. 771, 790 (see already supra note 2, S. 34). Confirmed by Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, para. 10, with reference to Prosecutor v. Katanga and Chui, No. ICC-01/04-01/07-428-Corr, supra note 58, S. 90, para. 6; see also Prosecutor v. Germain Katanga, No. ICC-01/04-01/07-475, Appeals Chamber Judgment, para. 68 (May 13, 2008). 62 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 55, italics and underlining added.

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Unsurprisingly, the Bemba PTC completely objects, stating: “The Chamber further emphasises that the search for truth is the principal goal of the Court as a whole.63 In contributing to this ultimate goal, the Pre-Trial Chamber, in particular, shall prevent cases which do not meet the threshold of article 61(7) of the Statute to proceed to the trial stage. In order to fulfil its duty, the Chamber considers it vital not only to conduct properly the confirmation hearing but to organise meaningfully the disclosure proceedings.”64

Thus, the Bemba PTC does not rely on the ordinary meaning of Art. 61(7) ICC-Statute, but on the search for truth as “the ultimate goal of any procedure before this Court.”65 This view was confirmed by Judge Tarfusser in his dissenting opinion in Abu Garda.66 5. Intermediate Conclusion What conclusions can we draw from the above discussion? In various decisions, three different Pre-Trial Chambers had to answer procedural questions regarding the disclosure and communication of evidence. The initial decisions were made by PTC I in the Lubanga case and PTC III in the Bemba case. The Chambers applied similar methods of interpretation, however, they differed heavily with respect to their conclusions: PTC I favoured a narrow disclosure regime and narrow communication obligations (Judge Tarfusser dissenting), while PTC III favoured a broad disclosure regime and broad communication obligations (as did Judge Tarfusser in his dissenting opinions), which was confirmed by PTC II. The different notions of disclosure and communication partly stem from different readings of specified disclosure- and communication-provisions, but mainly have their origin in the different Pre-Trial-concepts of the Chambers involved. Those differences are possible because the ICC-Statute contains many gaps and consciously leaves many issues open.67 Central to these different concepts are the role and function of the Pre-Trial Chamber, whose task is either to find the truth (PTC III) or merely to determine “whether there is sufficient evidence to establish substantial grounds to believe that the person com63 During discussions, delegations insisted on the need to “bear in mind the additional historical dimension and truth-finding mission of the Court”, Report of the Working Group on Procedural Matters, A/AC.249/1997/WG.4/CRP.ll/Add.2, 11 December 1997, p. 2. 64 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 11, italics added. 65 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 14. 66 Prosecutor v. Abu Garda, No. ICC-02/05-02/09-35, supra note 3, S. 35, Partly Dissenting Opinion of Tudge Cuno Tarfusser, para. 8. 67 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II., p. 73.

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mitted each of the crimes charged” (PTC I). Those key differences have two main consequences: first, they show that it would be insufficient and even Sisyphean to try to answer the disclosure and communication questions without answering the question of the trial concept first. Even if a person is able to systematise and disentangle the disclosure rules at the ICC, this person will eventually realise that the success of this endeavour stands and falls with the overriding concept of the trial before the ICC. Second, because the Chambers have different trial concepts, they are not able to conduct a proper, transparent and, to a certain extent, predictable interpretation of the Statute and the Rules. Instead, the interpretation of the Chambers is a result-driven one, and the method of interpretation, i. e. how the interpretation is conducted, varies from case to case. In my view, it is fair to say that there is no coherent approach to reaching a decision – some Chambers use their methods of interpretation to find a decision and some to justify a decision. This increases inconsistency and unpredictability, which itself increases costs and causes delays. It becomes noticeable that the different trial concepts blur clear contextual or teleological interpretations, because there is disagreement about the broader context of disclosure and communication rules and about their aim and purpose. Ultimately, this difference is due to different views regarding the entire trial concept. Thus what the Chambers need is a guideline of how to conduct a contextual interpretation. In the course of this study, I will develop such a guideline, calling it “new contextual interpretation”. This guideline will clarify the concept of the trial before the ICC. This clarified concept will supplement the Chambers with creating a concept that underlies the disclosure and communication provisions before the ICC. The concept will help answering the questions raised by the Chambers, for those questions will be asked in every trial.

III. A New Contextual Interpretation Even when a statutory rule is as well designed and well drafted as feasible, “this cannot prevent doubts and disputes from arising about the meaning of the statute in application to some particular circumstances.”68 For that purpose, the addressees of the statute need a methodology to interpret the statutes. Especially when this statute, as the ICC-Statute does, contains many gaps and leaves many issues consciously ambiguous,69 a well-designed interpretive methodology can often be highly useful: first and fore68

Summers, Form and Function in a Legal System (2006), p. 245. Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, pp. 73 f.; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 203. 69

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Figure 10: Interpretation of Rule 121(2)(c) According to the PTCs

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Figure 11: Evidence Registered in the Record of Proceedings According to the PTCs

most, it promotes consistency, efficiency and predictability.70 Second, it can resolve issues of vagueness and ambiguity.71 Evidently, different judges in different jurisdictions of the same system or even different judges in the same jurisdiction in a given system may not all follow the same methodology.72 This is especially the case at an international tribunal. However, an interpretive methodology only has those effects if all judges apply the same general methodology.73 Of course, it is not the purpose of this study to develop a general methodology for the interpretation of the sources at the 70 Summers, Form and Function in a Legal System (2006), p. 242, 245 (“[A]n approach in accord with a well designed interpretive methodology, not only can resolve interpretive issues, but can resolve them in a more objective, more reasoned, more faithful, more consistent, more predictable, more efficient, and more purposefulfilling fashion. When a genuine issue arises, appropriate interpretive arguments should be constructed, and the issue resolved in light of these. A well-designed interpretive methodology, purposively and systematically arranged, is needed to construct these arguments, to resolve any conflicts between them, and, ultimately, to facilitate the formulation of a reason for determinate action or decision under the statute that is faithful to its form and content.”) 71 Ibid., p. 248 (“. . . by reference to what would qualify as a clear standard case for application of the statute in light of its linguistic and factual context, in light of its immediate purposes, and in light of how far the case at hand is similar to (or different from) the features of what would be a clear standard case for application of the vague language”.) 72 Ibid., p. 253. 73 Ibid., p. 271 (“[A]n approach in accord with a duly-designed methodology prescribed for all judges would, if followed over time, yield far more objective, reasoned, faithful, consistent, predictable, efficient, and purpose-serving interpretations than would occur if an array of various judges were to take nonmethodological ‘approaches’ to interpretation.”)

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ICC. However, what this study does require is the identification of a contextual interpretation. 1. Goals and Extent Art. 31(3)(c) VCLT demands that in treaty interpretation “there shall be taken into account, together with the context: . . . any relevant rules of international law applicable in relations between the parties.”74 This rule expresses the principle of “systematic integration”, as the International Law Commission concluded in its 58th session: “Article 31(3)(c) VCLT and the ‘principle of systemic integration’ for which it gives expression summarize the results of the previous sections. They call upon a dispute-settlement body – or a lawyer seeking to find out ‘what the law is’ – to situate the rules that are being invoked by those concerned in the context of other rules and principles that might have bearing upon a case. In this process the more concrete or immediately available sources are read against each other and against the general law ‘in the background’. What such reading rules ‘against each other’ might mean cannot be stated in the abstract. But what the outcome of that specific reading is may, from the perspective of article 31(3)(c) in fact be less important than that whatever the outcome, its justification refers back to the wider legal environment, indeed the ‘system’ of international law as a whole.”75

But how would a systematic interpretation work in the practice of adjudication more precisely? On an international level, it is certainly not possible to create Ronald Dworkin’s superhuman Hercules who is able to find the one and only right answer in light of all legal practice of the system.76 As I have shown, different Chambers of the ICC come to different conclusions when conducting a contextual interpretation. However, does that mean that it is also not possible to seek that right answer on an international level?77 74 See generally McLachlan, 54 Int’l & Comp. L.Q. (2005), 279 ff.; French, 55 Int’l & Comp. L.Q. (2006), 281, 300 ff. 75 International Law Commission, 58th session, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, A/CN.4/L.682, 13 April 2006, para. 479. 76 Dworkin, Taking Rights Seriously, (1977, 8th impression 1996), p. 105 (“We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules.”); rejecting the “right answer” in international law von Bogdandy and Venzke, 12 German L.J. (2011), 1341, 1354. 77 See the said statement of the International Law Commission (supra E. III. 1. with fn. 75, S. 95), speaking of a lawyer “seeking to find out ‘what the law is’”, emphasis added.

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That it is practically impossible to find the right answer does not preclude the existence of a right answer as a theoretical basis.78 I am aware that a great amount of ink has been spilled over the question of whether there is one and only one right answer, i. e. an answer to a legal question that is not only correct but also definitive,79 or whether this right answer does not exist, i. e. there is only a correct answer (together with other correct answers). Transferred to our procedural questions raised by the ICC Pre-Trial Chambers, this either means that one of the two options – broad/narrow disclosure and communication obligations – is right (correct and definitive) and the other is wrong (incorrect and indefinitive) or it means that both options are correct because the definitive option does not exist. I will not contribute to this epic philosophical debate for three reasons: first, this would go beyond the scope of this study. Second, the prominence of the protagonists – amongst others Ronald Dworkin and Herbert L.A. Hart – would force me to confine myself to descriptive statements.80 Third – and most importantly – this question does not necessarily have to be decided. Presuming there is indeed a correct and definitive answer to either of the procedural questions raised at the beginning of this study, a judge would need proper interpretative methods (and especially a contextual method of interpretation) to find this correct and definitive answer. However, if there is not one right answer but several correct answers, the judge needs proper methods to justify why he or she chose one answer out of others. Interpretative methods to find the correct and definitive answer are aimed at structuring the way to find that answer and to make decision-making comprehensible and repeatable. Methods to justify a decision shall make the decision verifiable.81 This verification can reveal doubts the judge might have had and the reason why he ignored those doubts. Thus, applying a discursive process, the judge approaches the truth (and thus the right answer) to the greatest extent possible,82 even if the right answer is not possible to find. Therefore, conducting a contextual interpretation will help to verify the judges’ decision and to approach the correct and definitive answer as closely as it is possible. However, while this might be characterised as the goal of contextual interpretation, it is still unclear how to conduct such con78

Herbst, JZ 2012, 891, 891 with further references. I adopt the terminology of Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371, 373. 80 The approaches of Dworking and Hart nevertheless serve as important accompanies to this study. 81 Popper, Logik der Forschung, 11th ed (2005), p. 7 f. 82 See Habermas, Faktizität und Geltung, 5th ed (1997), p. 272 ff.; Larenz, Unentbehrlichkeit der Jurisprudenz als Wissenschaft (1966), p. 17. 79

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textual interpretation. For this purpose, Winfried Brugger identifies two kinds of contextual interpretation: a narrow type and a broad type. While the narrow type includes “the phrases, paragraphs and articles/sections surrounding the provision to be construed”, the broader type includes all legal provisions that are valid within the particular legal order and in some manner concern the problem to be solved or the term or concept used in the pertinent norm.83 Recall the contextual interpretation of the Lubanga and Bemba PTC: “The Chamber notes that rule 121(2)(c) of the Rules is to be interpreted ‘in accordance with article 61 paragraph 3’ of the Statute referring also to information which the Chamber may order to be disclosed pursuant to the second sentence of article 61(3) of the Statute. This allows the Chamber to have access to evidence other than that on which the parties intend to rely at the confirmation hearing.”84 “According to its contextual interpretation, rule 121 (2) of the Rules must be interpreted in light of rule 122 (1) of the Rules, which also requires that the evidence on which the Defence intends to rely at the confirmation hearing be filed in the record of the case before the hearing commences.”85

Obviously, both Chambers conducted a narrow contextual interpretation, merely focusing on the context of provisions that are closely related to the provision in question. On the contrary, recall the blending of contextual and teleological elements, culminating in the different interpretations of the confirmation hearing and the role and function of the Pre-Trial Chamber. Recall also the “Court’s unique criminal procedure” to which the Lubanga PTC referred.86 Those interpretative arguments I have previously described as “broad contextual interpretation” pre-empt the choice of type of contextual interpretation for this study: in order to be able to verify the decisions of the Chambers, a broad contextual interpretation has to be applied, not least because the Statute contains many gaps and consciously leaves many issues open.87 83

Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 238. Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 44. 85 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 42. 86 Ibid., annex, para. 65: “Consequently, in the view of the single judge, the consistency of the disclosure process and the need to safeguard the Court’s unique criminal procedure require that disclosure be carried out inter partes with regard to (i) the evidence that subsequently must be communicated to the Pre-Trial Chamber by filing it in the record of the case, that is the evidence on which the parties intend to rely at the confirmation hearing; and (ii) the other materials that the Prosecution must disclose to the Defence before the confirmation hearing but that neither party intends to present at that hearing.” (emphasis added). 87 Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, pp. 73 f. 84

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The decision to favour a broad contextual interpretation also means including comparative, institutional and sociological elements. In this regard, Brugger states: “[A] ‘comparative method’, although often cited as a method of interpretation in addition to the classical canon of statutory construction,88 constitutes a subcategory of contextual interpretation. [. . .] The context also includes the institutional and functional context – the sharing of powers in concretizing law, notably between the legislature and the judiciary, as provided by the legal system as a whole. [. . .] Finally, a third part of the context of the legal provision is its factual basis – the facts or the human action or the sphere of life regulated by the provision. For reasons of practicality, judges should start with accurate empirical data, and should consider the conditions and consequences of their decisions. Failure to heed these maxims will lead to impractical and perhaps illegitimate solutions.89 A judge should consider such real-life implications for the case to be decided, as well as the area of life involved and the legal system as a whole. For example, a beneficial resolution of a conflict in a specific case may do harm if applied to a broad range of cases. The legal ‘equipment’ for ‘seeing’ the real world appears mainly in the law of evidence and the rules of procedure.”90

In sum, a broad contextual interpretation is neither restricted to the legal terms of the particular context nor to the external position of a provision within the respective statute or code. Instead, a broad contextual interpretation involves the legal background, the base that is inherent in each and every provision and interrelates to the components of the entire system.91 In concrete terms, a contextual interpretation of the relevant disclosure and communication provisions involves examining the broader issues behind it, such as the nature of the confirmation hearing (which, in turn, depends on the nature of the entire process)92 and the role and function of the Pre-Trial Chamber (which, in turn, depends on the role and function of the Chambers in general).93 This broad contextual interpretation clearly contains a teleological element – every provision must, in the context of the entire system, fulfil a certain purpose.94 88

See, e. g., Wolff, Bachof and Stober, Verwaltungsrecht, 9th ed (1974), pp. 161–

62. 89

Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 224 ff., 239. Ibid., 238–239. 91 Cf. Engish, Einführung in das juristische Denken, 11th ed (2010), p. 141 (“[Der systematische Zusammenhang] betrifft vielmehr letztlich die Fülle des im einzelnen Rechtssatz geborgenen Rechtsgedankens in seiner mannigfaltigen Bezüglichkeit auf die anderen Bestandteile des gesamten Rechtssystems [. . .].”). 92 See infra E. IV. 3. 93 See infra E. IV. 1. a); E. IV. 3. 94 Cf. Engish, Einführung in das juristische Denken, 11th ed (2010), p. 141 (“Da diese Sinnbezüglichkeit jedes Rechtssatzes auf die Gesamtrechtsordnung zum guten Teil eine teleologische ist, indem ja die Rechtssätze größtenteils die Aufgaben ha90

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2. Disclosure Rules Transplants or Translation: The Approach of Máximo Langer As previously mentioned, through a contextual interpretation I will verify the position of the rule/article within the broader ICC scheme. To go one step further: via contextual interpretation I strive to provide the disclosure rules relevant for the disagreements between the Pre-Trial Chambers with a new identity: does the disclosure rule fit into the broader ICC scheme or not? a) The Approach An interesting approach to the issue of whether a certain rule fits into a broader scheme was elaborated by Máximo Langer.95 Langer goes into the matter of plea bargaining and an alleged “Americanisation” of certain criminal procedure systems through the introduction of plea bargaining mechanisms. He cautions against Americanisation through an examination of the introduction of American-style plea bargaining in four civil law countries – Germany, Italy, Argentina and France. By choosing plea bargaining, Langer deliberately selected a “legal idea” that was implanted in several legal systems – systems which, of course, did not previously have that idea. He criticises the labelling of that implantation as a “legal transplant” and suggests the term “legal translation”. Of course, it is hardly possible to condemn or approve legal translation without the analysis of the broader scheme, the procedural framework that surrounds the legal ideas (like plea bargaining). Thus, in sum, Langer favours the following approach: he asks the question “Are certain criminal procedure systems Americanised by plea bargaining introductions?” This is largely dependant upon the translation of plea bargaining into other procedural systems. The translation itself – in turn – is dependant on the form of the procedural system. (Langer criticises the adversarial-inquisitorial approach and introduces a “new theoretical framework”.) In other words, the Americanisation of procedural systems cannot be determined without taking a closer look into the “translation” of legal ideas into other procedural systems. The translation cannot be assessed without a categorisation of the procedural system. I would like to adapt this approach, only without the question of Americanisation. Applied to the disclosure questions previously asked, that approach means in particular: how was the disclosure regime translated into ben, im Zusammenhang mit anderen Normen bestimmte Zwecke zu erfüllen, diese andere Normen final zu ergänzen, lässt sich die systematische Auslegung von der teleologischen kaum trennen.”) 95 Langer, 45 Harv. Int’l L.J. (2004), 1.

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Figure 12: Langer’s Approach

the system of the ICC? Would it be sufficient to look at the procedural aspect of that system or is it necessary to analyse the criminal justice system of the ICC? In order to answer those questions, it is most important to categorise this procedural system and the criminal justice system of the ICC respectively. b) Transplants Before we continue with the approach I have just outlined, a word or two about the characteristics and dangers of procedural transplants is necessary. Legal transplants are nothing unusual and have always been a proper tool to change a legal process or to adapt a legal process to reality. For instance, early American Law adopted English practices and the civil codes of modern Civil Law systems resulted from a conscious adoption and adaptation of Roman Law.96 In fact, before the 19th century “absolute barriers between Continental law and the common law did not exist.”97 Generally speaking, 96

Cf. Feeley, in: id., ed., Comparing Legal Cultures (1997), p. 93, 94.

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legal transplants can contribute to a better functioning process, as long as they fit into the cultural and institutional framework of the procedural environment. However, once a procedural element is transplanted from one tradition into another, institutional and cultural resistance may prove too strong to achieve the impact intended.98 In fact, law is a form of a cultural expression and, accordingly, transplants from one culture to another should be undertaken with great care. French law – as one author points out – is as much a reflection of French culture as Russian law is a reflection of Russian culture.99 Several examples have proven this in the past, amongst others the attempt to transplant the English criminal jury on to the Continent after the French Revolution100 and – more recently – to attempt to change the Italian criminal procedure to an adversarial setting, ignoring a number of institutional obstacles.101 Thereby an astonishing contradiction becomes apparent: while the settings of the different criminal procedural concepts are merging, cultural, economic and political differences become apparent when Civil Law and Common Law traditions are contrasted.102 As Damaška puts it: “If imported rules are combined with native ones in disregard of this context, unintended consequences are likely to follow in living law. And while some of these consequences can turn out to be a pleasant surprise, others can be very disappointing.”103 Indeed, some authors have detected a slow, gradual convergence especially in the evidentiary processes of Common Law and Civil Law systems,104 caused by the “imperatives of globalisation and the gradual dilution of national boundaries.”105 Civil Law 97

Helmholz, 6 Duke L.J. (1990), 1207, 1208. Cf. Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 223. 99 Glendon, Garozza and Picker, Comparative Legal Traditions in a Nutshell, 3rd ed (2008), pp. 1, 10; in more detail see Glendon, Gordon and Osakwe, Comparative Legal Traditions (1985), pp. 40 ff., 672 ff. 100 See Damaška, 45 Am. J. Comp. L. (1997), 839. 101 See infra E. III. 4. a) bb); F. II. 2.; G. III. 2. c) ee) (2) (c); G. IV. Generally Pizzi and Montagna, 25 Mich J. Int’l L. (2004), 429; Grande has concluded that the failure to import into the Italian system a bifurcated mode of adjudication combining judges and juries meant that the new “adversarial” elements produced effects diametrically opposed to those expected, with the defendant less protected than before, see Grande, 48 Am. J. Comp. L. (2000), 227, 232. 102 Cf. Christensen, 6 UCLA J. Int’l L. & Foreign Aff. (2001–2002) 391, 394. 103 Damaška, 45 Am. J. Comp. L. (1997), 839. 104 Jackson and Summers, Internationalisation of Criminal Evidence (2012), p. 6 with reference to Markesinis, Gradual Convergence (1994), p. 30. See, e. g. Bradley, Criminal Procedure (1998) p. xxi; and Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), pp. 225 ff. 105 Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 248. 98

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countries strengthened the position of the defendant and his or her lawyer on the right to confrontation, and codified the possibility of plea bargaining.106 Common Law countries, on the other hand, promoted a stronger managerial attitude of judges over the criminal process,107 broader disclosure and greater reliance on pre-trial evidence for vulnerable witnesses.108 However, and this could be seen as the other side of the coin, procedural elements cannot simply be transplanted into a different procedural tradition. As I will show, different procedural traditions create diverse attitudes and very distinct points of view about legal norms.109 Evidentiary rules are so rooted in their historical and cultural context that they cannot be transplanted in a piecemeal fashion from Common Law to Civil Law jurisdictions,110 because different legal traditions and cultures foster different responsibilities within a system.111 As appealing as legal transplants may be, to adopt a procedural element from a foreign legal tradition regardless of whether this element fits into its new environment can well be described as “cherry-picking”.112 Or, to use another metaphor: “The music of the law changes, so to speak, when the musical instruments and the players are no longer the same.”113

106

Jackson and Summers, Internationalisation of Criminal Evidence (2012), p. 7 with reference to Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 227. These trends are by no means self-evident in the practices of all civil law countries. A counter-tendency to the shift from pre-trial to trial phases of adjudication, for example, is that the police have been gaining additional powers in certain jurisdictions at the expense of judicial authorities. See Mathias, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 459, 481. 107 See infra E. IV. 2. c) bb) (5). 108 Jackson and Summers, The Internationalisation of Criminal Evidence (2012), pp. 7–8 with reference to Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 227; McEwan, in: Doran and Jackson, eds., Judicial Role (2000), pp. 171; Jackson, in: McConville and Wilson, eds., Handbook of the Criminal Justice Process (2002) pp. 335 ff. 109 Creta, 20 Hous. J. Int’l L. (1997–1998), 381, 415 with fn. 233, citing Orrantia, 19 Sw. U. L. Rev. (1990), 1161, 1161–1162. Or as Jackson and Summers put it: “But it is not merely the institutional context in which a transplant is introduced that determines its success: it is also the willingness with which the actors involved are prepared to embrace it.”, see Jackson and Summers, The Internationalisation of Criminal Evidence (2012), p. 8. 110 Edwards, 45 Am. J. Comp. L. (1997), 853, 853. 111 Marafioti, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 81, 94. 112 Findlay, 50 Int’l & Comp. L.Q. (2001), 26, 31. 113 Damaška, 45 Am. J. Comp. L. (1997), 839, 851.

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c) “Translations” Instead of “Transplants” As Máximo Langer points out, the metaphor of “transplants” used to analyse the “circulation of legal institutions among legal systems”114 has several shortcomings: it disregards “conceptual levels”115 and specifics of the “receiving legal system”,116 it “may produce a deep transformation not only in the transferred practice itself but also in the receiving legal system as a whole”,117 and is not very flexible.118 By contrast, the term “translations” separates the “source language or legal system” from the targeted legal system, i. e. the system into which the legal idea or institution is translated into.119 Furthermore, it distinguishes “the transformations the legal idea may undergo when initially transferred from the source to the target legal system.”120 The term “translation” has the advantage that it uses the underlying approaches of translation, namely: “(1) strict literalism, a ‘wordby-word matching’ between the original and the translated texts; (2) ‘faithful but autonomous restatement,’ where the translator still tries to be faithful to the original but composes, at the same time, a text that is equally powerful in the target language; and (3) substantial recreation, variations, etc., where the idea of fidelity to the original is weakened or directly disappears, and the focus is to create a text that is powerful or appealing in the target language.”121 Finally, the metaphor of translation is also apt for describing the transformation that the receiving linguistic and social practices may undergo under the influence of the translated text.122 Considering the shortcomings of the term “transplants”, the metaphor “translations” may not only be preferred for its advantages with regard to the translation from one legal system into another but also for its advantages with respect to the procedural system of the ICC, where several traditions and approaches are blended together. In other words: the ICC did not create its procedural system by transplanting procedural elements into its See, e. g., Watson, Evolution of Law (1985); Watson, Legal Transplants, 2nd ed (1993); id., Society and Legal Change (1977); id., 44 Am. J. Comp. L. (1995), 335, 335. 115 Langer refers to the example of constitutional review that was “transplanted” from the USA in contoninental Europe, see Langer, 45 Harv. Int’l L.J. (2004) 1, 30. 116 Specifics are the structure(s) of meaning, individual dispositions, institutional and power arrangements, systems of incentives, see ibid., 31 with further references. 117 Ibid., 32. 118 Ibid., 30. 119 Ibid., 33. 120 Ibid., 33. 121 Ibid., 33. 122 Ibid., 34. 114

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own existing procedural tradition but by blending several traditions and approaches together. Furthermore – and importantly – the ICC deliberately blended several traditions and approaches. The term “legal transplant” does not distinguish between a voluntary “borrowing” and a forced transplant. The procedural systems of many countries were created by occupying powers or at least influenced by them. In Malcolm M. Feeley’s contribution to David Nelken’s “Comparing Legal Cultures” he cited Professor Yoram Shachar with a statement that describes this fact better than I ever could: “If you want to understand why a country has a particular legal system, look at the nationality of the last foreign soldier who departed its shores.”123 3. Categorisation of the Procedural System/ Criminal Justice System of the ICC Following Máximo Langer’s approach, I will assess how the disclosure regime was “translated” into the system of the ICC. The first question is: what procedural system do we find before the ICC? Admittedly, this question is rather vague. I intentionally did not define the word “system” because while categorising the “system”, I will try to find an answer to the question of whether a categorisation of the procedural system is sufficient or whether I have to take a broader view, i. e. by analysing the criminal justice system or even the legal system or legal tradition of the ICC. Methodologically, the latter question should be elaborated before choosing a categorisation. However, two obstacles stand in the way of such an approach: first – as previously mentioned – many scholars do not distinguish between criminal procedure and criminal justice.124 Second, whether to choose a model of criminal procedure or a model of criminal justice in order to categorise the ICC system very much depends on the quality and persuasiveness of the model itself. In other words, it is the purpose of this work, namely a contextual approach to pre-trial disclosure before the ICC, which decides which model is best. Whether this is a model of criminal justice or of criminal procedure is a secondary concern. a) Families of Legal Systems/Legal Tradition Before I describe the existing models of criminal procedure, I would like to clarify the meaning of a legal tradition. At first sight, this might be confusing since I have been constantly emphasising that the purpose of this 123 124

Feeley, in: Nelken, ed., Comparing Legal Cultures (1997), p. 93, 94. Supra E. III. 3. b).

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study is to analyse how the disclosure rules are translated into the procedural system of the ICC. However, a description of the different legal traditions has three advantages for a contextual interpretation of Rules and Articles of the Statute: first, it serves as an important distinction from the models of criminal procedure. As I am going to show, the two categories (models of criminal procedure/legal traditions) are constantly confused without explanation.125 Second, in the course of the study I will show that the different legal traditions and their inherent differences in legal thought126 will play a crucial role in determining how certain procedural rules should be interpreted.127 Especially activities of the UN have uncovered different approaches to legal principles and terms.128 Third, when procedural systems are described, the most common categorisation used is the difference between Common Law and Civil Law.129 Typically, the three international judicial bodies are analysed and compared to the legal systems, for instance, of the U.S.A. and England on the one hand and of the European Continent on the other hand.130 aa) Terminology A legal system can be defined as “an operating set of legal institutions, procedures and rules.”131 Each country has its own legal system or can even possess more than one legal system. The U.S.A., for instance, has one federal and fifty state legal systems. Furthermore, domestic legal practice – especially with regard to criminal law – is heavily influenced by socio-cultural conditions and legal traditions.132 A legal tradition can be defined as “a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.”133 125

See infra E. III. 4. a) aa). McGonigle Leyh, Procedural Justice? (2011),

p. 67. 126 About the definition of “thought” in more detail see Fikentscher, Modes of Thought, 2nd ed (2004), pp. 7 ff. 127 In the same vein Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 420; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 162. 128 Fikentscher, Modes of Thought, 2nd ed (2004), p. 10. 129 Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 81. 130 Swart, 6 JICJ (2008), 87, 88. 131 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 1; McGonigle Leyh, Procedural Justice? (2011), p. 65. 132 Schuon, International Criminal Procedure (2010), p. 7; Heldrich, 34 RabelsZ (1970), 427, 431, 441, 442 with further references; about the sociological element in more detail, see infra E. III. 4. c) cc).

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For comparative purposes, legal systems are usually grouped into legal traditions or legal families.134 Those groupings are generally based on a jurisdiction’s history, characteristics, institutions, use of legal sources and, importantly, a jurisdiction’s ideology.135 Legal families are, for example, the Common Law, Civil Law or Islamic Law.136 Unfortunately, most comparative studies still focus almost exclusively on Common Law and Civil Law. The reason is obvious: at present, 33.8% of the world’s jurisdictions, encompassing 55.6% of the world’s population, are based on the Civil Law model, or Civil Law systems mixed with others (e. g. indigenous or religious legal ideologies). The Common Law model, along with systems compounded with it, include 28.24% of the jurisdictions, and 14.68% of the world’s population. Thus, Civil- and Common Law-based legal cultures cover over 70% of the world’s population in over 62% of the jurisdictions.137 Fortunately, recent years have shown that more and more authors dedicate themselves to a broader study and include other legal traditions such as Islamist and Socialist Law.138 However, despite this very pleasant development, I will remain in line with most comparativists and will restrict my study of legal traditions to Common Law and Civil Law. The reason is – apart from various other reasons139 – rather simple: anything else would go beyond the purpose of this study since international criminal procedure has always been analysed as the product of blending the Common Law and Civil Law tradition.140 An important last point has to be made: the following description of Civil Law and Common Law is a reproduction of how those legal traditions are generally characterised. The reader will soon realise that this description focuses on many possible elements, including institutional and procedural elements. In the course of this study it will become apparent that those characteristics have to be distinguished. I would contradict myself by pretending that the following description is the only way to describe Civil Law and Common Law traditions. Nevertheless, at this point this general characterisation must suffice, since elements of both 133 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 2; McGonigle Leyh, Procedural Justice? (2011), p. 65. 134 Vogler, Criminal Justice (2005), p. 3. 135 Heikkilä, International Criminal Tribunals (2004), p. 43. 136 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 1. 137 , last visited 19 September 2013. 138 See Schuon, International Criminal Procedure (2010), p. 11 with further references. 139 See infra E. IV. 2. c) bb). 140 Tochilovsky, 6 Eur. J. Crime Crim. L. & Crim. Just. (1998), 55 ff.; Findlay, 50 Int’l & Comp. L.Q. (2001), 26 ff.; Meron, 2 JICJ (2004), 521–525; Mundis, 14 LJIL (2001), 367 ff.; Keen, 17 LJIL (2004), 767–814; Schuon, International Criminal Procedure (2010), p. 11.

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Common Law and Civil Law will be dealt with within the description of other models of criminal procedure and eventually within the guideline I am going to suggest for conducting a contextual interpretation. bb) Civil Law Civil Law, derived from the Latin words “ius civile”141 and also referred to as Romano-Germanic law or European Continental law, is the oldest, influential and predominant legal tradition in the world.142 Some even say that the Civil Law traditions have most widely influenced international law, international organisations, and indeed, the Common Law system in which “[t]he ghost [Roman law] walks and sometimes talks.”143 The term “civil law” should not be confused with private law.144 “Civil Law” as a legal tradition originates in English-speaking countries where it is used to refer collectively to all non-English legal traditions so as to make comparisons easier with the English Common Law. Generally, the Civil Law tradition is described to have three main features that are common in many legal systems of the Civil Law tradition: (1) the search for truth; (2) through the application of legal principles; and (3) the adoption of a largely inquisitorial approach in proceedings.145 In procedural terms, the legal systems of a Civil Law tradition favour a “one case approach”,146 where only one case is prepared by a state official who carries out the major part of the investigations.147 This state official may be an investigating magistrate like the juge d’instruction or a state prosecutor (as in Germany).148 Civil Law jurisdictions generally conceive the prosecutor not as a party to the proceedings, but rather as another public official who investigates the truth.149 This is why the prosecutor, like the 141

Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 420. Merryman and Pérez-Perdomo, The Civil Law Tradition, 3rd ed (2007), pp. 1–2, noting that Civil Law dates back to 450 B.C., which is the date most often quoted for the publication of the XII Tables in Rome; Merryman and Clark, Comparative Law (1978), p. 4. 143 Barth, 23 Buff. L. Rev. (1974), 681, 690. 144 However, as an example for a confusion of Civil Law and private law see infra E. III. 4. a) aa). 145 McGonigle Leyh, Procedural Justice? (2011), p. 70; regarding the determination of truth being the goal of criminal procedure in France see Rassat, Traité de procedure pénale (2001), p. 297. 146 Schuon, International Criminal Procedure (2010), p. 4; see also Ambos, 3 CLR (2003), 1, 4. 147 Langer, 53 Am. J. Comp. L. (2005), 835, 839. 148 For procedural discretion see ibid., 842. 142

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judge, has a duty to gather both incriminating and exculpatory evidence.150 At trial, the judge conducts the proceedings.151 As a rather active umpire, he or she decides on the submission of evidence and questions the witnesses, and over the defendant’s guilt or innocence. In the Civil Law tradition, the judge is under a legal duty to establish the true facts of a case and to submit the appropriate evidence accordingly.152 In Civil Law systems, victims – although not a party of the proceedings – fit much more easily within the trial than in Common Law. Many Civil Law jurisdictions accept the victim as a participant who also has something at stake in the case and is not impartial, but who, like the defendant, can have a voice and procedural rights within criminal proceedings.153 Last but not least, John Merryman further qualifies that in the civil system written constitutions, specific statutes or decrees, criminal, civil, and commercial codes, as well as international treaties, generally constitute the exclusive source of law.154 This concept of a code is – above all – an ideological one,155 because legal systems of the Common Law tradition have codified law, too. In this regard, Merryman points out: “One often hears it said, sometimes by people who should know better, that civil law systems are codified statutory systems, whereas the common law is uncodified and is based in large part on judicial decisions. [. . .] If, however, one thinks of codification not as form but as the expression of an ideology, and if one tries to understand that ideology and why it achieves expression in code form, then one can see how it makes sense to talk about codes in comparative law.”156

The code in the Civil Law tradition is therefore “not a list of special rules for particular situations; it is, rather, a body of general principles carefully arranged and closely integrated.”157 Historically, the goal of the code See, e. g., Weigend, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), pp. 1232, 1233–1234. 150 Ibid., 1234. 151 Langer, 53 Am. J. Comp. L. (2005), 835, 840. 152 Schuon, International Criminal Procedure (2010), p. 4. 153 On the role of the victim as a civil actor in the criminal procedure of France and Italy, respectively, see for example, Rassat, Traité de procedure pénale (2001), pp. 247–293; Lozzi, Lezioni de procedura penale, 4th ed (2001), pp. 114–119. 154 Merryman and Pérez-Perdomo, The Civil Law Tradition, 3rd ed (2007), pp. 2– 3; see also Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 424: “Generally, in civil law jurisdictions the main source or basis of the law is legislation, and large areas are codified in a systematic manner. These codes constitute a very distinctive feature of a Romanist legal system, or the so-called civil law.” 155 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 24. 156 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), pp. 27–28. 157 Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 424. 149

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was to constrain judicial abuses.158 Moreover, those codes “are premised on the belief that life is not full of random events, but rather that there is order.”159 Thus, for the Civil Law, law is a subject of scientific study and formulation.160 Civil Law traditions approximate the formally rational ideal, a legal system where the generality of legal rules is high and where the legal rules are highly differentiated from other social norms.161 With regard to Germany, for instance, this means that German Law is based on a more or less strict application of logic.162 In the words of Michael Bohlander, to German lawyers “judicial practice should, in principle, follow abstract reasoning rather than adhere to a casuistic approach that favours justice in the individual case over systemic coherence to the major and overarching legal principles across the board.”163 Furthermore, Civil Law promotes sophisticated methods of interpretation,164 since the overarching goal of this legal 158

Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 25. Vranken, Fundamentals of European Civil Law (1997), p. 35. 160 Lawson, A Common Lawyer Looks at the Civil Law (1953), p. 76. 161 Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, 2nd ed., (2000), p. 1544, 1546; see also Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 424: “A code achieves the highest level of generalization based upon a scientific structure of classification. A code purports to be comprehensive and to encompass the entire subject matter, not in the details but in the principles, and to provide answers for questions which may arise.” 162 Bohlander, 24 LJIL (2011), 393, 402. On the contrary, the so-called “Free Law Movement” in Germany of 1899 to 1912 criticised this approach. The movement was a reaction to the codification of the Civil Law Code (Bürgerliches Gesetzbuch [BGB]) in Germany and identified a so-called “gap problem”, asking: When positive law is unclear or does not appear to address a question presented by a case, where can the judge go for guidance? (see Herget and Wallace, 73 Va. L. Rev. (1987), 399, 403). The codification of the BGB “resulted in a relatively standardized and authoritative approach to the gap problem.” (ibid.) This was attacked by representatives of the Free Law Movement such as Eugen Ehrlich, who instead pleaded for a method of “free decision” (see Ehrlich, Freie Rechtsfindung (1987), p. 1: “Die uns heute so geläufige Forderung, dass jede richterliche Entscheidung eines Rechtsstreites aus feststehenden Grundsätzen des geltenden Rechts abgeleitet sei, dürfte doch nur den Völkern, die das römische Recht rezipiert haben, eigentümlich sein. [. . .]” He advanced: “[E]s wird als Aufgabe des Richters nur betrachtet, eine billige, den Umständen des einzelnen Falles angepasste Entscheidung zu treffen.”). Ehrlich also proposed that legal science “turn its attention away from conceptual gymnastics and toward the study of the operation of law within its full social setting.” (see id., pp. 33 ff.; see also Herget and Wallace, 73 Va. L. Rev. (1987), 399, 412). Thus, in general and slighty simplified, in the eyes of the Free Law Movement, law was not to be understood as a system of rules, but only as the body of judicial decisions (Grechenig and Gelter, 31 Hastings Int’l & Comp. L. Rev. (2008), 295, 314). 163 Bohlander, 24 LJIL (2011), 393, 402 (fn. omitted). 164 See supra D. II. 1. a); see also Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 31. 159

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tradition is legal certainty.165 Of course legal certainty is an objective in all legal systems. However, in the civil law tradition “it has come to be a kind of supreme value, an unquestioned dogma, a fundamental goal.”166 Legal certainty, in turn, is guaranteed “by the use of clear concepts”, i. e. common definitions and classifications.167 Another cornerstone of legal thought in Civil Law is predictability: Civil Law decisions are expected to “anticipate the future itself outside the context of individual controversy.”168 cc) Common Law Common Law is also referred to as “Anglo-American” law. This might be misleading because it suggests that English Law and American Law are rather similar. It also ignores the fact that the U.S.A. has many legal systems, and it keeps one in the dark about the relationship of English Law to Scottish or (Northern) Irish Law. However, this ambiguity might only exist with regard to legal systems and their (unintentional) equation by using the word “Anglo-American”. If one is talking about legal traditions in the way previously mentioned, the term “Anglo-American” can be used. The overriding objective of the Common Law tradition is not the search for truth but the basic concept of a competition between the parties, in which the stronger – and therefore arguably true – version of the case will prevail.169 A Common Law criminal trial is a party-driven process; i. e. the matter of what evidence to submit, and in which order, is mainly left to the parties.170 The legal systems of a Common Law tradition prefer a “two cases approach”, i. e. the parties prepare two cases during the pre-trial stage and present their respective cases one after the other at trial.171 The discovery of the true events in a trial in Common Law is not of the same rank than in Civil Law jurisdictions. American lawyers in particular are trained to believe that their primary responsibility is not to uncover the truth and produce the right legal disposition but to get the best possible result for their clients.172 The Common Law developed out of a system that favours a 165 Vranken, Fundamentals of European Civil Law (1997), p. 37, stating: “For the drafters of the French Code civil a direct relationship existed between their desire for legal certainty and the need to produce a comprehensive text.” 166 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 48. 167 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 33. 168 Ibid., 36. 169 McGonigle Leyh, Procedural Justice? (2011), p. 70; Schuon, International Criminal Procedure (2010), p. 4. 170 Schuon, ibid., p. 3. 171 Ibid. 172 Kagan, Adversarial Legalism (2003), p. 244.

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strong centralised government and exhibits a fairly impartial court system, where the judge is a passive umpire whose task is to ensure that the parties abide by the procedural rules.173 At the end of a trial with complex rules of evidence, the jury decides the question of the defendant’s guilt. I intentionally did not put both facts – the jury as fact-finder and complex evidence rules – in connection as many authors do, arguing that complex evidence rules exist to protect the lay jury from typically unreliable evidence, which the jury may otherwise readily assess incorrectly, because it lacks any professional training in evidence evaluation – which might lead to an incorrect verdict.174 This connection has been disputed.175 Despite the existence of codes and statutes in Common Law, the chief source of law in Common Law legal systems are the Court’s decisions,176 which are “both the source and the proof of the law, pronounced in connection with actual cases”.177 Although the role of legislature became more important over the years, the English Lord Goff points out: “It is only in the past 150 years or so, and especially since the Second World War, that the legislature has become increasingly active; but the nature of modern legislation is such that, to a surprising degree, the fabric of legal principles has remained untouched, with the result that its gradual development in the courts has continued unabated.”178

Consequently, statutes are “usually not formulated in terms of general principles but consist rather of particular rules intended to control certain fact situations specified with considerable detail”,179 which involves the danger of over-criminalisation.180 173 See “Democracy? Freedom? Justice? Law? What’s all this?”, The Economist, 23rd Dec. 1999, available at , last visited 20 September 2013. 174 Schuon, International Criminal Procedure (2010), p. 4. 175 See, e. g., Damaška, Evidence Law Adrift (1997), pp. 27–37. 176 Zander, in: Eser and Rabenstein, ed., Neighbours in Law (2001), pp. 9, 32. 43 177 Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 425. 178 Goff, 2 Denning L.J. (1987), 79, 80. 179 Dainow, 15 Am. J. Comp. L. (1966–1967), 419, 425. 180 See Brown, 49 Am. Crim. L. Rev. (2012), 73, 78–79 with further references: “Observers on both sides of the Atlantic overwhelmingly take the view that AngloAmerican codes over-criminalize, meaning that statutes label conduct as criminal that should not be so labeled because the conduct is not sufficiently harmful and wrongful, and committing it does not manifest culpability.” See also Swoboda, Verfahrens- und Beweisstrategien (2013), p. 218: “Zuletzt sei noch auf den Teufelskreis der Expansion des materiellen und prozessualen Strafrechts hingewiesen, der die Entwicklung des US-amerikanischen Strafrechts prägt. Dieser Teufelskreis nimmt seinen Anfang in der beständigen Ausweitung der materiell-rechtlichen Strafgrundlagen durch den Gesetzgeber. Den Expansionstendenzen des materiellen Rechts versuchen die Gerichte mit immer weiteren Verfeinerung des Verfahrens- und Beweis-

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Instead of believing in rather definitive answers, combined with the application of logical reasoning (as the Civil Law does), the Common Law does not insist upon the right answer at all times but only a reasonable or acceptable approach to a problem, that is, an approach that accepts that “there are many reasonable answers to any problem.”181 Thus, in a Common Law tradition, decisions are reached through confrontation and reasoned debate,182 i. e. by assessing “the force of arguments” for all sides.183 This is the reason why Max Weber denied the Common Law the rationality of finding184 a legal decision, and stated that the English finding of justice cannot be qualified as “applying the law”, as the Civil Law does via logic.185 An important feature of Common Law is a strong mistrust of government.186 As Bradley puts it: “We [Americans] are not comfortable, especially in the United States, where distrust of government is mother’s milk, with a system in which government officials determine guilt with little input from the defendant’s advocate, and none from ordinary citizens on a jury.”187 Thus, in the U.S.A. for instance, both the federal and the state constitutions subject governmental power to crosscutting institutional checks and judicially enforceable individual rights.188 With regard to the important issue of legal certainty, Merryman points out three major differences to Civil Law, that deserve attention in its entire wording: “First, certainty is usually discussed in more functional terms and is not elevated to the level of dogma. It is recognized that people should, to the extent possible, know the nature of their rights and obligations and be able to plan their actions with some confidence about the legal consequences; but it is also widely recognized that there are limits on the extent to which certainty is possible. Second, certainty is achieved in the common law by giving the force of law to judicial decisions something theoretically forbidden in civil law. The accumulation of jurechts zu begegnen, woraufhin der Gesetzgeber die ihm strafprozessual gesetzten Grenzen abermals mit neuen, noch expansiver ausgeformten Strafvorschriften zu unterlaufen versucht.” 181 Fletcher, 46 Am. J. Comp. L. (1998), 683, 699; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 80; about the right answer/correct answer debate see supra D. III.; E. III. 1. and infra E. III. 4. c) dd) (3); G. IV. 182 Peters, 97 Colum. L. Rev. (1997), 312, 358–359 (footnotes omitted). 183 Wolfe and Proszek, 33 Tulsa L.J. (1997), 293, 305. 184 About the difference between finding and justifying a decision see supra D. III. 185 Weber, Wirtschaft und Gesellschaft, 5th ed (1985), p. 510. See also Petersen, Max Webers Rechtssoziologie (2008), p. 54. 186 Taslitz, 94 Geo. L.J. (2005–2006), 1589, 1595; Foote, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 29, 37. 187 Bradley, 7 CLF (1996), 471, 472. 188 Kagan, Adversarial Legalism (2003), p. 15.

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dicial decisions in the course of time in a jurisdiction provides a variety of concrete, detailed examples of legal rules in operation. These, together with the statements of the rules themselves are likely to provide more certainty about the law than are bare legislative statements of the rules. Thus, the desire for certainty is an argument in favor of stare decisis in the common law tradition, whereas it is an argument against stare decisis in the civil law tradition. Finally, in the common law world (particularly in the United States) it is more generally recognized that certainty is only one of a number of legal values, which sometimes conflict with each other. Certainty frequently implies rigidity; law that is certain may be difficult to mold in response to changed circumstances or to bend to the requirements of a particular case. In the common law, certainty and flexibility are seen as competing values, each tending to limit the other.”189

b) Models of Criminal Procedure/Criminal Justice After I have described the general characteristics of the Civil Law and Common Law traditions, I would like to take a closer look at the existing models of criminal procedure and criminal justice respectively. There are various studies that describe and analyse the procedure before the ICC. Apart from the fact that I cannot refer to all of them, not all of them are in fact useful for the purpose of this study (which is not intended to give any indication of the quality of those models – in fact, excellent research has been conducted to develop new procedural models that are simply not useful for this study). The purpose of this study is to characterise the ICC procedural regime in order to be able to assess whether the interpretation of certain disclosure and communication rules by the Pre-Trial Chambers contradicts or complies with that procedural regime. To be able to do that, it is necessary to draw a bigger picture of the process before the ICC, instead of outlining the crucial provisions of the Statute and the Rules or going through those documents Rule by Rule and Article by Article. In other words, what we need is a systematisation or a modelling of the ICC process. For more than forty years, legal scholars have relied on models to simplify and explain the actual functional operations and values of the criminal justice system.190 When comparing procedural systems, the terms “model”, “type”, “style” or “system” are used in a variety of senses191 and Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 49. Stickels, 2 J. Crim. & Crim. Just. Res. & Ed. (2008), 1. 191 Damaška, 51 Zbornik PFZ (2001), 477; As to the difference between a model and a system, Nijboer states: “The main associative difference between model and system is probably the difference in contexts in which they are used. Model is more easily used as an example, and ideal or a prototype. The concept ‘model’ is also associated with something ‘whole’, it is rather holistic, it suggests a ‘something’.”, see Nijboer, Beweisprobleme (1997), p. 173. 189 190

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serve multiple purposes.192 In general terms, models supplement comparative analyses to a great extent. They are “attempts to escape from the tyranny of unmanageably numerous details”193 or, as Damaška puts it: “[W]ithout a suitable typology, comparative studies of procedural form cannot even begin . . . [E]xplorations of individuality become possible only after one has first obtained conceptual instruments with which to see and discuss individuality in terms of generic notions.”194 More concretely, Richard S. Frase has summarised the advantages of modelling criminal procedure: “[M]odels can usefully serve one or more of the following purposes: (i) shorthand descriptions of systems – even though models are only ideal types, some systems are close enough to the ideal form that describing them this way conveys useful information about the system’s general nature and features; (ii) explanation, showing why certain systems tend to have certain features – this may help those working in or studying a system to better understand it; (iii) prediction, helping policy makers and practitioners foresee how a given system will react to external and internal pressures, and to proposed changes; and (iv) normative functions, articulating underlying policy goals and values, suggesting ways a system should be adjusted to make it more consistent with these underlying goals and values, and providing a normative basis to evaluate any proposed change”.195

Of course, modelling also has serious shortcomings and the goals or purposes of the models are not always clearly expressed by their authors. However, that shall not be of any interest at this point. It is nevertheless important to point out that all schemes of classification and modelling are only convenient shorthand to indicate generalities rather than specifics, and they must therefore be seen only as an aid to, and not as a substitute for, understanding.196 In that which follows, I would only like to describe existing models of criminal procedure/criminal justice in order to demonstrate the evolving nature of the criminal justice system and the need for periodic evaluation and the introduction of new models that more accurately reflect the currently prevalent trends and themes.197 Whether those models are in fact suitable for the purpose of this study shall be subsequently examined. Be that as it may, before I continue with this task, a short word of clarification is necessary: As will be shown, the analysis of both models of criminal procedure and models of criminal justice are an essential part of this work and crucial for 192

Roach, 89 J. Crim. L. & Criminology (1999), 671, 672. Schlesinger, 26 Buff. L. Rev. (1977), 361, 362. 194 Damaška, Faces of Justice (1986), pp. 241, 242. 195 Frase, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 351, 352, 353 with further references; id., in: Association Internationale de Droit Penal, ed., Comparative Criminal Justice Systems (1998), p. 110, 112. 196 McLeod, Legal Theory, 2nd ed (2003), p. 7. 197 Cf. Stickels, 2 J. Crim. & Crim. Just. Res. & Ed. (2008), 1. 193

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the functional interpretation I am going to conduct. However, prior to this, the terms “criminal procedure” and “criminal justice” have to be defined. This is not an easy task because surprisingly both terms are used interchangeably, which tempts me to simply do the same. However, there are indeed big differences between an analysis of a model of criminal procedure and a model of criminal justice and it is greatly important to distinguish between the two. According to Black’s Law Dictionary, criminal justice can be defined as “[t]he methods by which a society deals with those who are accused of having committed crimes”.198 The dictionary then refers to “law enforcement”. According to another definition, criminal justice is “the field of study pursued by those seeking to enter law enforcement as a profession.”199 While the first definition is far too broad for the purpose of this work and obviously focuses on law enforcement, the second definition rather concerns criminal justice as a “field of study”. More helpful in this regard is the definition of a criminal justice system, representing “[t]he collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The system typically has three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers), and corrections (prison officials, probation officers, and parole officers.”200 Again, Black’s Law Dictionary informs at the end of the definition, that criminal justice system is “also termed law-enforcement system”. By contrast, “criminal procedure” is defined as “[t]he rules governing mechanisms under which crimes are investigated, prosecuted, adjudicated, and punished. It includes the protection of accused persons’ constitutional rights.”201 Unfortunately, comparing the definitions of “criminal justice system” and “criminal procedure”, it seems that “criminal procedure” is just the procedural form of the “criminal justice system”. Thus, the better term in this regard would probably be “criminal justice procedure”. Reading both definitions together, there is apparently not a great difference between the two terms. However, that does not mean that a difference does not exist; it merely means that taking definitions from a dictionary is not very helpful in this regard. This is also demonstrated by a quick look at Wikipedia, a source that might not be very legitimate with respect to a scientific purpose, but which should not be overlooked when a definition is sought from a source that every non-lawyer would use. Wikipedia defines criminal justice as 198 199 200 201

Black and Garner, eds., Black’s Law Dictionary, 8th ed (2007), p. 402. Ibid., 403. Ibid. Ibid.

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“[t]he system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have protections against abuse of investigatory and prosecution powers.”202 Additionally, the term criminal procedure “[r]efers to the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge and results in the conviction or acquittal of the defendant.”203 These definitions clearly depart from the definitions in Black’s Law Dictionary: the definition of criminal justice is narrower than its counterpart in Black’s Law Dictionary and broader than the definition “criminal justice system” because it includes not only the “institutions” but also their “practices”. Wikipedia’s definition of “criminal procedure” is obviously only a part of the Black’s definition, concerning merely the “adjudication process”. In sum, dictionaries – whether legal or non-legal – do not serve as a great help to clearly distinguish between criminal justice and criminal procedure. Admittedly, the only help they offer is an explanation as to why so many scholars are using the terms interchangeably. However, that does not mean that the search for a clear distinction between criminal justice and criminal procedure comes to an end at this point. A useful source which does separate the two terms, is textbooks. Comparing the tables of contents of textbooks on “criminal justice” and “criminal procedure” there seems indeed to be a difference, since textbooks on criminal justice comprise far more and broader issues than textbooks on criminal procedure. This observation confirms Malcolm Davies’, Hazel Croall’s and Jane Tyrer’s book “criminal justice”, one of the few books that ask at the beginning: “What is criminal justice?”.204 Davies, Croall and Tyrer define criminal justice as “society’s formal response to crime and is defined more specifically in terms of a series of decisions and actions taken by a number of agencies in response to a specific crime or criminal or crime in general.”205 They further recognise “four key sub-systems” of criminal justice: law enforcement, courts, penal system, and crime prevention.206 Thus, those “four key sub-systems” of criminal justice are similar to and acquire the position of the “criminal justice system” in Black’s Law Dictionary. In an “effort to become more analytical” in their approach, Davies, Croall and 202

, last visited 20 September

2013. 203

, last visited 20 September

2013. 204 205 206

Davies, Croall and Tyrer, Criminal Justice, 3rd ed (2005), pp. 3 ff. Ibid., p. 8. Ibid.

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Tyrer thereafter “conceptualise the criminal justice system in the following terms: Substantive law [. . .], Form and process [. . .], Functions [. . .], Modes of punishment [. . .], Criminal justice paradigms [. . .].”207 Considering those terms, it becomes clear that the criminal process is a part of the criminal justice system and not – as Black’s Law Dictionary suggests – the entire procedural substructure of the criminal justice system. In the words of Davies, Croall and Tyrer, the criminal process merely governs “such matters as the investigation of crime, the arrest and interrogation of suspects, prosecution decisions, bail procedure, trial procedures, rules of evidence and the role of the jury, if there is one.”208 The criminal process in its narrow sense does not provide for a procedure of legislative measures to decide what is penalised, of public crime prevention and public order, etc. Therefore, I define criminal procedure in a narrow sense and criminal justice in broader sense. However, this does not automatically mean that I can apply those definitions in this work without any problems. As previously mentioned, many authors use the terms interchangeably. That also leads to the peculiar situation where an author introduces a “model of criminal procedure” which is applied by another author as a “model of criminal justice”. To explore the author’s “real” intention (i. e. whether he used criminal procedure and criminal justice interchangeably, whether he proceeded from a different definition of those terms or whether he simply did not think about it), a great amount of space is necessary – a space this work does not allow for. Thus, admittedly, I chose the simple way and will simply use the term the author himself used, whether he applied the same definition as I did or not. c) “Adversarial” and “Inquisitorial” The terms “adversarial” and “inquisitorial” are probably the most common terms used to categorise procedural systems.209 Once an author writes about domestic or international criminal procedure in a general sense, it does not take long until both terms appear. In that case, it is often alleged that this or that procedural system is adversarial in nature or inquisitorial in nature. Adversarial features are enumerated and called for, and it is likely that the term “adversarial” is used to justify the introduction or rejection of certain procedural features. Now, what does this “adversarial” really mean? Over the years, while comparative scholars have drawn attention to the dangers of using adversarial or inquisitorial labels to characterise legal pro207 208 209

Ibid. Ibid., p. 9. Cf. Fedorova, Equality of Arms (2012), p. 92.

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cesses in the Common Law and Civil Law tradition,210 they used those terms quite differently and there has been no agreement about their meaning.211 In fact, there has been considerable confusion about the meaning of the terms “adversarial” or “accusatorial”, on the one hand, and “non-adversarial” or “inquisitorial”, on the other, because these terms are assigned a variety of loose meanings.212 It is actually not very hard to find diverse definitions; a quick look into an encyclopedia is sufficient. Thus, when I try to illustrate that the term “adversarial” is by no means used in only one sense, I am referring to the paper of Damaška within the Encyclopedia of Crime and Justice, but also to other scholars, who have been sensible of the issue and thus tried to bring light into the darkness. Due to the lack of space, I am mainly reflecting the term “adversarial”. Its counterpart “inquisitorial” I will analyse only in a comparative fashion because the analysis applies to this term, too. The term “adversarial” can be used at least in five different contexts. It can have a traditional and historical meaning and may describe a theoretical model, a procedural type and an ideal of procedure.213 aa) Traditional Meaning In Anglo-American jurisdictions the phrase “adversarial” evokes both the aspirations and the “actual features of Anglo-American criminal justice”.214 Very often, it is used to refer to the division of responsibilities between the decision maker and the parties,215 or to the assistance of counsel and due 210

See generally Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 69 ff. Jackson, 68 Mod. L. Rev. (2005), 737, 740; Fedorova, Equality of Arms (2012), p. 93. 212 Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 13; Damaška, 121 U. Pa. L. Rev. (1973), 506, 507, 513; Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 297 (“Any debate on comparative law, especially in the field of criminal procedure, requires clearly defined concepts. Although it is broadly used, the concept of an accusatorial system is one of the most difficult to understand and scholars offer very different explanations. What is certain is that the notions of accusatorial and inquisitorial processes are abstractions. As a matter of fact, the traditional dichotomy alludes to two hypothetical models obtained by making a generalization from some real features of existing and no longer existing systems. It follows that it is not a matter of how the law is interpreted that defines the dichotomy; rather, the concept depends on the choice of an ideologically oriented scale of values.”) 213 By contrast, Fedorova identifies only three different “senses” of the term adversarial: a traditional model, a theoretical model and an ideal model, see Fedorova, Equality of Arms (2012), pp. 94–96. 214 Damaška, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), p. 25. 211

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process of law.216 Since those features are present in legal systems with both a Common Law tradition and legal systems with a Civil Law tradition, the term “adversarial” in that context is not qualified to be used as a distinction. With regard to “actual features of Anglo-American criminal justice”, those features should not be confused with features of the Common Law process. The latter are important for an understanding of adversariness as a procedural type. “Actual features of Anglo-American criminal justice” are, for example, the confrontation style,217 the privilege against self-incrimination,218 the right to pre-trial release and the hostility to preventive detention,219 liberal ideology as a source (including the presumption of innocence and the requirement of proving guilt beyond a reasonable).220 Thus, the traditional meaning of “adversarial” is simply the opposite of “inquisitorial” in the sense of continental European criminal justice prior to its reform in the wake of the French Revolution.221 Damaška summarises: “The traditional concept of the adversary system evokes both actual features of Anglo-American criminal process and its aspirations. Inevitably, therefore, it combines both descriptive and prescriptive elements and cannot be expected to achieve rigorous internal consistency and coherence. It is not so much analytically precise as it is hortatory and rhetorical, aimed at mobilizing consent and at winning points in legal argumentation.”222

bb) Theoretical Model The second context is “adversariness” as a theoretical model. This theoretical model describes the goal of the process: conflict resolution.223 Procedures facilitating the implementation of conflict resolution most effectively are named “adversarial”.224 As Damaška points out: “In this second 215 McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204 (1991); Fedorova, Equality of Arms (2012), p. 94. 216 Damaška, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), p. 25. 217 Which is – in this sense – “subverted” by plea bargaining mechanisms, see ibid. 218 Malloy v. Hogan, 378 U.S. 1, 7 (1964). 219 Damaška, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), p. 25. 220 Ibid. 221 Ibid., p. 26. 222 Ibid. 223 Fedorova, Equality of Arms (2012), p. 95. 224 Damaška, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), p. 26.

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sense, then, the adversary system is a blueprint designed to promote the choice of certain procedures. Elements of the blueprint and features traditionally classed as adversary do not coincide.” The goal of conflict resolution can be pursued by a variety of approaches and models.225 “Adversariness” in this sense is thus normative. cc) Procedural Type The third meaning of “adversariness” is a procedural one. According to Damaška, it is a “procedural type designed by comparative law scholars to capture characteristic features of the common law process, particularly when contrasted with continental systems.”226 This procedural type is purely descriptive and sometimes called the “lowest-common-dominator approach”. According to the lowest-common-denominator approach, the adversarial and inquisitorial categories simply contain the features common to all criminal procedure systems of the Common and Civil Law, respectively.227 For instance, the trial by jury or the hearsay rule would qualify as features of the adversarial system if all Common Law jurisdictions included these elements at a certain moment in time.228 Thus, scholars who adopt the lowest-common-denominator approach call a common denominator “adversarial” or “inquisitorial” simply because they find it across a number of systems and then label the system adversarial or inquisitorial.229 Nevertheless, it remains unclear what happens when one of the common denominators was withdrawn – either that system can no longer be called “adversarial” or “inquisitorial” or the denominator that was withdrawn is no longer “common”.230 dd) Ideal of Procedure Fourth, “adversariness” can also be an ideal of procedure, which does not serve as an abbreviated description of actual procedure but would have a purely normative meaning.231 This approach conceptualises the terms ad225

Ibid., p. 27. Ibid., p. 28. 227 Ibid.; see also Herrmann, 2 S. Afr. J. Crim. L. & Criminology (1978), 3, 4–6. 228 Langer, 45 Harv. Int’l L.J. (2004) 1, 7. 229 Jackson, 68 Mod. L. Rev. (2005), 737, 741. 230 Ibid. 231 Ibid., 742; Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 298 (“The features of the accusatorial system are determined only through contrast to those of the inquisitorial system and vice-versa; therefore they represent only ideal models that, in practice, can combine in different ways in relation to several vari226

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versarial and the inquisitorial as Weberian ideal-types.232 These models do not exactly exist in any historical legal system,233 but while Common Law jurisdictions would be closer to the adversarial type, Civil Law jurisdictions would be closer to the inquisitorial type.234 The approach, instead, only labels concrete criminal procedure as closer to or farther from the idealtype.235 For instance: “Adversarial” as an ideal of procedure includes – amongst other things – the presumption of innocence, the privilege against self-incrimination and the use of oral testimony, which are then contrasted with counter-tendencies (allegedly)236 to be found in Continental proceedings.237 “Accusatorial”238 as an ideal procedure has – according to Jackson – at times been used to describe the reformed Continental procedures of the nineteenth century whereby the separate functions of prosecuting and ascertaining facts were severed, with the former entrusted to the prosecutor and the latter to the investigating judge.239 In the U.S.A., “inquisitorialism”, on the contrary, has always been used as an idealised system against which the courts defined their own system.240 In an – at least for Continental lawyers – both insightful and surprising article, Slansky stated: “A lengthy tradition in American law looks to the Continental, inquisitorial system of criminal adjudication for negative guidance about our own ideals. Avoiding inquisitorialism is taken to be a core commitment of our legal heritage.”241 The anti-inquisitorialism debate in the U.S.A. reveals that there is a variant form of adversariness and inquisitorialism as an ideal-type procedure: an ideal model of proof. By contrast to an ideal procedure which applies to ables.”); Fedorova, Equality of Arms (2012), pp. 97 ff. About the meaning of “normative” see infra E. III. 4. c) aa). 232 Langer, 45 Harv. Int’l L.J. (2004) 1, 8 with fn. 29. Tatjana Hörnle even says, that the terms “adversarial” and “inquisitorial” cannot be something else than idealtypes, see Hörnle, 117 ZStW (2005), 801, 804. About Weber’s ideal types in more detail, see infra E. III. 4. c) bb) (1) and dd) (3). 233 Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 14. 234 Langer, 45 Harv. Int’l L.J. (2004) 1, 8. 235 Hörnle, 117 ZStW (2005), 801, 804; Langer, 45 Harv. Int’l L.J. (2004), 1, 9. 236 In reality, of course, the safeguards mentioned are nowadays provided for in most procedural systems that are labelled “inquisitorial” and enshrined in Art. 6 ECHR, see infra E. III. 4. a) aa). 237 Damaška, 121 U. Pa. L. Rev. (1973), 506, 569. See as an example Crawford v. Washington (2004) 124 S Ct 1354, 8, and – as a commentary – Summers, 2 Int. Comm. Ev. (2004). 238 About the difference between accusatorial and adversarial see infra E. III. 3. c) hh). 239 Jackson, 68 Mod. L. Rev. (2005), 737, 740. 240 Connolly, in: id., ed., The Bias of Pluralism (1969), 3, 22–24. In more detail see infra E. III. 4. a) aa). 241 Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1635–1636.

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the entire procedure, an ideal model of proof only applies to a particular hypothesis of proof, like the question of how the truth is established,242 or whether the decision maker should be a judge or a jury.243 For example, while the adversarial model of proof claims that the truth is best discovered by powerful statements on both sides of a question, for the inquisitorial model of proof this goal is best achieved by an active judge and a strong investigating (state-)agency, which are committed to objectivity.244 ee) Historical Meaning A fifth meaning of “adversariness” was promoted by Richard Vogler and also mentioned by other authors.245 It is usually called “historical meaning”.246 Giulio Illuminati states that “[t]he historical approach is essential not only to identify the real origins of the dichotomy, but also to fully understand the meaning of the parameters of the opposition and the way they have changed in the course of time.”247 More concretely, under the historical perspective, it is particularly relevant which party is given prosecutorial power and whether the judge can initiate proceedings proprio motu.248 Thus, structural elements of the adversarial method are: “1. The state must be prevented by law from using its power to apply psychological or physical pressure to distort the free testimony of the individual. 2. The state must be prevented by law from using its superior resources to create an unfair trial. 3. The individual must be an active subject of the process and not merely a passive object.”249

In the same vein, Illuminati identified the private nature of prosecution, including the discretionary power to instigate a prosecution case; the burden of proof on the prosecutor; the equality of arms between the parties and their control of the evidence; the principle of publicity and orality of the 242 Cf. Jackson and Doran, Judge Without Jury (1995), p. 60; Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 14. 243 Taslitz, 94 Geo. L.J. (2005–2006), 1589, 1591. Deemphasising the relevance of the judge/jury-question for a categorsation as “adversarial” or “inquisitorial” model of proof: Jackson and Doran, Judge Without Jury (1995), p. 60. See also infra E. III. 4. a) aa) and b) bb); E. IV. 2. a) aa) (2) and c) bb) (1), (2). 244 Cf. Goodpaster, 78 J. Crim. L. & Criminology (1987–1988), 118, 121. 245 See, e. g., Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 298 ff. 246 Swoboda, 18 CLF (2007), 151, 157; id., Verfahrens- und Beweisstrategien (2013), p. 69; cf. Roberts, 28 OJLS (2008), 369, 370, 375. 247 Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 298; Ferrajoli, Dirito e Ragione, 8th ed (2004), p. 574. 248 Illuminati, ibid. 249 Vogler, Criminal Justice (2005), p. 130.

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trial; the judge’s passive role as the arbitrator of the dispute and the fact that the private accuser was left in charge of gathering the evidence as historical features of adversarialism.250 By contrast, an inquisitorial process is often seen as something akin to the Francophone model of criminal procedure, deriving originally from Napoleon’s criminal procedure code of 1808 or even earlier.251 This process is characterised by the following features: “(1) A process that is based upon a hierarchical system of authority in which power is delegated downwards through a chain of subordinate officials of decreasing status; (2) the procedure assumes the form of a continuous, bureaucratic process and (3) it employs different forms of intolerable pressure against defendants in order to achieve co-operation, including physical and mental torture in every imaginable form; the procedure also often occurs in complete secrecy; (4) Finally, the inquisitorial trial prefers the method of rational deduction and forensic enquiry to a fair and orderly process of communication between the parties.”252

Obviously, this understanding of “adversariness” reminds us of the traditional meaning of this term in the sense of aspirations and features. Thus, Sabine Swoboda gives this approach a second name: “due process adversariality”.253 ff) Máximo Langer: A New Theoretical Framework In his article “From Legal Transplants to Legal Translations” Máximo Langer proposes “a new theoretical framework to reconceptualize the adversarial and the inquisitorial systems.”254 With that framework, he strives to “describe the differences between the criminal procedures of the common and civil law traditions”.255 This theoretical framework pretends to provide “a clear axis of reference in comparing the differences between the adversarial and the inquisitorial systems.”256 Thereby, Langer identifies certain core levels257 of a criminal process. Every one of those levels can have 250

Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 300. Roberts and Zuckerman, Criminal Evidence, 2nd ed (2010), p. 47 with further references. 252 Vogler, Criminal Justice (2005), pp. 19–20; for another description of the historical meaning of inquisitorial see Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 301 ff. 253 Swoboda, 18 CLF (2007), 151, 157. 254 Langer, 45 Harv. Int’l L.J. (2004), 1, 5. 255 Ibid., italics added. 256 Ibid. 257 Langer himself calls it “levels”, although it might as well be called “categories”, see ibid., 13. 251

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an adversarial or inquisitorial shape. By identifying those core levels, Langer avoids the shortcomings of the usual adversarial inquisitorial dichotomy. Instead, his new theoretical framework “should be understood not only as two different ways to arrange powers and responsibilities between the main actors of the criminal process (judges, prosecutors, defense attorneys, etc.), but also as two different procedural cultures.”258 Those levels are: the technique for handling cases; the procedural culture; and ways to distribute powers and responsibilities between the main actors. (1) The Technique for Handling Cases First, the differences between adversarial and inquisitorial come to light with regard to the technique for handling cases, since “the adversarial and inquisitorial systems present substantial differences in the way they structure procedure.”259 In Langer’s view, choosing between these two techniques “may affect how accurately an international jurisdiction distinguishes the guilty from the innocent and establishes the historical background that led to mass atrocities; how swiftly it investigates and adjudicates cases; how fair or unfair the public perceives international criminal proceedings to be; and similar issues.”260 Examples of the different trial techniques include case-management techniques that exist in each system. As Máximo Langer points out, in the inquisitorial system, a written dossier is the backbone of the whole process and one of its main case-management tools, from the first stage of the proceeding in which the police intervene, to the phase of appeals against the verdict.261 Conversely, in the adversarial system, oral and public hearings play an important role in the management of caseseven in those that are bargained.262 In a similar way, plea bargaining has been an unknown case-management tool in inquisitorial systems until recently,263 but it has been allowed and widely used in Anglo-American jurisdictions.264

258

Ibid., 6. Langer, 53 Am. J. Comp. L. (2005), 835, 848. 260 Ibid. 261 For a description of the role of the written dossier in inquisitorial systems, see Schlesinger, 26 Buff. L. Rev. (1977), 361, 365–67. 262 Langer, 45 Harv. Int’l L.J. (2004), 1, 16. 263 For a classic analysis, see Langbein, 78 Mich. L. Rev. (1979), 204 ff. 264 For historical analyses of how the practice of plea bargaining developed in U.S. jurisdictions, see Alschuler, 13 Law & Soc’y Rev. (1979), 211 ff.; Fisher, 109 Yale L.J. (2000), 857 ff.; Friedman, 13 Law & Soc’y Rev. (1979), 247 ff.; Langbein, 13 Law & Soc’y Rev. (1979), 261 ff. 259

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(2) The Procedural Culture Second, adversariality and inquisitorialism must be distinguished in relation to the “procedural culture”. At first glance, the meaning of “procedural culture” is rather vague. However, it becomes clearer considering the two elements of procedural culture: the structure of interpretation and meaning and the internal dispositions of legal actors. (a) The Structure of Interpretation and Meaning Langer describes the structure of interpretation and meaning as “the basic ideas about prosecution and adjudication of criminal cases”.265 Within these two procedural structures of interpretation and meaning or “procedural languages”, the same terms or “signifiers” often have different meanings,266 such as the words “prosecutor”267 or “truth”268. At the same time, there are certain ideas and concepts that exist in one procedural language and not in the other. For instance, the adversarial system includes both the concepts of “confession”269 and “guilty plea”,270 while the inquisitorial procedural 265

Langer, 53 Am. J. Comp. L. (2005), 835, 848. Langer, 45 Harv. Int’l L.J. (2004), 1, 10. 267 Ibid.: “For instance, in the adversarial system, the word ‘prosecutor’ means a party in a dispute with an interest at stake in the outcome of the procedure; in the inquisitorial system, however, the word signifies an impartial magistrate of the state whose role is to investigate the truth”. On the different conceptions of the prosecutor in the Anglo-American system and the inquisitorial one, see, for example, Pizzi, 54 Ohio St. L. J. (1993), 1325, 1349–1351; Weigend, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002) 1232, 1233–1234. 268 Langer, 45 Harv. Int’l L.J. (2004), 1, 10: “This word has a different meaning in each procedural structure of interpretation and meaning. In the adversarial system, even if the dispute is about ‘truth’, the prosecution tries to prove that certain events occurred and that the defendant participated in them, while the defense tries to question or disprove this attempt. The adversarial conception of truth is more relative and consensual: if the parties come to an agreement as to the facts of the case, through plea agreements or stipulations, it is less important to determine how events actually occurred.” Langer explains the last sentence in more detail: “This may sound like an exaggeration because, in U.S. jurisdictions, the judge still has to verify the factual basis for a guilty plea. But in practice, U.S. judges are usually deferential to the agreements of the parties about the facts.” (fn. omitted) He then continues: “In the inquisitorial structure of interpretation and meaning, ‘truth’ is conceived in more absolute terms: the official of the state – traditionally, the judge – is supposed to determine, through an investigation, what really happened, regardless of the agreements or disagreements that prosecution and defense may have about the event.” On the conception of truth predominant in the inquisitorial system as opposed to the accusatorial one, see Garapon, 4 S. & L. S. (1995), 493, 496–497. 269 Which Langer describes as “an admission of guilt before the police”, see Langer, 45 Harv. Int’l L.J. (2004), 1, 11. 266

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structure does not include the concept of the “guilty plea”; it only includes the concept of “confession”.271 In this system, as Langer describes it, “a defendant cannot end the phase of determination of guilt or innocence by admitting his guilt before the court. While the admission of guilt may be very useful to the judge in seeking the truth, the judge still has the final word on the determination of guilt.”272 (b) Internal Dispositions of Legal Actors Just as the adversarial and inquisitorial structures of interpretation and meaning are grounded in concrete procedural practices, they are also internalised by the relevant legal actors.273 Langer calls this the “dimension of individual dispositions.” Langer’s “source of inspiration”274 for the development of this dimension of internal dispositions was sociologist Pierre Bourdieu’s concept of habitus, which can be defined as “a set of dispositions which induce agents to act and react in certain ways. The dispositions generate practices, perceptions, and attitudes which are ‘regular’ without being consciously co-ordinated or governed by any ‘rule.’”275 For Langer, internal dispositions are patterns “acquired by the internalization of the procedural structures of interpretation and meaning, through a number of socialization processes”.276 Those patterns are, for example, the judge’s role to be a passive umpire. This role “is not only due to the adversarial structure of interpretation and meaning; it is also due to the phenomenon that a substantial number of legal actors have internalized this structure of meaning 270 Which is “an admission of guilt before the court that, if accepted, has as its consequence the end of the phase of determination of guilt or innocence”, ibid. 271 Ibid. See, e. g., Moskovitz, 28 Vand. J. Transnat’l L. (1995), 1121, 1153. 272 Langer, 45 Harv. Int’l L.J. (2004), 1, 11, continuing: “In any case, if an admission of guilt happens during the pre-trial phase, the case must still go to trial before the judge can make a final determination.” See in more detail Langbein, Comparative Criminal Procedure: Germany (1977), pp. 73–74. 273 Langer, 45 Harv. Int’l L.J. (2004), 1, 11. 274 Langer speaks of “source of inspiration”, because he explicitely does not follow the theoretical framework of Pierre Bourdieu in this paper, see ibid., 12 with fn. 41. 275 Thompson, “Editor’s Introduction” to Bourdieu et al., eds., Language and Symbolic Power (1999), pp. 1, 12. 276 Langer, 45 Harv. Int’l L.J. (2004), 1, 12. Those “socialisation processes” are, for example, “law schools, judiciary school, prosecutor’s office and law firm training, interaction with the courts, etc.”. As a result of this socialisation, “a substantial number of actors in the criminal justice system are predisposed to understand criminal procedure and the various roles within it in a particular way, and these dispositions become durable over time.”, ibid.

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in a common law jurisdiction, they have come to consider this as the proper role of a judge and will usually act accordingly – i. e., censoring a judge who participates too actively in the interrogation of witnesses.”277 In other words, “to the extent that legal actors internalize these structures of meaning and then interpret and interact with reality through them, one could say that these structures of meaning constitute and shape legal actors as subjects.”278 Those individual dispositions are often underestimated and become especially relevant in the case of the transfer of legal ideas, norms, and institutions between adversarial and inquisitorial systems, as well as legal transplants in general.279 As I will demonstrate later, ignoring those individual dispositions leads to many difficulties, as happened in Italy280 and as it still occurs at the ICC.281 (3) Ways to Distribute Powers and Responsibilities Between the Main Legal Actors Finally, adversarial and inquisitorial procedures differ at another level, which Langer calls the “dimension of procedural power.”282 Langer observes that “[t]he main actors of the criminal process – judges, prosecutors, defense attorneys, defendants, police, etc. – have different quanta of procedural powers and responsibilities in each system.”283 He provides examples relating to the powers and responsibilities of the decision-maker284 vis-à-vis 277

Ibid. Ibid. 279 Ibid. 280 See infra E. III. 4. a) bb); F. II. 2.; G. III. 2. ee) (2) (c); G. IV. 281 See infra G. IV. 282 Langer, 45 Harv. Int’l L.J. (2004), 1, 13. Langer remarks that “[t]his dimension of procedural power has also been relatively overlooked by comparative criminal procedure analyses, and it is central not only to describing the differences between the adversarial and the inquisitorial systems, but also to identifying potential loci of resistance towards judicial reforms in adversarial and inquisitorial institutional settings.”, see ibid. with fn. 47. 283 Ibid. 284 Ibid. with fn. 48: “The inquisitorial judges are also more powerful than adversarial professional judges because of their power to decide which evidence is produced at trial and the order in which it is presented, as well as through their power to lead the interrogation of witnesses and expert witnesses. However, this last statement must be qualified. The adversarial judges have inherent powers – i. e., contempt powers – that the inquisitorial ones lack. In addition, since there is less hierarchical control over the decisions of the adversarial judges than the inquisitorial judges, the former also have more power in this respect.” 278

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Figure 13: Langer’s Categorisation

the prosecution and the defence.285 He thereby includes institutional considerations, describing the relationships of power between the “office of the prosecution, the judiciary, the bar, the public defense office, the police, etc.”,286 but also with regard to “permanent professional actors and lay people.”287 Again, Langer alludes to the so-called “internal dispositions of legal actors” being also intertwined with the dimension of procedural power.288 He remarks that, for instance, “an inquisitorial structure of interpretation and meaning gives the judge broad investigatory powers while giving more limited powers to the prosecution and defense. At the same time, though, any attempt to change this structure of interpretation and meaning will usually generate a reaction by the judges who protest against being disempowered through a new procedural structure of meaning.”289 285 Ibid.: “An example of this is the power that the defense has in the adversarial system to do its own pre-trial investigation – a power generally not present in inquisitorial systems.” 286 Ibid. 287 Ibid. with fn. 50: “In the inquisitorial system, the power of lay people as decision-makers is minimal or entirely non-existent. In the adversarial system, it is much more substantial, at least in comparative terms.” Cf. also Kagan, Adversarial Legalism (2003). 288 Langer, 45 Harv. Int’l L.J. (2004), 1, 14. 289 Ibid. with further references.

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This statement does not only describe what actually happened in Italy,290 and what constantly happens at the ICC,291 but it also shows that the above mentioned features of potential differences between adversarial and inquisitorial procedures operate jointly in reality and tend to reinforce, though also eventually subvert, one another.292 gg) Conclusion As shown in the previous pages, one possibility for a model of criminal process is to use the categories “adversarial” and “inquisitorial”. This dichotomy is probably the most often used categorisation and its suitability for a contextual interpretation of procedural rules and articles of the ICC will be assessed later. However, what can be concluded even without any assessment is that the different meanings of both terms are usually ignored. Instead, they are used as if everybody knows their meaning, not only by many authors, but also by many judges. Before the US Supreme Court, for example, the different meanings and uses of “adversarial” and “inquisitorial” became apparent in one and the same judgement. In McNeil v. Wisconsin, the majority of the Court decided to limit the scope of Miranda protections, i. e. – in casu – the right to counsel. Miranda-type warnings are also generally required in legal systems of the Civil Law tradition.293 In his dissenting opinion, Justice Stevens stated: “[T]oday’s decision is ominous because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment rather than a servant to the cause of justice.”294 Justice Scalia responded to this allegation: “The dissent condemns these sentiments as ‘revealing a preference for an inquisitorial system of justice.’ [. . .] We cannot imagine what this means. What makes a system adversarial rather than inquisitorial is not the presence of counsel, much less the presence of counsel where the defendant has not requested it; but rather, 290

See infra E. III. 4. a) bb); F. II. 2.; G. III. 2. ee) (2) (c); G. IV. See, for instance, the communication issue that has been introduced at the beginning of this study (see supra E. II. 1) and will be a focal point later (G. III.): contrary to the Lubanga PTC, the Bemba PTC demanded to have access to evidence other than that on which the parties intend to rely at the confirmation hearing, since otherwise the Chamber could be deprived of its power to order further disclosure (Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 44). In other words: without knowing what evidence exists, the power to order further disclosure is not more than a paper promise. 292 Langer, 45 Harv. Int’l L.J. (2004), 1, 14. 293 Bradley, 7 CLF (1996), 471, 475. 294 McNeil v. Wisconsin, 501 U.S. 171, 183 (1991) (Stevens, J., dissenting). 291

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the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties. In the inquisitorial criminal process of the civil law, the defendant ordinarily has counsel; and in the adversarial criminal process of the common law, he sometimes does not. Our system of justice is, and has always been, an inquisitorial one at the investigatory stage (even the grand jury is an inquisitorial body), and no other disposition is conceivable. Even if detectives were to bring impartial magistrates around with them to all interrogations, there would be no decision for the impartial magistrate to umpire. If all the dissent means by a ‘preference for an inquisitorial system’ is a preference not to require the presence of counsel during an investigatory interview where the interviewee has not requested it – that is a strange way to put it, but we are guilty.”295

Obviously, Justices Stevens and Scalia simply applied a different meaning of “inquisitorial”: while Justice Stevens (probably subconsciously) was referring to a historical meaning of this term, Justice Scalia rather meant a combination of procedural and ideal-type.296 Nevertheless, it was Justice Stevens who caused this misunderstanding by not explaining which meaning he was referring to (Justice Scalia did not do this either, however, he at least committed himself to more detailed explanations of the term). Unfortunately, the reluctance to explain the meaning of “adversarial” and “inquisitorial” does not stop even at the level of the procedure before the ICC, although at this level the protagonists should be aware of the different understandings of legal terms. Before the ICC, the Pre-Trial Chambers in the Katanga Chui and Bemba cases referred to “the requirements of adversarial proceedings and the principle of equality of arms”297 and the Trial Chamber in the Katanga Chui case stated in a hearing, that “the adversarial nature of the proceedings and the fairness of the proceedings under Art. 64(2) of the Statute will be reinforced.”298 In a decision of the Bemba Trial Chamber, the dissenting Judge Kuniko Ozaki pointed to the fact that “ICC proceedings are closer to the adversarial legal system than to the inquisitor295

McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). See also Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1636. 297 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/0401/07-989-tENG, Decision on the Prosecutor’s Application for Protective Measures Pursuant to Article 54(3)(f) of the Statute and Rule 81(4) of the Rules, para. 3 (March 25, 2009) with reference to Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04-01/07-819-tENG, Decision on the Redaction Process, para. 7 (January 12, 2009), italics added; Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-323, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”, para. 32 (December 16, 2008). 298 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/0401/07-T-101-Red-ENG, Trial Chamber Hearing, Judge Cotte, p. 2, lines 21-22 (February 12, 2010). 296

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ial system.”299 All those statements – whether correct or not – share the same lack of a proper explanation as to the meaning of “adversarial”. Thus, one can only guess that the first statement probably refers to an ideal model while the second is a combination of a theoretical model and a procedural ideal. The third statement obscures the matter even more by referring to the “inquisitorial system” instead of inquisitorial proceedings or the inquisitorial trial. However, the adversarial system is not similar to the adversarial trial.300 Thus, because a system is “a set of coordinated decision making bodies”,301 it encompasses “the entire criminal justice system to the conclusion of adjudication and sentencing”302 and also focuses on the police, prosecution, defense and judiciary.303 Since Judge Ozaki analysed the “specific rules on the presentation of evidence through witnesses at the trial stage”,304 she should have stated more clearly why he was referring to the entire “inquisitorial system”. hh) Appendix: Adversarial – Accusatorial After I have tried to illustrate how many meanings the term “adversarial” can have, the matter becomes increasingly confused when a second term is thrown into the ring: “accusatorial”. Both terms are usually used interchangeably.305 However, a closer look reveals that “accusatorial” does not have the same meanings as “adversarial”.306 As previously mentioned, “adversariness” can have a traditional and historical meaning and can be used in context of a theoretical model, a procedural type or even an ideal of procedure. Before this term is used, every author should clearly give information about its meaning and/or context. “Accusatorial”, on the contrary, is seen as a classic procedural model. As Abraham S. Goldstein puts it: “An accusatorial system assumes a social equilibrium which is not lightly to be disturbed, and assigns great social value to keeping the state out of disputes, especially when stigma and sanction may follow. As a result, the person who charges another with crime cannot rely on his assertion alone to shift to the accused the obligation of proving his innocence. The accuser must, in the first instance, present reasonably persuasive evidence of guilt. It is in this sense that the presump299 Prosecutor v. Jean Pierre Bemba Gombo, No ICC-01/05-01/08-1039, Partly Dissenting Opinion of Judge Kuniko Ozaki, para. 20 (November 24, 2010). 300 Zalman, in: Huff and Killias, eds., Wrongful Conviction (2008), p. 71. 301 Ashworth and Redmayne, Criminal Process, 4th ed (2010), p. 17. 302 Zalman, in: Huff and Killias, eds., Wrongful Conviction (2008), p. 71. 303 Ibid., p. 83. 304 Prosecutor v. Bemba, No ICC-01/05-01/08-1039, supra note 299, S. 131. 305 Jackson, 68 Mod. L. Rev. (2005), 737, 740. 306 Cf. Goldstein, 26 Stan. L. Rev. (1974), 1009, 1016.

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Figure 14: “Adversarial” and “Accusatorial”

tion of innocence is at the heart of an accusatorial system. Until certain procedures and proofs are satisfied, the accused is to be treated by the legal system as if he is innocent and need lend no aid to those who would convict him. An accusatorial system is basically reactive, reflecting its origins in a setting in which enforcement of criminal laws was largely confined to courts.”307

Examining the passage more closely, the term “accusatorial” obviously comprises the traditional and historical meaning of adversariness, especially when it contrasts itself to the inquisitorial system like Richard Vogler did.308 Moreover, by promoting conflict resolution (“keeping the state out of disputes”) it reminds us of “adversariness” as a theoretical model and may even be seen as “adversariness” as an ideal of procedure. Thus, if an author wishes to refer to “adversariness” in (almost) all its meanings, it may be appropriate to use the term “accusatorial”. However, this will rarely be the case because then “adversariness” receives its broadest meaning. In sum, the term “accusatorial” should only be used in cases where the reference to “adversariness” in its broadest meaning is intended.

307 308

Goldstein, 26 Stan. L. Rev. (1974), 1009, 1017. See supra E. III. 4. c) aa) (4).

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d) Packer’s Model The second theoretical model that exists is a model created by the renowned scholar Herbert Packer, whose models set the standard for more than a generation of observers.309 Packer identified two value systems that compete with one another in the criminal process found in Common Law systems: the Crime Control Model and the Due Process Model.310 The Crime Control Model values the efficient suppression of crime while the Due Process Model values the primacy of the defendant and the concept of limited governmental power.311 In addition to these opposing purposes, Packer further differentiated between the two models according to their basis of authority, the manner in which they function, and their goal outcomes. Under Packer’s crime control model, the authority of the criminal justice system is derived from the laws passed by legislatures whereas under his due process model authority is derived from the Supreme Court. When describing the manner in which the system functions under the two models, Packer linked the crime control process to an “assembly-line conveyor belt” along which criminal prosecution moves in a perfunctory fashion, from the initial police investigation to prosecution and sentencing, with victim involvement limited to the initial fact-finding phase and possibly as witness during the trial. aa) The Crime Control Model Under Packer’s crime control model, the authority of the criminal justice system is derived from the laws passed by legislatures.312 This legislature, as opposed to the courts, is the model’s “validating authority”. Criminal sanction is suggested to be “a positive guarantor of social freedom” and necessary for the maintenance of “public order.”313 In the Crime Control Model, the police have an important role. They are concerned with “factual guilt” in the sense that the accused probably committed the criminal act,314 309 Goldstein, 26 Stan. L. Rev. (1974), 1009 ff. See also Smith, 37 Brit. J. Criminology (1997), 319 ff.; McConville et al., 37 Brit. J. Criminology (1997), 347 ff.; Duff, 38 Brit. J. Criminology (1998), 611 ff.; McBarnet, Conviction (1981); McConville, Sanders and Leng, The Case for the Prosecution (1991); Trüg, 125 ZStW (2013), 34, 77 f. 310 Some authors have mistakenly attributed Packer’s work to both Common Law and Civil Law systems. 311 Packer, The Limits of the Criminal Sanction (1969), pp. 149–153. 312 Ibid., p. 173. 313 Ibid., p. 158.

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and conduct most of the fact-finding.315 Because it treasures “speed and finality”316, the Crime Control Model allows the police and prosecutors to screen out the innocent and secure “as expeditiously as possible, the conviction of the rest, with a minimum of occasions for challenge, let alone post-audit.”317 Moreover, the model grants the police broad investigative powers to arrest people for interrogations,318 and to conduct searches.319 Anything that is capable of slowing down the process and endangering speed and finality is not deemed to be appropriate. Thus, detained people are not allowed to contact a lawyer because this will slow down the process and only benefit the guilty, who will follow their lawyer’s advice not to say anything. As Packer states: “A lawyer’s place is in court. He should not enter a criminal case until it is in court.”320 Moreover, illegally seized evidence should be admissible at trial. Unlike coerced confessions, guns, drugs and stolen property reveal the truth regardless of how the police obtained them.321 It is important to clarify that Packer’s Crime Control Model in no sense authorises broad police abuse, as some authors assert.322 It is quite the opposite: Packer’s Crime Control model even imposes ordinary law for state officials in line with Dicey’s idea of the rule of law.323 However, lets say what the Model most fears is that a criminal goes free just because of (procedural) mistakes done by the police.324 Because the police searches for “factual guilt”, the “center of gravity [. . .] lies in the early, administrative factfinding stages.”325 Therefore, it is the prosecutor, not the judge, who evaluates the evidence collected by the police and decides what further steps to take.326 Because of the importance of a speedy trial, guilty pleas are welcome and rewarded with sentencing discounts for the accused as long as resources are saved.327 If a suspect is 314 As opposed to “legal guilt” that could be established beyond a reasonable doubt through admissible evidence and after considering all the accused’s rights and defenses. 315 But see Arnella, 72 Geo. L.J (1983), 185 ff. 316 Packer, The Limits of the Criminal Sanction (1969), p. 159. 317 Ibid., p. 160. 318 See ibid., p. 177. 319 See ibid., p. 196. 320 Ibid., p. 203. 321 Ibid., p. 199. 322 Roach, 89 J. Crim. L. & Criminology (1999), 671, 678. 323 See v. Dicey, Law of the Constitution, 10th ed (1959), p. 193. 324 People vs. Defore, 150 N.E. 585, 587 (N.Y. 1926). 325 Packer, The Limits of the Criminal Sanction (1969), p. 162. 326 Ibid., p. 206.

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factually innocent, under no circumstances will he or she appear before a judge or before jurors. As Packer describes figuratively: judges and jurors should not be “haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.”328 The Crime Control Model only allows appeals where the accused established that “no reasonable trier of fact could have convicted on the evidence presented.”329 The prosecutor should also be allowed to appeal because the acquittal of a guilty person is as harmful and more likely to occur than the conviction of an innocent person.

bb) The Due Process Model The Due Process Model differs considerably from the Crime Control Model. While in the former the “validating authority” is the legislature, it is the Supreme Court and the restrictions that courts interpreting the Constitution place on the state’s creation and pursuit of crime in the latter.330 It is not concerned with “factual guilt” but with “legal guilt”.331 The Due Process Model aims at the protection of the “most disadvantaged” and thus demands equal treatment regardless of wealth or social status.332 It places much less emphasis on efficiency and guilty pleas than the Crime Control Model and strives to avoid police abuses.333 Thus, the police face key restraints: they neither arrest nor detain a person in order to develop their case. As Packer describes it: “[T]here is no moment in the criminal process when the disparity in resources between the state and the accused is greater than at the moment of arrest.”334 Thus, an accused should be detained awaiting trial only when absolutely necessary to ensure attendance at trial. Everything that makes pre-trial freedom conditional on financial ability, i. e. cash bail, is seen to be discriminatory.335

327 328 329 330 331 332 333 334 335

Ibid., p. 223. United States v. Garsson, 192 F. 646, 649 (S.D.N.Y. 1923) See Packer, The Limits of the Criminal Sanction (1969), p. 230. See ibid., p. 173. See ibid., p. 167. See ibid., p. 168. See ibid., p. 180. See ibid., p. 203. See ibid., p. 217.

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Procedural rights like the right to remain silent and the right to contact counsel are seen as most important.336 Unlike the Crime Control Model, the Due Process Model does not allow separate civil, disciplinary, or criminal actions in cases of prosecutorial or police abuses.337 Therefore, the model provides for “prophylactic and deterrent”338 exclusionary rules because much police abuse will never reach the stage of a criminal trial.339 Under the Crime Control Model, anything that exhausts resources must be avoided, i. e. a criminal trial. This can be done through guilty pleas and plea bargaining arrangements. The opposite is the case in the Due Process Model: A criminal trial “should be viewed not as an undesirable burden but rather as the logical and proper culmination of the process.”340 Thus, guilty pleas are not encouraged;341 the criminal trial – conceivably based on Luhmann342 – has an intrinsic value and is detached from substantive law.343 In contrast to the Crime Control Model, under the Due Process Model the accused has broad rights of appeal as soon as a violation of his rights is at stake.344 e) Packer Extended Since the introduction of Parker’s models, his work has been constantly criticised, combined with the introduction of up to six new models that supplemented his dualist scheme.345 Since I will go into the criticisms in more 336

See ibid., p. 191: “The rationale of exclusion is not that the confession is untrustworthy, but that it is at odds with the postulates of an accusatory system of criminal justice in which it is up to the state to make its case against a defendant without forcing him to co-operate in the process, and without capitalizing on his ignorance of his legal rights.” 337 Ibid., p. 180. About disciplinary sanctions with respect to disclosure failures see infra F. VII. 1. b) cc) and 3. b). 338 Packer, The Limits of the Criminal Sanction (1969), p. 168. 339 See ibid., p. 180. 340 See ibid., p. 224. 341 See ibid. 342 Luhmann, Legitimation durch Verfahren (1969/1983), p. 30–31 (“Verfahren finden eine Art generelle Anerkennung, die unabhängig ist vom Befriedigungswert der einzelnen Entscheidung, und diese Anerkennung zieht die Hinnahme und Beachtung verbindlicher Entscheidungen nach sich.”); see also Trüg, 125 ZStW (2013), 34, 78. 343 See Packer, The Limits of the Criminal Sanction (1969), p. 217 (“Many of the limitations on substantive criminal enactments safeguard us against being punished for a mere propensity to commit crime.”). 344 See Packer, The Limits of the Criminal Sanction (1969), pp. 231–232. 345 See, e. g., Feeley, 7 Law & Soc’y Rev. (1973), 407 ff.; Vogler, Criminal Justice (2005), p. 7; Sorochinsky, 31 Mich. J. Int’l. L. (2009), 157, 167–168.

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detail later, I will now only describe those theories that were established to supplement Packer’s theories. Only one additional model was introduced by Griffiths, Bottoms and McClean and Choongh. In 1970 Griffiths elaborated new criminal procedure models: the battle and family criminal process models.346 Griffiths stated that “the essential nature of (the) problem is such as to permit only two polar responses”,347 i. e. that Packer’s procedural theory was based on the traditional understanding of the relationships between the state and defendant, which are conflicting interests. Rehabilitation and, more importantly for Griffiths, conciliation are left entirely out of account in this conflict model of criminal justice.348 By contrast, Griffiths’s model was founded on the mutual supportive and reconcilable interests between the state and defendant’s interests of rehabilitation and societal stability.349 The “family model” of criminal procedure was built on Packer’s ideas and logically inherited some of Packer’s model’s pitfalls: it was primarily ideological rather than a procedural theoretical construction built on the sole criterion of state-criminal relationship and had little connection with the reality of the justice administration.350 It is based on the assumption that the interests of the defendant and the state are reconcilable,351 or in the words of Griffiths: “We can start from an assumption of reconcilable – even mutually supportive – interests, a state of love.”352 Griffiths compares state punishment with the punishment a child receives from his parents where he or she did something wrong: “When a parent punishes his child, both parent and child know that afterward they will go on living together as before.”353 Thus, punishment, if imposed at all, is conceived as an educational tool354 and shall not serve the purpose of deterrence as the offender’s “sacrifice for the general good is kept to a minimum.”355 By contrast, the Battle, or “arms-length”, model reflects the disharmony of interests between the defendant and the state.356 The choice of procedural arrangements in the model is largely dominated by the fact that “one 346 347 348 349 350 351 352 353 354 355 356

Griffiths, 79 Yale L.J. (1969–1970), 359 ff. Ibid., 369. Cf. Vogler, Criminal Justice (2005), p. 7. Griffiths, 79 Yale L.J. (1969–1970), 359–417. Arnella, 72 Geo. L.J (1983), 185, 185. Damaška, 51 Zbornik PFZ (2001), 477, 500. Griffiths, 79 Yale L.J. (1969–1970), 359, 371. Ibid., 376. Damaška, 51 Zbornik PFZ (2001), 477, 500. Griffiths, 79 Yale L.J. (1969–1970), 359, 411. Ibid., 367.

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or the other party to a process for settling disputes between irreconcilables must win in every case”.357 Bottoms and McClean, in a similar spirit, added an additional “liberal bureaucratic model”358 and Choongh a “social disciplinary model”.359 The latter is a reaction to the alleged failure of Packer’s models to “explain the experiences of a significant minority of individuals whose cases terminate at the police station. In such cases, the police never have any intention of invoking the full weight of the criminal justice process because they never intend to charge the individuals concerned with a criminal offence.”360 Thus, the proposed social disciplinary model “eschews concern for both legal and factual guilt, concentrating instead on the task of subordinating sections of society viewed as anti-police and innately criminal.”361 Moreover, Markus Dubber added a police model,362 which regards criminal law not as an institution for the regulation of interpersonal conflict but as an administrative mechanism for the enforcement of state authority,363 and Keith A. Findley a “reliability model” that relies on “best practices”, shifting more emphasis towards “improved investigative procedures”.364 Findley sees this model as a “new paradigm” of the Innocence Movement, which emphasises the protection of innocence. Both the reliability model and the Innocence Movement accentuate certain elements of Packer’s Models:365 They promote fairer, more accurate truth-finding mechanisms, which are an important part of due process.366 Moreover, by improving the reliability and efficiency of the administrative systems, the Reliability Model “satisfies the most fundamental demands of the Crime Control Model”.367 357

Ibid.; see also Damaška, 51 Zbornik PFZ (2001), 477, 500. Bottoms, McClean, and Todd, Defendants in the Criminal Process (1976). 359 Choongh, 38 Brit. J. Criminol. (1998), 623 ff. 360 Ibid., 625. 361 Ibid., 623. 362 See Dubber, in: Duff and Green, eds., Defining Crimes (2005), pp. 91 ff.; see also id., “The Police Model of the Criminal Process, Presentation at the Buffalo Criminal Law Center Conference: The New Police Science: Police Powers in Comparative Perspective” (June 12–13, 2004), available at , last visited 18 December 2012. 363 Dubber describes: “The Police Power Model of the criminal process is, like the Crime Control Model, concerned with eradicating crime, but it operates with a different concept of crime. [. . .] [It] shifts the focus from protecting individual interests or rights to public interests. [. . .] The victim of criminal law is not the person, but the state.” See Dubber, in: Duff and Green, eds., Defining Crimes (2005), pp. 91, 92 ff. 364 Findley, 41 Tex. Tech L. Rev. (2008–2009), 133 ff. 365 Ibid., 141 ff. 366 Ibid. 367 Ibid., 147 ff., 173. 358

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Since the late 1990s, further models have been introduced acknowledging the debate over the role of victims in the criminal prosecution process. Those models have urged that accommodations such as fairness, respect, and dignity for victims should be considered.368 Taking Packer’s two models as a basis, a further two models were introduced by Kent Roach as reaction to the role of the victim, which is said to have been largely forgotten by Packer.369 By including victims’ rights, Roach develops two alternative analytical terms in comparison to Packer’s models. He takes into account the punitive and non-punitive system. Central factors of those systems are the rights of victims and the accused.370 Roach’s non-punitive model of victims’ rights “attempts to minimize the pain of both victimization and punishment by stressing crime prevention and restorative justice.” Roach uses the rather colourful term of “restorative justice”371 to refer to “practices which bring crime victims and their supporters together with offenders and their supporters”.372 In his view, both crime prevention and restorative justice – the latter focuses on factual guilt, but explores the reasons why the offender has committed the offense373 – “can draw individuals together as a community.”374 Restorative justice therefore “marginalizes due process rights by encouraging the offender to accept responsibility for the offense rather than requiring the state to prove beyond a reasonable doubt that the offender committed the crime and that the state complied with the offender’s legal rights.”375 Roach’s non-punitive model is designed to provide “a genuine alternative to crime control or due process”376 and therefore an amalgam of restorative justice and Griffiths’s family model.377 Similar to Packer’s Crime Control Model, both the punitive and non-punitive systems control crime.378 However, this goal is achieved in different ways – in the 368

Beloof, 2 Utah L. Rev. (1999), 289 ff.; Roach, 89 J. Crim. L. & Criminology (1999), 671 ff. 369 Roach, 89 J. Crim. L. & Criminology (1999), 671, 672; see recently Trüg, 125 ZStW (2013), 34, 79 (“Zweitens bedarf die Diskussion um Verfahrensmodelle einer Ergänzung um die Rolle des Opfers.”), who in fact seems to overlook that there are models of the criminal process, which take the role of the victim into consideration. 370 Roach, 89 J. Crim. L. & Criminology (1999), 671, 673. 371 About the definitional problems in general see Cunneen and Hoyle, Debating Restorative Justice (2010), pp. 6 ff. 372 Roach, 89 J. Crim. L. & Criminology (1999), 671, 673. 373 Ibid., 710. 374 Ibid., 699. 375 Ibid., 710. 376 Ibid., 711. 377 Cf. Aviram, 36 Law & Soc. Inquiry (2011), 237, 241. 378 Roach, 89 J. Crim. L. & Criminology (1999), 671, 673.

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punitive system through punishment depending on the victim’s aspirations; in the non-punitive system through “social restoration”, i. e. the possible recovery of the damage the accused caused to society, depending in the victim’s rehabilitation and the criminal’s reintegration.379 The punitive system is oriented towards Packer’s Crime Control and Due Process models, continuously taking into account victims’ rights.380 Roach states: “By taking victim satisfaction and security as the measure of its success, punitive versions of victims’ rights may have laid the foundation for eventual recognition of the limits of the criminal law in controlling crime”381 The non-punitive model treasures successful crime prevention through family and community-building and successful acts of restorative justice. Both crime prevention and restorative justice can draw individuals together as a community.382 In the non-punitive system, the victim’s interest is put above the public interest in the punishment of a criminal infraction. In this way, even the victim’s right not to officially report the crime they suffered is, in Roach’s non-punitive system, a right to be respected and protected by law, precisely due to the fact that it is possible that the victim will find other means to respond to the crime that do not involve official routes and public power structures. Others, such as John Stickels383 and Beloof,384 further refined victim models so as to address victim satisfaction.385 Stickels’ victim satisfaction model has three characteristics: “1. The crime victim has become a de facto party to the prosecution and takes an active role in the criminal case, moving the criminal justice system in the direction of the civil system. 2. The prosecutor assumes the role of representing the victim and makes decisions to satisfy the victim’s interests. 3. The attempt to satisfy the victim’s interests is a primary value of the criminal justice system.”386

Similarly, Beloof has developed a third model of criminal process, referred to as the Victim Participation Model, which also builds on Packer’s theories.387 According to Beloof, the victim brings to the process a set of separate interests that did not completely align with either the Crime Con379 380 381 382 383 384

Ibid., 699. Ibid. Ibid., 706. Ibid., 699. Stickels, 2 J. Crim. & Crim. Just. Res. & Ed. (2008), 1 ff. See Beloof, 2 Utah L. Rev. (1999), 289 ff.; Vogler, Criminal Justice (2005),

p. 4. 385 386 387

p. 4.

Aviram, 36 Law & Soc. Inquiry (2011), 237, 241. Stickels, 2 J. Crim. & Crim. Just. Res. & Ed. (2008), 1., 5. See Beloof, 2 Utah L. Rev. (1999), 289 ff.; Vogler, Criminal Justice (2005),

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trol or Due Process models and were generated by the secondary harm caused by the process.388 He argues that laws recognising the rights of victim participation “represent a shift in a dominant paradigm of criminal procedure.”389 Even two additional models did not satisfy Michael King, who added a further four models to Packer’s two models: the Medical model (which could be seen as a variation on the Crime Control model), the Status Passage model (focusing on stigma and labelling),390 the Power model (invoking critical criminology, particularly Marxism) and the Bureaucratic model (establishing democratic efficiency).391 Last but not least, Davies, Croall and Tyrer, dissatisfied with King’s mere six models, offered a seventh (“just deserts model”) and eighth model (“managing offender behaviour”).392 The just deserts model combines “elements of retribution for offenders with a notion of proper respect for the treatment of the accused or defendant” and thus “stresses the importance of punishing offenders in terms of their blameworthiness and the seriousness of their offence, not through crude revenge or incapacitation, but in response to the wrongfulness of their act.”393 The managing offender behaviour extends Packer’s Crime Control model “beyond policing into the correctional stage” and blends “rehabilitative practice with surveillance and control”.394 f) Value and Principle Approaches Not all writers have chosen models to categorise or characterise the criminal process or a process in general. Some, by contrast, identified certain fundamental values and principles in order to fulfil this task.395 Thus, I will call these approaches value and principle approaches or simply normative approaches.396 This normative understanding of the criminal trial is not new397 and can assist in analysing the entire criminal justice system.398 As 388

Beloof, ibid., 289–331. Ibid., 292. 390 This model was actually the basis of Roach’s punitive model, see Aviram, 36 Law & Soc. Inquiry (2011), 237, 241. 391 King, The Framework of Criminal Justice (1981). 392 Davies, Croall and Tyrer, Criminal Justice, 3rd ed (2005), pp. 27–28. 393 Ibid., p. 27. 394 Ibid. 395 Cf. Padfield, Criminal Justice Process, 4th ed (2008), p. 10. 396 Cf. Weisbord and Smith, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 255, 273. 397 Gless, 16 CLF (2005), 373, 375. 398 Requa, 46 Brit. J. Criminol. (2006), 965. 389

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examples, I would like to describe the works of Duff et al., Burns and Ashworth and Redmayne. First, Duff et al.’s research project “The Trial on Trial” was undertaken in order to establish a normative theory of the criminal trial399 and thus explores what should happen at trial,400 serving as “an ideal model which can be used to determine the legitimacy of actual and proposed criminal justice procedures.”401 Important for the purpose of this study, it goes beyond a single jurisdiction.402 The contributions to Volume I of the project focus on various aspects of the role of truth in the criminal trial and the nature and status of “due process”.403 Those contributions range from the application of philosophical perspectives for legal concepts and practices to the analysis of specific elements of the legal process.404 In sum, Volume I regards “truth” not only as being merely factual and instrumental but attributes epistemological significance to it,405 which Gless considers a “valuable contribution to the development of a normative theory of the criminal trial.”406 Volume II of the “Trial on Trial” explores the role and function of trials in contemporary society, focusing on the standing of the players and the values involved in criminal trials,407 including the legitimacy and advantages of alternative forms of criminal proceedings or different modes of consensual trial proceedings, in particular the disposition of criminal cases by plea bargaining.408 For Gerry Johnstone, Duff et al. ask the following questions: “What precisely are the functions of criminal trials? Should we have them in all cases? What is a criminal trial anyway – what are its essential distinguishing features? How should criminal trials be structured and organized? What are the implications of such a notion for our assessment of contemporary criminal justice in which there are relatively few trials compared with other modes of case disposal?”409 399

Ibid., 968; Hodgson, 11 Int’l J. Evidence & Proof (2007), 69. Duff et al., in: id. et al., eds., The Trial on Trial, Vol. II (2006), p. 1; Requa, 46 Brit. J. Criminol. (2006), 965, 968; Johnstone, 17 Social & Legal Studies (2008), 137. 401 Johnstone, ibid. 402 Requa, 46 Brit. J. Criminol. (2006), 965, 968; Hodgson, 11 Int’l J. Evidence & Proof (2007), 69. See, by contrast, Packer’s models, which are aimed at the Common Law process. 403 Cf. Ho, 69 Mod. L. Rev. (2006), 293; Johnstone, 17 Social & Legal Studies (2008), 137. 404 Cf. Johnstone, ibid. 405 Cf. Campbell, 12 Crim. L.R. (2008), 1002, 1003. 406 Gless, 16 CLF (2005), 373, 375. 407 Swoboda, 18 CLF (2007), 151, 159. 408 Cf. ibid. 400

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In the last volume, Duff et al. seek to develop a normative theory of the criminal trial as a way of defending the importance of trials in the criminal justice system.410 They see the trial as a communicative process through which the defendant can challenge claims of wrongdoing made against him, including the norms in the light of which those claims are made. The book starts with a historical tour, proceeds to normative theorising of the criminal trial, and moves on to the application of the proposed theory and exploration of its implications.411 On the basis of this “calling to account” theory, the authors offer a normative analysis of various aspects of the trial: the extent to which trials can be avoided through guilty pleas and forms of diversion; prominent rules of evidence such as the hearsay rule, the character evidence rule, and rules that exclude improperly obtained evidence; the problem of entrapment; the role of victims in the trial process; and the requirement that trials be held in public.412 The “Trial on Trial” avoids, in Peter Duff’s words, “the ethnocentricity to be found in, for instance, R Burns, A Theory of the Trial (1999).”413 This is the second work that deserves to be mentioned here. Burns commits himself to “an interpretation of the trial”414 from “every side – doctrinal, social scientific, tactical, ethical, epistemological, institutional, and purely descriptive.”415 In eight chapters, he provides, inter alia, a normative understanding of the trial, a “primarily descriptive account of the distinctive linguistic practices internal to the trial”, a descriptive account of the “most important rules” and institutional and philosophical analyses.416 As two authors observed, Burns moves from a description how a trial actually works to empirically studying about how juries actually make decisions,417 and focuses on social and political institutions.418 Last but not least, Ashworth and Redmayne also aimed at enunciating a normative theory when they wrote their “Criminal Process”.419 Acknowledging “twin purposes to the criminal process”, namely “accurate determinations and fair procedures”,420 they under409

Johnstone, 17 Social & Legal Studies (2008), 137. In more detail about the difference between criminal justice and criminal procedure see supra E. III. 3. b). 411 Ho, 6 Int. Comm. Ev. (2008), 1, 5. 412 Redmayne, 12 New Crim. L. Rev. (2009), 287, 288, 313. 413 Duff, 13 Edinburgh L. Rev. (2009), 165, 166. 414 Burns, A Theory of the Trial (1999), p. 4. 415 Ibid. 416 Ibid., pp. 7, 8. 417 Nakatsuru, 50 U. Toronto L.J. (2000), 363–364. 418 Farmer, 28 Law & Soc. Inquiry (2003), 547, 548. 419 Ashworth and Redmayne, Criminal Process, 4th ed (2010), p. 20. 420 Ibid., p. 39. 410

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stand the criminal process “as an institution that embodies a number of different aims and values”,421 namely “internal” and “external” values.422 Their “rights-based theory” of the criminal process proposes that the process should have “the twin goals of regulating the procedures for bringing suspected offenders to trial so as to produce accurate determinations, and of ensuring that fundamental rights are protected in those processes.”423 The conflicts, which inevitably arise within a criminal process, shall be resolved by the “human rights framework”424 – in this regard, Ashworth and Redmayne firmly reject other possibilities to deal with these conflicts such as consequentialist theories425 or approaches that simply refer to “balancing”426. g) Damaška’s Concept Mirjan Damaška was not satisfied with the most often-used dichotomy of Common Law (or accusatorial) and Civil Law (or inquisitorial) systems, since these terms depict a variety of meanings and implications.427 He described this dichotomy as “well trodden path that many have followed [. . .] to oppose adversarial against nonadversarial or inquisitorial systems.”428 Thus, in his The Faces of Justice, he developed a new typology of styles of procedure where he analyses whether procedural arrangements may work more smoothly when they are in line with the goals of justice that are pursued and with the division of authority amongst officials and private parties.429 This new typology is based on attitudes towards state authority and on concepts of government.430 Damaška’s book can basically be divided 421

Ibid., p. 20. Ibid., pp. 26 ff. Interestingly, as an example for an “external” value Ashworth and Redmayne provide “adversarialism” in its procedural meaning, referring partly to Damasˇka’s concept (p. 27). 423 Ibid., pp. 21, 23 ff., 58. 424 Ibid., pp. 29 ff., 58. 425 Ibid., pp. 45 ff., 58. Ashworth and Redmayne describe these theories as “social policies both generally and in respect of criminal justice should be determined by calculating what approach would conduce to the greatest happiness of the greatest number of people” (pp. 45–46). 426 Ibid., pp. 41 ff., 58. Apart from the unclear meaning of “balancing”, Ashworth and Redmayne especially criticise that many of those who employ this terminology “fail to stipulate exactly what is being balanced, what factors and interests are to be included or excluded, what weight is being assigned to particular values and interests, and so on.” (p. 42). 427 Tuinstra, Defence Counsel (2009), p. 105. 428 Damaška, Faces of Justice (1986), p. 3. 429 Ibid., pp. 13, 14.; Swart, 6 JICJ (2008), 87, 89. 430 Damaška, Faces of Justice (1986), pp. 8–12. 422

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into three parts: the first two parts concern the development of two pairs of theoretical models,431 the third part combines those models and applies them to various examples.432 Damaška’s typology – to describe it in very general terms433 – consists of two pairs of models. It first compares two structures of state authority that express two “ideals of officialdom”.434 Damaška has captured these differences by proposing what he calls the coordinate and hierarchical models.435 Hierarchical structures of authority are characterised by the professionalisation of officials, a strict hierarchical ordering and technical standards for decision-making, a “logical legalism”436 that values logical consistency more highly than individual justice.437 The latter element especially demonstrates that Damaška embraces elements of legal thought in his typology. Of course, the general characteristics of the “hierarchical officialdom” give rise to certain procedural features that shall not be described here in great detail.438 In short, hierarchical officialdom divides the process into a series of stages, promotes superior review439 and thus de-emphasises a concentrated “day in a court”. A case file serves as the backbone of such a “piecemeal” trial. This file incorporates the proceedings and travels up the hierarchy with the case.440 By contrast, “coordinate officialdom” is marked by lay people performing official duties, who belong to a “single echelon of authority”,441 which similarly applies to judicial authorities.442 Because of the absence of specialised officials, live testimony is preferred over written testimony,443 since there is no need for an extensive case file.444 While superior review is promoted in the hierarchical ideal, in the coordinate ideal it is rather sporadic.445 Moreover, for the coordinate ideal 431

Ibid., Chs. I, II and III–V. Ibid., Ch. VI. 433 For a more detailed description see supra E. III. 3. g) and passim. 434 Damaška, Faces of Justice (1986), p. 16. 435 See ibid., pp. 16–71. 436 Ibid., p. 23. 437 Ibid., pp. 18–23. 438 In case Damaška’s theory turns out to be suitable for the purpose of this study, a description of the procedural details of Damaška’s typology will follow. 439 In more detail Marmor, Interpretation and Legal Theory, 2nd ed (2005) pp. 149 ff. 440 Damaška, Faces of Justice (1986), pp. 47–56. 441 Ibid., p. 16. 442 Ibid., p. 57. 443 Ibid., p. 61. 444 Ibid., pp. 57–66. 445 Ibid., pp. 59, 60. 432

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it is legitimate that procedural steps can be taken informally in a private setting and can be interlaced with unofficial activity.446 Individual justice is more important than logical consistency.447 Damaška’s second pair of procedural models refers to the notions of the state: the “reactive state” and the “activist state”. The task of the reactive state is limited to “providing a supporting framework within which its citizens pursue their chosen goals.”448 The form of state embraces a laissezfaire philosophy. The type of proceeding in a reactive state is “conflict solving”,449 which has the character of a contest between two formally coequal disputants before the state official as the neutral decision maker.450 A reactive state would only intervene in a conflict, if the parties themselves cannot solve this conflict. By contrast, in an activist state, state interests prevail over individual interests.451 The type of proceeding in an activist state is not conflict solving but “policy implementing”, i. e. the justice system is considered an instrument to implement policies.452 State policy can involve all spheres of social life.453 Unlike the sceptic reactive state, it genuinely believes in its capacity to formulate the right goals and attain them through policies.454 Thus, the adjudicator dominates the proceedings and those proceedings have the character of an inquest.455 The types of proceedings Damaška describes are completely independent. Any concept of authority can be coupled with any goal of the state.456 Those combinations are able to explain many features of the criminal procedure of the Common and Civil Law traditions.457

446 447 448 449 450 451 452 453 454 455 456 457

Ibid., p. 63. Ibid., pp. 23–28. Ibid., p. 73. Ibid., p. 97. Ibid., pp. 73–80 and 97–147. Ibid., p. 87. Ibid., pp. 82, 84. Ibid., p. 80. Ibid., p. 81. Ibid., pp. 80–88, 147–80. Ibid., pp. 13, 182. Langer, 53 Am. J. Comp. L. (2005), 835, 844.

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Figure 15: Damaška’s Models of Administering Criminal Justice

Figure 16: Damaška’s Models of State Authority

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h) Other Procedural Models In their article “A Theory of Procedure”,458 John Thibaut and Laurens Walker have advanced a social psychological theory of procedure. They proposed “a general theory of procedure for resolving conflicts, with special attention to disputes dealt with in the legal process.”459 They elaborated that, on the one hand, in systems where the conflict of interest prevails, the main objective for resolution is “justice”; on the other hand, in systems where the cognitive conflict commands, the main objective for resolution is “truth”.460 Their proposal “is largely derived from systematically collected empirical evidence” and they “use the results of prior studies to build a theory in much the same way that legal practitioners and scholars use appellate opinions to develop arguments.”461 The cognitive conflict (where the main objective for resolution is “truth”) is characterised by a “scientific inquiry”.462 There, “the validity or relative adequacy of rival hypothesis is determined by submitting the question at issue to empirical or formal tests by experiment or mathematical analysis.”463 The conflict of interest (where “justice” is the main objective for resolution) is characterised by opposing interests “because a particular solution will maximise the outcome of one of the parties only at the expense of the other.”464 Contrary to the cognitive conflict with a scientific inquiry, the conflict of interest does not aim at finding the “true” or scientifically valid result.465 For Thibaut and Walker, the “distribution of control among the procedural group participants”, which are “two disputants and a third-party adviser or decisionmaker”,466 is the most significant factor in the characterisation of the procedural system.467 Furthermore, there is a connection between the type of the state power (autocratic468 and 458

Thibaut and Walker, 66 Cal. L. Rev. (1978), 541–566. As Thibaut and Walker themselves state (fn. 1), this article is an advancement of their book Procedural Justice – A Psychologocal Analysis (1975) and other articles, e. g. LaTour, Houlden, Walker, and Thibaut, 86 Yale L.J. (1976), 258 ff. 459 Thibaut and Walker, 66 Cal. L. Rev. (1978), 541. 460 Ibid. 461 Ibid., 542. 462 Ibid., 543. 463 Ibid., 544 (fn. omitted). 464 Ibid. 465 Ibid. (fn. omitted). 466 Ibid., 545 (fn. omitted). 467 Ibid., 546. Later, this was adopted by Langer’s category “Ways to distribute powers and responsibilities between the main legal actors”, see supra E. III. 3. c) ff) (3). 468 An autocratic system delegates “both process and decision control to a desinterested third party”, see Thibaut and Walker, 66 Cal. L. Rev. (1978), 541, 547 (fn. omitted).

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democratic469) and the choice of objective (truth or justice). According to the authors, an autocratic procedure seems most likely to produce a correct view of reality and, hence, is appropriate for the resolution of most scientific disputes.470 On the other hand, a democratic procedure is most likely to result in distributive justice.471 However, Thibaut and Walker discovered “certain rare but important decisionmaking problems involve both cognitive conflict and conflict of interest.”472 This is especially the case “[w]hen disputes involve an admixture of intense conflicts of interest and strongly divergent claims about matters of fact.”473 To resolve these disputes, the authors propose a two-staged procedure that separates questions of truth from questions of justice and employs an appropriate process for each: “The first stage should resolve issues of fact with the objective of determining truth; the second stage should resolve policy questions in a wholly separate procedure.”474 In his book “A World View of Criminal Justice”, Vogler conducts a historical analysis and concludes from this how criminal procedure should be designed.475 Through a historical examination, Vogler compares three paradigms, including one based on Gemeinschaft (community), one on Gesellschaft (society) and one on bureaucratic organisation, together with three types of procedure, including inquisitorial, adversarial and popular justice.476 He attempts to take into account a wider variety of actors includ469

A democratic system assigns maximum process control to the disputants, but assigns decision control to a third party, see ibid., 548, 566. 470 Ibid., 547. 471 Ibid., 566. 472 Ibid., 561 ff., 566. 473 Ibid., 561. 474 Ibid., 563 (fn. omitted). 475 “The central argument of this book is that whatever mode of procedure is operated, it should not seek to exclude, significantly limit or disable the participation of any of these three legitimate interests in criminal justice”, see Vogler, Criminal Justice (2005), p. 16. 476 In Vogler’s view, popular justice “depends on common sense understanding rather than upon law or regulation and it is a recollective practice, usually aimed at consensus. The informality of popular justice, its orality and the lack of procedural or evidential norms, facilitate direct involvement of participants. Proceedings are rapid and generally devoted to issues of facts.” Vogler distinguishes between “unmediated” and “mediated” popular justice: While in the former, “the power of the community to investigate, to adjudicate and to punish deviancy is absolute and uncontrolled by any external authority” (he analyses colonial “native courts”, gacaca proceedings in post-genocide Rwanda, the Chinese “Mass-Line” movement, popular tribunals in Cuba in the 1960s and in Mozambique in the 1970s, and the South African township courts that emerged in the late 1980s), the latter “is operated within a framework derived from other traditions, such as inquisitoriality or adver-

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ing independent defence counsel, individual participants such as victims, and civil society477. Adopting Thibaut and Walker’s approach,478 he argues, “an understanding of the balance of interests between participants within the criminal process is essential [. . .]”.479 Ultimately he remarks that inquisitorial, adversarial and popular justice procedures should be balanced within a justice system, without allowing one of them to dominate.480 As Vogler himself points out, the purpose of his book is to suggest possible means of addressing procedural problems “by identifying principles of criminal procedure, based upon a comparative and historical account of our different institutions around the world.”481 Last but not least, in his contribution named “What kind of criminal law do we want?” in Annika Snare’s “Beware of punishment”, Nils Jareborg introduces a “defensive model”482 of criminal law policy and an “offensive approach”483 to criminal law policy. The defensive model, which Jareborg – as Damaška did with his models – described as “’ideal-type’ in the Weberian sense”,484 consists of principles for criminalisation (i. e. the criminal code lists a set of “socially sanctioned basic moral demands” and so acquires a “value-expressive function”), procedural safeguards, and principles for sentencing (recognising that “the courts cannot have an independent function in ‘combatting’ crime”).485 It thus “aims at protecting individuals against power abuse, against abuse of state power, excessive repression in legal or illegal forms, as well as against abuse of private, informal power, of which “lynch justice” is the most obvious form.”486 The offensive approach, in addition,487 “regards the criminal justice system as an at least potential repertoire of methods for solution of social or societal problems”488 and so is “best described in terms of its methods and consesariality” (such as the Anglo-American jury, the German “Schöffengericht” and “other types of mixed lay/professional tribunals), see Vogler, Criminal Justice (2005), pp. 197 ff.; see also the descriptions in Roberts, 28 OJLS (2008), 372. 477 See generally Swoboda, Verfahrens- und Beweisstrategien (2013), p. 73. 478 See Thibaut and Walker, Procedural Justice (1975). 479 Vogler, Criminal Justice (2005), p. 15. 480 Ibid., p. 286; crit. Roberts, 28 OJLS (2008), 369 ff. 481 Vogler, Criminal Justice (2005), p. 2. 482 Jareborg, in: Snare, ed., Beware of Punishment (1995), pp. 17, 21 ff. 483 Ibid., pp. 24 ff. 484 Ibid., p. 20. 485 Ibid., pp. 22–23. 486 Ibid., p. 21. 487 I write “in addition” and not “by contrast” because Jareborg’s offensive approach is not contrary to the defensive model, “since important parts of the defensive model are kept or only slightly modified”, see ibid., p. 24. 488 Ibid., pp. 24–25.

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Figure 17: Models of Criminal Procedure/Criminal Justice (1)

Figure 18: Models of Criminal Procedure/Criminal Justice (2)

quences.”489 It is not regarded as an ideal-type490 but as an attempt to characterise a particular strategy towards criminal justice, which adopts a mixture of prevailing attitudes and some ideological leaning, without achieving a level of coherent articulation found in a theorist’s model.491 Contrary to Packer, who “focuses on the stages of the criminal process from initial arrest through to appeals and collateral attack, and the potential for indivi489 490 491

Ibid., p. 26. Cf. Macdonald, 11 New Crim. L. Rev. (2008), 257, 290. Ibid.

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duals involved in the process to abuse the powers vested in them”,492 Jareborg addresses the work of legislators as well as the work of the executive. 4. Conclusion: Which Model is Suitable? a) Models of Criminal Procedure and Criminal Justice – How to Find Out of the Jungle The models I have outlined above are only a small but prominent selection of models that exist which analyse criminal procedure and/or criminal justice. I have also – prior to the description of existing models – outlined the advantages modelling can have. Since a couple of different models are now known, possible disadvantages of modelling become apparent. Many models are not free from considerable ambiguity and their authors seldom state clearly what the purpose of those models is.493 Thus, the use of such models often leads to misunderstandings rather than clarification.494 This misunderstanding, in turn, has serious consequences with regard to the description of domestic and international criminal processes. aa) Wrong Modelling in Domestic (Criminal) Procedure Wrong modelling in domestic procedure is manifold and mostly involves different understandings of “Common Law”, “Civil Law”, “adversarial” and “inquisitorial”. For instance, the legal traditions of the Common Law and the Civil Law are not clearly separated from the procedural models adversarial and inquisitorial, as happened in an article written by Wolfe and Proszek: “As in the common law tradition, the civil law courts apply rules of procedure to govern the means by which the ultimate decision is reached, but in much different form. The civil law and adversarial processes dramatically differ, in terms of the interrelated criteria of concentration, immediacy, and orality . . .’495 In a typical civil action in a common law court, this entire sequence of events – stretching over several weeks or months in a civil law court – would be telescoped into less than a minute of oral colloquy between judge and counsel.’496 With heightened immediacy and extensive orality, the common law court enables a rapid exchange of information; contrast this with a civil law court, which often requires that each 492 493 494 495 496

Cf. ibid., 291 and fn. 122 with further references. Damaška, 51 Zbornik PFZ (2001), 477. Nijboer, Beweisprobleme (1997), p. 173. Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 116. Ibid.

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set of questions, proposed to be asked of a witness, be submitted to the judge in advance, together with an ‘offer of proof’ supporting the proffered inquiry.”497

This statement is terminologically irritating in several ways. In their paper about administrative and civil procedure in the U.S.A., the authors obviously strive to compare the Common Law and Civil Law legal traditions. Unfortunately, even in the short paragraph outlined above, the terminology the authors use is far from consistent. In the first sentence, they contrast the “common law tradition” with “civil law courts”. In the second sentence, they are describing the dichotomy of the inquisitorial and adversarial procedural model. However, they neither clarify which meaning both terms have nor are they consistent in their terminology: they do not contrast the inquisitorial model with the adversarial one but the “civil law process” with the “adversarial process”. What does the “civil law process” in this regard mean? Does it describe the process within the civil law tradition? Which process? It could be civil procedure, administrative procedure or even criminal procedure. Or does it concern the civil procedure in general? If so, why should it be compared to the “adversarial process”? Civil procedure can be adversarial and inquisitorial. Terminologically, the third sentence of the statement does not bring any clarification. It is rather the opposite. “Civil action in a common law court” may be identified as a civil trial before a trial court within the common law tradition. Consequently, the authors also mention “civil action” before a “civil law court”. This carries the juggling of Civil Law, civil action, Civil Law and Common Law court, civil process and adversarial process (all terms without any explanation) to the extreme: a person not familiar with the terminological subtleties will necessarily be confused. Does “civil action” not always take place before a “civil law court”? Even experts in the field of comparative law could only guess that the authors refer to a civil lawsuit before a court within the civil law tradition. Likewise, the question of whether this civil law tradition has an adversarial or inquisitorial procedural model for civil lawsuits remains unanswered. The confusion of Civil Law as a legal tradition and Civil Law as contrasted to criminal law, which was partly the problem in the statement just mentioned, also gave rise for irritation in the following excerpt of an article of Freedman,498 who referred to a study of Benjamin Kaplan: “In the criminal process there are special rules, particularly the exclusionary rules, that recognize values that take precedence over truth. The adversary system should be even more effective in determining truth in the civil process, therefore, where such values are not ordinarily applicable. A study of civil litigation in Ger497 498

Wolfe and Proszek, 33 Tulsa L.J. (1997), 293, 311–312. Freedman, 1 Chap. L. Rev. (1998), 57, 78.

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many conducted by Professor Benjamin Kaplan (later a Justice in the Supreme Judicial Court of Massachusetts) found the judgedominated search for facts in German civil practice to be ‘neither broad nor vigorous,’ and ‘lamentably imprecise.’499 Professor Kaplan concluded that the adversary system in this country does succeed in presenting a greater amount of relevant evidence before the court than does the inquisitorial system.”500

This contention is irritating since it is not clear what the author means: does he intend to say, that in German civil procedure it is the judge who investigates the facts? This is obviously incorrect because of the so-called Beibringungsgrundsatz or Verhandlungsgrundsatz.501 Or would he like to say, that the criminal procedure within a Civil Law system like Germany provides for an active judge who investigates the facts? This is basically correct. However, the use of the term “civil litigation” for criminal procedure is highly irritating and more than questionable. In any case, Freedman’s statement causes confusion. It becomes even worse when academics or judges respectively write about criminal procedure as “inquisitorial” or “adversarial”. It is always unclear whether “adversarial” and “inquisitorial” characteristics are being defined by the historical evolution of extant, institutionalised legal procedures, or whether existing procedural systems are to be interpreted and evaluated by reference to idealised models of an “adversarial” and “inquisitorial” process.502 In US-courts, the terms “inquisitorial”, “continental” and “Civil Law” are not only confused, but also used inconsistently. As David Alan Sklansky503 points out: “Sometimes the Court implied that inquisitorial process was bad because it relied on untrustworthy evidence.504 At other times the Court suggested the real concern was that Continental criminal procedure lent itself too easily to authoritarian abuse.505 And sometimes it seemed as if the chief sin of Continental criminal procedure was simply that it was Continental – ‘wholly foreign’ to our way of doing things.”506 499

Kaplan, 9 Buff. L. Rev. (1960), 409, 420–421. Ibid. 501 According to this principle, it is within the responsibility of the parties to provide the court with and prove the facts the court has to base its decision on, see Musielak, Grundkurs ZPO, 11th ed (2012), mn. 104; Schwab, Zivilprozessrecht, 4th ed (2012), mn. 6. Jauernig and Hess, Zivilprozessrecht, 30th ed (2011), § 24; Zeiss and Schreiber, Zivilprozessrecht, 11th ed (2009), § 26. 502 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 295, 298, 299. 503 Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1639. 504 See Crawford v. Washington, 541 U.S. 36, 61 (2004). 505 See ibid. at 56 n.7. 506 See ibid. at 62. 500

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In most of those cases, the term inquisitorial is used in its historical sense,507 without any explanation. For instance, in many US-cases that deal with the privilege against self-incrimination, the courts have pointed to a “preference for an accusatorial rather than an inquisitorial system of criminal justice” as among the “fundamental values and most noble aspirations”,508 which indicates that inquisitorialism does not provide for such a right. The same is indicated by the Supreme Court in Miranda v. Arizona,509 where it explained that the privilege against self-incrimination must be protected from the time of arrest, because “[i]t is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.”510 Thus, using the adversarial ideal as a contrast to the term “inquisitorial” indicates that “inquisitorial” is understood historically. Justice Frankfurter’s statements in Watts v. Indiana very well demonstrate this:511 “Ours is the accusatorial, as opposed to the inquisitorial, system. [. . .] Under our system, society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case not by interrogation of the accused, even under judicial safeguards, but by evidence independently secured through skillful investigation. [. . .] The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights – these are all characteristics of the accusatorial system and manifestations of its demands.”512

However, the safeguards mentioned by Justice Frankfurter have in fact been provided for in the German Criminal Procedure Code of 1877.513 Moreover, many of those rights are enshrined in Art. 6 ECHR.514 Thus, 507

Nijboer, 41 Am. J. Comp. L. (1993), 299, 303 (emphasis omitted). Murphy v. Waterfront Commission, 378 U.S. 52, 55 (1964); United States v. Balsys, 524 U.S. 666, 690 (1998); Withrow v. Williams, 507 U.S. 680, 692 (1993); Pennsylvania v. Muniz, 496 U.S. 582, 595 n.8 (1990); Doe v. United States, 487 U.S. 201, 212–13 (1988); Andresen v. Maryland, 427 U.S. 463, 476 n.8 (1976); Michigan v. Tucker 417 U.S. 433, 455 n.2 (1974) (Brennan, J., concurring in the judgment); Couch v. United States, 409 U.S. 322, 328 (1973); Piccirillo v. New York, 400 U.S. 548, 566 (1971) (Brennan, J., dissenting); Tehan v. United States ex rel. Shott, 382 U.S. 406, 414 n.12 (1966). 509 Miranda v. Arizona, 384 U.S. 436 (1966). 510 Ibid. at 477; Cf. Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1665–1666. 511 338 US 49, 54 (1949). 512 Ibid. 513 §§ 55, 136a of the Strafprozessordnung für das Deutsche Reich from 1 February 1877. Kunert, 16 Buff. L. Rev. (1966–1967), 122, 142, 150, 151. 514 See Jackson and Doran, Judge Without Jury (1995), p. 57. 508

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American authors and judges obviously tend to equate inquisitorial systems with coercive interrogation, unbridled search, and unduly efficient crime control,515 i. e. comparing a historical meaning of inquisitorialism not to a historical meaning of adversarialism but to an ideal or theoretical/procedural meaning of adversarialism. Freedman, for instance, refers to an ideal model of proof when he states: “The adversary system, like any human effort to cope with important and complex issues, is sometimes flawed in execution. It is both understandable and appropriate, therefore, that it be subjected to criticism and reform. The case for radically restructuring it, however, has not been made. On the contrary, based upon reason, intuition, experience, and some experimental studies, there is good reason to believe that the adversary system is superior in determining truth when facts are in dispute between contesting parties. Even if it were not the best method for determining the truth, however, the adversary system is an expression of some of our most precious rights. In a negative sense, it serves as a limitation on bureaucratic control. In a positive sense, it serves as a safeguard of personal autonomy and respect for each person’s particular circumstances. The adversary system thereby gives both form and substance to the humanitarian ideal of the dignity of the individual. The central concern of a system of professional ethics, therefore, should be to strengthen the role of the lawyer in enhancing individual human dignity within the adversary system of justice.”516

Although Freedman cites Damaška, he ignores Damaška’s reference to the different meaning of the adversary system.517 Doran et al.518 demonstrate, how differentiated a reference to the term “adversarial” can be made. They do not only identify the different meanings of adversarial and inquisitorial but also clearly state which meaning they actually use, before they conclude: “Thus far we have identified adversariness as an ideal procedural process that functions best as a method of resolving disputes between parties and as an ideal proof process that maximizes the ability of individuals to participate in legal processes designed to determine historical reality. Whether a particular governmental process will turn out to be adversarial depends on many factors, including the degree to which adversariness is seen by members of the society as compatible with (or necessary to) the aims of the procedure, the degree to which individuals are considered to have an important stake in the process, and the economic costs incurred.519 It can be argued that enforcement of the criminal law involves the implementation of state policy, thereby justifying the use of inquisitorial procedures. 515

Goldstein, 26 Stan. L. Rev. (1974), 1009, 1018. Freedman, 1 Chap. L. Rev. (1998), 57, 90. 517 Ibid., 74 with fn. 119; 76 with fn. 126 ff.; 77 with fn. 135 etc. 518 Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 14 f., 22. 519 See Galligan, Discretionary Powers (reprint 1987), pp. 326–337, arguing that procedural participants, at first, seek to find rational outcomes in an effective manner, but other concerns such as economic costs, the desire for proportionality be516

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In fact, much of Anglo-American criminal procedure has been characterized as inquisitorial [fn. omitted], particularly at the stage of police investigation and interrogation.520 Nevertheless, the Anglo-American contested trial is adversarial in nature because at this stage the matter is viewed primarily as a dispute between the prosecution and the defense (the ‘state’ versus the ‘accused’) that requires impartial resolution. At this point, the focus shifts to the plight of the individual defendant. Concerns about the importance of appropriately implementing state policy yield in large part to concerns about protecting the rights of the accused, not the least of which is the right not to be falsely convicted.521”

In sum, many authors conduct “wrong modelling” – as I have called it – simply because they are trying to identify a dichotomy where there is none. This is more than apparent in the case of the inquisitorial/adversarial or Common Law/Civil Law models. Take the existence of the jury as another example. In the case Blakely v. Washington, the renowned Justice Scalia stressed that “the Framers’ paradigm for criminal justice” rejected “civillaw traditions” in favour of “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury”; the US-Constitution “do[es] not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.”522 Apart from his confusion of a tradition and an ideal, what Justice Scalia really refers to is not a procedural model (adversarial/inquisitorial) but the relationship between a judge and a jury. This relationship would have been better described with the labels “hierarchical” or “coordinate” and – most importantly – it is nowadays widely recognised that the adversary system and the jury trial, although usually found together, are not essential to each other.523 Otherwise, the adversarial system that Japan introduced after World War II, that was closely oriented towards the American system, could not be described as adversarial, because it did not put the defendant in the adversarial seat during the investigative phase, and it had no jury during the trial phase.524 The same could be said about the famous Diplock Courts in Northern Ireland.525 tween interests and accuracy, and the ideal of participatory decision-making put restraints on the procedures and may even reduce their rational basis. 520 Goldstein, 69 Yale L.J. (1959–1960), 1149, 1163–1169. 521 See Dworkin, A Matter of Principle (1986), pp. 79–84, arguing that state policy in a cost-efficient society yields to the right of a person not to be falsely convicted only when that right means avoiding intentional conviction as opposed to avoiding, at all costs, accidental conviction of an innocent person. 522 Blakely v. Washington, 542 U.S. 296 (2004), at 313. 523 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), pp. 225, 241. 524 Shinomiya, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 114, 115. 525 See generally Jackson and Doran, Judge Without Jury (1995).

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In more general terms: many authors and judges treat the inquisitorial system as a single, undifferentiated combination of a procedural model with a legal tradition and cautionary tale, stretching from the Middle Ages to the present day, and the large differences between a Napoleonic judge and a medieval inquisitor or modern European magistrate become blurred.526 By contrast, many other authors overlook that there is not one “adversarial system” and that there are certain important discontinuities between the “English Common Law tradition”, and modern American practice:527 English and early American criminal procedure were considerably less adversarial than is generally believed.528 The legal maxim many authors conduct their comparisons under is all too often “if it walks like a duck and quacks like a duck. . .”.529 In an article, Bohlander described a situation that seems both amusing and alarming: “Anecdotal and anonymous evidence may be permitted about this author’s encounter with different international judges in a social context, one of whom apparently thought that in civil-law systems, the accused has to prove her innocence and the other stating at a symposium, with undisguised surprise during the course of a debate about adversarial versus inquisitorial principles, that this had been an epiphany for them because, until that moment, they had thought that ‘adversarial’ simply meant that the prosecution is the adversary of the defence. Another otherwise very bright young lawyer who now is a professor at a renowned law school actually asked in all seriousness whether civil-law systems knew something like the Fifth Amendment.”530

bb) Wrong Modelling in International (Criminal) Procedure In fact, two irrefutable facts counter the black and white picture of (historical) inquisitorialism and (ideal) adversarialism, that is still drawn by judges and academics: first, the alleged “adversarial” and “inquisitorial” systems are all merging somewhat.531 Therefore, second, no modern civilised country has a pure adversarial or non-adversarial system.532 Party authority is on the increase throughout Continental Europe, with both prosecutors and defence lawyers becoming more active and more partisan.533 526

Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1659. Ingraham, Structure of Criminal Procedure (1987), pp. 8–9. 528 Langbein, 45 U. Chi. L. Rev. 45 (1977–1978), 263–316; Pittman, 21 Va. L. Rev. (1935), 763, 763–782. 529 See in a similar vein D’Amato, 6 Conn. JIL (1991), 1 ff. 530 Bohlander, 24 LJIL (2011), 393, 407 with Fn. 52. 531 Bradley, 7 CLF (1996), 471 ff.; Jörg et al., in: Fennell et al., eds., Criminal Justice in Europe (1995), pp. 48, 54. 532 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225; see generally van den Wyngaert, Criminal Procedure Systems (1993). 527

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Italy, for instance, adopted a quasi-adversarial system for certain cases, which enhanced the authority of the parties at the expense of judicial power.534 In general, the European Court of Human Rights influenced and changed domestic criminal procedure to a great extent, e. g. emphasising the great importance of the trial stage (as opposed to the pre-trial stage) and the oral form of proof (as opposed to the written form of proof).535 The investigating magistrate – this form of active, investigating judge the US judges always contrast their system to – is either eliminated completely or has been heavily weakened. In Germany, since the Criminal Procedure Reform Act of 1974, the role of the Ermittlungsrichter has been amended to the extent that he is not responsible for the investigation but must authorise certain interfering actions by the prosecution.536 Of course, there is still no “investigating magistrate” in the U.S.A. or in England and Wales, but the requirement of authorisation by a judge for certain action, e. g. if the police want to arrest a suspect, does exist in those legal systems, too.537 Even in France, the juge d’instruction has become controversial and its role has been constantly reduced.538 Nevertheless, not only the legal systems of the Civil Law tradition lean towards the “opposite” tradition; Common Law countries are tending to move away from the excesses of adversarial forms of adjudication, as well as from lay participation in fact-finding, as demonstrated through the example of increasing bench trials and less jury trials,539 and as will be elaborated in further detail.540 In the U.S.A., until 1976, only 3.4 (!) per cent of state criminal trials were jury trials. Between 1976 and 2002, jury trials fell to 1.3 per cent.541 In England, a criminal defen533

Bradley, 7 CLF (1996), 471 ff.; Andenaes, 2 J. Int’l L.& Prac. (1993), 431, 464. Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 228. In more detail see infra E. III. 4. a) bb); F. II. 2.; G. III. 2. c) ee) (2) (c); G. IV. 535 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 234; Field and West, 6 CLF (1995), 473. 536 See, e. g., § 162 StPO. Only in a case of emergency could the investigating judge take action himself, if no prosecutor is available (§ 165 StPO). 537 See Safferling, Towards an International Criminal Procedure (2001), pp. 99 f. Of course there are exceptions to this rule, especially where an arrest or a certain police action is possible without an arrest warrent issued by the judge. See, for instance, the recent discussion about GPS tracking. About the role of the judge in those systems in more detail see infra E. IV. 2. a). 538 Freccero, 21 Am. J. Crim. L. (1994), 345 ff.; Delmas-Marty, in: Markesinis, ed., Gradual Convergence (1994), 46 ff. 539 See supra E. III. 4. a) aa). 540 See infra E. IV. 2. a) aa) (2) and c) bb) (1), (2). 541 Galanter, 1 J. of Empirical Legal Stud. (2004), 459, 512, table 7. See generelly Burns, The Death of the American Trial (2009), p. 86; Damaška, Evidence Law Adrift (1997), p. 127; Doran and Jackson, Crim. L. R. (1997), 161–164. 534

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dant’s right to a jury trial was seriously weakened in the 1970s, and this trend has continued.542 To authorise freer admission of hearsay evidence and to require greater judicial control, American authors tend to use models of the Civil Law tradition as orientation.543 England has embraced a number of traditional inquiry-type procedures, such as open pre-trial discovery and restrictions on the right to silence.544 In sum, all systems in the world today are “mixed” or hybrid systems – incorporating some features typical of the Common Law, adversarial, or due-process models, along with other features typical of the Civil Law, inquisitorial, or crime-control models.545 Notwithstanding this, it is indeed possible to determine the underlying tradition of a procedural system and how this system could be modelled. All existing systems today are still at least pre-dominantly of one theoretical type or its opposite.546 Gordon van Kessel, for example, identifies a “superadversary system” in the U.S.A., “more moderate adversary procedures” in England and “less adversary, inquirystyle systems” in “Continental Europe”.547 Nevertheless, nobody would seriously react to the hybridisation of, for instance, the US- or the German system by calling them “sui generis”. Unfortunately, this does occur in relation to the procedural system of the ICC.548 Fatou Bensouda, now Chief Prosecutor at the ICC, writes that the Court has assimilated na542

Doran and Jackson, Crim. L. R. (1997), 161–164. Bradley and Hoffmann, 69 S. Cal. L. Rev. (1996), 1267 ff.; Arenella, 69 S. Cal. L. Rev. (1996), 1233 ff.; Selinger, 22 Okla. City U. L. Rev. (1997), 223 ff. 544 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 239; Hodgson, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 319, 320: “Just as countries like France and the Netherlands do not use pure inquisitorial processes of justice, so too England and Wales use, in theory, a mixed system.”; in more detail see infra E. IV. 2. c) bb) (1). 545 Frase, in: Association Internationale de Droit Penal, ed., Comparative Criminal Justice Systems (1998), pp. 110, 112, 113; Findlay, 50 Int’l & Comp. L.Q. (2001), 26, 29; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 69. 546 Frase, in: Association Internationale de Droit Penal, ed., Comparative Criminal Justice Systems (1998), pp. 110, 112, 113. 547 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 242. 548 In fact, the ICTY case law demonstrates a similar phenomenon, see, for instance, Prosecutor v. Hadžihasanovic´ & Kubura, No. IT-01–47-T, Decision on Defence Motion Seeking Clarification of the Trial Chamber’s Objective in its Questions Addressed to Witnesses, p. 6 (February 4, 2005) (“[T]he procedure followed before the Tribunal is a sui generis procedure combining elements from the adversarial and inquisitorial systems [. . .].”); Prosecutor v. Mucic´ et al., No. 96–21-T, Decision on the Motion on Presentation of Evidence by the Accused, Esad Landzo, para. 15 (May 1, 1997) (“A Rule may have a common law or civilian origin but the final product may be an amalgam of both common law and civilian elements, so as to render it sui generis [. . .].”) 543

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Figure 19: Examples of the Uncertainty of the Label “Adversarial” According to Damaška

tional examples so completely that its practice is, in effect, sui generis.549 Many writers do the same.550 Additionally, the Lubanga PTC refers to the “Court’s unique criminal procedure”,551 disregarding the fact that labelling it as such is probably as correct as saying that the U.S.A. is adversarial and Continental Europe inquisitorial. In fact, labelling the ICC procedure as “sui generis” sounds rather like an excuse to stop analysing the process,552 waiving the white flag of unpredictability and going into the case-by-case analysis mentioned at the beginning of this study. If the analysis stops at this point, the characterisation of a process as a hybrid between the adversarial and inquisitorial systems would not provide any insights about the process.553 We are “mariners on the ocean without compass, star or landmark”,554 as Damaška suggests, losing our way when we are required to build sui generis procedures beyond our own traditions.555 549 Bensonda, 36 N. C. J. Int’l L. & Com. Reg. (2010–2011), 277 ff.; Weisbord and Smith, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 255, 261. 550 See, e. g., Mégret, 14 UCLA J. Int’l L. Foreign Aff. (2009), 37, 40; Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77; Keen, 17 LJIL (2004), 767, 809; Friman, in: Cryer et al., Introduction to International Criminal Law and Procedure, 2nd ed (2010), p. 425; Jackson, 68 Mod. L. Rev. (2005), 737, 740. 551 See supra E. II. 4. with fn. 58, S. 90, fn. 88, S. 98. 552 As one author noted, this “should not serve as an excuse for oversimplifying such an endeavor”, see Johnson, 10 Int’l Legal Persp. (1998), 111, 181. 553 Langer, 53 Am. J. Comp. L. (2005), 835, 837.

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Figure 20: Examples of the Uncertainty of the Label “Inquisitorial” According to Damaška

b) How to Model ICC Procedure? I have not only demonstrated that many models exist to analyse criminal procedure, but also that wrong modelling can be confusing and will eventually lead to a flawed analysis. That automatically leads to the question: what is the best model to analyse criminal procedure, which shall serve as a tool for a contextual interpretation? To choose from the models mentioned above simply because the author prefers one model over the other would oversimplify the matter. This would consequently mean to be on the same level with authors who prefer, for example, the adversarial model of proof over the inquisitorial model, because the latter allegedly allows coerced evidence and provides for an investigating judge, who bases his later decision upon the case file and who ignores the presumption of innocence. In fact, there is not one and only one model that is always the best to analyse criminal procedure. The system of legal process is the result of many ingredients, and some of them lie, as Reimann points out, “on an emotional and subconscious level, accessible to intuitive understanding, but – in the end – not explainable by any single theory.”556 554

Damaška, 2 JICJ (2004), 1018, 1019. Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 221, 223, 224. 556 Reimann, 82 Am. J. Int. L. (1988), 203, 208. 555

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aa) General Identification of a Purpose Notwithstanding the impossibility of identifying one and only one model to analyse criminal procedure, there can indeed be a model that best serves the purpose of this study. Thus, the question “What is the best model to analyse criminal procedure?” has to be rephrased, asking “What is the best model for the purpose of this study?”. The mistake of many authors is to not clearly define what purpose their models shall serve. There is no single system and no model that would be useful for all purposes and acceptable to all scholars.557 It is therefore most important to decide on the purpose of a particular investigation.558 As Paul Roberts puts it: “In order to select a suitable methodology it is necessary to define the parameters of one’s inquiry and to clarify the reasons for undertaking it. Subject-matter is determined by motivation, which in turn pre-selects method; but choice of subject-matter is also influenced by available methods (research is the art of the possible), which in turn provide motivation (ought implies can).”559 As declared earlier, it is my purpose to conduct a contextual interpretation of certain disclosure provisions. A contextual interpretation is nothing new to the judges at the ICC. However, the contextual interpretation produces different results, since the context and the system of the ICC procedure are defined very differently. Thus, in order to be able to conduct a contextual interpretation of disclosure provisions, one needs to know what the context of ICC procedure is. To this end, I have to find the best model that describes what the ICC process is. Only then can a determination be made of how certain disclosure rules should be interpreted. The mere identification of that purpose simultaneously sets the direction for the next chapters: the sought model is supposed to specify what the priorities of the criminal justice system ought to be or to identify the optimal means to implement these priorities. In other words, a normative prescriptive model is not desired.560 Instead, what is needed is a “magnifying glass” which proCf. de Cruz, Comparative Law, 3rd ed (2007), p. 226. Sklansky, “Anti-Inquisitorialsm”, 122 Harv. L. Rev. (2008–2009), 1634, 1637; de Cruz, Comparative Law, 3rd ed (2007), p. 231. 559 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 295, 297. 560 Cf. the approaches of Walker and Telford, Designing Criminal Justice (March 2000), p. 3 and Krapac, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 121; see the definition of “normative” in Rappaport, 73 Miss. L.J. (2003–2004), 559, 572: “The term ‘normative’, like many words, has a varied meaning. For our purposes, normative questions refer to ‘should’ questions, questions about how individuals or institutions should act. [. . .] A statement that a decision is ‘justified’ or ‘good’ is a normative statement if it implies that a decisionmaker is, was or will be under an obligation to reach a certain decision. Thus, the 557 558

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vides a good view of the internal organisation of criminal procedure’s ideas and structures.561 Because the procedural questions initially raised can only be answered by a broad contextual interpretation involving comparative, institutional and sociological elements,562 this model must describe more than the framework of procedural provisions for a particular procedural problem. The model has to incorporate legal and political traditions, because those roots are not easily changed.563 Describing the process before the ICC, many authors overlook its structural, institutional, sociological and political features.564 bb) Concrete Parameters of a Concept In sum, the model that helps describing the ICC procedure must resemble a blueprint. To define it negatively, this blueprint should, at first, not be normative.565 Normative models tell us what ought to be done, i. e. how people should act, how rules should be changed, or what a law’s content should be.566 It tells us what limits should be set in criminal law, and in the investigative and sentencing powers that go with it.567 Second, the blueprint cannot be prescriptive, i. e. it does not serve the purpose of this study to identify authoritative principles that answer the above “should”-questions.568 Third, the model must not be evaluative, i. e. it should refrain from claim that a legal right to assisted suicide is justified typically means that a court should rule in that way.” Although in most cases, the terms “prescriptive” and “normative” are used interchangeably, Rappaport defines prescriptive as a methodology that helps to identify “authoritative principles that answer the important ‘should’ questions”, see Rappaport, 73 Miss. L.J. (2003–2004), 559, 574. 561 Cf. Krapac, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 121. 562 See supra E. III. 1. 563 Cf. Kagan, Adversarial Legalism (2003), pp. 5–6. 564 Bibas and Burke-White, 59 Duke L.J. (2010), 637, 641; about theories and models in more detail Moore, Placing Blame (1997/2010), pp. 4 ff. 565 For the purpose of this study, I strive to simplify the normative/descriptive divide, which is “an aspect of the methodology debate that usually rages over a number of complex issues”, see Halpin, in: Patterson, ed., Philosophy of Law and Legal Theory, 2nd ed (2010), pp. 607, 615 ff. 566 Bix, Dictionary of Legal Theory (2004), p. 148; Skoll, Contemporary Criminology (2009), p. 39; Linarelli, 114 Penn. St. L. Rev. (2009–2010), 119, 132–133; Rappaport, 73 Miss. L.J. (2003–2004), 559, 572. 567 Ashworth, in: Norrie et al., eds., Regulating Deviance (2009), p. 87, 92. 568 Rappaport, 73 Miss. L.J. (2003–2004), 559, 574 (“One answer is that such a methodology should help us identify authoritative principles that answer the important ‘should’ questions – whether citizens should obey the law, how courts should interpret the law, how government should enforce the law. This might be called a

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evaluating a certain type of procedure – adversarial, crime control, conflict solving etc. – as “good” or “bad” and as preferable and refusable respectively.569 By contrast, defined positively, the model or the conceptualisation has to be descriptive and analytical, i. e. it has to describe and analyse how the law is.570 Fourth, it has to be empirical, outlining what is, with respect to both existing provisions (“Law in the books”)571 and the actual working of the system (“Law in action”).572 Empirical goals attempt to identify facts about the world such as how much trials are actually jury trials or the likelihood that the government will sanction a client for taking certain actions.573 Thus, empirical research reveals the actual working of the criminal justice system.574 Last but not least, the blueprint needs to serve interpretative and explanatory purposes. It is not sufficient that it helps to describe and analyse ICC procedure (with regard to its provisions and its actual working). A mere description and analysis of ICC provisions does not itself automatically result in having identified the system that serves as a basis for a contextual interpretation. Thus, the blueprint or concept of procedural models also needs to be explanatory or interpretive, explaining the significance of analysed provisions for a broader system.575 In sum, the blueprint or concept of models that best serves the purpose of identifying the system of ICC procedure in order to conduct a contextual interpretation of certain disclosure rules has to be descriptive, empirical, analytical and interpretive/explanatory with regard to structural, instituprescriptive, or ‘topdown’, approach.”). See also Campbell, 30 Austl. J. Leg. Phil. (2005), 20, 21. 569 Cf. Sklansky, 122 Harv. L. Rev. (2008–2009), 1634, 1640 (“Evaluative means the assessment of the attractiveness of anti-inquisitorialsm.”) and Moore, Placing Blame (1997/2010), p. 8. 570 Sklansky, ibid.; However, see Duff, 25 OJLS (2005), 353, 354–355, who doubts that “is” and “ought” can be sharply distinguished because analysing the law means analysing a normative institution. 571 Tanguay-Renaud and Stribopoulus, Rethinking Criminal Law Theory (2012), p. 196; in detail Scheffer, Hannken-Illjes and Kozin, Criminal Defence and Procedure (2010), pp. 10 ff. 572 Tanguay-Renaud and Stribopoulus, Rethinking Criminal Law Theory (2012), pp. 193, 196; in detail Scheffer, Hannken-Illjes and Kozin, Criminal Defence and Procedure (2010), pp. 10 ff. For the purpose of thus study, I use the word “empirical” in a very broad sense, i. e. as “law in action”, “law in the real world”, “sociolegal studies”, “law and society” and “sociology of law”. In the same vein Twining, General Jurisprudence (2009), p. 226. 573 Rappaport, 73 Miss. L.J. (2003–2004), 559, 570. 574 Tanguay-Renaud and Stribopoulus, Rethinking Criminal Law Theory (2012), p. 193. 575 Cf. Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 311.

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tional, sociological and political features of procedural provisions of the ICC. It needs to provide a common language for a contextual interpretation, developing parameters that create a link between provisions and features of the Court, the identification of a system and the analysis of how certain rules are translated into that system. By contrast, what does not serve this purpose is a concept of models that makes assertions of how a process should be shaped or whether a certain procedural model is better than the other. It might be necessary and enriching for other purposes to identify certain values a process should have and certain features a process should not have,576 but for the purpose of this study this is not relevant. I do not strive to invent new procedural models and I will stay out of the discussion of which procedural model is better for seeking the truth or promoting human rights, for there are countless studies of renowned writers I do not even dare to argue with. All I am simply trying to demand is consistency. Whether a process is shaped adversarially or inquisitorially, as long as the legal actors can cope with the underlying procedural system and tradition of that process, their decisions might be arguable (for there is no definitive answer to a procedural problem),577 but they are still correct. However, once decisions are made on a case-by-case basis, regardless of the system and tradition, they endanger the entire process. Obviously, those decisions are not made with ill intent but as a result of a non-existing common language about how the shape of a procedural system should be interpreted. Only in this regard am I committed to a certain extent of normativity: I do not wish to say how a style of process should be, but how this style should be analysed. Thus, I am trying to disentangle the many concepts that are used to analyse a process. Adversarial, accusatorial, inquisitorial, Common Law, Civil Law, crime control, due process model, offensive model, hierarchical, coordinate etc. – I will simply take those existing concepts and analyse which of those concepts is most qualified to provide a common language for a contextual interpretation. cc) Function of a Concept In other words: the ICC lacks a “general jurisprudence” in that regard, i. e. a theory or a concept that facilitates the identification of the procedural system of the ICC. This requires explanation.

576

See, for instance, Ashworth, in: Norrie et al., eds., Regulating Deviance (2009), p. 87, 92; Skoll, Contemporary Criminology (2009), p. 39 with further references. 577 See supra E. III. 1.

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(1) Some Terminological Thoughts “General jurisprudence” is a term that developed throughout the eighteenth and nineteenth centuries578 in different forms, meanings and functions. Basically, the term “general jurisprudence” is used differently in England on the one hand and in Continental Europe on the other hand.579 Taking Germany and France as an example, in Continental Europe the term is known as Allgemeine Rechtslehre or theorie generale du droit. As a participant theory,580 general jurisprudence – in very general terms – analyses actual legal systems at a relatively high level of generality.581 It refers to a level of abstraction rather than to geographical reach.582 This abstraction is desirable and connected with a conceptual analysis.583 By contrast, general jurisprudence in the English tradition “referred to extension in point of space: Bentham, for example, distinguished between universal and local jurisprudence; Austin between the general theory of law common to maturer systems and the theory of law underlying a particular legal system.”584 Within the latter understanding, general jurisprudence coexists with “analytical jurisprudence” as defined by Hart,585 Raz586 and Marmor587 or “integrative jurisprudence” articulated by Berman.588 What is appealing about 578

Cf. Goldman, Globalisation and the Western Legal Tradition (2007), p. 28. See generally Twining, General Jurisprudence (2009), p. 8. 580 Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 6. “Participant theory” in this regard means, that Allgemeine Rechtslehre is a form of legal theory that analyses the functioning of law, the meaning of law for the society and the history of law from an internal point of view. By contrast, “observer theories” (Beobachtertheorien) are formulated from an external point of view, usually by philosophers, sociologists, political scientists or economists. They critically review the law from the outside. About the difference between “Beobachtertheorien” and “Teilnehmertheorien” in more detail see Auer, Generalklauseln (2005), pp. 212 ff. Thus, “legal philosophy”, as contrast to “general jurisprudence”, can be qualified as a observer theory. 581 Twining, General Jurisprudence (2009), p. 19. 582 Ibid. 583 von der Pfordten distinguishes four levels of abstraction (I excluded the level of necessity von der Pfordten also categorises): a first highly abstract level; a second rather high level of abstraction; a medium level of abstraction; and a low level of abstraction with much contingency, see von der Pfordten, in: Hage and von der Pfordten, eds., Concepts in Law (2009), pp. 17, 27 ff. 584 Twining, General Jurisprudence (2009), p. 19. 585 Hart, The Concept of Law, 2nd ed (1961/1994). 586 Raz, The Concept of a Legal System (1970). 587 Marmor, Interpretation and Legal Theory, 2nd ed (2005), p. 43 (“Analytical jurisprudence first and foremost strives to understand what the law is. It is a theory about the nature of law, and not about the obligation to obey it.”) 588 See Berman, Faith and Order (1993), ch. 13. 579

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general jurisprudence is its methodological aspect, i. e. its desire to find definite criteria for the existence of law. Although this study is not about criteria for the existence of law, it still strives to identify criteria for the existence (and the labelling) of a system. Thus, for the purpose of this study, the methodological aspect of general jurisprudence is much more useful than the question what law actually is. However, for this purpose, the parameters of general jurisprudence must be defined in more detail. (2) Jurisprudence In line with Twining, I see “jurisprudence” as the theoretical part of law and treat this term and “legal theory” as synonymous, as it is a peculiar Anglo-American idea.589 In French, for example, the word jurisprudence means the body of law developed through the decisions of the courts.590 Additionally, legal philosophy is the most abstract part of jurisprudence.591 According to Twining, jurisprudence can be viewed as an ideology, a heritage and an activity. The latter in particular is important for this study, including, inter alia, the functions of constructing conceptual frameworks, empirical hypotheses, developing working theories for participants and “digging out, exposing to view, and evaluating important presuppositions and assumptions underlying legal discourse generally and particular phases of it.”592 Jurisprudence (or legal theory) exists in a narrow sense and in a broad sense.593 While jurisprudence in a broad sense includes all basic subjects of law,594 jurisprudence in a narrow sense is analytical jurisprudence.595 This form of jurisprudence is closely linked to the utilitarism of Jeremy Bentham (1748–1832) and John Austin (1790–1859).596 Analytical McLeod, Legal Theory, 2nd ed (2003), p. 2. Ibid., pp. 3, 4. 591 See Twining, General Jurisprudence (2009), p. 8. 592 See in more detail ibid., p. 9. 593 Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 2. 594 Ibid., p. 8. 595 See generally Hoerster, in: Albert et al., eds., Rechtstheorie (1972), pp. 115, 122, who identifies the primary task of legal theory as distinguishing between empirical, normative and linguistic assessments: “(F)ür die analytische Rechtstheorie ist das Recht ein Regelsystem der empirisch-sozialen Wirklichkeit, das einer wertungsfreien Beschreibung zugänglich ist.” Rottleuthner, Rechtstheorie und Rechtsoziologie (1981), pp. 14, 19 distinguishes: Legal theory is logical and conceptual; Sociology of law is despriptive and empirical; legal philosophy is normative and practical. 596 Austin, The Province of Jurisprudence (1954), pp. 367–369: “I mean then by ‘General Jurisprudence’, the science concerned with the principles, notions, and distinctions which are common to systems of law: understanding by systems of law, 589 590

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Jurisprudence is mainly represented by the work of Herbert Hart (1907– 1992). However, Hans Kelsen’s analytical jurisprudence is no less important.597 Apart from the criticism emanating from representatives of natural law,598 analytical jurisprudence has certain conceptual limitations that are also relevant for the purpose of this study. For example, Hans Kelsen’s influential “Pure Theory of Law”599 sought to exclude or devalue social scientific and moral or political approaches to law and legal phenomena.600 Thus, “what is left as the exclusive approach in legal theory are analytic methods, used to elucidate and describe the key logical features of law or legal concepts”.601 Nevertheless, as previously emphasised, a blueprint of models that describe the ICC process cannot serve its purpose without incorporating empirical elements (in a broad sense) and sociological methods. Additionally, Hart’s analytical jurisprudence, which, inter alia, adopted, refined and applied Bentham’s techniques of analysis of abstract concepts,602 the ampler and maturer systems which, by reason of their amplitude and maturity, are pre-eminently pregnant with instruction.” 597 Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 2. 598 Inter alia, Devlin, Fuller, and later Dworkin, attacked Hart’s positivist premises. Cf. Fuller, 71 Harv. L. Rev. (1957), 630 ff.; Bodenheimer, 104 U. Pa. L. Rev. (1955–1956), 1080 ff.; Devlin, The Enforcement of Morals (1959); Dworkin, 115 Harv. L. Rev. (2002), 1655, 1678; see generally Twining, 1 Int. J.L.C. (2005), 5, 11. 599 Kelsen called his analytical jurisprudence “pure” theory of law, which is close to “general jurisprudence”, see Kelsen, Reine Rechtslehre, 2nd ed (1983 [repr.]); id., Pure Theory of Law, 2nd ed (1970, translated by Max Knight). However, Kelsen did not use that phrase as a terminus technicus but as a reference to the fact that the theory he is looking for is not committed to a certain legal order. That means, that law can be found at different times in different societies. Cf. Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 7. 600 Kelsen, Pure Theory of Law, 2nd ed (1970, translated by Max Knight), p. 1: “The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal order. [. . .] As a theory, its exclusive purpose is to know and to describe its object. The theory attempts to answer the question what and how the law is, not how it ought to be. It is a science of law (jurisprudence), not legal politics [. . .] It is called a ‘pure’ theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is strictly not law: its aim is to free the science of law from alien elements. This is the methodological basis of the theory [. . .] Such an approach seems a matter of course. Yet, a glance upon the traditional science of law as it developed during the nineteenth and twentieth centuries clearly shows how far removed it is from the postulate of purity; uncritically the science of law has been mixed with elements of psychology, sociology, ethics, and political theory.” 601 Giudice, 24 Law & Phil. (2005), 509, 511–512; Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 7; however, for an interpretation of Kelsens “Pure Theory of Law” as an Weberian ideal type see Shivakumar, 105 Yale L.J. (1995– 1996), 1383 ff. 602 Cf. Twining, 1 Int. J.L.C. (2005), 5, 10–11.

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was found to be too narrow, too. To mention only those critics that are relevant for this study: first, Hart is criticised for privileging “state law” while unjustifiably excluding international law, religious law, indigenous law, and other kinds of phenomena referred to and recognised as law from the category or concept of law.603 Second, his analytical jurisprudence is considered too narrow since he is said to focus on legal concepts, such as duty, person and contract, used in the formulation of laws.604 A focus on legal concepts leaves little room for sociological insights about law.605 (3) General Jurisprudence with a View to the Purpose of this Study I do not wish to enter into the debates about the flaws and advantages of certain understandings of jurisprudence. Since I am not defining and conceptualising law as a whole and I constrain myself to procedural rules of the ICC, my evaluation of the different understandings of jurisprudence is not led by dogmatic considerations but simply by the purpose of my study. Some may call this eclecticism or – to put it negatively – “cherry picking”.606 In fact, Kelsen disparagingly called the combination of different methods of legal theory, legal sociology and jurisprudence “Methodensyn603 Tamanaha, A General Jurisprudence of Law and Society (2001), pp. 150–151. Tamanaha constructs a single framework for a universal jurisprudence as a basis for a theoretical understanding of law anywhere. Twining, General Jurisprudence (2009), pp. 39 (fn. omitted), 363: “Glenn, Tamanaha, and Griffiths, for example, in different ways de-centre the state from their pictures of law in the world without denying that it is for most purposes the most powerful, complex, and sophisticated form of law around.” (Glenn, Legal Traditions of the World, 3rd ed (2007); Tamanaha, A General Jurisprudence of Law and Society (2001); Griffiths, 24 J. Legal Pluralism (1986), 1 ff.; id., 48 J. Legal Pluralism (2003), 1 ff. The ICC is based on International Law, see in detail infra E. IV. 1. a). 604 Twining calls this “law talk” in contrast to “talk about law”, i. e. analytic concepts used in describing, analysing, explaining and evaluating legal institutions and phenomena, see Twining, General Jurisprudence (2009), pp. 39, 44. For example, Austin based his jurisprudence on a list of what he deemed to be necessary legal concepts, including right, duty, liberty, injury, redress, contractual obligations, and sovereignty. In his words: “I mean, then, by ‘General jurisprudence,’ the science concerned with the exposition of the principles, notions, and distinctions which are common to systems of law; understanding by systems of law, the ampler and maturer systems which, by reason of their amplitude and maturity, are preeminently pregnant with instruction.” see Austin, The Province of Jurisprudence (1954), p. 367. 605 Tamanaha, A General Jurisprudence of Law and Society (2001), p. xv, 224– 230, where he explains how socio-legal positivism overcomes the essentialist or imperialist pitfalls of much analytical jurisprudence. 606 Cf. Banakar, in: Banakar and Travers, eds., Law and Social Theory (2002), pp. 33 ff.

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kretismus” (the syncretism of methods).607 This might be a reasonable assessment where the combination of different methods is conducted unnoticed or even subliminally. However, where this combination is preceded by an epistemological introduction, clearly outlining the purpose of the study and separating normative from descriptive observations, this criticism cannot stand.608 “General jurisprudence” for me only serves as a methodological vehicle to identify the procedural system of the ICC that facilitates a contextual interpretation of disclosure rule. I agree with Röhl when he says that general jurisprudence is not confined to analytical, empirical or normative observations but is oriented towards a practical goal.609 My practical goal is the identification of the procedural system of the ICC. Since the achievement of this goal is the overriding objective, every method that advances that achievement is deemed to be appropriate.610 Thus, for my purposes, I regard the analytical jurisprudence of Kelsen, Hart, Austin and Raz as too narrow, and a broad understanding of jurisprudence, including all subjects of law, as too broad. “General jurisprudence” lies somewhere between those two.611 I agree with the understanding of Twining when he states: “’General’ in this context has at least four different meanings: (a) abstract, as in ‘theorie generale du droit’; (b) universal, at all times in all places; (c) widespread, geographically or over time; (d) more than one, up to infinity.”612 Twining’s method includes not only logical, linguistic, and conceptual techniques developed by analytical philosophers, but also tools of analysis developed in neighbouring disciplines (such as ideal-types, models, metaphors, and deconstruction).613 In the words of Giudice: “[C]onceptual and social scientific theories complement each other at the level of general approach; both are necessary perspectives from which to understand a social phenomenon such as law. Conflict enters as a possibility at the level of particular claims made within either conceptual or social scientific theories.”614 For my purpose, external observations on law,615 or talk about law,616 are not sufficient. Instead, what needs to be 607

Cf. Kelsen, 58 JW (1929), 1723, 1724; Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 9. 608 Cf. Röhl and Röhl, ibid., p. 9. 609 Ibid., p. 8. 610 Ibid. 611 Ibid. 612 See Twining, General Jurisprudence (2009), p. 18. 613 Twining, General Jurisprudence (2009), p. 39. See also Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 2, for whom general jurisprudence is supposed to open the jurisprudence to interdisciplinarity. 614 Giudice, 24 Law & Phil. (2005), 509, 532–535. 615 Supra note 582, S. 167.

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taken into account is “law in minds”,617 a “style of thought”,618 “a web of beliefs, ideals, choices, desires, interests, justifications, principles, techniques, reasons, and assumptions”,619 which can be apprehended only from within, i. e. from the standpoint of legal actors.620 In a globalised world,621 the challenge is not to find new concepts. It is rather the opposite, i. e. to face the oversupply of new theories (that are basically old theories with a new livery) by highlighting concepts that are already existing instead of reinventing the wheel and throwing new terms and concepts into the ring.622 c) What Concept is Preferable? In sum, a blueprint that models ICC procedure shall serve as a “general jurisprudence” of ICC procedure. Thus, it needs to be descriptive, interpretive and explanatory, instead of normative and prescriptive. Furthermore, it has to take into account comparative law elements, sociological methodology and elements of legal thought, which are closely linked to comparative law623. I will now demonstrate what that means for the applicability of the concepts and models outlined above. aa) Normative/Descriptive In order to identify a concept that serves best the purpose of this study, I would like to begin with those approaches that are not suitable. As I remarked earlier, the approach or concept I am looking for should not be normative or prescriptive. As previously mentioned, the model I am looking for is not concerned with specifying what the priorities of the criminal justice system ought to be or about discovering the optimal means to implement these priorities.624 In contrast to general jurisprudence, normative jurisprudence encompasses general questions about values and law.625 Thus, 616

Supra note 606, S. 170. Ewald, 143 U. Pa. L. Rev. (1994–1995), 1898, 1961–1990, 2111. See also id., 46 Am. J. Comp. L. (1998), 701, 705. 618 Ewald, 143 U. Pa. L. Rev. (1994–1995), 1898, 1947. 619 Ibid., 1948. 620 Cf. Valcke, 52 Am. J. Comp. L. (2004), 713, 718 with further references. 621 For the term “global” in comparison to “universial” see Goldman, Globalisation and the Western Legal Tradition (2007), p. 15 with further references. See also Twining, General Jurisprudence (2009), pp. 20–21 (fn. omitted) and id., 1 Int. J.L.C. (2005), 5, 7, who considers “general” more flexible than “global” or “universal”. 622 Cf. Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 2. 623 See Fikentscher, Modes of Thought, 2nd ed (2004), p. 44. 624 See supra E. III. 4. b) aa). 617

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normative jurisprudence inquires into whether the law’s content meets or should meet some normative criterion fixed by theories of justice, deontological ethics, or consequentialist theories such as utilitarianism.626 Neither the identification of certain values that underlie the ICC process nor an approach about how the ICC process should be designed serve the purpose of this study, i. e. the systematisation of the ICC process.627 That does not mean that normative approaches are flawed or inappropriate. I do not wish to take part in the discussion surrounding the contention that jurisprudence always has to be free of normative assumptions,628 as Max Weber pointed out.629 I am aware that the “is” and “ought” cannot always be clearly separated. After all, I am analysing law, which is a normative institution, and which in itself encompasses political and moral values on which any system of law depends.630 Be that as it may, a normative analysis does simply not serve the purpose of this study. Or, to say it in the words of Twining, who – as a “weak positivist”631 – describes it perfectly: “For me the crucial point is one of vocabulary: understanding law needs to encompass ideals and aspirations on the one hand, and what actually happens on the other. We need to have vocabularies for both aspiration and reality and that requires a distinction between ought and is in some contexts. One needs a vocabulary that describes actual institutions and practices, not least because of the many awful things that are done in the name of law by those who exercise power. This is partly a matter of standpoint: it may be appropriate for a judge to expound and justify interpretations of the law in terms of Dworkinian principles, but this mode of discourse will not do for Amnesty International, Human Rights Watch, local reformers, or other observers and critics, for they need clear distinctions between aspirational standards and descriptions of actual practices.632 Suffice to say here, 625

Twining, General Jurisprudence (2009), p. 122; Bix also distinguishes between normative and conceptual analysis of the law, see Bix, APA Newsl. on Phil. and L. (2007), 1, 3. 626 Linarelli, 114 Penn. St. L. Rev. (2009–2010), 119, 132–133. 627 By contrast, see Weisbord and Smith, 36 N.C.J. Int’l L. & Com. Reg. (2010– 2011), 255, 274: “The moment may have arrived for the study of international criminal law to try to discover the unifying purposes served by rules that, in the past, it was content with merely describing. Failure to do so would undervalue the extent to which the context of international criminal tribunals differs from that of domestic institutions.” 628 See also Albert, in: Oldemeyer, ed., Die Philosophie und die Wissenschaften (1967), p. 264. 629 Max Weber, 7 Logos. Internationale Zeitschrift für Philosophie der Kultur (1917/18), 40; see generally Petersen, Max Webers Rechtssoziologie (2008), p. 29. 630 Cf. Duff, 25 OJLS (2005), 353, 354–355. 631 “I am a weak positivist in that I consider that the is/ought distinction depends on context and standpoint.”, see Twining, General Jurisprudence (2009), p. 27 with fn. 107. 632 Twining, Globalisation and Legal Theory (2000), pp. 46, 114, 120, 134.

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it is my view that moral concerns are an essential, but not a sufficient, part of the enterprise of understanding law.”633

(1) Value and Principle Approaches What does that mean for the application of the models and approaches described above? First, the exclusion of normative approaches means excluding the value and principle approaches of Duff et al., Burns and Ashworth and Redmayne.634 Those research projects were – as already mentioned – mainly undertaken in order to establish a normative theory of the criminal trial635 and thus explore what should happen at trial.636 Moreover, Burns’s A Theory of the Trial develops philosophical theories that describe how the trial’s structure enables jurors to reach sound practical judgments.637 Ashworth and Redmayne choose a “principled” approach to constructing a framework for evaluating the criminal process. Their approach is to attempt to set out what the principles that govern the administration of justice ought to be and then examine how this corresponds with the actual practice of the system. They comment: “The principled approach to criminal justice – unlike Packer’s two models – is explicitly normative. The purpose of the criminal process is to bring about accurate determinations through fair procedures. The approach therefore emphasizes various rights and principles that ought to be safeguarded: some rights, such as the right not to be wrongly convicted, may be defended on a philosophical basis, but the rights declared by the European Convention on Human Rights are recognized authoritatively and indeed brought into English law by the Human Rights Act 1998.”638

(2) Packer’s Models Second, the exclusion of normative approaches means – at least for some authors – excluding Packer’s models. For Packer, the shape of the criminal process mirrors the purpose and values of that process. Therefore, he sought to identify normative models that identified the basic values.639 The balance 633

Ibid., p. 127. See supra E. III. 4. c) aa) (1). 635 Requa, 46 Brit. J. Criminol. (2006), 965, 968; Hodgson, 11 Int’l J. Evidence & Proof (2007), 69. 636 Duff et al., in: Antony Duff et al., eds., The Trial on Trial, Vol. II (2006), p. 1; Requa, 46 Brit. J. Criminol. (2006), 965, 968; Johnstone, 17 Social & Legal Studies (2008), 137. 637 Ross Meyer, 28 Law & Soc. Inquiry (2003), 533, 533. 638 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 423. 639 Packer, The Limits of the Criminal Sanction (1969), p. 153; see also Sorochinsky, 31 Mich. J. Int’l. L. (2009), 157, 165; Fedorova, Equality of Arms (2012), p. 88. 634

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between Packer’s models would serve as a useful tool for assessing the values underlying a given system in the real world.640 Feely, for instance, argues that due process was a normative, idealised concept generated by the court, masking the empirical reality, which was actually much closer to crime control.641 Others, by contrast, did not see why Packer’s theory should be labelled as normative.642 Ashworth and Redmayne, for example, saw in Packer’s models two models as aids to interpreting trends in criminal procedure.643 They also denied an evaluative component of Packer’s work by stating that his models were designed as “interpretive tools, to enable us to tell (for example) how far in a particular direction a given criminal justice system tends, and they do not of themselves suggest that one approach is preferable to the other.”644 Rather, Packer proposed two conceptual models to describe the function of the criminal process.645 Be that as it may, whether Packer intended to say how a criminal process should be or whether he was only describing the process, the subjects of his analysis have been the basic principles of the process.646 He offered an analytic structure, which was said to encompass all possible value choices available to us in criminal procedure, such as reliability, efficiency, expeditiousness, finality, individual protection against abuse of power by the state and equality.647 The underlying value of the Due Process model is the value of the primary importance of the individual defendant and the related concept of limiting governmental power.648 The underlying value of the Crime Control 640 Cf. Aviram, 36 Law & Soc. Inquiry (2011), 237, 239. Frase, in: Association Internationale de Droit Penal, ed., Comparative Criminal Justice Systems (1998), p. 110, 118 (“The crime-control/due process models do imply a normative or goaloriented perspective, but still provide only limited guidance to policy-makers. Although such models serve to emphasise some of the most important competing goals at stake, they don’t tell us how to balance them.”). 641 Feeley, 13 Law & Soc’y Rev. (1979), 461 ff.; id. The Process Is the Punishment (1992); see generally Aviram, 36 Law & Soc. Inquiry (2011), 237, 240. 642 Generally about the application of Packer’s models Fedorova, Equality of Arms (2012), pp. 90 f. 643 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 39. 644 Ibid., p. 40; in the same vein Macdonald, 11 New Crim. L. Rev. (2008), 257, 300. 645 Sorochinsky, 31 Mich. J. Int’l. L. (2009), 157, 164. 646 Arenella, 72 Geo. L.J (1983), 185, 213–214, noting that Packer’s models lack specific procedural content and are concerned exclusively with which party, the state or the individual, should get the advantage in their adversarial contest; Damaška, 121 U. Pa. L. Rev. (1973), 506, 574–77. 647 Cf. Fedorova, Equality of Arms (2012), p. 88; Griffiths, 79 Yale L.J. (1969– 1970), 359, 361. 648 See Packer, The Limits of the Criminal Sanction (1969), pp. 163, 165 (“If the crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of ist successive stages is designed to pre-

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Model is the efficient suppression of crime.649 That does not necessarily mean, that Packer’s models are illsuited for conceptualising the process before the ICC. It is quite the opposite: his models serve as an important basis for modelling the ICC process. However, Packer’s models can hardly serve as the required blueprint or concept in the form of a “general jurisprudence”, because Packer himself admits: “The kind of model we need is one that permits us to recognize explicitly the value choices that underlie the details of the criminal process. In a word, what we need is a normative model or models.”650 By saying that his models “merely afford a convenient way to talk about the operation of a process”, he also declares these models to be what Twining would label as “talk about law”, i. e. external observations on law – something that is not suitable for the purpose of this study.651 (3) Packer Extended The same inclination towards value laden/normative or evaluative models applies for those theories that extend beyond Packer’s models. Regarding the “Battle model” for instance, Damaška remarked that “[l]ittle reflection is needed to discover that the ‘battle’ model exhibits a bias towards the contest form, central to the definition of the accusatorial process.”652 Moreover, King himself said about his theory: “Throughout this book I shall use the term ‘theory’ to refer to many general principles or set of principles formulated to explain the events in the world or relations between such events.653 Thus, his models may be suitable for the purpose of this study – sent formidable impediments to carrying the accused any further along in the process. [. . .] The aim of the process is at least as much to protect the factually innocent as it is to convict the factually guilty. It is a little like quality control in industrial technology. [. . .] The Due Process Model resembles a factory that has to devote a substantial part of its input to quality control. This necessarily cuts down on quantitative output.”). See also Macdonald, 11 New Crim. L. Rev. (2008), 257, 300. 649 Packer, The Limits of the Criminal Sanction (1969), pp. 159–160 (“The image that comes to mind is an assembly-line conveyor belt which moves an endless stream of cases, never stopping, carrying the cases to workers who stand at fixed stations and who perform on each case [. . .] the same small but essential operation that brings it one step closer to being a finished product, or, to exchange the metaphor for reality, a closed file. The criminal process, in this model, is seen as a screening process in which each successive stage [. . .] involves a series of routinized operations whose success is gauged primarily by their tendency to pass the case along to a successful conclusion.”) 650 Packer, The Limits of the Criminal Sanction (1969), pp. 153. 651 See supra E. III. 4. b) cc) (3). 652 Damaška, 51 Zbornik PFZ (2001), 477, 500. 653 King, The Framework of Criminal Justice (1981), p. 8.

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as Packer’s models in this regard are – because they “provide explanations for past social behaviour” and are therefore descriptive and explanatory. However, his focus on procedural principles would exacerbate a systematisation of the ICC process. Even if those authors provide descriptive and explanatory models, adding further models to Packer’s existing models increases the number of analytical categories that operate on different conceptual levels and are accordingly incommensurable. (4) Vogler’s Approach Whether Vogler’s theories are normative or descriptive is disputed. Richard Vogler himself would probably not be very happy to see his work classified as “descriptive”. Vogler conducts a historical analysis and concludes from this how criminal procedure should be designed.654 However, Paul Roberts has criticised this work for being largely descriptive despite his calls for a normative approach: “[Vogler] proceeds, instead, through fleeting hints and suggestions scattered throughout a predominantly descriptive narrative. The reader is clearly meant to understand that inquisitorial procedure is dangerously authoritarian and bloodthirsty. Having been hammered out on the flesh of wretches in the torture chambers of the ancien regime and later systematically codified by Napoleon (not exactly one of history’s good guys), its ‘lethal combination of bureaucracy, science and terror’655 has been congenial to despots and genocidal maniacs throughout the course of the 20th century. Today, Vogler informs us, inquisitorialism remains an obstacle to the implementation of human rights in criminal proceedings in Russia, China and throughout the Islamic world. Adversarial procedure, on the other hand, is clearly to be admired as an agent of liberty and human rights.”656

Indeed, reading Vogler’s book it is difficult to identify a dominating normative approach and only an optimistic reading would reveal that the deep descriptivism leads to a normative model of criminal justice. This is not the place to judge the quality of Vogler’s book657 but to classify it as descriptive or normative. Thus, I follow Paul Roberts when he says: “The consequence is that a book purporting to offer a normatively inspired world view of criminal justice, maintaining that criminal procedure ‘should not seek to 654

“The central argument of this book is that whatever mode of procedure is operated, it should not seek to exclude, significantly limit or disable the participation of any of these three legitimate interests in criminal justice”, see Vogler, Criminal Justice (2005), p. 16. 655 Ibid., p. 43. 656 Roberts, 28 OJLS (2008), 369, 370, 375. 657 Swoboda, for example, criticises Vogler’s historical view of the terms “adversarial” and “inquisitorial”, see Swoboda, Verfahrens- und Beweisstrategien (2013), p. 73.

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exclude, significantly limit or disable’ any of the three sanctified procedural methodologies, in reality contains essentially descriptive exegesis. It might more aptly have been titled A World History of Criminal Procedure Systems.”658

However, I also agree with him when he says: “For all that, A World View of Criminal Justice remains a treasure-trove of historical details, partially submerged subplots and incisive asides.”659 (5) Damaška’s Concept With regard to the requirement of being descriptive instead of normative, Damaška provides the best conceptual tool.660 He puts, in the words of Nijboer, “an analytical system of lines under or behind the existing systems. Damaška’s work gives you a grip to discuss a number of aspects of different procedural systems better. When we stick to Damaška’s analytical model instead of the traditional concepts as fixed background, I think we can avoid the conceptualisation of a system in devaluating concepts system.”661 Damaška’s categories serve as a perfect conceptual analysis662 or analytical tool663 to describe recent criminal procedure changes664 and explain665 the suitability of or problems with legal transplants.666 Damaška’s 658

Roberts, 28 OJLS (2008), 369, 370, 379. Ibid., 370, 390. 660 Nijboer, Beweisprobleme (1997), p. 178. 661 Nijboer, Beweisprobleme (1997), p. 178; Reimann, 82 Am. J. Int. L. (1988), 203, 206 (“In this second dimension he presents them as analytical tools that should, again like the system of chemical elements, ‘assist us in tracing similarities and differences in component parts’ (p. 3). As a result of this hybrid character, the book constantly mingles descriptive with analytical elements.”) 662 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 295, 325. About the conceptual analysis in more detail see von der Pfordten, in: Hage and von der Pfordten, eds., Concepts in Law (2009), pp. 17, 24 ff., who distinguishes between a a classical model and a reductionist-positivist model of conceptual analysis. 663 Grande, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 145 with reference to Damaška, 121 U. Pa. L. Rev. (1973), 506 ff. 664 Reimann, 82 Am. J. Int. L. (1988), 203, 206 (“In that sense, [Damaška’s models] are presented as a descriptive picture of the procedural universe, albeit in idealized form.”) 665 See also Shapiro, 35 Am. J. Comp. L. (1987), 835, 837 (“Nevertheless the two political variables often do help to ‘explain’ various similarities and differences between various national procedural systems at that intermediate level of explanation that is the best comparativists can usually hope to do and far better than they actually do most of the time.”); Reimann, 82 Am. J. Int. L. (1988), 203, 205. 666 Jackson and Langer, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 1, 12; Frase, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 351, 356 (“Damaška’s models were primarily de659

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strength is that he builds holistic, neutral and interpretive frameworks,667 without lapsing into reductionism or oversimplification.668 He himself emphasised that his approach would be “predominantly analytical and interpretive”,669 and he stated that his models “[were] meant to be used in seeking to understand the complex mixtures of arrangements, as means to analyze them in terms of their components, as one would study compounds in analytical chemistry.”670 Damaška’s models bring to light aspects of legal process which tend to be overlooked because they do not meet the normative expectations of orthodox procedural models.671 Thus, for the purpose of systematisation, Damaška’s models present a suitable blueprint, because he does not provide a specific (new) thesis but develops a systematic understanding of the process.672 Thus, in line with the “general jurisprudence” signed to categorise, describe, and explain procedural systems at a given point in time, and gave little emphasis to modelling of change or evolution in these systems. Nevertheless, his models can be used to generate predictions about how systems of a given type (or tending to one pole or the other on each of his two dimensions) should evolve. For example, an essentially hierarchical system would be expected to maintain key features consistent with that model, while eliminating or softening procedures inconsistent with the model.”); see also Frase, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 351, 356. 667 Tuinstra, Defence Counsel (2009), p. 107. 668 Koh, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 29, 31. 669 Damaška, Evidence Law Adrift (1997), p. 3. 670 Damaška, Faces of Justice (1986), p. 12. 671 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 302 (“First, the bridge to political theory constructed by Damaška provides an escape-route from the viciously circular logics of ‘adversarial’ and ‘inquisitorial’ conceptual models. Secondly, Damaška’s intersecting axes are better able to encapsulate the complexities of real legal processes (albeit still in the relatively abstract conceptualisations of an idealised model) than one-dimensional versions of the adversarial-inquisitorial dichotomy. Thirdly, the modular structure of Damaška’s basic conceptual buildingblocks facilitates modelling of relatively unusual combinations of features, which brings to light aspects of legal process which tend to be overlooked because they do not meet the normative expectations of orthodox procedural models. Fourthly, when set in comparative perspective, Damaška’s models of legal process demonstrate the perspectival nature of all conceptualisations of legal procedure, which are shown to be relative to the standpoint of the observer. This is a novel inflection of the too-little respected methodological truism that concepts are always ideologically loaded; or, in the language I introduced earlier, subject-matter is partly defined by motivation. This section elaborates on each of these four strengths in turn.”) 672 Allen and Alexakis, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 329, 332 (“In Faces of Justice, Damaška examines the procedure of common and civil law countries (in capitalist as well as socialist regimes) to develop a systematic understanding of how modern forms of justice manifest in different political contexts. This is not a truth-seeking endeavor. Damaška sets out

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that is needed to systematise the ICC process, he falls back on existing theories and distinguishes himself through the way in which he combines and applies them.673 bb) Sociological/Empirical As mentioned earlier, by using the word “empirical”, I am referring to a broad understanding, including “socio-legal studies”, “law and society” and “sociology of law”.674 However, by separately using “sociology of law”, I am using this term in a very narrow sense, applying theories and methods derived from the discipline of sociology to legal phenomena.675 The inclusion of sociological elements into the blueprint of a concept of how to systematise ICC procedure shifts the focus from legal rules to human interactions.676 An approach that includes sociological elements sheds light on the de facto course of events, in contrast to a pure legal approach, that makes normative assumptions about which law should ideally be applied.677 (1) Ideal-types A sociological method that supplements the systematisation of ICC procedure is the recourse to “ideal-types”. Ideal-types are social scientific constructions that select ideal or material elements found in the social world, and assemble them in a pure, internally consistent form so as to accentuate aspects of reality in a (consciously) one-sided manner.678 They are “ideal” in an analytical but not a normative sense,679 combining abstract generalisation and the interpretation of motives.680 An ideal-type does not imply an aspiration to mold reality to it.681 Ideal-types are models that are selectively to prove no specific thesis. He focuses his efforts on developing a ‘distinctive analytical framework’ that can be used to understand the interplay of legal systems and structures of governmental authority.”) 673 McConville, 497 Annals Am.Acad.Pol.& Soc.Sci. (1988), 172, 173. 674 See supra E. III. 4. b) bb); about the term “sociology of law” from a German perspective see the recent study of Machura, 8 Int. J.L.C. (2012), 506, 506 ff.; from a French perspective see Israël, 9 Int. J.L.C. (2013), 262, 262 ff. 675 In the same vein Twining, General Jurisprudence (2009), p. 227. 676 See, e. g. Griffiths, 5 Zeitschrift für Rechtssociologie (1983), 145. 677 Weber, Wirtschaft und Gesellschaft (1922), pp. 181 ff.; see in detail Petersen, Max Webers Rechtssoziologie (2008), pp. 16–17. 678 Weber, in: Shils and Finch, trans. and eds., The Methodology of the Social Sciences (1949), p. 90. 679 Ibid. 680 Zaret, 85 AJS (1980), 1180–1201; Ragin and Zaret, 61 Soc. F. (1982–1983), 731, 742.

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developed as aids to genetic explanation.682 With regard to the analysis of a legal system, the ideal-type “acts as a yardstick against which we might measure actual legal systems.”683 The identification of certain types and their comparison to the ideal-type promotes rationality684 and disregards irrational events.685 Thereby legal systems are classified by the formality and the rationality of their decision-making processes.686 In the words of Sanders: “Ideally, legal systems could be thought of as formal or substantive, rational or irrational. A legal system is formal to the extent that the norms it applies are intrinsic to the system itself. Substantive law, as the term was used earlier, should not be confused with the substantive dimension of Weber’s typology. A legal system is substantive in Weber’s sense to the extent that the source of the norms it applies is extrinsic to the legal system. For example, a legal system would be substantive if a court resolved disputes by reference to a religious rather than a legal code.”687

In contrast to the ideal-type stands the average type (Durchschnittstypus), which has empirical-statistical value.688 A second distinction must be made between ideal-types and ideals. Whereas an ideal is something against 681

Shivakumar, 105 Yale L.J. (1995–1996), 1383, 1401. Ragin and Zaret, 61 Soc. F. (1982–1983), 731, 741–742. Weber calls ideal types “genetic concepts” because structural properties of ideal types are often closely related to specific genetic issues, see Weber, The Methodology of the Social Sciences (1949), pp. 93, 106. 683 Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, 2nd ed. (2000), p. 1544, 1546 (“From the sociological point of view, perhaps the most important contributor to the early development of comparative law was that preeminent lawyer-social scientist, Max Weber. Weber’s contribution was in three parts. First, he developed the device of an ideal type, a stylized construct that represents the perfect example of a phenomenon. The ideal type acts as a yardstick against which we might measure actual legal systems. Second, using ideal types, he provided a typology of legal systems classified by the formality and the rationality of their decision-making processes. Ideally, legal systems could be thought of as formal or substantive, rational or irrational. A legal system is formal to the extent that the norms it applies are intrinsic to the system itself. Substantive law, as the term was used earlier, should not be confused with the substantive dimension of Weber’s typology. A legal system is substantive in Weber’s sense to the extent that the source of the norms it applies is extrinsic to the legal system. For example, a legal system would be substantive if a court resolved disputes by reference to a religious rather than a legal code.”) 684 Petersen, Max Webers Rechtssoziologie (2008), p. 136. 685 See generally Pfister, Die Entwicklung des Idealtypus (1928). 686 Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, 2nd ed. (2000), pp. 1544, 1546–1547. 687 Ibid., 1546–1547. 688 Weber, Wirtschaft und Gesellschaft (1922), p. 10; Petersen, Max Webers Rechtssoziologie (2008), p. 143. 682

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E. Interpretation of the ICC Disclosure Regime What is it?

How is it constructed?

Empirical work?

Evaluation?

Description

A theoretical construct which in practical terms is non-implementable

The one-sided accentuation of the key feature(s) of a particular perspective

Comparing the theoretical construct to current policies and trends may aid analysis and exposition

It could not sensibly be advanced for practical implementation

Example

The operational efficiency idealtype

The police/prosecutorial screening process is deemed to provide a perfectly reliable indication of legal guilt. The idealtype therefore insists on operational efficiency in the post-screening part of the process

In conjunction with the adversarial reliability ideal-type, it may be used to analyse situations where the demands of operational efficiency and reliability conflict

While it may be used to open up an evaluative discourse, it is not apt for use as an ideal because it is founded on a non-implementable premise

Source: Macdonald, 11 New Crim. L. Rev. (2008), 257, 310

Figure 21: The “Strong Ideal-type” and Its Use in Empirical and Evaluative Work

which one evaluates reality, an ideal-type has “no connection at all with value-judgments, and it has nothing to do with any type of perfection other than a purely logical one.”689 An ideal-type is formed “by the one-sided accentuation of one or more points of view and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to those onesidedly emphasized viewpoints into a unified analytical construct.”690 Additionally, Stuart MacDonald distinguishes three separate tools: strong idealtypes, weak ideal-types, and non-ideal-types.691 689 Weber, in: Shils and Finch, trans. and eds., The Methodology of the Social Sciences (1949), pp. 49, 97–98. 690 Ibid., p. 90. See generally Macdonald, 11 New Crim. L. Rev. (2008), 257 ff. 691 Macdonald, ibid., 304: “A strong ideal-type is a theoretical construct. It may be used in empirical work for analysis and exposition, but, since it could not sensibly be regarded as a prescription of what to exist, is not apt to be used in evaluative work. A weak ideal-type is also a conceptual construct, but, as well as being used in empirical work, it may also be employed in evaluative work as an ideal. A nonideal-type (such as the offensive approach to criminal law policy) is not a conceptual construct; it is a description of an actual strategy or approach. Like a weak ideal-type, it may be used in both empirical and evaluative work.” (fn. omitted).

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What is it?

How is it constructed?

Empirical work?

Evaluation?

Description

A theoretical construct which could also be advanced as a prescription of what ought to exist

The one-sided accentuation of the key feature(s) of a particular perspective

Comparing the theoretical construct to current policies and trends may aid analysis and exposition

The construct might be advanced as an ideal, and its features used as evaluative standards

Example

Jareborg’s defensive model

Based on the liberal notion that state power must be viewed with suspicion, it outlines what is considered necessary to protect individuals from abuses of state power

It may be used for analyzing and expounding the extent to which criminal law policy reflects the liberal concern to protect individuals from abuses of state power

It may be promoted as an ideal, and its individual features may be used as evaluative tools

Source: Macdonald, 11 New Crim. L. Rev. (2008), 257, 310

Figure 22: The “Weak Ideal-type” and Its Use in Empirical and Evaluative Work

What is it?

How is it constructed?

Empirical work?

Evaluation?

Description

It is not a theoretical construct, but rather a particular strategy or approach (historical or proposed)

By identifying and expounding the key features of a particular strategy or approach

By comparing it to current policies and trends, a nonideal-type may be used for analysis and exposition

A particular strategy or approach might be endorsed, and its features used to evaluate current policies and trends

Example

Jareborg’s offensive approach

A description of an emerging approach to criminal law policy which views the state as an ally and is geared towards efficient crime prevention

It may be used for analyzing and expounding the extent to which criminal law policy in a particular setting adopts the strategy of the offensive approach

A researcher might endorse the strategy of the offensive approach and use its features to evaluate criminal law policy

Source: 11 New Crim. L. Rev. 257, 310

Figure 23: The “Non-ideal-type” and Its Use in Empirical and Evaluative Work

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(2) Sociological/Empirical Elements Within the Said Models Packer’s models are criticised as seeing justice in black and white, while none of the systems presented are completely able to control and describe the dynamics of the justice system. Maybe for this reason, Griffiths, King, Choongh, Roach and others who extend Packer’s models tried to have regard to the wider social and political context,692 examining how close the resemblance actually is between the formal legal rules and the realities of criminal justice practices.693 King, for instance, includes various “theories of the court’s social function, such as ‘Justice; Punishment; Rehabilitation; Management of crime and criminals; Denunciation and degradation; and Maintenance of class domination.’”694 However, as Vogler correctly points out, this may be desirable and necessary but it cannot be undertaken successfully merely by adding extra “models” to Packer’s analysis, which is based upon rigidly circumscribed sub-systems.695 Unfortunately, Packer is in this regard greatly misunderstood. Paul Roberts pointedly states: “Packer’s reward for his ingenuity is thus to become a kind of Dr Frankenstein of criminal justice theory: a victim of his own fantastic creation, which (just like Mary Shelley’s original) was turned into a monster by other people’s lack of comprehension and insensitive handling.”696 Indeed, Packer was criticised not so much for what he includes in the two models he constructs, but mainly for what he leaves out,697 depending on the research interest of the critic.698 In my view, Packer’s models are artificial constructs 692

Vogler, Criminal Justice (2005), p. 8. Tanguay-Renaud and Stribopoulus, Rethinking Criminal Law Theory (2012), p. 201. 694 King, The Framework of Criminal Justice (1981), p. 12 (“Justice, Punishment and Rehabilitation may be seen as reflecting in a general way the attitudes of the regular participants in the magistrates’ court process as well as the uses that may be made of these courts to achieve certain policy objectives. Management of crime and criminals, Denunciation and degradation, and Maintenance of class domination, on the other hand, represent different social roles for the courts as proposed in sociological literature.” (fn. omitted)). 695 Vogler, Criminal Justice (2005), p. 8. 696 Roberts, 28 OJLS (2008), 369, 378. 697 Tanguay-Renaud and Stribopoulus, Rethinking Criminal Law Theory (2012), p. 193. Ashworth and Redmayne, for example, have pointed to the lack of sensitivity to victim-related matters in Packer’s work, see Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 41 (“Packer’s models make no allowance for victim-related matters. Again, this may be because there was far less consciousness of victims’ interests and rights in the 1960s, but it is a significant drawback in using Packer’s models today. Indeed, the models could probably not be adapted to accommodate this perspective: a new model would need to be added.”). King, on the contrary, does not really address this. See generally Walker and Telford, Designing Criminal Justice (March 2000), p. 5 with fn. 1. 693

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listing the features of a “pure” or extreme form of a particular approach.699 They provide the extreme positions on a specific issue and on the criminal justice system as an aggregate of all issues.700 Indeed, according to Macdonald, the features of the Due Process model, which are based on the value of prevention of abuse of state power, may be used as an ideal-type to analyse and expound trends in the criminal justice process.701 The same applies to Jareborg’s defensive model.702 Again, the most convincing models in this regard are the models of Damaška. By creating ideal-types – an ideal-type of coordinate judiciary as opposed to a hierarchical type; a conflict-solving ideal-type of justice as opposed to a policy-implementing ideal703 – Damaška describes and explains the differences in culture, history and social traditions that account for the contrast between different legal systems or processes.704 The hierarchical ideal is familiar to readers of Weber on bureaucracy.705 Some even see the combination of two independent sets of variables into four constellations as being borrowed from Weber.706 698 Aviram, 36 Law & Soc. Inquiry (2011), 237, 238–239 with further references (“Philosophers were drawn to the first part, which provided a diatribe against positivism and a sort of proto-economic argument about utilitarianism. The enthusiasm about part 3, which argued against using criminal sanctions in victimless crimes, was very timely, coinciding with huge changes in our approach toward, say, drug use, but fell out of favor in the era of attention to victims’ rights. What received the greatest amount of attention over the long term, therefore, was part 2, which contained the two models of the criminal process: crime control and due process. These drew much attention from social scientists and were later used to advance a variety of disciplinary and topical agendas that could not have been foreseen at the time of the book’s publication.” (fn. omitted)). 699 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 40. 700 Luna, 2 Buff. Crim. L. Rev. (1998–1999), 389, 420. 701 Macdonald, 11 New Crim. L. Rev. (2008), 257, 292, 299. (“The features of the due process model that are derived from the principle of equality comprise an ideal-type in the weak sense. They may be used in empirical work. By comparing these features to reality, they can be used to analyze the extent to which the criminal justice process reflects the liberal approach to the concern that justice is not dependent upon financial ability.”) 702 Ibid., 293; Aviram, 36 Law & Soc. Inquiry (2011), 237, 241–242. 703 Stein, 51 Mod. L. Rev. (1988), 659, 662–663. 704 Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371, 389; Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 300; Feeley, in: Feeley and Mayazawa, eds., Japanese Adversary, pp. 69–70 (“One of the few contemporary theorists who has systematically explored the relationship between the nature of state authority and the law and the legal system is Mirjan Damaska.”) 705 See Weber, Economy and Society (1978), pp. 212–301; Stein, 51 Mod. L. Rev. (1988), 659, 662–663; Vogler, Criminal Justice (2005), p. 9; Kagan, Adversarial Legalism (2003), p. 11.

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For Damaška, the shape of those processes is best explained as the result of socio-political factors, especially attitudes towards official power.707 Surely, Damaška’s connection between types of political states and types of legal processes is not new.708 What is new indeed is the linking of two types of political goals of the legal process to modern political theory: his conflict-solving and policy-implementing types of states can be traced back to the opposition between liberal political conceptions versus anti-liberal conceptions of the state, an opposition that has been crucial for theoretical political debates to this day.709 Damaška describes and explains the rules and practices of procedure by analysing the institutional environment and the political purposes of the administration of justice.710 Moreover, he takes into account the “law in minds” by including broader cultural attitudes toward governance and state authority.711 As Damaška himself memorably put it, “[t]o consider forms of justice in monadic isolation from their social and economic context is – for many purposes – like playing Hamlet without the Prince”.712 The criticism of Damaška’s models is that their empirical dimension is rather stunted. Damaška is criticised in that he “presents relatively few data from a range spanning twenty centuries, half a dozen countries and a variety of procedural forms. These data are so sparse and eclectic, and so carefully selected from a huge, all-encompassing pool, that their support for Damaska’s assumptions has little significance.”713 In fact, Damaška “never sought to fit all empirical data into his two-by-two grid.”714 However, his work is still empirical “at its core”, because it “tells a sociological story 706 See Weber, Max Weber on Law in Economy and Society, Rheinstein and Shils, trans., (1925/1954), pp. xlii–lii; see also Kronman, Max Weber (1983), p. 76. See generally Reimann, 82 Am. J. Int. L. (1988), 203, 205. 707 Reimann, ibid.; Stein, 51 Mod. L. Rev. (1988), 659, 662 (“It offers a political explanation of procedural arrangements and their variability, claiming that in most cases procedural systems are affected by prevailing political attitudes towards the legitimate functions of state authorities and their organisational structure.”) 708 See, e. g., Montesquieu, The Spirits of the Laws, Cohler, Miller and Stone, eds. (1989). 709 See, e. g., Rawls, Political Liberalism, 2nd ed (2005); Holmes, The Anatomy of Antiliberalism (1993). Generally Jackson and Langer, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 4, 23, 24. 710 Jackson and Langer, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 1, 5. 711 Koh, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 29, 31, 32. 712 Damaška, Faces of Justice (1986), p. 6. 713 Reimann, 82 Am. J. Int. L. (1988), 203, 207. 714 Allen and Alexakis, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 329, 334.

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linking the structure of legal procedure, and especially the trial, with the development of political authority and the goals of states.”715 For the purpose of this study Damaška’s empirical dimension is sufficient, because the inclusion of more empirical data will eventually increase the complexity of its models. Despite the different view of some authors, who criticise Damaška for a lack of differentiation,716 a systematisation of the ICC process calls for a general conceptualisation rather than models that strive to include all possible exceptions and peculiarities. Damaška’s ideal-types lie exactly in-between the most general adversarial-inquisitorial dichotomy and an approach of six to eight models that try to grasp procedural values. cc) Comparative Finally, and most importantly, the blueprint of criminal process I am looking for in order to systematise the ICC process needs to be based on comparative research. This, again, requires some clarification. (1) General Remarks on Comparative Law Research By using the term “comparative law”, I am referring to the systematic study of particular legal traditions and legal rules on a comparative basis.717 This has to be distinguished from the term “foreign law”, which is the study of a foreign legal system without expressly comparing it to any other legal system.718 Furthermore, for me comparative law is not a legal body of rules but a variety of methods analysing the law.719 Thus, to avoid misunderstandings, I will use the term “comparative law research”. Comparative law research can have a variety of useful purposes. First, recall that this study analyses how certain disclosure rules have been translated into the ICC system. In order explain whether they fit into the system, 715

See Shapiro, 35 Am. J. Comp. L. (1987), 835, 836. Shapiro, 35 Am. J. Comp. L. (1987), 835, 836 (“As indicated by these examples the model presented is not a rigid set of large pigeon holes. A particular nation’s entire legal and political system need not be put neatly in three and only three boxes. A particular nation may choose to intervene actively in some segments of life and not in others and use a hierarchically organized bureaucracy as the instrument of some of its interventions and not others.”) 717 Cf. de Cruz, Comparative Law, 3rd ed (2007), p. 3; Winterton, 23 Am. J. Comp. L. (1975), 69, 71. 718 Winterton, ibid., 70. See also Rheinstein, 5 U. Chi. L. Rev. (1938), 615, 616; Stevenson, 50 Colum. L. Rev. (1950), 613. 719 Kahn-Freund, 82 Law Quarterly Rev. (1966), 40, 41; de Cruz, Comparative Law, 3rd ed (2007), p. 5. 716

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it is not only necessary to know what the ICC system is, but also where those disclosure rules come from. Thus, comparative analysis supplements an analysis of the cultural and legal origin of certain procedural rules.720 In the words of Delmas-Marty: “In an ideal world, the architects of international criminal tribunals would draw upon the best examples of domestic institutional design from around the globe, suitably modified for the specialist task in hand. This, of course, is where Comparative Law should make its mark, not as the fountain of all wisdom, but as an indispensable contributor to an interdisciplinary conversation.”721 Second, comparative law research can improve the understanding of law in context by explaining722 reasons for differences and similarities.723 Third, comparative law research can provide a tool of interpretation for judges,724 since it is an important part of a broad contextual interpretation.725 Fourth, comparative law research can facilitate a general jurisprudence,726 because it identifies the similarities of different legal systems.727 For example, Röhl explicitly refers to the difference between Common Law and Civil Law,728 and the challenges that come with Europeanisation and/or globalisation. Through comparative legal research, it is possible to establish a consistent meaning of legal terms or concepts.729 Just as general jurisprudence does not reinvent the wheel and refers to existing theories, comparative law research encourages new courses of action that build on existing resources and potentials.730 Fifth, comparative law research facilitates the explanation of modes of thought.731 Consequently, the purpose of comparative law influences the methods of comparative law, which usually vary between “functional equivalence” and 720

Cf. Feeley, in: Nelken, ed., Comparing Legal Cultures (1997), p. 93. Delmas-Marty, 1 JICJ (2003), 13 ff. 722 For a discussion strongly (and perhaps too exclusively) emphasising explanation as an essential objective of comparative studies, see Merryman, in: Hazard and Wagner, eds., Law in the United States of America (1974), p. 81. 723 Örücü, in: Nelken and Örücü, eds., Comparative Law (2007), pp. 43, 53–54 66; see also Hug, 45 Harv. L. Rev. (1932), 1027, 1027. 724 Örücü, in: Nelken and Örücü, eds., Comparative Law (2007), p. 43, 55. 725 See supra E. III. 1. 726 Cf. Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 9 with reference to Rheinstein, Rechtsvergleichung, 2nd ed (1987), p. 30. 727 Nawiasky, Allgemeine Rechtslehre (1948), p. 3. 728 Cf. Röhl and Röhl, Allgemeine Rechtslehre, 3rd ed. (2008), p. 10. 729 Brugger, 11 Tul. Eur. & Civ. L.F. (1996), 207, 237 (“If possible, legal terms or concepts should have consistent meanings in all the places where they are being used. At the very least, their meanings should not conflict! To the extent that social values are represented by these norms, legitimacy is also furthered.”) 730 Kagan, Adversarial Legalism (2003), pp. 5–6. 731 Fikentscher, Modes of Thought, 2nd ed (2004), p. 44. 721

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the “problem-oriented” approach, “modelbuilding” and “common core” studies, the “factual” approach and “method in action”.732 Because the purpose of comparative law is the understanding and explanation of differences and similarities, comparative method is an empirical and descriptive research design733 that perfectly facilitates a general jurisprudence with regard to the systematisation of ICC procedure.734 As Örücü has pointed out: “Following the inquiry, a comparative lawyer is expected to describe, juxtapose, identify similarities and differences and then venture into the field of explanation. It is here that hypotheses are needed and it is here that real comparison starts. This explanation, this discovery of the raison d’etre for the differences and similarities, also necessitates moving from the domain of pure legal reasoning to that of contextual factors. [. . .] An explanation of findings, of exceptional and typical cases, an accounting for differences and similarities, is thus not just a necessary step in comparative research but is its essence.”735

(2) Damaška’s Contribution to Comparative Law Research Of all models outlined above, Damaška uses comparative law to the greatest extent and provides the most significant contribution to comparative justice studies in recent years.736 His strength is that he combines the comparative law tradition of historical scholarship with a sociological analysis of contemporary justice.737 His models provide a comparative tool for different procedural systems.738 Damaška does not conduct a detailed study of different features of legal systems and therefore refrains from micro-comparison.739 Instead, he conducts comparative modelling by creating “ideal732

In detail Örücü, in: Nelken and Örücü, eds., Comparative Law (2007), p. 43, 48. Ibid. 734 William Twining has remarked that comparative lawyers are concerned “with description, analysis and explanation, rather than evaluation and prescription”, see Twining, Globalisation and Legal Theory (2000), p. 185. For a “comparative contextual analysis” see Findlay, 50 Int’l & Comp. L.Q. (2001), 26, 31. 735 Örücü, in: Nelken and Örücü, eds., Comparative Law (2007), p. 43, 49. 736 Nijboer, Beweisprobleme (1997), pp. 125, 130–135; Feeley, in: Nelken, ed., Comparing Legal Cultures (1997), p. 93, 96; Luna, 42 Brandeis L.J. (2003–2004), 277, 285 (“The idea of comparative criminal procedure is certainly not new, nor is the summons for American academics to integrate the study of foreign penal practices into standard law school curriculum. During the 1970s, prominent legal scholars such as Mirjan Damaška, Abraham Goldstein, John Langbein, Rudolf Schlesinger, and Lloyd Weinreb were exploring the implications of a comparative approach to criminal procedure.”) 737 Vogler, Criminal Justice (2005), p. 8. 738 Nijboer, Beweisprobleme (1997), p. 178. 739 About micro-comparison see de Cruz, Comparative Law, 3rd ed (2007), p. 233. 733

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types”,740 i. e. tools that are not systems in themselves,741 which I see as a certain type of macro-comparison.742 Damaška found a way of highlighting the analytic and explanatory aspects of comparative law by creating models which entitle him to go beyond the usual “compare and contrast”.743 He moves the comparative debate “on to a search for what lies at the essence of the different systems and the underlying institutional and political forces that divide them”,744 avoiding a mere “taxonomic” classification.745 Here emerges the inseparability of sociological methods and comparative law research: the comparison between ideal-types and empirical cases reveals adequate causes and aids the understanding of – in this case – legal or procedural systems.746 By using Weberian ideal-types, Damaška recognised that the nature of a society’s legal system is shaped by the kinds of individuals who dominate it.747 Thus, he not only included the “law in the books” and “Law in action”, but also the “Law in minds”, as comparative law research of criminal justice systems tend to overlook the actors involved in it and the society that forms the backdrop to these processes.748 740 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 300; see also Shapiro, 35 Am. J. Comp. L. (1987), 835, 836 (“[Damaška] seeks to develop pure models for purposes of comparative analysis and so wishes to avoid creating two types of procedure labelled ‘inquisitorial’ and ‘accusatorial.’ He argues that those two labels have been too deeply infected with the actual practices of the Continent and the Anglo-American world to serve as tools of general comparative analysis.”) 741 Nijboer, Beweisprobleme (1997), p. 178. 742 Ragin and Zaret call this “Weberian comparison”, see Ragin and Zaret, 61 Soc. F. (1982–1983), 731, 744 (“Recall that a key feature of the Weberian strategy is the goal of explaining diversity. [. . .] Invariant relationships between different causes and types of revolutions would be established by applying the method of agreement to each type and the indirect method of difference between types.”) 743 Feeley, in: David Nelken, ed., Comparing Legal Cultures (1997), p. 93, 95. 744 Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 222. 745 Shapiro, 35 Am. J. Comp. L. (1987), 835, 837. 746 Cf. Ragin and Zaret, 61 Soc. F. (1982–1983), 731, 732, 748 (“Careful use of transhistorical propositions in formulating ideal types increases their heuristic value as middle-range concepts for comparative research.”); Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, 2nd ed (2000), pp. 1544, 1552– 1553. 747 Sanders, ibid., pp. 1546–1547. 748 Pakes, Comparative Criminal Justice, 2nd ed (2010), p. 3 (“Often history is important in order to understand how particular arrangements have come about in the first place. Criminal justice arrangements need to be contextualised so that we can understand how they work in relation to each other and how the nuts and bolts of arrangements fit together. We also need to find ways of deciding how criminal justice arrangements fit a country, a culture or a legal tradition.”)

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This approach of Damaška cannot be emphasised enough, because I see it as the essence of his work – the sociological, empirical, political and cultural dimension of his models that he developed to explain and describe a system becomes epistemologically valuable by Damaška’s method of (macro)comparison. It is often overlooked that comparative analysis in the social sciences on the one hand and comparative analysis in the sociology of law on the other hand do not necessarily embrace the same analytical tools.749 By creating his ideal-types, Damaška recognised this and provided clear blueprints as analytical tools for his – as Feeley calls it – comparative sociolegal study.750 This method even compensates for the empirical flaws of the system. In other words, because those flaws are inevitable when using a rather abstract concept, the empirical support for the veracity of the explanations of procedural forms is no longer weak but “vivid evidence of the models’ functional utility: the discussion of procedural realities provides examples for the insights these tools can generate.”751 In this regard, Roberts cites Damaška’s reference to Weber that such a world cannot be understood “without constructing analytical models through which to organise and interpret the empirical data which bombard our senses”.752 In conclusion, Shapiro evaluates the contribution of Damaška’s works to comparative law research: “I do not see how anyone seriously interested in comparative law could avoid reading it.”753 dd) Intermediate Conclusion Notwithstanding the risk of repetition, it is essential to recollect the purpose of this study once again: in order to conduct a contextual interpretation of certain disclosure rules, it is necessary to identify the procedural system of the ICC, because a contextual interpretation of pre-trial disclosure rules will always revolve around the role of the Pre-Trial Chamber and the role of the Prosecution. Those rather general questions call for a broad 749

Feeley, in: Nelken, ed., Comparing Legal Cultures (1997), p. 93. Ibid. (“Comparative lawyers bring their own understandings of the field when they embrace social science concerns, and social scientists do the same when they focus on law. But even within each field, even when there is conceptual clarity about scope, method and objective, there has been precious little scholarly, as opposed to practical, pay-off. Comparative sociolegal studies remain a problematic and ill-defined area of inquiry.”) 751 Reimann, 82 Am. J. Int. L. (1988), 203, 207. He continues: “In this regard, Damaska’s achievement is impressive. Here the book fulfills its ambitious promise to lead the reader beyond the conventional perspectives.” 752 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 300. 753 Shapiro, 35 Am. J. Comp. L. (1987), 835, 837. 750

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contextual interpretation, assessing, whether the understanding of certain disclosure rules is alien to the overall ICC procedural system or whether the understanding is in line with that system. Thus, a broad contextual interpretation makes assumptions about the translation of ICC disclosure rules into the ICC procedural system. However, a contextual interpretation without a previous characterisation of the system of procedural rules before the ICC is worthless. Therefore, the system of this process clearly must be meaningfully named. (1) Concluding Remarks on Wrong Modelling Unfortunately, the question of how to categorise the ICC’s procedural system remains unsettled due to the existence of too many labels. The most common label and models are the dichotomies adversarial/inquisitorial and Common Law/Civil Law respectively. I have shown how inconsistently those models are applied. Apart from the examples provided above, one last example of that inconsistent application shall be given: an ICTY President characterised the ICTY-RPE as “largely adversarial”,754 while others described them as continental in orientation.755 Moreover, Hazel B. Kerper writes in all seriousness:756 “Not all legal systems employ the adversary method of getting at the truth. In the Continental system of law, for example, the state is supposed to satisfy itself as to the guilt of the accused before it brings him to trial. Thus, when the trial begins he is presumed to be guilty, and must prove himself innocent.”757 The consequences of this wrong modelling are inconsistency and unpredictability of judgements and decisions – consequences that should not be underestimated. The reason for this is not that the “adversarial-inquisitorial” and “Common Law-Civil Law” models are useless. Unfortunately it became in vogue to reject the established dichotomy between inquisitorial and adversarial approaches altogether.758 This division may in fact be useful in 754 Statement by the President Made at a Briefing to Members of Diplomatic Missions, U.N. Doc. IT/29 (1994), quoted in Morris and Scharf, An Insider’s Guide to the ICTY, Vol. II (1995), p. 650. Others agree with this characterisation, see Ntanda Nsereko, 5 CLF (1994), 507, 508, stating that the ICTY “relied heavily on proposals from the U.S. government and from non-governmental organizations such as the U.S.-based Lawyers Committee for Human Rights”; Scharf, 30 N.Y.U.J. Int’l. Law & Pol. (1998), 167, 171 and fn. 18, noting that a U.S. draft provided the framework for ICTY rules. 755 See generally Amann, 75 Ind. L.J. (2000), 809, 843. 873 756 Nijboer, 5 Cardozo J. Int’l & Comp. L. (1997), 79, 81 96 remarks that this book was seriously used in law schools in the United States. 757 Kerper, Criminal Justice System (1972), pp. 182–183.

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order to gain a better understanding of why certain procedural approaches are selected over others.759 However, those who use these models have to clarify their meaning, as Máximo Langer did in the following example: “In this sense, it is important to emphasize from the outset that I will use the expression ‘adversarial system’ as a descriptive category, not as a normative ideal. As a normative ideal, the expression is sometimes used in the United States to refer to a criminal procedure where the rights of the defendant are fully respected, see, e. g., Mirjan Damaska, Adversary System, 1 Encyclopedia of Crime and Justice 24, 25 (Sanford H. Kadish ed., 1983), and the epitome of the adversarial system is the trial by jury. However, in this Article, I will use the expression ‘adversarial system’ as a descriptive category through which I will explain the current features of American criminal procedure in opposition to the current features of criminal procedure in continental Europe and Latin America. Similarly, the expression ‘inquisitorial system’ is sometimes used in a negative way to refer to authoritarian conceptions of criminal procedure. But in this Article, I will use the expression ‘inquisitorial system’ only as a descriptive category.”760

Unfortunately, such clear definitional remarks are rare. This results in the unreasonable depreciation (or preference) towards the other system or in the labelling of a system as “hybrid”, “mixed” or “sui generis”. Both assumptions could be perfectly correct if they are based on clarifications. However, they are mostly misleading as a descriptive matter, and of limited analytical use.761 Thus, I do not refuse to use those dichotomies in the course of this study.762 However, I refuse to use them to model the ICC procedure. 758

See, e. g., Summers, Fair Trials (2007). McGonigle Leyh, Procedural Justice? (2011), p. 69. 760 Langer, 45 Harv. Int’l L.J. (2004), 1, 4 fn. 20. 761 Frase, in: Association Internationale de Droit Penal, ed., Comparative Criminal Justice Systems (1998), p. 110, 115 identifies a further disadvantage: “[T]hey tend to obscure the many points of underlying similarity shared by all modern systems of criminal justice.” 762 With regard to the undifferenciated refusal to use the adversarial-inquisitorial dichotomy (this refusal, by the way, is as unreasonable as the incorrect and undifferentiated use of those models), Jackson, 68 Mod. L. Rev. (2005), 737, 746 makes an interesting remark: “The real limitation in using ‘adversarial’ and ‘inquisitorial’ models as benchmarks for determining the extent to which systems are converging or diverging, however, is not that the models cannot encapsulate a wide variety of evidentiary processes evident across the common law and civil law divide, nor that there can be disagreements on how the terms ‘adversarial’ and ‘inquisitorial’ should be used and applied. There are difficulties endemic in any exercise which attempts to make cross-cultural comparisons between legal systems and so long as we are careful to explain what we mean by these terms, they can still be useful in analysing shifts in direction within and between systems. The limitation is that, however broadly we attempt to use the terms, they cannot claim to be comprehensive, allinclusive categories and that by using them as though they were we may lose sight 759

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(2) The Inquisitorial/Adversarial Dichotomy and Damaška’s Concept For this and other reasons, many scholars lost interest in the adversarial/ inquisitorial distinction, using theoretical constructs designed to provide a broader perspective for procedural reforms instead.763 After I outlined those theoretical constructs above, I had decided that Damaška’s concept is the most suitable one for: a) the description of the ICC process; and b) in order to lay the foundation for a broad contextual interpretation. However, I never said that other existing models are flawed or incorrect; some of them are indeed, others are not. Instead, I have simply compared those models or concepts to the needs of this study. To identify that need or purpose, I borrowed from legal theory/jurisprudence by deciding that the concept I am looking for had to create a general jurisprudence for the ICC process. I then concluded that Damaška provides such a concept. Apart from this suitability, his strength is that his models provide a more differentiated picture than the adversarial-inquisitorial dichotomy, but refrains from the attempt to increase comprehensibility by increasing the amount of models.764 By including a great variety of elements, his concept is the closest to a general jurisprudence of the ICC procedure: he builds a bridge to political theory, is able to encapsulate the complexities of real legal processes,765 and create models of relatively unusual combinations of features by using Weberian ideal-types.766 His work is not a suggestion of what procedure should look like but how it could be modelled and analysed. This is the difference to the work of Burns, for example, which is normative and highlights certain aspects of the trial that are only relevant for realising the practical intelligence of American juries in carefully qualified senses of that term.767 Most of certain processes at work which cannot be categorised as either ‘adversarial’ or ‘inquisitorial’ at all, no matter how broad or deep our perspective.”) 763 Damaška, 51 Zbornik PFZ (2001), 477, 499; Nijboer, Beweisprobleme (1997), p. 178. 764 Jackson and Langer, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 1, 5 (“In addition, the combination of the organisation-ofauthority and political-goal axes creates a bi-dimensional framework of analysis that offers a more nuanced and flexible alternative than the adversarial inquisitorial dichotomy.”) 765 Lempert, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 395, 413 (“Professor Damaška’s great book, The Faces of Justice and State Authority, opened its readers’ eyes to how Anglo-American and Continental legal procedures articulate with the societies in which they are found, and it alerted readers to issues that arise in considering this articulation.”) 766 Roberts, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 295, 299. 767 Smigelskis, 95 Nw. U. L. Rev. (2000–2001), 1015, 1017; Carlson, 22 Just. Sys. J. (2001), 101, 101.

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importantly, Damaška’s models embrace the differences of legal thought between Common Law and Civil Law. This demonstrates the aforementioned utility of those dichotomies, not as models in themselves, but as features of Damaška’s ideal-types. The combination of sociological, empirical and political elements with the use of ideal-types allows an insight that the nature of a society’s legal system is shaped by the kinds of individuals who dominate it.768 (3) Predictability and Weberian Ideal-types There is an important connection between Weber’s ideal-types on the one hand and the predictability of procedural decisions that I have demanded at the beginning of this study on the other: according to Weber, the creation of ideal-types and the comparison of certain events with this ideal-type facilitates the rational assessment of those events as a whole769 and the exclusion of irrational moments.770 Applied to the analysis of a legal system: a legal system is rational if it yields results that are predictable from the facts of cases, i. e. if case outcomes are determined by the reasoned analysis of action in light of a given set of norms. A legal system is irrational when outcomes are not predictable in this way.771 In other words, the use of Weber’s ideal-types shall ensure that similar cases are decided similarly.772 Nevertheless, creating ideal-types is not only a reaction to my demand of 768 nd

Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, 2 ed (2000), pp. 1544, 1546–1547, giving the following example: “On the European continent, in the absence of a powerful central court, domination fell into the hands of the university law faculties who strove, through the promulgation and interpretation of authoritative texts, to create and understand the legal system as a general and autonomous set of rules. The common law in England, on the other hand, grew under the tutelage of a small elite judiciary and an accompanying centralized bar, more concerned with pronouncing rules for the settlement of disputes than with developing generalized rules of law. In time, the differences in the legal systems created by these different sets of legal actors helped to spur interest in comparative legal systems.” 769 Weber, Wirtschaft und Gesellschaft, 5th ed (1985), p. 2; von Schelting, 49 Arch.Sozialw.und Sozialpol. (1922), 623 ff. 770 Pfister, Die Entwicklung des Idealtypus (1928); see also Petersen, Max Webers Rechtssoziologie (2008), p. 135. 771 Sanders, in: Borgatta and Montgomery, Encyclopedia of Sociology, Vol. III, nd 2 ed (2000), p. 1544, 1546. 772 Ibid. (“A formally irrational system exists when the legal order produces results unconstrained by reason. Classic examples are judgments following consultation with an oracle or trial by ordeal. Substantive irrationality exists when lawmakers and finders do not resort to some dominant general norms but, instead, act arbitrarily or decide upon the basis of an emotional evaluation of a particular case. Weber apparently had in mind the justice dispensed by the Khadi, a Moslem judge

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predictability, but also reflects a contextual method of interpretation, since creating types has always been the challenge of legal methodology.773 In contrast to a “definition”, where every requirement or element has to be on hand,774 a type is an “elastic framework of characteristics” (elastisches Merkmalsgefüge), to which a certain situation merely needs to correspond as a whole,775 while it is not necessary that all elements has to be on hand.776 Thus, what matters is the overall picture.777 A final remark has to be made: so far, the demand for consistency and predictability of ICC decisions (in this case with regard to procedural problems of disclosure) has been the overriding objective of this study. I repeatedly stressed that because predictability and consistency is needed, a broad contextual interpretation is necessary. And because this interpretation is necessary, a concept to systematise the process is needed. This is very obvious: it all relates to the demand for certainty, predictability and consistency. However, I must admit that this is a vicious circle: although certainty, consistency and predictability are important features in both Civil Law and Common Law traditions, their weight and the way how those features are implemented in those traditions differ: In Common Law, many of those features are usually discussed in more functional terms and not elevated to the level of dogma.778 They are also achieved by giving the force of law to judicial decisions, something theoretically forbidden in Civil Law.779 In Common Law, consistency is usually achieved by precedent – a feature that in this form exists neither in Civil Law nor at the ICC. Thus, the demand for certainty, consistency and predictability as a dogma anticipates somewhat the result of this study and implies a priori that the ICC process is shaped according to Civil Law. This is unintended and deserves who, at least as Weber saw him, sat in the marketplace and rendered judgment by making a free and idiosyncratic evaluation of the particular merits of each case.”) 773 Leenen, Typus und Rechtsfindung (1971); see also Hassemer, Tatbestand und Typus (1968); Drüen, StuW (1997), 261 ff.; Strahl, Die typisierende Betrachtungsweise im Steuerrecht (1996); Hempel and Oppenheim, Der Typusbegriff im Lichte der neuen Logik (1936); Wolff, 5 Studium Generale (1952), 195 ff. 774 Strache, Das Denken in Standards (1967); Kuhlen, Typuskonzeptionen in der Rechtstheorie (1977); id., in: Koch, ed., Juristische Methodenlehre (1976), pp. 53 ff.; Zippelius, in: Bockelmann, ed., FS Engisch (1969), pp. 224 ff.; id., 2 JbRSoz. (1972), 482 ff. 775 Larenz, Methodenlehre, 6th ed (1991), p. 200. 776 Leenen, Typus und Rechtsfindung (1971), pp. 28, 34 ff. 777 Larenz, Methodenlehre, 6th ed (1991), p. 451; see generally Petersen, Max Webers Rechtssoziologie (2008), p. 150. 778 For the example of “certainty”, see Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 49. 779 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), pp. 49, 50.

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the following clarification: The result of the survey of what procedural system the ICC has (applying the concept of Damaška) also influences the rather theoretical questions I ask at the outset: does the ICC system consequently provide for strong certainty, predictability and consistency? (Recall that subsequent to the observation that the ICC decisions referred to prove a certain extent of inconsistency and unpredictability, I pointedly asked, “so what?”) In case I conclude that the ICC system promotes Common Law thinking, this question must be answered in the negative and this study proves that nothing really has to be changed. Closely associated with the demand for certainty, consistency and predictability is the second theoretical question which I asked at the outset: is the specification of how a broad contextual interpretation should be conducted supposed to provide the judge with an interpretative method to find the correct and definitive answer; or is the specification of how a broad contextual interpretation should be conducted supposed to provide the judge with methods to justify why he chose one answer out of others? The answer to the greatly discussed philosophical question of whether there is a “right” answer is independent of any legal tradition or legal background. However, the approach to that answer does indeed depend on the legal tradition, as Damaška has impressively shown. In his article “A Continental Lawyer in an American Law School: Trials and Tribulations of Adjustment”780 he proved that there is reversible relationship between the nature of a legal system and patterns of legal education. The interesting argument of this article for the purposes of my study is that the approach to the question of one right answer/several correct answers is dependent upon the legal system and/or legal tradition. As Damaška states: “The Continental will seek the right solution; his counterpart will display a liberal agnosticism about ‘right’ answers, coupled with a procedural outlook. He will be primarily concerned about good arguments for a case.”781 This is the reason why Max Weber denied the Common Law the rationality of finding782 a legal decision, and stated that the English finding of justice cannot be qualified as “applying the law”, as the Civil Law does via logic.783 This short, extraordinary contention means nothing less than that all the attempts of legal philosophers to answer the right answer/correct answer question will lose their claim of truth if the person who answers this ques780

Damaška, 116 U. Pa. L. Rev. (1968), 1363 ff. Ibid., 1375. 782 About the difference between finding and justifying a decision see supra D. III. 783 Weber, Wirtschaft und Gesellschaft, 5th ed (1985), p. 510. See also Petersen, Max Webers Rechtssoziologie (2008), p. 54. 781

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tion disregards his own legal background. Bix was aware of that, when he remarked: “[M]y examples are all drawn from the American legal system, and I do not presume that they exemplify any (necessary or essential) aspect of all legal systems. I see no reason to believe that [. . .] the dynamics within the structure (the criteria of evaluation used within the system that sometimes allow one to speak of there being more than one correct – or ‘acceptable’ – answer to a legal question) are present in all other, or even most other, legal systems. [. . .] It is conceivable that someone could put forward an argument that systems which condone strong discretion by their decisionmakers, or that are structured in such a way that there are not always unique correct answers to legal problems, are not ‘really’ legal systems (or not legal systems ‘in the fullest sense of the term’).”784

This suggests that renowned scholars like Hart and Dworkin “have limited themselves to the Anglo-American tradition they know.”785 Surely, this can be disputed and the said authors would probably not be very happy with this assessment. However, that does not change the fact that the approach to that question is indeed dependant on the legal tradition. “Approach” in this regard means that the question is not whether there are right or correct answers. The way to ensure certainty, consistency and predictability would be to create a legal system in which there are unique correct answers to all legal questions,786 which even legal philosophers coming from a Civil Law tradition have labelled as rather naive.787 Instead, the question is whether to seek right answers. As James Q. Whitman puts it: “The Continental systems tend to seek answers that are not only correct but also definitive. They tend to treat the rule of law as requiring that all legal officials will generally produce the same answer to any given question. Other legal traditions, including the American, tend to devote themselves to the search for correct answers in a way that largely excludes the possibility that those answers could be definitive.”788

This difference is not a mere theoretical one, but has large practical implications: it makes assertions about the extent of judicial authority;789 the 784

Bix, Law, Language and Legal Determinacy (1993), p. 95. Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371. 786 Cf. ibid., p. 374. 787 Ibid., p. 377. 788 Ibid., p. 371. See also Zimmermann, 20 Syracuse J. Int’l L. & Com. 1994, 217, 218: “This way of ‘Europeanizing’ our private law has been highly unsatisfactory so far. We are dealing with no more than fragments of uniform law, inserted rather inorganically, and in a ‘higgledy-piggledy’ fashion, into the various national legal systems. Rather than having gained in coherence, rationality, and predictability, the law has tended to become disjointed. Its application has not been streamlined, but has, instead, acquired a new dimension of complexity.” 785

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“grammar of law”790 or structural concepts, respectively;791 predictability;792 certainty;793 and the manner of decision-making.794 What has already been mentioned by describing the different modes of thought of Common and Civil Lawyers,795 now has a far greater dimension: in a survey that dedicates itself to the description of the criminal process before the ICC and that claims to do this by using (Damaška’s) models, which incorporate inter alia the “law in minds”, elements of that legal thinking such as seeking the right/correct answer including the manner of decision-making and the commitment to certainty, predictability and consistency depend on the classification of the system and not vice versa. In other words: while in domestic legal systems the method of legal thinking is rather fixed (because it is influenced by a legal tradition that has evolved over centuries and shaped the minds of the individuals), at the ICC level, the method of 789

Whitman, ibid., p. 378 (“Anglo-American philosophers give the impression of being far less concerned with the dangers of judicial authority. For Continentals, especially but not exclusively the French, the problem of right answers has always been, at base, the problem of limiting the scope of judicial decision-making authority. The Continental tradition presupposes a kind of sharp tension between rule of law and rule of men. Correspondingly, for Continentals, any maximalist understanding of judicial discretion smacks of philosophical radicalism. Anglo-American philosophers, by contrast, are generally relatively untroubled by judicial authority.”) 790 Damaška, 116 U. Pa. L. Rev. (1968), 1363, 1365. 791 Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371, 380 (“Indeed, Americans were ‘sceptical at best of the usefulness of the curious conceptual structure[s]’ of the Continent. Instead, they devoted themselves to an argumentative mode, seeking the ‘best arguments’ for a given case. And panoramic views were nowhere to be found.”). 792 Kagan, Adversarial Legalism (2003), p. 110 (“In all legal systems most civil cases are settled before trial, as the litigants, advised by their lawyers, come to recognize what their chances would be in court. The cases that go to adjudication are likely to be those in which litigants can’t agree on the likely outcome. Hence in all countries the cases that reach adjudication involve a relatively large amount of legal uncertainty. Yet, it appears that legal unpredictability in the civil justice systems of the United States [. . .] is greater than in many other economically advanced democracies.”) 793 According to Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371, 382, Europeans are “far more committed than Americans to minimising uncertainty to the extent possible.”. 794 Ibid., p. 385 (“The American common law often looks a caricature of the common law tradition, and this is also true of our jurisprudence. American courts take the case-law approach utterly seriously: We are trained to decide the case before us using the most minimal possible jurisprudential means. [. . .] The consequence of this American minimalism is that courts scrupulously avoid exploring all the issues presented by any particular area of law. Indeed, it is common for our Supreme Court to ‘reserve’ questions – that is, to refuse expressly to decide important questions raised by the case before the Court.”) 795 See supra E. III. 3. a).

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legal thinking must be determined first (because a legal tradition has not grown over centuries but must be created). In concreto: whether varying decisions on the same disclosure problem are permissible or not depends on how ICC procedure is systematised, because systematisation influences the understanding of certain concepts. England, for instance, faces great difficulties under the Human Rights Act 1998, as English criminal law must now deal with Continental concepts of “legality” and “certainty” that have no place in its jurisprudence.796 Furthermore, recall the quote of Merryman: “Thus, the desire for certainty is an argument in favor of stare decisis in the common law tradition, whereas it is an argument against stare decisis in the civil law tradition.”797 In sum, the systematisation of ICC procedure (using Damaška’s models) not only specifies a contextual interpretation of certain disclosure rules, but also determines whether it is permissible to interpret the rules differently, depending on which Chamber deals with them. Indeed, should the result be that such inconsistency is permissible, the implications a systematisation will have on a contextual interpretation lose their practical relevance (and large parts of this study would, too). However, anything other than accepting those consequences would create the spirit of bias that inhabits the many quotes and decisions I have previously labelled as “wrong modelling”.

IV. Damaška and ICC Procedure In the course of the study, to describe the characteristics of the ICC process, I will follow the structure of Damaška’s “Faces of justice” to the greatest extend possible. That means, that I not only adopt his concept but also the structure of his study. This shall ensure an accurate alignment with Damaška’s ideal-types. Thus, I will first analyse the organisation of authority at the ICC in a general sense, assessing whether this organisation of authority resembles the hierarchical ideal or the coordinate ideal. After that, I will assess whether the ICC in general provides for conflict-solving or policy-implementing justice. Although both forms of justice are assigned either to a reactive or to an activist state, I will show that the word “state” does not reduce the potential for application of those ideal-types. Subsequent to an assessment of the organisation of authority and the form of justice in general, I will draw the attention on the procedural forms of those ideals, i. e. I will assess whether the ICC process shares similarities with 796 According to Whitman, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 371, 387. 797 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 49.

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the process before hierarchical or coordinate officialdom and whether the process resembles the conflict-solving or policy-implementing type of proceeding. Before I start, it is important to emphasise that I raise no claim to completeness. This is not an empty formula but an unfortunate confession, because the persuasiveness of Damaška’s concept increases with the completeness of the application of that concept. Recall what I said about the advantages of this concept: Damaška’s models allow a more differentiated view to the criminal process than other models do. This diversity decreases with an incomplete application of the models. However, for two reasons I cannot avoid incompleteness: first, almost every procedural aspect before the ICC is a matter of dispute. Therefore, second, to analyse every procedural aspect would go beyond the scope of this study. Instead, I will only analyse those procedural elements that are important for answering the procedural questions I initially asked. In other words: I will analyse every procedural aspect of the pre-trial disclosure problems I outlined. 1. Organisation of Authority and Form of Justice in General As previously described, hierarchical structures of authority are characterised by the professionalisation of officials, a strict hierarchical ordering and technical standards for decision-making, a “logical legalism”798 that values logical consistency more highly than individual justice.799 By contrast, “coordinate officialdom” is marked by lay people performing official duties, who belong to a “single echelon of authority”,800 which similarly applies to judicial authorities.801 Damaška’s second pair of procedural models refers to the notions of the state: the “reactive state” and the “activist state”. The task of the reactive state is limited to “providing a supporting framework within which its citizens pursue their chosen goals.”802 The form of state embraces a laissez-faire philosophy. The type of proceeding in a reactive state is “conflict solving”803, which has the character of a contest between two formally coequal disputants before the state official as the neutral decision maker.804 A reactive state would only intervene in a conflict, if the parties themselves cannot solve this conflict. By contrast, in an acti798 799 800 801 802 803 804

Damaška, Faces of Justice (1986), p. 23. Ibid., pp. 18–23. Ibid., p. 16. Ibid., p. 57. Ibid., p. 73. Ibid., p. 97. Ibid., pp. 73–80 and 97–147.

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vist state, state interests prevail over individual interests.805 The type of proceeding in an activist state is not conflict solving but “policy implementing”, i. e. the justice system is considered an instrument to implement policies.806 At first sight, Damaška’s concept, which inter alia refers to an activist and reactive state, appears to be difficult to apply to a system that lacks a state.807 However, that does not necessarily mean that a structure of authority does not exist at the ICC. The question that has to be asked is: does the absence of a state mean that Damaška’s categorisation is not applicable internationally? This – at least implicitly – is reminiscent of those authors who identify the procedural system of the ICC as “sui generis”. a) Hierarchical or Coordinate? Not many authors have tried to view the ICC with special regard to its structure of authority. Those who have generally started by asking the question of whether an international state, an international society, an international community,808 an international constitutional order,809 or an international legal system810 exist.811 I doubt that the answer to that question would be as significant as the great amount of books and articles written about it suggest. Even the question of whether law can exist at all without a state812 – 805

Ibid., p. 87. Ibid., pp. 82, 84. 807 Cf. Swart, 6 JICJ (2008), 87, 94. 808 See Paulus, in: Armstrong, ed., Routledge Handbook of International Law (2009), pp. 44–54; generally id., Internationale Gemeinschaft (2001); Ambos, 33(2) OJLS (2013), 1, 5–6 with further references. 809 See Ambos, ibid., 11–12 with further references. 810 See D’Amato, in: Armstrong, ed., Routledge Handbook of International Law (2009), pp. 101, 103; Shany, 20 EJIL (2009), 73, 74. 811 Cf. Ambos, 33(2) OJLS (2013), 1, 6: “ICL lacks a consolidated (supranational) punitive power in its own right.”; Tuinstra, Defence Counsel (2009), pp. 125, 126: “Whether the world should be charactarised as a coordinate or as a hierarchical society depends on how its structure of authority is branded. That international criminal justice has been envisioned as a force of global governance, does not imply that a central authority on a global level exists according to which the world is ‘governed.’ But although there is no government of the world, there are indicators that an international community as such exists. These include a ‘system of international . . . law’, ‘a universal system of diplomacy’, ‘a world economy’ and numerous international organisations.” 812 Hobbes, Leviathan (1996 [first published 1651]), pp. 111 ff.; Kelsen, Translation of the First Edition of the Reine Rechtslehre (trans. by Litschewski Paulson and Paulson, 1992), p. 97: “[T]he state – essentially metalegal in character, some kind of powerful macro-anthropos or social organism – is a presupposition of the 806

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a result of the renaissance of the legal pluralism theory813 – is not of high relevance for this study, since it ignores that “there is already an existing, albeit incipient, supranational (legal) order”.814 The closest institution to a world government and a world legislator is probably the U.N. The U.N. Security Council has developed ways of exercising legislative functions, for example the creation of the ad hoc tribunals (ICTY/ICTR).815 Because almost all of the states of the world are members of the U.N. and resolutions of the Security Council are legally binding under Art. 25 of the U.N. Charter, for some authors, this practice of the Security Council constitutes legislation.816 Moreover, the United Nations as the “world organisation” attempts to establish a hierarchical structure within the international community in analogy to the domestic state.817 As Paulus remarks, the U.N. Charter “seems to closely reproduce the constitutional state with executive (the Security Council), legislative (the General Assembly) and judicial (the International Court of Justice) branches.”818

law and is at the same time a legal subject presupposing the law because beholden to the law, because obligated and granted rights by law.” Kelsen, Reine Rechtslehre, 2nd ed (1983 [repr.]), p. 290: “Wird der Staat als eine soziale Gemeinschaft begriffen, kann diese Gemeinschaft [. . .] nur durch eine normative Ordnung konstituiert sein. Da eine Gemeinschaft nur durch eine solche Ordnung konstituiert sein kann (ja, mit dieser Ordnung identisch ist), kann die den Staat konstituierende normative Ordnung nur die relative zentralisierte Zwangsordnung sein, die wir als staatliche Rechtsordnung erkannt haben.” Jakobs, 141 GA (1994), 1, 13: “Ohne staatliche Gewalt gibt es kein staatliches Recht.” Generally also Kadelbach and Günther, in: id., eds., Recht ohne Staat? (2011), pp. 9 ff. About the important issue of the validity of (international legal) norms see Ambos, 33(2) OJLS (2013), 1, 9 ff. with further references. 813 Kadelbach and Günther, ibid., p. 10 with further references. See also DelmasMarty, Ordering Pluralism (2009, translated by Norberg), p. 2 (“[J]urists must abandon both utopian unity and illusory autonomy, and explore the possibility of reciprocal procreation between the one and the many. To convey the idea of movement, this process could be called ‘ordering pluralism’.”). 814 Ambos, 33(2) OJLS (2013), 1, 11; Habermas, Zur Verfassung Europas (2011), p. 34: “Auch die Institutionalisierung der Menschenrechte hat Fortschritte gemacht – [. . .] vor allem mit der Einrichtung internationaler Gerichte wie des Europäischen Gerichtshofs für Menschenrechte, verschiedener Kriegsverbrechertribunale und des Internationalen Strafgerichtshofs. [. . .] Gerade an diesen Fällen zeigt sich aber die Problematik des Versuchs, eine einstweilen nur in Bruchstücken institutionalisierte Weltordnung voranzutreiben.” 815 Rosand, 28 Fordham Int’l L.J. (2005), 542, 562; Kirgis, 89 AJIL (1995), 506, 522. 816 See, e. g., Payandeh, 21 EJIL (2010), 967, 983–984. 817 Paulus, in: Dekker and Werner, eds., Governance and International Legal Theory (2004), p. 59, 63. 818 Which, however, is only “half of the truth”, see ibid., pp. 63 ff.

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However, for two reasons I doubt the relevance of these legislative features for determining whether the ICC has a hierarchical or coordinate structure: first, the primary rules of international law primarily come into existence through contractual agreements between states or through the cumbersome process of customary international law.819 Second, and more importantly, unlike the ICJ, the ICC is not part of the U.N., nor is it a subsidiary organ of the Security Council like the ICTY and ICTR.820 The ICC was established by treaty and not by a decision of the Security Council, as the ICTY and ICTR were.821 Thus, the ICC is an independent international organisation, which is not part of the United Nations system.822 International organisations are social constructs,823 created by people in order, presumably, to help them achieve some purpose, whatever that purpose may be.824 The bodies or persons who create the international organisations can be labelled as “mandate providers”, i. e. “international organizations and member states that jointly create, fund, and monitor international courts, and that exercise certain powers of control over their operations.”825 Since Damaška’s concept is analytical and descriptive,826 he described the structure and function of a state but actually never – neither explicitly nor between the lines – suggested that this concept could only be applied to states. In fact, Damaška himself explained: “The idea for this book stemmed from a felt need to reconcile my native and my adopted legal cultures.”827 Thus, his book resulted from his experiences of the administration of justice and legal cultures within different states, but is not necessarily confined to states. Why could the administration of justice not be defined by “mandate providers”, who “are collectively responsible for formulating and periodically revising the courts’ legal mandates, typically through a treaty or a resolution by an international organization” and who “may even terminate the operation of a court whose existence is no longer deemed effective, efficient, or cost-effective”?828 The “mandate providers” 819

Art. 38 ICJ-Statute. Beigbeder, International Criminal Tribunals (2011), p. 189; about the relationship between the ICC and the UN Security Council see in more detail Aloisi, 13 ICLR (2013), 147 ff. 821 Beigbeder, ibid. 822 See the website of the ICC , last visited 22 December 2013; See also Schabas, Introduction to the ICC, 4th ed (2011), p. 371. 823 Cf., e. g., Biersteker and Weber, eds., State Sovereignty as Social Construct (1996). 824 Klabbers, International Institutional Law (2002), pp. 7–8. 825 Shany, 106 Am. J. Int. L. (2012), 225, 240. 826 See supra E. III. 4. c) aa) (5). 827 Damaška, Faces of Justice (1986), p. xi. 820

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can be seen as the 120 states who voted in favour of the ICC-Statute,829 thereby establishing the ICC by an international treaty,830 which came into force on 1 July 2002,831 and the Assembly of States Parties (consisting of 119 states), which Ambos describes as “the political, decisionmaking organ of the Court.”832 As a treaty is governed by international law, so too is the organisation.833 This organisation is characterised by internal coordination.834 The Court has four organs: the judicial chambers; the Presidency; the Office of the Prosecution; and the Registry.835 There is no explicit hierarchy between those organs and they are rather belonging to a “single echelon of authority”.836 There is also an external coordination to some extent: “Complementarity puts the Court on equal or even subordinate hierarchical footing vis-à-vis national courts, as it faces considerable restrictions in its authority to compel deference and issue orders to states and other entities.”837 The ICC-Statute is thus built on horizontal cooperation and not on a vertical hierarchy.838 The Assembly of States Parties (ASP) is both the legislative and governing body of the Court.839 They meet periodically to elect Court officials, to approve the budget of the Court, and to undertake other administrative oversight functions.840 Each state party has one representative to the Assembly who may be accompanied by alternates and ad828

See, however, Swoboda, Verfahrens- und Beweisstrategien (2013), p. 70, who claims that Damaška’s models are inapplicable outside of state structures of authority and because international courts are not integrated in a state structure of authority and therefore do not answer to a superordinate type of state, they cannot be assigned to his models. 829 Seven states voted against the statute, 21 states abstained from voting, see Satzger, International and European Criminal Law (2012), § 12 mn. 2. 830 Ambos, Treatise on International Criminal Law, Vol. I (2013), pp. 24–25. 831 Sixty States were required to become parties to the Statute before it came into force, see Wilmshurst, in: Cryer et al., eds., Introduction to International Criminal Law and Procedure, 2nd ed (2010), p. 149. See generally Lee, in: id., ed., The Making of the Rome Statute (1999), pp. 1 ff. 832 Ambos, Treatise on International Criminal Law, Vol. I (2013), p. 31. 833 Klabbers, International Institutional Law (2002), p. 10. 834 Schiff, Building the ICC (2008), pp. 3–4. 835 Scheffer, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 67, 69. 836 Damaška, Faces of Justice (1986), p. 16. 837 Boas et al., International Criminal Procedure, ICL Practitioner Library Series Vol. III (2011), p. 48. 838 Safferling, International Criminal Procedure (2012), p. 205. 839 Schiff, Building the ICC (2008), p. 47; Scheffer, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 67, 69. 840 Art. 112 ICC-Statute.

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visers.841 One could say that the power to remove Court officials and implement the Rome system842 provides the Court with a certain degree of hierarchy. Another feature of hierarchy is the professionalisation of court officials. The ICC staff resembles in large part the staffing system at the ad hoc tribunals.843 At the ad hoc Tribunals, the “lack of vertical opportunities” makes it difficult for staff to move upwards, while they can easily move from “one court to another”.844 Recall how Damaška characterises the distribution of authority within coordinate officialdom: “The ideal now under consideration envisages a wide distribution of authority among roughly equal lay officials: with no one clearly superior to others, there is essentially a single stratum of authority. [. . .] The absence of distinctive rank removes pressure for submission generated by the prospect of hierarchical promotion and demotion: one is not climbing up or down the ladder.”845 It seems that this characterisation applies to international (criminal) courts, where the structure “often fails these career seekers, who are given few opportunities to advance.”846 However, that does not mean that there is no professionalisation of officials at the ICC. The OTP, for instance, is an independent and hierarchically structured organ.847 Both the OTP and the judicial chambers are largely occupied by legal professionals.848 The judges require competency in criminal law and procedure and the necessary relevant experience, whether as Judge, Prosecutor, advocate, or in another similar capacity in criminal proceedings or in relevant areas of international 841

Beigbeder, International Criminal Tribunals (2011), p. 190. Ambos, Internationales Strafrecht, 3rd ed (2011), p. 122. 843 Bibas and Burke-White, 59 Duke L.J. (2010), 637, 665. 844 Ibid., 663–664. 845 Damaška, Faces of Justice (1986), pp. 25, 26. 846 Bibas and Burke-White, 59 Duke L.J. (2010), 637, 664–665, who continue: “Once they see how limited their career trajectory is, career seekers quickly abandon the international judicial system for better prospects back home. A former ICTY staffer explains: ‘[I left the Tribunal because] there was nowhere for me to go. There are very few senior legal officer positions and becoming a judge is impossible – they are elected by the Security Council.’ Another ICTY staff member put it bluntly: ‘I came with high hopes but they were shattered. I would be stuck as a P-2 forever with an iron-ceiling above me. So I packed my bags and left.’” With regard to the staff working in the OTP: “In its first three years, the prosecutor’s office had lost twenty-two of its 146 staffers, fourteen of whom left before their contracts had ended. Anecdotal evidence suggests that the prosecutorial turnover rate has increased since 2006 and that judicial chambers and defense counsel face similar retention problems.” 847 Cf. Ambos, Internationales Strafrecht, 3rd ed (2011), p. 119 with further references. 848 Tuinstra, Defence Counsel (2009), p. 128. 842

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law, such as international humanitarian law, and human rights law, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.849 The registry consists of the Immediate Office of the Registrar, the Security and Safety Section, the Common Administrative Services Division, the Division of Court Services, the Public Information, the Documentation Section, and the Division of Victims and Counsel and has several professional officials.850 In sum, no criminal court could exist without some bureaucracy, hierarchical ordering and professionalisation.851 Thus, what does it mean that the ICC itself is mainly coordinate, but it consists of three organs that are partly hierarchical in nature and has several professional officials? Tuinstra, one of the few authors who has applied Damaška’s concept to the ICC, remarked that “it cannot be concluded that the structure of authority in international criminal courts is more connected to either Damaška’s hierarchical or to his coordinate ideal of officialdom.” I agree, but only to the extent that this cannot be concluded, yet. If the three organs of the ICC should really have an impact on the classification of the Court’s overall structure as hierarchical and coordinate, it is necessary to take a close look on at least the structure of the judiciary and the OTP. However, if the Court’s overall structure should be evaluated independently of the (sub)structure of its organs, it can already be classified as “coordinate” in the sense Damaška has defined it. b) Policy-implementing or Conflict-solving? The next question that has to be asked is whether the ICC as a whole promotes policy-implementation or, rather, the solving of a conflict. aa) General Remarks Again, the type of proceeding in a reactive state is “conflict solving”,852 which has the character of a contest between two formally coequal disputants before a state official as the neutral decision maker.853 A reactive Cf. Ambos, Internationales Strafrecht, 3rd ed (2011), p. 118; Bohlander, 12 NCLR (2009), 529, 532 ff.; Bohlander, IYILP (2009), 326 ff.; see also Ambos, 21 LJIL (2008), 911, 915 with fn. 22. 850 In more detail see Lachowska, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), pp. 387, 398 ff. 851 Cf. Tuinstra, Defence Counsel (2009), p. 130 with further references. 852 Damaška, Faces of Justice (1986), p. 97. 853 Ibid., pp. 73–80 and 97–147. 849

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state would only intervene in a conflict if the parties themselves could not resolve the conflict. By contrast, in an activist state, state interests prevail over individual interests.854 The type of proceeding in an activist state is not conflict solving but “policy implementing”, i. e. the justice system is considered an instrument to implement policies.855 The active state regards itself not as a neutral conflict-resolver but rather as a manager of joint pursuit.856 It clearly expresses its policies, while the goals in a reactive state are chosen by the participants within a dispute.857 The “program” of an activist state “must be modified whenever found ineffective or counterproductive. If its interpretation in light of policy considerations fails to render a provision in accord with state policy, the provision must be disregarded.”858 Again, those characteristics have to be used as ideals as today no state is purely activist or purely reactive. As I indicated earlier, actual states and the functioning of governments must be compared to this ideal in order to label them. Damaška demonstrates this with the examples of Continental and Anglo-American governments: “[I]t seems probable that the traditional roles of Continental and Anglo-American governments were not exactly alike. One indication is that so many Europeans, looking at England and America through the prism of their experience, were struck by the relatively modest role played by the state in managing the affairs of society. While Continental rulers continuously expanded the agenda of government – from the army to the maintenance of internal order, to education, even to public health and social security – England and America seemed until recently to rely to a far greater measure on private or ‘voluntaristic’ action for the fulfilment of social needs. [. . .] Now if the managerial concerns of English and American government were truly more limited than Europe, then Anglo-Americans could have indeed drunk more deeply from the Pierian spring of laissez-faire. They could have been more receptive to the view that the state need not initiate and implement social programs, and that the primary office of government is to arbitrate conflict among citizens and their voluntary associations. Administration of justice could also have been associated with conflict resolution on much broader scale than on the Continent; a lawsuit involving a matter that came to be regarded as governmental responsibility across the Chanel could continue to be interpreted in England as devoted to the resolution of a conflict among people engaged in civic activity rather than as entailing an official effort to realise the goals of the state.”859 854 855 856 857 858 859

Ibid., Ibid., Ibid., Ibid., Ibid. Ibid.,

p. 87. pp. 82, 84. p. 81. p. 82. pp. 90, 91 (fn. omitted).

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It should not be overlooked that even Damaška himself recognises that Anglo-American procedure is a policy-implementing process, even for the U.S.A. – for example – some goals of justice are defined by the state, which cannot afford to see the victim and the defendant control their respective cases, as the reactive state suggests.860 However, as I have previously emphasised, Damaška’s models are not designed to reflect but to help systematise the actual criminal process.861 Thus, the question here is whether the ICC resembles a reactive state and allows the participant decide when to initiate proceedings and which goals should be achieved by those proceedings, or whether the ICC resembles an activist state, defining its own goals and actively trying to achieve those goals?862 As already mentioned, the ICC is not a regular court: first, because its organisational structure seeks to replicate in one organisation the independent responsibilities and powers usually allocated to separate legislatures, ministries, and courts in domestic systems;863 and second, because it is an international organisation established by a treaty.864 An international organisation is usually set up for a defined purpose.865 Thus, the question is whether the ICC was set up to achieve certain goals and – if it were – which goals this would be. bb) Goals of the ICC, Goals of International Criminal Justice Numerous goals have been advanced to justify the creation of international courts, as documented in the statutes of the international courts and their preambles, in resolutions adopted by the U.N. Security Council, in remarks made by members of the Security Council when adopting these resolutions, in the case-law of the ad hoc tribunals, and in other official contexts.866 The list of goals outlined by international criminal courts is manifold. In order to draw inferences from those goals to the form of justice at the ICC, it is necessary to distinguish between traditional goals, being pursued equally by international and national systems of criminal justice on the one hand, and the more idiosyncratic ones of international criminal courts on the other.867 However, two clarifications must be made: first, I 860 861 862 863 864 865 866 867

Cf. ibid., p. 222 with fn. 91. See supra E. III. 4. c). See also Swart, 6 JICJ (2008), 87, 94, who asks a similar question. Schiff, Building the ICC (2008), p. 10. See supra E. IV. 1. a). Klabbers, International Institutional Law (2002), pp. 7–8. Swart, 6 JICJ (2008), 87, 100. Ibid., 101.

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explicitly do not only refer to the goals of the ICC but of international criminal justice in general. Second, I will not evaluate the goals of international criminal justice in terms of their value, attainability or credibility, for this is not relevant and has been sufficiently addressed by others.868 Third, the differentiation between traditional goals of criminal justice and special goals of International Criminal Justice shall not indicate that goals of the latter category do not exist in the former and vice versa. The rationale behind this categorisation is to divide the long list of goals of International Criminal Justice869 into goals of similar priority within both domestic and international criminal trials and goals that seem to play a more prominent role at the international level.870 Others describe the latter category as “broader goals”;871 identify some goals as “general” goals, which others call “special” goals;872 distinguish between – inter alia – “legal” and “political” purposes,873 or “official” and “operative” goals.874 868 Ambos, Treatise on International Criminal Law, Vol. I (2013), pp. 67 ff.; Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 94 ff. For instance, it has been argued that the ICTR’s goals are partly conflicting. Especially the goal of retribution was deemed unfit for international justice, and in conflict with bringing peace and reconciliation to a society. See Howland and Calathes, 39 Va. J. Int’l L. (1998), 135, 152. See also Schrag, 7 Transnat’l L.& Contemp.Probs. (1997), 15–22. See generally Tuinstra, Defence Counsel (2009), p. 118; Fedorova, Equality of Arms (2012), pp. 131, 136 ff.; Damaška, 83 Chi.-Kent L. Rev. (2008), 329 ff.; Shany, 106 Am. J. Int. L. (2012), 225–270, 225 ff.; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 228 ff. 869 Damaška, 83 Chi.-Kent L. Rev. (2008), 329, 330; Woods, 52 Va. J. Int’l L. (2011–2012), 633–681, 639, 656: “International criminal law has numerous goals – so many that some have questioned whether the regime can realistically achieve them all.” (fn. omitted). 870 See, for instance, Turner, 10 Chi. J. Int’l L. (2009–2010), 685–746, 689: “Yet international criminal trials, to a greater degree than domestic trials, serve goals beyond that of determining guilt or innocence according to fair procedures. These goals include providing an authoritative record of the crimes for posterity, giving victims a forum in which to express their grief and outrage, spreading support for human rights, and promoting peace and reconciliation.”; Woods, 52 Va. J. Int’l L. (2011–2012), 633–681, 647: “The international criminal regime differs from domestic criminal regimes in a number of important respects. These include the multiple communities the international regime seeks to serve, the exceptional crimes under its subject matter jurisdiction, and its unique set of goals.” (fn. omitted). 871 Turner, 10 Chi. J. Int’l L. (2009–2010), 685–746, 689. 872 See, for instance, Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 83: “However, the goals of international criminal procedure can only be understood by also making reference to the more general goals of international criminal justice: punishing perpetrators of international crimes, creating a historical record of atrocities, giving voice to victims through eye-witness testimony, and prospectively strengthening norms of international humanitarian law.” (fn. omitted). 873 Turner, 48 Va. J. Int’l L. (2007–2008), 529, 534.

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Figure 24: Goals of International Criminal Justice

(1) Traditional Goals Every judicial system is asked to satisfy traditional goals,875 although the emphasis placed on those various goals sometimes differ from system to system.876 The goals I am referring to are retribution, deterrence and rehabilitation.877 Retribution as goal of criminal justice (just deserts) goes back to Immanuel Kant878 and Georg Wilhelm Friedrich Hegel879 and basically pre874 Shany, 106 Am. J. Int. L. (2012), 225, 225, 231, adopting a categorisation by Charles Perrow: “While official goals are the organization’s formally stated general purposes (these goals are often vague and open-ended), operative goals reflect the specific policies that the organization actually prioritizes. For example, an international court’s official goal may be to settle disputes between states or to fight impunity, and these general goals may then be translated over time into more specific operative goals, such as to expedite the pace of legal proceedings, increase the number of prosecutions for international crimes before the court, or increase the overall number of court judgments per annum.” (fn. omitted), referring to Charles Perrow, 26 Am. Soc. Rev. (1961), 854–866. 875 Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 84. 876 Mosteller, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 319, 320. 877 Cf. Alschuler, 70 U. Chi. L. Rev. (2003), 1, 1; see generally Francis and Francis, in: May and Hoskins, eds., International Criminal Law and Philosophy (2010), pp. 58, 59 ff. 878 See, e. g., Kant, in: Weischedel, ed., Kants Werke in sechs Bänden, Vol. IV (1983), § 49 E I.; Brown, 49 Am. Crim. L. Rev. (2012), 73, 89.

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scribes that the offender should not be punished for any purpose but retribution,880 which sees punishment as a fair balance for the wrong of the offence (“punitur, quia peccatum est”).881 This punishment is not free of criticism,882 but that criticism shall not be of interest at this point. That retribution is also a goal of international criminal justice can be seen in the case law of the ad hoc tribunals. In Serushago, the ICTR Trial Chamber argued that the punishment of an accused who is found guilty “must be directed . . . at retribution.”883 Moreover, especially in the context of sentencing, retribution is referred to: the ICTY Appeals Chamber has held in its judgements rendered on 24 March 2000 and 20 February 2001 in the cases The Prosecutor v. Zlatko Aleksovski884 and Zejnil Delalic´ et al.885 “that retribution and deterrence are the main principles in sentencing for international crimes [. . .], these purposive considerations merely form the backdrop against which an individual accused’s sentence must be determined.”886 The ICTY 879

See only Hegel, Grundlinien der Philosophie des Rechts (1821), § 101. See also BVerfGE 22, 125 (132); Brown, 49 Am. Crim. L. Rev. (2012), 73, 76, 89 ff.: “Retributivists give desert a dominant, presumptively controlling role as the purpose for punishment and give the consequences of punishment no role in justifying punishment.” (fn. omitted); raising questions as to whether international justice should pursue policies of retribution or policies of restorative justice see e. g. Findlay and Henham, Transforming International Criminal Justice (2005). 881 See Ambos, Treatise on International Criminal Law, Vol. I (2013), p. 67. 882 See, e. g., ibid., p. 68 (“Just as at the domestic level, retribution at the international level must be rejected as a ground or purpose of punishment. In the case of international mass crimes, a balance of the suffered wrong is plainly unthinkable.” [fn. omitted]); but see Damaška, 49 Am. J. Comp. L. (2001), 455, 474: “[D]espite the merely anecdotal character of supportive evidence, a measure of deterrent influence on leaders appears intuitively plausible and should be conceded even for backward and lacerated corners of the world.”; see generally Heinrich, Strafrecht – Allgemeiner Teil, 3rd ed (2012), mn. 14 with further references. 883 Prosecutor v. Omar Serushago, No. ICTR 98-39-S, Sentence, para. 20 (February 5, 1999); Prosecutor v. Rutaganda, No. ICTR-96–3-T, Judgement, para. 455 (December 6, 1999); Prosecutor v. Ndindabahizi, No. ICTR-2001-71-I, Judgement, para. 498 (July 15, 2004); Prosecutor v. Karera, No. ICTR-01-74-T, Judgement, para. 571 (December 7, 2007). 884 Prosecutor v. Aleksovski, No. IT-95-14/1-A, Judgment, supra note 29, S. 51, para. 185. 885 Ibid., para. 806. 886 See also Prosecutor v. Hadžihasanoviç and Kubura, No. IT-01-47-T, Judgement, para. 2071-2072 (March 15, 2006); Prosecutor v. Oric´, No. IT-03-68-T, Judgement, para. 718 (June 30, 2006); Prosecutor v. Kraji, No. IT-00-39-T, Judgement, para. 1134 ff. (September 27, 2006); Prosecutor v. Kraji, No. IT-00-39-A, Appeals Chamber Judgement, para. 804 ff. (May 17, 2009); Prosecutor v. Zelenovic´, No. IT96-23/2-A, Sentencing Judgement, para. 32 (April 4, 2007); Prosecutor v. Haradinaj, No. IT-04-84-T, Judgement, para. 484 (April 3, 2008); Prosecutor v. Boškoski and Tarcˇulovski, No. IT-04-82-T, Judgement, para. 587 (July 10, 2008); Prosecutor 880

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Trial Chamber in Todorovic´ added that the principle of retribution “must be understood as reflecting a fair and balanced approach to the exaction of punishment for wrongdoing.”887 Similarly in Erdemovic´, retribution in this sense was deemed essential: “[T]he International Tribunal sees public reprobation and stigmatisation by the international community, which would thereby express its indignation over heinous crimes and denounce the perpetrators, as one of the essential functions of a prison sentence for a crime against humanity.”888 Be that as it may, with regard to the question of whether the goal of retribution provides some indication on the form of justice at the ICC, one must clearly say that it does not, because it is “a goal of all legal systems”889 and may either be attained through a contest model or inquest model.890 As Bert Swart puts it: “to inflict ‘just desert’ on the offender is to end a conflict as well as to implement a policy.”891 A second traditional goal is deterrence.892 Deterrence may occur in two forms: general deterrence and special deterrence. The theory of the former was developed at the beginning of the 19th century by Paul Johann Anselm v. Feuerbach.893 General deterrence serves to discourage other persons from committing or continuing to commit similar crimes to the offender (negative general deterrence/prevention).894 Additionally, the punishment of Mrkšic´ et al., No. IT-95-13/1-A, Appeals Chamber Judgement, para 145, (May 5, 2009); Prosecutor v. Lukic´ and Lukic´, No. IT-98-32/1-T, Judgement, para. 1049, (July 20, 2009); Prosecutor v. Popovic´ et al., No. IT-05-88-T, Judgement, para. 2128 (June 10, 2010); Prosecutor v. Ðord-evic´, No. IT-05-87/1-T, Judgement, para. 2204 (February 23, 2011). 887 Prosecutor v. Stevan Todorovic ´ , No. IT-95-9/1-S, Sentencing Judgement, para. 29 (July 31, 2001). 888 Prosecutor v. Erdemovic ´ , No. IT-96-22-T, Sentencing Judgment, para. 65 (November 29, 1996). 889 Tuinstra, Defence Counsel (2009), p. 121. See also Pakes, Comparative Criminal Justice, 2nd ed (2010), p. 124; Terrill, World Criminal Justice Systems, 7th ed (2009), pp. 82 (England/Wales), 360 (Japan), 630 (Islamic Law). 890 Tuinstra, Defence Counsel (2009), p. 121; Swart, 6 JICJ (2008), 87, 101. 891 Swart, ibid., 101. He continues: “[T]he recognition of retribution as the primary purpose of sentencing entails that sentencing goals have little or no relevance for the shape of proceedings that may lead to the conclusion that an accused is guilty. From the perspective of inflicting ‘just deserts’, it is irrelevant whether these proceedings are structured as a contest or as an inquest.” (p. 104). 892 See Ambos, Treatise on International Criminal Law, Vol. I (2013), p. 71, who calls it “prevention”. 893 Cf., e. g., von Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts, 11th ed (1832), §§ 12, 13. 894 Swart, 6 JICJ (2008), 87, 100; see generally Heinrich, Strafrecht – Allgemeiner Teil, 3rd ed (2012), mn. 17; Ambos and Steiner, JuS 2001, 9, 12; Momsen and Rackow, JA 2004, 336 f.

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the offender strengthens society’s sense of right and wrong and increases trust amongst the people (positive general deterrence/prevention).895 This form of deterrence “has recently been re-discovered by some common law writers under the concept of ‘expressivism’ focusing on the (possible) communicative function of punishment”.896 Discussions of special deterrence go back at least as far as Franz v. Liszt.897 According to the theory of special deterrence, punishment may also serve to deter the perpetrator from future crimes (positive special deterrence) and the society shall be protected against this perpetrator (negative special deterrence).898 In Serushago, the ICTR found that general deterrence would be the most important goal of sentencing offenders at the ICTR.899 It should “dissuade for good others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights.”900 In Tadic´, the ICTY found the opposite: deterrence is a factor to be taken into consideration as a justification for sentencing, but should not be given undue prominence.901 According to the Preamble of its Statute, the ICC seeks “to contribute to the prevention of [. . .] crimes.”902 Finally, punishment may also 895 Cf. BVerfGE 45, 187 (256); BVerfGE NJW 2004, 2073 (2075); Ambos and Steiner, JuS 2001, 9, 12; Roxin, Strafrecht Allgemeiner Teil, Vol. I, 4th ed (2006), § 3 mn. 26; Momsen and Rackow, JA 2004, 336, 338 f. 896 See Ambos, Treatise on International Criminal Law, Vol. I (2013), pp. 71, 71 with further references. 897 Cf. von Liszt, in: id., ed., Strafrechtliche Aufsätze und Vorträge, Vol. I (1905), p. 126, 176. 898 Swart, 6 JICJ (2008), 87, 100; see generally Heinrich, Strafrecht – Allgemeiner Teil, 3rd ed (2012), mn. 18; Packer, The Limits of the Criminal Sanction (1969), pp. 39 ff. 899 See Prosecutor v. Omar Serushago, No. ICTR-98-39-S, Sentence, para. 20 (February 5, 1999). 900 See Prosecutor v. Kamhanda, No. ICTR-97-23-S, Judgment and Sentence, para. 28 (September 4, 1998); Prosecutor v. Rutaganda, No. ICTR-96–3-T, Judgement, para. 455 (December 6, 1999). In Ndindabahizi, the Trial Chamber pointed out: “Specific emphasis is placed on general deterrence, so as to demonstrate ‘that the international community [is] not ready to tolerate serious violations of international humanitarian law and human rights’.” [fn. omitted], see Prosecutor v. Ndindabahizi, No. ICTR-2001-71-I, Judgement, para. 498 (July 15, 2004) with further references; Prosecutor v. Karera, No. ICTR-01-74-T, Judgement, para. 571 (December 7, 2007). 901 Prosecutor v. Tadic ´ , No. IT-94-1-A and IT-94-1-Abis, Judgment in Sentencing Appeals, para. 48 (January 26, 2000); see also Prosecutor v. Kunarac et al., No. IT96-23-T & IT-96-23/1-T, Judgement, para. 857 (February 22, 2001). 902 See the ICC-Statute’s Preamble. About the difficulty to prevent the widespread harm in the contemporary world from a practical and moral view see Francis and Francis, in: May and Hoskins, eds., International Criminal Law and Philosophy (2010), pp. 58, 68 ff.

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serve to rehabilitate the offender,903 and the ICTY in Tadic´ named rehabilitation alongside punishment and deterrence as goals of punishment,904 even though the Appeals Chamber in Delalic´ et al. understated the importance of this goal, which “cannot play a predominant role in the decision-making process of the Trial Chamber of the Tribunal.”905 The goal of general deterrence should be considered policy-implementing, because according to Tuinstra it is further-reaching than a determination of the facts and the guilt of the person involved.906 This is not entirely true, although I generally agree. Deterrence and rehabilitation are closely related to sentencing proceedings. Those proceedings are conducted differently: in a conflict-solving procedure they are conducted subsequent to the trial stage, while in a procedure that resembles the policy-implementing form of justice they are held within the trial stage.907 Since I have not commented on the procedural features of those forms of justice, yet, I will not go into details at this point. Thus, it shall suffice to refer to the remarks of Bert Swart: “Matters seem, however, to be different for goals such as general deterrence and individual deterrence, as well as rehabilitation of the offender. In procedural systems where the exclusive aim of trial proceedings is to decide a conflict between two parties as to the occurrence of an event that constitutes a crime and in which the production of evidence is entirely in the hands of the parties, these goals can only be pursued once an individual accused has been found guilty and their pur903

Swart, 6 JICJ (2008), 87, 100. Prosecutor v. Tadic´, No. IT-94-1-T, Sentencing Judgment, para. 61 (July 14, 1997). See also Prosecutor v. Erdemovic´, No. IT-96-22-T, Sentencing Judgment, para. 56 and 60 (November 29, 1996); see generally Schabas, Introduction to the ICC, 4th ed (2011), p. 333. In the case of Delalic´ and Others, the Trial Chamber outlined four parameters to be taken into account in fixing the length of the sentence: retribution, protection of society, rehabilitation and deterrence, see Prosecutor v. Mucic´ al., No. IT-96-21-T, Judgement, para. 1230 ff. (November 16, 1998). 905 Prosecutor v. Zejnil Delalic ´ et al., No. IT-96-21-A, Judgement, para. 806 (February 20, 2001); see also Prosecutor v. Kunarac et al., No. IT-96-23-T & IT96-23/1-T, Judgement, para. 844 (February 22, 2001): “The Trial Chamber fully supports rehabilitative programmes, if any, which the accused may participate while serving their sentences. But that is an entirely different matter to saying that rehabilitation remains a significant sentencing objective. The scope of such national rehabilitative programmes, if any, depends on the states in which convicted persons will serve their sentences, not on the International Tribunal. Experience the world over has shown that it is a controversial position that imprisonment alone – which is the only penalty that a Trial Chamber may impose – can have a rehabilitative effect on a convicted person. The Trial Chamber is therefore not convinced that rehabilitation is a significant relevant sentencing objective in this jurisdiction.” (fn. omitted); Prosecutor v. Oric´, No. IT-03-68-T, Judgement, para. 721 (June 30, 2006). 906 Tuinstra, Defence Counsel (2009), p. 121. 907 Damaška, Faces of Justice (1986), pp. 80, 123, 160–62, 168. 904

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suit is, therefore, relegated to subsequent and separate sentencing proceedings. This is different for procedural systems where the predominant aim of criminal investigations and trials is to implement societal policies. Here, it is believed that the pursuit of these goals is best served by trial proceedings that maximize accurate fact-finding and in which, as a consequence, the collecting of evidence is not entirely, or not predominantly, in the hands of the parties.”908

In sum, as I have shown, the traditional goals of criminal justice play a role not only in domestic but also in international criminal proceedings.909 Both conflict-solving justice within a reactive state and policy-implementing justice within an activist state can achieve those goals. Thus, no conclusions can be drawn from retribution, deterrence and rehabilitation about the form of justice at the ICC. (2) Special Goals of International Criminal Justice Nevertheless, international criminal justice has not only the traditional goals of criminal justice but also additional goals of its own.910 Those are, for example: the ambition to change a culture of impunity; to provide an accurate historical record of events that may make it more difficult for some to negate history; to provide satisfaction to the victims of crimes committed by an offender; and to promote a process of reconciliation. They represent aims of a distinct policy-implementing nature which may, therefore, well be best served by a legal process aspiring to maximise accurate 908

Swart, 6 JICJ (2008), 87, 101. A few scholars argue that international criminal justice must abandon its emphasis on the domestic criminal law aims and reshape itself to emphasise the other objectives, see e. g. Drumbl, Atrocity, Punishment, and International Law (2007), pp. 194–205, calling on international criminal justice to limit its emphasis on trials that track domestic criminal law and instead to explore other more collective mechanisms for doing justice; Findley and Henham, Transforming International Criminal Justice (2005), 273–313 (2005); see also Blumenson, 44 Colum. J. Transnat’l L. (2006), 801, 871–872, suggesting that where insistence on international criminal trials puts peace at risk, as may be true in Uganda today, the ICC should choose not to pursue cases as long as certain conditions are met. Some go further to argue that international criminal justice should be entirely abandoned in favor of other mechanisms that better promote the historical record and transitional justice aims. See, e. g., Rabkin, 38 Cornell Int’l L.J. (2005), 753, 775–777, suggesting that national justice will do a better job than international criminal justice in acknowledging the crimes against the victims and in offering hope of a peaceful future; see generally Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 96. 910 Mégret, 14 UCLA J. Int’l L. Foreign Aff. (2009), 37, 68; Damaška, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 365, 376 (“As suggested at the outset here, international criminal tribunals aspire to pursue so many goals that even national law enforcement systems, with their far stronger institutional support and greater enforcement powers, could buckle under the weight of a comparable agenda.”) 909

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fact-finding.911 Of course, further special goals could be listed.912 However, in order to analyse whether any inferences could be drawn from those goals for a certain form of justice at the ICC, I will concentrate only on a few of these goals.913 It is also important to stress that not every scholar is happy with the inclusion of special goals of justice into the ICC. Some argue that the historical record and transitional justice aims should be abandoned to the extent that they conflict with domestic criminal justice aims.914 Others rather pointedly advise against the aspiration after anything else than domestic criminal law aims: “The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes – ‘the making of a record of the Hitler regime which would withstand the test of history,’ as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials – can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.”915

I will not participate in these discussions for the reasons already mentioned. Most scholars nowadays recognise the legitimacy of special goals of international criminal justice.916

911 Swart, 6 JICJ (2008), 87, 102; Damaška, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 365. 912 For arguments for restorative justice or healing, see, e. g., Osiel, 144 U. Pa. L. Rev. (1995), 463, 471–78, 512. 913 For a more comperehensive list and more detailed discussion see, e. g., Safferling, International Criminal Procedure (2012), pp. 64 ff.; Schabas, The UN International Criminal Tribunals (2006), pp. 67–73; Damaška, 83 Chi.-Kent L. Rev. (2008), 329 ff. and Frase, 3 Buff. Crim. L. Rev. (2000), 785, 820 f. 849. 914 See, e. g., Bonomy, 7 JICJ (2007), 348, 353; Kwon, 5 JICJ (2007), 360, 372– 373; see also Danner and Martinez, 93 Cal. L. Rev. (2005), 75, 166–169 (“[W]e believe that faithful adherence to criminal culpability principles is the surest path to actually achieving the human rights and transitional justice aims of international criminal law.”). See generally Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 96. 915 Arendt, Eichmann in Jerusalem (2006), p. 253; see also, e. g., Wilson, 27 Hum. Rts. Q. (2005), 908, 912 (quoting a historian as saying about the Klaus Barbie trial that “what is especially worth criticizing [. . .] is not that they wrote bad history, it’s that they wrote history at all, instead of being content to apply the law equitably and universally”). 916 Cf. Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 94 ff.; Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. II, p. 72, recognising a goal of bringing justice to victims; Cryer, in: id. et al., eds., Introduction to International Criminal Law and Procedure, 2nd ed (2010), pp. 30 ff.; Safferling, Internationales Strafrecht (2011), p. 72, who recognises the goals of bringing justice to victims and creating an accurate historical record.

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(a) Provision of an Accurate Historical Record of Events/Substantive Truth Finding The first special goal that shall be analysed is the creation of an accurate historical record,917 aimed at forestalling those who might later try to deny that wide-scale violations of international law occurred.918 This special goal was deemed important in the course of the Nuremberg trials, where U.S. representatives pointed out that legal proceedings would bring German policies and conduct to the attention of the entire world, and the trial and dissemination of information would legitimise allied conduct during and after the war.919 The aim of creating a historical record is related to the goal of substantive truth finding.920 In order to decide whether or to what extent the provisions of an accurate historical record of events and substantive truth finding characterise the form of justice before the ICC, it is necessary to view both goals separately, as the first goal raises rather special questions regarding the establishment of a historical record of events, while the latter goes to the heart of the question of which procedural arrangement is better suited to discover the truth. In my view, it is better to start with the latter goal, i. e. substantive truth finding. (aa) Substantive Truth Finding Does the goal of substantive truth finding imply that a court (or a legal system) favours policy-implementation or vice versa? An automatic response to this question is that either form of justice is better for truth finding and therefore – e contrario – truth finding cannot be but closely related to that form of justice.921 Some argue that truth finding is better served by competition (i. e. a conflict-solving mode of justice).922 This theory is based 917 Statement of Judge Claude Jorda, Statement, U.N. SCOR, 55th Sess., 4161st mtg. at 3, U.N. Doc. S/PV.4161 (June 20, 2000). Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 87 ff.; McClelland, 26 Suffolk Transnat’l L. Rev. (2002), 1, 2; Wilson, 27 Hum. Rts. Q. (2005), 908; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 228 ff. 918 Schrag, 2 J. Int’l Crim. Just. (2004), 427, 428; Mosteller, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 319, 320. 919 Chaney, 14 Dick. J. Int’l. L. (1995), 57, 62. 920 Tuinstra, Defence Counsel (2009), p. 123; Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 96 ff.; Taylor, The Anatomy of the Nuremberg Trials (1992), p. 54 (“establish incredible events by credible evidence”). 921 See generally Fedorova, Equality of Arms (2012), pp. 75 ff. 922 The arguments suggested by Luban relative to the rights theory of the adversary system are effectively extrapolated at this point to the truth-finding purpose of the adversary system, Luban, in: id., ed., The Good Lawyer (1983), p. 83, 99.

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on the premise that when two advocates vigorously oppose each other in an effort to do their best for their client, rather than with the aim of discovering truth, they inadvertently serve the systemic goal of truth finding.923 Others, by contrast, doubt that, since lawyers and perhaps judges have economic and ideological investments in the system,924 and only an independent investigative agency is suitable for discovering the truth.925 As I have declared above, I will not engage in this discussion. First, the truth about which procedural arrangement or form is best to discover the truth is as likely to be discovered as the truth about criminal conduct that has allegedly occurred. In fact, it is commonly recognised that we have no direct access to the truth or, to put it figuratively, to the “Recording Angel”.926 Both contest and inquest models have their dangers,927 and every construct to better discover the truth will be artificial and have its flaws.928 Thus, the discussion about what procedural form is better for discovering the truth is important but inconclusive. Second, this discussion is irrelevant for the purpose of this study. Damaška in this regard states: “[E]ven if it were shown that fact-finding dominated by the parties uncovers the truth less effectively than does impartial research, this showing would not itself preclude the possibility that the 923 Cf. Goodpaster, 78 J. Crim. L. & Criminology (1987–1988), 118, 124 (“The respective efforts of the opposing attorneys to maximize the interests of their side lead to the best systemic results even though neither attorney directly tries to achieve these ends.”) 924 See, e. g., Simon, Wis. L. Rev. (1978), 29, 30; Rhode, 37 Stan. L. Rev. (1985), 589 ff. 925 Goodpaster, 78 J. Crim. L. & Criminology (1987–1988), 118, 122: “Neither scientists, engineers, historians nor scholars from any other discipline use bi-polar adversary trials to determine facts. Following the space shuttle explosion, for example, no one proposed that the investigating Presidential Commission adopt the procedures of adversary civil or criminal trials. Indeed, the suggestion that a commission investigating any disaster might wish to follow such procedures seems quite strange, and many people would react incredulously were such procedures adopted. In matters of importance, we want an active investigative body capable both of testing any credible hypotheses and of amassing evidence from any source relevant to them. In trials, party control of evidence acquisition and presentation limits the number of possible hypotheses presented and restricts the evidence which is available to assess these hypotheses. For this reason, trials are generally thought to be less reliable historical fact-finding procedures than more active investigative procedures.” (fn. omitted). 926 See Rescher, Scepticism (1980), p. 135. 927 Jackson and Doran, Judge Without Jury (1995), p. 78: “Critics of the inquest model commonly point to the danger of inquisitorial judges reaching a conclusion at too early a stage of the proof process. [. . .] But we have seen that rules can be developed to prevent the excesses of partisanship in both models.” 928 Bankowski, 1 Legal Studies (1981), 257, 262–263.

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competitive evidentiary method might still be the preferable form in the conflict-solving process.”929 As I mentioned earlier, substantive truth finding is an explicit goal of international criminal justice. Since the issue at this point is the form of justice of the ICC as a whole, the question is whether the ICC in general resembles an activist or reactive state. Again, a reactive state would only intervene in a conflict where the parties themselves could not resolve this conflict. By contrast, in an activist state, state interests prevail over individual interests.930 Since the ICC explicitly pursues the goal of substantive truth finding, it resembles an activist state in this regard. Of course, it can be argued that this does not mean that the interest of the ICC always prevails over individual interests. Tuinstra concludes that on an international level, truth-finding objectives are not deemed more important than the objective of a fair contest in every respect,931 referring to the possibility of plea agreements at the ad hoc tribunals.932 This might be correct, but will be analysed at a later point. Damaška explicitly distinguishes between “conflict-solving and policy-implementing justice” on the one hand, which he elaborates under the headline “[t]wo types of state and the ends of the legal process”, and “the conflictsolving type of proceeding” and “the policy-implementing type of proceeding” on the other hand, which constitute separate categories being on the same level as the header “two types of state and the ends of the legal process”. The possibility of court settlements between the parties is elaborated in the latter.933 Thus, the type of state/form of justice and the form of process have to be distinguished. The ICC as an international organisation, which is supposed to gain legitimacy by way of pursuing its special goals934 like substantive truth finding (the WTO as another international organisation pursues goals such as increasing economic welfare,935 while arbitration in investment disputes is aimed at fostering economic development by inducing foreign investments),936 thus resembles an activist state in this regard. 929

Damaška, Faces of Justice (1986), p. 123. Ibid., p. 87. 931 Tuinstra, Defence Counsel (2009), p. 124. 932 Ibid. (“It is acknowledged that these may result in a short and, maybe, to some extent distorted version of the truth. In Deronjic, it was argued that ‘neither the public, nor the judges themselves come closer to know the truth beyond what is accepted in the plea agreement.’ It was also agreed upon in this case that judges of an international tribunal should focus on the core criminal law issues of the cases brought before them ‘within the ambit of the Indictment presented by the Prosecutor.’” [fn. omitted]) 933 Damaška, Faces of Justice (1986), p. 110. 934 von Bogdandy and Venzke, 12 German L.J. (2011), 1341, 1342. 935 Broude, 45 Colum. J. Transnat’l L. (2006–07), 221 ff. 930

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(bb) Provision of an Accurate Historical Record Once the goal of substantive truth finding has been classified as an indication of policy implementation, it is easier to analyse the goal of providing an accurate historical record, since both goals are related.937 Thus, when the commitment to truth finding indicates that the ICC has a policy-implementing character, the goal of creating a historical record indicates this a fortiori, as the trial chambers will have to establish numerous facts of historical significance.938 The Secretary-General has observed that to “establish [. . .] a record of past events” is an objective of international criminal justice.939 One of the ICTY’s annual reports states that “through its judicial proceedings the Tribunal establishes a historical record which provides the basis for the long-term reconciliation and reconstruction of the region.”940 The importance of this goal is exemplified by the ICTY Trial Chamber in Obrenovic´, where the Chamber states that “the acceptance of a guilty plea pursuant to a plea agreement must follow careful consideration by a trial chamber of numerous factors including inter alia whether the remaining charges reflect the totality of an accused’s criminal conduct, whether an accurate historical record will be created, whether the terms of the agreement fully respect the rights of the accused, and whether due regard is accorded to the interests of victims.”941 With regard to the Tadic´ judgement, Robert Donia comments, “[t]hese chambers have produced histories that are not only credible and readable, but indispensable to understand the origins and course of the 1990s conflicts in the former Yugoslavia.”942 The Krstic´ judgement943 “goes on to write a comprehensive account of the conflict in the 936

Dolzer and Schreuer, Principles of International Investment Law (2008), p. 149; Wälde, 6 J. World Inv. & Trade (2005), 183 ff. 937 Tuinstra, Defence Counsel (2009), p. 123; Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 96 ff.; Taylor, The Anatomy of the Nuremberg Trials (1992), p. 54. 938 Swart, 6 JICJ (2008), 87, 107. 939 The Secretary-General, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, J 38, U.N. Doc. S/2004/616 (Aug. 23, 2004); Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 88. 940 See ICTY Fifth Annual Report (UN Doc. A/53/219), 10 August 1998, § 202, italics added (available at , latest visit January 4, 2013), italics added. 941 Prosecutor v. Dragan Obrenovic ´ , No. IT-02-60/2-S, Sentencing Judgement, para. 19 (December, 10 2003). 942 Donia, 11 J. Int’l Institute (2004), 2 (available at , latest visit 4 January 2013); see also Wilson, 27 Hum. Rts. Q. (2005), 908, 922. 943 Prosecutor v. Radislav Krstic ´ , No. IT-98-33-T, Judgment (August, 2, 2001).

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Srebrenica area from 1991–1995, not as out-and-out history, but under the neutral heading “findings of fact.”944 Moreover, according to the ICTR Appeals Chamber in Karemera et al., “to gather evidence documenting the overall course of the genocide and to enter findings of fact on the basis of that evidence” was helpful “for the purpose of the historical record.”945 Again, this is not the place to discuss whether international criminal tribunals are a suitable forum to establish an accurate historical record,946 or whether or not courts should aspire to create a historical record.947 There is indeed an established view that administering justice is incompatible with the project of writing adequate historical accounts of mass human rights violations.948 The only fact that is important here is that international criminal tribunals do have the goal of the establishment of an accurate historical record. This goal, quasi functioning as a specified substantive truth finding, must be characterised as policy-implementing.949 A reactive state with a conflict-solving form of justice, where the parties have complete autonomy and decide when to start and to end the criminal trial, would conflict with this goal. As Damaška puts it: “In sum, then, when the desire of interna-

944

Wilson, 27 Hum. Rts. Q. (2005), 908, 935. Prosecutor v. Karemera, Ngirumpatse, and Nzirorera, No. ICTR-98-44AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, para. 35 (June 16, 2006). See also Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgment, para. 126 (September 2, 1998) and Prosecutor v. Kayishema and Ruzindana, No. ICTR-95-1-T, Judgment, para. 291 (May 21, 1999), where the ICTR repeatedly confirmed that a genocide took place in Rwanda. 946 The question whether international criminal law does or even can accomplish these aims is not important here. See Galbraith, 31 Mich. J. Int’l L. (2009–2010), 79, 94 ff. May and Wierda, in: May et al., eds., Essays in Honour of Kirk McDonald (2001), p. 249, 253. 947 Wilson, 27 Hum. Rts. Q. (2005), 908 ff.; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 236. 948 Wilson, 27 Hum. Rts. Q. (2005), 908, 909, 922 who argues in favour of this suitability (“Since the state is distant and therefore less able to influence or even interfere in trials, one might expect the historical perspectives of international tribunals to differ from the patchy and impoverished documentary record of national trials.”); see also Arendt, Eichmann in Jerusalem (2006). May and Wierda have cautioned that any result achieved in terms of creating a historical record can only be a “by-product of the trials where the emphasis must necessarily be in determining whether the prosecution has established guilt beyond reasonable doubt”: May and Wierda, in: May et al., eds., Essays in Honour of Kirk McDonald (2001), p. 249, 253. For a discussion challenging the view that administering justice is incompatible with the project of writing adequate historical accounts, see Wilson, 27 Hum. Rts. Q. (2005), 908, 908. For the relationship between ICCs and truth commissions, see Roche, 45 Brit. J. Criminol. (2005), 565 ff. 949 Tuinstra, Defence Counsel (2009), p. 122. 945

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tional criminal judges to portray an atrocity is strong, at least some standards of fair procedure can appear to them as a frustrating obstacle.”950 (b) Satisfaction of Victims Another goal of the ICC is the provision of satisfaction to the victims of crimes committed by the offender.951 This goal has, in fact, only an indirect relation to the questions asked at the beginning of this study but it perfectly demonstrates how much care should be taken to correctly apply Damaška’s concept. According to Damaška, the ideal-type of a conflict-solving form of justice provides for “an exclusive system of victim prosecution, with the victim and the defendant in full control of their respective cases.”952 Thus, at first sight, the reference to victim satisfaction as a goal of international criminal justice could be seen as an indication for a conflict-solving form of justice at the ICC, since it only declaratively points to the victim vis-àvis the perpetrator. However, the parties at the ICC are not victim and perpetrator but prosecutor and suspect. Damaška recognises that where one party to the proceedings is a state official (at the ICC: the Prosecutor), the pure conflict between the victim and the perpetrator ceased to exist.953 For Damaška, the image of proceedings as a contest can only be preserved “in its purity” if “the public prosecutor is regarded as a representative of the victim.”954 At the ICC, there are comprehensive provisions about victim protection (Art. 68(1), Art. 57(3)(c),(e), 64(2)),955 victim reparations 950 Damaška, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 365, 372. (“[I]f a defendant were acquitted on the ground of a reasonable doubt as to his guilt, international criminal judges might sometimes be prevented from realizing their ambition to make a record of the underlying atrocity – an atrocity which could have been sufficiently proven to them in their role as historians. This is not difficult to understand. While judgments of conviction are supposed to accurately determine the factual predicates of liability, judgments of acquittal are not expected to do the same for factual predicates of innocence: as already noted, they encompass a wide range of possible states of the world, from clear innocence and scant evidence of guilt to its substantial probability. And as juridical and historical pursuits do not use the same cognitive lenses, the indiscriminate nature of acquittals is alien to historians.” [fn. omitted]). 951 Swart, 6 JICJ (2008), 87, 100; Schrag, 2 J. Int’l Crim. Just. (2004), 427, 428; Wiessner and Willard, 93 Am. J. Int’l L. (1999), 291, 316, 330 (“Another important goal, the rehabilitation of victims, has been furthered by the establishment of national and international compensation commissions, as well as the use of general torts regimes. For example, the Alien Tort Statute of 1789 has been used successfully in the United States to address issues of serious human rights abuse.”). 952 Damaška, Faces of Justice (1986), p. 222 with fn. 91. 953 Ibid., p. 103. 954 Ibid.

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(Art. 75),956 and victim participation (Art. 68(3)).957 An “Office of Public Counsel for Victims” (OPCV)958 was created and the victim can choose a legal representative (Rule 90(1)).959 Nevertheless, this representative must not be the prosecutor! As is the rule in most societies nowadays, the conflict between the offender and the victim is mediated by the state and turned into a conflict between the offender and the legal order.960 In international criminal proceedings, it is suggested that the Prosecutor represents the international community.961 This creates an interesting twist in my original contention that the goal of victim satisfaction refers to the conflict955 Generally Tochilovsky, Jurisprudence of the ICC (2008), pp. 217 ff.; on the ICC-System see Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04–01/07–428-Corr., Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, para. 11 ff. (April, 2008); Safferling, 122 ZStW (2010), 87, 105 f.; Bock, Das Opfer vor dem IStGH (2010), pp. 430 ff. 956 Generally Dwertmann, Reparation System (2010), with further references; see also Bock, 119 ZStW (2007), 664, 678 f.; id., Das Opfer vor dem IStGH (2010), pp. 555 ff.; Henzelin, Heiskanen and Mettraux, 17 CLF (2006), 317, 321 ff.; Friman, in: Cryer et al., Introduction to International Criminal Law and Procedure, 2nd ed (2010), p. 484; Zahar and Sluiter, International Criminal Law (2007), p. 76 ff.; Zegveld, in: Stahn and van den Herik, eds., Future Perspectives (2010), pp. 611 ff.; Mundis, 14 LJIL (2001), 851, 861; Ferstman, 15 LJIL (2002), 667 ff.; Greco, 7 ICLR (2007), 531 ff., 545 f.; Heikkilä, International Criminal Tribunals and Victims of Crime (2004), pp. 166 ff., 180 ff. 957 Generally Heikkilä, ibid., pp. 73 ff., 140 ff., 164 f.; Bock, 119 ZStW (2007), 664, 670 ff.; id., Das Opfer vor dem IStGH (2010), pp. 210 ff., 371 ff., 440 ff.; Safferling, 122 ZStW (2010), 87, 88, 101 ff.; Stahn, Olásolo and Gibson, 4 JICJ (2006), 219, 225 ff.; Tochilovsky, Jurisprudence of the ICC (2008), pp. 519 ff.; Zahar and Sluiter, International Criminal Law (2007), pp. 73 ff. 958 About its functions and role see ICC, Situation Uganda, No. ICC-02/04–101, Decision on victims’ application for participation a/0010/06, a/0064/06 to a 0070/ 06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, para. 4, 164 (August 10, 2007); Prosecutor v. Joseph Kony et al., No. ICC-02/04–01/05–243, Decision on the OPCV’s observations on victim’s applications on the prosecution’s objections thereto (April 16, 2007); Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/ 06–1211, Decision on the role of the Office of Public Counsel for Victims and its request for access to documents (March 6, 2008). See also Massidda and Pellet, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 691 ff., 706; Bock, Das Opfer vor dem IStGH (2010), pp. 501 ff. 959 Prosecutor v. Joseph Kony et al., No. ICC-02/04-01/05-134, Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications of participation etc., para. 7 (February 1, 2007). 960 Safferling, International Criminal Procedure (2012), p. 69. 961 Vasiliev, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), p. 700, 719 with further references; citically Swoboda, Verfahrens- und Beweisstrategien (2013), p. 223.

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solving ideal-type and is therefore an indication that the ICC resembles a reactive state: once the conflict does not exist between victim and perpetrator but between prosecutor and suspect and once the prosecutor does not even represent the victim in a narrow sense, every measure to transform the victim into a third participant, thereby influencing the conflict to whatever extent, means turning the pure conflict into policy-implementation.962 Thus, the goal of victim participation at the ICC is a policy-implementing feature and indicates again that the ICC resembles an activist state. (c) Other Goals and Intermediate Conclusion Other special goals of the ICC and international criminal justice respectively shall only be outlined briefly. One goal is the restoration of international piece and security.963 According to the President of the ICC, “one of the most important of the Court’s field activities is outreach to local populations. An integral part of justice is that it is seen to be done. The ICC, its role and its activities must be understood.”964 This goal is aimed more broadly than simply establishing the guilt of the accused or to resolve a conflict between the alleged offender and the prosecutor.965 Thus, it points to a policy implementing rather than a conflict-solving form of procedure.966 Another goal is to change a culture 962

Damaška, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 365, 373: “If contemporary criminal procedure is to remain tilted in favor of the defendant, can it at the same time also favor victims? Can it serve two masters, so to speak? [. . .] [T]he balance of forces between the procedural contestants is nevertheless affected: the defendant could easily begin to harbor the feeling that he is engaged in agonistic confrontation with more than one procedural adversary. The equality of arms may in this situation become problematic.” 963 Swart, 6 JICJ (2008), 87, 100. This was the primary rationale for the Security Council’s creation of the ICTY and the ICTR. See U.N. Charter Arts. 39–41; Cassese, International Criminal Law, 2nd ed (2008), pp. 325–326; Prosecutor v. Tadic´, No. IT94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 18 passim (October 2, 1995); Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 88; von Bogdany and Venzke, 12 German L.J. (2011), 1341, 1342 (“At the same time many international courts with a particular thematic outlook are justified on similar functional lines due to their contribution to effectively implementing specific goals that have come to complement the maintenance of international peace.”). 964 See , last visited 22 September 2013. 965 Tuinstra, Defence Counsel (2009), p. 120. 966 Ibid.; cf. Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 226. (“The Security Council resolution which announced the establishment of an international tribunal for the former Yugoslavia stated that the tribunal would prosecute persons responsible for serious violations of humanitar-

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of impunity.967 In a conflict-solving form of justice, the neutral conflict resolver judges “in favour of the party who wins the courtroom disputation”.968 This makes impunity dependant on the (procedural)969 success within a conflict. In this form of justice, it is better to risk erroneous acquittals than erroneous convictions.970 However, high acquittal rates could easily augur failure of the mission of international criminal justice.971 By contrast, in a policy-implementing form of justice, “procedure is basically a handmaiden of substantive law. If the purpose of the legal process is to realize state policy in contingent cases, decisions are legitimated primarily in terms of the correct outcomes they embody.”972 The classification of the goal of changing impunity is thus a policy-implementing feature. In sum, while the traditional goals of criminal justice indicate both a conflict-solving and a policy-implementing form of justice, the special goals – some of them I have described – clearly indicate a strong policy-implementing character of the ICC in general.973 In the absence of international structures, the goals of international criminal justice need a policy-implementing international organisation – the ICC – to achieve those goals,974 ian law which ‘would contribute to the restoration and maintenance of peace’. This suggests the need for active trial management to ensure that cases are dealt with expeditiously. But beyond this other objectives have been canvassed for international criminal tribunals which would seem to require a more drawn out process such as the need to give victims a forum for telling their stories, to aid the process of national reconciliation after conflict and to produce a reliable account of atrocities that have taken place.”) 967 Schrag, 2 JICJ (2004), 427, 428; Swart, 6 JICJ (2008), 87, 100; for a discussion of the anti-impunity norm, see Pensky, 1 Ethics & Global Politics (2008), 1 ff.; Combs, Guilty Pleas in International Criminal Law (2007), p. 11; in detail, see Jorda, JICJ (2004), 572, 579 (“A central purpose in establishing international criminal tribunals has therefore been said to be to eliminate impunity of the highest civilian and military leaders in order to prevent a recurrence of war crimes and crimes against humanity.”); Zappalà, in: Cassese, ed., The Oxford Companion to International Criminal Justice (2009), pp. 216, 219, 223 (“The main reason is that ICL has emerged with the specific purpose of being instrumental in stemming impunity (and this is still its main raison d’être)).” 968 Damaška, Faces of Justice (1986), p. 101. 969 Ibid., pp. 102–103: “The reactive ideology reinforces a procedural perspective on the administration of justice: in brief, how a decision is reached counts as much as what it says. In the limiting case of purely reactive government, procedural questions almost totally eclipse substance.” 970 Schwartz, in: David Luban, ed., The Good Lawyer (1983), p. 158; see also Goodpaster, 78 J. Crim. L. & Criminology (1987–1988), 118, 135. 971 Damaška, 10 JICJ (2012), 611, 613. 972 Damaška, Faces of Justice (1986), p. 148. 973 Swart, 6 JICJ (2008), 87, 107. 974 Jackson, 7 JICJ (2009), 17, 20.

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Figure 25: Analysis of the “Traditional” Goals of Criminal Justice with a View to the Categories “Policy-implementing” and “Conflict-solving”

because they go beyond the conventional purpose of domestic procedures to convict those guilty of crimes.975 The goals of substantive truth finding and the provision of an accurate historical record will prove especially important for the course of this study, since they naturally influence the procedural questions I asked at the outset. However, the result that the ICC as an international organisation resembles an activist state deserves qualification. It is necessary to analyse not only the overall form of justice at the ICC, but also the form of procedure, because a separation of the two would be artificial. In fact, goals like substantive truth finding might indicate policyimplementation, but this contention cannot be made without looking at certain procedural rules that allegedly distort the search for truth.976 Thus, the statement that the ICC resembles an activist state is an important but intermediate conclusion, as it is the same case with the conclusion that the ICC has a coordinate structure of authority.977 Thus, in the following, I will analyse some procedural rules of the ICC in more detail in order to assess what they reveal about the structure of authority and the form of procedure. Again, it is not possible to conduct this analysis in respect of every single procedural element, even though this would be desirable. 975 For a discussion see Schabas, The UN International Criminal Tribunals (2006), Ch. 12, pp. 67–73; Jackson, 7 JICJ (2009), 17, 20 (“[T]ribunals need to establish a policy of prioritizing cases within their budgets to deal with those who are highest up the chain of command and suggests a need to engage in active trial management to ensure that all cases are dealt with expeditiously.”). 976 Cf. O’Connell, 93 Am. J. Int’l L. (1999), 334, 345 (“New ILP [International Legal Process] suggests that today the values are broader, incorporating the insights of various new legal theories to conclude that individuals should be held accountable under international law for human rights abuse, regardless of the setting in which it occurs. An understanding of the goals of the method makes it possible to shape procedures to achieve those goals.”) 977 See supra E. IV. 1. a).

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Figure 26: Analysis of the “Special” Goals of International Criminal Justice with a View to the Categories “Policy-implementing” and “Conflict-solving”

2. Organisation of Authority and Form of Procedure I will now diverge from the ICC as a whole and go into more procedural details. To apply Damaška’s concept comprehensively and thoroughly, it will be seen that the inclusion of comparative elements is necessary. Thus, I will have recourse to domestic proceedings, especially in England/Wales and the U.S.A., but I will refrain from making too many references to other international and internationalised tribunals. Those tribunals are themselves international constructs without a state, which borrowed from domestic criminal proceedings. To draw inferences from possible similarities between – for instance – the ICTY procedure and the ICC procedure as to the qualification of the latter as conflict-solving or policy-implementing would be fruitless. That does not mean that I completely refrain from a comparison with international or internationalised tribunals. Such a comparison can indeed provide useful insights on the procedure of the ICC. However, the results from this comparison will not have more legitimacy than the results from the comparison with domestic proceedings.

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a) The Judge aa) Organisation of Authority In this section, I will analyse the position of the judge at the ICC in order to identify any indications of whether this position resembles a hierarchical or coordinate structure. Since I will diverge from the ICC as a whole and examine more procedural details, I will increasingly use comparative and empirical elements to underline the judge’s characterisation at the ICC. (1) The Judge Within the Civil Law Tradition The judiciary within the Civil Law tradition is typically a corps of specially trained professionals,978 who usually serve that role throughout their professional lives.979 In Japan, for example,980 the judiciary is professionalised, centralised, and hierarchical. The vast majority of judges are graduates of one of a handful of the country’s most competitive and prestigious universities.981 Judges in a Civil Law tradition “are a bureaucratic corps of government servants, who are in a sense employees of the ministry of justice just as other civil servants are employees of the ministry of agriculture or the foreign ministry . . . [and] . . . have a great many ties of outlook and sympathy with other government executives.”982 As Koch points out: “They move from the apprenticeship supervised by senior judges, to junior positions on less important courts, to ever more important positions on more 978 See Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), pp. 34–35; Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 142–143. 979 See, e. g., Foster and Sule, German Legal System & Laws, 2nd ed (1996), p. 90 (“In Germany the judiciary is a separate career, embarked upon by professionally qualified lawyers after educational and practical legal training; it is not entered after a number of years’ practice as an attorney.”); Zweigert, Kötz and Weir, Comparative Law, 3rd ed (1998), p. 124 (“Judges in France, like those in Italy and Germany, are career judges; they opt for a judicial career early in life, they are appointed by the state after passing the necessary examinations, and they are generally promoted to more important positions in higher courts on the basis of their performance and years of service.”). But see Haley, Authority without Power (1991), p. 106, stating that the U.S. occupation of Japan attempted to consolidate lawyering and judging. 980 I chose Japan, because – as I will demonstrate – Japan introduced conflictsolving elements, although its judiciary remained hierarchical. 981 Generally Miyazawa, in: Lewis, ed., Law and Technology in the Pacific Community (1991); see also Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66, 80. 982 Shapiro, Courts (1986), p. 151.

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important courts. They serve within a community of judges who are available to assist them in becoming better judges.”983 In Japan, for example, the judiciary is organised in a classic bureaucratic structure. The Supreme Court Secretariat is responsible for staffing the judiciary, and transfers judges to positions around the country.984 Thus, promotions of judges within the Civil Law tradition are based on performance and are controlled by judges themselves in some form of council.985 This self-control is, for example, illustrated by the French Constitution, which establishes a disciplinary body dominated by judges.986 Judges within the Civil Law tradition regard themselves as “government officials”,987 and essentially are a branch of the civil service.988 Since, in some countries, both prosecutors and judges fall under the responsibility of the Ministry of Justice, there are continuing connections between government lawyers and judges.989 In sum, the Civil Law tradition usually comprises hierarchical officialdom.

983 See Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 143. Koch interestingly continues evaluating the judiciary within the Civil Law and Common Law tradition. This evaluation, however, shall not be of interest for this study since its purpose is to describe the judiciary at the ICC (in comparison to the judiciary within the Civil Law and Common Law tradition). 984 Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66, 81 (“Formally such transfers serve two functions: firstly, they assure that the most onerous duties and the least prestigious posting will be assigned to new judges, and frequent rotation assures that new judges will receive a wide variety of experience. Each judge is then expected to work his or her way up to more responsibility. [. . .] Secondly, judges are allocated to areas proportionate to demand for their services. As a routine part of its job, the Secretariat monitors the decision-making and productivity of all judges, and advancement flows accordingly. Formally, it is a system of meritocracy. One measure of the strength of this judicial bureaucracy is its size. In Japan nearly one-half of all active judges are assigned to tasks other than hearing cases; they staff the judicial bureaucracy, serve as instructors in the legal training program, and occasionally are on leave to help staff national prosecutors’ offices and serve in other governmental capacities.”). 985 See Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 143. 986 Flanz, La Constitution, Art. 65 (2000), p. 19; see in more detail Bell, Boyron and Whittaker, Principles of French Law (1998), p. 64 (“Since promotion is central to the career of all judges, its organization is all the more relevant and must be strictly regulated.”); Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 147. 987 Shapiro, Courts (1986), p. 152. 988 Ibid.; see also Wolfe and Proszek, 33 Tulsa L.J. (1997), 293, 330. 989 Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66, 83, who continues: “Occasionally prosecutors will shift careers and accept an assignment as a judge or will take a leave of absence to accept a temporary assignment as a prosecutor. This strong and continuing connection between judges and prosecutors also facilitates occasional ex parte communications between judges and prosecutors.”

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(2) The Judge Within the Common Law Tradition In contrast to the Civil Law tradition, in the Common Law tradition judging is not regarded as a separate legal profession. The U.S. judiciary, for example, is staffed by “amateur” judges,990 largely drawn from a related, but in many ways dissimilar, legal advocacy.991 Usually, (state court) judges are not appointed by a state bureaucracy but elected by local constituencies or appointed by local political leaders and serve a term of years.992 Judges at higher state courts present a different picture: In a majority of states, those judges are now appointed by the governor. In most of these states, the judge then periodically stands unopposed for re-election by popular vote on the basis of his or her record. In many states, however, judges of the highest court are still elected, though in most of these states the election is nonpartisan.993 Federal judges are appointed by the President of the United States, subject to confirmation by the Senate.994 Judges have therefore backgrounds in local politics and – at least in case of American judges – are likely to serve only on one court, the one to which they are initially appointed, with limited prospects for advancement.995 That does not mean that any hierarchical elements are lacking: Most state judicial systems and the federal judicial system are divided into 990 Ibid., pp. 76, 77 (“More generally, in the United States, there is no tradition of strong judicial administration which engages substantial numbers of judges to oversee docket management, train new judges, and the like. [. . .] Although there are a number of judicial administration and training institutions in the United States, they are not staffed, even at the top, by members of the judiciary, and operate at arm’s length from any judicial system.”). 991 Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 143. 992 Kagan, Adversarial Legalism (2003), p. 72; Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 145; Farnsworth, Legal System of the USA, 4th ed (2010), p. 34. 993 Farnsworth, ibid. 994 Ibid., p. 35. 995 Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66, 76 (“Even in the largest state jurisdictions, judges are likely to receive only a handful of different assignments within the ‘unified’ court on which they sit. They may begin their careers with an initial assignment in one of the lower-prestige and very busy divisions (juvenile, small claims, misdemeanor, arraignment, etc.) and then be moved up to a higher-status or slower-paced division which handles trials, major criminal offenses or larger civil controversies. But even here, it is not likely there will be a change of position, title or salary; only a switch across a hall or up a floor or two, from one division to another within the same court. Despite its great prestige, there is even less mobility within the federal judiciary. Almost all federal district court judges are likely to sit in the same courtroom and hear the same sorts of cases throughout their entire tenure on the bench.”); Jacob, 31 Law & Soc’y Rev (1997), 3–30.

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three levels, trial courts, intermediate appellate courts, and supreme courts.996 However, the pyramid is nearly flat.997 Additionally, although local courts all have “presiding” or “chief” judges, such positions are “either honorific or are restricted to performance of routine administrative duties. Indeed, most such positions are filled by rotation or seniority and are regarded as temporary administrative chores by those who hold them.”998 Judges within the Common Law tradition exist apart from the civil service and appear to identify rather with lawyers than with the government.999 In the Common Law tradition, part of the decision-making process is assigned to lay people.1000 In sum, the Common Law tradition usually comprises coordinate officialdom. That Common Law is not automatically connected to coordinate officialdom and vice versa, as is demonstrated by the U.S. administrative judge as well as trials without jury. First, in many U.S. states, administrative judges are brought together into one administrative unit, usually called a “central panel”, from which individual agencies request judges.1001 This largely resembles the hierarchical model.1002 Second, as outlined above, legal systems with coordinate authority usually lay the task of deciding a case in the 996

Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66,

76. 997

Ibid. (“[T]he vast majority of judges are trial court judges. Furthermore, judges from upper-level courts need not be and usually are not recruited from lower Courts. In short, the overwhelming majority – perhaps as high as 98 percent – of American judges begin and end their judicial careers sitting in the same courthouse and indeed often on the same bench.”); see also Jacob, 31 Law & Soc’y Rev (1997), 3–30. 998 Feeley, in: id. and Miyazawa, eds., Japanese Adversary System (2002), p. 66, 78. 999 Shapiro, Courts (1986), p. 94; see also Wolfe and Proszek, 33 Tulsa L.J. (1997), 293, 330–331. 1000 See Kagan, Adversarial Legalism (2003), pp. 9–10, 12–14; Taslitz, 94 Geo. L.J. (2005–2006), 1589, 1594 (“In the ideal, hierarchical control of the processes and standards for decisionmaking by elite state officials is minimized by assigning decisionmaking responsibility to a jury comprised entirely of laypersons. Lay jurors – who are largely concerned with the case before them and are not repeat players in the system – are, however, less likely than state officials to worry about (or have the tools to achieve) uniformity, predictability, and stability across a wide range of cases.”) 1001 Flanagan identified twenty-five states and at least three major cities. Flanagan, 54 Admin. L. Rev. (2002), 1355, 1357. This approach has been proposed for federal adjudications for years. See e. g., Scalia, 47 U. Chi. L. Rev. (1979), 57, 79 (“The problem of improper influence would also be solved by implementing proposals for establishment of a unified ALJ corps, headed by an independent administrator.”). For several reasons, the unified panel has not been adopted in the federal system. See Verkuil et al., The Federal Administrative Juriciary (1992), pp. 171–174.

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hands of lay magistrates or a jury. However, this coordinate feature is sometimes missing. It is a common reaction in this case to deny the trial its “adversariness”. For instance, in Northern Ireland, so-called “Diplock Trials” were created to handle terrorist crimes.1003 For those trials, the jury was deemed inappropriate as the decision-maker because it was feared that jurors would be intimidated and “[l]oyalist defendants would be perversely acquitted by what were then predominantly Protestant juries.”1004 (3) The Judge Within the ICC System The 18 judges at the ICC are assigned to different divisions, namely to the Pre-Trial, Trial and Appeals Divisions (Art. 34 ICC-Statute).1005 The judges can rotate between the Pre-Trial and the Trial Division, but judges assigned to the Appeals Division shall only serve in that division.1006 Judges from the Trial and Pre-Trial Divisions may temporarily be assigned to the other division, although no judge who has participated in the pre-trial phase of a particular case may sit on the Trial Chamber of the same case.1007 In the exercise of their judicial functions, the judges, irrespective of age, date of election or length of service, are of equal status.1008 Addi1002 See Hardwicke, 53 Admin. L. Rev. (2001), 419, 425–427; see generally Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 147 (“In short, a self-managed judiciary has suggested its advantages in the United States, and its adoption demonstrates that it can be incorporated into a common law setting.”) 1003 The commission that decided to introduce those trials was chaired by Lord Diplock. The Northern Ireland Emergency Provisions Act, including suspension of jury trials and recommendations for jury-less “Diplock courts”, was enacted in 1973, see Greer and White, in: Findlay and Duff, eds., The Jury under Attack (1988), pp. 173–175; Safferling, Towards an International Criminal Procedure (2001), p. 214. 1004 Shinomiya, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), pp. 114, 122–123. 1005 The term “Division” rather than “Chamber” was used in order to resolve a dispute about whether there should be one or several pre-trial chambers, see Schabas, Introduction to the ICC, 4th ed (2011), p. 372. 1006 Art. 39(4) ICC-Statute. See Schabas, Introduction to the ICC, 4th ed (2011), p. 372: “Nevertheless, it is possible for a judge who has already served on the PreTrial or Trial Chambers to be named to the Appeals Chamber. These ‘contaminated’ judges cannot sit in proceedings in which they were previously involved at the pretrial or trial stage.” See also Report of the Committee on Budget and Finance on the Work of Its Twelfth Session, ASP/8/5, para. 107–108; Report of the Court on the New Composition of the Appeals Division and the Excusal of Judges, ASP/8/ 31; Abtahi, Ogwuma and Young, 11 JICJ (2013), 379, 383 with further references. 1007 Schabas, Introduction to the ICC, 4th ed (2011), p. 373; Abtahi, Ogwuma and Young, ibid. 1008 Regulation 10 RegCourt.

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tionally, the ICC Appeals Chamber points out: “The Pre-Trial and Trial Chambers of the International Criminal Court are in no way inferior courts in the sense that inferior courts are perceived and classified in England and Wales. Hence, any comparison between them and inferior courts under English law is misleading.”1009 The Judges are elected from two lists (Art. 36(5) ICC-Statute): List A shall consist of candidates with established competence in criminal law and procedures and the necessary relevant experience, whether as Judge, Prosecutor, advocate, or in another similar capacity in criminal proceedings. List B shall consist of candidates with established competence in relevant areas of international law, such as IHL and human rights law, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.1010 Additionally, the candidates shall be of “high moral character, impartiality and integrity” and “possess the qualifications of their national law for appointment to the highest judicial offices” (Art. 36(3)(a) ICC-Statute).1011 The Judges shall be selected by lot to serve three, six, or nine years (Art. 36(9)(b)). Only the Judges elected for a term of three years are eligible for re-election (Art. 36(9)(c)). Judicial impartiality shall be secured by not engaging in any other occupation of professional nature. Especially because the List B Judges are basically diplomats without any criminal trial experience,1012 the nomination and election processes are characterised by a high degree of politicisation, a lack of transparency and a lack of minimum standards, which would guarantee a minimum qualification of the judges so elected.1013 In case a judge is found to have committed serious misconduct or a serious breach of his or her duties or is un1009 ICC, Situation in the Democratic Republic of Congo, No. ICC-01/04–135, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, para. 30 (July 13, 2006). See also Schabas, Introduction to the ICC, 4th ed (2011), p. 373. 1010 See in more detail Ambos, Internationales Strafrecht, 3rd ed (2011), p. 118; id., 23 CLF (2012), 223–228. 1011 See Abtahi, Ogwuma and Young, 11 JICJ (2013), 379, 386. 1012 Bohlander, 12 NCLR (2009), 529, 532 ff.; id., IYILP (2009), 326 ff.; see also Ambos, 21 LJIL (2008), 911, 915 with fn. 22 and id., 23 CLF (2012), 223– 228; Swart, 24 LJIL (2011), 789 with further references. 1013 Mackenzie et al., Selecting International Judges (2010), p. 173: “Evidence of politicization is apparent at both the nomination and election stages. For both courts [ICJ and ICC], nomination practices are fragmented, lacking in transparency, and highly varied. At one end of the spectrum, a few candidates emerge following a transparent and formal consultative process that focuses on merit; at the other end, it is not unusual for individuals to be selected as a result of overtly political considerations or even nepotism. Whatever form of nomination process is adopted, all nominated candidates must work their way through a highly politicized election process.”

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able to exercise the functions required by the ICC Statute, the ASP can remove him or her from office.1014 If a judge has committed “misconduct of a less serious nature”, he or she can be subject of disciplinary measures.1015 In sum, there are features of the judiciary that indicate both a coordinate and hierarchical structure. One the one hand, I identify, inter alia, the following coordinate features: first, the judges within the Chambers – whether the five judges belonging to the Appeals Chamber, the three judges of the Trial and Pre-Trial Chamber respectively or the single judge within the Pre-Trial Chamber1016 – all belong to the same level of authority, regardless of their position as a presiding judge.1017 Second, that candidates from List B do not need to have any criminal experience is a rather coordinate than hierarchical feature, as defined by Damaška: “[Within a conflict-solving procedure], [t]he importance of both professional training and a period of apprenticeship is minimized or totally eliminated. A candidate for office is preferably an established person who has made his mark in society, a problem-solver attuned to community values. Since socialization to a bureaucratic world is not necessary, even the highest positions may be entered laterally, that is, by outsiders without previous experience in the machinery of criminal justice.”1018

Third, in a coordinate officialdom, judges are entitled to deliver individual opinions.1019 The same is true of the Rome system, as Art. 74(5) ICC shows: “When there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority and the minority.”1020 By contrast, individual opinions are seldom expressed in a legal system with a hierarchical ideal. In Germany, for instance, the person and opinions of the individual judge are almost entirely irrelevant: there are no separate or dissenting opi1014

Art. 46(1), (2) ICC-Statute. Art. 47 ICC-Statute. 1016 Art. 39(2); 57(2)(b) ICC-Statute; Rule 7 ICC-RPE; Regulation 47 RegCourt. See generally Schabas, Introduction to the ICC, 4th ed (2011), p. 373; Abtahi, Ogwuma and Young, 11 JICJ (2013), 379, 382. 1017 Art. 74(1) ICC-Statute clearly determines that “[a]ll judges of the Trial Chamber shall be present at each srage of the trial and throughout rheir deliberations”. 1018 Damaška, 84 Yale L.J. (1975), 480, 511. 1019 Ibid., 480, 517. 1020 See also Boas et al., International Criminal Procedure, ICL Practitioner Library Series Vol. III (2011), p. 384: “[I]t seems inherent in the principle of judicial independence that a judge should be able to express a dissenting view when he or she believes the majority is incorrect and sign the dissent, leaving it to future chambers, jurists, and the public to determine the weight to be attributed to it on the basis of the force and coherence of the judge’s reasoning.” 1015

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nions, except at the level of the constitutional court (Bundesverfassungsgericht).1021 As Bohlander remarks: “[T]he style of writing is de-personalised and detached; and the reader cannot and must not know which judge voted in which manner during the deliberations (and usually does not care, either).”1022 On the other hand, I identify the following hierarchical features: first, the decision-makers at the ICC are professionalised full-time judges and not lay people.1023 They are specialised and can create “the space for routinization”.1024 Second, in the hierarchical model more serious cases are allocated to a panel.1025 At the ICC, all Chambers work in panels (although in certain circumstances the Pre-Trial Chamber may be represented by a single judge).1026 Third, the Pre-Trial and Trial Chambers are on equal hierarchical footing. The Appeals Chamber enjoys hierarchical superiority1027 and hears interlocutory appeals from pre-trial and trial decisions, appeals from judgement and sentence, and requests for revision.1028 This is in line with Damaška’s characterisation of judicial review within the hierarchical officialdom: “If judicial review is allowed, it is entrusted to a special high tribunal which deviates in many ways from ‘normal’ courts.”1029 Fourth, judges can rotate between the Pre-Trial and the Trial Divisions. The Presidency, as an organ of the Court,1030 assigns cases to the Chambers, organises them and increases the number of judges if necessary.1031 Therefore, although the judges are based on a similar echelon of authority (which is a coordinate feature), they are professional officials whose assignment depends on a superior, i. e. the Presidency. Of course this superiority cannot be understood as strictly hierarchical, but it is formally superior: despite the 1021

Bohlander, Principles of German Criminal Procedure (2012), p. 129. Ibid. 1023 Terris, Romano and Swigart, The International Judge (2007), p. 54. 1024 Cf. Damaška, Faces of Justice (1986), p. 19. 1025 Damaška, 84 Yale L.J. (1975), 480, 499. 1026 Art. 39(2)(b)(iii) ICC-Statute. 1027 However, see Safferling, International Criminal Procedure (2012), p. 534: “Having said this, it must be considered that the Appeals Chamber is understood to be of a higher nature only in the hierarchical sense. Structurally speaking, the Appeals Chamber is composed of a balance of judges with similar competences as their colleagues in the Pre-Trial and Trial Chambers. This is due to the requirements stipulated in Art. 36 ICCSt, regarding the qualification, nomination, and election of all judges.” 1028 Art. 82 ICC-Statute. 1029 Damaška, 84 Yale L.J. (1975), 480, 500. 1030 See supra E. IV. 1. a) with fn. 835, S. 205. 1031 Art. 38(3) ICC-Statute; Art. 61(11) ICC-Statute and Rule 130 ICC-RPE; Safferling, International Criminal Procedure (2012), p. 135. 1022

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right to assign and organise judges, it serves as the administration of the Court, secures funds and other resources, seeks assistance in apprehending suspects, makes the case for states to sign on as parties to the Court and may even review the decisions of the Registry, pursuant to Regulation 216 RegR.1032 Interestingly, the rotation of judges is also noticeable spatially: within the ICC-building pre-trial judges, trial judges, and appeal judges are on the same floors.1033 Despite the coordinate feature the judiciary clearly has, hierarchical features prevail in my view. Of course it is almost impossible to reach this conclusion on a quantitative basis. The judicial elements I analysed present only a selection of elements that can always be arbitrarily separated into more elements or compiled into a broader element. Instead, I recognise a qualitative domination of hierarchical elements, such as the existence of an Appeals Chamber and the professionalisation of decisionmakers. All in all, the “strong centrifugal tendencies”,1034 which Damaška describes as inherent in the coordinate model, shall be explicitly avoided at the ICC: “We want to have one court, a court that is perceived as one force, not as a series of centrifugal forces.”1035

1032 Terris, Romano and Swigart, The International Judge (2007), p. 159; see, e. g., Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICCRoR217-02/08-8, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008” (March 10, 2009), where the Presidency overruled a decision of the Registry on the ground of a Violation of Regulation 179 RegC; Safferling, International Criminal Procedure (2012), p. 136. 1033 Terris, Romano and Swigart, The International Judge (2007), p. 84. 1034 By referring to “centrifugal tendencies” or “centrifugal forces”, Damaška detects an inherent danger of the coordinate model that the horizontal distribution of authority encourages officals to merely act in their own interest. He states: “[W]ith no one clearly superior to others, there is essentially a single stratum of authority. [. . .] It has been said that where there is no ultimate authority, things fall apart and anarchy is loosed upon the world.”, see Damaška, Faces of Justice (1986), p. 125. As an example, he describes the “strong centrifugal tendencies” of the Anglo-Americal judicial system: “Judges retain important autonomous powers typical of a decentralized judiciary: Like the jury, they can nullify substantive criminal law; the unreviewability of acquittals gives them significant leeway in deciding evidentiary issues; and the scope of their sentencing power is astonishing by continental standards. As a result, centralization of policies cannot be achieved nearly so easily as it is in the hierarchical systems.”, see id., 84 Yale L.J. (1975), 480, 515 (fn. omitted). 1035 See Terris, Romano and Swigart, The International Judge (2007), p. 83.

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bb) Form of Procedure This having been said, attention has to be drawn to the form of procedure that may follow from the characterisation of the judiciary at the ICC. (1) The Decision Maker According to Damaška’s Models First, I will describe the judicial role of the judge according to Damaška’s two procedural models. Damaška himself prefers the term “decision maker” over “judge” for obvious reasons (for instance, the decision maker includes lay participants). (a) The Decision Maker in a Policy-implementing Form of Procedure The decision maker in the policy-implementing form of procedure is – as already described – an official. Where officials are in charge of both process and decision-making, the optimal shape of proceedings depends far more on the specific character of procedural authority.1036 The decision maker is authorised to examine all aspects of the event or the transaction brought before him or her.1037 State control can be organised in several ways. One arrangement, usually thought to be mandated by the pure “inquisitorial” form, is for fact-finding to be structured and dominated by the person or persons in charge of rendering the decision on the merits. It is the trier of fact, not some other official, who is primarily responsible for eliciting testimony; he or she generates the bulk of questions to the witnesses, decides on the sequence in which they will be interrogated, and the like.1038 Another method, preferable in most cases, is to entrust the gather1036

Damaška, Faces of Justice (1986), p. 147. Ibid., p. 159. Unlike in common law jurisdictions, where the prosecutor may be only tangentially involved in the investigation prior to trial as a procedural advisor to the police, and the judge is uninvolved in the case until trial, a civil law investigating judge or the prosecutor receives the case early in the pre-trial process, and directs the investigation, see Langbein, Comparative Criminal Procedure (1977), p. 8. In Germany, the trial judge is even entitled to order the production of additional evidence. A striking example for this practice is the case against the former German president Christian Wulff, who was charged with corruption. The state court in Hannover said that there was not enough evidence to support that charge, but opened proceedings against Mr. Wulff on charges of illegally accepting favours. For the “new” charge, the judges ordered the production of additional evidence and requested material the prosecution failed to provide. See Gutschker, Frankfurter Allgemeine Sonntagszeitung (15 September 2013), 4; Eddy, The New York Times (27 August 2013), available at , last visited 15 September 2013. 1037

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ing of information and the examination of evidence before the decision maker to a specialised official.1039 Alternatively, an official “trial manager” can be appointed who has not conducted a preliminary investigation and whose sole function is to interrogate witnesses and present other proof to the trier of facts.1040 Still another possibility is to have two state officials, “each predicating his activity on a different factual hypothesis, independently gather information and then develop evidence before the trier of fact through rival use of evidentiary sources”.1041 The hypothesis of guilt can be explored by a state prosecutor and the hypothesis of innocence by a state defender.1042 The rejection of private control over fact-finding does not imply that private individuals are excluded from participating in the collection of information and examination of evidence.1043 However, fact-finding is still based on an official inquiry.1044 Thus, the activist decision maker is not bound to treat both sides equally.1045 Analysis, not choice, is the essence of activist decision-making.1046 He or she may postpone a definitive decision until such time as he or she is “more amply informed”, ordering only the necessary provisional measures.1047 1038

Damaška, Faces of Justice (1986), p. 162. See, e. g., the French procedure, where during the early investigation stage, several formative operations are carried out under the direction and authority of an investigating judge, who has considerable powers, Boas, in: id. and Schabas (eds.), International Criminal Law Developments (2003), pp. 1, 21–22, noting that “several continental European systems of criminal procedure [. . .] do not have the investigating judge as part of their investigation process,” referring to the German system where the prosecutor decides which cases to take to trial, and the Danish system, where the police carry out investigations. However, compare the Ermittlungsrichter in Germany. The Ermittlungsrichter, resulting from a reform in 1974, is far from similar to the French juge d’instruction. According to German criminal procedure, any potential infringement of the right to liberty and security of person, and his right to privacy, cannot be permitted without a court order (§ 162 StPO). The institutionally competent authority at court is the Ermittlungsrichter (§ 21e GVG). The system generally operates on two levels: (1) in principle a judge must authorise the interfering action; (2) in urgent cases (Gefahr im Verzuge), an order issued by a prosecutor or a senior police officer is sufficient. 1040 Damaška, Faces of Justice (1986), p. 162 with further references. 1041 Ibid., p. 163. The Common Law obtains the factual substratum for his decision in open court from the parties. Anglo-American judges do not themselves make investigations into criminal cases independent of both prosecution and defense, nor do they usually delegate other agents to do so, see Ploscowe, 48 Harv. L. Rev. (1934–1935), 433. 1042 Damaška, Faces of Justice (1986), p. 163. 1043 Ibid., p. 161. 1044 Ibid., p. 147. 1045 Ibid., p. 168. 1046 Ibid., p. 169. 1039

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Through the eyes of laissez-faire ideologists, truth seems elusive and reality, like the muses, seems always to have another veil. In contrast, getting the facts right is normally one of the preconditions to realising the goal of the legal process in the activist state.1048 Even if an activist state were to embrace no values that constrain the search for the truth, the attempt to attain the highest possible standard of proof would impose unacceptable costs in terms of delay and various other vexations.1049 Thus, rather than saying that the policy-implementing process strives to maximise the chances of discovering the truth, one might prefer to say that it tries to attain optimal levels of fact-finding accuracy, given the various constraints imposed on its operation.1050 (b) The Decision Maker in a Conflict-solving Form of Procedure In the conflict-solving form of procedure, the judge is not supposed to advance independent policies or values.1051 Citizens expect a neutral, objective or impartial attitude from the decision maker.1052 An active judge is no longer a perfectly impartial conflict solver.1053 As Damaška states: “Suppose that the decision maker chooses to seek information he needs for the disposition of the case from sources other than those channelled to him by the parties. After obtaining some knowledge independently, it now becomes difficult for him to decide the case on the criterion dictated by the conflictsolving process – that is, by determining which side has made a better argument.”1054 (Compare this to the comments of some scholars who doubt that an inquisitorial interpretation of the decision maker’s role can secure the presumption of innocence.1055 After what has been pointed out by Damaška, what those scholars really doubt is the ability of such a decision maker to decide in favour of the better argument.) Thus, a perfect conflict solver is not necessarily a perfect judge.1056 1047

Ibid., p. 170. Ibid., p. 160. 1049 Ibid., p. 161. 1050 Ibid. with further references. 1051 Ibid., p. 102. 1052 Ibid., p. 136. In comparison to the U.S.A., an English judge takes a more active role at trial and is endowed with more powers to act at trial than a U.S. judge, see van Kessel, 67 Notre Dame L. Rev. (1991–1992), 403, 429, 433, 434, 481; Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 1, 26. 1053 Damaška, Faces of Justice (1986), p. 107. 1054 Ibid., p. 136. 1055 See supra E. III. 4. a) aa). 1056 Damaška, Faces of Justice (1986), p. 108. 1048

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Ideally, a judge decides a case within the legal limits the parties have described.1057 Many English judges still regard it as improper to rely on a precedent or a legal argument that counsel for the parties has not canvassed; and if the judge thinks that the litigants have overlooked important authority, he will schedule the case for further hearing.1058 The bulk of legal information, as well as the facts of the case, reaches the Anglo-American judge through the filter of party argument.1059 Thus, where the judge is permitted to range beyond the allegations of the parties, the state interest in implementing its policies and programs can trump the interest of the parties in having their disputes resolved.1060 Moreover, where the parties no longer decide what the factual issues are, the legal process no longer serves the objective of dispute resolution.1061 Where the official questions a witness testifying in favour of one disputant, the other may think that the official is assisting his adversary.1062 The impartial position of procedural authority is better maintained if officials refrain from active fact research and merely referee the competitive fact-finding enterprise of the disputants.1063 An important difference to the policy-implementing form of justice also exists with regard to the search for truth: it is an old insight that truth can engender hatred and exacerbate a conflict, for to tell the truth is all too often to seriously offend. Thus, a legal process aimed at maximising the goals of dispute resolution cannot simultaneously aspire to maximise accurate fact-finding.1064 The verdict on the conflict-solving mode is not so much a pronouncement on the true state of the world as it is a decision resolving the debate between the parties, like a peace treaty putting an end to combat. In consequence, even if it were shown that fact-finding dominated by the parties uncovers the truth less effectively than impartial research does, this would not of itself preclude the possibility that the competitive evidentiary method might still be the preferable form in the conflict-solving process.1065 The state has no interest to which private self-governance should 1057

Ibid., p. 115. Ibid. with further references. 1059 Ibid., p. 116 with further references. William T. Pizzi pointedly remarks: “I have seen American trial judges on the bench going over legal papers from other cases, reading and signing letters, and even quietly discussing other matters with the court clerk in the middle of trial when a witness is testifying. If there is an objection, they will sometimes have to have the question read back by the court reporter so they can rule on it.”, see Pizzi, Trials Without Truth (1999), pp. 147, 148. 1060 Damaška, Faces of Justice (1986), p. 111. 1061 Ibid., p. 120. 1062 Ibid. 1063 Ibid., p. 122. 1064 Ibid., p. 123 with further references. 1065 Ibid. 1058

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be sacrificed; individual autonomy is its highest priority, and as a result, it places significant limits on the quest for truth. Moreover, since only difficult cases are litigated, the “truth” – no matter how conceived – tends to appear elusive and ambiguous. Thus, inspired by the ideology of reactive government, the conflict-solving process is indifferent to the events that eventually led to the conflict.1066 American judges in both civil and criminal cases have the power to call witnesses on their own initiative and sometimes inject themselves into the interrogation process; they often proclaim devotion to the discovery of truth, and some even profess to expect objectivity from all officials cast in party roles.1067 (This is, by the way, a good illustration that the mixed procedure of Anglo-American/Common Law and Continental/Civil Law is not appropriate as an ideal model pursuant to which so many scholars compare domestic procedural rules). In actual procedural systems, decision makers seldom perform the conflict-solving function alone.1068 Accordingly, the pure conflict-solving style has no room for procedural arrangements that expose the decision maker to material that has not previously been structured by party interaction and then refined by party contest.1069 Ideally, the decision maker must enter the case unprepared, unaware of all matters specifically related to the issues. He should have a “virgin mind”.1070 The policy-implementing process has no problem with a decision maker in possession of such knowledge, because it can empower him to bypass ordinary proof-taking processes and thus declare facts encompassed by his private knowledge to be “notorious”.1071 On this point, “Common Law procedure is again more consistently organised around the idea of party contest than the Continental administration of justice is: observe that the disqualification of Common Law jurors approximates the strong demand for ignorance which is consistent with pure conflict-solving style”.1072

1066 1067 1068 1069 1070 1071 1072

Ibid. Ibid., Ibid., Ibid., Ibid., Ibid., Ibid.

p. p. p. p. p.

124. 135. 136. 137. 138.

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(2) The Decision Maker at the ICC (a) Selected Observations: Evidence and Factual Knowledge As already mentioned, the ICC does not have juries but professional judges as decision makers.1073 According to Mégret, the absence of juries “means judges are not simply impartial arbiters but also the triers of fact. Inevitably, this will make the role of tribunal judges less procedural and passive, and more inquisitorial and substantive.”1074 The role of these judges is highly influenced by the special goals of international criminal justice, especially the provision of an accurate historical record and substantive truth finding.1075 In this regard, it is worth reading Art. 69(3) ICCStatute: “The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.” That does not mean that the Chamber has a duty to search for truth,1076 but it certainly means that the Chamber’s task is to ensure that truth finding, as a goal of international criminal justice, is implemented. Reacting to criticism of the ad hoc tribunals,1077 the ICC-RPE encourage increased judicial control of the proceedings: the judge is not merely the silent umpire of the proceedings – he or she can actively intervene to pose questions or request that additional evidence be presented.1078 This is also illustrated by the power of the Trial Chamber to convene status conferences in order to prepare for the trial in coordination with the parties.1079 Thus, 1073 Seguin, 18 B.U. Int’l L.J. (2000), 85, 107–108; Christensen, 6 UCLA J. Int’l L. & Foreign Aff. (2001–2002), 391, 418. 1074 Mégret, 14 UCLA J. Int’l L. Foreign Aff. (2009), 37, 69. 1075 De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 419. 1076 See Ambos, 3 ICLR (2003), 1, 21; de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 420. 1077 The trials before the ad hoc tribunals have been criticised as being complex and time consuming, which led to a desire to reduce the case-load and expedite trials, see Swart, 6 JICJ (2008), 87, 110. As a very clear reaction to that criticism see Art. 21(1) STL-Statute: “The Special Tribunal shall confine the trial, appellate and review proceedings strictly to an expeditious hearing of the issues raised by the charges, or the grounds for appeal or review, respectively. It shall take strict measures to prevent any action that may cause unreasonable delay.”; cf. Higgins, 5 J. Int’l Crim. Just. (2007), 394, 397–398. 1078 Rule 140 ICC-RPE. Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 80. This has been labelled as a “hallmark of the inquisitorial system”, see Rutledge, 16 Regent U. L. Rev. 151 (2003–2004), 151, 170–171. 1079 Art. 64(3)(a) ICC-Statute juncto Rule 132(2) ICC-RPE. The detailed powers of the Trial Chamber during status conference are spelled out in Regulation 54 RegC (Status conferences before the Trial Chamber).

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while the method of presentation remains dominantly adversarial,1080 the judges are able to participate in the examination of evidence and are not limited to the evidence that is disclosed through party interaction.1081 The judges can also ask the parties to take certain measures, or can themselves direct the adoption of measures on behalf of the parties or victims and witnesses.1082 Those powers are certainly more extensive than in many legal systems of the Common Law tradition, but less extensive than in legal systems of the Civil Law tradition.1083 If international judges considered themselves bound to that which was exposed orally by parties during trial, they would not be able to establish the larger record of atrocities.1084 Nevertheless, during the hearings the judge has only an intervening function, while the parties have the primary responsibility for presenting the arguments and evidence of their case.1085 Moreover, the parties can agree on the conduct of the trial. Another indication that the judge at the Trial Chamber is not a silent and impartial umpire in the conflict-solving procedure sense is the fact that the 1080 However, see Art. 64(8)(b) ICC-Statute: “At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute.” 1081 See Art. 64(6)(d) ICC-Statute and Rule 84 ICC-RPE. An exception to this Rule is incorporated in Rule 82(2) ICC-RPE. Tochilovsky, 6 Eur. J. Crime Crim. L. & Crim. Just. (1998), 55, 55–56; Rutledge, 16 Regent U. L. Rev. 151 (2003–2004), 151, 186. Interestingly, the same applies for the Federal Criminal Procedure in the U.S.A. According to Rule 611(a) of the Federal Evidence Rules, a judge shall exercise reasonable control over the mode and order of witness examination and presentation of evidence. Furthermore, Rule 614(a) and (b) of the Federal Evidence Rules gives a judge the power to call his or her own witnesses and to interrogate witnesses, both those called by the judge and those called by the parties. In reality, however, a judge rarely invokes this rule for fear of appearing biased and thus rendering a judgment that may be liable to be reversed, see Graham, Federal Rules of Evidence, 6th ed (2003), pp. 259, 260; van Kessel, 67 Notre Dame L. Rev. (1991– 1992), 403, 429; Schmid, Strafverfahren und Strafrecht in den Vereinigten Staaten, 2nd ed., (1993), p. 73. 1082 Rule 140 ICC-RPE. See generally Bensouda, 36 N.C. J. Int’l L. & Com. Reg. (2010–2011), 277, 280. 1083 Keen, 17 LJIL (2004), 767, 806. 1084 Mégret, 14 UCLA J. Int’l L. Foreign Aff. (2009), 37, 71 (“This also militates in favor of judges not leaving any stone unturned when it comes to fully understanding testimony presented to them, and thus intervening in court to have elements explained to them. Otherwise, they risk adopting judgments that are poorly informed, historically and socially, something that could have considerable incidence on transitional justice processes.”) 1085 Rule 140 ICC-RPE; de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 419.

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judge(s) of the Pre-Trial Chamber reason their findings in the confirmation decision and that this decision shall be transmitted to the Trial Chamber pursuant to Rule 130 RPE.1086 That basically means that the judges of the Trial Chamber do not enter the trial stage with a “virgin mind” or “tabula rasa”, and the “legal limits” of the case are not only prescribed by the parties but also influenced by the Pre-Trial Chamber.1087 (b) The Role of the Pre-Trial Chamber The Pre-Trial Chamber has an important role, which was established as a response by Civil Law country representatives to what they perceived as the overly Common Law dominated structure of the ICTY and ICTR.1088 Unfortunately, as shown at the outset of this study, the role of the Pre-Trial Chamber is far from clear and neither the ICC-Statute nor the RPE provide an answer to that question.1089 I will not present an answer to those questions at this point either, because the role of the Pre-Trial Chamber is one of the important questions that shall not be answered during this study but by this study since this role depends on the system of the entire process. As De Smet puts it fittingly: “There is thus a structural correlation between the type of trial and the role, if any, performed by judges in its preparation. Any analysis of pre-trial procedures thus requires an understanding of the nature of the trial it is supposed to prepare.”1090 Thus, what I will do at this point is to describe the legal basis of the Pre-Trial Chamber. The PreTrial Chamber has various duties,1091 including examining requests of the Prosecutor to proceed with a particular investigation,1092 holding a confirmation hearing of the charges,1093 dealing with challenges regarding jurisdiction and admissibility,1094 preserving evidence,1095 protecting the victims and witnesses during the investigation phase1096 and protecting national se1086 About Rule 130 ICC-RPE see also infra E. IV. 2. c) bb) (4); G. I. and III. 2. c) ee) (2) (bb). 1087 Damaška, Faces of Justice (1986), pp. 115, 137. In more detail about the impartiality of the Trial Judges caused by the Pre-Trial Chamber’s reasoning Miraglia, 6 JICJ (2008), 489, 498–500 (“The absence of the statement of findings could have achieved an important goal: the preservation of the impartiality of trial judges.”) 1088 Schiff, Building the ICC (2008), p. 82. 1089 See also de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 406. 1090 Ibid., p. 415. 1091 See Arts. 56 ff. ICC-Statute. 1092 See Art. 15 ICC-Statute. 1093 See Art. 61 ICC-Statute; Rules 121 ff. ICC-RPE. 1094 Arts. 15(3) ff., 18(2) and 19(6) ICC-Statute. 1095 Art. 18(6) ICC-Statute.

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curity information.1097 According to Art. 57(3)(b) ICC-Statute, the Pre-Trial Chamber may upon a request of the defence issue certain orders and may, as already mentioned, take measures to preserve evidence on its own initiative.1098 Furthermore, according to De Smet, the Pre-Trial Chamber “is the proper forum for making definitive factual findings on the material elements of the crimes”.1099 Another interesting feature of the Pre-Trial Chamber is that it is entitled to “seek the view of the Prosecutor” under certain circumstances.1100 This cooperation with the Prosecutor is the result of two procedural features I shall describe later: first, the Defence has no right to access the investigation files of the Prosecutor.1101 Second, the Prosecution has the duty to investigate both exonerating and incriminating evidence.1102 Therefore, “in theory, the Pre-Trial Chamber should thus never have to issue any orders at the request of the Defence as the Prosecutor should take the initiative and make the collected information available to the Defence.”1103 However, the decision of the Pre-Trial Chamber to issue such an order or not is not possible without a certain knowledge of the evidence. Another important feature of the Pre-Trial Chamber is its role “in relation to a unique investigative opportunity”, as Art. 56 ICC-Statute provides: where the evidence “may not be available subsequently for the purposes of a trial”,1104 “the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.”1105 Those measures are, inter alia, “directing that a record be made 1096

Arts. 57(3)(c), Art. 68(1) ICC-Statute juncto Rules 86–88 ICC-RPE. See Arts. 72 and 57(3)(c) ICC-Statute. 1098 Art. 56(3) and 57(3)(c) ICC-Statute. 1099 De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 424. 1100 Rule 116(2) ICC-RPE: “Before taking a decision whether to issue an order or seek cooperation under article 57, paragraph 3 (b), the Pre-Trial Chamber may seek the views of the Prosecutor.” 1101 This right was rejected by Pre-Trial Chamber I, Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06–103, Decision on the Defence Request for Unrestricted Access to the Entire File of the Situation in the Democratic Republic of the Congo (May 17, 2006). 1102 See infra E. IV. 2. b) bb) (4). 1103 De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 424. 1104 Art. 56(1)(a) ICC-Statute. 1105 See in this regard the statement of Claude Jorda, former President of the ICTY and a judge of the ICC from France, who described the Pre-Trial Chamber of the ICC “is the embryo of a true Investigative Chamber, a primary structure of civil law (and the French legal system)”, see Jorda, 2 JICJ (2004), 572, 578; Schiff, Building the ICC (2008), p. 54. 1097

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of the proceedings”, “appointing an expert to assist”, or “naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons”.1106 This role of the Pre-Trial Chamber to freeze witness testimony does not only intervene in the fact-finding process, but also highly influences the discussion about broad disclosure that is often refused on the ground of the argument that defendants could arrange for witness intimidation.1107 (c) The Existence of a Confirmation Hearing The existence of confirmation hearings1108 could be an indication of a conflict-solving procedure, as Damaška states: “Mechanisms such as pretrial conferences, capable of providing an opportunity for the adjudicator to direct proceedings, can also function as vehicles for the expansion of judicial control. Parties may find themselves pressured into settlement for the sake of larger interests, including bureaucratic concern with smooth caseflow management. Again, such intervention is repugnant to the reactive state.”1109 However, it is far from clear that the sole purpose of the ICC’s confirmation hearing is to serve as a committal hearing to test whether evidentiary requirements for committing the case to trial are met.1110 Its purpose is also a disclosure hearing, facilitating the disclosure process between the parties and avoiding extensive disclosure motions at trial.1111 Again, since the purpose of this study is to determine the role of the Pre-Trial Chamber and thus the nature of the confirmation proceeding, my own pro1106

See Art. 56(2) ICC-Statute. See infra E. IV. 2. c) cc) (ICC); F. V. 1. a) (USA) and F. V. 2. c) (England/ Wales); see also Ambos, 12 ICLR (2012), 115, 124 ff. 1108 See in more detail Friman, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), pp. 271 ff. 288; Gless, Internationales Strafrecht (2011), mn. 891. 1109 Damaška, Faces of Justice (1986), p. 134. 1110 Cf. Friman, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), pp. 493, 537, 538; Marchesiello, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), p. 1231, 1238; Friman, in: Cryer et al., Introduction to International Criminal Law and Procedure, 2nd ed (2010), pp. 460 f.; diff. Lewis, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), pp. 223 ff.; Ambos, JA (1998), 988, 990. For the US-Law see Bradley, Criminal Procedure (1998), pp. 414–416; Schuon, International Criminal Procedure (2010), p. 57. 1111 Cf. Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 276; Fourmy, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), p. 1207, 1225; Kreß and Wannek, in: Kirsch, ed., Internationale Strafgerichtshöfe (2005), pp. 231, 250 f.; Kreß, 1 JICJ (2003), 603, 610. 1107

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posal will be outlined later. However, what can be said already is that the possibility of interpreting the nature of the confirmation hearing other than a committal hearing, it cannot serve as an indication for a conflict solving procedure. At the end of the confirmation proceedings, there will be a fairly comprehensive “case record”, created by the Registry and transmitted to the Trial Chamber.1112 This shows that the Trial Judge does not enter the case unprepared and does not have a “virgin mind”.1113 (d) The Legal Knowledge The same is true for the decision maker’s knowledge of the law. Recall that in a conflict-solving procedure the decision maker (including judges) openly rely on counsel to supply them with legal material applicable to the case, while in a policy-implementing form of procedure the court is expected to know the law (iura novit curia).1114 At first sight, the procedural rules indicate a conflict-solving form of procedure: the Pre-Trial Chamber shall only confirm those crimes charged1115 and can request the Prosecutor “to consider [. . .] providing further evidence or conducting further investigation with respect to a particular charge; or amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.”1116 However, the managerial role of the Pre-Trial Chamber in general suggests the opposite. Although the question of whether the Pre-Trial Chamber may amend the charges is still answered differently,1117 Regulation 55 of the Regulations of the Court [hereinafter: 1112

See Rule 121(10) ICC-RPE: “The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.” and Rule 130 ICC-RPE “When the Presidency constitutes a Trial Chamber and refers the case to it, the Presidency shall transmit the decision of the Pre-Trial Chamber and the record of the proceedings to the Trial Chamber. The Presidency may also refer the case to a previously constituted Trial Chamber.” 1113 Swart, 6 JICJ (2008), 87, 110. Describing the “Common Law” and “Civil Law” approach Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), pp. 403, 424 ff.; Lewis, in: ibid., pp. 539, 540, 553; Tochilovsky, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), pp. 627, 634, 644; Fairlie, 4 ICLR (2004), 243, 278 f. 1114 Damaška, Faces of Justice (1986), p. 140. 1115 Art. 61(7)(a) and (b) ICC-Statute respectively. 1116 Art. 61(7)(c). 1117 See Ambos, in: Bohlander, ed., International Criminal Justice (2007), pp. 429, 459 ff.; Ambos, Internationales Strafrecht, 3rd ed (2011), pp. 331, 332

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RegCourt], which gives the Trial Chamber the authority to “modify the legal characterisation of facts”, seems to support the view that the Pre-Trial Chamber has indeed the power to amend the charges – a “clear commitment to the principle iura novit curia by the court”.1118 (e) Conclusion In sum, the overall picture of the judge at the ICC appears to be policyimplementing. Although he or she has no duty to seek the truth, his or her role is highly influenced by the special goals of international criminal justice. The goals of substantive truth finding and the provision of an accurate historical record necessitate optimal levels of fact-finding accuracy. Thus, the judge has something of a managerial role and is highly involved in fact-finding activities.1119 Certainly, the ability of both the Defence and the Prosecution to present evidence and examine witnesses indicates a conflictsolving form of procedure, where the bulk of legal information, as well as the facts of the case, reaches the Anglo-American judge through the filter of party argument. Furthermore, the judge may also question the witnesses after the parties1120 and does not have to put the first questions to the witnesses, as is the case at the STL.1121 Still, the overall picture seems to be policy-implementing: in certain cases, the judges may assist the defence and treat both parties unequally (given the strong position of the OTP1122), they may take measures and order the production of additional evidence. Nevertheless, once it comes to more detailed questions about the role of the judge, things become complicated. The reason for this is mainly that both the Statute and the RPE contain ambiguous provisions that can be interpreted differently, inked in the colours of Common Law and Civil Law. Thus, some questions have to remain unanswered until the end of this study. In this regard, for instance, the role of the Pre-Trial Chamber and with further references; Friman, in: Cryer et al., eds., Introduction to International Criminal Law and Procedure, 2nd ed (2010), pp. 455, 456. 1118 See Ambos, in: Bohlander, ed., International Criminal Justice (2007), p. 429, 463. 1119 In the same vein Swoboda, Verfahrens- und Beweisstrategien (2013), p. 208. 1120 See Rule 140(2)(c) ICC-RPE. 1121 Art. 20(2) STL-Statute provides that “[u]nless otherwise decided by the Trial Chamber in the interests of justice, examination of witnesses shall commence with questions posed by the presiding judge, followed by questions posed by other members of the Trial Chamber, the Prosecutor and the Defence.” According to Art. 20(3) STL-Statute, the trial chamber may also proprio motu “decide to call additional witnesses and/or order the production of additional evidence”. See also Higgins, 5 J. Int’l Crim. Just. (2007), 394, 397. 1122 See infra F. VIII. 2.; G. II. and III. 2. c) bb).

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the nature of the confirmation hearing depend highly upon the overall structure of the ICC system. However, those remaining questions should not negate the finding that the ICC judge in general is closer to the policy-implementing than to the conflict-solving ideal. b) The Prosecutor In this section, I will analyse the position of the ICC-OTP in order to assess whether it resembles a hierarchical or coordinate structure. Subsequently, I will elaborate whether the OTP’s role could be classified as conflict-solving or policy-implementing. aa) Organisation of Authority The OTP acts as an independent and hierarchical organ within the structure of the ICC.1123 It is a pyramid shaped organ of the ICC,1124 headed by the Prosecutor, and his Deputy Prosecutors.1125 They are elected by the ASP1126 and do not need to be former prosecutors, but may also be judges or defence counsel, as long as they have criminal trial experience.1127 The OTP is comprised of three Divisions and two Support Sections: the Jurisdiction, Complementarity and Cooperation Division; the Investigation Division; the Prosecution Division; the Services Section; and the Legal Advisory Section.1128 The Prosecutor has full authority over the management and administration of the Office, including the staff, facilities and other resources.1129 This shows that there is a certain degree of bureaucratisation and professionalisation within the OTP at the ICC. As Damaška points out, the hierarchical ideal does not allow for great discretion by the officials,1130 who are subject to directives.1131 At the ICC, Cf. Ambos, Internationales Strafrecht, 3rd ed (2011), p. 119. 1124 Tuinstra, Defence Counsel (2009), p. 148. Recall, however, that within the structure of the ICC the OTP as an organ acts independantly and therefore has a coordinate prosition. It is not incorporated in a hierarchy of the state (in this case an international organisation), as Damaška characterises the hierarchical officialdom. Cf. Damaška, Faces of Justice (1986), p. 184. 1125 See Art. 42 ICC-Statute. 1126 See Art. 42(4) ICC-Statute. 1127 Article 42(3) ICC-Statute. See also Bergsmo and Harhoff, in: Triffterer, ed., Commentary (2008), mn. 14. 1128 Regulation 5 RegOTP. 1129 Art. 42(2) ICC-Statute. 1130 “What emerges from this brief description is that the use of ‘official discretion’ is viewed with disfavor. Essentially, the exercise of discretion represents a ne1123

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neither the judiciary nor any third party can direct how the Prosecutor carries out his or her duties.1132 According to Art. 42(1) ICC-Statute, “[a] member of the Office shall not seek or act on instructions from any external source.” Additionally, the OTP is explicitly excluded from the responsibilities of the Presidency.1133 As is the position in respect of the judges, the Prosecutor or the Deputy Prosecutor can only be removed where he or she is found to have committed serious misconduct or a serious breach of his or her duties or is unable to exercise the functions required by the ICC-Statute.1134 Such misconduct would include activities incompatible with official functions, abuse of office, or concealing information, which would have precluded the Prosecutor from taking office.1135 The removal requires the affirmative vote of a majority of the states parties, not the ASP, which means that at least half of the states that have ratified the statute must approve the Prosecutor’s removal.1136 In the proceedings, the Prosecutor can be removed by the Appeals Chamber at the request of the suspect if a duty is breached.1137 In sum, there is a rather high threshold for removal of the Prosecutor or his or her Deputy Prosecutor, which suggests a resemblance with the coordinate ideal.1138 Furthermore, as mentioned above, the Prosecutor is not appointed but elected and “shall hold office for a term of nine years and shall not be eligible for re-election.”1139 A different question from the one of the Prosecutor being subject to directives is to what extent the Prosecutor is subject to superior review. In a cessary evil in the hierarchical model, an evil to be tolerated so long as more precise guidelines for official action cannot be formulated.”, see Damaška, 84 Yale L.J. (1975), 480, 485. 1131 “The more precise the directives contained in these propositions, the better. Directives must be sufficiently rigid that they cannot be altered or evaded when officials applying them feel they lead to undesirable outcomes. To remedy such regrettable situations is not the business of officials in the hierarchical model. Yet the desire for precision and comprehensiveness of normative propositions creates a difficulty: Precise directives covering wide areas of experience can easily conflict. Hence there are strong demands in the hierarchical model for the ordering, systematization and simplification of the normative universe.”, see ibid. 1132 Keen, 17 LJIL (2004), 767, 796. 1133 See Art. 38(3) ICC-Statute: “The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for [. . .] [t]he proper administration of the Court, with the exception of the Office of the Prosecutor.” 1134 Art. 46(1) ICC-Statute. 1135 Rule 24(1) ICC-RPE. 1136 Art. 46(2) ICC-Statute. 1137 Art. 42(7), (8) ICC-Statute. 1138 Keen, 17 LJIL (2004), 767, 798. 1139 Art. 42(4) ICC-Statute.

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hierarchical model, there is an obvious “connection between vertical ordering of authority and hierarchical review.”1140 At the ICC, the judges do indeed supervise certain limited aspects of the prosecution’s discretion.1141 For instance, where the Prosecutor launches an investigation on a proprio motu basis, the Pre-Trial Chamber is required to grant the Prosecutor’s request.1142 This is provided for in Art. 15(3) ICC-Statute.1143 Interestingly, where the Prosecutor decides not to investigate or prosecute on the basis of inadmissibility or inadequate grounds, a referring state or the Security Council can ask the Pre-Trial Chamber to review this decision, but the Chamber cannot review on its own initiative. In this review, the Chamber can only “request the Prosecutor to reconsider that decision”, indicating that the Chamber’s powers are, at best, limited. The Pre-Trial Chamber can review on its own initiative or on the request of a state when the Prosecutor’s decision is based on a belief that the investigation or prosecution is not in the interests of justice. When this review occurs, the Prosecutor’s decision will only be effective if confirmed by the Pre-Trial Chamber.1144 These various mechanisms of superior review establish a different practice than that of the ad hoc tribunals,1145 and are considered to be an inquisitorial feature1146 and are a strong indication of a hierarchical ideal.1147 1140

Damaška, Faces of Justice (1986), p. 48. See generally Bensouda, 36 N.C. J. Int’l L. & Com. Reg. (2010–2011), 277, 280; Keen, 17 LJIL (2004), 767, 797. 1142 See, e. g., Situation in the Republic of Kenya, No. ICC-01/09-1, Decision Assigning the Situation in the Republic of Kenya to Pre-Trial Chamber II (November 6, 2009). 1143 See also Rule 48 ICC-RPE. 1144 According to Art. 53(3) ICC-Statute the Pre-Trial Chamber “may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision” and “may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c).” See ICC, Situation in the Democratic Republic of Congo, No. ICC-01/04399, Decision on the Requests of the Legal Representative for Victims VPRS 1 to VPRS 6 regarding “Prosecutor’s Information on further Investigation” (September 26, 2007); No. ICC-01/04-373, Decision on the Request Submitted Pursuant to Rule 103 (1) of the Rules of Procedure and Evidence (August 17, 2007); Schabas, Commentary (2010), pp. 666 ff.; Guariglia, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 209, 216; Keen, 17 LJIL (2004), 767, 797. However, a review of the decision not to initiate proceedings is not provided for in Art. 15 ICC-Statute. For a discussion see Wu Wei, Die Rolle des Anklägers (2007), pp. 81 ff. 1145 In a similar vein Zahar and Sluiter, International Criminal Law (2007), pp. 55; Ambos, Internationales Strafrecht, 3rd ed (2011), p. 326. 1146 Ambos, Internationales Strafrecht, 3rd ed (2011), p. 326; cf. also Friman, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 191, 192; Fernández de Gurmendi, in: Lee, ed., The Making of the Rome Statute (1999), p. 217, 223: “civil law proposals”; Guariglia, in: Lee, ed., The Making of 1141

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It is difficult to tell whether the OTP is leaning more towards the hierarchical or coordinate ideal. Although it is a hierarchical agency, it is certainly not hierarchical within the ICC. In other words: the OTP, while hierarchically organised, is still an independent organ of the ICC, that is not subject to any directives of the ICC. It therefore distinguishes itself from hierarchically organised state bureaucracies.1148 In a hierarchical ideal, “officials are ‘servants,’ members of the service class merely administering normative standards which are supplied to them.”1149 Thus, in Civil Law countries, prosecutors belong within the same profession as judges and together they share independence from the state.1150 Another feature of the OTP that resembles the coordinate ideal is that the Prosecutor is elected and he or she does not depend on “institutional superiors” as in the hierarchical ideal.1151 Additionally, the independent position mentioned above and the wide discretion of the Prosecutor1152 at the ICC – the latter is going to be described in a moment – is contrary to a hierarchical ideal. Damaška remarks: “[T]here are less visible but extremely important internal constraints on the exercise of prosecutorial freedom; within the hierarchy of the prosecutor’s office there are regulations guiding the decision of whether to invoke the criminal process. For instance, oral or written directions instruct the prosecutor as to the significance of first-offender status in regard to specific offenses, or the point at which property damage becomes minimal. Accordingly, prosecutors often press charges contre coeur, or against their personal wishes, led to their decisions by normative directives.”1153

On the other hand, the Prosecutor does not “work alone, or with a few assistants, free from effective hierarchical supervision”, as is the case the Rome Statute (1999), p. 227, 228; Sadat and Carden, 88 GeorgeLJ (2000), 381, 399. 1147 Cf. Keen, 17 LJIL (2004), 767, 797, who states that the Pre-Trial Chamber exercises more extensive powers of review than in Common Law systems. 1148 Cf. Damaška, Faces of Justice (1986), p. 223. 1149 Id., 84 Yale L.J. (1975), 480, 485. 1150 See Christensen, 6 UCLA J. Int’l L. & Foreign Aff. (2001–2002), 391, 402 with further references. 1151 Damaška, Faces of Justice (1986), p. 223. In France, for example, becoming a prosecutor “is a long-term career choice”, while “procedures for training American prosecutors are rudimentary at best” see Frase, 78 Cal. L. Rev. (1990), 542, 545, 562–563. However, on the federal level, a US prosecuting attorney is appointed and not elected, see Safferling, Towards an International Criminal Procedure (2001), p. 65. 1152 See generally Ambos and Stegmiller, 58 Crime Law Soc Change (2012), 391, 399 ff. (with regard to case selection, esp. gravity as a case selection criterion); Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 492 ff.; Mégret, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), pp. 416, 428 f. 1153 Damaška, 84 Yale L.J. (1975), 480, 504.

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within a coordinate structure of authority.1154 To the contrary, the OTP is subject to superior review to a great extent.1155 Again, in order to come to a conclusion, it is necessary to weigh the different features of the OTP regarding their structure of authority. In this regard, the wide discretion and the independence of both the Prosecutor as an organ of the ICC and the Prosecutor within the investigation and pre-trial phases indicate great similarities to the coordinate ideal.1156 From a hierarchical view, only the strong superior (judicial) review could challenge this allegation, because the hierarchical setting of the OTP itself (i. e. regardless of its position as an organ of the Court) is only a marginal note since there has to be some sort of bureaucratisation in order to ensure the smooth progress of the OTP’s work. No criminal court and no prosecutorial office could exist without some bureaucracy, hierarchical ordering and professionalisation.1157 bb) Form of Procedure (1) Power to Initiate Proceedings At the ICC, the investigative process is attributed to the Prosecutor, which means that there is – at least officially – no investigating magistrate.1158 That means, that this variant of a policy-implementing process is not available.1159 The ICC-Prosecutor maintains a monopoly over initiating investigations.1160 He may initiate investigations on his own initiative, but 1154

Id., Faces of Justice (1986), p. 223. See Keen, 17 LJIL (2004), 767, 798 (“Common-law prosecutors are not independent from the executive, and their decisions as to whether to prosecute are not generally subject to judicial review. Civilian juges d’instruction or prosecutors are often independent from the executive, but are subject to the requirement of procedural legality. We should now consider the pre-trial chamber’s supervision of the investigation itself.”) See also Kagan, Adversarial Legalism (2003), p. 79. (“[T]he United States still contrasts sharply with hierarchical prosecutorial systems, which have well-developed mechanisms for subjecting individual prosecutors’ decisions to the rule of law.”) 1156 Describing “assistant prosecutors” in the US, David Johnson found that these prosecutors have much more leeway to act on the basis of their own individual judgment, see Johnson, 32 Law & Soc’y Rev (1998), 247 ff. 1157 Cf. Tuinstra, Defence Counsel (2009), p. 130 with further references. 1158 Bensouda, 36 N.C. J. Int’l L. & Com. Reg. (2010–2011), 277, 279. 1159 Cf. Damaška, Faces of Justice (1986), p. 156. 1160 Tuinstra, Defence Counsel (2009), p. 131 (“Without an international police force to take responsibility for fact-finding or the arrests of indicted persons, or, a facility to detain convicted persons and, instead, reliance upon ‘sentencing agreements’ with states, the support of states and international organisations is vital and essential. Cooperation with national authorities may not always work out success1155

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may also act on the request of a State Party or the Security Council.1161 Art. 53(1)(c) ICC-Statute allows the Prosecutor to terminate the investigation when, “[t]aking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” This would allow the Prosecutor to terminate an investigation almost immediately,1162 indicating that under normal circumstances the Prosecutor has the discretion to decide whether to investigate, at least when a state party or third party provides the information.1163 (2) Obligation to Start Proceedings The Prosecutor has no obligation to start an investigation proprio motu and, therefore, is under no obligation to request authorisation for a particular situation.1164 In the case of a referral by the Security Council, the Prosecutor has the duty to initiate investigations but has discretionary power to conclude, after preliminary examination, that there is no reasonable basis on which to proceed.1165 However, according to Art. 16 ICC-Statute, the Security Council has the power to postpone ICC investigations and prosecutions: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.” Generally, Art. 53(2) ICC-Statute regulates the situation that the Prosecutor concludes that there is not a sufficient basis for a prosecution. If the Prosecutor concludes that there is insufficient basis for a prosecution, he or she “shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.” As previously mentioned, the Pre-Trial Chamber “may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.”1166 If the decision fully. Arguably, the absence of external supervisory bodies to the functioning of international criminal courts makes it easier for states to refuse cooperation.”) 1161 Cf. Arts. 13–15 ICC-Statute. 1162 Schabas, Introduction to the ICC, 4th ed (2011), p. 199. 1163 See generally Keen, 17 LJIL (2004), 767, 796. 1164 Safferling, International Criminal Procedure (2012), p. 152; Röben, 7 Max Planck UNYB (2003), 513, 522. 1165 Safferling, ibid.; Schabas, Commentary (2010), p. 659; Ohlin, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 185. 1166 Art. 53(3)(a) ICC-Statute.

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not to prosecute is based on Art. 53(2)(c) ICC-Statute, “the Pre-Trial Chamber may, on its own initiative,” review this decision. In such a case, “the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.”1167 At any time, the Prosecutor may “reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.”1168 There is no remedy for victims to review the decision of the OTP.1169 (3) Enforcement Agencies and Coercive Measures From Art. 54 ICC Statute, it follows that the OTP does not have its own enforcement agency and investigators working on the territory of a national state do so on the initiative of the OTP.1170 That means that the ICC is not supported by the coercive power of a supranational apparatus.1171 The investigators of the OTP are the subordinates of the Prosecutor.1172 Thus, in general, the ICC and its Prosecutor depend upon the cooperation of states,1173 or “outside help”, as Damaška calls it.1174 Without the support and cooperation of states and international organisations, an international tribunal cannot function effectively.1175 With regard to coercive measures, the Prosecutor can only request that suspects submit to questioning,1176 and must ask the Pre-Trial Chamber to issue a summons to appear or an arrest warrant.1177 Basically, when an investigation has commenced, the Prosecutor controls the way in which an investigation is conducted, as provided in Art. 54(3) ICC-Statute.1178 However, a view of Art. 99 ICC-Statute shows that request for state assistance may in most cases leave the actual execu1167

Art. 53(3)(b) ICC-Statute. Art. 53(4) ICC-Statute. 1169 Bock, Das Opfer vor dem IStGH (2010), p. 514, who favours a provision that allows the victim to lodge a complaint to the OTP against a decision or even to appeal to a judge to compel the prosecution to file an indictment (p. 521), as it is the case in Germany (about the German Klageerzwingungsverfahren see E. IV. 2. b)). 1170 Safferling, International Criminal Procedure (2012), p. 262; Tuinstra, Defence Counsel (2009), p. 131. 1171 Damaška, 10 JICJ (2012), 611, 613. 1172 Cf. Regulation 8 RegOTP. 1173 Brubacher, 2 JICJ (2004), 71, 88 ff. 1174 Damaška, 10 JICJ (2012), 611, 613. 1175 ICTY Sixth Annual Report (1999), para. 178. 1176 Art. 54(3)(b) ICC-Statute. 1177 Art. 58(1) ICC-Statute. See in more detail Keen, 17 LJIL (2004), 767, 800. 1178 Cf. Bergsmo, Cissé and Staker, in: Arbour et al., The Prosecutor of a Permanent International Criminal Court (2000), p. 121, 143. 1168

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tion on national territory to the national authorities.1179 Nevertheless, according to Art. 57(3)(d) ICC-Statute the Pre-Trial Chamber may “[a]uthorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the PreTrial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9.”

(4) Investigation of Incriminating and Exonerating (Exculpatory) Evidence According to Art. 54(1)(a) ICC-Statute, the Prosecutor shall “in order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally [. . .].”1180 This duty to look for exculpatory evidence is not embodied in the RPE or the Statutes of the ad hoc Tribunals,1181 although there is debate whether the case law or ethical standards of the ad hoc Tribunals establish such a duty.1182 This implies that pre-trial investigations have the character of an official inquiry,1183 and it diminishes the chances for the prosecution to “win” the contest.1184 The prosecution is not 1179

Ibid. ICC-OTP, Informal expert paper: Measures available to the ICC to reduce the length of proceedings, 2003, para. 22 ff.; ICC-OTP, Draft Policy Paper on Preliminary Examinations, 4 October 2010, p. 6; Gless, Internationales Strafrecht (2011), mn. 888; Ambos, Internationales Strafrecht, 3rd ed (2011), p. 328. 1181 De Meester et al., in: Suilter et al., eds., International Criminal Procedure (2013), p. 171, 177. 1182 Prosecutor v. Kupreskic ´ et al., No. IT-95-16-T, Decision on Communications Between the Parties and Their Witnesses, (September 21, 1998): “[. . .] the Prosecutor of the Tribunal is not, or not only, a Party to adversarial proceedings but is an organ of the Tribunal and an organ of international criminal justice whose object is not simply to secure a conviction but to present the case for the Prosecution, which includes not only inculpatory, but also exculpatory evidence, in order to assist the Chamber to discover the truth in a judicial setting [. . .].” See also Zahar and Sluiter, International Criminal Law (2007), p. 55; crit. Fairlie, 4 ICLR (2004), 243, 314 f.; de Meester et al., in: Göran Suilter et al., eds., International Criminal Procedure (2013), pp. 171, 177 ff. with further references; Langer, 53 Am. J. Comp. L. (2005), 835, 860; about impartiality see also Wouters, Verhoeven and Demeyere, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), pp. 345, 351 ff. 1183 Safferling, Towards an International Criminal Procedure (2001), pp. 74–76; Zappalà, Human Rights in International Criminal Proceedings (2003), pp. 40–43. 1180

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merely a party to the proceedings, but an organ of the administration of justice, bound by the principle of objectivity.1185 This commitment to objectivity extends beyond the pre-trial proceedings, as Art. 67(2) ICC-Statute illustrates. Although both the Statute and the RPE do not explicitly provide for this objectivity during the trial, it is generally agreed that the Prosecutor’s objectivity does not end before the trial starts.1186 For Tuinstra, this derogates from contested proceedings and amounts to a policy-implementing feature.1187 (5) Conclusion What conclusions can be drawn from the role of the Prosecutor with regard to the existence of a conflict-solving or policy-implementing form of procedure? In conflict-solving procedure, the proceedings are characterised by partisan interests.1188 In pure conflict-solving (criminal) procedure, this conflict takes place between the representative of the victim and the perpetrator.1189 As Damaška points out, “as soon as the prosecutor is equipped with power to disregard the interests of the victim for the sake of broader concerns, the premises of adversarial arrangement are weakened: the proceedings no longer involve a clash of two partial (partisan) interests, but rather a clash between the aggregate interest of the state and the partisan interest of an individual.”1190 Of course, this does not mean that the existence of a prosecutor who is not the representative of the victim precludes a conflict-solving form of procedure but indicates a policy-implementing form of procedure. Rather, the conflict-solving form of procedure would be retained if “the interests of the state are treated by analogy as private interests, and the legal process cannot legitimately be used to promote the politics and values of government.”1191 The question is whether “the interests of the state are treated by analogy as private interests”? As Damaška points out, “[t]he dominant feature of the conflict-solving process is that it vests control over procedural action in the parties.”1192 He continues: 1184

Tuinstra, Defence Counsel (2009), p. 144. Bensouda, 36 N.C. J. Int’l L. & Com. Reg. (2010–2011), 277, 280; Wu Wei, Die Rolle des Anklägers (2007), p. 36. 1186 Wu Wei, Die Rolle des Anklägers (2007), p. 38. 1187 Tuinstra, Defence Counsel (2009), p. 144. 1188 Damaška, Faces of Justice (1986), p. 103. 1189 Ibid. 1190 Ibid. 1191 Ibid., p. 104. 1192 Ibid., p. 109. 1185

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“That parties decide upon the commencement of the lawsuit is necessarily implied by the objective of conflict resolution: until a party complains, there is no indication of a conflict ripe for solution. [. . .] Similarly, it would seem that party control over termination of the lawsuit is implied by the procedural objective: if having been apprised of a civil claim or a criminal charge, the adverse party decides to concede it in full, a process designed to settle disputes loses its reason for being and the court must accept the declaration of ‘no contest’. Or, if at any stage of the lawsuit the adversaries agree to withdraw their dispute from the adjudicator, the court has no legitimate ground for insisting that the wheels of justice remain in motion.”1193

In the US-system, for example, the prosecutor enjoys a full discretion over whether or not to prosecute.1194 In the English system until 2005 it was the police who decided whether to charge a person or not.1195 Subsequently, the police transferred the case to the Crown Prosecution Service (CPS), which decide whether or not there is sufficient evidence and whether or not “public interest” requires a prosecution.1196 Since 1 April 2005, the decision-making process has been simplified by the Criminal Justice Act 2003. The police no longer have the power to charge (except in very minor cases).1197 Now, the CPS lays all charges and acts “as an advisory capacity to the police. Practically, this means that a CPS representative is located in most police stations to speed up the charging process.”1198 The CPS has the discretion to prosecute or to discontinue cases.1199 The Prosecution “must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.”1200 The test of a “realistic prospect of conviction” is an objective one, i.e. “that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the 1193

Ibid., pp. 109–110. Safferling, Towards an International Criminal Procedure (2001), p. 175; Cummings, 31 Cardozo L. Rev. (2009–2010), 2139, 2146; Davis, Arbitrary Justice (2007), pp. 19 ff. 1195 As an alternative, they could caution the person instead, without charging her or him, see Brants and Field, in: Fennell et al., eds., Criminal Justice in Europe (1995), pp. 127, 130–131. 1196 Fionda, Public Prosecutors and Discretion (1995), p. 26. 1197 Smart, Criminal Justice (2006), p. 69. 1198 Ibid., p. 68. 1199 Marsh, Criminal Justice (2004), pp. 166, 167; Davies, Croall and Tyrer, Criminal Justice, 3rd ed (2005), p. 188; Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 142, 161; see also – and importantly – the Code for Crown Prosecutors. There are many non-CPS prosecuting authorities in England and Wales that deal mainly, although not exclusively, with less serious and regulatory offences, see Lewis, in: Jehle and Wade, eds., Coping with Overloaded Criminal Justice Systems (2006), p. 151, 152. 1200 S. 4.5 of the Code for Crown Prosecutors. 1194

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law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty.” (s. 4.6 of the Code for Crown Prosecutors) Furthermore, in relation to the public interest test, “prosecutors must go on to consider whether a prosecution is required in the public interest.”1201 This goes back to a statement of Lord Shawcross, who said in a House of Commons debate in 1951: “It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution”. He added that there should be a prosecution “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest”.1202 The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.1203 In Germany, pursuant to § 153 StPO, the Prosecution can terminate the proceedings when the guilt of the perpetrator is considered minor and when there is no “public interest” in the prosecution. However, with the exception of the most unimportant cases, the prosecutor needs the judicial approval to discontinue the investigation. Moreover, the principle of legality (Legalitätsprinzip) compels the Prosecution to investigate when there are facts that give enough grounds for suspicion (§§ 160(1), 152(2) StPO).1204 The control over prosecution is exercised by an investigating magistrate in some countries,1205 while in other systems it lies in the competence of a pre-trial judge1206 and sometimes in the trial judge in a pre-trial hearing or pre-trial review.1207 Interestingly, the German legal system allows the victim to first lodge a complaint to the prosecutor’s superior against a decision of that prosecutor and ultimately appeal to a judge to compel the prosecution to file an indictment (Klageerzwingungsverfahren (§§ 172 ff. StPO)).1208 This is a conflict1201

S. 4.11 of the Code for Crown Prosecutors. House of Commons Debates, Volume 483, 29 January 1951. 1203 S. 4.12 of the Code for Crown Prosecutors. 1204 Safferling, Towards an International Criminal Procedure (2001), p. 172. 1205 E.g. in France, see Guinchard and Buisson, Procédure Pénal, 4th ed (2008), p. 206; Thaman, Comparative Criminal Procedure (2002), pp. 21 ff. 1206 In United States, see Kamisar et al., Basic Criminal Procedure, 12th ed (2008), pp. 13 ff.; in South Africa, Italy (guidice dell’udienza preliminare); see Thaman, Nederlandse Vereniging voor Rechtsvergelijking, 11 EJCL (December 2007), 1, 4, with fn. 20. 1207 In Germany, Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 42; in Poland, see Grajewski, Przebieg procesu karnego, 4th ed (2008), pp. 162 ff. 1202

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solving element, since the victim – as the original party vis-à-vis the offender – has an instrument to start the conflict him- or herself.1209 In the Netherlands, the “person directly involved” can lodge an appeal with the court against the prosecutor’s decision not to prosecute.1210 The “person directly involved” has a twofold meaning, referring to both the victim (the natural person) and the legal person promoting an interest that would be directly affected by the decision not to prosecute.1211 Moreover, some legal systems incorporate private prosecutions into their procedural rules1212 – an instrument that mirrors the conflict-solving ideal to a great extent. This means that the aggrieved party may either prosecute minor offences without the mandatory participation of the public prosecutor1213 or participate as a kind of auxiliary (second) prosecutor with full procedural rights.1214 Interestingly, in England, a Common Law legal system, this system is criticised to a degree: in the case of Jones v. Whalley, Lord Bingham evaluated the right to bring a private prosecution as “of questionable value and can be exercised in a way damaging to the public interest”.1215 This assessment could have been made by a lawyer originating from a legal system that favours policy-implementing elements of procedure. The same view is taken in Scotland, where, while it is theoretically possible for the victim to compel prosecution through private prosecution, this right has only been granted twice in the last century.1216

Roxin and Schünemann, ibid., § 41; Volk, Grundkurs StPO, 6th ed (2008), p. 111. 1209 Cf. Damaška, Faces of Justice (1986), p. 103: “In a criminal case, for example, the image of proceedings as a contest can be preserved in its purity only if the public prosecutor is regarded as a representative of the victim.” 1210 Groenhuijsen and Simmelink, in: Vogler and Huber, eds., Criminal Procedure in Europe (2008), p. 462. 1211 E.g. an animal protection society who appeals against non-prosecution of a case of cruelty to animals, see ibid. 1212 Regarding Poland, see Grzegorczyk and Tylman, Polskie Poste ˛ powanie Karne, 6th ed (2007), p. 702. 1213 E.g. in Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 63; in Spain, see Borja de Quiroga, Tratado de Derecho Procesal Penal, 3rd ed (2009), pp. 788 ff.; in England and Wales the private prosecution is not limited to minor offences. According to section 6(2) of the Prosecution of Offences Act 1985 the public prosecutor is allowed to take over the conduct of any criminal proceedings and thereafter to discontinue it, see Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), pp. 134 ff. 1214 E.g. in Poland, Germany, Spain; see Thaman, Nederlandse Vereniging voor Rechtsvergelijking, 11 EJCL (December 2007), 4. 1215 Jones v. Whalley [2006] UKHL 74 para. 16. 1216 V. Sheehan et al., Criminal Procedure, 2nd ed (2003), §§ 119, 82, 84. 1208

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Thus, it can be said that with regard to the initiation of proceedings, the US- and English/Welsh system resemble the conflict-solving form of procedure, while the German system has similarities to the policy-implementing form of procedure. This might be the reason why many scholars compare the OTP to countries or legal traditions rather than to ideal-types. However, it is important to note that many countries have diverged from the ideal that they shared similarities with, at least at the outset.1217 Damaška noted: “Even so, the initiation and the termination of an ‘adversarial’ lawsuit have often been treated differently, and a pure contest style has been thought reconcilable with judicial control over the end of proceedings. Once proceedings are under way, it has been argued, party control over the life of the lawsuit is no longer sacrosanct.”1218 He gives the example of some European countries, where the criminal judge “was given no choice but to discontinue proceedings if the public prosecutor decided to desist from prosecution.”1219 Regarding the OTP, despite many discretionary features that indicate a conflict-solving procedure,1220 I have illustrated that the competence to start and end proceedings does not lie solely in the hands of the OTP but depends on many other factors. This, however, cannot serve the aim of dispute resolution but indicates the implementation of a policy. Again, Damaška’s remarks are instructive in this regard: “Various compelling arguments can be made in favour of authorizing the court to deny a withdrawal of demands or a dismissal of charges in the interest of the sound administration of justice. But no matter what these arguments may be, they will exceed the goal of conflict-resolution: since one or both adversaries are no longer willing to engage in disputation, continued proceedings can be propelled only by the state’s desire to fulfil some larger aim of government – a desire suspect to laissez-faire ideology. [. . .] It is for these reasons that a process that requires no judicial consent for withdrawal from the forum is closer to the pure 1217 See the very informative study of Jehle and Wade, eds., Coping with Overloaded Criminal Justice Systems (2006), pp. 151–184. 1218 Damaška, Faces of Justice (1986), p. 110. 1219 Ibid., p. 111 with further references. 1220 Cf. Nsereko, 3 JICJ (2005), 124 ff.; Jallow, 3 JICJ (2005), 145 ff.; Côté, 3 JICJ (2005), 162 ff.; Olásolo, 3 ICLR (2003), 87, 109 ff., 132 ff.; Friman, in: Cryer et al., eds., Introduction to International Criminal Law and Procedure, 2nd ed (2010), pp. 454 f.; von Braun, Internationalisierte Strafgerichte (2008), pp. 72 ff.; Stahn, 8 CLF (2008), 87, 106 f.; Ohlin, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 185 ff.; generally Ralston and Finnin, in: Blumenthal and McCormack, eds., The Legacy of Nuremberg (2008), pp. 49 ff.; see also Prosecutor v. Mucic´ et al., No. IT-96-21-A, Appeals Judgment, para. 602 (February 20, 2001): “It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments.”; Prosecutor v. JeanPaul Akayesu, No. ICTR-96-4-A, Appeals Judgment, para. 94 (June 1, 2001); crit. Knoops, 4 CLF (2004), 527 ff.

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conflict-solving ‘adversarial’ mode than a process that calls for a leave of court.”1221

The strongest indication, however, that the OTP is policy-implementing, is the fact that it has to investigate both incriminating and exonerating evidence. If the OTP were a party in a contest between the Prosecutor and the defendant, it would be in both parties’ interests to investigate only those materials favourable to the outcome of their case. As an example, Damaška describes the Anglo-American litigation, where preparatory activities “are firmly in the hands of the litigants rather than some independent agency. Even if the plaintiff or defendant happens to be an official (the police, the public prosecutor) who symbolically serves the public interest, his preparatory activities are invariably influenced by anticipation of the contested trial and thus assume partisan overtones. For example, this official may attempt to keep some important information to himself in order to make the preparation of the other side more difficult.”1222

A U.S. prosecutor is under no legal duty to investigate exonerating evidence, in contrast to a German prosecutor.1223 In Germany, a prosecutor is under a duty to investigate both incriminating and exonerating evidence, as set out in § 160(2) StPO. The reason for this approach is the belief that state organs must seek the entire truth and behave in accordance with the rule of law.1224 This objective truth seeking is a typical hierarchical feature.1225 Another rationale for the obligation on the OTP to investigate both incriminating and exonerating evidence is the lack of a police force and the fact that the OTP carries out its own investigations. A party in a contest 1221

Damaška, Faces of Justice (1986), p. 110. Ibid., p. 124. 1223 Trüg, Lösungskonvergenzen trotz Systemdivergenzen (2003), p. 341. However, prosecutors in the US are not a mere party to a contest, but “ministers of justice”. In this regard, see the oft-cited quote of the US Supreme Court: “The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”, see Berger v. United States, 295 U.S. 78, 88 (1935). See generally Cummings, 31 Cardozo L. Rev. (2009–2010), 2139, 2149 ff. 1224 Meyer-Goßner and Schmitt, Kommentar zur Strafprozessordnung, 55th ed (2012), § 160, mn. 14; Safferling, Towards an International Criminal Procedure (2001), p. 74. 1225 Damaška, Faces of Justice (1986), pp. 160 ff. 1222

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model will always carry out those investigations to his or her own benefit, but would never collect evidence that diminishes his or her chances of winning the case. This was the reason why England and Wales introduced the CPS: before the introduction of the CPS, the police were both investigators and prosecutors. Several reports indicated that the function of an objective investigation for crime control conflicted with the interest of the prosecution as a party to the proceedings.1226 Moreover, it has been said that the “anxiety to convict those whom the police believed were guilty” could lead to the abuse of the rights of the arrested person by the police.1227 Thus, in England, which in many respects leans towards the conflict-solving ideal, the separation of the (investigating) police and the prosecuting agency is in line with that conflict-solving ideal and therefore only logical. Since this separation is not existent at the ICC, the OTP is obliged to maintain objectivity – a policy-implementing feature. c) Other Procedural Features aa) Case File As I stated above, in the hierarchical ideal, there is a permanent bureaucracy composed of many stages and echelons of authority and professional judges are part of that bureaucracy. In this ideal, a written dossier works as a tool that interconnects the professional judges.1228 Through this dossier, which documents all procedural activity,1229 participants in the procedure – including trial judges – can know, at every stage, what the case is about and the existing elements of proof.1230 A judicial or prosecutorial official normally compiles the dossier, which includes information derived from the questioning of relevant witnesses, including defence witnesses, as well as the accused.1231 Thus, this official must investigate both incriminating and exonerating evidence.1232 1226 See generally The Royal Commission on Criminal Procedure, Chairman: Sir Cyril Philips, The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (London: Her Majesty’s Stationery Office, 1981), analysing the powers and duties of the police in relation to the responsibility to detect criminals in the course of interrogating suspected persons, to decide whether or not to prosecute persons suspected of criminal offences and to conduct themselves prosecutions for the less serious offences. 1227 Davies, Croall and Tyrer, Criminal Justice, 3rd ed (2005), pp. 187–188. 1228 Damaška, Faces of Justice (1986), p. 50. 1229 Regarding Germany, see §§ 168, 168a, 168b StPO. 1230 Langer, 53 Am. J. Comp. L. (2005), 835, 847. 1231 See McClelland, 26 Suffolk Transnat’l L. Rev. (2002), 1, 14 (citing Schlesinger, 26 Buff. L. Rev. (1977), 361, 365).

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At the ICC, there is no explicit reference to a dossier or a case file. Keen asserts that it follows from this that a dossier- or case-file-approach should not be taken at the ICC.1233 However, the missing reference does not necessarily exclude the possibility of a case-file-approach, especially considering the drafting history of the ICC-Statute: the reason the Statute lacks an explicit reference to a dossier or a case file is not that it was nobody’s desire to include such an explicit reference but that the delegations could not reach an agreement about the issue, although several delegations tried to formulate such a reference.1234 Thus, “in the little time remaining to finalize the whole of the Rules, it proved very difficult to draft text that would satisfy all sides in the debate. For this reason delegations fell back to the ‘constructively ambiguous’ position in the draft text for the Finalized Draft Text of the Rules of Procedure and Evidence.”1235 This ambiguity principally allows for a case-file-approach.1236 The Registry maintains records of both the pre-trial and the trial proceedings.1237 With regard to the pre-trial proceedings, pursuant to Rule 121(10) ICCRPE, “[t]he Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule.” As previously mentioned, the record created of all proceedings before the Pre-Trial Chamber is subsequently transmitted to the Trial Chamber, as ordered by Rule 130 ICCRPE. With regard to the proceedings in general, in accordance with Regulation 21 RegRegistry, the record “shall be a full and accurate record of all proceedings” and shall contain, inter alia: – Orders and decisions by the Presidency and a Chamber; 1232 Vanderpuye, 43 Cornell Int’l L.J. (2010), 513, 519; see also VolkmannSchluck, 9 Am. J. Crim. L. (1981), 1, 12, providing examples drawn from the German and French systems. 1233 Keen, 17 LJIL (2004), 767, 807: “If the drafters of the Statute or the Rules had wanted a dossier-like approach to be taken, they would have expressly indicated this in the Statute.” 1234 Cf. Brady, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 261, 270. 1235 Ibid., continuing: “The final approach in the Rules harmonizes the various approaches in an ‘open’ manner. This ambiguity in the text is quite intentional and reserves to the future Court scope to further develop procedures best suited to hearing cases while maintaining the highest standards of due process and fairness under international law.”, at p. 272. 1236 Friman, in: Cryer et al., Introduction to International Criminal Law and Procedure, 2nd ed (2010), p. 464 correctly points out that a dossier has “so far” not been established. 1237 Safferling, International Criminal Procedure (2012), p. 375.

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– Documents and material as originally filed with the Registry by a participant; – The evidence communicated to the Pre-Trial Chamber; – Situation or case-related correspondence addressed to the Registry; – Official translations; – Transferred items; – The evidence as registered by the Registry; – The list of witnesses called in the proceedings maintained by the Registry in accordance; – The list of the victims authorised to participate in the proceedings maintained by the Registry; – The list of the victims asking for reparations maintained by the Registry; – The transcripts and indexes to the transcripts; – The confidential minutes of the proceedings, if any, as drafted by the court officer; – The reference to the oral decisions of the Chamber maintained by the Registry; – The audio and video recordings of proceedings; – The notification form provided for in Regulation 31(2) RegCourt; and – Any other item pursuant to an order of a Chamber or the Presidency. According to Rule 131 RPE this record “may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.” Rule 131 RPE does not mention whether the judges of the Trial Chamber may consult the record in order to prepare the proceedings.1238 Thus, both Statute and Rules are silent on whether the record of the proceedings may be used as a case file.1239 To follow from this that the record of the proceedings cannot serve as a case file would be wrong.1240 It is certainly not the explicit labelling that makes a case record or anything similar a case file. In fact, the Pre-Trial Chamber can “freeze” a lot of evidence for trial that is subsequently transferred to 1238

Ibid., p. 429; see also Kirsch, 6 ICLR (2006), 275, 279 ff. Cf. Ambos, Internationales Strafrecht, 3rd ed (2011), p. 348. 1240 However, see Keen, 17 LJIL (2004), 767, 807–808 and supra note 1233, S. 265. 1239

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the Trial Chamber.1241 Thus, de Smet argues that the record of the proceedings at the ICC could serve as a “quasi dossier”.1242 Additionally, a case file is also not merely constituted by a case record that contains information that is available to the participants and even to the judge. As Damaška correctly points out, a main feature of the case file is the weight that is attributed to the information available.1243 Unless such weight were attributed to the information in the case file “the very foundation of the hierarchical process would begin to tremble: a multistage process is put at risk if its main integrating mechanism is seriously questioned. In fact, a good test to assess the intensity of hierarchical attitudes is to propose the reduction of the evidentiary significance of official documentation. The greater the intensity, the more vehemently such reform proposals will be opposed. If the evidentiary significance of the file is totally and effectively denied, the hierarchical process is no more.”1244

In France and Belgium, for instance, “evidence” tends to mean a piece of information that receives attention by the dossier, whereas in English law, nothing really counts as “evidence” until it has been heard orally at trial.1245 Therefore, the existence of a case file cannot be properly assessed disregarding the structure of authority in general for it serves as an official documentation within a hierarchical structure of authority. This was basically the reason why delegates during the negotiations to the Rome Statute could not reach an agreement on the issue.1246 Because the provisions referring to 1241 Although Art. 74(2) ICC-Statute requires that “[t]he Court may base its decision only on evidence submitted and discussed before it at the trial”, the English text refers to “the Court” and not to the Trial Chamber, which could imply that also evidence submitted to the Pre-Trial Chamber and discussed before the Trial Chamber could be taken into consideration. The French version of the Article makes no such distinctive word use: “Elle [i. e. la décision] est fondée exclusivement sur les preuves produites et examinées au procès.” The term “procès” could refer to the entirety of the proceedings, rather than to the trial phase alone. See de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 421 with fn. 78. See also Kreß, 1 JICJ (2003), 603, 605, 608: “It is obvious that the potential to reduce the length of the trial constitutes a powerful incentive to make broad use of Article 56 powers to take evidence in advance of the trial – a practice which, by the way, is known to most legal systems”. 1242 See, e. g., de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 422. The question of whether the record of the proceedings can and should be used as a dossier will be dealt with later, see G. III. 2. 1243 About this “weight”-component in more detail, see infra G. III. 2. c) cc). 1244 Damaška, Faces of Justice (1986), p. 50. 1245 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 1, 21, 22.

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the case record at the ICC are silent, especially on the weight of the information the record contains, its qualification as a case file must be postponed until the end of this study.1247 bb) Concentration of Proceedings, the “Day in Court” and Live Testimony As additional features of the coordinate ideal, Damaška identified the concentration of proceedings, the “day in court” and the importance of oral testimony. The concentration of proceedings means a “relatively weak character of appellate review” and “the conspicuous absence of a stage truly comparable to the preparatory proceedings on the Continent.”1248 Especially with regard to the latter, Damaška remarks that “because of this absence of official investigators, the preparatory stages of the Anglo-American process in both civil and criminal matters were never as tightly integrated into the subsequent proceedings as it was the case with Continental preliminary stages. Even today it is difficult in common-law systems to generate evidence out of court in advance of the trial.”1249 Consequently, not only the entire proceedings are concentrated in the coordinate ideal, but also the trial shall be conducted “without lengthy interruptions” and not “chopped up” into separate sessions.1250 In Damaška’s words: “The day-in-court trial can be packed with excitement and drama: the vivacity of first impressions is not adversely affected by a documentary curtain over the trial. Surprises and unpredictable turns of events are commonplace, but coordinate officials are accustomed to deciding on the basis of what might be called ‘astonished reflection’. The dramatic courtroom atmosphere is enhanced by the possible finality of the trial court’s judgement: no punches can be pulled in reliance on a next procedural round before a higher authority.”1251

In the section, I will analyse the ICC-process and compare it to criminal proceedings in England/Wales, the U.S.A. and Germany. The reason for 1246 See Brady, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 261, 272 “The exact contents of the ‘record of the proceedings’, and the question of what the Trial Chamber should see prior to trial, proved to be complex issues on which delegations expressed widely divergent and strongly held views. This divergence of views was shaped by differing views on the nature and scope of confirmation proceedings and trial proceedings, and the respective roles of the Pre-Trial and Trial Chambers.”) 1247 See infra G. III. 1248 Damaška, Faces of Justice (1986), p. 57. 1249 Ibid. 1250 Ibid., p. 62. 1251 Ibid.

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choosing those legal systems was twofold: first, they present both certain extremes and hybrids. Second, they will again serve as an example when I later analyse their disclosure regimes. Before I outline the criminal proceedings in those legal systems, it is important to stress that I will not analyse abbreviated or special forms of proceedings such as summary proceedings, the Strafbefehlsverfahren or proceedings for offences triable either way. Those forms of proceedings deprive the process of certain procedural stages and thus do not serve as good examples, regardless of their statistical occurrence that may even outweigh their “normal” counterparts. (1) Process England/Wales The pre-trial phase in England and Wales starts with the reporting of the crime to the authorities. The agency to which most crime is reported is the police.1252 Once a crime has been reported to the relevant agency, the next stage is the investigation.1253 During the investigation, the police have several principal powers, such as the power to stop and search,1254 the power to arrest and detain, the power to question and the power to enter and search premises.1255 Once the police have completed their investigation, they have the choice of taking no further action, e. g. where sufficient evidence has been obtained; or to give an informal warning; to issue a formal or a conditional caution1256; or to refer the papers to the prosecuting authorities for a decision on whether to charge the person (as I have previously mentioned, for all but minor and routine cases, the decision to charge is no longer made by the police, but by the prosecuting authorities like the CPS).1257 Subsequently, one of the CPS lawyers – a Crown Prosecutor – reviews the papers to decide whether or not to go ahead with the case.1258 Partington, English Legal System, 4th ed (2008), p. 95. Ibid., p. 98; generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), pp. 785 ff. 1254 Ibid., pp. 791 ff. 1255 Partington, English Legal System, 4th ed (2008), p. 98; generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), pp. 791 ff. 1256 The conditional caution was introduced by Part 3 of the Criminal Justice Act 2003. This “new form of diversion” (Ashworth and Redmayne) may only be given to a person aged 18 or over and where there is sufficient evidence to charge the person with an offence which he or she admits, and the suspect agrees to the caution. See generally Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 168; Partington, English Legal System, 4th ed (2008), p. 105. 1257 Partington, ibid., pp. 105, 106; generally about the role of the police see Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), pp. 786 ff. 1252 1253

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In the trial stage, all prosecutions start in the Magistrates’ Court.1259 Whether they finish there depends on how the case is classified. If the charge is serious (for example, rape or murder), the case will go to the Crown Court on indictment (trial on indictment only). Most charges are dealt with summarily and tried only in the Magistrates’ Court (summary trials).1260 Triable-either-way offences (an intermediate category of offences) may be tried at a Magistrates’ or Crown Court.1261 For the purpose of trial analysis, it should be sufficient to analyse only the trial on indictment procedure. The first stage of the trial of an indictable offence has, in recent legal history, been committal for trial, or, as it is sometimes known, the preliminary inquiry before justices.1262 The aim of committal proceedings was for the magistrates to be satisfied on a preliminary examination of the evidence that there was a case for the accused to answer.1263 Increasingly, this has been proved to be of only a formal nature. Over the years, the nature of committal for trial has significantly changed, with numerous legislative attempts to alter its nature and purpose.1264 Now, cases are sent for trial following major changes made by the Criminal Justice Act 2003.1265 After sending the case for trial and before the commencement of the trial, a pretrial hearing or preliminary hearing can be held, as a result of various reforms to increase the scope of pre-trial proceedings in the Crown Court.1266 The underlying aim is to enable the judge to “start the business of mana1258

Partington, ibid., p. 108; generally Bailey, Ching and Taylor, ibid., pp. 839 ff. Partington, ibid. 1260 Summary offences are created and defined by statute. Although today almost 98% of the cases are tried summarily, the summary trial serves as an exception to other trial forms – at least in theory. Thus, for an offence to be capable of summary trial some statutory authority must be found which gives the magistrates jurisdiction over it, see Spencer, Jackson’s Machinery of Justice [Rev. ed. of: Richard Meredith Jackson, The machinery of justice in England, 7th ed. 1977] (1989 [repr. 1990, 1995]), p. 190. Summary offences include traffic offences, common assault, taking a motor vehicle without consent and driving while disqualified, see Slapper and Kelly, English Legal System, 10th ed (2009), p. 164. 1261 See generally Smart, Criminal Justice (2006), p. 21. 1262 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 596; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), pp. 888 ff. 1263 Martin and Turner, Unlocking the English Legal System, 2nd ed (2008), p. 169. 1264 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 596. 1265 Ibid.; Elliot and Quinn, English Legal System, 9th ed (2008), p. 378. 1266 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 629; Sprack, Criminal Procedure, 13th ed (2011), p. 263. 1259

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ging the trial before it begins.”1267 The Plea and Case Management Hearing (PCMH) “should be held within about 7 weeks after committal for trial, within about 14 weeks after sending for trial where a defendant is in custody and within about 17 weeks after sending for trial where a defendant is on bail.”1268 The purpose of the PCMH is to ensure that any steps necessary for trial have been taken, and that the court is provided with sufficient information to fix a trial date.1269 At this hearing, the defence must supply a full list of the prosecution witnesses they require to attend the trial. Both prosecution and defence should submit to the court and the other parties a summary of the issues on which the court’s directions are sought, referring to any authorities which are relied on.1270 Under certain conditions, the parties are expected to inform the court of the following matters, inter alia: a) the estimated length of the prosecution and the defence cases; b) the witnesses the prosecution will call, and the order in which they will call them; c) any exhibits, CCTV evidence or electronic equipment required; d) any expert evidence to be called; e) any requirement for special measures or live TV links; f) any applications regarding hearsay or bad character evidence; g) whether a defence statement has been served; h) whether the defence alleges that the prosecution has failed to disclose any evidence.1271 In addition, under s. 29(1) of the Criminal Procedure and Investigations Act 1996 (CPIA 1996), where it appears to a Crown Court judge that an indictment reveals a case of such complexity, or a case whose trial is likely to be of such length, that substantial benefits are likely to accrue from a preparatory hearing, a preparatory hearing may be held.1272 It can basically be held at any time before a jury is sworn, on the application of any of the 1267

Sprack, ibid. See the Consolidated Criminal Practive Direction, para. V.65.5, available at , first visited 8 April 2013. 1269 Sprack, Criminal Procedure, 13th ed (2011), p. 263; Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed (2009), p. 498. 1270 Sprack, ibid., p. 264; Hungerford-Welch et al., Criminal Litigation and Sentencing, 23rd ed (2011), p. 191. 1271 Sprack, ibid., pp. 264, 265; see also Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 629. 1272 Ward and Akhtar, ibid., p. 630; Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), p. 493. 1268

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parties, or by the court of its own motion.1273 The purpose of such a hearing is laid down in s. 29(2) CPIA 1996: (a) identifying issues that are likely to be material to the determinations and findings that are likely to be required during the trial; (b) if there is to be a jury, assisting their comprehension of those issues and expediting the proceedings before them; (c) determining an application to which section 45 of the Criminal Justice Act 2003 applies; (d) assisting the judge’s management of the trial; (e) considering questions as to the severance or joinder of charges.1274 As Sprack points out, the preparatory hearing “is in fact a stage of the trial itself, which may be used in order to settle various issues without requiring the jury to attend.”1275 During the preparatory hearing, the judge may make certain rulings1276 that can be appealed to the Court of Appeals.1277 Additionally, s. 39 CPIA 1996 provides for pre-trial hearings in other cases to be tried in the Crown Court. These hearings take place before the jury is empanelled.1278 On the day fixed the accused will, if he or she has been detained in custody, be brought from the prison or remand centre where he or she has been detained.1279 The first formal step in his trial will be the arraignment. Today, the arraignment will normally take place at the PCMH.1280 This is the process of calling an accused forward to answer an indictment.1281 The indictment will be read to him and he will be asked to enter a plea.1282 If the defendant pleads guilty, after some intermediate steps the Court will usually consider a pre-sentence report, usually presented on behalf of a probation officer, and, sometimes, a victim impact statement.1283 Where there is a plea 1273 Sprack, Criminal Procedure, 13th ed (2011), p. 266; Hungerford-Welch et al., Criminal Litigation and Sentencing, 23rd ed (2011), pp. 191 ff. 1274 See also R v Claydon [2001] EWCA Crim 1359; [2004] 1 WLR 1575. 1275 Sprack, Criminal Procedure, 13th ed (2011), p. 266. 1276 See s. 31(3) CPIA 1996. 1277 See s. 35(1) CPIA 1996. 1278 Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), p. 497. 1279 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 630. 1280 Sprack, Criminal Procedure, 13th ed (2011), p. 264. 1281 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 630. 1282 Ibid.

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of not guilty, the next stage of the trial will be the swearing of the jury, consisting of twelve jurors.1284 The trial concludes with each party addressing the jury.1285 In all cases the rule is that prosecuting counsel speaks first and is then followed by counsel for the defendant. The jury will then sum up.1286 Subsequently, the jury generally retire to the jury room to consider their verdict.1287 When they have concluded their deliberations they will return to court and the verdict will be delivered.1288 If the defendant pleads guilty or is convicted by the jury, he or she will be sentenced.1289 A convicted person may appeal from the Crown Court to the Court of Appeals (Criminal Division) with leave of the Court of Appeals.1290 The CJA 2003 (Part 10) made a controversial exception to the double jeopardy rule, which protects a person from being tried twice for the same offence. With the consent of the Director of Public Prosecutions (DPP), a prosecutor may apply to the Court of Appeal to quash an acquittal and order a retrial.1291 This can be done following trial on indictment or a successful appeal.1292 (2) Process U.S.A. In the U.S.A., cases entering the system are observed by or reported to the police, who investigate the matter.1293 After arrest1294 and some additional investigation or interrogation, the suspect may be either booked or 1283

Ibid., p. 633. Ibid., p. 638; Darbyshire, Darbyshire on the English Legal System, 10th ed (2011), p. 350; see generally about the jury Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), pp. 505 ff.; id. et al., Criminal Litigation and Sentencing, 23rd ed (2011), pp. 199 ff. 1285 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 652. 1286 Ibid.; Darbyshire, Darbyshire on the English Legal System, 10th ed (2011), p. 351; see generally on the summing up Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), pp. 573 ff.; id. et al., Criminal Litigation and Sentencing, 23rd ed (2011), pp. 218 ff. 1287 Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 351; Hungerford-Welch, ibid., pp. 574, 577; id. et al., Criminal Litigation and Sentencing, 23rd ed (2011), pp. 226 ff. 1288 Ward and Akhtar, ibid., p. 653. 1289 Hungerford-Welch et al., Criminal Litigation and Sentencing, 23rd ed (2011), p. 233; Elliot and Quinn, English Legal System, 9th ed (2008), pp. 400 ff. 1290 Darbyshire, Darbyshire on the English Legal System, 10th ed (2011), p. 355; Hungerford-Welch et al., Criminal Litigation and Sentencing, 23rd ed (2011), pp. 239 ff. 1291 Hungerford-Welch et al., ibid., pp. 265 ff. 1292 Darbyshire, Darbyshire on the English Legal System, 10th ed (2011), p. 356. 1293 Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 18. 1284

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released.1295 If the suspect is booked, basic information, which may include fingerprints, is taken and personal property of the accused is inventoried and taken for safekeeping.1296 Here, exculpatory information may be disclosed that leads to the individual’s release without further prosecution. It is also at this time that an individual may be released with some preliminary bail deposit or on his or her own recognisance with a request to report back to court for an initial appearance.1297 Whether released or jailed, the defendant appears before a magistrate or a judge within a reasonable period of time for the initial (or first) appearance.1298 The prosecutor’s office, which serves as the “key link between the police and the courts”,1299 must file charges before the initial appearance.1300 There, the judge informs the accused of the charges and also of his or her basic rights to an attorney and to remain silent.1301 In relatively minor charges, a summary trial involving brief judicial inquiry of the suspect and the police officers may be conducted to determine guilt.1302 Where guilt is found, the matter moves immediately to sentencing.1303 Some charges may be dropped or dismissed at the initial appearance after further review by the prosecutor’s office. It is also at the initial appearance that the court may determine that the individual is indigent and will appoint counsel.1304 If the matter is a misdemeanour, it is scheduled for trial. If the crime is a felony, the defendant normally has the right to a preliminary hearing (also called preliminary examination) to determine whether the state can show 1294 As an alternative to a “full custody” arrest, the police may issue a “citation”, “summons” or “appearance ticket”, i. e. direct him or her “to appear in court on a set date to respond to the charge specified in the document”, see LaFave et al., Criminal Procedure, 5th ed ((Hornbook Series), 2009), p. 8. 1295 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19; on the term “arrest” in more detail Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), pp. 236 ff.; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 136. 1296 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. 1297 Ibid.; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. 1298 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 70; LaFave et al., Criminal Procedure, 5th ed ((Hornbook Series), 2009), p. 12. 1299 Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. 1300 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. 1301 Swoboda, Verfahrens- und Beweisstrategien (2013), p. 137. 1302 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. 1303 Ibid. 1304 Ibid.

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that there is probable cause to believe that the defendant has committed the crime as charged.1305 If the state fails to meet its burden at this stage, the charges are dismissed but may be reinstated later based on additional evidence. If the state meets its burden at the preliminary hearing, then the matter is moved forward to an arraignment.1306 The preliminary hearing is a formal adversarial proceeding conducted in open court with a transcript made of the proceedings.1307 In many jurisdictions the preliminary hearing is brief, with a strong probability that the case will proceed.1308 In the federal system and in some states, felony matters are referred to a grand jury as well as, or in place of, the preliminary hearing.1309 The grand jury usually consists of sixteen to twenty-three jurors, selected from their communities according to law to serve during the criminal term of the appropriate court.1310 It hears evidence regarding possible criminal activity and decides whether that evidence is sufficient to bring an accused to trial. The grand jury proceeding serves the same function as the preliminary hearing, i. e. “to prevent hasty and malicious prosecutions, to protect people from mistakenly being humiliated in public, and to decide whether there are grounds for prosecution.”1311 Before the grand jury, the prosecutor presents witnesses and evidence in support of the allegations. Grand jury proceedings are non-adversarial and are traditionally conducted in secrecy.1312 The grand jury also has broad investigative powers, including the power to subpoena people or documents.1313 Those investigative powers are most likely to be used in cases involving major drug rings, governmental corruption, and significant white-collar crime.1314 If the grand jury determines Cf. Rule 5 FRCP; McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 70. 1306 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. 1307 Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 70. 1308 Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 238. 1309 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 72; LaFave et al., Criminal Procedure, 5th ed ((Hornbook Series), 2009), pp. 777 f.; Davis, Arbitrary Justice (2007), pp. 25 ff. 1310 Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 74. 1311 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. 1312 Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 75. 1313 Ibid. 1314 Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 239. 1305

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that there are reasonable grounds to believe that the individual committed the crime, it indicts the accused, and the matter is referred to the next stage of the process. If the grand jury believes that there is not sufficient evidence to charge the individual, the matter may be dismissed at this point on a refusal to indict. After the grand jury has heard the case or after the court has held a preliminary hearing, charges may be amended from a felony to a misdemeanour.1315 If so, the matter is usually referred back to the misdemeanour division of the criminal court system. If the judge at the preliminary hearing or the grand jury finds that sufficient evidence exists to believe that the defendant committed the crime, then the defendant is arraigned.1316 An arraignment is an appearance before the judge where the charges, as they stand after the preliminary hearing or the grand jury, are read.1317 If the charges come out of the preliminary hearing process, the charging document is an information. If they are the product of the grand jury, the charging document is an indictment.1318 In addition to reading the charges, the judge asks the defendant to enter a plea to the charge. If the plea is guilty, there is no trial and the matter immediately moves to sentencing. If the plea is not guilty, the defendant is informed of the right to a trial by jury and can elect whether to exercise that right or waive the trial by jury and have the matter tried by a judge.1319 At the arraignment the judge also reconsiders any issue of bail and appoints an attorney for the defendant if necessary. The judge then sets a date for trial.1320 If the case goes to trial, which happens only for a small percentage of defendants,1321 the state’s duty is to present witnesses and evidence to prove that the defendant is guilty of the crime charged beyond a reasonable doubt.1322 If during the course of the trial it becomes obvious that the state cannot meet its burden of proof, the charges are dismissed. On completion of the trial, if the judge or jury finds insufficient evidence to convict, the defendant is acquitted, that is, found not guilty of the crime. If the jury or the judge finds that the state has met its burden of proof, the defendant is found guilty and the matter moves to sentencing.1323 Rule 32 of the Federal 1315 1316

McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. Ibid.; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009),

p. 77. Cf. Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34. 1319 Ibid. 1320 Ibid. 1321 Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. 1322 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 35. 1323 Ibid.; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 20; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 101. 1317 1318

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Rules of Criminal Procedure (FRCP) and similar state provisions require judges to impose sentence without unnecessary delay. This protects the defendant from a prolonged period of uncertainty about the future. Thus, sentencing usually occurs within a few weeks of conviction.1324 After sentencing, a judgment of guilt and a sentence is entered by the court.1325 The defendant may appeal this judgment.1326 On some issues concerning procedure or other court error, it is possible that both the prosecutor and defence may appeal the case, depending on which side is dissatisfied with the judgment. The appeal is processed through the appellate court system.1327 The number of appeals is small compared with the total number of convictions; further, in about 80 per cent of appeals, trial judges and other officials are ruled to have acted properly.1328 Furthermore, “[a]ppeals by the government in criminal cases are something unusual, exceptional, and not favored”.1329 Double jeopardy is a distinct danger from appeals of acquittals by the state, so appeals by the prosecution are allowed only when “plainly provided” by statute.1330 (3) Process Germany In Germany, much of what happens at trial will have been predetermined to a large degree by the investigations of the police, the prosecution, the examining pre-trial judge and sometimes also the defence.1331 In practice, a case will generally come to the attention of the prosecution only once the police have terminated their own investigations and submitted the case file to the prosecutor for further instructions.1332 At the pre-trial trial stage, the Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 106. Ibid., p. 107. 1326 Ibid., p. 109. 1327 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 35. 1328 Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 20. 1329 Carroll v. United States, 354 U.S. 394 (1957). 1330 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 542; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 151 ff., 155. See Justice Marshall in U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232, p. 352 (February 25, 1975): “A system permitting review of all claimed legal errors would have symmetry to recommend it and would avoid the release of some defendants who have benefited from instructions or evidentiary rulings that are unduly favorable to them. But we have rejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal.” 1331 Bohlander, Principles of German Criminal Procedure (2012), p. 67; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 39 mn. 1: “Auch ist, wenn es zu einer Hauptverhandlung kommt, deren Ausgang oft durch Ermittlungsergebnisse des Vorverfahrens vorgezeichnet.” 1324 1325

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Ermittlungsverfahren, there is a notable interplay between prosecution, police, defence and the courts.1333 In the pre-trial phase the prosecution conducts the necessary investigation (Herrin des Ermittlungsverfahrens).1334 As mentioned above, there is no investigating judge as, for example, in traditional French procedure.1335 The judge, who is not the trial judge, is merely called upon to consider requests by the prosecution,1336 and less often by the defence, for measures that either intrude on a suspect’s or a third party’s rights, and thus require judicial sanction under the StPO.1337 The defence also has the right to perform their own research and witness examination. However, very importantly, this must not jeopardise the integrity of the investigation. As Bohlander points out: “[I]n the majority of cases, especially run-of-the-mill cases, German defence counsel at the pre-trial stage are content to adopt a passive role and simply check the activity of the prosecution and courts; this may, however, be different in complex or high-profile cases, or where it has become obvious that the prosecution has gone the wrong way, or where material is needed to counter the prosecution’s stance early in order to avoid reputational damage of a public trial or even that of an indictment. This passivity will also end, of course, if intrusive interlocutory measures are taken that impact immediately on the client’s position, such as arrest warrants, driving disqualifications etc.”1338

During the pre-trial phase, the interrogation of the suspect occurs at the police station, while the courts and the prosecution are usually not involved.1339 Additionally, §§ 133–135 StPO provide for judicial interrogation during the pre-trial phase. § 168c StPO complements these provisions by regulating the right of attendance and the right to ask questions during the judicial examination. The prosecution can also interrogate the suspect according to § 163a(3) StPO.1340 Apart from this, § 136 StPO lays down: 1332

See § 163(1),(2) first sentence StPO. Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 39 mn. 21 ff.; Bohlander, Principles of German Criminal Procedure (2012), p. 67. 1334 § 160 StPO; Juy-Birmann, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 292, 305; Bohlander, Principles of German Criminal Procedure (2012), p. 67. 1335 Supra E. III. 4. a) bb) with fn. 537, S. 159 ff. 1336 And in cases of urgency, the police, see § 163(2) second sentence StPO: “Where it appears necessary that a judicial investigation be performed promptly, transmission directly to the Local Court shall be possible.” 1337 Juy-Birmann, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 292, 305; Bohlander, Principles of German Criminal Procedure (2012), p. 67. 1338 Bohlander, ibid., pp. 67, 68. 1339 Ibid., p. 93. 1340 Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 39 mn. 28 ff. 1333

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“At the commencement of the first examination, the accused shall be informed of the offence with which he is charged and of the applicable criminal law provisions. He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice. He shall further be advised that he may request evidence to be taken in his defence. In appropriate cases the accused shall also be informed that he may make a written statement, and of the possibility of perpetrator-victim mediation.”1341

Once the prosecution has finished their investigation, they basically have the following choices: (a) discontinuance for lack of proof or established innocence; (b) discontinuance with or without a condition in minor cases; (c) applying a Strafbefehl in less serious cases; and (d) filing an indictment.1342 Where the pre-trial phase does not result in discontinuance, it follows the intermediate phase (§§ 199–211 StPO). This phase has a dual aim – on the one hand, to verify the decision to prosecute taken during the preparatory phase; on the other hand, to declare the trial phase open, while at the same time checking that there exists a “legitimate suspicion” (hinreichender Tatverdacht) that an offence has been committed, considering both law and fact (§ 203 StPO).1343 If the prosecution files an indictment, § 199(2) StPO applies: “The bill of indictment shall contain the application to open the main proceedings. The file shall be submitted to the court with the bill of indictment.” The file – or dossier – has to be complete, i. e. the prosecution must not retain any incriminating or exculpatory material, and has no right to select which materials they present to the court at this stage.1344 If the court confirms the indictment, this opens the trial phase (Eröffnungsbeschluss), provided it seems likely that the accused will be sentenced.1345 The 1341 See generally Meyer-Goßner and Schmitt, Kommentar zur Strafprozessordnung, 56th ed (2013), § 136; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 39 mn. 28. 1342 See Roxin and Schünemann, ibid., § 40; Bohlander, Principles of German Criminal Procedure (2012), p. 101; Juy-Birmann, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 292, 313, 314. 1343 See Roxin and Schünemann, ibid., § 42 mn. 8 ff.; Juy-Birmann, ibid., p. 292, 314. 1344 BGH, 3 StR 89/09, June 18, 2009, StraFo (2009), 338; see also Bohlander, Principles of German Criminal Procedure (2012), p. 104 with fn. 20. 1345 § 203 StPO: “The court shall decide to open main proceedings if in the light of the results of the preparatory proceedings there appear to be sufficient grounds to suspect that the indicted accused has committed a criminal offence.” See also Juy-

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court can also amend the indictment as to the offence charged, or decide that only certain charges shall be proceeded with. If the court refuses to validate the indictment (Nichteröffnungsbeschluss), the criminal proceedings are interrupted.1346 The public prosecutor can appeal against such a ruling (but not against the Eröffnungsbeschluss).1347 According to § 199(1) StPO, it is “[t]he court which is competent for the main hearing” which shall decide whether main proceedings are to be opened or whether proceedings are to be provisionally terminated. After admission of the indictment, the trial court will prepare the hearing and set a date.1348 The presiding judge will also order the sequence of witnesses and experts, and the examination of other evidence as set out in the prosecution dossier or based on the additional investigations before the admission of the indictment.1349 The trial itself is governed by §§ 225 ff. StPO and the Gerichtsverfassungsgesetz (law on judicial organisation – GVG).1350 The trial concludes with the pronouncement of the judgement (Urteil).1351 The judges, who are triers of both fact and law, must give explicit reasons for their decision on guilt or innocence.1352 There are three Birmann, in: Delmas-Marty, European Criminal Procedures (2002), p. 314; Roxin and Schünemann, Strafverfahrensrecht, 26th ed (2009), p. 306. 1346 § 204(1) StPO: “If the court decides not to open main proceedings, the order must show whether its decision is based on factual or on legal grounds.” 1347 § 210(1),(2) StPO: “The order by which the main proceedings were opened cannot be contested by the defendant. The public prosecution office shall be entitled to lodge an immediate complaint against an order refusing the opening of the main proceedings or an order by which, in deviation from the application of the public prosecution office, the proceedings have been referred to a court of lower rank.” See Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 42 mn. 17 ff. 1348 See § 213 StPO: “The date for the main hearing shall be set down by the presiding judge.” 1349 § 238 StPO: “(1) The presiding judge shall conduct the hearing, examine the defendant and take the evidence. (2) The court shall decide on an objection by a participant in the proceedings that an order by the presiding judge relating to the conduct of the hearing is inadmissible.” See also Bohlander, Principles of German Criminal Procedure (2012), p. 113; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 44 mn. 14 ff. 1350 Juy-Birmann, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 292, 294 ff.; Roxin and Schünemann, ibid., § 44. 1351 § 260(1) StPO; Roxin and Schünemann, ibid., § 49. 1352 § 268(2) StPO: “The judgment shall be pronounced by reading out the operative provisions of the judgment and disclosing the reasons for the judgment. Reasons for the judgment shall be disclosed by their being read out or by oral communication of their essential content. Reading the operative provisions of the judgment shall in each case precede communication of the reasons for the judgment.” Bohlander, Principles of German Criminal Procedure (2012), p. 129; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 49 mn. 2.

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forms of appeal (Rechtsmittel) in Germany: Berufung is an appeal on fact and law from a judgment on conviction and/or sentence; Revision is an appeal on points of law only, again from conviction and/or sentence; and Beschwerde is a general appellate remedy, mainly for ancillary or interlocutory relief, but not against conviction and/or sentence.1353 Only the Berufung and the Revision have the effect of both directly moving the appeal to the next tier of the court hierarchy (Devolutiveffekt – devolutive effect) and of preventing the judgment from entering into effect or becoming final (Suspensiveffekt – suspensive effect).1354 German law permits appeals against conviction, sentence and acquittals, as well as against other decisions, for both the defence and the prosecution.1355 According to § 296(2) StPO, the prosecution may even appeal on behalf of the accused if it is “for the benefit of the accused.” Parties may waive or withdraw their right to appeal.1356 Once a judgement is final, its legal effect can only be annulled through the review procedure (Wiederaufnahme des Verfahrens).1357 (4) Process ICC At the ICC, there is a pre-procedural stage of the triggering procedure. This triggering phase must be subdivided into three types of triggering proceedings, depending on the activation request: a State Party referral (Arts. 13(a), 14 ICC-Statute); a Security Council referral (Art. 13(b) ICC-Statute); or the OTP’s initiation proprio motu upon the receipt of information on the existence of crimes (Arts. 13(c), 15 ICC-Statute).1358 Once an activation is made, the OTP takes over and starts its preliminary examinations in order to determine whether or not to initiate an investigation.1359 This investiga1353

Bohlander, Principles of German Criminal Procedure (2012), p. 251. Meyer-Goßner and Schmitt, Kommentar zur Strafprozessordnung, 56th ed (2013), Vor § 296 mn. 2; Bohlander, ibid., p. 251; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 53 mn. 4 f. 1355 § 296(1) StPO; Bohlander, ibid., p. 253. 1356 However, see § 302(1) StPO: “Withdrawal of an appellate remedy as well as waiver of the right to file such appellate remedy may also take effect before expiry of the time limit for filing. If a negotiated agreement (Section 257c) has preceded the judgment, a waiver shall be excluded. An appellate remedy filed by the public prosecution office for the benefit of the accused may not be withdrawn without his consent.” 1357 Cf. Bohlander, Principles of German Criminal Procedure (2012), p. 251. Bohlander actually states, that the final judgement can only be “attacked” through the review procedure. 1358 Olásolo, The Triggering Procedure of the International Criminal Court (2005); Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 57. 1359 Stegmiller, ibid., p. 57; Schabas, Introduction to the ICC, 4th ed (2011), pp. 180 ff. 1354

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tion may result in a decision to continue with a formal investigation or to terminate the proceedings (Arts. 53(1), 15(3) ICC-Statute, Rule 48 ICCRPE).1360 The investigation stage encompasses the gathering of evidence, i. e. preliminary examination of the accused, taking testimony from eye-witnesses and victims, gathering of documents and tangible objects, exhumation of mass graves and on-site investigations. Its beginning is marked by a decision under Art. 53(1) ICC-Statute or by an authorisation of the PreTrial Chamber under Art. 15(4) ICC-Statute.1361 The supervisory role of the Pre-Trial Chamber under Art. 53(3) ICC-Statute has been outlined above.1362 If the Prosecutor cannot find a sufficient basis for prosecution, he or she suspends proceedings (Art. 53(2) ICC-Statute). Otherwise, the Prosecutor applies for a warrant of arrest or summons to appear. The PreTrial Chamber issues such a warrant if there are reasonable grounds to believe that a person has committed the crime within the jurisdiction of the Court and the arrest appears necessary (Art. 58(1) ICC-Statute). The interface between the investigation and trial stage is the confirmation hearing as provided for in Art. 61 ICC-Statute.1363 It has been suggested that – together with the initial proceedings (Art. 60 ICC-Statute) and the disclosure of evidence – the confirmation hearing constitutes an intermediate phase, which has to be treated as a separate phase.1364 Although the beginning of this phase is disputed, it shall suffice for the purpose of this study to follow Ambos/Miller1365 and Stegmiller,1366 stating that the beginning of the intermediate phase is characterised by the arrival of the suspect.1367 Moreover, the term “intermediate phase” shall be used instead of “pre-trial phase”.1368 1360

Hoffmeister and Knoke, 59 ZaöRV (1999), 785, 807; Stegmiller, ibid., p. 57. See in more detail Jackson, 7 JICJ (2009), 17, 24 ff.; about the discretion of the OTP see Rohrer, Legalitäts- oder Opportunitätsprinzip beim IStGH (2010), pp. 160 ff. 1362 See supra E. IV. 2. b) aa) with fn. 1144, S. 252 for Art. 53(3) ICC-Statute and E. IV. 2. a) bb) (2) (b) for the role of the Pre-Trial Chamber in general. 1363 Ambos, Internationales Strafrecht, 3rd ed (2011), p. 330; Calvo-Goller, The Trial Proceedings of the ICC (2006), pp. 169 ff. 1364 Ambos and Miller, 7 ICLR (2007), 335, 336; Marchesiello, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1231, 1239 ff.; Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 59. 1365 Ambos and Miller, ibid., 338. 1366 Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 62. 1367 Subsequent to a detailed discussion, Ignaz Stegmiller identifies three potential points for the indermediate phase and pre-trial stage respectively: the assignment of a situation, the issuance of an arrest warrant or summons to appear and the arrival of the suspect, see ibid., pp. 59 ff., 61. 1368 Ibid., p. 62. 1361

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Figure 27: Comparison of the Procedural Stages: USA – England/Wales – ICC

Once the charges have been confirmed in accordance with Art. 61(7) ICC-Statute, the preparation for trial starts.1369 After the constitution of a Trial Chamber and the referral of the case to it (Art. 61(11) ICC-Statute, Rule 130 ICC-RPE), the Chamber convenes a status conference in order to set a trial date (Rule 132 ICC-RPE). The trial stage is concerned mainly with determining guilt or innocence of the accused. It typically includes status conferences (Art. 64(3) ICC-Statute, Regulation 54 RegCourt)1370 held in order to facilitate the fair and expeditious conduct of the proceedings, opening statements, the presentation of evidence, closing arguments, deliberations, and judgment.1371 Under certain conditions decisions delivered during the pre-trial and trial stages may be subject to review through interlocutory appeals.1372 Moreover, the trial can either be bifurcated into guilt and Schabas, Introduction to the ICC, 4th ed (2011), pp. 288 ff. Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 62. 1371 Calvo-Goller, The Trial Proceedings of the ICC (2006), pp. 217 ff.; Terrier, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1259 ff.; Behrens, 11 HuV-I (1998), 144, 147 ff.; Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 62. 1372 Art. 82 ICC-Statute. 1369 1370

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Figure 28: Comparison of the Procedural Stages: USA – Germany – ICC

sentencing phases or be kept unified. The post-trial stage may concern both appeals against judgment and sentence and revision of some or all of the final decisions. Appeal proceedings may involve both an assessment of the facts of the case as established by the judgment of a Trial Chamber and a review of how the law has been applied (Art. 81 ICC-Statute). Revision applies to a conviction or sentence (Art. 84 ICC-Statute). According to Art. 84 ICC-Statute, a final judgement shall be revised if new evidence has been discovered, which “(i) [w]as not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) [i]s sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict.” (5) Conclusion What conclusions can be drawn from the structure of the proceedings at the ICC in comparison with domestic proceedings? As I have illustrated, the ICC does certainly not have the “concentrated” proceedings Damaška identifies as a feature of coordinate procedure.1373 1373

About this feature supra E. IV. 2. c) bb).

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Although the labelling of every single stage at the ICC is disputed, I followed the approach of Ambos/Miller and Stegmiller, identifying six stages: pre-investigation stage; investigation stage; intermediate stage; appeal stage; and enforcement stage. As I have shown, the ICC has a relatively strong form of appellate review. Recall, however, that the concentration of proceedings means a “relatively weak character of appellate review”.1374 Thus, Civil Law systems in general tend to provide for a broader scope of appellate review, which includes re-examination of factual issues. Common Law systems are traditionally more restrictive, in particular when it concerns review of facts and appeals by the prosecution.1375 Appellate review at the ICC resembles the German Berufung as I have described it above.1376 Moreover, the prosecutor – on behalf of the convicted person – may make an appeal,1377 which is an indication of the hierarchical ideal. The second feature of concentrated proceedings is a certain kind of preparatory proceeding. Of course, the mere existence of preparatory proceedings does not suffice for a trial being definitively labelled as concentrated or not. Instead, preparatory proceedings as an indication of the hierarchical ideal must be “tightly integrated into the subsequent proceedings”, and must create the possibility to “generate evidence out of court in advance of the trial” in presence of “official investigators”.1378 The hierarchical type of process is no day-in-court trial as a culminating procedural event – at least not in the sense that the material for the decision is fully presented to the adjudicator as a whole, in one continuous block of time and in a form unmediated by prior official action.1379 I therefore come to the conclusion that none of the forms of proceedings analysed – U.S.A., England/Wales, Germany, ICC – contain all of the features of a hierarchical or coordinate ideal. It is certainly fair to say, that all domestic legal systems within the Common Law or Civil Law tradition contain concentrated and “continuous” proceedings, but they reach this concentration differently: in continental proceedings the trial is the cumulation of a continuing criminal process, whereas many Common Law legal systems conceive the trial as “a discrete and continuous event” and differentiate more sharply between the trial and pre-trial phases of criminal proceedings.1380 A good illustration for this dif1374

Damaška, Faces of Justice (1986), p. 57. Zappalà, Human Rights in International Criminal Proceedings (2003), p. 155. 1376 In the same vein Ambos, Internationales Strafrecht, 3rd ed (2011), p. 356. 1377 See Art. 81(1)(b) ICC-Statute. Compare § 296(2) StPO: the prosecution may even appeal on behalf of accused if it is “for the benefit of the accused.” 1378 Damaška, Faces of Justice (1986), p. 57. 1379 Ibid., pp. 182, 183. 1380 Roberts and Zuckerman, Criminal Evidence, 2nd ed (2010), p. 55. 1375

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ference is the fact, that Franz Kafka’s “Der Prozess” is still translated as “The Trial” in English,1381 instead of “The Proceedings”, which would certainly be more accurate.1382 The closest to the hierarchical ideal is certainly the German system with the prosecution as the Herrin des Ermittlungsverfahrens, where the defence must not jeopardise the integrity of the (official) investigation, judicial interrogation occurs during the pre-trial phase and the intermediate stage before the judge that is competent for the main hearing. However, the changes that led to the current proceedings in England and Wales made English criminal procedure much more like the French-influenced continental procedures and thus brought those proceedings closer to the hierarchical ideal.1383 In particular, the abolishment of committal proceedings and the introduction of hearings such as the plea and case management hearing or preparatory hearing, that ensure a greater managerial involvement of the judge, prove a clear orientation towards the hierarchical ideal.1384 While prior to the reforms in England and Wales, the “centre of gravity” was the trial, which unsurprisingly gave the English process a coordinate form of procedure; the “shift of emphasis in English criminal procedure towards the preliminary stages” certainly gives this process a hierarchical colour.1385 Similar to the (now abolished) committal hearing in England and Wales is the preliminary hearing in US criminal proceedings. However, even in the U.S.A. there are certain forms of the hierarchical ideal, such as the grand jury proceeding, where a jury of sixteen to twenty-three jurors has investigatory powers within a non-adversarial proceeding. Moreover, subsequent to a recommendation by the Illinois Commission on Capital Punishment,1386 Illinois introduced final case management conferences at the Supreme Court to ensure compliance with the discovery rules and that each case is fully prepared for trial.1387 1381 See, for instance, the copy which is available on Amazon, , last visited 24 September 2013. 1382 Cf. Damaška, 51 Zbornik PFZ (2001), 477, 490. 1383 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 1, 18; Hodgson, 35 N.C.J. Int’l. & Comm.Reg. (2010), 319, 322. 1384 See Hodgson, ibid., 311, who criticises this development: “Legislative reform over the last twenty years appears to have ignored the theoretical framework of the criminal justice system in England and Wales. Instead, we see a range of changes that undercut the defense role and introduce a form of ill-conceived hybrid criminal procedure, in which managerialist efficiency is the primary driver.” (fn. omitted). 1385 Cf. Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 142, 177. 1386 See The Governor’s Commission on Capital Punishment, Report of The Governor’s Commission on Capital Punishment 117 (15 April 2002); see also Joseph, 17 Cap. Def. J. (2004–2005), 33, 37.

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At the ICC, the confirmation hearing does not take place before the same judge or panel of judges who conduct the trial stage. However, this does not mean that the confirmation hearing is by no means “integrated into the subsequent proceedings”, because the record of the proceedings is transferred to the Trial Chamber. Interpreting Art. 56 ICC-Statute broadly, it may be possible for the Pre-Trial Chamber to “freeze” a lot of evidence for trial, either on the request of the parties or proprio motu.1388 Moreover, the Pre-Trial Chamber has certain investigatory powers and interprets its role rather actively. In my view, the confirmation hearing at the ICC is closer to the hierarchical than the coordinate ideal. However, what I have also illustrated is the unsuitability of domestic criminal proceedings as ideals, since all domestic proceedings I analysed have integrated coordinate and hierarchical elements into their trial structure. Moreover, it is interesting to see that the increasing case load and costs (in a time of an economic crisis) leads to the introduc1387

Illinois Supreme Court Rule 218a: At the conference counsel familiar with the case and authorized to act shall appear and the following shall be considered: • the nature, issues, and complexity of the case; • the simplification of the issues; • amendments to the pleadings; • the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; • limitations on discovery including: i. the number and duration of depositions which may be taken; ii. the area of expertise and the number of expert witnesses who may be called; and iii. deadlines for the disclosure of witnesses and the completion of written discovery and depositions; • the possibility of settlement and scheduling of a settlement conference; • the advisability of alternative dispute resolution; • the date on which the case should be ready for trial; • the advisability of holding subsequent case management conferences; and • any other matters which may aid in the disposition of the action. 1388 See in this regard Kreß, 1 JICJ (2003), 603, 605, 608: “It is obvious that the potential to reduce the length of the trial constitutes a powerful incentive to make broad use of Article 56 powers to take evidence in advance of the trial – a practice which, by the way, is known to most legal systems”. See also de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 421, who remarks that the extent to which an extensive interpretation of Article 56 is possible depends on how one interprets Article 74(2), which requires that “[t]he Court may base its decision only on evidence submitted and discussed before it at the trial.” Interestingly, in fn. 78 de Smet notes that “the English text refers to ‘the Court’ and not to the Trial Chamber, which could imply that also evidence submitted to the Pre-Trial Chamber and discussed before the Trial Chamber could be taken into consideration. The French version of the Article makes no such distinctive word use: ‘Elle [i. e. la décision] est fondée exclusivement sur les preuves produites et examinées au procès.’ The term ‘procès’ could refer to the entirety of the proceedings, rather than to the trial phase alone, thus supporting a broader interpretation of Article 56.”

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tion of hierarchical elements (although the aforementioned “cherry picking” is obvious). cc) Oral or Written Testimony and Prior Recorded Testimony Another feature of the coordinate ideal is the reliance on oral communication and live testimony rather than on evidentiary records and written submissions.1389 A reason for this is that “[i]n the coordinate process there are no widely scattered procedural steps that must be integrated through a file; traces of prior procedural action need not be preserved to establish a firm basis for superior review.”1390 There are no specialised officials to produce, preserve and retrieve documents, and live testimony is preferred over written testimony.1391 In domestic criminal procedure, many legal systems rely on oral testimony at least in the final stage of criminal proceedings, which take place in open court (as long as it is not an abbreviated procedure or summary trial).1392 This again shows the unsuitability of the inquisitorial/adversarial dichotomy, since “the contest can unfold in written form (exchange of briefs) or orally” and an inquest “can rely on documents as well as on live testimony”.1393 Moreover, the widespread use of guilty pleas means that trial courts in England, like their Continental counterparts, do much of their fact-finding on the basis of written statements prepared by the authorities ahead of trial.1394 Nevertheless, in France and Belgium criminal proceedings are more written and less oral than in England to the extent that written depositions taken during the investigation usually constitute evidence on which the court of trial can act, which in principle is not the case in England.1395 This is due to the weight of written evidence and the dossier respectively: In France and Belgium, “evidence” tends to mean a piece of information that gets into the dossier, whereas in English law, nothing really counts as “evidence” until it has been tested orally at trial.1396 1389

Swart, 6 JICJ (2008), 87, 91. Damaška, Faces of Justice (1986), p. 61. 1391 Ibid. 1392 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 1, 21, 22. 1393 Damaška, The Faces of Justice (1986), p. 69; Swoboda, by contrast, indentifies the reliance on documentary evidence as a pure inquisitorial feature – a feature which is object to criticism by Common Lawyers, see Swoboda, Verfahrens- und Beweisstrategien (2013), p. 206 with further references. 1394 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 1, 21, 22. 1395 Ibid. 1396 See supra E. IV. 2. c) aa) and infra G. III. 2. c) cc). 1390

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At the ICC, “[t]he testimony of a witness at trial shall be given in person [. . .]” (Art. 69(2) ICC-Statute). Thus, the ICC basically relies on live testimony which could lead to the conclusion that this procedural element is a coordinate one. However, Art. 69(2) ICC-Statute continues: “[. . .] except to the extent provided by the measures set forth in Article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.”

Thus, the ICC allows for exceptions to reliance on live testimony and therefore establishes a hierarchical element. The ICC’s affinity towards a hierarchical structure becomes even clearer after analysing the admission of prior recorded testimony. According to Damaška, because of the reliance on oral testimony, “[t]he disappearance of a single witness can ruin even a carefully prepared case. [. . .] Unlike the hierarchical process, statements made by a witness at trial cannot be compared with his officially recorded prior declarations in an effort to decide what to believe.”1397 By contrast, in legal systems like Germany, prior recorded (police) testimony is, exceptionally, admissible into evidence,1398 and the risk of witness intimidation is far lower since killing or attacking the witness would not necessarily prevent the testimony from being made available to the court.1399 The ICC’s regime regarding prior recorded testimony lies somewhere between those two extremes.1400 According to Rule 68 ICC-RPE, “the Trial Chamber may, in accordance with article 69, paragraph 2, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, [. . .].” However, Rule 68 ICC-RPE limits this position to the following situations: “(a) If the witness who gave the previously recorded testimony is not present before the Trial Chamber, both the Prosecutor and the defence had the opportunity to examine the witness during the recording; or (b) If the witness who gave the previously recorded testimony is present before the Trial Chamber, he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.” 1397

Damaška, Faces of Justice (1986), p. 61. But note that the admissibility requirements are rather strict in those circumstances, see § 251(2) StPO. See also Trüg, Lösungskonvergenzen trotz Systemdivergenzen (2003), pp. 360–361. 1399 See Ambos, 12 ICLR (2012), 115, 126. 1400 Ibid. 1398

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Thus, the Chamber may admit it as documentary evidence when both parties have had the opportunity to question the witness during the taking of testimony (not necessarily before a judge)1401 and use its discretion to freely assess all the evidence, including the imposition of further requirements such as the corroboration of the material in question.1402 Still, the allowance of prior recorded testimony does not only “dilute” the principle of immediacy,1403 but is also a departure from the coordinate ideal and an orientation towards the hierarchical ideal. This impression is even further intensified by the fact that the Pre-Trial Chamber can “freeze” a lot of evidence for trial, either on the request of the parties or proprio motu,1404 and by the apparent possibility of using the record of the proceedings before the Pre-Trial Chamber as a quasi-dossier.1405 dd) The Role of Counsel So far, I have outlined the role of the Prosecutor in a hierarchical, coordinate, conflict-solving and policy-implementing model. I now turn to the role of counsel within those models.1406 (1) The Role of Counsel in a Conflict-solving Form of Process In a conflict-solving procedure, counsel acts solely in the interest of his or her client, although counsel is not the client’s “alter ego”.1407 As Tuinstra points out, “[i]n a complex society, to ensure a winning legal case the assistance of a competent lawyer who can adequately present a case is a necessity. For this reason, skill and competence are important features for counsel in conflict-solving proceedings.”1408 In addition, legal assistance 1401 Note that pursuant to Rule 111 ICC-RPE a record must be made of all “formal statements made by any person who is questioned in connection with an investigation or with proceedings”. This record must be signed by the person making the statement. Moreover, interrogation of suspects must in all cases be audio- or video recorded. See de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 421. 1402 See Ambos, 12 ICLR (2012), 115, 126; Combs, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 323, 327; Calvo-Goller, The Trial Proceedings of the ICC (2006), p. 272; Guariglia, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), pp. 665, 673 f.; Kreß and Wannek, in: Kirsch, ed., Internationale Strafgerichtshöfe (2005), p. 231, 253. 1403 De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 421. 1404 See supra E. IV. 2. a) bb) (2) (b) with fn. 1104, S. 246 ff. 1405 See supra E. IV. 2. c) aa) and infra G. III. 1406 See generally Tuinstra, Defence Counsel (2009). 1407 Damaška, Faces of Justice (1986), pp. 142, 143.

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may help to settle a conflict out of court.1409 The role of counsel in the conflict-solving system is first and foremost to be an “assistant to his client.”1410 Within the limits of a fair contest, a lawyer may do anything to further his client’s interests.1411 Damaška points out that it is not “legitimate for counsel to alter his role as assistant by interpreting the client’s interests differently than the client chooses to define them.”1412 In terms of fact-finding, counsel “may take any and all action that will help his client’s cause”, as long as this happens within the limits of the process.1413 At trial, every “intellectually respectable argument” must be made on the client’s behalf,1414 even if it does not amount to the best legal interpretation, complicates the lawsuit or produces delay. Zealous advocacy is a must.1415 In the United States, for instance, lawyers “run the show”.1416 Their professional culture is unique in permitting and implicitly encouraging them to advance unprecedented legal claims, coach witnesses, and attempt to wear down their opponents through burdensome pre-trial discovery.1417 Nevertheless, as already mentioned, in contest proceedings a lawyer should not consider himself his client’s alter ego.1418 Therefore, in terms of ethical professional standards, the counsel is described as an “officer of the court”.1419 Murray Schwartz calls this the principles of “non-accountability and professionalism”.1420 The principle of non-accountability holds that “[w]hen acting as an advocate for a client [. . .] a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved.”1421 The principle of professionalism holds that “a lawyer must, within the established constraints upon professional behaviour, maximize the likelihood that the client will prevail.”1422 Similarly, in England and Wales, the defence counsel present their cases and attack their opponent’s case within the bounds of the rules of evidence, the rights of the accused 1408

Tuinstra, Defence Counsel (2009), p. 111. Ibid. 1410 Damaška, Faces of Justice (1986), p. 142. 1411 Tuinstra, Defence Counsel (2009), p. 111. 1412 Damaška, Faces of Justice (1986), p. 142. 1413 Ibid. 1414 Ibid. 1415 Ibid. 1416 Ingraham, Structure of Criminal Procedure (1987), p. 9. 1417 Kagan, 19 Law & Soc. Inquiry (1994), 1, 53–58; id., Adversarial Legalism (2003), p. 55. 1418 Damaška, Faces of Justice (1986), p. 143. 1419 Ibid.; see also Tuinstra, Defence Counsel (2009), pp. 111 and 194. 1420 Cf. also Goodpaster, 78 J. Crim. L. & Criminology (1987–1988), 118, 124. 1421 Schwartz, in: Luban, ed., The Good Lawyer (1983), p. 150. 1422 Ibid. 1409

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and professional ethics.1423 Counsel in a reactive state are likely to have more responsibilities, for instance, with regard to fact-finding and the presentation of (witness) evidence than his or her counterpart in an activist state where officials bear most fact-finding and evidence-preserving responsibilities. Because of counsel’s broader responsibilities, he or she is subject to ethical standards that prevent the abuse of his or her powers.1424 (2) The Role of Counsel in a Policy-implementing Form of Process By contrast, in a policy-implementing form of procedure, zealous advocacy is not appreciated to the same extent as in the reactive state. A lawyer should not lend himself to bring about an inaccurate verdict even if it would be in his client’s interest.1425 Counsel should not just pursue the self-interest of his client and obstruct the fulfilment of state policy.1426 Where the state’s interests and his client’s interests clash, counsel should take a passive stance.1427 The proceedings being centralised around policyimplementation, counsel can be most effective by raising those arguments that are “both favourable to his client and acceptable from the state’s point of view.”1428 That the legal systems within the Civil Law tradition do not always incorporate hierarchical elements is demonstrated by the discussion about the role of defence counsel in Germany. In Germany, the legal defence is an inherent part of the trial.1429 Therefore, the actions of the defence at trial can usually not constitute a crime.1430 Still, neither the StGB nor the StPO clarify the rights and obligations of a solicitor in detail.1431 Therefore, one could assume the solicitor is allowed to do everything that might lead to an acquittal of his client. To that direction tends the “Interessentheorie”.1432 According to that view, the solicitor is a private stakeholder of the defendant, who is not bound to public functions.1433 Some even refer to an 1423

Epp, Building on the Decade of Disclosure (2001), p. 31. Damaška, Faces of Justice (1986), p. 143. 1425 Ibid., p. 175. 1426 Ibid. 1427 Ibid., p. 176. 1428 Ibid., p. 178. 1429 BVerfGE 38, p. 105 at 119. 1430 BGHSt 46, p. 53, 54; Kudlich and Roy, JA 2001, 15, 17; Martin, JuS 2000, 1124, 1125. 1431 Ranft, Strafprozessrecht, 3rd ed (2005), § 21 mn. 425. 1432 Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 19 mn. 3. 1433 Eschen, StV 1981, 365, 367; Gatzweiler, StV 1985, 248, 249; Welp, 90 ZStW (1978), 101, 102. 1424

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agency agreement by civil (private) law.1434 By contrast, according to the view of the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) and the German Federal Court (Bundesgerichtshof – BGH) the solicitor is an organ of the judicature.1435 He is neither allowed to interfere with the judicature nor to act contrary to the aims of the process.1436 However, that does not imply that the counsel for the defense is in any way obliged to contribute to the court’s search for truth and therefore indirectly to the conviction of his client.1437 Even as an organ of the judicature the defence counsel cannot be compelled to do the investigation tasks of the court or the prosecution or to cooperate with other trial participants.1438 According to a modification of this “Organtheorie” the solicitor has to respect the core area of the judicature.1439 The Organtheorie represents the prevailing view and seems to be more appropriate than the Interessentheorie. The latter might amount to a specification of the defence strategy of the solicitor by the defendant, which cannot be appropriate.1440 Furthermore, there are several provisions of the StPO proving that the solicitor is not the stakeholder of the defendant, e. g. §§ 140, 240(2) and 257 StPO.1441 With regard to the counsel’s activities, lawyers from legal systems familiar with the Civil Law tradition have a narrower scope of activity than their Common Law pendants.1442 Independent investigations by counsel “are dramatically curtailed, at least in those activist systems that employ an investigative bureaucracy.”1443 As Tuinstra points out, “at the trial stage in an inquest model of proceedings counsel are less active than in contest proceedings. Counsel should certainly refrain from spreading confusion or from 1434 Lüderssen and Jahn, “Vor § 137”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, 26th ed (2007), mn. 33. 1435 BVerfGE 38, pp. 105, 109, 119; BGHSt 12, p. 367, 369; Fezer, 51 JZ (1996), 602, 614. 1436 Laufhütte, “§ 147”, in: Hannich, ed., Karlsruher Kommentar zur Strafprozessordnung, 6th ed (2008), mn. 12. 1437 See Beulke, Strafprozessrecht, 11th ed (2010), mn. 150 with further references. 1438 See in more detail Dornach, NStZ 1995, 57 ff. 1439 Beulke, Verteidiger im Strafverfahren (1980), p. 146. 1440 Id., Strafprozessrecht, 12th ed (2012), mn. 151. 1441 Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 19 Rn. 5a. 1442 Damaška, Faces of Justice (1986), p. 143 with fn. 79: “In those common-law jurisdictions where, as in Britain, the barrister has few contacts with the party and engages in no investigative action, chances are less than in America that the trial lawyer will be in possession of information that gives rise to the ethical dilemmas of an American attorney. On the Continent, the scope of counsel’s activity is altogether more restricted than it is in common-law systems.” 1443 Ibid., p. 177.

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delaying proceedings. His adversary in criminal proceedings is a state official involved in the investigations. Therefore, if counsel were to challenge the evidence that incriminates his client too vehemently, this could be mistaken for obstructing the fulfilment of state policies.”1444 Since state officials are primarily responsible for attaining accurate outcomes, “there is relatively little scope for deployment of counsel’s skill and ingenuity.”1445 An important role of defence counsel in activist criminal proceedings is to check whether state officials have properly performed their duties.1446 This should reduce improper behaviour of officials and assist in producing an accurate outcome.1447 Activist states do not appreciate independent associations. If allowed at all, bar associations should operate as “quasi-official agencies” that service the justice system.1448 Last, counsel in an activist state risk obstructing the realisation of state policies, which can even be classified as a crime,1449 if he or she “fiercely challenges material damaging to his client”.1450 (3) Application of Damaška’s Concept to the ICC This having been said, in contrast to other features of Damaška’s models, his description of the role of counsel is not easy to apply to the role of counsel before the ICC. The salient point is Damaška’s remark that defence counsel in the conflict-solving model is a “zealous advocate”, but also an officer of the Court – both at the same time. In fact, both English and American Law define a defence counsel as an officer of the court, who is prohibited by a code of professional conduct from abusing his role. However, if the defence counsel within the conflict-solving form of procedure is seen as an officer of the court, what then distinguishes him from defence counsel in policy-implementing forms of procedure where the Court is supposed to implement state policy and the defence counsel is prohibited from conducting any procedural measures that could prevent this state policy from being implemented? Tuinstra, referring to Damaška, describes the difference in the following words: “As the scope of activity of defence counsel in policy-implementing proceedings is narrower than in conflict-solving proceedings, counsel need not regard himself as an officer of the court, such as is customary in the reactive environment. 1444 1445 1446 1447 1448 1449 1450

Tuinstra, Defence Counsel (2009), p. 115. Damaška, Faces of Justice (1986), p. 177. Tuinstra, Defence Counsel (2009), p. 115. Damaška, Faces of Justice (1986), p. 174. Tuinstra, Defence Counsel (2009), p. 115. Supra notes 1429, S. 292 ff. for the (disputed) situation in Germany. Damaška, Faces of Justice (1986), p. 177.

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Rather, in Damaska’s view, counsel’s professional ethics should counterbalance the notion that state interests will always outweigh individual interests. Counsel’s role of representing an ‘individual enmeshed in the machinery of justice’ may well be idealised in an activist state.”1451

However, I do not think that this reference illustrates the difference between an officer of the court and counsel within a policy-implementing environment very well. Tuinstra basically says that in a policy-implementing procedure, “professional ethics” for counsel exist to “counterbalance” the priority of the state’s interest, while this is not the case in a conflict-solving procedure. To really understand the different approaches to ethical duties in the two models, two questions have to be asked: first, which model contains the least risk of exposing defence counsel to ethical duties that require him to act as an officer of the court and act against his client’s interest? After I have described the role of the participants within the two models in great detail, the answer to that question is easy: the conflict-solving procedure. Therefore, second, why does the conflict-solving form of procedure make the counsel an officer of the court? The answer is that it seeks to prevent abuse! However, Damaška remarks in that regard: “[T]he role of counsel consonant with a structure of proceedings must not be confused with ethical exhortation designed to prevent abuse of that role.”1452 In other words, even though as a result the counsel in both the policy-implementing and conflict-solving procedures has to act as an officer of the court, that does not mean that his or her position within both forms of proceedings is in any way similar. While in the policy-implementing procedure the counsel’s position is to attend to interests of the state in order to avoid obstructing the implementation of state goals, in a conflict-solving form of procedure the counsel’s position is to attend to interests of his client, but he must not abuse this position and work against the court. In the US, for example, it is the concept of justice that tends to be purely procedural and “override larger public interests.”1453 The interests of justice or broader societal concerns will be disregarded.1454 In the words of Ingraham: “Insofar as the procedural rules reflect an attempt to advance larger public goals, the lawyers convert and manipulate them to achieve the private interests of their clients, the organizations they represent, or themselves. Being absolutely in1451 Tuinstra, Defence Counsel (2009), p. 116 with reference to Damaška, Faces of Justice (1986), pp. 143, 144. 1452 Damaška, ibid., p. 143. 1453 Blumberg, 1 Law and Soc’y Review (1967), 15, 15–39; Feeley, The Process is the Punishment (1979); Heumann, Plea Bargaining (1978). 1454 Osiel, 103 Harv. L. Rev. (1990), 2009, 2019; Kagan, 19 Law & Social Inquiry (1994), 1, 53–58; Kagan, Adversarial Legalism (2003), p. 55.

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dispensable for the operation of the adversary system, they are virtually beyond the control of non-lawyers wishing to make their behavior conform to public policy goals which transcend private interests.”1455 Thus, the ICC’s Code of Professional Conduct for Counsel does not serve as an indication of whether counsel at the ICC are modelled along the ideal of conflict-solving or policy-implementation. This code is indeed only an “ethical exhortation designed to prevent abuse of that role”.1456 Therefore, the question is whether there is evidence that the Rome system expects counsel for the defence not to prevent the implementation of the Court’s goals or to even ensure that those goals are implemented? Regulations 67 ff. RegCourt provide for inter alia the establishment of the Office of Public Counsel for the Defence (OPCD)1457 and detailed criteria for qualification as defence counsel before the ICC.1458 The Registry maintains a list of counsel who are willing to be assigned as defence counsel.1459 The defendant may freely choose counsel from that list. The free choice of counsel is strengthened by the fact that a lawyer preferred by the defendant should be admitted to the list and appointed as long as he fulfils the necessary requirements.1460 Regulation 73 RegCourt provides for the establishment of duty counsel.1461 The Chamber may appoint duty counsel in situations of urgency when the person’s own counsel is unavailable or when it is necessary to appoint duty counsel in the interests of justice.1462 Thus, Regulation 73 RegCourt is aimed at securing a proper defence through legal assistance at any time.1463 Additionally, counsel at the ICC actively conduct their own investigations, present their own evidence in court and cross-examine the witnesses of the prosecution.1464 Unlike the OTP, the defence is not a part of, but situated outside, the organisational structure of the Court.1465 This serves as a coordinate feature, where procedural steps 1455

Ingraham, Structure of Criminal Procedure (1987), p. 9. Cf. Art. 4 of the Code: “Where there is any inconsistency between this Code and any other code of ethics or professional responsibility which counsel are bound to honour, the terms of this Code shall prevail in respect of the practice and professional ethics of counsel when practising before the Court.” [emphasis added]. 1457 The tasks of the OPCD are described in Art. 77(4) and (5) ICC-Statute. 1458 See also Rule 22 ICC-RPE. 1459 Rule 21 ICC-RPE. 1460 See Regulation 75 RegCourt. 1461 Generally for the law at the ICTR Niang, 13 CLF (2002), 323 ff.; Meisenberg, in: Decaux, Dieng and Sow, eds., From Human Rights to International Criminal Law (2007), pp. 125 ff. 1462 Regulation 73(3) RegCourt. 1463 Safferling, International Criminal Procedure (2012), p. 184. 1464 Tuinstra, Defence Counsel (2009), p. 272. 1465 Safferling, International Criminal Procedure (2012), p. 180. 1456

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are “farmed out” to the private bar.1466 In the hierarchical ideal, by contrast, the “farming out” of procedural steps “is considered a dereliction of responsibility”; the interview of a witness, for instance, by a private lawyer is “viewed with great suspicion”, since private procedural enterprises are “generally discouraged”.1467 Whether the features of the Rome system also indicate that the role of defence counsel resembles the role of defence counsel within a conflict-solving form of justice, is much harder to tell. On the one hand, in a conflictsolving form of justice, “counsel must help the party make the best possible case by whatever means are permitted under procedural regulation”1468 – the same is certainly expected from counsel at the ICC. On the other hand, in a conflict-solving form of justice the defendant may represent himself and the appointment of a defence counsel against his or her will is prohibited: “[C]ounsel’s participation is not necessarily implied by the idea of proceedings structured as a contest or the idea of a process devoted to conflict resolution.”1469 The right to self-representation is explicitly provided for in both the ICC-Statute and the RPE.1470 This, however, does not necessarily indicate a conflict-solving feature. It would also be in line with the policy-implementing form of justice to allow a defendant to represent himself, as long as this is regarded useful to attain the goals of justice.1471 However, in order to ensure that policy is implemented, the enjoyment of such right to self-representation within an activist state is usually qualified. As Damaška puts it: “If counsel’s role is assessed as useful, it may be made mandatory, so that a party who refuses to retain a lawyer will have one appointed to represent him anyway; where individuals are not sovereign in pursuing their forensic fortunes, there can be no right to stand alone and act pro se.”1472 Since in criminal trials of both legal traditions – Civil 1466

Damaška, Faces of Justice (1986), p. 63. Ibid., p. 53. 1468 Ibid., p. 142. 1469 Ibid., p. 141. 1470 See Art. 67(1)(d) ICC-Statute: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: [. . .] Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; [. . .].” See also Rule 21(4) ICC-RPE: “A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.” 1471 Cf. Damaška, Faces of Justice (1986), p. 174. 1472 Cf. Damaška, Faces of Justice (1986), p. 174, fn. omitted. 1467

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Law and Common Law – the individuals “are not sovereign in pursuing their forensic fortunes”, the right to self-representation is not absolute in both legal traditions.1473 Nevertheless, in the Civil Law tradition, “mandatory representation of the accused is regarded as a perfectly legitimate expression of state authority’s concern over accurate procedural outcomes.”1474 By contrast, the Common Law tradition, “suffused with tenets of classical liberal ideology, extols self-reliance and the virtues of human autonomy.”1475 What does this say about a possible conflict-solving or policy-implementing character of the ICC’s provisions on self-representation? Although Article 67(1)(d) ICC-Statute enshrines the accused’s right “to conduct his defense in person or through legal assistance of the accused’s choosing”, it immediately restricts that right.1476 If the accused is present in court but “continues to disrupt the trial,” the chamber “may remove the accused” after “other reasonable alternatives” have been exhausted.1477 Since no cases have arisen so far of defendants who tried to invoke their right to self-representation,1478 the interpretation of Art. 67(1)(d) ICC-Statute remains disputed and appears to be influenced by the intense debate about self-representation at the ICTY.1479 Referring to Art. 67(1)(d) ICC-Statute, Judge Schomburg stated in his dissenting opinion to a decision by the ICTY Appeals Chamber: “[T]he general test is whether or not in an individual case the interests of fair proceedings require the legal assistance of court assigned counsel.”1480 He came to that conclusion by reading not only international and domestic provisions on self-representation, but also Regulation 76(1) RegCourt, which provides: “A Chamber, following consultation with the Registrar and, when appropriate, after hearing from the person entitled to legal assistance, may appoint counsel in the circumstances specified in the Statute, Rules and these Regulations or where the interests of justice so require.”1481 Following this interpretation, the “interests of justice” serve as a last resort for the Court to appoint a counsel 1473

Id., 3 JICJ (2005), 3, 6. Ibid., 5. 1475 Ibid. 1476 Jalloh, 117 Penn St. L. Rev. (2012–2013), 707, 717. 1477 Art. 63(2) ICC-Statute. 1478 Schabas, Commentary (2010), p. 808. 1479 See for further references Ambos, Internationales Strafrecht, 3rd ed (2011), p. 350 with fn. 283. 1480 Prosecutor v. Krajišnik, No. IT-00-39-A, Decision on Momcilo Krajišnik’s request to self-represent, on Counsel’s motions in relation to appointment of amicus curiae, and on the Prosecution motion of 16 February 2007, Fundamentally dissenting opinion of Judge Schomburg on the right to self-representation, para. 62 (May 11, 2007). 1481 Emphasis added. 1474

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against the will of the defendant, which is a typical feature of the policyimplementing ideal. A different interpretation is conducted by Schabas, who points out, that the applicable Rule 21(4) ICC-RPE does not mention any interests of justice: “A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.” In Schabas’ view, this confirms the legitimacy of self-representation.1482 With special regard to the argument to restrict self-representation in the interests of justice, brought forward by Judge Schomburg, Schabas quotes the UN Human Rights Committee: “[A]ny restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice.”1483 According to this interpretation, the right to self-representation provided for in Art. 67(1)(d) ICC-Statute evolves from the position of the defendant as manager of his case and is therefore a conflict-solving feature. This interpretation understands Art. 67(1)(d) ICC-Statute as another example of the “strong concept of autonomy”1484 that is inherent in the conflict-solving type of proceedings. Consequently, a reactive state even accepts a violation of the interests of the legal process designed as a contest, as long as the autonomy of the parties is maintained.1485 The different interpretations mentioned above demonstrate (again) the square of the circle: A clear assertion of whether the role of defence counsel at the ICC tends to be more policy-implementing or conflict-solving depends on the categorisation of the ICC-process per se. It seems, however, as if especially the broad investigation rights of the defense counsel allow for the careful assertion that the role of the defence counsel lean more towards the conflict-solving ideal.1486 Contrary to legal system with a policyimplementing form of proceedings, where the defence will generally not actively engage in investigative activities such as fact-finding missions,1487 one could say that the defence counsel at the ICC has to fulfil similar tasks as the OTP.1488 According to Rule 20(1)(b) ICC-RPE, “the Registrar shall, 1482

Schabas, Commentary (2010), p. 808. “General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial”, UN Doc. CCPR/C/GC/32, para. 37 (90th session, Geneva, 9–27 July 2007), cited in Schabas, Commentary (2010), p. 808. 1484 Damaška, Faces of Justice (1986), p. 104 ff. 1485 Cf. ibid., p. 105: “Indeed, so seriously is autonomy taken in the reactive state that it is protected even in those instances where the parties’ exercise of autonomy seriously strains the optimal functioning of legal process designed as a contest.” 1486 About the investigation rights in more detail, see Turner, 48 Va. J. Int’l L. (2007–2008), 529 ff. 1487 Tuinstra, Defence Counsel (2009), p. 5; for the situation in France see Tuinstra, 8 JICJ (2010), 463–486, 464; Karnavas, in: Michael Bohlander, ed., International Criminal Justice (2007), p. 75, 77. 1483

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inter alia: [. . .] Provide [. . .] as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence.” To that end, the ICC Registrar keeps a list of investigators,1489 who need to have certain qualifications as prescribed by the Regulations of the Registry.1490 This demonstrates the investigative role of the defence counsel within the Rome System, and therefore indicates a conflict-solving feature. In fact, today even legal systems that historically tended towards the policy-implementing ideal introduced elements of procedure from the conflictsolving counterpart. One of those elements was the role of defence counsel, who received increased importance over the years.1491 ee) Guilty Plea and Plea Bargaining As previously mentioned, in a conflict-solving procedure, the proceedings are characterised by partisan interests.1492 Damaška points out, that “[t]he dominant feature of the conflict-solving process is that it vests control over procedural action in the parties.”1493 He continues: “That parties decide upon the commencement of the lawsuit is necessarily implied by the objective of conflict resolution: until a party complains, there is no indication of a conflict ripe for solution. [. . .] Similarly, it would seem that party control over termination of the lawsuit is implied by the procedural objective: if, having been apprised of a civil claim or a criminal charge, the adverse party decides to concede it in full, a process designed to settle disputes loses its reason for being and the court must accept the declaration of ‘no contest’.”1494

In criminal proceedings, because a plea of not guilty may be used as the precondition for the trial to commence,1495 it “perfectly dovetails with con1488

Safferling, International Criminal Procedure (2012), p. 186; about defence investigations during the pre-trial stage, see Karnavas, in: Bohlander, ed., International Criminal Justice (2007), pp. 75, 121 f. 1489 Regulation 137 RegRegistry. 1490 See Regulation 137(2) RegRegistry: “A professional investigator shall have established competence in international or criminal law and procedure and at least ten years of relevant experience in investigative work in criminal proceedings at national or international level. A professional investigator shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Subject to exceptional circumstances, he or she shall speak at least one of the languages of the country in which the investigation is being conducted.” 1491 See Damaška, Faces of Justice (1986), p. 189, 191. 1492 Ibid., p. 103. 1493 Ibid., p. 109. 1494 Ibid., pp. 109–110. 1495 Ibid., p. 230. The “guilty plea” characterises the decision of a defendant to plead guilty to, or not contest, a number of counts on the indictment, see Tulkens,

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flict-solving forms”.1496 In Damaška’s words: “As I have repeatedly suggested, if criminal proceedings are indeed devoted to the resolution of a dispute, it makes little sense to insist that proceedings continue if the defendant refuses to oppose the claims and demands of the prosecution.”1497 It comes as no surprise that the first attempts of guilty pleas occurred in the legal systems of the U.S.A. and England/Wales.1498 As Spencer stated: in England, the Crown Court “might take only thirty minutes to deal with a murder case in which the defendant pleaded guilty; in continental Europe this would be considered quite indecent haste.”1499 Under the ICC’s process, it is generally possible for the accused to enter a guilty plea and therefore reach a conviction in order to end the trial.1500 This might be seen as a clear conflict-solving feature. However, Art. 65 ICC-Statute also demonstrates how the “proceedings on an admission of guilt” can transform a procedural element originating from the conflict-solving ideal into a policy-implementing element: the decision whether to accept a guilty plea or not lies with the Trial Chamber, which has to make sure that certain requirements laid down in Art. 65 ICC-Statute are met.1501 The Chamber may either accept the admission of guilt and convict the accused or “consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber.”1502 Moreover, agreements between the OTP and the accused (the Statute refers to “discussions”) “regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.”1503 Strict dependence on the Trial Chamber’s consent turns the in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 641, 662. 1496 Damaška, Faces of Justice (1986), p. 224; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 820 f. 1497 Damaška, ibid. 1498 Id., 2 JICJ (2004), 1018, 1022; Scharf, 2 JICJ (2004), 1070, 1071. 1499 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 1, 28. 1500 See Art. 65(1),(2) ICC-Statute. 1501 About the similar section 29A UNTAET-Rules 2001/25 see Sluiter, in: Stahn and van den Herik, eds., Future Perspectives (2010), p. 585, 594 with fn. 31. 1502 Art. 65(2),(3) ICC-Statute. 1503 Art. 65(5) ICC-Statute. “Plea bargaining” commonly marks the process through which a defendant pleads guilty to a criminal charge with the expectation of receiving something in return from the state. It generally refers to charge bargaining, i. e. the negotiation about the charge, and sentence bargaining, i. e. the negotiation about the sentence. While charge bargaining may be described as a “horizontal negotiation” which takes place at the prosecution stage between the prosecu-

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“proceedings on admission of guilt” into a policy-implementing feature. If it were a conflict-solving feature, “it makes little sense to insist that proceedings continue if the defendant refuses to oppose the claims and demands of the prosecution.”1504 Considering the goals of the ICC, especially the goals of substantive truth-finding and the provision of an accurate historical record, this policyimplementing form of guilty plea procedure is hardly surprising.1505 As Damaška confirms: “It is true that, as a result of bargains struck, the truth-revealing potential of criminal judgments may be severely damaged. If a defendant who in fact committed rape may be convicted of simple assault, one who is innocent of rape charges may feel seriously pressured to plead guilty of assault in order to avoid the risk of far more serious punishment should the case go to trial and end in conviction.”1506 Thus, since the procedure applicable to a guilty plea can have a policy-implementing nature, it found its way into legal systems of the Civil Law tradition and has also been incorporated into procedural laws.1507 Of course, each legal system has adopted its own procedure different from the others, “either because of decisions by the legal reformers [. . .] or because of structural differences between American criminal procedure and the criminal procedures of the civil law tradition”.1508 Thereby, many of the legal systems with a majority of policy-implementing elements and a hierarchical structure make sure that the introduced procedure upon guilty plea is in line with their structural and procedural ideals: Germany, for example, unambiguously confirms that the duty to clarify the facts (Aufklärungspflicht, § 244(2) StPO) is still the tor and the person charged, sentence bargaining is regarded as “vertical negotiation”, i. e. an agreement given by the prosecution that can bind the trial judge. A “guilty plea” is often preceded by plea-bargaining. See Black and Garner, ed., Black’s Law Dictionary, 8th ed (2007), p. 1190; for more detail, see Pati, 15 U.C. Davis J. Int’l L. & Pol’y (2009), 265, 282. For more detailed observations on charge bargaining and sentence bargaining, see Boss and Angarella, 21 Criminal Justice (2006), 22 ff.; Davis, Arbitrary Justice (2007), pp. 43 ff. 1504 Damaška, Faces of Justice (1986), p. 224. 1505 Cf. Behrens, in: Lee, ed., The Making of the Rome Statute (1999), pp. 238, 242, 246; Wu Wei, Die Rolle des Anklägers (2007), pp. 260 f.; Bock, Das Opfer vor dem IStGH (2010), pp. 353 f.; Swart, 6 JICJ (2008), 87, 106 f. About guilty pleas as a tool to find substantive truth and to create a historical record see Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 848 ff. 1506 Damaška, Faces of Justice (1986), p. 224. 1507 Thaman, Nederlandse Vereniging voor Rechtsvergelijking, 11 EJCL (December 2007), 1, 20 ff. See also Tulkens, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 641, 645–649. On France, see Cedras, 45 Archives de Philosophie du Droit (2001), 149, 156; concerning Italy, see, for example, Ferrua, 3 Studii Sul Processo Penale (1997), 131, 134. 1508 Langer, 45 Harv. Int’l L.J. (2004), 1, 3.

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central aim of the trial that cannot be negotiated away.1509 As a consequence, the basis of a judgment must not be plea bargaining (Verständigung).1510 By contrast, even legal systems incorporating a majority of conflict-solving elements allow the judge to disregard plea bargaining agreements.1511 However, while judges from a Common Law tradition treat bargaining as a contract between the parties, most judges from a Civil Law tradition regard it as a rather informal gentlemen’s agreement.1512 As a result, if the prosecution violates the terms of the arrangement or the judge disapproves of it, in Common Law countries the judge will let the defendant revoke the plea while in Civil Law countries the confession remains valid.1513 An exception may be Germany, where plea bargaining leads to a quasi-contractual agreement1514 and where the binding effect of the confession may lose its binding effect and must not be used against the accused (§ 257c(4) StPO). This distinction determines the position of the judge within the bargaining procedure: if plea bargaining is regarded as a contract between the parties, it ensures that the role of the judge, as in the U.S.A., is essentially passive since he or she only reviews the formalities of the bargain once it is presented.1515 Many jurisdictions, including U.S. federal courts, expressly prohibit judges from participating in or commenting on plea negotiations.1516 Scholars point out that “greater involvement could interfere with the judge’s impartiality”,1517 which is in line with a reactive understanding 1509 § 257c(1) cl. 2 StPO. Already Federal Constitutional Court of Germany, BVerfG, Beschluss vom 27.01.1987 – 2 BvR 1133/86, Absprachen im Strafprozess, NStZ 1987, 41; BGHSt 43, 195, 203. The German Verständigung remains to be controversial and has recently been a matter for the German Constitutional Court. However, the BVerfG confirmed its own decision of 1987 and found the provision on plea bargaining to be constitutional, see BVerfG JZ 2013, 676 ff., but criticised the application of the provision, see BVerfG JZ 2013, 676, 688 mn. 121. See generally Beulke and Stoffer, JZ 2013, 662 ff. 1510 See Begründung zum Gesetzesentwurf der Bundesregierung, BT-Drs. 16/ 12310, p. 13. 1511 Damaška, 2 JICJ (2004), 1018, 1026. 1512 Ibid. 1513 Ibid. 1514 Crit. also Leipold, NJW-Spezial (2009), 520, 521, who considers the requirement of consent by the prosecution as violation of Art. 92 of the Constitution (“The judicial power shall be vested in the judges [. . .]”, translation available at , last visited 24 September 2013) and Art. 97(1) (“Judges shall be independent and subject only to the law.”, available at , last visited 24 September 2013). 1515 Cf. Goldstein, The Passive Judiciary (1981). 1516 Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 805 ff.; Turner, 54 Am.J.Comp.L. (2006), 199, 199.

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of the state in general. In this sense, Rule 11(c) FRCP provides that the judge may not participate in negotiations in the US federal courts; some US states have already followed this model. In contrast, other US jurisdictions, such as California, permit direct participation of the judge in charge and sentence bargaining. By contrast, in Civil Law countries the judge has a much more active role in the course of plea bargaining. In France, for instance, after reviewing the alleged facts and their legal qualification, the judge may decide to accept the proposed sentence or refuse it.1518 The same applies in Argentina, where the trial court can reject the agreement if it considers the production of additional evidence necessary, or if it fundamentally disagrees with the charges.1519 However, if the trial court accepts the agreement, it must reach a verdict based on the evidence collected in the written dossier.1520 The trial court can still acquit the defendant, but if convicted, the defendant’s sentence cannot exceed the length agreed to by the parties.1521 In Germany, either the judge or lay judges are involved in the Verständigung.1522 § 257c(1) cl. 1 StPO provides that in an “appropriate case” (geeigneter Fall) the judge is entitled to bargain for the progress and result of the trial with the parties. The judge has to take into account both the interest of a speedy trial and the interest of the accused and the defence in a good outcome of the trial.1523 A Verständigung comes into effect when the accused and the prosecution agree upon the proposal of the judge (§ 257c(2) cl. 4 StPO). Therefore, it is in fact the judge who promotes and shapes the bargaining process. A similar picture exists in Italy. There the judge may even ignore the fulfillment of all plea bargaining requirements and take a different decision if he or she is of the opinion that “an acquittal judgement has to be issued” or “the punishment agreed (by the public prosecutor and the defendant) is not adequate to the charges.”1524

1517 See, e. g., Turner, ibid.; Swoboda, Verfahrens- und Beweisstrategien (2013), p. 805. 1518 Bosly, 2 JICJ (2004), 1040, 1045. 1519 Art. 431 Argentinian Codigo Procesal Penal. 1520 Ibid. 1521 Ibid. 1522 This follows from § 30(1) GVG. 1523 Cf. Begründung zum Gesetzesentwurf der Bundesregierung, BT-Drs. 16/ 12310, p. 7; Murmann, “Reform ZIS 2009, 526, 534 ff. 1524 See Di Amato, in: Blanpain, general ed., International Encyclopaedia of Laws: Criminal law, Vol. III, Suppl. 42, August 2011 (2012), p. 1, 159.

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3. Intermediate Conclusion What conclusions can be drawn from the analysis of the ICC system along the line of Damaška’s ideals of a coordinate or hierarchical structure of authority and of a conflict-solving or policy-implementing form of justice and procedure? The object of my analysis has been twofold – the ICC as an international organisation in general, on the one hand, and its organs and procedural elements, on the other hand. This distinction should not be underestimated for it takes into account the broader picture of the ICC and does not merely focus on its procedure. Most studies concentrate on the latter, analysing several procedural elements and reach the conclusion that because both the Statute and RPE are often rather ambiguous, the interpretation and understanding of several procedural elements depends on the perspective. This point of view is either Common Law and Civil Law or adversarial and inquisitorial. I have shown, that this approach has several flaws and creates great dangers. First, it treats certain dichotomies (Common Law – Civil Law/adversarial – inquisitorial) as ideals or at least ideal-types, irrespective of the fact that legal systems within the Common Law tradition adopt procedural features from the Civil Law tradition and vice versa. Thus, the usual dichotomies are not useful as ideals. Second, the procedural rules cannot be analysed without a view of the ICC as a whole, i. e. its organisation and position within the international community, its goals and its features. This cannot be captured by the Common Law and Civil Law or adversarial and inquisitorial dichotomy. Instead, I have undertaken a different analysis, based on Damaška’s concept. It is tempting to simply add up the conclusions reached above, in order to identify the majority of hierarchical/coordinate and conflict-solving/ policy-implementing elements. Unfortunately, it is not as simple as that. First, because not all organisational and procedural elements of the ICC have been analysed – this would have gone far beyond the scope of this study; second, because many procedural rules at the ICC are so ambiguous that their classification actually depends on the classification of the entire system; third, because not every organisational and procedural feature has the same weight. The first limitation – i. e. the fact not all features have been analysed – was taken into consideration by selecting those elements that are important for this study. In other words, I paid special attention to elements that were both important for the questions of pre-trial disclosure, communication, the role of the Pre-Trial Chamber etc. and important for the classification of the entire process. The second limitation – i. e. the dependence of some procedural elements on the classification of the entire system – caused the most difficulties. How is it possible to classify a proce-

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dural element such as the nature of the confirmation hearing as conflict-solving or policy-implementing, when this very nature depends on the entire process being conflict-solving or policy-implementing? In turn, how is it possible to classify the entire process as conflict-solving or policy-implementing, when the classification of particular procedural elements depends on the classification of the entire process? It is a vicious circle that is hardly possible to escape from. Nevertheless, in my view, it is inappropriate to refuse to classify the process as a whole with reference to some ambiguous procedural rule and vice versa. This will make the interpretation of procedural rules at the ICC arbitrary and eventually lead to inconsistency and unpredictability. Thus, a decision regarding classification of the process at the ICC has to be made. This leads to the third limitation – the different weight of the organisational and procedural elements. Taking into account the second limitation, I will prioritise certain organisational and procedural elements. Although I am aware that every decision in favour of an element will eventually lead to criticism, I regard this as the only way to actually classify the ICC system. This being said, the overall structure and form of justice of the ICC as a whole play an important role in the analysis. As previously illustrated, the ICC has not been set up by the UN but is based on a treaty. Its position within the international community is a coordinate one. This also applies to the relationship between the different organs of the Court, which are rather independent of each other, thus creating a coordinate structure of authority. However, it must not be forgotten that no criminal court can exist without a certain extent of hierarchy. Therefore, the organs itself, especially the judiciary and the OTP, are hierarchically structured and dominated by a strong sense of professionalisation and specialisation, what leads to the conclusion that any matter within the organs of the Court can be dealt with by hierarchical instruments because this hierarchy does exist. However, any matter that arises between the organs or to other international organisations must be solved paying tribute to its coordinate structure. A different question was whether the ICC as whole resembles a reactive or activist state. I have outlined that a reason why the ICC as an international organisation was created was to achieve certain goals of international criminal justice. This fact makes the difference between many domestic criminal courts on the one hand and the ICC as an international organisation on the other hand apparent. An international organisation is usually created to implement a certain policy instead of responding to a legal dispute that has been initiated by one of the parties. I have described the various goals of the ICC, which go far beyond the traditional goals of criminal justice, such as deterrence and retribution. Therefore, the ICC as an international or-

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ganisation resembles an activist state that is committed to policy-implementation. This policy-implementing character has a considerable impact on the procedure of the ICC. In fact, despite some conflict-solving elements, the ICC cannot hide its activist nature. The goals of substantive truth-finding, provision of an accurate historical record or victim satisfaction in particular provide the procedural system with a policy-implementing shape, culminating in an active judge1525 with great control and an OTP that is obliged to investigate both incriminating and exonerating evidence. Despite the great emphasis the ICC puts on the rights of the defendant, it is hardly conceivable that an alleged war criminal will walk free just because there have been a couple of procedural mistakes (whether this is alarming or not is a complete different question). This would be the result a conflict-solving procedure provides, since “how a decision is reached counts as much as what it says.”1526 An activist international organisation committed to the accomplishment of international criminal justice goals questions its own right to exist by relying on pure conflict-solving procedure. In fact, the continuing breach of procedural rules committed by the OTP in the Lubanga case resulted in a stay of the proceedings,1527 although it was obvious that everything was done to avoid releasing Lubanga and in fact ending the proceedings.1528 In other words, the sanction system of the ICC is “clearly more a tool to permit the judge to lead the trial to a fair end on its merits, than a way to solve litigation in favour of the party which has suffered because of its adversary’s misbehaviour.”1529 The policy-implementation would also be questioned, if time consuming procedures, caused by many conflict-solving features such as the strict reliance on live testimony, were allowed.1530 Classical conflict-solving procedures as models for international trials have already been criticised as too costly and time consuming.1531 In sum, the system of the ICC is a policy-implementing one with a couple of conflict-solving features.1532 Its overall structure of authority can be classified as coordinate, while the structure of the organs itself – especially 1525 For instance, it will be up to the judge to decide how proceedings will be structured unless he delegates this choice to the parties. 1526 Damaška, Faces of Justice (1986), pp. 102, 103. 1527 See in more detail infra F. VII. 3. a). 1528 See in more detail Ambos, 12 NCLR (2009), 543–568. 1529 Caianiello, 10 ICLR (2010), 23, 39. 1530 Cf. Kagan, Adversarial Legalism (2003), p. 4. 1531 See generally Boas, The Miloševic´ Trial (2007), pp. 131 ff.; Öberg, 24 CLF (2013), 113, 118 f. For the case against Lubanga and the long case preparation before the opening of the trial see Ambos, 12 ICLR (2012), 115, 122. 1532 In a similar vein Tuinstra, who recognises, that “[t]he scales appear to tilt somewhat more toward the policy-implementing side than the conflict-solving side”, see Tuinstra, Defence Counsel (2009), p. 147.

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the judiciary and in part the OTP – is hierarchical. Again, this classification is made along the ideal-types of hierarchical/coordinate and policy-implementing/conflict solving. A pure type exists nowhere in the world and the excuse of having mixed procedures in order to avoid categorisation is no option. As Damaška pointedly remarks: “Even within a single country, attitudes toward state authority can be deeply ambivalent. To paraphrase a poet, two roads to justice often diverge in our own midst: we wish to travel both and to be one traveller. While we like to lament the bureaucratization of justice, we also hold values dear that are inseparable from it; while we want our judges to display impartiality, we also want them to exhibit ‘activist’ involvement.”1533

I have categorised the ICC process according to Damaška’s concept. At the end of this study, I will illustrate what this means for the questions asked at the outset.

1533

Damaška, Faces of Justice (1986), p. 240.

F. Prosecution Disclosure Before the ICC from a Comparative Perspective with a View to Damaška’s Models I. Approach As it became clear at the outset of this study, the disagreement between the Chambers about the question of how much material should be disclosed to the Pre-Trial Chamber arose not only from a different understanding of the Pre-Trial Chamber’s function, but also from a different interpretation of disclosure rules concerning pre-trial disclosure. Consequently, this part of my study is directed at analysing the pre-trial disclosure regime at the ICC and bringing it into line with Damaška’s categorisation. Because of the importance of comparative elements within Damaška’s concept,1 and in order to better illustrate the concept’s different peculiarities, I will conduct my analysis through a comparison of the pre-trial disclosure systems at the ICC, in the U.S.A. and in England and Wales, using the conclusions of comparing the procedural design of criminal trials in the U.S.A. and England/Wales I drew above.2 In the course of this analysis, for reasons of simplification I will use the terms “disclosure” and “discovery” interchangeably. While in England and Wales, disclosure describes “the provision of relevant information by one party to the other”,3 discovery in the U.S.A. is understood as “the process by which each party to a case learns of the evidence that the opposition will present.”4 Thus, it seems that “discovery by the defense corresponds to disclosure by the prosecution, discovery by the prosecution to disclosure by the defense”,5 i. e. that disclosure and discovery are virtually two sides of the same coin. This, however, slightly simplifies the existing differences between disclosure and discovery and shall not overlook the fact that discovery could also be seen as “merely one species of disclosure”.6 Moreover, I will not analyse the disclosure pro-

1 2 3 4 5 6

See supra E. III. 4. c) cc) (2) and dd). See supra E. IV. 2. c) bb) (5). Gibson and Cavadino, The Criminal Justice System, 3rd ed (2008), p. 112. Worrall, Criminal Procedure, 2nd ed (2007), p. 295. Ambos, 12 NCLR (2009), 543, 561. Abrahamson, Dwyer and Fitzpatrick, Discovery and Disclosure (2007) pp. 3 ff.

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cess in Germany, because – strictly speaking – there is no such thing as a “disclosure process” in Germany.7 There are several possibilities of how to arrange an analysis of pre-trial disclosure rules: one could classify them according to the participants who are obliged to disclose (“who”?), according to the sort of material that has to be disclosed (“what”?), according to the procedural stage in which the disclosure has to take place (“when”?) or according to the extent the disclosure must take place (“how”?).8 Since the issue of this study is pre-trial disclosure, at first sight it seems reasonable to choose the third classification (“when”?). However, as I will demonstrate, because of its importance to the entire proceedings, pre-trial disclosure is characterised by many disclosure provisions that actually apply to the entire process. It is therefore not sufficient to narrow the view to a stage-dominated disclosure categorisation. Another option would be to classify disclosure according to the “who”, i. e. the participants. However, the disclosure problems outlined at the outset of this study only deal with disclosure (and communication respectively) by the Prosecution. As a consequence, I will not focus on third-party disclosure and only focus on defence disclosure where it is necessary to understand the broader context (as it is the case with the disclosure reform in England and Wales9). Thus, a classification according to the “who” is not an option, either. Neither is a classification according to “how”, since the question of the extent of disclosure is the overriding question of this study and will be answered at the end of this study. A classification according to the extent of disclosure would be impractical since the extent is at stake. Therefore, I have decided to classify the disclosure analysis according the “what”, i. e. the sort of material that has to be disclosed. Only at the end of the analysis do I change the classification into a stage-oriented one, since the pre-trial stage has a couple of provisions that only apply in that stage. What I will not analyse are the disclosure restrictions,10 i. e. provisions that allow the withholding of disclosure, mainly for methodological reasons: in 7

That does not mean that there is no exchange of information between the participants in Germany. However, this exchange of information has to be labelled differently. In more detail see infra F. II. 2. with fn. 70, S. 319 ff., F. VIII. 2. and G. III. 8 Those different categorisations were introduced by Helen Brady, see Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 404; id., in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 261. 9 See infra F. III. 2. a). 10 In detail see Klip, 10 JICJ (2012), 645–660; Kuschnik, 9 ICLR (2009), 157– 185; Katzman, 8 Nw. U. J. Int’l Hum. Rights (2009), 77–101; Whiting, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 207–233; Rothe and Overthon, 10 ICLR (2010), 345 ff.; on rule 70 ICTY s. ICTY Manual on Developed Practices (2009), pp. 20 f.,

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order to be able to draw inferences from the following analysis for the categorisation of pre-trial disclosure according to Damaška’s concept, I realised that the analysis of exceptions only obstruct the view. However, particular disclosure exceptions will be dealt with in the context of the important chapter of disclosure sanctions.11

II. General 1. Equality of Arms and Disclosure – General Remarks A duty on the prosecution to disclose its evidence, whether it tends to establish guilt or innocence, is now recognised in many legal systems.12 The European Court of Human Rights has declared, “that it is a requirement of fairness [. . .] that the prosecution authorities disclose to the defence all material evidence for or against the accused.”13 Without such disclosure the accused could be severely handicapped in the preparation of his defence, resulting in an infringement of his rights under Art. 6 ECHR.14 Disclosure is one of the key elements of adversarial criminal procedure.15 It goes “to the heart of an accused’s right to fair trial”.16 This right to a fair trial is a “general concept encompassing several more specific rights.”17 The fair trial guarantee can be found in Art. 14(1) of the International Covenant on Civil and Political Rights (ICCPR),18 Art. 6(1) of the European Convention of Human Rights,19 Art. 8(1) of the American Convention of Human Rights (ACHR)20 and Art. 10 of the Universal Declaration of Human Rights (UDHR) of the United Nations General Assembly,21 as well as in the statutes of international criminal tribunals, i. e. Art. 20(1) 27, 88; Ormerod, 7 E&P (2003), 102, 117; on the law in England and Wales Corker and Parkinson, Disclosure (2009), p. 97. 11 See infra F. VII. 12 Schabas, The UN International Criminal Tribunals (2006), p. 398; for a short history of disclosure see Swoboda, Verfahrens- und Beweisstrategien (2013), p. 178. 13 Edwards v. United Kingdom, 13071/87, Judgement (December 16, 1992). 14 Cf. Emson, Evidence, 5th ed (2010), p. 513. 15 Ambos and Miller, 7 ICLR (2007), 335, 341. 16 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403; see also Swoboda, Verfahrens- und Beweisstrategien (2013), p. 659. 17 Zappalà, Human Rights in International Criminal Proceedings (2003), p. 111; cf. Harris, 16 ICLQ (1967), 352. 18 999 UNTS 171 (16 December 1966). 19 ETS No. 5 (4 November 1950). 20 OAS Treaty Series No. 36 (22 November 1969). 21 UNGA Res. 217 (A) (III) of 10 December 1948.

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ICTY-Statute and Art. 20(4) ICTR-Statute.22 At the ICC, the fair trial guarantee is provided in Art. 67 ICC-Statute, which lists several rights subsequently to the following sentence: “In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: [. . .].”23 I have decided to emphasise the last three words because they clearly show that the right to a fair trial encompasses the principle of equality of arms.24 This has been recognised by the case law of international human rights tribunals,25 and has been endorsed by judges at the ICC26 and the ad hoc Tribunals.27 Accord22 Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 615, 618, 619, who remarks that “[t]he main general difference between the fair trial guarantee of human rights treaties and those laid down in criminal court statutes is that the former only apply to the defendant while the latter afford such a right also to the prosecution.” (fn. 22). 23 Italics added. 24 See also Zappalà, Human Rights in International Criminal Proceedings (2003), p. 112; Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 615, 618, 619; Safferling, International Criminal Procedure (2012), pp. 411, 412. 25 Neumeister v. Austria, Series A, No. 8, 11 Yearbook 822, 27 June 1968; Morael v. France (No. 207/1986), UN Doc. CCPR/8/Add/1, p. 416. For the recognition of the principle of “equality of arms” by the ICTY, see Prosecutor v. Tadic´, No. IT94-1-T, Separate Opinion of Judge Vohrah on Prosecution Motion for Production of Defence Witness Statements, pp. 4, 7 (November 27, 1996); generally Schabas, Introduction to the ICC, 4th ed (2011), pp. 221, 222. 26 Prosecutor v. Bemba, No. ICC-01/05-01/08-323, supra note 297, S. 130, para. 32: “Based on the jurisprudence of the ECtHR, the Appeals Chamber considers that, in order to ensure both equality of arms and an adversarial procedure, the defence must, to the largest extent possible, be granted access to documents that are essential in order effectively to challenge the lawfulness of detention, bearing in mind the circumstances of the case. Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. This would allow the person to challenge his or her detention as soon as he or she is in detention at the Court and in circumstances in which he or she is appraised of the material on which the arrest warrant was based.”, fn. omitted; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04-01/07-475, supra note 61, S. 90, para. 73(a) (May 13, 2008): “[I]n balancing the various interests at stake, the Pre-Trial Chamber must make sure that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms [. . .].”; Situation in Darfur, Sudan, No ICC-02/05-109, Decision on the Request for Leave to Appeal to the Decision Issued on 23 September 2007, p. 6 (October 31, 2007); generally Schabas, Introduction to the ICC, 4th ed (2011), pp. 221, 222. 27 See, e. g., Prosecutor v. Brdjanin and Talic ´ , No. IT-99-36-PT, Public version of the confidential decision on the alleged illegality of rule 70 of 6 May 2002, para. 22 (May 23, 2002): “The concept of equality of arms essentially requires that the accused be given procedural rights equal to those of the Prosecution in the

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ing to Pre-Trial Chamber II, “[f]airness is closely linked to the concept of ‘equality of arms’, or of balance between the parties during the proceedings. As commonly understood, it concerns the ability of a party to a proceeding to adequately make its case, with a view to influencing the outcome of the proceedings in its favour.”28 Equality of arms, which some see as the most important component of the fair trial,29 obliges the court to ensure that neither the Defence nor the Prosecution is put at a disadvantage when presenting its case.30 Assessing the principle of equality to an extent that at least partly lives up to the importance this principle plays within the criminal process will inevitably go beyond the scope of this study. This being said, the value of such a detailed analysis of the equality of arms principle for the issue of this section can hardly be measured by its extent. Instead, as I will demonstrate in the course of the section, the classification of disclosure as conflict-solving or policy-implementing depends on the definition of the equality of arms principle. With regard to pre-trial disclosure, which shall be the issue of this section,31 the principle of equality of arms plays an important role.32 This was recognised by the European Commission of Human Rights, course of criminal proceedings. This concept is inherent in the concept of a fair trial.”, citing Vide Foucher v. France (1997) 25 EHRR 234, para. 34. 28 Situation in Uganda, No ICC-02/04–01/05-20-US-Exp, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest under Article 58, para. 30 (August 19, 2005). Also Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06679, Decision on the practices of witness familiarisation and witness proofing, p. 7 (November 8, 2006); generally Schabas, Introduction to the ICC, 4th ed (2011), pp. 221, 222. 29 Tochilovsky, Jurisprudence of the International Criminal Courts (2008), p. 277. 30 Prosecutor v. Delalic ´ , No. IT-96-21-T, Decision on the Prosecution’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, para. 45 (February 4, 1999) (“The Trial Chamber is of the opinion that this is not a matter of reciprocity but a matter of the concept of fair trial. The rationale of Article 21 paragraph 1, of the Statute is to ensure a fair trial in accordance with the Rules. One of the minimum guarantees for the accused in Article 21 paragraph 4(e), of the Statute, is equality of arms, which is the most important criteria of a fair trial. This principle requires the maintenance of a fair balance between the parties and applies to both civil and criminal cases.”); Gorraiz Lizarraga and others v. Spain, Appl. No. 62543/00, Judgment of 27 April 2004, para. 56; Kress v. France, Appl. No. 39594/98, Judgment of 7 June 2001, para. 72; see generally Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 615, 618, 619. 31 Supra F. I. 32 Cf. ECHR Lietzow v. Germany, Judgment 13 February 2001, para. 44; Schops v. Germany, Judgment 13 February 2001, para. 44 and Garcia Alva v. Germany, Judgment 13 February 2001, para. 39; Murray v United Kingdom, Appl. No. 18731/

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which held in Jespers v. Belgium, that the principle of equality of arms imposes on prosecuting and investigating authorities an obligation to disclose any material in their possession, or to which they could gain access, which may assist the accused in exonerating him or herself or in obtaining a reduction in sentence.33 This was later confirmed by the ICC Trial Chamber34 and Appeals Chamber35 and has been confirmed by the ICTY.36 A subcategory of the equality of arms, which is also important for the disclosure of evidence, is the right to have adequate time and facilities to prepare the defence.37 Equality is addressed in the Statute in Arts. 64(3)(c) and 67(2) ICC-Statute.38 91, Reports 1996-1, 70. Calvo-Goller, The Trial Proceedings of the ICC (2006), pp. 45, 46; Safferling, International Criminal Procedure (2012), p. 412; see generally Fedorova, Equality of Arms (2012), pp. 115 ff. with fruther references. 33 ECHR, Jespers v Belgium, no 8403/78, Commission’s report of 14 December 1981, DR 27, para. 58. 34 See, e. g., Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06-1401, 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, para. 79 (June 13, 2008). About this decision in more detail see infra F. VII. 3. a) aa). See also Article 67(2) ICC-Statute. 35 See, e. g., Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/04-01/07-476, Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, para. 63 (May 13, 2008) (“More generally, if non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised. In addition, adequate procedural safeguards should be in place to ensure that the interests of the Defence are protected so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.”). 36 See, e. g., Prosecutor v. Brdjanin and Talic ´ , No. IT-99-36-PT, supra note 27, S. 312, para. 22 (“It is also equally important and inherent in the concept of equality of arms that each party be afforded a resonable opportunity to present his or her case under conditions that do not place him at an appreciable disadvantage vis-à-vis his opponent.”), citing Bulut v. Austria (1996) 24 EHRR 84, para. 47–50; see also Prosecutor v. Krajisnik and Plavšic´, No. IT-00-39 and 40-PT, Decision on Prosecution Motion for Clarification in Respect of Application of Rules 65ter, 66(B) and 67(C), para. 7 (August 1, 2001) (“The Prosecution, by not disclosing the documents prior to trial, places the Defence in a position in which it will not be able to prepare properly; and it is this fact that is likely to lead to a violation of the principle of equality of arms.”); see also Negri, 5 ICLR (2005), 513, 560 ff.; McIntyre, 16 LJIL (2003), 269, 272 ff.; May and Wierda, 37 Colum. J. Transnat’l L. (1998/1999), 725, 757; Safferling, International Criminal Procedure (2012), p. 413. 37 Article 67(1)(b) ICC-Statute; Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 20, 23, 65; Prosecutor v Kordic´ and Cerkez, No. IT-9514/2-A, Judgment, para. 175 (December 17, 2004) (“The principle of equality of

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However, how far does the equality of arms principle go? As May and Wierda point out, equality of arms goes beyond mere procedural equality, but must also include an approximate substantive equality between the parties.39 This means that the defense must, in as far as possible, be “on a par with the prosecution.”40 Some regard it as “essential that the Defence and the Prosecution be equally organized, funded and supported.”41 Defence teams in international criminal trials concentrated on this point and tried to establish not only a procedural equality but also an equality of means and resources.42 In a case before the ICTY, for instance, the defence requested the appointment of an amicus counsel to investigate and report to the Chamber on the possible imbalance created by the allocated resources to both parties.43 The Chamber reacted to that motion by clarifying that “[t]he rights of the accused and equality between the parties should however not be confused with the equality of means and resources.”44 The same was held by the ICTR Trial Chamber in Kayishema and Ruzidana.45 In Prlic´ et al., the ICTY Trial Chamber III remarked that “the term ‘equality of arms’ does not require that the parties to the trial have the same financial and arms falls within the guarantee of a fair trial provided by the Statute, and has been described as obligating a judicial body to ensure that neither party is put at a disadvantage when presenting its case. The Appeals Chamber, in considering the scope for application of the principle, has held that at a minimum ‘a fair trial must entitle the accused to adequate time and facilities for his defence’ under conditions which do not place him at a substantial disadvantage as regards his opponent.” [fn. omitted]). See also ICTY Manual on Developed Practices (2009), p. 182, regarding access to IT for the accused in order to prepare his/her defence: “The UNDU must maintain security when considering whether to allow detainees to information technology. At the same time, the principle of ‘equality of arms’ requires that detainees be able to access materials to conduct their defence, including the ability to review vast quantities of disclosure materials released by the Prosecution in searchable digital format.” See also Calvo-Goller, The Trial Proceedings of the ICC (2006), pp. 227, 228; May and Wierda, International Criminal Evidence (2002), p. 272, noting, however, that “[t]his does not mean that the time allotted to the defense to prepare must be exactly equal to that of the prosecution’s investigations. However, it must, at a minimum, be ‘adequate.’ What time is adequate depends on the circumstances of the case.” 38 Cf. Safferling, International Criminal Procedure (2012), p. 415. 39 May and Wierda, International Criminal Evidence (2002), p. 331. 40 Ibid. 41 See Negri, 5 ICLR (2005), 513, 552 ff. with further references. 42 See generally Fedorova, Equality of Arms (2012), pp. 307 ff. 43 Parts of the defence motion are cited in Fedorova, Equality of Arms (2012), p. 307. 44 Prosecutor v. Prisic ´ , No. IT-04-81-PT, Decision on Motion to Appoint Amicus Curiae to Investigate Equality of Arms, para. 8 (June 18, 2007). 45 Prosecutor v. Kayishema and Ruzidana, No. ICTR-95-1-T, Judgement, para. 20 (May 21, 1999).

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technical resources”.46 Therefore, in preparation for the following section on disclosure with a view to Damaška’s models, it is important to note that although the principle of equality of arms somehow justifies the existence of disclosure rules, it cannot be understood as to an equality of means and resources. Fedorova puts it fittingly: “Equality of arms cannot be assessed on the basis of comparing the available pre-trial resources between the prosecution and the defence; it would be like comparing apples and oranges. There is no reciprocity on the issue of resources due to the differing roles of the prosecution and the defence in the proceedings.”47 2. Equality of Arms and Disclosure Within the Concept of Damaška After I have described the connection between disclosure and the principle of equality of arms, I will analyse where disclosure and equality of arms are situated within Damaška’s models, in order to describe the context of disclosure prior to the detailed analysis of disclosure regimes in England/Wales, the U.S.A. and at the ICC. The issue of equality of arms and disclosure concerns Damaška’s second pair of procedural models, which refer to the notions of the state (“reactive state” and “activist state”).48 The type of proceeding in a reactive state is “conflict solving”,49 which has the character of a contest between two formally coequal disputants before the state official as the neutral decision maker.50 Therefore, each party must have an “equal chance of victory”.51 The problem that constantly arises in the conflict-solving procedure is “to balance the advantages of litigants to provide them with equal weapons.”52 However, Damaška also recognised that complete procedural symmetry is unlikely, especially in criminal cases, where one party to the proceedings is a state official.53 This procedural symmetry only exists if this state official – i. e. the public prosecutor – acts as a representative of the victim, which is 46 Prosecutor v. Prlic ´ et al., No. IT-04-74-T, Decision on the Oral Request of the Accused Jadranko Prlic´ for Authorisation to Use a Laptop Computer at Hearings or to be Seated Next to his Counsel, p. 4 (June 29, 2006). About the case law of the ICTY with respect to the Defence’s demand for equality of resources see Negri, 5 ICLR (2005), 513, 555 f.; McIntyre, 16 LJIL (2003), 269, 278 ff. 47 Fedorova, Equality of Arms (2012), p. 308. 48 See supra E. III. 3. g) and passim. 49 Damaška, Faces of Justice (1986), p. 97. 50 Ibid., pp. 73–80 and 97–147. 51 Ibid., p. 103. 52 Ibid. 53 Ibid.

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seldom the case, at least not in the legal systems that are of interest in this study.54 Damaška, being aware of this problem, asks two questions which are crucial for the principle of equality of arms, because they eventually reveal the differences between equality of arms in a conflict solving and in a policy-implementing form of procedure: if one party within the contest is the state official, why should partial interests be balanced and how should they be balanced?55 With regard to the first question, Damaška points out that although one party to the contest is a state official, the interests of this party are “treated by analogy as private interests”.56 With regard to the second question, the balancing is conducted by reducing the rights of the party that is a state official, in order to react to the superiority of this party. Thus, Damaška suggests, “state officials should be denied at least some procedural rights that are accorded to their private adversaries.”57 The imbalance of the contestants in a conflict-solving form of procedure is one of the main reasons why disclosure exists. In a pure contest model, where both parties are on the same level, “compelled exchange of information between litigants – forced cooperation – may seem to have no place”.58 This seems surprising, considering that it is widely accepted that disclosure rules are a characteristic feature of the so-called “Common Law criminal procedure” or “adversarial proceedings”, and are only found in Common Law-style (as opposed to Civil Law-style) criminal proceedings.59 However, as I have shown, the contest in the criminal process of those legal systems that are described as “Common Law” or “adversarial” already departs from a pure contest model in many ways and is therefore unsuitable as ideal model.60 Those procedures are already in a sort of imbalance, because one party is a state official. Consequently, in order to re-establish bal54 Ibid.; see Davis, Arbitrary Justice (2007), p. 61: “The relationship between prosecutors and crime victims is complicated and frequently misunderstood. It doesn’t fit neatly in our adversarial system [. . .]. In fact, contrary to popular belief, the prosecutor does not represent the victim – at least not in the way a lawyer represents a client.” 55 Damaška, Faces of Justice (1986), p. 103. 56 Ibid., p. 104. 57 Ibid. 58 Ibid., p. 131; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 179 ff. 59 Ambos and Miller, 7 ICLR (2007), 335, 341; Ambos, 3 ICLR (2003), 1, 15 with further references (“From a conceptual perspective, such disclosure rules are a clear expression of the adversarial model since its ‘two cases approach’ makes (mutual) disclosure necessary to ensure that both parties have the same level of information.”); Schuon, International Criminal Procedure (2010), pp. 15, 16; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 606 (“The effective working of the adversarial system depends, in part, upon proper disclosure.”, citing R v. McIlkenny [1992] 2 All ER 417). 60 See, e. g., supra E. III. 4. a) aa).

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ance – although not complete balance, since this is almost impossible61 – the presence of rules of disclosure is inevitable in those legal systems. By contrast, the forced exchange of information in a pure contest model can “seriously strain it”. Damaška remarks: “A process devoted to the absorption of disputes does not tolerate compelled disclosure of material beyond the ambit of the issues defined by the parties: such information can open up new controversies rather than advancing the resolution of the existing one. Therefore, as a prerequisite to involuntary discovery it is imperative that issues in dispute be clearly defined, and that mutual demands for disclosure of information be circumscribed thereby: discovery detached from disputed issues no longer belongs in a lawsuit conceived as an instrument of dispute resolution.”62

Nevertheless, Damaška also recognises reasons for the existence of compelled disclosure that go beyond balancing and are inherent even in a pure contest (conflict-solving) model: it reduces procedural ambush and “forces the litigants to interact, enables them to appraise the relative strength of their cases, and in doing so encourages settlement.”63 Still, this discovery “must be kept within narrow bounds”, i. e. only the information indispensable to a fair contest must be exchanged.64 Moreover, this exchange must also be mutual, especially with regard to the principle of equality of arms: “Where one side is permitted to play it close to the vest while the other must tip his hand, the premise of party equality has been violated.”65 In sum, in a conflict-solving model both parties must have equal chances to win. If one party is in a structurally superior position (i. e. a state prosecutor), the process must create measures to re-establish balance. One of those measures is the exchange of information (disclosure). Although disclosure provides some benefits even for the pure contest model (reduction of ambush; settlement), one could say in a slightly exaggerated fashion that disclosure of information is only necessary if: a) the parties are not on an equal footing; although b) they have to be on an equal footing. Of course, things are different in an activist state, where state interests prevail over individual interests.66 The type of proceeding in an activist 61

See already supra F. II. 1. Damaška, Faces of Justice (1986), p. 131. 63 Ibid. Explaining why even in a pure conflict-solving model compelled discovery is possible, Damaška remarks: “One need not belabor the difficulties of preparing for forensic contest in total ignorance of the weapons the other side proposes to employ; even medieval knights exchanged some information prior to their tournament engagement.” 64 Ibid. 65 Ibid., p. 132. 66 Ibid., p. 87. 62

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state is not conflict solving but “policy implementing”, i. e. the justice system is considered an instrument to implement policies.67 Thus, the adjudicator dominates the proceedings and those proceedings have the character of an inquest.68 In such a state, equality is a priori not envisaged. The existence of a state official is not a departure from the model (as in the conflict-solving mode) but is promoted by this model, where the interests of both parties “are not on the same plane”.69 Proceedings are “independent of an actual controversy” and “rather than facing a roughly equal adverse party with whom he contends before the court, the private individual is confronted by a powerful watchdog of state policy [. . .].”70 In a conflict-solving procedure, the fact that the private individual’s opponent is a state official would trigger certain disclosure obligations for this state official, in order to re-establish a certain form of balance. Since balance is not existent in the activist state anyway, the policy-implenting form of process does not provide for such disclosure obligations stricto sensu. Does that mean that the private individual is not entitled to get information of the case against him? Clearly not! It is quite the opposite. Since balance cannot be achieved anyway, the private individual has access to the file of the case. This file is used to “ensure completeness and authenticity of documentation”.71 Participants in the proceedings, including the defendant and his counsel, can know at every stage of the proceedings what the case is about and the existing elements of proof.72 However, it is most important to note that this access to the case file and the relevant information is different from (broad) discovery in mainly two ways: first, the defendant does not discover the information from the prosecution but from a case file, which contains information the judge bases his or her decision (contrary to internal official documents, helping a particular official to organise his activity).73 This case file is not a file that presents the case of one contestant (vis-à-vis the case of the other contestant) but that presents the case and is therefore a mechanism to integrate all segments of the process “into a meaningful whole”.74 Second, in a pure policy-implementing process, the 67

Ibid., pp. 82, 84. Ibid., pp. 80–88, 147–80. 69 Ibid., p. 157 (“In such a state there is no equality and no mutuality of rights between the individual implicated in proceedings and the state attorney. [. . .] The state official maintains a superior, perhaps even an exalted position; he can even be on a par with the adjudicator and can exercise coercive powers over the individual.”) 70 Ibid. 71 Ibid., p. 50. On the case file see supra E. IV. 2. c) aa). 72 Langer, 53 Am. J. Comp. L. (2005), 835, 847. 73 Damaška, Faces of Justice (1986), p. 50. 68

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only purpose that this access to the case file serves is to advance the policy-implementing goal.75 This, of course, also applies to the extent of access to the case file: as long as it advances the policy-implementing goal, access to the case file may be broadened or restricted. This is especially important to bear in mind in light of the case law of the European Court of Human Rights on the principle of equality of arms, which is said to have influenced legal systems within the Civil Law tradition to the extent that restrictions to accessing the case file had to be lifted.76 In fact, many Continental countries modified their practices to ensure that, in accordance with the principle of equality of arms, both prosecution and defence are treated equally and that prosecutorial functions are completely separated from judicial functions.77 In Germany, for instance, the case law governing access to the case file78 has been influenced, inter alia, by the case law on 74 Ibid. See also Ambos, 3 ICLR (2003), 1, 15 (“In contrast, such rules are superfluous in the civil law system where, according to the ‘one case approach’, the investigation lies in the hands of the Prosecutor and she investigates both incriminating and exonerating evidence. It is suffcient in these circumstances to grant the defence access to the Prosecutor’s dossier at some point before the beginning of the trial.”, fn. omitted). 75 Damaška, Faces of Justice (1986), p. 55. 76 See generally Safferling, NStZ 2004, 181 ff. 77 Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 229, citing Kaufman v Belgium (1986) 50 DR 98, 115, Foucher v France (1998) 25 EHRR 234, para 34. 78 See S. 147(1) StPO: “(1) Defence counsel shall have authority to inspect those files which are available to the court or which will have to be submitted to the court if charges are preferred, as well as to inspect officially impounded pieces of evidence. (2) If investigations have not yet been designated as concluded on the file, defence counsel may be refused inspection of the files or of individual parts of the files, as well as inspection of officially impounded pieces of evidence, insofar as this may endanger the purpose of the investigation. If the prerequisites of the first sentence have been fulfilled, and if the accused is in remand detention or if, in the case of provisional arrest, this has been requested, information of relevance for the assessment of the lawfulness of such deprivation of liberty shall be made available to defence counsel in suitable form; to this extent, as a rule, inspection of the files shall be granted. (3) At no stage of the proceedings may defence counsel be refused inspection of records concerning the examination of the accused or concerning such judicial acts of investigation to which defence counsel was or should have been admitted, nor may he be refused inspection of expert opinions. (4) Upon application, defence counsel shall be permitted to take the files, with the exception of pieces of evidence, to his office or to his private premises for inspection, unless significant grounds present an obstacle thereto. The decision shall not be contestable. (5) The public prosecution office shall decide whether to grant inspection of the files in preparatory proceedings and after final conclusion of the proceedings; in

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Art. 6(3)(b) ECHR,79 and – at least indirectly – Art. 6(3)(a) ECHR.80 More concretely, restrictions in accessing the case file have been declared unlawful in certain situations during pre-trial detention.81 However, despite all this, in a pure policy-implementing form of process, the principle of equality of arms can only influence the defendant’s right to access the case file as long as this advances policy-implementing goals. A striking example is presented by Italy. As I will describe later in more detail, Italy tried to transplant conflict-solving elements into a still activist state through the enactment of a new Code of Criminal Procedure in 1988.82 In the course of this reform, Italy even amended its Constitution. Art. 111(2) of the Italian Constitution now reads: “All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial other cases the presiding judge of the court seized of the case shall be competent to decide. If the public prosecution office refuses inspection of the files after noting the termination of the investigations in the file, or if it refuses inspection pursuant to subsection (3), or if the accused is not at liberty, a decision by the court competent pursuant to Section 162 may be applied for. Sections 297 to 300, 302, 306 to 309, 311a and 473a shall apply mutatis mutandis. These decisions shall be given without reasons if their disclosure might endanger the purpose of the investigation. (6) If the reason for refusing the inspection of the files has not already ceased to exist, the public prosecution office shall revoke the order no later than upon conclusion of the investigation. Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files. (7) Where an accused has no defence counsel, information and copies from the files shall be given to the accused upon his application, provided that this is necessary for an adequate defence, cannot endanger the purpose of the investigation, also in another criminal proceeding, and that overriding interests of third persons meriting protection do not present an obstacle thereto. Subsection (2), first part of the second sentence, subsection (5) and Section 477 subsection (5) shall apply mutatis mutandis.” (translation available at , last visited 24 September 2013). 79 “Everyone charged with a criminal offence has the following minimum rights: [. . .] to have adequate time and facilities for the preparation of his defence; [. . .].” See generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14–073. 80 “Everyone charged with a criminal offence has the following minimum rights: [. . .] to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; [. . .].”, see Ambos, Internationales Strafrecht, 3rd ed (2011), pp. 415 f. 81 Especially with regard to habeas corpus see EGMR, StV 1993, 283 f. (Lamy v. Belgien), which basically says that s. 147(2) StPO violates Art. 5(4) ECHR, cf. Zieger, StV 1993, 320, 323; Schmitz, wistra 1993, 319, 321. This was later confirmed by BVerfG, NJW 1994, 3219 ff., NStZ 1994, 551 ff., StV 1994, 465 ff. The issue became apparent again in 2001 in the cases EGMR, NJW 2002, 2013, 2013 (Lietzow v. Deutschland), EGMR, NJW 2002, 2015, 2015 (Schöps v. Deutschland) and EGMR, NJW 2002, 2018 f. (Garcia Alva v. Deutschland). 82 Supra E. III. 4. a) bb) and infra G. III. 2. c) ee) (2) (c); G IV.

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judge in third party position. The law provides for the reasonable duration of trials.” That the equality of arms received attention in the Constitution shows that this principle is not constitutive for the Italian process, but that policy-implementing goals – being to reduce the caseload of Italian Courts and unfair treatment of the defendant that developed over the years83 – made the inclusion of that principle necessary. Italy’s decision to introduce elements mostly known to American and English lawyers was simply a matter of the perceived “prestige” of the American legal mode.84 In a conflict-solving process, to the contrary, it is the equality of arms itself that determines the extent of disclosure. To put it another way: the second difference between disclosure in a conflict-solving process and access to the case file in a policy-implementing process is that the former is governed by the objective of giving the parties an equal chance of winning, while the latter is governed by policy-implementing goals, whereby those goals may include objectives which are rather typical for the conflict-solving process (such as the principle of equality of arms).

III. Disclosure Obligations Independent from Trial Stages – Exculpatory Material 1. Exculpatory Material in the U.S.A. As in many other legal systems, in the U.S. legal system the disclosure of exculpatory material goes to the heart of the trial, because suppression of exculpatory material in the criminal justice system undermines the fair administration of justice and the reliability of the results produced by criminal trials.85 The prosecution’s non-disclosure of exculpatory evidence during and after trial “challenges the precept that only the guilty will be prosecuted, convicted, and punished”.86 While the U.S. Supreme Court has never recognised a general constitutional right to discovery in criminal cases,87 83

Cf. Grande, 48 Am. J. Comp. L. (2000), 227. Ibid., 230 ff. 85 See Rule 3.8. ABA Model Rules of Professional Conduct R. 3.8 (2003). 86 See Joseph, 17 Cap. Def. J. (2004–2005), 33, 34; see generally Sundby, 33 McGeorge L. Rev. (2002), 643, 644 (discussing the Brady doctrine in criminal cases). 87 See Prosser, Wis. L. Rev. (2006), 541, 561 (“There is no general constitutional right to discovery in criminal cases.”), citing United States v. Ruiz, 536 U.S. 622, 629 (2002)); Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is no general constitutional right to discovery in a criminal case and Brady did not create one [. . .].”); Wardius v. Oregon, 412 U.S. 470, 474 (1973) (“[T]he Due Process Clause has little to say regarding the amount of discovery which the parties must be af84

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there is one category of evidence to which criminal defendants are constitutionally entitled prior to trial: exculpatory evidence.88 a) Brady v. Maryland In Brady v. Maryland,89 a defence attorney in a murder case asked to review all of the extrajudicial statements of a co-conspirator, but the prosecutor withheld a statement in which the co-conspirator admitted to shooting the victim.90 Although this case is “technically not a discovery case”,91 the U.S. Supreme Court held that it amounts to a violation of constitutional fair trial rights where the prosecutor suppresses exculpatory material that is in his or her possession and is material either to an accused’s guilt or punishment, where the defence has requested the material.92 Each of these requirements has raised numerous questions regarding their interpretation,93 especially as to the question when evidence is “material” enough to trigger the disclosure obligation. Ultimately, prosecutors can “guess” what evidence will end up being material.94 Thus, under Brady, the guiltier a defendant seems before trial, the less disclosure he is legally owed.95 Also, Brady did not make clear whether a defence request is necessary in all cases.96 Thus, the Supreme Court expanded the obligation to disclose exculpatory evidence: in Giglio v. United States97 the court decided to cover any materials that could be used to show bias on the part of government witforded [. . .]”); Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 607; about the importance of the U.S. Constitution for the criminal process in general, see Swoboda, Verfahrens- und Beweisstrategien (2013), p. 159. 88 Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1536, 1537. 89 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); reaffirmed but partly modified in U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). 90 See generally Weeks, 22 Okla. City U. L. Rev. (1997), 833, 837. 91 Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 607. 92 Joseph, 17 Cap. Def. J. (2004–2005), 33, 35; Deal, 82 N.Y.U. L. Rev. (2007), 1780 ff. 93 LaFave, Israel and King, Criminal Procedure, 2nd ed ((Treatise), 1999), Vol. IV, § 20.3(m) pp. 884 ff., Vol. V, § 24.3(b) pp. 474 ff. 94 See Cerruti, 94 Ky. L.J. (2005), 211, 213–214, noting that Brady is anomalous in this regard and, paraphrasing Lewis Carroll’s “White Queen”, summing up the current system as requiring that “the trial must come first, and the disclosure of exculpatory evidence must come only after a conviction, if at all”. See generally Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1784. 95 Deal, ibid. 96 Whitebread and Slobogin, Criminal Procedure, 5th ed (2008), p. 686; see also Ambos, 12 NCLR (2009), 543, 562. 97 See Giglio v. United States, 405 U.S. 150, 154–55 (1972).

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nesses, such as information about promises, rewards, or inducements made in exchange for their testimony or anything else that could impeach the credibility of those witnesses in the stand.98 b) United States v. Agurs The Court expanded this disclosure duty in United States v. Agurs,99 where it took up the materiality problem of Brady.100 In this case, the female defendant killed the victim with his own knife. She asserted a self defence justification. The prosecutor failed to disclose that the victim had two convictions for violent crimes committed with knives. Obviously relevant to self defence, the convictions might have bolstered her self defence claim to the point where the jury would have acquitted. If the prosecutor had disclosed the convictions, the jury could have made up its own mind.101 Justice Stevens distinguished between three forms of disclosure obligations.102 First, if the prosecutor relies on perjured testimony, he or she must disclose if “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury”. Second, where the defence makes a specific request for the allegedly exculpatory information, disclosure should be the normal response, because a specific request puts the prosecution on notice that the evidence may be exculpatory.103 In this case, according to Justice Stevens, “it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge”.104 Thus, “the failure to make any response is seldom, if ever, excusable.”105 Third, the obligation to disclose all material evidence favourable to the accused, the Court said, applies even when the defendant makes only a general request for exculpatory information or makes no discovery request at all.106 The latter was a reaction on the fact that defence lawyers filed a request for “all Brady material” when they “did not know what evidence might be in the prosecutor’s possession, or when 98

Cassidy, Prosecutorial Ethics (2005), p. 69. Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1537. 99 427 U.S. 97 (1976), 96 S. Ct. 2392 (1976). 100 Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1790; Weeks, 22 Okla. City U. L. Rev. (1997), 833, 833. 101 Dressler and Thomas III, Criminal Procedure, 4th ed (2010), p. 885. 102 See Ambos, 12 NCLR (2009), 543, 562. 103 Whitebread and Slobogin, Criminal Procedure, 5th ed (2008), p. 687. 104 U.S. v. Agurs, 427 U.S. 97 (1976), 96 S. Ct. 2392 (1976), 2399. 105 Ibid. 106 Ibid., 2394, emphasis added; see also Miller and Wright, Criminal Procedures: Prosecution and Adjudication, 4th ed (2011), p. 285.

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the lawyers got sloppy or lazy”.107 Generally, as Cassidy points out, “in analyzing materiality, courts often look at three factors: (1) the importance of the withheld evidence; (2) the strength of the rest of the prosecution case; and (3) other sources of evidence available to and used by the defense.”108 Thereby, strength of the prosecution’s case is the “central variable in the materiality calculus. The stronger the government’s case, the less likely it is that a particular item of evidence will be construed as material.”109 c) United States v. Bagley The three-tiered approach of Agurs was abandoned110 in U.S. v. Bagley,111 in which a divided Supreme Court held that the prosecutor is governed by a “reasonable probability” test in all situations.112 Accordingly, there must be a “reasonable probability” that the exculpatory evidence would have influenced the outcome of the case.113 Justice Blackmun, on behalf of the majority, confirmed Brady’s limited scope: “Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.”114 Blackmun explained that the reasonable probability standard possessed the flexibility to account for the misleading impact of a refusal to respond to a specific defence request.115 Moreover, the defence must show both that the 107 Dressler and Thomas III, Criminal Procedure, 4th ed (2010), p. 884. See generally Miller and Wright, ibid., (“Under the criminal discovery rules, the defense lawyer must ask before receiving material from the government. But the prosecutor’s duty sometimes goes beyond responding to valid defense requests for discovery. There are several types of information that the law requires the prosecution to disclose to the defense, even if the defense lawyer never asks for the information.”). 108 Cassidy, Prosecutorial Ethics (2005), p. 74; U.S. v. Agurs, 427 U.S. 97, 110 (1976). 109 Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1541. 110 Cf. Whitebread and Slobogin, Criminal Procedure, 5th ed (2008), p. 688; Dressler and Thomas III, Criminal Procedure, 4th ed (2010), p. 886. 111 U.S. v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985); see also Joseph, 17 Cap. Def. J. (2004–2005), 33, 35; Weeks, 22 Okla. City U. L. Rev. (1997), 833, 840 f. 112 See U.S. v. Bagley, 473 U.S. 667, at 713 n. 6 (Stevens, J., dissenting), noting agreement on continued vitality of this standard in opinions of Justice Blackmun, joined by Justice O’Connor, and Justice Marshall, joined by Justice Brennan; see also Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1791; Dressler and Thomas III, Criminal Procedure, 4th ed (2010), p. 886. 113 U.S. v. Bagley, 473 U.S. 667, 105 S. Ct. 3375 (1985). 114 Ibid., 674 (plurality opinion); Weeks, 22 Okla. City U. L. Rev. (1997), 833, 841. 115 U.S. v. Bagley, 473 U.S. 667, 682–683.

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evidence at issue is favourable to the accused, either because it is exculpatory or because it weakens some aspect of the prosecution’s case, and that the defendant has sustained a relatively high level of prejudice as a result of the suppression.116 According to the Supreme Court in Bagley, material evidence includes evidence that the defence might use to impeach prosecution witnesses, along with evidence that more directly points to the defendant’s innocence.117 Scholars in the US are divided as to whether this disclosure obligation should also encompass impeachment material, which does not directly support the case for the accused’s innocence but only affects the credibility of prosecution evidence.118 While some conclude that this disclosure obligation should also pertain to such material, which in itself would not be admissible at trial,119 most commentators answer this question in the negative.120 Generally speaking, the Court placed a heavy post-trial burden upon the defence by requiring it, on appeal, to demonstrate that it suffered prejudice from the prosecution’s withholding of exculpatory evidence, and that the withheld evidence is reasonably likely to have changed the trial’s outcome.121 As Joseph points out, “[n]umerous cases of Brady violations nationwide suggest that Bagley has set too high a standard for the determination of materiality. [. . .] Moreover, because prosecutors presumably do not prosecute those they consider innocent, the Bagley standard means that logically Brady should almost never apply. If the prosecution truly viewed the suppressed evidence as material – that is, as reasonably likely to create a reasonable doubt – then presumably he or she would not bring the case to trial in the first place.”122 116 See United States v. Bagley, 473 U.S. 667, 678–683 (1985), clarifying the standard of review when exculpatory material is suppressed; Strickler v. Greene, 527 U.S. 263, 281 (1999), stating that no Brady violation exists unless there is reasonable probability the verdict would have been different; see also Joseph, 17 Cap. Def. J. (2004–2005), 33, 35. 117 See United States v. Bagley, 473 U.S. 667 (1985), emphasis added. 118 Schuon, International Criminal Procedure (2010), p. 15. 119 LaFave, Israel and King, Criminal Procedure, 2nd ed., Vol. V ((Treatise), 1999), pp. 478 ff. 120 Compare id., Criminal Procedure, 2nd ed., Vol. IV ((Treatise), 1999), pp. 885, 893; id., Criminal Procedure, 2nd ed., Vol. V ((Treatise), 1999), pp. 478; Morris and Scharf, An Insider’s Guide to the ICTY, Vol. I (1995), p. 249. 121 See Bagley, 473 U.S. 683, noting that the reviewing court should examine the totality of the circumstances as to how the outcome of the trial would have changed in light of the nondisclosure; Strickler, 527 U.S. 294, noting that although the prosecution failed to disclose exculpatory materials in police files that cast doubt on portions of an eyewitness testimony, there was no prejudice because of evidence in the record pointing to the defendant’s guilt; Joseph, 17 Cap. Def. J. (2004–2005), 33, 36.

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Thus, Bagley – and Agurs – left unclear the scope of the prosecutor’s duty to disclose.123 Several states have rejected the Bagley plurality’s formulation of when evidence must be disclosed if the defendant makes a specific request for it.124 d) Kyles v. Whitley and Strickler v. Greene In Kyles v. Whitley125 and Strickler v. Greene,126 the Court turned to the prosecutor’s special status as both an advocate and an officer of the court127 in an attempt to define the scope of the government’s disclosure obligations.128 In Kyles v. Whitley, Justice Souter interpreted Bagley broadly, arguing that four aspects of the reasonable probability standard “bear emphasis”. First, a “reasonable probability” does not require a preponderance of (exculpatory) evidence but rather, as the language suggests, something less. Second, it does not require the defendant to show that the remaining evidence renders the prosecution’s case insufficient.129 Third, once the defendant has demonstrated a reasonable probability of a different outcome, the appellate court cannot find the failure to disclose harmless, since the reasonable probability test “necessarily entails the conclusion that the suppression [of the evidence] must have had ‘substantial and injurious effect or influence in determining the jury’s verdict.’”130 Finally, while the prosecution is not necessarily required to disclose every bit of evidence that might prove “helpful” to the defence, it “must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached.”131 122

Joseph, ibid., 38. Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1793. 124 See, e. g., State v. Engel, 249 N.J.Super. 336, 592 A.2d 572 (App.Div.1991); Commonwealth v. Gallarelli, 399 Mass. 17, 502 N.E.2d 516 (1987); State v. Kaiser, 486 NW.2d 384 (Minn.1992), noting that its state rules provide “for complete disclosure to the defense”; see generally Dressler and Thomas III, Criminal Procedure, 4th ed (2010), pp. 888 ff. 125 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995). 126 527 U.S. 263 (1999). 127 About this role see supra E. IV. 2. c) dd). 128 See Strickler, 527 U.S. 281, highlighting the “special role played by the American prosecutor in the search for truth in criminal trials”; Kyles v. Whitley, 514 U.S. 419, 439, observing that liberal disclosure of favorable evidence “will serve to justify trust in the prosecutor”; see generally Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1793. 129 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555 (1995), 1566; see also Whitebread and Slobogin, Criminal Procedure, 5th ed (2008), p. 689. 130 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566 (1995). 123

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In Strickler, Justice Stevens declared for the Court that the prosecutor’s “special status explains both the basis for the prosecution’s broad duty of disclosure and [the] conclusion that not every violation of that duty necessarily establishes that the outcome was unjust.”132 e) The States’ Brady Implementation and Rule 3.8(d) American Bar Association’s Model Rules of Professional Conduct While the Advisory Committee on the Federal Rules of Criminal Procedure explained that it opted “not to codify the Brady Rule” in order to give broader discovery to both parties in a federal case,133 states have followed the Supreme Court’s constitutional lead.134 State constitutional decisions, statutes and rules fortify the Brady doctrine – and even impose duties above and beyond it.135 With regard to local rules, in an interesting study Andrew Smith found: “Thirty-seven of the ninety-four districts have a local rule, order, or procedure that specifically governs Brady obligations. The remaining fifty-seven districts have not employed any rules to help prosecutors execute their Brady obligations, and instead follow Rule 16 or a local rule analog. Among the thirty-seven districts that do have a Brady regulation, twenty-eight require automatic disclosure, nine require disclosure only upon the request of the defense, two employ a rebuttable presumption that the defendant automatically requests disclosure, and one mandates a pretrial conference to determine what must be disclosed under Brady. Also, in most (thirty-one of the thirty-seven) of these districts, the disclosure obligation persists beyond the initial discovery and continues throughout the trial, similar to Rule 16(c).”136

State ethical rules, in particular, usually demand more from prosecutors in disclosing evidence than is required by federal constitutional law.137 The 131

Ibid., 1567. Strickler v. Greene, 527 U.S. 263, 281 (1999); see also United States v. Agurs, 427 U.S. 97, 111 (1976) (“[Berger’s] description of the prosecutor’s duty illuminates the standard of materiality that governs [the prosecutor’s] obligation to disclose exculpatory evidence.”); Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1794. 133 Rule 16 FRCP, Notes of Advisory Committee on Rules – 1974 Amendment; Smith, 61 Vand. L. Rev. (2008), 1935, 1945. 134 See Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1538; Cassidy, Prosecutorial Ethics (2005), p. 70 (“Following the lead of Brady, Rules of Professional Conduct enacted in most states also impose an affirmative obligation on prosecutors to disclose exculpatory evidence to the accused prior to trial.”). 135 Green, 31 Cardozo L. Rev. (2009–2010), 2161, 2165; Smith, 61 Vand. L. Rev. 1935 (2008), 1949. 136 Smith, ibid., 1948, fn. omitted. 137 See Cassidy, Prosecutorial Ethics (2005), pp. 70–71 (“[T]he use of the term ‘tends’ in Rule 3.8(d) and its predecessor, ABA Model Code provision DR 132

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ABA’s Model Rule of Professional Conduct 3.8(d) is typical of these rules, requiring prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”138 Most states have adopted rules consistent with Model Rule 3.8(d) by either mirroring or emulating the “tends to negate guilt”-construction of exculpatory evidence.139 The use of the verb “tends” in Rule 3.8(d) likely reflects a desire to create a disclosure obligation even broader than that of Brady.140 Furthermore, the Standing Committee on Ethics and Professional Responsibility of the ABA, a committee that “focused its efforts on the development of model national ethics standards for lawyers and the judiciary and the drafting of ABA Formal Ethics Opinions interpreting and applying those standards”,141 clarified what the differences are between Rule 3.8(d) and Brady. With regard to the important materiality standard, the committee stated: “The following review of the rule’s background and history indicates that Rule 3.8(d) does not implicitly include the materiality limitation recognized in the constitutional case law. The rule requires prosecutors to disclose favorable evidence so that the defense can decide on its utility. [. . .] In particular, Rule 3.8(d) is more demanding than the constitutional case law, in that it requires the disclosure of evidence or information favorable to the defense without regard to the anticipated impact of the evidence or information on a trial’s outcome. The rule thereby requires prosecutors to steer clear of the constitutional line, erring on the side of caution.”142 7–103(b), was likely intended to suggest a broader disclosure obligation than the ‘materially exculpatory evidence’ standard of Brady and its progeny.”). 138 Rule 3.8(d) Model Rules of Professional Conduct (2008); Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1539. 139 See Cassidy, Prosecutorial Ethics (2005), pp. 70–71, comparing the use of “tends” in Rule 3.8(d) with the phrase tends to negate guilt from Brady; Smith, 61 Vand. L. Rev. (2008), 1935, 1950 (“Every state has adopted some formulation of ethical standards for attorneys in general (and prosecutors specifically), largely based on principles first promulgated by the ABA.”). 140 See Cassidy, Prosecutorial Ethics (2005), pp. 70–71; Kyles v. Whitley, 514 U.S. 419, 437 (1995), recognising that prosecutors’ constitutional requirement illustrated by Brady and Bagley is less than the obligation under professional ethics standards. 141 See , last visited 25 September 2013, continuing: “The Committee also provides consultation to other American Bar Association entities, state and local bars, law school communities, the legal news media and the public on matters of emerging interest in the area of legal and judicial ethics.” 142 Standing Committee on Ethics and Professional Responsibility of the American Bar Association, Formal Opinion 09–454, Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense, 8 July 2009, p. 2, 4, fn. omitted.

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Despite the comments made by the ABA formal opinion, Parajon regards the rule still as “vague on several cores”.143 She states: “For one, interpretive guidance on what is considered ‘favorable’ is scant. Moreover, there is no settled understanding of the level of care required to satisfy the Rule’s instruction to disclose favorable evidence ‘known to the prosecutor.’ The Rule, on its face, does not require prosecutors to ferret out favorable information; they simply cannot ‘ignore the obvious.’ This stance suggests that the Rule requires no affirmative duty. Yet in some jurisdictions, courts have gestured toward a stricter test, under which knowledge is constructive and judged by an objective standard.”144

f) A Short Comment on Sanctions and Remedies Litigation over Brady issues remains quite common.145 The problem is that nondisclosure of exculpatory evidence is categorised as “harmless errors” instead of a violation of the constitution.146 Thus, the courts struggle to identify which prosecutorial failures to disclose are important enough to justify overturning a conviction.147 In the words of Christopher Deal: “Materiality, roughly speaking, corresponds to reasonableness plus harmlessness; as a general matter, only when there is a reasonable probability that the suppression of the evidence would affect the trial can courts be certain that the prosecutor’s balancing efforts were unreasonable and that her error was not harmless.”148 This, of course, influences the sanctioning of non-disclosure. The professional rules of conduct of each state may impose sanctions upon a prosecutor for a Brady violation, but, in and of itself, a violation of Brady incurs no other liability.149 While a defendant usually obtains See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), pp. 352, 353; Parajon, 119 Yale L.J. (2010), 1339, 1342. About the different approach to the responsibility of supervisory lawyers in the procecutor’s office for mistakes of the subordinate lawyers, see infra F. VII. 1. b) and VIII. 1. a). 143 Parajon, ibid., 1343. 144 Ibid., fn. omitted. 145 Miller and Wright, Criminal Procedures: Prosecution and Adjudication, 4th ed (2011), p. 285. For a more detailed analyses on disclosure sanctions in general, see infra F. VII. 1. 146 See Kyles v. Whitley, 514 U.S. 419 (1995), 436–437, citing Bagley for the proposition that “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense”. 147 Miller and Wright, Criminal Procedures: Prosecution and Adjudication, 4th ed (2011), p. 285. 148 Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1814. 149 See Imbler v. Pachtman, 424 U.S. 409 (1976), holding that prosecutors acting within the scope of their duties have absolute immunity from civil liability. See generally Joseph, 17 Cap. Def. J. (2004–2005), 33, 44.

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a new trial and admission of the supressed evidence,150 in many cases of Brady violations, the only sanction a prosecutor receives is in the form of a critical judicial opinion concerning prosecutorial misconduct.151 Disciplinary rules, which require prosecutors to disclose all favorable evidence,152 are almost never enforced against prosecutors.153 Additionally, the U.S. Supreme Court has granted prosecutors absolute immunity from civil liability for Brady violations.154 2. Unused Material in England/Wales The European Court of Human Rights has stated that “according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-a-vis his opponent.”155 Fairness under Art. 6(1) ECHR therefore requires “that the prosecution authorities disclose to the defence all material evidence for or against the accused.”156 Thus, also in England and Wales the defence must 150

See Miller v. Pate, 386 U.S. 1, 7 (1967), granting habeas relief when the prosecution misrepresented paint stained shorts as blood stained and failed to disclose the true nature of stains; Ex parte Richardson, 70 S.W.3d 865, 873 (Tex. G’im. App. 2002), reversing a capital murder conviction. 151 See Banks, 124 S. C. 1273, criticising the State’s failure to turn over exculpatory evidence to the defense; Joseph, 17 Cap. Def. J. (2004–2005), 33, 44. 152 See, e. g., Rule 3.8(d) Model Rules of Professional Conduct (2007), requiring prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense”. See generally Kurcias, 69 Fordham L. Rev. (2000), 1205 ff., surveying the scope of the rule to disclose and evaluating possible changes. 153 The leading study on this problem is Rosen, 65 N.C. L. Rev. (1987), 693 ff. For a more recent collection of the evidence demonstrating that disciplinary bodies do not use their powers to sanction prosecutors for violations of ethical rules relating to disclosure, see Gershman, 47 S. Tex. L. Rev. (2005–2006), 685, 722–723. For an investigative report on the lack of sanctions for Brady and similar misconduct in homicide cases, see Armstrong and Possley, “The Verdict: Dishonor”, Chi. Trib. (10 January 1999), 1 (available at , latest visit 25 September 2013). See generally Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1801. 154 Imbler v. Pachtman, 424 U.S. 409, 420 (1976), stating that prosecutors enjoy absolute immunity from § 1983 suits relating to acts performed within the scope of their duties (about the absolute immunity of prosecutors in more detail see infra F. VII. 1. b) bb)); Joseph, 17 Cap. Def. J. (2004–2005), 33, 44. 155 Foucher v. France (1997) App. No. 22209/93; FR v. Switzerland (2001) App. No. 37292/97. 156 Edwards v. United Kingdom (1992) App. No. 13071/87 (ECtHR) para. 36, Dowsett v. United Kingdom (2003) App. No. 39482/98 (ECtHR).

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have access to material that might assist him or her.157 This is called “unused material”: unlike evidence which the prosecution propose to rely upon during the trial, this is material acquired by the police during the course of their criminal investigation – much of which may be regarded as irrelevant, superfluous or perhaps even damaging to their case – and on which the prosecution will not wish to rely and which it will not propose to use.158 a) Application, Common Law and Development Until the CPIA 1996 The difficulty – especially for someone from a German legal background – with the disclosure regime in England and Wales is that this regime has undergone several reforms in recent times.159 The changes made were the culmination of a long period of study and consideration.160 This has a very practical implication: for any alleged offence for which a criminal investigation began before 1 April 1997, only Common Law principles apply. For cases in which the criminal investigation161 began between that date and 4 April 2005, the CPIA 1996 will apply. Where the criminal investigation began on or after 4 April 2005, the CPIA 1996, as amended by the CJA 2003, will apply.162 Prior to the CPIA 1996, disclosure was dependent on the Common Law163 and the fairness of the police and prosecutors concerned.164 The Emson, Evidence, 5th ed (2010), p. 515. Ibid., pp. 515, 516; Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 302. 159 Epp, Building on the Decade of Disclosure (2001), p. 1. 160 Council of London Law Society, “Pre-Trial Discovery”, Annual Report 1965– 66 (1966); Justice, Committee on the Laws of Evidence, Availability of Prosecution Evidence for the Defence (London: JUSTICE, 1966); The Royal Commission on Criminal Procedure, Chairman: Sir Cyril Philips, The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (London: Her Majesty’s Stationery Office, 1981); Runciman (Viscount, “Runciman Report”, Report of the Royal Commission on Criminal Justice, Cm2263 (London: HMSO, 1993). 161 The meaning of “criminal investigation” is defined by s. 1(4) CPIA 1996 as being an investigation by the police or other persons with a duty to conduct with a view to it being ascertained whether a person should be charged with an offence or whether a person charged with an offence is guilty of it. That is a fairly broad definition. 162 See Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.12. 163 Sprack, Criminal Procedure, 13th ed (2011), mn. 9.02. Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 301. 164 See Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.13. 157 158

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prosecution was only obliged to make available to the defence witnesses which the prosecution did not intend to call and any earlier inconsistent statements by those witnesses it did intend to call;165 to make available expert and technical evidence;166 to give the defence a copy of any statements made by a prosecution witness which conflict with the evidence given at trial;167 and to make known any convictions affecting the credibility of prosecution witnesses.168 Moreover, the duty of pre-trial disclosure applied more to the prosecution than to the defence.169 The prosecution’s duty to disclose was slightly extended by Guidelines issued by the Attorney General in December 1981170 – which are basically instructions to his staff171 – in so far as “unused material” should normally be disclosed if it “has some bearing on the offence(s) charged and the surrounding circumstances of the case”.172 In other words, the disclosure by the prosecution was dependent on relevance.173 165 There was disagreement between Lord Denning M.R. and Diplock L. J. in Dallison v. Caffery [1965] 1 Q.B. 348 on the extent of the obligation. Lord Denning was of the opinion that “prosecuting counsel should make the witness’ statements available to the defence. Diplock L.J. thought it was enough to make the witness available by notifying a name and address (cf. R v. Bryant and Dickson (1946) 31 Cr.App.R. 146; R v. Lawson (1989) 90 Cr.App.R. 108); see also Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.13; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074. 166 Bailey, Ching and Taylor, ibid., mn. 14-074. 167 R v. Howes, March 27, 1950, CCA (unreported), cited in Richardson, general ed., Archbold: Criminal Pleading, Evidence and Practice 2013, 61st ed (2013), para. 4–179. 168 R v. Collister and Warhurst (1955) 39 Cr.App.R. 100; R v. Paraskeva (1982) 76 Cr.App.R. 162. The same principle applies to disciplinary findings against police officers: R v. Edwards [1991] 1 WL.R. 207, and the request by a prosecution witness for a reward: R v Rasheed, The Times, May 20, 1994. See also R v. Guney [1998] 2 G.App.R. 242; see generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074. 169 Roberts and Zuckerman, Criminal Evidence, 2nd ed (2010), p. 60. 170 Practice Note (Criminal Evidence: Unused Material) [1982] 1 All ER 734; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 607. 171 O’Connor, Crim. L.R. 1992, 464, 469. 172 See Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.13; see also Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074. 173 See Epp, Building on the Decade of Disclosure (2001), p. 1; Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.13.

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Furthermore, the decision of whether to disclose or not was left to the prosecution.174 However, the guidelines did not have legal force175 and conflicted with the case law.176 Because of a number of grave miscarriages of justice in the early 1990s,177 such as the Guildford Four,178 Birmingham Six,179 and the Maguire Seven cases,180 a wide-ranging test for disclosure was set down by the Court of Appeal in R v. Ward.181 In this case, the Court stated: 174

See Rhodes, ibid. Millett J., in: Re Barlow Clowes, unreported June 6, 1991, cited in O’Connor, Crim. L.R. 1992, 464, 469. The radical argument that they “did not have the force of law” was advanced by the Crown in the first Guinness trial, Saunders and Ors, unreported, C.C.C. August 29, 1989, transcript, cited in O’Connor, ibid. However, as we shall see, the Court of Appeal has been prepared to quash convictions because of breaches of the Guidelines, see O’Connor, ibid. 176 See R v. Brown (Winston) [1994] 1 W.L.R. 1599; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074 with fn. 894. 177 Gibson and Cavadino, The Criminal Justice System, 3rd ed (2008), p. 113; Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.13. 178 R. v. Richardson, Conlon, Armstrong and Hill (1989), The Times, 20 October, CA. Carole Richardson, Gerard Conlon, Patrick Armstrong and Paul Hill (known as the “Guildford Four”) had been found guilty of bombing pubs in Guildford and Woolwich on behalf of the IRA in 1975. In 1989 the Court of Appeal quashed the convictions, because the police had both fabricated and suppressed evidence in the case. See Niblett, Disclosure in Criminal Proceedings (1997), pp. 17 ff.; Dean, 44 Int’l & Comp. L.Q. (1995), 379, 379. See generally Kee, Trial and Error (1989). 179 R. v. McIlkenny and Others (1991) 93 Cr App R 287 CA (decided March 1991). The “Birmingham Six” were believed to be part of the IRA and convicted of murder because of their alleged part in pub bombings in Birmingham in 1975. After two failed appeals in 1976 and 1981, the Home Secretary referred the case to appeal in 1991. The Court of Appeals quashed the convictions because confessions had been tempered with and there were serious flaws in the forensic evidence. See Niblett, Disclosure in Criminal Proceedings (1997), pp. 20 ff.; McCartney and Roberts, 80 U.Cinn.L.Rev. (2012), 1333, 1345. 180 R. v. Maguire and Others (1992) 94 Cr App R 133 CA (decided June 1991). The “Maguire Seven” were convicted of possessing explosive substances in 1976. 13 years later, the Court of Appeals quashed their convictions when it was found that additional evidence had been withheld from the defense and that the key forensic evidence was inconclusive. They had all served their sentences by this time and one of them, Giuseppe Conlon, father of Gerard Conlon, who himself was one of the “Guildford Four”, had died, see McCartney and Roberts, 80 U.Cinn.L.Rev. (2012), 1333, 1345. See generally Niblett, Disclosure in Criminal Proceedings (1997), pp. 17 ff.; Hodgson, 35 N.C.J. Int’l. & Comm.Reg. (2010), 319, 325; Kee, Trial and Error (1989). 181 R v. Judith Teresa Ward (1993) 96 CrAppR 1, CA; [1993] 1 W.L.R. 619; see generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-074. 175

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“An incident of a defendant’s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. The duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial.”182

That broad scope was then defined in R v. Keane183 with the “materiality” test: material “in the realm of disclosure” is material that “can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead which goes to (1) or (2).”184 As the relevance test of Keane is based on an “appraisal by the prosecution”, it is a subjective one.185 b) The CPIA 1996 After the House of Lords made crucial adjustments,186 followed by adjustments made to the National Operations Manual of the CPS,187 the CPIA 1996 was introduced, together with the Code of Practice.188 This basically happened to “roll back the broad and inclusive scope of Ward and Keane”,189 and just as practitioners and the police came to understand the changes to the Common Law.190 The new act provided, for the first time, a statutory framework governing the retention, recording and disclosure of 182

R v. Judith Teresa Ward (1993) 96 CrAppR 1, CA; [1993] 1 W.L.R. 619,

674. 183

Keane (1994) 99 Cr App R 1 CA; generally Colin Tapper, Cross and Tapper on Evidence, 11th ed (Oxford: Oxford University Press, 2007), p. 303. 184 Keane (1994) 99 Cr App R 1, 6 CA. 185 Leng and Taylor, Blackstone’s Guide to the CPIA 1996 (1996), p. 13. 186 See R v. Brown [1998 AC 367, [1997] 3 All ER 769 and R v. Imran and Hussain [1999] Crim LR 754; generally Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 304. 187 The manual’s guidelines were adjusted in 1994 and they received favourable comment from Simon Brown LJ in Bromley Justices ex p Smith and Wilkins [1995] 2 Cr App R 285 DC, 289–290; Epp, Building on the Decade of Disclosure (2001), p. 1. 188 Issued under s 23 of the CPIA 1996; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 607. 189 Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.18. 190 Niblett, Disclosure in Criminal Proceedings (1997), p. xiii; Epp, Building on the Decade of Disclosure (2001), p. 1.

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unused material, placing clear duties on the police and prosecutors, and was supplemented by the Attorney Generals Guidelines: Disclosure of Information in Criminal Proceedings – published in November 2000 and updated in April 2005.191 The CPIA 1996 regime adopted – for the first time in history192 – a reciprocal two-stage disclosure process.193 The first stage was known as “primary disclosure”. Section 3 of the CPIA imposes a duty on the prosecution to disclose automatically to the accused any prosecution material which has not previously been disclosed and which, in the prosecutor’s opinion, might undermine the case for the prosecution against the accused.194 This test is both narrow and subjective.195 The duty of primary disclosure applies to all cases where there is a plea of not guilty in the Magistrates’ Court, a committal or transfer of a case for trial at the Crown Court, or a voluntary bill of indictment.196 It also allows the accused before a Magistrates’ Court to participate voluntarily.197 The second stage is known as “secondary disclosure”. Under s. 5 CPIA 1996 the defendant is required to serve a defence case statement, which must be served in Crown Court cases (for cases in the Magistrates’ Court this is voluntary).198 The defence case statement sets out the general nature of the defence and the matters in issue between the prosecution and defence.199 Following this, the prosecution must disclose any further material that has not been previously disclosed but might assist that defence case.200 Should the Crown fail to disclose further such material, then the accused can apply 191 Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.18. 192 Quirk, 10 E. & P. (2006), 42, 45 59; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 606. 193 Leng and Taylor, Blackstone’s Guide to the CPIA 1996 (1996), p. 1; Dennis, Evidence (2010), p. 343; Redmayne, Crim. L.R. 441, 442 (2004); Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-075; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 607 identify three stages with the secondary prosecution disclosure as the third stage. 194 According to s. 3(2) CPIA 1996, “prosecution material” is material “(a) which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused; or (b) which, in pursuance under a code operative under Part II he has inspected in connection with the case”. 195 Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.18. 196 DPP ex p Lee [1999] 2 Cr App R 304 DC; Rhodes, ibid.; Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 301 with fn. 99. 197 S. 6 CPIA 1996; Tapper, ibid. 198 Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.20. 199 S. 5 CPIA 1996.

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to the court under s. 8 CPIA 1996 for an order of specific disclosure.201 The Crown Court Protocol on Disclosure202 emphasises that defence requests for specific disclosure of unused material which are not referable to any issue identified in the defence case statement should be rejected.203 The CPIA 1996 regime then provides for the prosecution to make comments and draw adverse inferences where the accused advances a defence at trial in terms that differ from the content of the defence case statement.204 c) The CPIA 1996 as Amended by the CJA 2003: the Current Status Following criticism of the CPIA 1996,205 especially with regard to its compatibility with the ECHR,206 changes both in practice207 and of the stat200 (Former) S. 7(2)(a) CPIA 1996: “The prosecutor must [. . .] disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused’s defence as disclosed by the defence statement”; Epp, Building on the Decade of Disclosure (2001), p. 2. 201 The procedure for making s. 8 applications is set out in rule 25.6 Criminal Procedure Rules 2005; see generally Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.20. 202 Fulford and Openshaw, Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court, published in February 2006 (available at , last visited 25 September 2013). 203 Ibid., para. 45. 204 S. 11 CPIA 1996; see generally Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.20. 205 See Lord Williams of Mostyn, being Attorney General, who stated that the disclosure regime was in need of further study and that the topic would be revisited upon the receipt of the report of the independent researchers appointed by the Home Office, see Attorney General, Disclosure of Information in Criminal Proceedings, Guidelines on Disclosure (London: LSLO, 2000), p. 1. See also Criminal Bar Association, Disclosure Provisions Survey; Crown Prosecution Service Inspectorate, The Inspectorate’s Report on the Thematic Review of the Disclosure of Unused Material, Thematic Report 2/2000 (London: CPS, March 2000); Plotnikoff and Woolfson, “A Fair Balance”?: Evaluation of the Operation of Disclosure Law, Home Office, Communications and Development Unit, Research, Development and Statistics Directorate Occasional Paper No. 176, (London: Crown, 2001); Butterfield, Review of Criminal Investigations and Prosecutions conducted by HM Customs and Excise (London: HM Treasury, 2002), Ch. 12, especially 12.28, describing the regime as “worst of all worlds”. 206 Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-072. 207 Fulford and Openshaw, Disclosure, supra note 202, S. 337; Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 302.

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utory rules have been implemented.208 The CJA 2003 introduced a single unified test for the prosecution duty of disclosure. According to s. 3(1)(a) CPIA 1996, the prosecution are now under an “initial duty” in advance of the trial to disclose to the accused any prosecution material which has not previously been disclosed to him or her and which “might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”.209 Thus, the import of a reasonableness standard converts the formerly subjective test into a now objective one210 and the secondary prosecution disclosure test was amended due to the fact that practitioners adapted or ignored the provisions in accordance with its workloads or sense of justice.211 According to s. 3(2) CPIA 1996, “prosecution material is material (a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.” As Corker remarks, “the definition does not extend to material which has been retained by the investigator but not revealed to or seen by the prosecutor. If unused material is simply mentioned on the disclosure officer’s sensitive or non-sensitive schedules, but not sent to the prosecution and never inspected by them, then it does not fall within the ambit of this definition, nor (thus) the ambit within the initial duty.”212

Common Law disclosure now applies especially in the case of early disclosure.213 The duty of disclosure arises as soon as it is reasonably practicable.214 The decision as to what is capable of undermining the prosecution case is one to be made by the prosecutor and cannot be abdicated to a judge.215 The requirement to serve a defence case statement remains, but the single 208 See generally Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-075 ff. 209 S. 3(1)(a) CPIA 1996 as amended by the CJA 2003, s. 32. See generally Emson, Evidence, 5th ed (2010), p. 515; Leng and Taylor, Blackstone’s Guide to the CPIA 1996 (1996); Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-076. 210 Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 303; Corker and Parkinson, Disclosure (2009), p. 86; Owusu-Bempah, 17 E. & P. (2013), 183, 184 with fn. 6; Taylor, 74 J. Crim. L. (2010), 214, 215, 216. 211 Quirk, 10 E. & P. (2006), 42, 46. 212 Corker and Parkinson, Disclosure (2009), p. 89. 213 See R v. DPP ex parte Lee [1999] 2 All ER 737; see also CPS Disclosure Manual, para. 2.5. 214 S. 13 CPIA 1996; see for details para. 12.36 Disclosure Manual. 215 R v. B [2000] Crim. L.R. 50; S. 3 CPIA, para. 9 AG Disclosure Guidelines, para. 12.18 Disclosure Manual.

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unified test at the initial disclosure stage removes the risk that the prosecution might withhold helpful material on the grounds that the defence had not served a case statement.216 Instead, the prosecution are under a “continuing duty of review”,217 following the service of the defence case statement and throughout the proceedings.218 Furthermore, the test as laid down by the CJA 2003 not only requires the prosecutor to disclose unused material, which “might reasonably be considered capable of undermining the case for the prosecution against the accused” but also which assists the case for the accused.219 Under the previous regime, it was only necessary for the prosecutor to consider whether material might assist the case for the accused once the defence had revealed its case in the defence statement.220 This means that the new test is not contingent on a defence statement being served.221 Further, the prosecution must provide the defence with a register of all unused material in its possession.222 If there is no such material, a written statement to that effect must be given to the accused.223 As the term “undermining” is not clearly defined, some authors interpret it broadly, as meaning “likely to fall or fail” and, on that basis, assert that either the establishment of an alternative hypothesis or of a defence such as self-defence or duress would “undermine” the prosecution’s case.224 The government itself argues that evidentiary material weakening a specific piece of prosecution evidence has an “undermining” effect,225 i. e., in such a situation the prosecution would withhold evidence favourable to the deSee Gibson and Cavadino, The Criminal Justice System, 3rd ed (2008), p. 113. S. 7A CPIA 1996; see Attorney General’s Guidelines (2005) para. 17–19; generally Gibson and Cavadino, The Criminal Justice System, 3rd ed (2008), p. 113; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-079; Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 303. 218 Rhodes, in: Colvin and Cooper, eds., Human Rights in the Investigation and Prosecution of Crime (2009), Ch. 10, mn. 10.22. 219 S. 3(1)(a) 2nd Alternative CPIA 1996 as amended by CJA 2003 (c. 44), s. 32. 220 See supra F. III. 2. b); see also Corker and Parkinson, Disclosure (2009), p. 86. 221 Corker and Parkinson, ibid. 222 Redmayne, Crim. L. R. (2004), 441, 442. 223 Sprack, A Practical Approach to Criminal Procedure, 13th ed (2011), p. 142; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-075; Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 608. 224 Leng and Taylor, Blackstone’s Guide to the CPIA 1996 (1996), p. 14. 225 Hansard, Lords, 18 December 1995, col 1437; The Crown Prosecution Service, Disclosure of Previous Convictions of Prosecution Witnesses, available at , last visited 25 September 2013. 216 217

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fence.226 Home Office Minister David McLean explained that the word undermine “is not confined to material raising a fundamental question about the prosecution [. . .] [T]he disclosure scheme is aimed at undisclosed material that might help the accused notwithstanding the fact that there is enough evidence to provide a realistic prospect of conviction.”227 In 2000, the Attorney General issued guidelines on disclosure that listed certain categories of material to usually be disclosed and thus supported this broad reading. According to paragraph 10 of the Attorney General’s Guidelines on Disclosure (2005), “material which can reasonably be considered capable of undermining the prosecution case against the accused or assisting the defence case will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution.”228 Paragraph 12 of Guidelines provides some examples of the types of prosecution material falling within the scope of s. 3(1)(a) of the Act: “(i) any material casting doubt upon the accuracy of any prosecution evidence; (ii) any material which may point to another person having involvement in the commission of the offence; (iii) any material which may cast doubt upon the reliability of a confession; (iv) any material which might go to the credibility of a prosecution witness; (v) any material which may support a defence which has either been raised or is apparent from the prosecution papers; and (vi) any material which may have a bearing on the admissibility of any prosecution evidence.”

According to para. 14, another example is “Material relating to the accused’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered when in the investigator’s custody is likely to fall within the test for disclosure. . .” This list therefore covers material such as the accused’s exculpatory comments, inconsistent statements or relevant criminal records of prosecution witnesses, financial inducements made to prosecution witnesses and, where identity is in issue, any prosecution witness’s description of the offender which does not match the accused.229 As a result of police involvement in investigation and (especially prior to the reform by the CJA 2003) charging,230 the CPIA 1996 (as amended by the CJA 2003), the Attorney General’s Guidelines on Disclosure and the Code of Practice also set out a number of guiding principles relating to disclosure by police officers and the prosecution.231 The guidelines for police 226

Leng and Taylor, Blackstone’s Guide to the CPIA 1996 (1996), p. 14. H.C. Standing Committee B, May 14, 1996, col. 34; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-076. 228 Generally Corker and Parkinson, Disclosure (2009), p. 94. 229 Emson, Evidence, 5th ed (2010), pp. 515, 516. 230 See supra E. IV. 2. c) bb) (1). 227

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officers are particularly important, “given that they may have their own firm views on the guilt of the accused and be reluctant to disclose material which might render a conviction less likely”.232 According to paragraph 3.5 of the Code, investigators must pursue all reasonable lines of inquiry, whether they point towards or away from their suspect; paragraph 23 of the Guidelines provides that investigators and disclosure officers must be “fair and objective” and must work together with prosecutors to ensure that the disclosure obligations are met; paragraph 25 of the Guidelines and paragraph 3.3 of the Code state that a person should not be the disclosure officer if it would be likely to result in a conflict of interest; paragraph 28 of the Guidelines and paragraph 5.1 of the Code direct investigators to retain material which may be relevant to the investigation; and paragraph 32 of the Guidelines requires prosecutors to “do all that they can to facilitate proper disclosure [. . .] in the interests of justice and in accordance with the law”.233 Section 7A sets out the prosecution’s obligation to constantly review the question of whether there is additional prosecution material which should be disclosed to the accused (applying the test in s. 3(1)(a) CPIA 1996), particularly in the light of the accused’s defence statement(s).234 Furthermore, the disclosure officer has to review the material which has been retained and draw the attention of the prosecutor to any material that might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused.235 If the accused has reasonable cause to believe that there is undisclosed prosecution material which the prosecution are required to disclose under s. 7A, he may apply to the court for an order requiring disclosure s. 8(2)236).237 However, according to s. 8(1) CPIA 1996, this section only applies “where the accused has given a defence statement under section 5, 6 or 6B and the prosecutor has complied with section 7A(5) or has purported to comply with it or has failed to comply with it.” Thus, “an accused cannot make any application under s. 8 CPIA 1996 in the absence of a defence statement.”238 Moreover, in the 231 Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-072. 232 Emson, Evidence, 5th ed (2010), p. 516. See, for example, R v. Taylor (1993) 98 Cr App R 361 (CA). 233 Emson, ibid. 234 Redmayne, Crim. L. R. (2004), 441, 442; Emson, Evidence, 5th ed (2010), p. 518. 235 Para. 17 of the Attorney General’s Guidelines on Disclosure and paragraph 8.3 of the Code of Practice. 236 As substituted by s. 38 CJA 2003. 237 See generally Gibson and Cavadino, The Criminal Justice System, 3rd ed (2008), p. 113; Emson, Evidence, 5th ed (2010), p. 518.

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case of an application by the defence for specific disclosure, s. 8(3),(4) CPIA 1996 provides an addition to the definition of “prosecution material” as laid down in s. 3(2) CPIA 1996: “For the purposes of this section prosecution material is material [. . .] (a) which is in the prosecutor’s possession and came into his possession in connection with the case for the prosecution against the accused, (b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused, or (c) which falls within subsection (4). (4) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it in connection with the case for the prosecution against the accused.”

This has been criticised insofar as “the defence will be forced into making a s. 8 application in order to obtain material which on any view ought to be disclosed to the accused. It means that the prosecutors need never read the schedules of unused material and thus are able to ignore the vast majority of the unused material in a case until required by an application under s. 8 to focus on it.”239 Thus, Corker suggests, that s. 8(4) CPIA 1996 should apply to all prosecution material.240 As I have illustrated, the sequence of the English criminal process depends on the kind of offences being prosecuted (summary offences, indictment-only-offences, offences triable either way). Thus, the classification of offences also influences the applicable disclosure requirements. For summary trials, primary disclosure is applicable whenever the accused pleads not guilty.241 Until an accused enters this plea, there is no right to disclosure of unused material.242 According to para. 3.1 Magistrates’ Protocol, disclosure should be undertaken by the prosecutor within 28 days of this plea.243 The Attorney-General’s Guidelines make it clear that the prosecutor should, in addition to complying with the obligations under the CPIA 1996, provide to the defence all evidence upon which the Crown proposes to rely 238 Para. 3.5. Protocol for the provision of advance information, prosecution evidence and disclosure of unused material in the Magistrates’ Courts (2006); Corker and Parkinson, Disclosure (2009), p. 78. 239 Corker and Parkinson, ibid., p. 90. 240 Ibid. 241 S. 1(1) CPIA 1996: “This part applies where [. . .] a person is charged with a summary offence in respect of which a court proceeds to summary trial and in respect of which he pleads not guilty.” See also Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-082; Corker and Parkinson, Disclosure (2009), p. 75. 242 Ibid. 243 Para. 3.1. Protocol for the provision of advance information, prosecution evidence and disclosure of unused material in the Magistrates’ Courts (2006).

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Figure 29: Disclosure of Unused Material in England/Wales According to Statutory Provisions

in a summary trial. “Such provisions should allow the accused or their legal advisers sufficient time properly to consider the evidence before it is called”.244 As I have outlined, every case in England and Wales starts at the Magistrates’ Court.245 How long it stays there depends on the classification of the offence: while the time the case of an indictable-only offence spends in the jurisdiction of the Magistrates’ Court is limited,246 in eitherway offences, the period spent in the Magistrates’ Court, and the number of hearings, is likely to be substantially greater. Although – as I have shown – many recent reforms of the English criminal procedure are directed towards an early resolution of the case, surprisingly, the CPIA 1996 delayed the operation of the initial duty until after committal in either-way offence cases.247 In this case, the Common Law is very useful: Kennedy L.J. recognised in R v. DPP ex p Lee that “the 1996 Act does not specifically address 244

Para. 57 Attorney-Generals Guidelines (2005). Supra E. IV. 2. c) bb) (1). 246 The obligation to make disclosure of unused material in such cases pursuant to s. 13(1)(c) will be triggered at a very early point in the case’s progression, see Corker and Parkinson, Disclosure (2009), pp. 80–81. 247 See ibid., p. 81. 245

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the period between arrest and committal.”248 In that period, Kennedy L.J. requires disclosure that “a responsible prosecutor recognises should be disclosed at an earlier stage”, for example: “(a) Previous convictions of a complainant or deceased if that information could reasonably be expected to assist the defence when applying for bail. (b) Material which might enable a defendant to make a pre-committal application to stay the proceedings as an abuse of process. (c) Material which might enable a defendant to submit that he should only be committed for trial on a lesser charge, or perhaps that he should not be committed for trial at all. (d) Material which will enable the defendant and his legal advisors to make preparations for trial which may be significantly less effective if disclosure is delayed (e. g. names of eye witnesses who the prosecution do not intend to use).”249

3. Exculpatory Material at the ICC Disclosure of (exculpatory) evidence goes to the heart of an accused’s right to a fair trial.250 It is the most important, if not the only, instrument for the defence to counterbalance the greater resources of the prosecution251 and achieve some kind of “equality of arms”.252 According to the ICTY Appeals Chamber, the disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal.253 Moreover, the disclosure to the Defence of evidence that in any way tends to suggest the innocence or mitigate the guilt of the accused is one of the most onerous responsibilities of the Prosecution.254 At the ICC, the obligation to disclose exculpatory evidence is a result of the general duty to investigate incriminating and exonerating circumstances equally in order to find the truth (Art. 54(1)(a) ICC-Statute). This is slightly different to the position before the ad hoc Tribunals. According to the ICTY Trial Chamber in Blagojevic´ and Jokic´, “Rule 68 is not intended to serve as means through which the Prosecution 248

DPP ex p Lee [1999] 2 Cr App R 304, 317 DC. DPP ex p Lee [1999] 2 Cr App R 304, 318 DC; see generally Corker and Parkinson, Disclosure (2009), p. 83. 250 Cf. Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 77 ff., 92; see also Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403. 251 Mosteller, in: Dressler, ed., Encyclopedia of Crime and Justice, 2nd ed (2002), p. 531, 534; Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403. 252 Dennis, Evidence (2010), p. 343; Swoboda, 19 CLF (2008), 449, 472. 253 Prosecutor v. Krstic ´ , No. IT-98-33-A, Judgement, para. 180 (April 19, 2004). 254 Prosecutor v. Brd -anin, No. IT-99-36-T, infra note 281, S. 348, para. 23. 249

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is forced to replace the Defence in conducting investigations or gathering material that may assist the Defence.”255 Equally, the ICTR Trial Chamber II in Bizimungu et al. stated that “Rule 68 (A) does not impose an obligation on the Prosecution to hunt for and disclose materials which are not in its possession or control”.256 Such an approach would not be applicable before the ICC.257 Pursuant to Art. 67(2) ICC-Statute, the Prosecution258 must disclose material in its possession or control that is exculpatory, i. e., evidence which “shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”.259 The phrasing of this article is similar to Rule 68 ICTY-RPE, which contains the corresponding obligation of the Prosecution.260 The original version of Rule 68 ICC-RPE provided: “The Prosecutor shall, as soon as practicable, disclose to the defence the existence of evidence known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused of a crime charged in the indictment.”261 Subsequently, at the fifth Plenary session in February 1995, the Judges, at the suggestion of the American Bar Association (ABA), added to the end: “. . . or may affect the credibility of prosecution evidence”,262 which broadened the Rule so as to cover not only materials which are clearly exculpatory, but even information which could merely weaken the Prosecution’s evidence, though not necessarily contradicting it.263 Because of many problems caused by the old Rule 68,264 a new, more detailed version was in255 Prosecutor v. Blagojevic ´ and Jokic´, No. IT-02-60-PT, Joint Decision on Motions Related to Production of Evidence, para. 26 (December 12, 2002). 256 Prosecutor v. Bizimungu et al., No. ICTR-99-50-T, Decision on Jerome-Clement Bicamumpaka’s motion for judicial notice of a Rwandan judgement of 8 December 2000 and in the alternative for an order to disclose exculpatory evidence, para. 26 (December 15, 2004). 257 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 846. 258 On the (limited) disclosure obligations for the defense (which are not relevant in this context) see Rules 78 RPE ff. and Swoboda, 19 CLF (2008), 449, 455 ff. 259 Adopting this definition: Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 59. 260 Schuon, International Criminal Procedure (2010), p. 276. 261 Rule 68 ICTY-RPE from 4 October 1994. 262 Rule 68 ICTY-RPE from 15 June 1995. 263 Jones and Powles, International Criminal Practice, 3rd ed (2003), p. 663. 264 Like, e. g., a heavy workload for prosecution teams and produced lengthy debates with the defence, delaying proceedings, or when the prosecution simply claimed that it did not possess the evidence sought by the defence, see Zappalà, 2 JICJ (2004), 620, 623.

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troduced in 2003 and 2004.265 This amendment “was intended to further the interests of justice, providing safeguards for on-going or future investigations, increasing the expediency of proceedings, and protecting the confidentiality interests of states or other sensitive sources which could be prejudiced by disclosure.”266 It now has to be in the actual knowledge of the prosecutor that material may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence, which “narrows the obligation to disclose”.267 Another amendment was – inter alia – the reference to Rule 70, which basically takes into account the conflict between confidentiality and the disclosure obligations of the Prosecutor.268 As is the case at the ICC, the Prosecution’s obligation to disclose exculpatory material before the ICTY continues during the post-trial stage and proceedings before the Appeals Chamber.269 According to the Trial Chamber in Blagojevic´, the terms “continuing obligation” should be understood to mean that the Prosecution must, on a continuous basis, search “all material known to the Prosecutor”, including all its files, in whatever form and in relation to all accused, for the existence of material which in any way tends to suggest the innocence or mitigate the guilt of the accused or may 265 “Subject to the provisions of Rule 70, (i) the Prosecutor shall, as soon as practicable, disclose to the Defence 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; (ii) without prejudice to paragraph (i), the Prosecutor shall make available to the defence, in electronic form, collections of relevant material held by the Prosecutor, together with appropriate computer software with which the defence can search such collections electronically; (iii) the Prosecutor shall take reasonable steps, if confidential information is provided to the Prosecutor by a person or entity under Rule 70 (B) and contains material referred to in paragraph (i) above, to obtain the consent of the provider to disclosure of that material, or the fact of its existence, to the accused; (iv) the Prosecutor shall apply to the Chamber sitting in camera to be relieved from an obligation under paragraph (i) to disclose information in the possession of the Prosecutor, if its disclosure may prejudice further or ongoing investigations, or for any other reason may be contrary to the public interest or affect the security interests of any State, and when making such application, the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential; (v) notwithstanding the completion of the trial and any subsequent appeal, the Prosecutor shall disclose to the other party any material referred to in paragraph (i) above.” 266 Zappalà, 2 JICJ (2004), 620, 624. 267 Ibid.; Fedorova, Equality of Arms (2012), pp. 252 ff. 268 Fedorova, ibid., pp. 254 ff. 269 Prosecutor v. Kordic ´ and Cˇerkez, No. IT-95-14/2-A, Decision on Appellant’s Notice and Supplemental Notice of Prosecution’s Non-Compliance with its Disclosure Obligation under Rule 68 of the Rules, para. 17 (February 11, 2004); Prosecutor v. Rutaganda, ICTR-96-3-A, Decision on the urgent defence motion for disclosure and admission of additional evidence and scheduling order (December 12, 2002).

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affect the credibility of prosecution evidence, and disclose the existence of such material completely to the Defence.270 It is the Prosecution which decides whether evidence is exculpatory or not.271 When it is in doubt about the application of this disclosure obligation, the it may request the Chamber to rule on the matter pursuant to Art. 67(2) ICC-Statute and Rule 83 ICCRPE.272 This may be the case if the Prosecution is uncertain whether it should consider the evidence as exculpatory, or when it is bound by contradictory duties, such as having to keep material confidential on the ba sis ofnational security interests,273 or when it has obtained material on the condition that it be kept confidential and used to generate new evidence only.274 The defence may also request the Pre-Trial Chamber or the Trial Chamber respectively to order the disclosure of exculpatory material by the Prosecution pursuant to Art. 61(3) ICC-Statute for the purpose of the confirmation hearing, and Art. 64(3)(c) ICC-Statute with a view to the trial.275 The disclosure regime distinguishes between incriminating and exculpatory evidence. Material that is both incriminating and possibly exculpatory must be disclosed pursuant Art. 67(2) ICC-Statute. The ICC’s Pre-Trial Chamber I rejected the Prosecution’s contention that the major part of exculpatory material need only be disclosed after the confirmation hearing.276 Instead, it found that this can be done only in exceptional circumstances, in order to guarantee the accused’s right to adequately prepare his or her defence and the confirmation hearing.277 Exculpatory material should be disclosed as soon as practicable.278 Ideally, this would mean that the investigation and the corresponding disclosure are completed by the time of the con-

270 Prosecutor v. Blagojevic ´ and Jokic´, IT-02-60-PT, supra note 255, S. 345, para. 29; Prosecutor v. Blaškic´, IT-95-14, Decision on the Defence Motion for Sanctions for the Prosecutor’s Failure to comply with Sub-rule 66 (a) of the Rules and the Decision of 27 January 1997 compelling the Production of all Statements of the Accused (July 15, 1998). 271 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 846. The decision about whether material is exculpatory or incriminating is one to be made by the OTP, see Jackson, 7 JICJ (2009), 17, 27. 272 Schuon, International Criminal Procedure (2010), p. 277. 273 Pursuant to Art. 72 of ICC-Statute. 274 Pursuant to Art. 54(3)(e) ICC-Statute. 275 See generally Schuon, International Criminal Procedure (2010), p. 277; Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 412. 276 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, p. 8, para. 119, 124–131. 277 Pursuant to Art. 61(3) and 67(1)(b) and (2) ICC-Statute. 278 Generally Schuon, International Criminal Procedure (2010), p. 277.

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firmation hearing,279 since otherwise the parties could be surprised by the new evidence and the proceedings delayed by the late disclosure.280 ICTY jurisprudence provides clear guidance on the form disclosure should take: the form of the exculpatory material that is disclosed must be original and not in summary form.281 However, the Prosecution can hand over the material with redactions where it thinks this is appropriate,282 bearing in mind that any redacted versions or extracted forms of exculpatory material must be “sufficiently cohesive, understandable and usable” and not taken out of context.283 Although there is no prima facie requirement, absent an order of the Trial Chamber to the effect that ICTY-Rule 68 requires the Prosecution to identify the material being disclosed to the Defence as exculpatory,284 as a matter of practice and in order to secure a fair and expeditious trial, the Prosecution should normally indicate which material it is disclosing as exculpatory.285 The same applies to Art. 67(2) ICCStatute.286 Considering the wording of Art. 67(2) ICC-Statute and Rule 68 ICTYRPE, while the former speaks of “evidence”, the latter refers to “material”. This difference has existed since July 2001, when the wording of Rule 68 ICTY-RPE was amended from “evidence” to “material”.287 Thus, at the 279 About this requirement see in more detail infra G. III. 2. c) ee) (2) (b) (aa). See also generally Ambos, 12 NCLR (2009), 543, 547; cf. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-1/06-568, Judgement on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I entitled Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence, para. 54 (October 13, 2006). 280 Ambos, 12 NCLR (2009), 543, 547; Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-1/06-T-75, Hearing Transcript, para. 5–7 (February 13, 2008). 281 Prosecutor v. Blagojevic ´ and Jokic´, IT-02-60-PT, supra note 255, S. 345, para. 24; Prosecutor v. Brd-anin, No. IT-99-36-T, 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”, para. 26 (October 30, 2002); Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 846. 282 Prosecutor v. Brd -anin, No. IT-99-36-T, ibid.; Tochilovsky, ibid., p. 847. 283 Prosecutor v. Blagojevic ´ and Jokic´, IT-02-60-PT, supra note 255, S. 345, para. 24; Prosecutor v. Brd-anin, No. IT-99-36-T, supra note 281, S. 348. 284 Prosecutor v. Krstic ´ , No. IT-98-33-A, Judgement, para. 190 (April 19, 2004). 285 Prosecutor v. Krajišnik, No. IT-00-39, Decision on Motion from Momcilo Krajisnik to compel Disclosure of exculpatory Evidence pursuant to Rule 68, p. 2 (July 19, 2001). 286 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 847. 287 See Zappalà, 2 JICJ (2004), 620, 623, 627.

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Figure 30: Disclosure of Exculpatory Material at the ICC

time when Art. 67(2) ICC-Statute was being drafted, the wording of Art. 67(2) ICC-Statute mirrored the wording of Rule 68 ICTY-RPE.288 The amendment of Rule 68 ICTY-RPE in July 2001 reflected a rather wide interpretation of the word “evidence”289 by the ICTY jurisprudence.290 Thus, it was stated, that “[t]he reference to ‘evidence’ is not restricted to material in a form that would be admissible in evidence, but includes all information in any form which falls within the quoted description”.291 According to To288 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 848. 289 Cf. Prosecutor v. Brd -anin and Talic, No. IT-99-36, Decision on Motion by Momir Talic for Disclosure of Evidence, para. 8 (June 27, 2000). 290 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 848. 291 Prosecutor v. Kordic ´ and Cˇerkez, No. IT-95-14/2, Decision on Motions to extend Time for filing Appellant’s Briefs, para. 9 (May 11, 2001); Prosecutor v. Brd-anin and Talic, No. IT-99-36, supra note 289, S. 349, para. 8; Prosecutor v. Krnojelac, No. IT-97-25-PT, Decision on Motion by Prosecution to Modify Order for Compliance with Rule 68, para. 2, 11 (November 01, 1999): “The expression ‘evidence’ is intended to include any material which may put the accused on notice that material exists which may assist him in his defence, and it is not limited to material which is itself admissible in evidence.”

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chilovsky, it includes “any information which may affect the credibility of prosecution evidence”.292 Moreover, any documents tending to establish the authenticity of exculpatory material are regarded as being exculpatory material themselves.293 The ICTY Trial Chamber in the Blaškic´ case stated: “Nonetheless, in respect of Rule 68 regarding exculpatory evidence, it is reasonable to hold that in transmitting material of this kind the Prosecution must also include any information going to the authenticity of a document so as to enable the Defence to make full use of it. Indeed, if there is other material which tends to establish the authenticity of the document, such other material itself becomes an integral part of the exculpatory evidence as being beneficial to the accused. Moreover, if the Prosecution possesses evidence which tends to suggest that some specific material being ruled on by it may not be authentic, the Prosecutor would, of course, be obliged to transmit such evidence as exculpatory evidence.”294

IV. Disclosure Obligations Independent from Trial Stages – Documents and Tangible Objects 1. U.S.A. The disclosure and inspection of documents and tangible objects is provided for in Rule 16 FRCP. The FRCP established for the first time in the federal system concrete discovery guidelines outlining what the government must afford a criminal defendant.295 Prior to the adoption of the FRCP, some lower courts took a restrictive approach, using language that cast doubt on whether there was any discovery right in a criminal case.296 At the outset, it is important to emphasise the difference between the Brady obligation to disclose exculpatory evidence and the disclosure obligation in Rule 16: Brady is a post-trial assessment of whether the prosecutor’s suppression of evidence resulted in prejudice to the defendant,297 whereas Rule 16 regulates the pre-trial production of evidence without judicial involvement in triggering the duty to disclose evidence.298 As the Su292 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 848. 293 Ibid. 294 Prosecutor v. Blaškic ´ , No. IT-95-14, Decision on the Defence Motion for Reconsideration of the Ruling to exclude from Evidence authentic and exculpatory Documentary Evidence, para. 15 (January 30, 1998). 295 Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 611; see generally about Rule 16 FRCP Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 182 ff. 296 See United States v. Rosenfeld, 57 F.2d 74 (2d Cir. 1932); United States v. Garsson, 291 F. 646 (S.D.N.Y. 1923); Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 611 with fn. 35. 297 Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999); supra F. III. 1. a) and d).

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preme Court points out with some regularity, Brady is not a rule of discovery, but one of fairness.299 Under Brady, the government’s failure to disclose exculpatory evidence is a due process violation if the defendant is unaware of the evidence until after trial.300 By contrast, Rule 16 is designed to be a “rule of discovery” (as the title suggests). Henning infers from this that “the more restrictive interpretation of the requirements for a due process violation should not necessarily carry over to interpreting the same terms in the discovery rule.”301 Rule 16(a)(l)(E) reads: “Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.”302

Again, as was the case with exculpatory evidence, the materiality test (“material to preparing the defense”) causes the most difficulties in its application.303 The burden of showing the materiality of the items lies with the defence, which must demonstrate that the items are more than potentially relevant to the case.304 However, some federal lower courts have stated materiality requires more than a showing of relevance and that the defence must also show some grounding for believing that the line of defence to which the document has relevance would be productive.305 In USA v. Liquid Sugars, Inc. and Warren D. Mooney it was stated that “[o]n the one hand, a defendant’s counsel cannot know in most cases the precise nature of all the documents held by the government. Defense counsel can reasonably identify precise categories of documents that should be available, but the defense counsel is going to be hard pressed to specifically argue materiality of individual documents. On the other hand, it is equally clear that the discovery rules do not require ‘open file’ discovery with the defendant being allowed to browse 298

Rule 16 FRCP; Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 613. See Kyles v.Whitley, 514 U.S. 419, 491 (1995); Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987); Strickler, 119 S. Ct. 1936, 1948; see also Brady, 373 U.S. 87; Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 613, 614. 300 See Brady, 373 U.S. 83. 301 Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 613, 614. 302 Italics added. 303 Saltzburg and Capra, American Criminal Procedure, 9th ed (2010), p. 980. 304 Schuon, International Criminal Procedure (2010), p. 18. 305 See e. g., United States v. Ross, 511 F.2d 757 (5th Cir.1975); generally Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1235. 299

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at will through the prosecution files. Moreover, a good deal of inculpatory evidence will have already been turned over as evidence that the government will be using in its case-in-chief. The problem here is to define ‘materiality’ in such a way that it does not merely duplicate other discovery information definitions. Rule 16(a)(1)(C) was not intended to impose a completely redundant discovery obligation.”306

The question is whether “material to the preparation” of Rule 16(a)(1)(E) means the same than in Brady? This cannot be the case since, as I have outlined above, Brady concerns a post-trial due process analysis and Rule 16 refers to pre-trial disclosure. In this regard, the words of Henning are instructive: “Discovery is fundamentally different from determining whether exculpatory evidence was material to the outcome of a trial because discovery is a pre-trial procedure designed to secure items that will assist the defendant in crafting a defense. While Brady deals with the effect of a suppression of evidence on the outcome of the proceeding,307 a trial court considering a discovery request under Rule 16(a)(1)(C) should look at whether the records will be helpful to the defendant. Viewed in context, the materiality requirement should not require the same high threshold for a discovery request as required to prove a due process violation. [. . .] Discovery can aid in raising that defense to the charges, yet transporting Brady’s materiality standard to the pre-trial stage would make discovery contingent on showing that the defendant will come close to winning the case. At the discovery phase of a case, the defendant does not have the evidence but is seeking access to it, so a court cannot make the kind of post-hoc assessment of the discovery motion that it does in reviewing a Brady claim.”308

2. UK The right to inspect documents and tangible objects in England and Wales is very different to the law in the United States. The reason seems to be twofold: first, as I have outlined, there has not been a codification of disclosure rules in England for a long time. Instead, disclosure obligations came from Common Law.309 Second, unlike many other legal systems of the Common Law tradition, in England, the police are involved in the charging process and thus play an important role with respect to disclosure and inspection.310 306 USA v. Liquid Sugars, Inc. and Warren D. Mooney, CR S-93–0302 DFL (September 21, 1994), 471, citing Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 1100–01, 22 L.Ed.2d 302 (1969). 307 See Brady, 373 U.S. 83. 308 Henning, 15 Ga. St. U. L. Rev. (1998–1999), 601, 622, 623. 309 See supra F. III. 2. a). 310 See supra E. IV. 2. c) bb) (1) and F. III. 2. c).

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The right to inspection of certain documents was first articulated outside of the Common Law by the Attorney General’s Guidelines for the Disclosure of “Unused Material” to the Defence of 1982.311 Para. 5 reads: “If the unused material exceeds about 50 pages or is unsuitable for copying, the defence solicitor should be given an opportunity to inspect it at a convenient police station or, alternatively, at the prosecuting solicitor’s office, having first taken care to remove any material of the type mentioned in para. 6. If, having inspected it, the solicitor wishes to have a copy of any part of the material, this request should be complied with.”312 When the CPIA 1996 was introduced, it adopted the Common Law inspection regime to a large extent, by allowing the prosecutor either to give a copy of the material to the accused, or, if in the opinion of the prosecutor, copying was not practicable or desirable, to provide facilities for an inspection of the material.313 Para. 10.3. of the Code of Practice of the CPIA 1996314 states: “The disclosure officer must disclose material to the accused either by giving him a copy or by allowing him to inspect it. If the accused person asks for a copy of any material which he has been allowed to inspect, the disclosure officer must give it to him, unless in the opinion of the disclosure officer that is either not practicable (for example because the material consists of an object which cannot be copied, or because the volume of material is so great), or not desirable (for example because the material is a statement by a child witness in relation to a sexual offence).”

However, the establishment of such a “disclosure officer” (and a deputy disclosure officer), together with the role of the police, is the second reason why the inspection law of England and Wales differs from that of other Common Law legal systems.315 Thus, the (state’s) obligation to disclose certain material (or allow inspection of it) is not only the responsibility of the prosecutor but also of the investigator and disclosure officer respectively.316 The disclosure officer may be a police officer or a civilian.317 In order to perform the duties under the Code of Practice properly, the disclosure officer will need to become familiar with the facts and background to the case. The investigator(s) and the officer in charge of the investigation (where these roles are performed by a different individual from the disclosure officer) must provide assistance to the disclosure officer in performing this function.318 The disclosure officer has several functions, he is inter 311 312 313 314 315 316 317

(1982) 74 Cr App R 302. Printed in Niblett, Disclosure (1997), Appendix 1. Niblett, ibid., p. 106. Established according to s. 23 of the CPIA 1996. CPS Disclosure Manual, para. 3.1. CPS Disclosure Manual, para. 4.1. CPS Disclosure Manual, para. 3.10.

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alia “required to create schedules of relevant unused material retained during an investigation and submit them to the prosecutor together with certain categories of material”.319 The law applying to the inspection process changed as a result of the establishment of the disclosure officer role and the investigator’s involvement in the disclosure and inspection process. The CPIA 1996, as amended by the CJA 2003, does not establish a right for the defence to inspect certain documents similar to the right provided for in the Attorney General’s Guidelines of 1982. Neither does such a right exist in the amended Attorney General Guidelines of 2000 and 2005. One reason for this could be the complaints of the police described by John Niblett: “A major complaint of the police has been the drain on resources caused by photocopying demands, but this is an inevitable consequence of the development of the law. Illustrations of the scale of the problem were highlighted in an article in the Daily Telegraph, 23 March 1994, which reported that six police officers had worked full-time for two years preparing and copying 20 tons of documents for delivery to lawyers representing the accused in a pending child murder case. It further reported that in relation to the prosecution of Asil Nadir (who later absconded), 11 separate agencies demanded full copies of the unused material in the case. With each copy running to more than a million documents, the cost of copying, ultimately to be borne by the SFO, came close to £2 million.”320

Thus, today, the decision of whether and when to grant the defence access to certain documents is not constrained by certain requirements (such as the number of pages of a document), but lies with the discretion of the prosecutor. This is illustrated by s. 3(3)(b) CPIA 1996: “Where material consists of information which has been recorded in any form the prosecutor discloses it for the purposes of this section [. . .] if in the prosecutor’s opinion that is not practicable or not desirable, by allowing the accused to inspect it at a reasonable time and a reasonable place or by taking steps to secure that he is allowed to do so.”321 Furthermore, the defence’s right to inspect large scales of unused material that has not been examined by the disclosure officer was not taken into account in the latest Attorney General’s Guidelines of 2005: while the Attorney General’s Guidelines of 2000 granted the defence a right of inspection if the unused material was too large to inspect and schedule for the disclosure officer, para. 27 of the Attorney General’s Guidelines 2005 eliminated this right to inspect unused material even if it has not been inspected or scheduled by the disclosure officer, probably to avoid “unbridled defence fishing expeditions or ‘blan318 319 320 321

CPS Disclosure Manual, para. 3.10. CPS Disclosure Manual, para. 3.1. Niblett, Disclosure (1997), p. 105. Emphasis added.

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ket disclosure’”.322 Instead, para. 27 confers on the prosecutor “a discretion, in relation to any prosecution where the unused material is substantial and/ or otherwise within the meaning of the paragraph, to determine what method of abridged inspection and concomitant method of scheduling to employ.”323 Stricter obligations to allow inspection by the accused are laid down by the CPS Disclosure Manual. According to para. 12.21, “the prosecutor is responsible for ensuring that effective disclosure of material falling to be disclosed under the CPIA 1996 is made to the accused. Disclosure to the accused can be achieved by either copying the item, or where this is not practicable or desirable, by allowing the accused to inspect the item.”324 Furthermore, the manual explicitly describes one of the duties of the disclosure officer, being that he must, “where the prosecutor requests the disclosure officer to disclose any material to the accused, give the accused a copy of the material or allow the accused to inspect it.”325 Where material is to be disclosed to the defence under the CPIA 1996, “supervised access to a terminal screen may be appropriate. Material may be supplied on a disk where this is acceptable to the accused and the disclosure officer.”326 3. ICC ICC-Rule 77 reads: “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.”

This Rule is identical to Rule 66(B) ICTY-RPE.327 Unfortunately, the ICC-RPE do not define the term “material to the preparation of the defence”. However, since Rule 77 ICC-RPE is similar to Rule 66(B) ICTYRPE, and Rule 66(B) itself resembles Rule 16(a)(1)(E) FRCP,328 the inter322

Cf. Corker and Parkinson, Disclosure (2009), p. 55. Ibid., p. 56. 324 CPS Disclosure Manual, para. 12.21. 325 CPS Disclosure Manual, para. 3.9. 326 CPS Disclosure Manual, para. 5.22. 327 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 856. 328 Prosecutor v. Delalic ´ , No. IT-96-21-PT, Decision on the Motion by the Accused Zejnil Delalic´ for the Disclosure of Evidence, para. 6 (September 26, 1996). 323

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pretation of the latter rule in the case law appears to be helpful.329 The ICC Appeals Chamber confirms this approach.330 In Mucic´ et al., the ICTY Trial Chamber mainly cites US law to interpret “material to the preparation”: “The significant jurisprudence in the United States federal courts on the scope of ‘materiality’ demonstrates that it is generally accepted that to be material, the requested information must have ‘more than . . . [an] abstract logical relationship to the issues.’ See, e. g. United States v. Ross, 511 F.2d 757, 762 (U.S. Ct. App. 5th Cir.), cert. denied 423 U.S. 836 (U.S. Supreme Court 1975). The requested evidence must be ‘significantly helpful to an understanding of important inculpatory or exculpatory evidence’; it is material if there ‘is a strong indication that [. . .] it will ‘play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.’ United States v. Jackson, 850 F. Supp. 1481, 1503 (U.S. Dist. Ct. D. Kan. 1994), quoting United States v. Lloyd, 992 F.2d 348, 351 (U.S. Ct. App. D.C. Cir. 1993).”331

Moreover, according to the ICTY Trial Chamber in Naletilic´ and Martinovic´, ICTY Rule 66(B) and therefore ICC Rule 77, “requires a prima facie showing of materiality to the preparation of the Defence of the evidence requested.”332 The defence has to specifically identify evidence material to the preparation of the defence that is being withheld by the Prosecutor.333 That means that the defendant has to do “more than generally asking for ‘helpful evidence’ or ‘relevant evidence,’ or some other such broadly phrased request.”334 Consequently, the ICC Appeals Chamber prefers a broad reading of “material to the preparation” and rejects the narrow reading of the ICC Trial Chamber in Lubanga: “[A]ccording to the Trial Chamber’s view, only material that relate to issues which would either directly undermine the ‘Prosecution case’ or support a line of argument of the defence are material to the preparation of the defence. [. . .] The Appeals Chamber finds that the Trial Chamber interpreted rule 77 of the Rules of 329

See supra F. III. 1. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-1433, Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, para. 78 (Judge Pikis and Judge Song dissenting) (July 11, 2008). 331 Prosecutor v. Delalic ´ , No. IT-96-21, supra note 328, S. 355, para. 7. 332 Prosecutor v. Naletilic ´ and Martinovic´, No. IT-98-34-T, Decision on Joint Motions for Order Allowing Defence Counsel to Inspect Documents in the Possession of the Prosecution, p. 3 (September 16, 2002). 333 Prosecutor v. Delalic ´ , No. IT-96-21, supra note 328, S. 355, para. 11. 334 USA v. Liquid Sugars, Inc. and Warren D. Mooney, CR S-93-0302 DFL (September 21, 1994), 471. 330

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Procedure and Evidence too narrowly because it excluded objects which, while not directly linked to exonerating or incriminating evidence, may otherwise be material to the preparation of the defence. The wording of rule 77 of the Rules of Procedure and Evidence does not suggest that the term ‘material to the preparation of the defence’ should be construed as narrowly as the Trial Chamber did. Rather, the term should be understood as referring to all objects that are relevant for the preparation of the defence.”335

Thus, while the ICC Trial Chamber adopts an approach that recalls s. 3(1)(a) CPIA 1996,336 the ICC Appeals Chamber explicitly rejects this approach and has regard to the ICTY, referring not only to the broad materiality test of the US law but also to the English law prior to the introduction of the CPIA 1996 and the CJA 2003. In Mucic´ et al., the ICTY Trial Chamber explains: “In the British system, the test of materiality was adopted by the Court of Appeal in R v. Keane, 99 CR. App. R.1, which similarly defines disclosable matter as that which can be seen on a sensible appraisal by the prosecution; (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real, as opposed to fanciful, prospect of providing a lead on evidence which goes to (1) or (2).”337

It is most interesting that one reason for the introduction of the CPIA 1996 in England was to reject the (broad) approach in R. v Keane338 – an approach that the ICTY Appeals Chamber obviously prefers. Therefore, in a later decision the ICC Trial Chamber stated, in line with the Appeals Chamber, that “information that undermines or supports the evidence, or the credibility, of proposed defence witnesses falls within the scope of Rule 11 of the Rules.”339 Thus, impeachment evidence falls within Rule 77,340 which recalls the US Supreme Court cases of Brady and Giglio.341 According to the ICC Appeals Chamber, even material that is not directly related to the case but tends to explain the overall situation in a conflict scenario may be “material” in the sense of Rule 77.342 335 Prosecutor v. Lubanga, No. ICC-01/04-01/06-1433, supra note 330, S. 356, para. 76, 77. 336 The prosecution is under an “initial duty” in advance of the trial to disclose to the accused any prosecution material which has not previously been disclosed to him and which “might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.” 337 Prosecutor v. Delalic ´ , No. IT-96-21, supra note 328, S. 355, para. 7. 338 Supra F. III. 2. a) with fn. 189, S. 335 ff. 339 See Prosecutor v. Thomas Lubanga Dyilo, No. ICC-0l/04-01/06-2624, Decision on the Scope of the Prosecution’s Disclosure Obligations as Regards Defence Witnesses, para. 18 (November 12, 2010). 340 Safferling, International Criminal Procedure (2012), p. 355. 341 See supra F. III. 1. a).

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Although the broad interpretation of “material to the defence” is widely accepted, this interpretation could create problems when it comes to inculpatory evidence. Some authors content that a broad interpretation of “material to the preparation” basically makes Rule 121(3) ICC-RPE (which is applicable to the confirmation hearing) meaningless,343: “The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing.” It is doubtful that the drafters intended to require only a “list of evidence” favouring a broad interpretation of “material to the defence” at the same time.344 It once again demonstrates the difficult status of the confirmation hearing and the need for a comprehensive and consistent disclosure and inspection approach. Another departure from Rule 66(B) ICTY-RPE is the (non-)requirement of a request by the defence. Because Rule 66(B) ICTY-RPE permits the inspection of material only “on request”, a previous draft of ICC Rule 77 adopted such a requirement.345 However, a strong view emerged during debates that it was inappropriate to require a request from the defence to “trigger” this right.346 Moreover, although Rule 77 ICC-RPE does not address the question of timing, i. e. when an inspection of certain material should be granted, the ICC Trial Chamber in Lubanga states: “With regard to the timing of the inspection, the single judge notes that rule 77 of the Rules, unlike rule 76, does not provide for any specific time-limit. However, the single judge considers that both rules 76 and 77 seek to satisfy the ultimate interest of the Defence to be informed as soon and as fully as possible of 342 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-1432, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, para. 76–82 (July 11, 2008); see also Safferling, International Criminal Procedure (2012), p. 356. 343 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 411. 344 Schuon, International Criminal Procedure (2010), p. 278. 345 Preparatory Commission for the International Criminal Court, Proceedings of the Preparatory Commission at its first session (16–26 February 1999), PCNICC/ 1999/L.3/Rev.1, 2 March 1999, Rule 5.16(a): “The Prosecutor shall on request permit the defence to inspect any books, documents, photographs and tangible objects in his or her possession or control 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 or were obtained from or belonged to the person.” 346 Preparatory Commission for the International Criminal Court, Revised discussion paper proposed by the Coordinator: Part 5 of the Statute: Rules 5.1 to 5.4 Decision of the Prosecutor on the initiation of an investigation, PCNICC/1999/ WGRPE/RT.6, 5 August 1999, Rule 5.29; Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), pp. 403, 410, 411.

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the Prosecution’s case to be presented at the confirmation hearing. On the issue of materials which the Prosecution does not intend to present at the confirmation hearing, rule 77 of the Rules, like article 67 (1) (b) of the Statute, seeks to ensure that the Defence is in a position to prepare adequately for the confirmation hearing.”347

V. Disclosure Obligations Independent from Trial Stages – Prior Statements of the Prosecution Witnesses and Names of Witnesses 1. U.S.A. a) Witness Lists Neither the FRCP nor the U.S. Code require the prosecution to disclose the names of their (non-expert) trial witnesses,348 except in narrow circumstances, e. g. in capital or treason cases.349 The absence of a rule governing 347 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 116. 348 See Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1536. 349 See 18 U.S.C. § 3432 (“A person charged with treason or other capital offense shall at least three entire days before commencement of trial, excluding intermediate weekends and holidays, be furnished with a copy of the indictment and a

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disclosure of witness lists was indeed intended. In 1974, the Supreme Court approved an amendment to Rule 16 FRCP that would have provided pretrial disclosure to a defendant of the names of government witnesses subject to the government’s right to seek a protective order. This proposed amendment of Rule 16 was sharply criticised by both prosecutors and defence counsel. The prosecutors feared that pre-trial disclosure of prosecution witnesses would result in harm to witnesses.350 The defence counsel argued that a defendant could not constitutionally be compelled to disclose his witnesses.351 Thus, the 1975 version of the FRCP did not contain such a requirement and the FRCP of 1992 was amended only to require expert witness disclosures.352 By contrast, the local rules of many U.S. jurisdictions generally require disclosure of witness lists before trial.353 These States include Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, Oklahoma, Oregon, Tennessee, and Utah.354 Most of those states were guided by § 2.1.(a)(ii) of the ABA Standards for Criminal Justice: Discovery and Trial by Jury355: “The prosecution should, within a specified and reasonable time prior to trial, disclose to the defense the following information and material and permit inspection, copying, testing, and photographing of disclosed documents or tangible objects: [. . .] The names and addresses of all persons known to the prosecution to have information concerning the offense charged, together with all written statements of any such person that are within the possession or control of the prosecution and that relate to the subject matter of the offense charged. The prosecution should also identify the persons it intends to call as witnesses at trial.”356 list of the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness, except that such list of the veniremen and witnesses need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.” See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 332. 350 Rule 16 FRCP, Notes of Committee on the Judiciary, House Report No. 94– 247; 1975 Amendment. 351 Ibid. 352 See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 333. 353 Ibid., p. 334 and Ch. 11. 354 See Advisory Committee Note, House Document 93–292, at 60; Rule 16 FRCP, Notes of Committee on the Judiciary, House Report No. 94–247; 1975 Amendment. 355 3rd ed (1996). 356 About this pattern and disclosure of witness lists Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1236.

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This broad statement, “all persons known to the prosecution to have information”, included in the third edition of the ABA Standards357 was even adopted by a few states such as Alaska.358 In those jurisdictions that do not have such provisions, the trial court is generally held to have discretionary authority to order pre-trial discovery of the names of all or some of those witnesses.359 In United States v. Jackson the Supreme Court stated: “18 U.S.C. 3432 and Proposed Rule 16(a)(1)(E) indicate that to give the defendant a right to demand a list of witnesses would be inconsistent with the Rules, but they do not in any manner suggest that the court does not possess the authority to order that such a list be disclosed. Thus, the present rule is no bar to the order entered here, and the courts that have considered the issue before us have recognized that the district court possesses, in the exercise of its inherent power to promote the proper administration of criminal justice, the authority to require the Government to disclose its list of witnesses to be called at trial.”360

The defendant may ask the Court to order the prosecution to provide a witness list, in some jurisdictions however only upon a strong showing of special need.361 If the defendant does, the court “must balance the government’s reasons for wanting to keep the information to itself against the defendant’s specific showing of need for the list.”362 Although there is no established set of criteria of when to order such a witness list, some cases have enumerated a variety of factors:363 In U.S. v. Kaplan,364 for instance, the court noted that: 357 The Second Edition Standards required the prosecution to disclose the “names and addresses of witnesses”, see ABA Standards for Criminal Justice: Discovery and Trial by Jury, 2nd ed (1980), Standard 11-2.1(a)(i); see generally Swoboda, Verfahrens- und Beweisstrategien (2013), p. 192 ff. 358 Alaska R.Crim.P. 16(b)(1)(i); Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1236. 359 Kamisar, LaFave and Israel, ibid. 360 United States v. Jackson, 508 F.2d 1001 (7th Cir. 1975), at 1006 citing United States v. Richter, 488 F.2d 170, 173–174 (9th Cir. 1973); United States v. Baum, 482 F.2d 1325, 1331 (2d Cir. 1973); United States v. Jordan, 466 F.2d 99, 101 (4th Cir. 1972), cert. denied 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973); United States v. Moceri, 359 F.Supp. 431, 434 (N.D.Ohio), mandamus denied without reaching merits sub nom., United States v. Battisti, 486 F.2d 961 (6th Cir. 1973); United States v. Leichtfuss, 331 F.Supp. 723, 732 (N.D.Ill.1971). 361 See Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 334; Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1236. 362 United States v. Schwimmer, 649 F.Supp. 544, 550 (E.D.N.Y. 1986), citing United States v. Cannone, 528 F.2d 296, 301–02 (2d Cir.1975). 363 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), pp. 335– 336. 364 United States v. Kaplan, No. 03-CR-833 (DAB), 2003 WL 22880914, at 20 (S.D.N.Y. Dec. 5, 2003), citing United States v. Turkish, 458 F.Supp. 874, 881

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“[i]n evaluating the materiality and reasonableness of a request for a witness list, courts in this Circuit have evaluated whether (1) the offense alleged in the indictment involves a crime of violence, (2) the defendant has been arrested or convicted for crimes involving violence, (3) the evidence in the case largely consists of testimony relating to documents (which by their nature are not easily altered), (4) there is a realistic possibility that supplying witnesses’ names prior to trial will increase the likelihood that the witnesses will not appear at trial, or will be unwilling to testify at trial, (5) the Indictment alleges offenses occurring over an extended period of time, making preparation of the defendant’s case complex and difficult, (6) the defendant has limited funds with which to investigate and prepare his defense.”

In U.S. v. Madeoy, the court remarks: “Preparation for trial, effective cross-examination, expediency of trial, possible intimidation of witnesses, and the intrinsic reasonableness of the request are among the factors a court may consider in deciding whether to exercise its discretion to allow discovery of the witness list.”365 b) Witness Statements The circumstances of disclosure of prior recorded statements of the prosecution witnesses to the defence are highly disputed in the United States.366 In Jencks v. United States,367 the Supreme Court rejected the notion that pre-trial statements should only be made available where the defence could show a probable inconsistency between the witness’ pre-trial statements and his in-court testimony.368 The Court recognised that it would be very difficult for a defendant to prove that the statement was inconsistent without having access to the statement.369 Emphasising the importance of witness statements for the defence, the Court remarked: “Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls (S.D.N.Y.1978); United States v. Falkowitz, 214 F.Supp.2d 365, 394 (S.D.N.Y.2002); United States v. Washington, 947 F.Supp. 87, 89 (S.D.N.Y.1996). 365 United States v. Madeoy, 652 F.Supp. 371, 376 (D.D.C. 1987), citing United States v. Opager, 589 F.2d 799, 804 (5th Cir.1979); United States v. Sclamo, 578 F.2d 888, 890 (1st Cir.1978); United States v. Cannone, 528 F.2d 296, 302 (2d Cir.1975). 366 Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1237. 367 353 U.S. 657 (1957). 368 Cf. Jencks v. United States, 353 U.S. 657, 666, 667 (1957): “Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense.” 369 Saltzburg and Capra, American Criminal Procedure, 9th ed (2010), p. 985.

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treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.”370

It is important to note, though, that the rule of Jencks is not derived from the constitution, but the U.S. Supreme Court exercised its supervisory power to require disclosure during the trial of the prior statements of prosecution witnesses.371 As Cary, Singer and Latcovitch point out, later cases reinforced the notion that Jencks was not based on constitutional protections.372 Because the Jencks decision was not derived from the U.S. constitution, it was open to the U.S. congress to modify the Jencks requirements, which it did in 1958, just one year after U.S. v. Jencks. The Jencks Act373 adopted the core of the Jencks decision, but prohibited its possible expansion by imposing sharp restrictions on the timing of the disclosure of witness statements.374 18 U.S.C. § 3500(a) reads: “In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” Furthermore, the Act restricted the potential scope of the witness’ statements subject to disclosure through its definition of a “statement”: “The term ‘statement’, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means (1) a written statement made by said witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.”375

Over 20 years after the Jencks Act, Rule 26.2. FRCP became effective on 1 December 1980, which “largely tracks the provisions of the Act, with 370

Jencks v. United States, 353 U.S. 657, 667 (1957). Saltzburg and Capra, American Criminal Procedure, 9th ed (2010), p. 985; Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 192. 372 Cary, Singer and Latcovitch, ibid., citing United States v. Augenblick, 393 U.S. 348, 356 (1969). 373 18 U.S.C. § 3500. 374 Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1238; Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 193; Smith, 61 Vand. L. Rev. (2008), 1935, 1947 ff. 375 18 U.S.C. § 3500(e). 371

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the exception that the Rule requires defense production of defense witness statements as well.”376 This development was influenced by the Supreme Court’s decision in United States v. Nobles, as the notes of the Advisory Committee on Rule 26.2. (1979) show: “[R]ule 26.2 provides for production of the statements of defense witnesses at trial in essentially the same manner as is now provided for with respect to the statements of government witnesses. Thus, the proposed rule reflects these two judgments: (i) that the subject matter – production of the statements of witnesses – is more appropriately dealt with in the criminal rules; and (ii) that in light of United States v. Nobles, 422 U.S. 225 (1975), it is important to establish procedures for the production of defense witnesses’ statements as well. The rule is not intended to discourage the practice of voluntary disclosure at an earlier time so as to avoid delays at trial.”377

According to Rule 26.2(a) FRCP, “[a]fter a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony.”378 This, most interestingly, also requires disclosure of statements in the possession of either party when the witness is called not by the prosecution nor the defence “but by the court pursuant to the Federal Rules of Evidence.”379 Rule 26(2)(f) FRCP again defines the meaning of a statement, serving as one component of when disclosure is required under Rule 26.2 FRCP and the Jencks Act. Accordingly, a witness’s “statement” means: (1) a written statement that the witness makes and signs, or otherwise adopts or approves;380 (2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording;381 or (3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.382 Saltzburg and Capra, American Criminal Procedure, 9th ed (2010), p. 986. Available at (last visited 9 October 2012); see also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 192. 378 Emphasis added. 379 Notes of the Advisory Committee on Rule 26.2. (1979) (“Present law does not deal with this situation, which consistency requires be treated in an identical manner as the disclosure of statements of witnesses called by a party to the case.”). 380 Jencks Act: “[. . .] a written statement made by said witness and signed or otherwise adopted or approved by him [. . .].” (Footnote added). 381 Jencks Act: “[. . .] a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement [. . .].” (Footnote added). 376 377

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Because Rule 26.2 incorporates the relevant provisions of the Jencks Act without substantive change, there is actually no need to refer to the Jencks Act anymore.383 Rule 26.2(e) FRCP provides the appropriate sanction for disclosure violations of Rule 26.2 FRCP: “If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.”384 It is disputed, whether this disobedience by the government has to be intentionally done or not. According to the Jencks Act, “[i]f the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”385 Therefore, some courts have required a certain degree of intent.386 For instance, the United States Court of Appeals held in U.S. v. Taylor: “The District Court is limited to these harsh remedies of subsection (d) only when the government ‘elects’ not to comply; in other words, only when the government intentionally or consciously chooses to ignore the disclosure requirements under the statute. When there is no bad faith or motive to suppress, and when any prejudice is curable at trial, the government has not ‘elected not to comply’ and subsection (d) does not control. When the violation occurs through 382 Jencks Act: “[. . .] a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury [. . .].” (Footnote added). 383 See, e. g., United States v. Smith, 31 F3d 1294, 1301 n. 6 (4th Cir. 1994): “A virtually identical provision appears in Rule 26.2 of the Federal Rules of Criminal Procedure. The Rule, which became effective in 1980, was intended to replace the provisions of the Jencks Act dealing with discovery of prior statements of testifying witnesses, on ‘the notion that provisions which are purely procedural in nature should appear in the Federal Rules of Criminal Procedure rather than in Title 18.’ Advisory Committee Note to Fed.R.Crim.Proc. 26.2; see 2 C. Wright, Federal Practice and Procedure: Criminal Sec. 417, at 566 (1982). But Congress has never repealed the Jencks Act, and both courts and litigants continue to rely upon it in dealing with defense motions for production of the prior statements of government witnesses. Because the motion at issue here was couched in terms of the Jencks Act, rather than Rule 26.2, and the court below analyzed it under the Act rather than the Rule, we do so as well. We note, however, that because Rule 26.2 incorporates the relevant provisions of the Jencks Act without substantive change, see id. Sec. 437, at 589, the result here would be the same if analyzed under the Rule rather than the Act.” 384 See also United States v. Well, 572 F.2d 1383, 1385 (9th Cir. 1978). 385 18 U.S.C. § 3500(d), emphasis added. 386 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), pp. 214– 215.

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negligence or oversight, the trial court has the discretion to formulate remedies as justice requires under the circumstances of the case.”387

A contrary approach was taken by the United States Court of Appeals in U.S. v. Montgomery: “[W]e have refused to fashion a good faith exception to the requirements of the Jencks Act; we consider results, not motive. [. . .] Unless a nondisclosure was harmless error, reversal is required even where the prosecution has acted in good faith.”388 The states are divided between those that require discovery, those that make discovery discretionary and those that prohibit court ordered discovery of such statements.389 2. UK The CPIA 1996 (as amended by the CJA 2003) places a statutory duty on those charged with investigating offences to record and retain information,390 and the supplemented Code of Practice makes detailed provision for the retention of crime reports, final versions of witness statements (draft versions if inconsistent), interview records and tapes and forensic and expert evidence, as well as material calling into question the veracity of a witness.391 A witness statement in England and Wales is defined as “a document recording the evidence of a person, which is signed by that person to confirm that the contents of the statement are true.”392 There are statements provided voluntarily in compliance with s. 9 of the Criminal Justice Act 1967 and compelled statements taken under section 20(2)(j) of the Health and Safety at Work etc. Act 1974.393 The disclosure of witness statements in United States v. Taylor, 13 F.3d 986, 990 (6th Cir. 1994), citing United States v. Pope, 574 F.2d 320, 325–26 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 195, 58 L.Ed.2d 179 (1978); see also United States v. Riley, 189 F.3d 802, 806 (9th Cir. 1999); United States v. Moore, 452 F.3d 382389 (5th Cir. 2005). 388 United States v. Montgomery, 210 F.3d 446, 451 (2nd Cir. 1997), citing United States v. Beasley, 576 F.2d 626, 627 (5th Cir. 1978) and United States v. McKenzie, 768 F.2d 602, 609 (5th Cir. 1985). 389 Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 1237 with further references. 390 See part II of the Act. 391 See, e. g., para. 5.4 Code of Practice; cf. also Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-075. 392 Enforcement Guide of the Health and Safety Executive, Witness Statements, para. 1 available at , last visited 25 September 2013. 393 “The powers of an inspector referred to in the preceding subsection are the following, namely [. . .] to require any person whom he has reasonable cause to be387

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England and Wales depends very much on the classification of the offence and on whether the prosecution intends to use those witness statements. a) Witness Statements the Prosecution Intends to Use aa) Crown Court (Indictable Offences Only) With regard to the most serious cases that are tried in the Crown Court, the prosecution will present a “bundle” of witness statements after the case has been transferred or committed from a local Magistrates’ Court to the Crown Court.394 Evidence not disclosed in this manner may not be admissible at trial.395 Written versions of all witness statements or other evidence that the prosecution intends to adduce at court are disclosed.396 Both format and content of those Crown Court briefs are described by Tyrer and Lawton: “The brief should be marked on the outside page with ‘Legal Aid’, or space should be left for a brief fee, which will be agreed with counsel’s clerk after delivery of the brief. The normal convention is that the brief starts with the list of the contents. These should be prepared sequentially, and the normal order is as follows: (a) draft indictment; (b) CPS summary of the issues in the case; (c) committal bundle, consisting of the prosecution’s witness statements and exhibits; (d) the prosecution’s schedule of unused material which, in the opinion of the prosecutor, might undermine the prosecution’s case, or a statement that there is no such material, pursuant to section 3(1) of the Criminal Procedure and Investigations Act (CPIA) 1996; (e) list of client’s previous convictions; (f) copies of prosecution plans, photographs, videos, etc.; (g) the client’s custody record or records; (h) tapes of interviews in the police station; (i) any notices of additional evidence served by the CPS; (j) the defence case – client’s own proof of evidence; (k) the client’s observations on the prosecution’s evidence; (l) the client’s defence statement, served pursuant to section 5(5) of the CPIA 1996 (in a complex case, this might be prepared in draft and left to be settled by counsel at a conference); (m) the statements of fact by the witnesses for the defence; (n) the character statements for the defence, if any; (o) the statements by the expert witnesses for the defence, together with exhibits, plans, lieve to be able to give any information relevant to any examination or investigation under paragraph (d) above to answer (in the absence of persons other than a person nominated by him to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers.” 394 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259; Hooper and Ormerod, general eds., Blackstone’s Criminal Practice 2011 (2011), D.10.15, D.10.16.; Leng, in: McConville and Wilson, Handbook of the Criminal Justice Process (2002), p. 205, 208. 395 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259. 396 Leng, in: McConville and Wilson, Handbook of the Criminal Justice Process (2002), p. 205, 208.

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photographs, etc, if any; (p) relevant correspondence with the CPS, witnesses, etc.; (q) a copy of the legal aid order.”397

Moreover, following the standardisation of police-CPS files, the police supplied an additional copy of key witness statements to the CPS.398 In most cases, the CPS provides the additional copy of the key witness statements to the defence upon request, or, if no request is made or the accused is not represented, it is provided at trial.399 bb) Magistrates’ Court (Offences Either Way and Summary Offences) As in the Crown Court, in the Magistrates’ Court there is now a similar requirement of giving “initial details” to the defence. This has not always been the case. In fact, until very recently, there existed a difference between offences triable either way and summary offences in the Magistrates’ Court. With regard to the former, a requirement of advance notice was contained in the Magistrates’ Courts (Advance Information) Rules 1985,400 before those rules were superseded by part 21 of the Criminal Procedure Rules 2005 (CPR 2005). According to Rule 21.1 CPR 2005, this part of the rules applies “in respect of proceedings against any person (‘the accused’) for an offence triable either way.”401 In more detail, Rule 21.3(1) CPR 2005402 provides: “If, in any proceedings in respect of which this Part applies, either before the magistrates’ court considers whether the offence appears to be more suitable for 397

Tyrer and Lawson, Criminal Litigation (2000), pp. 296, 297. Epp, Building on the Decade of Disclosure (2001), p. 91 with fn. 3. 399 Ede and Shepherd, Active Defence (1998), p. 156; Epp, Building on the Decade of Disclosure (2001), p. 57 (“Upon a request from the defence (r 3), it was to provide the defence, with a summary of the prosecution’s case, or copies of the witness statements that were to be adduced in evidence. This step was to be completed as soon as practicable and before the decision as to mode of trial (r 4). The prosecution retained the discretion to withhold the disclosure of material that may have led to witness intimidation or interference with the course of justice (r 5). Failure by the prosecution to comply with the duty imposed by the rules provided grounds for an adjournment, unless the court was satisfied that the accused would not be substantially prejudiced (r 7). It was no surprise that most prosecutors opted to fulfil the disclosure obligation by providing summaries rather than copies of witness statements.”). 400 SI 1985/601; see Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259; Epp, Building on the Decade of Disclosure (2001), pp. 57, 169. 401 Formerly rule 2 of the Magistrates’ Courts (Advance Information) Rules 1985. 402 Formerly rule 4 of the Magistrates’ Courts (Advance Information) Rules 1985. 398

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summary trial or trial on indictment or, where the accused has not attained the age of 18 years when he appears or is brought before a magistrates’ court, before he is asked whether he pleads guilty or not guilty, the accused or a person representing the accused requests the prosecutor to furnish him with advance information, the prosecutor shall, subject to rule 21.4, furnish him as soon as practicable with either (a) a copy of those parts of every written statement which contain information as to the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings; or (b) a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings.”

A definition of “written statement” was laid down in 21.3(2): “In paragraph (1) above, ‘written statement’ means a statement made by a person on whose evidence the prosecutor proposes to rely in the proceedings and, where such a person has made more than one written statement one of which contains information as to all the facts and matters in relation to which the prosecutor proposes to rely on the evidence of that person, only that statement is a written statement for purposes of paragraph (1) above.”403 In summary cases, the situation with regard to advance information was very different. In those less serious cases, there was no legal requirement for the defence to be advised of the prosecution case prior to trial.404 Although the High Court has held that this rule does not breach either the Common Law principle of natural justice or the right to a fair trial under the ECHR,405 many authors saw in this a breach of Art. 6 ECHR, which has been held to require equality of arms, since cases may arise in which a failure to give the defendant advance notice of the case against him may prevent a trial being fair.406 Therefore, the CPS established a general practice to disclose at least a summary of the prosecution evidence.407 In light of this, the Attorney General’s Guidelines 2005 addressed this problem.408 According to para. 57, “[t]he prosecutor should, in addition to complying with the obligations under the Act, provide to the defence all evidence upon which the Crown proposes to rely in a summary trial. Such provision should allow the accused and their legal advisers sufficient time properly to 403

About the earlier law see Epp, Building on the Decade of Disclosure (2001),

p. 59. 404 Leng, in: McConville and Wilson, Handbook of the Criminal Justice Process (2002), pp. 205, 208, 209; Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259. 405 R. v. Stratford Justices, ex parte Imbert, The Times, 25 Feb. 1999; Leng, ibid. 406 See, e. g., Leng, ibid.; Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259. For further discussion, see Emmerson, Ashworth and Macdonald, Human Rights and Criminal Justice, 2nd ed (2007), pp. 549–560. 407 Leng, ibid. 408 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 259.

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consider the evidence before it is called.” The guideline applies only where a trial will be held, i. e. after the accused has indicated a not guilty plea.409 The latest version of the Criminal Procedure Rules from 2012410 now “applies in a magistrates’ court, where the offence is one that can be tried in a magistrates’ court.”411 That means that those rules are applicable to both summary and either-way offences.412 According to Rule 21.2 CPR 2012, “[t]he prosecutor must provide initial details of the prosecution case by (a) serving those details on the court officer; and (b) making those details available to the defendant, at, or before, the beginning of the day of the first hearing.” Those “initial details” must include (a) a summary of the evidence on which that case will be based; or (b) any statement, document or extract setting out facts or other matters on which that case will be based; or (c) any combination of such a summary, statement, document or extract; and (d) the defendant’s previous convictions.”413 The wording of those rules does not only demonstrate the rationale for the regulation of advanced disclosure in summary cases, but also the expedition of trials:414 while Rule 21.2 CPR 2005 ordered advance disclosure “as soon as practicable after a person has been charged with an offence in proceedings in respect of which this Part applies or a summons has been served on a person in connection with such an offence”, Rule 21.2 CPR 2012 orders advance disclosure “at, or before, the beginning of the day of the first hearing.” The more information both the defendant and the court have at the first hearing, the more likely it is that this result will be achieved.415 Accordingly, all contested trials in the Magistrates Courts should be “fully case managed at the first hearing and disposed of at the second hearing.”416 Therefore, the Health and Safety Executive (HSE) advises prosecutors to “serve all the evidence upon which [they] intend to rely, and which is available at the time of the first hearing, as part of the initial details. This would include witness statements, experts reports, copies of documentary exhibits and records of defendants interviews under PACE.”417 409 Leng, in: McConville and Wilson, Handbook of the Criminal Justice Process (2002), p. 205, 209. 410 2012 No. 1726 (L. 6). 411 Rule 21.1 Criminal Procedure Rules 2012. 412 Enforcement Guide of the Health and Safety Executive, Initial details of the prosecution guide, available at , last visited 25 September 2013. 413 Rule 21.3 Criminal Procedure Rules 2012. 414 Garland and McEwan, 16 E. & P. (2012), 233–262, 235 with further references, speaking of the aim “of making trials timely, streamlined and disciplined”. 415 Enforcement Guide of the Health and Safety Executive, supra note 412, S. 370, para. 3. 416 Ibid., para. 4.

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b) Witness Statements the Prosecution Does Not Intend to Use418 So far, I have described advance notice requirements in relation to the evidence the prosecution intends to call at trial. Needless to say that there are also witness statements that the prosecution have to disclose although they do not intend to call those witnesses.419 Those unused witness statements do not form part of the initial details and will not be disclosed at this stage. On the contrary, they are – as already described – disclosed as unused material as provided for in the CPIA 1996 (as amended by CJA 2003).420 The duty to disclose witness statements upon which the prosecution did not intend to rely did not always exist, especially not with regard to summary cases.421 In fact, the Common Law was rather slow to develop such a duty.422 The Devlin Report, in 1976, found that “[u]ntil 30 years ago, no authority existed for the proposition that there was any duty at all.”423 The development actually began in 1930 with the case R v. Clarke, where it was held that the defendant “is entitled to see a written description of himself given by a police officer to his superior, with a view to cross-examining that officer on alleged discrepancies between the contents of that document and his sworn testimony.”424 A real “break in the wall and an exception to tradi417

Ibid., para. 7. Generally on unused material see supra F. III. 2. 419 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), pp. 259–260 gives the following example: “If, for example, a witness interviewed by the police fails to support the prosecution’s version of events, it is unlikely that the prosecution would choose to call that person at trial. Yet knowledge of what the witness said might be of considerable importance to the defence. Rules requiring disclosure of such unused material were gradually developed by the courts.” 420 Enforcement Guide of the Health and Safety Executive, supra note 412, S. 370, para. 9. 421 Burton and Clare, Criminal Litigation (1997), p. 173 (“Advance information required before summary trial is no longer restricted to the Magistrates’ Court (Advance Information) Rules 1985 in the case of either way offences and the goodwill of the CPS in summary offence cases, since the Criminal Procedure and Investigations Act (CPIA) 1996 creates a statutory regime of disclosure even for summary trial, although this prosecution duty to disclose does not actually arise until an accused has pleaded not guilty at summary trial upon which disclosure must take place ‘as soon as practicable’.”) 422 Corker and Parkinson, Disclosure (2009), p. 3. 423 Devlin Report on Evidence of Identification, (1976) H.C. 338, para. 5.1. 424 R v. Clarke (James) (1931) 22 Cr. App. R. 58. Nevertheless, the Court did not recognise a miscarriage of justice: “We have now had the opportunity of seeing the actual documents, the written descriptions, which had been taken down from the police officer and from two other witnesses who had given a description of the present appellant, and so far from there being anything in them contradictory to the evidence which the witnesses gave at the trial, or at the police court, they appear to 418

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tion”425 was then established in Bryant and Dickson, in which it was held that “[w]here the prosecution have taken a statement from a person who can give material evidence but decide not to call him as a witness, they are under a duty to make that person available as a witness for the defence, but they are not under the further duty of supplying the defence with a copy of the statement which they have taken.”426 Subsequent to this decision, courts became willing to impose piecemeal and ad hoc rules of disclosure.427 The House of Lords found that the Common Law now required the prosecution to supply to the defence copies of these statements, which was later included in the (now amended) CPIA 1996 s 7.428 Furthermore, the Attorney General’s Guidelines of 1980 made clear in para. 1: “For the purposes of these guidelines the term ‘unused material’ is used to include the following: (i) All witness statements and documents which are not included in the committal bundles served on the defence. (ii) The statements of any witnesses who are to be called to give evidence at committal and (if not in the bundle) any documents referred to therein. (iii) The unedited version(s) of any edited statements or composite statement included in the committal bundles.”

This enumeration was said not to be conclusive.429 The current statutory instruments providing for disclosure of unused material430 do not explicitly refer to witness statements. However, para. 12 of the Attorney General’s be substantially in accordance with their evidence, and the learned counsel, Mr. Curtis Bennett, has properly admitted that, having now seen those documents, and all intimidation having been removed from his mind, and he having carefully considered them in a calm spirit, he is quite unable to suggest that if he had read them out to the jury, or cross-examined the witness upon them, any different result would have followed.” (p. 66). See also Corker and Parkinson, Disclosure (2009), p. 3 with fn. 7. 425 Corker and Parkinson, Disclosure (2009), p. 4. 426 R v. Bryant (Horace Henry) (1946) 31 Cr. App. R. 146. The Lord Chief Justice stated: “It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence.” (p. 151). 427 For the relevant case law see Corker and Parkinson, Disclosure (2009), pp. 4–8 and O’Connor, Crim. L.R. 1992, 464, 465–468. 428 Epp, Building on the Decade of Disclosure (2001), p. 23 with fn. 142.

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Guidelines 2005 lists – as previously numerated – examples of unused material that “might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused”, speaking of “any material” instead of specifying certain categories.431 c) Withholding of Witness Statements and Witness Identities Of course, in English Law – as in American Law – there are certain situations in which disclosure of witness statements or witness identities could lead to intimidation or other problems. Para. 6 of the Attorney General’s Guidelines 2005 provides: “Fairness does recognise that there are other interests that need to be protected, including those of victims and witnesses who might otherwise be exposed to harm. The scheme of the Act protects those interests. It should also ensure that material is not disclosed which overburdens the participants in the trial process, diverts attention from the relevant issues, leads to unjustifiable delay, and is wasteful of resources.”

However, neither the Criminal Procedure Rules 2012 nor the CPIA 1996 (as amended) provide for concrete situations where witness statements or witness identities could be withheld other than those of public interest.432 Even the predecessor of para. 6 of the Attorney General’s Guidelines 2005 was much more concrete in this regard: “There is a discretion not to make disclosure – at least until counsel has considered and advised on the matter – in the following circumstances: (i) There are grounds for fearing that disclosing a statement might lead to an attempt being made to persuade a witness to make a statement retracting his original one, to change his story, not to appear at court or otherwise to intimidate him. (ii) The statement (e. g. from a relative or close friend of the accused) is believed to be wholly or partially untrue and might be of use in cross-examination if the witness should be called by the defence. (iii) The statement is favourable to the prosecu429 O’Connor, Crim. L.R. 1992, 464, 470 (“The definition of ‘unused material’ in paragraph 1, is extremely wide and inclusive, so that the specified categories are mere examples.”) 430 See supra F. III. 2. 431 “i. Any material casting doubt upon the accuracy of any prosecution evidence. ii. Any material which may point to another person, whether charged or not (including a co-accused) having involvement in the commission of the offence. iii. Any material which may cast doubt upon the reliability of a confession. iv. Any material that might go to the credibility of a prosecution witness. v. Any material that might support a defence that is either raised by the defence or apparent from the prosecution papers. vi. Any material which may have a bearing on the admissibility of any prosecution evidence.” 432 Enforcement Guide of the Health and Safety Executive, supra note 412, S. 370, para. 12.

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tion and believed to be substantially true but there are grounds for fearing that the witness, due to feelings of loyalty or fear, might give the defence solicitor a quite different, and false, story favourable to the defendant. If called as a defence witness upon the basis of this second account, the statement to the police can be of use in cross-examination. (iv) The statement is quite neutral or negative and there is no reason to doubt its truthfulness – e. g. ‘I saw nothing of the fight’ or ‘He was not at home that afternoon’. There are however grounds to believe that the witness might change his story and give evidence for the defence – e. g. purporting to give an account of the fight, or an alibi. Here again, the statement can properly be withheld for use in cross-examination.”433

Moreover, para. 8 allowed the prosecutor to withhold both witness statements and witness identities “[i]f, to take the other extreme, the material supports the case for the prosecution or is neutral or for other reasons is clearly of no use to the defence.” It was also open to the prosecution to edit witness statements, to remove the name of the maker, or remove the portion relating to sensitive information, or make similar arrangements (para 13).434 Nevertheless, since 2008 there has been a law that deals with the identity of prosecution witnesses. In this year, the Criminal Evidence (Witness Anonymity) Act 2008 was enacted, following the judgment the House of Lords delivered in mid-June 2008 in R v. Davis, where it was held “that it was a long established common law principle that, subject to recognised exceptions and statutory qualifications, a defendant in a criminal trial should 433 Para. 6 of the Attorney General’s Guidelines 1981. The Guidelines continue: “(NB. In cases (i) to (iv) the name and address of the witness should normally be supplied.) (v) The statement is, to a greater or lesser extent, ‘sensitive’ and for this reason it is not in the public interest to disclose it. Examples of statements containing sensitive material are as follows: (a) It deals with matters of national security; or it is by, or discloses the identity of, a member of the security services who would be of no further use to those services once his identity became known. (b) It is by, or discloses the identity of, an informant and there are reasons for fearing that disclosure of his identity would put him or his family in danger. (c) It is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known. (d) It contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he was a suspect; or it discloses some unusual form of surveillance or method of detecting crime. (e) It is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e. g. a bank official. (f) It relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matter prejudicial to him. (g) It contains details of private delicacy to the maker and/or might create risk of domestic strife. [. . .]” 434 See also Epp, Building on the Decade of Disclosure (2001), p. 55; Corker and Parkinson, Disclosure (2009), p. 133.

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be confronted by his accusers so that he might cross-examine them and challenge their evidence” and that therefore a practice that allowed anonymous witnesses “was irreconcilable with the common law rule and any departure from it was for Parliament to consider, not the courts to create.”435 Consequently, the legislator took action and enacted the Criminal Evidence (Witness Anonymity) Act 2008, in order to “nullify what the House of Lords had decided in Davis.”436 Thus, s. 1(2) of the Act abolishes “[t]he common law rules relating to the power of a court to make an order for securing that the identity of a witness in criminal proceedings is withheld from the defendant (or, on a defence application, from other defendants).”437 The Act entitles the court to issue a “witness anonymity order”438 if certain conditions are met439 and certain “considerations” are regarded.440

435

R v. Davis [2008] UKHL 36 [2008] 3 W.L.R. 125. Corker and Parkinson, Disclosure (2009), p. 232. 437 S. 1(3) of the Criminal Evidence (Witness Anonymity) Act 2008 clarifies that “[n]othing in this Act affects the common law rules as to the withholding of information on the grounds of public interest immunity.” 438 See the definition in s. 2(1) of the Criminal Evidence (Witness Anonymity) Act 2008: “In this Act a ‘witness anonymity order’ is an order made by a court that requires such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.” The oder includes certain measures, provided for in s. 2(2): “The kinds of measures that may be required to be taken in relation to a witness include measures for securing one or more of the following (a) that the witness’s name and other identifying details may be (i) withheld; (ii) removed from materials disclosed to any party to the proceedings; (b) that the witness may use a pseudonym; (c) that the witness is not asked questions of any specified description that might lead to the identification of the witness; (d) that the witness is screened to any specified extent; (e) that the witness’s voice is subjected to modulation to any specified extent.” 439 See s. 4(3)–(5) of the Criminal Evidence (Witness Anonymity) Act 2008: “(3) Condition A is that the measures to be specified in the order are necessary (a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise). (4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial. (5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that – (a) it is important that the witness should testify, and (b) the witness would not testify if the order were not made.” 436

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3. ICC According to Rule 76(1) ICC-RPE, “[t]he Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. This shall be done sufficiently in advance to enable the adequate preparation of the defence.”441 By contrast, according to Rule 69(C) ICTY-RPE, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence. “Identity” in that regard requires more than the mere provision of a name. As the ICTY Trial Chamber in Delalic´ et al. stated, “[t]o identify the witnesses, therefore, it is necessary for the Defence to know further particulars about them, this in turn to satisfy the right of the accused to an adequate preparation of his defence.”442 However, the term “identity” does not necessarily include the present addresses of the witnesses.443 Furthermore, Rule 66 ICTY-RPE (Rule 66 ICTR-RPE, Rule 66 SCSL-RPE) requires the disclosure of all witness statements in the possession of the prosecution, regardless of their form or source.444 440 See the definition in s. 2(1) of the Criminal Evidence (Witness Anonymity) Act 2008: “The considerations are (a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings; (b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed; (c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant; (d) whether the witness’s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; (e) whether there is any reason to believe that the witness (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant; (f) whether it would be reasonably practicable to protect the witness’s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.” 441 See generally Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 852. 442 Prosecutor v. Delalic ´ et al., No. IT-96-21, Decision on the Defence Motion to Compel the Discovery of Identity and Location of Witnesses, para. 17 (March 18, 1997). 443 Ibid., para. 20. 444 See also Prosecutor v. Brima et al., No. SCSL-04-16-T, Decision on joint Defence motion on disclosure of all original witness statements, interview notes and investigators notes pursuant to Rules 66 and/or 68, para. 16 (May 4, 2005), stating

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According to Rule 76(4) ICC-RPE, “[t]his rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82.” Since Rule 76 is part of Chapter 4 of the ICC-RPE, entitled “Provisions relating to various stages of the proceedings,” Rule 76 does not only concern pre-trial disclosure but is also applicable to the confirmation hearing.445 This goes back to the Draft Rules of the Preparatory Commission, which – during its first session – added the following Footnote to its Rule 5.15: “This rule may be applicable, mutatis mutandis, before the Pre-Trial Chamber, for the purposes of the confirmation hearing. It needs further discussion.”446 This footnote was deleted in the second session and did not appear in the next draft of the Rule.447 a) Possible Conflict with Rule 121 Furthermore, it is important to note that Rule 76 ICC-RPE refers to “names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses.”448 Again, as was the that “[a]ny statement or declaration made by a witness in relation to an event he or she witnessed and recorded in any form by an official in the course of an investigation, falls within the meaning of a ‘witness statement’ under Rule 66(A)(i). Accordingly, facts contained in an investigator’s interview notes which constitute statements made by the witness in the course of an investigation come within the meaning of ‘witness statements’ under Rule 66(A)(i).” The Judges Teresa Doherty, Richard Lussick and Julia Sebutinde continue that “Rule 66 requires disclosure of all witness statements in the possession of the Prosecution, regardless of their form or source, save for any material covered by Rule 70(A).” However, the Rules do not define what constitutes a witness statement. According to the Appeals Chamber in Blaškic´, “[t]he usual meaning of a witness statement in trial proceedings is an account of a person’s knowledge of a crime, which is recorded through due procedure in the course of an investigation into the crime.” see Prosecutor v. Blaškic´, No. IT-95-14, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and additional Filings, para. 15 (September 26, 2000); see generally Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 315 ff. 445 Prosecutor v. Lubanga, No. ICC-01/04-01/06-568, supra note 279, S. 348, para. 34; see also Safferling, International Criminal Procedure (2012), p. 354. 446 Preparatory Commission for the International Criminal Court, Proceedings of the Preparatory Commission at its first session (16–26 February 1999), PCNICC/ 1999/L.3/Rev.1, 2 March 1999, Rule 5.15, footnote (p. 15). 447 Preparatory Commission for the International Criminal Court, Revised discussion paper proposed by the Coordinator: Part 5 of the Statute: Rules 5.1 to 5.4 Decision of the Prosecutor on the initiation of an investigation, PCNICC/1999/ WGRPE/RT.6, 5 August 1999, Rule 5.28; Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), pp. 403, 409, 410. 448 Italics added.

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case with the broad interpretation of Rule 77 ICC-RPE (i. e. the inspection of tangible objects etc.),449 this runs counter to Rule 121(3) ICC-RPE, which applies to the confirmation hearing: “The Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing.”450 There are obviously two ways to resolve this contradiction: first, to deny the application of Rule 76 ICC-RPE to the confirmation hearing. As I have shown, this does not comply with either the intent of the drafters of ICC-RPE or with the relevant case law. Or, second, to widen the disclosure obligations prior to the confirmation hearing – in this case to oblige the prosecution to disclose not only a “list” of statements but both the (copied)451 statements and the names of the witnesses. Again, the decision in favour or against one of the described ways can only be made at the end of this study, because this decision depends on the entire interpretation of the confirmation hearing, which, in turn, depends on the procedural system itself. To anticipate – at least slightly – the result of this study: the latter way, i. e. providing not merely a “list” of statements but both the (copied) statements and the names and addresses of the witnesses, would only be fair if the prosecution intended to call witnesses at the confirmation hearing.452 This interpretation would also be consistent with Art. 61(3)(b) ICCStatute, which provides that the person in respect of whom a confirmation hearing is held “[b]e informed of the evidence on which the Prosecutor intends to rely at the hearing.”453 Furthermore, even if, in accordance with Art. 61(5) ICC-Statute,454 the prosecutor intends to rely on documentary or summary evidence at the confirmation hearing,455 Rule 76 ICC-RPE would 449

See supra F. IV. 3. Italics added. 451 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 103: “Under rule 76, the Prosecution has the obligation only to provide the Defence with ‘copies’ of the relevant statements and not the originals. However, as previously mentioned, the originals must be filed by the Prosecution in the record of the case as soon as practicable after copies have been provided to the Defence as part of the process for communicating to the Pre-Trial Chamber the evidence which the Prosecution intends to use at the confirmation hearing.” 452 In the same vein Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 410. 453 Prosecutor v. Lubanga, No. ICC-01/04-01/06-568, supra note 279, S. 348, para. 34. 454 Art. 61(5) 2nd sentence ICC-Statute: “The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.” 455 The Prosecutor may choose to do so, in accordance with Rule 81(2) ICCRules, if a broader disclosure would prejudice ongoing proceedings (Rule 76(4) 450

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still extend to all witnesses on whom the Prosecution intends to rely at the confirmation hearing.456 In other words, Rule 76 ICC-RPE does not distinguish between witnesses the Prosecution intends to call to testify on the one hand and summarised, non-redacted or redacted versions of their statements on the other hand.457 Hence, conducting a literal,458 contextual459 and teleological460 interpretation, the Pre-Trial Chamber in the Lubanga case came to the conclusion “that, as a general rule, statements must be disclosed to the Defence in full. Any restriction on disclosure to the Defence of the names or portions, or both, of the statements of the witnesses on which the Prosecution intends to rely at the confirmation hearing must be authorised by the single judge under the procedure provided for in rule 81 of the Rules.”461 On the issue of “pre-assessment interviews”, which are compiled prior to taking a statement from a witness in order to decide whether or not he or she should testify,462 the Trial Chamber in Bemba held that they are not witness statements, but may be disclosed as exculpatory evidence as set out in Art. 67(2) ICC-Statute and Rule 77 ICC-RPE.463 ICC-Rules). The Prosecution may also provide the defence with statements in redacted form, which has occurred in the past especially with regard to the identity of intermediaries, see infra F. VII. 3. a) bb). 456 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 94. 457 Ibid. 458 Ibid., para. 95: “A literal interpretation of article 61 (5) in fine and 68 (5) of the Statute suggests that the Prosecution’s right to rely at the confirmation hearing on witnesses’ written evidence (either witness statements or summary evidence) instead of their oral testimony ‘shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’.” 459 Ibid., para. 98: “[A] contextual interpretation of articles 61 (5) in fine and 68 (5) of the Statute in light of article 61 (3) and (6) (b), the chapeau of article 67 (1), and article 67 (1) (b) of the Statute requires, in principle, that the Defence have access to nonredacted versions of the prior statements of any witness on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing.” 460 Ibid., para. 99: “A teleological interpretation of articles 61 (5) in fine and 68 (5) of the Statute suggests that they aim first and foremost to ensure the safety of Prosecution witnesses, and minimise the potentially traumatic effects of giving testimony in court by exempting witnesses from the requirement to do so twice, first before the Pre-Trial Chamber and again before the Trial Chamber.” 461 Ibid., para. 101. 462 Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-750-Red, Public Redacted version of “Decision on the Defence Request for disclosure of preinterview assessments and the consequences of non-disclosure”, para. 31 (April 9, 2010); Safferling, International Criminal Procedure (2012), p. 355. 463 Ibid., para. 33: “[P]ut generally, it must disclose exculpatory evidence and documents etc, that are material to the preparation of the defence case. This will involve fact-specific decisions for each pre-interview assessment, and critically the prosecution must ensure that if there has been a later formal statement, all the ex-

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b) Timing and Anonymity With regard to timing, disclosure “shall be done sufficiently in advance to enable the adequate preparation of the defence.”464 Interestingly, this wording is as broad as the English “as soon as practicable” wording in Rule 21.2 CPR 2005, which, for reasons of trial expedition, was amended in the 2012-version, which now orders advances disclosure “at, or before, the beginning of the day of the first hearing.”465 It also resembles in this regard sub-rule 69(C) ICTY-RPE, which refers to a “sufficient time prior to the trial”.466 Of course, when a witness decides to authorise the use of his or her statement for the purpose of the confirmation hearing in the knowledge that his or her identity might be disclosed to the Defence, the witness is inevitably taking a certain risk.467 However, the drafters of the ICC-Statute refrained from inserting any provision into the Statute or the RPE that allows the use of anonymous witnesses.468 Delegations from Common Law countries in particular rejected the possibility of anonymous witness testimony.469 With regard to anonymous witnesses who testify at trial (and a possible violation of the rights of the defendant), the ICTY Trial Chamber in Tadic´ stated: “[T]he interest in the ability of the defendant to establish facts must be weighed against the interest in the anonymity of the witness. The balancing of these interests is inherent in the notion of a ‘fair trial’. A fair trial means culpatory material in the screening notes has been disclosed within the statement, along with any information that is material to defence preparation. If this has not occurred, the prosecution must disclose the screening notes, or the relevant information.” 464 Rule 76(1) ICC-Rules. For the Pre-Trial Chamber in Lubanga, this time limit “is a concrete application of the broader right enshrined in article 67 (1) (b) ‘to have adequate time [. . .] for the preparation of the defence’, which both the Prosecution and the Defence have agreed also applies to the confirmation hearing.” 465 See supra F. V. 2. a) bb). 466 Prosecutor v. Delalic ´ et al., No. IT-96-21, supra note 442, S. 376, para. 19. 467 Prosecutor v. Katanga and Chui, No. ICC-01/04-01/07-428-Corr, supra note 58, S. 90, para. 17. 468 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2434-Red2, Redacted Decision on Intermediaries, para. 137 (May 31, 2010): “Chamber notes that the Rome Statute framework does not provide for the anonymous testimony of witnesses at trial (see e. g. Articles 67(l)(e) and 68(1) of the Statute and Rules 76, 81(4), 82(1) and 87 of the Rules).” See also Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 615, 626; Acquavia et al. follow from this, that “central witnesses cannot benefit from anonymity before the ICC at trial stage”, see Acquavia et al., in: Suilter et al., eds., International Criminal Procedure (2013), pp. 489–938, 844. 469 Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 615, 626.

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not only fair treatment to the defendant but also to the prosecution and to the witnesses.”470 The Trial Chamber then established five conditions for witness anonymity: – there must be real fear for the safety of the witness or her or his family;471 – the testimony of the particular witness must be important to the Prosecutor’s case;472 – the Trial Chamber must be satisfied that there is no prima facie evidence that the witness is untrustworthy;473 – the ineffectiveness or non-existence of a witness protection programme;474 and – any measures taken should be strictly necessary.475 I do not wish to comment on this decision and those conditions extensively, since there has been (and surely still is) great discussion about it,476 470 Prosecutor v. Tadic ´ , No. IT-94-1-T, Decision on the prosecutor’s motion requesting protective measures for victims and witnesses, para. 55 (August 10, 1995). 471 Ibid., para. 62, continuing: “Judicial concern motivating a non-disclosure order may be based on fears expressed by persons other than the witness, e. g., the family of the witness, the Prosecutor, the Victims and Witnesses Unit, as well as by the witness himself.” 472 Ibid., para. 63, continuing: “In this respect it should be noted that the International Tribunal is heavily dependent on eyewitness testimony and the willingness of individuals to appear before the Trial Chamber and testify.” 473 Ibid., para. 64, continuing: “To this end the Prosecutor must have examined the background of the witness as carefully as the situation in the former Yugoslavia and the protection sought permit. There should be no grounds for supposing that the witness is not impartial or has an axe to grind. Nor can non-disclosure of the identity of a witness with an extensive criminal background or of an accomplice be allowed. Granting anonymity in these circumstances would prejudice the case of the defence beyond a reasonable degree. The report by the Prosecutor on the reliability of the witness would need to be disclosed to the defence so far as is consistent with the anonymity sought.” 474 Ibid., para. 65. 475 Ibid., para. 66, continuing: “If a less restrictive measure can secure the required protection, that measure should be applied. The International Tribunal must be satisfied that the accused suffers no undue avoidable prejudice, although some prejudice is inevitable.” 476 Ibid., Separate Opinion Judge Stephen and passim, pp. 11, 15; confirmed by Prosecutor v. Blaskic, No. IT-95–14, Decision on the application of the prosecutor dated 17.10.1996 in respect of the protection of witnesses, para. 34 (November 5, 1996). Crit. about the Tadic´-decision Leigh, 91 AJIL (1997), 60, 80; Mumba, in: May et al., eds., Essays in Honour of Kirk McDonald (2001), pp. 359, 368 ff.; Guariglia, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002),

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and because I regard the law of the ad hoc tribunals only as a subsidiary means of the interpretation of disclosure rules.477 However, what is most interesting about this decision are the explicit and extensive references to the English case R. v. Taylor.478 In this case, a witness anonymised as “Miss A” was allowed to give evidence anonymously, without revealing her address and behind a screen so arranged that she, the judge, jury and counsel could see each other directly but she and the defendants could not, although there was a video camera which enabled the defendants to see her by that means while she was giving evidence. The Court of Appeals accepted that a defendant had a fundamental right to see and know the identity of his accusers, in the sense that the right should only be denied in rare and exceptional circumstances, but regarded it as a discretionary decision for the trial judge whether an exception should be made in any given case.479 The conditions laid down by the ICTY are basically identical to the conditions mentioned in R v. Taylor.480 If the Tadic´ case had been pp. 1111, 1125 f.; Zappalà, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), p. 1319, 1333; Creta, 20 Hous. J. Int’l L. (1998), 381, 394 ff.; Lusty, 24 Syd LR (2002), 361, 417 ff. and Dennis, in: Chalmers, Leverick and Farmer, eds., Essays in Honour of Gordon (2010), pp. 241 ff., conducting a comprehensive analysis of the (in-)admissibility of statements made by anonymous witnesses in Common Law; see generally also Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 615 ff.; Schuon, International Criminal Procedure (2010), pp. 122 f.; Damaška, 10 JICJ (2012), 611, 618.; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 710 ff. 477 See supra A. II. 478 R. v. Taylor and Crabb (unreported, 22 July 1994, Court of Appeal Criminal Division). 479 Ibid., p. 17, cited in Prosecutor v. Tadic ´ , No. IT-94-1-T, supra note 470, S. 381, para. 62–66 and R v. Davis, [2008] UKHL 36 [2008] 3 W.L.R. 125, 2008 WL 2311349, para. 15. 480 “First, there must be real grounds for being fearful of the consequences if the evidence was given and the identity revealed (even if the concern was expressed by someone other than the witness, as by Miss A’s mother in that case). Secondly, the evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. But the greater its importance, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous. In this context, it seems to us, that a distinction can properly be drawn, as the learned judge drew it here, between cases where the creditworthiness of the witness is or is likely to be in issue and others where the issue for the jury is the reliability and accuracy of the witness rather than credit. Thirdly, the prosecution must satisfy the court that the creditworthiness of the witness has been fully investigated and the results of that enquiry disclosed to the defence so far as is consistent with the anonymity sought. Fourthly, the court must be satisfied that no undue prejudice is caused to the defendant. ‘Undue’ is a necessary qualification because some prejudice is inevitable if the order in question is made, even if that prejudice is only the qualification placed on the right to confront the witness as one of the defendant’s accusers . . .

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decided after 2008, this reference would probably not have been made. As I have mentioned, in R. v Davis, a case from 2008, the House of Lords did not agree with the Court of Appeals’ remark that “it is a discretionary decision for the trial judge whether an exception [to the disclosure of the witnesses’ identity] should be made in any given case”. Criticising the “very slight support in authority”, poor reasoning and a degree of inconsistency,481 it held “that it was a long established common law principle that, subject to recognised exceptions and statutory qualifications, a defendant in a criminal trial should be confronted by his accusers so that he might crossexamine them and challenge their evidence” and that therefore a practice that allowed anonymous witnesses “was irreconcilable with the common law rule and any departure from it was for Parliament to consider, not the courts to create.”482 Indeed, as I have mentioned, the Parliament stepped in and enacted the Criminal Evidence (Witness Anonymity) Act 2008. That the conditions and considerations laid down in this Act resemble the conditions created by the ICTY could legitimatise the ICTY’s decision, but it actually does quite the opposite: it shows – along with the House of Lords’ decision – that a departure from the principle that the accused has a right to know the statements and names of witnesses testifying against him can only be made by the legislator and not by a court. The debate about witness anonymity at both the ICTY and the ICC demonstrates again, that a single procedural question in international criminal justice cannot be answered disregarding the broader picture of the procedural model. That no ICC provision contains a reference to witness anonymity neither bars nor admits such practice.483 Thus, the methodological approach to the issue of pre-trial disclosure, which is subject of this study, can similarly be used to analyse whether the provisions of the ICC admit statements from anonymous witnesses – but that is most certainly a matter for another study. Art. 68 ICC-Statute and Rules 85–99 ICC-RPE, which regulate the protection of victims, may indeed be interpreted to permit Finally, the court can balance the need for protection, including the extent of any necessary protection, against the unfairness or appearance of unfairness in the particular case. By referring to the extent of protection, we have in mind other courses which can be taken short of allowing anonymity to the witness. These include, for example, screening, a voice camera, a hearing in camera or whatever it may be.” R v. Taylor and Crabb (unreported, 22 July 1994, Court of Appeal Criminal Division), p. 17 f., cited in Prosecutor v. Tadic´, No. IT-94-1-T, supra note 470, S. 381, para. 62–66 and R v. Davis, [2008] UKHL 36 [2008] 3 W.L.R. 125, 2008 WL 2311349, para. 15. 481 R v. Davis, [2008] UKHL 36 [2008] 3 W.L.R. 125, 2008 WL 2311349, para. 16. 482 Ibid., italics added. 483 Carter and Pocar, International Criminal Procedure (2013), p. 113.

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anonymity before the ICC in exceptional cases.484 However, only a broad contextual interpretation with recourse to the character of the ICC-process can shed light on the issue of witness anonymity. The possibilities for trial participants to filter the information provided by witnesses is a typical feature of the conflict-solving model.485 Testimony determined by the common-law style through direct- and cross-examination corresponds to that ideal of information filtered only by the parties.486 This filtering process would be deprived of its function if the parties were unfamiliar with the identity of the witness providing the information.487 By contrast, within a policy-implementing procedure it is “the trier of fact [. . .] who is primarily responsible for eliciting testimony; he generates the bulk of questions asked of witnesses, decides on the sequence in which they will be interrogated, and the like.”488 As cross-examination and exclusionary rules corresponded with the conflict-solving ideal, so does the principle of free evaluation of evidence with the policy-implementing ideal.489 In sum, whether to bar or admit statements from anonymous witnesses depends on how the analysis of evidence is structured, which again depends on the model of the process. No inference can therefore be made from the fact that an ICC provision containing a reference to witness anonymity does not exist. While in England – as I have demonstrated – the House of Lords decided that a practice that allowed anonymous witnesses “was irreconcilable with the common law rule and any departure from it was for Parliament to consider, not the courts to create”,490 in France the situation that the direct source of the information remains unknown does not per se leads to the inadmissibility of the testimony, but will result in judge’s evaluation that this testimony has only limited value.491

484 See in this regard Bock, Das Opfer vor dem IStGH (2010), pp. 432 ff.; Kurth, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 615, 627 f. 485 Damaška, Faces of Justice (1986), p. 137. 486 Ibid. 487 Cf. id., 10 JICJ (2012), 611, 617–618 488 Id., Faces of Justice (1986), p. 162. 489 About this principle, also called “free proof principle”, see Damaška, Evidence Law Adrift (1997), pp. 20 ff.; id., 43 Am. J. Comp. L. (1995), 343 ff.; see, for instance, the German “Prinzip der freien richterlichen Beweiswürdigung” pursuant to § 261 StPO: “The court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole.”; Kühne, Strafprozessrecht, 8th ed (2010), mn. 946 ff.; Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 45 mn. 42 ff. 490 R v. Davis, [2008] UKHL 36 [2008] 3 W.L.R. 125, italics added. 491 Maffei, Confrontation (2006), p. 202.

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c) “Rolling Disclosure” Although the disclosure of witness statements is typically expected to take place prior to trial, concerns about witness safety have recently led the ICTR, SCSL and the ICC to permit “rolling disclosure” of the witness’s identity to the accused.492 In the Katanga case, Trial Chamber II of the ICC rejected the Defence’s right to have evidence disclosed to be absolute and made clear that “[e]arly disclosure dictated solely by a concern to better protect the rights of the Defence would [. . .] contravene the spirit and the purpose of the Statute if this resulted in witnesses called to give evidence facing real risks.”493 In that case, the Chamber granted the Prosecutor’s request to have the identity of one of the two key Prosecution witnesses disclosed to the accused only 45 days before being summoned to testify.494 Seeking “a solution which strikes a fair balance between equally legitimate rights of the accused, on the one hand, and of the victims and witnesses on the other”,495 the Chamber made clear that rolling disclosure can only be granted exceptionally and after the Court answered the following two questions: First, “[i]s deferred disclosure of the identity of witnesses strictly necessary?”; and second, “[i]f deferred disclosure is strictly necessary, is the restriction of the rights of the Defence sufficiently counterbalanced by the opportunity afforded to it to have access, for a limited time, to either summaries of statements or redacted versions of the transcripts of the two witnesses?”496 That this practice of rolling disclosure would inevitably lead to lengthy proceedings was obviously acceptable for the Chamber, which stated that “it is prepared to consider [. . .] any application for which [the Defence] may reasonably provide grounds, should it become apparent that it requires additional time to complete any investigations it may have conducted into Witness 353.”497 In the context of the ICTR, in one of a couple of decisions on rolling disclosure498 the Prosecutor has sought and obtained the disclosure of (protected) witness’ statements on a rolling basis, which means that “[t]he Pro492 Combs, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 323, 324; Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 710 f.; Croquet, 11 Melb. J. Int’l L. (2010), 27, 50. 493 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/ 07-1179-tENG, Public Redacted Version of the Decision on the Protection of Prosecution Witnesses 267 and 353 of 20 May 2009 (ICC-01/04-01/07-1156-Conf-Exp), para. 31 (28 May 2009). 494 Ibid., para. 45; Croquet, 11 Melb. J. Int’l L. (2010), 27, 55. 495 Prosecutor v. Katanga and Chui, ICC-01/04-01/07-1179-tENG, ibid., para. 31. 496 Ibid., para. 34. 497 Ibid., para. 49. 498 See generally Croquet, 11 Melb. J. Int’l L. (2010), 27, 51 ff.

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secutor shall provide such information no later than thirty-five days before the date of testimony of a particular witness, or when the witness comes under the protection of the Tribunal, whichever is earlier.”499 As a result, the identity of witnesses giving protected statements “is no longer the exclusive knowledge of the party calling the witnesses and of the judicial branch, thereby minimizing the risk of untraceable leaks.”500 The above mentioned decisions demonstrate, that both the ICC and the ICTR apparently decide the conflict between the rights to a fair trial and to cross-examine witnesses on the one hand, and witness- and victim-protection on the other hand, in favour of the latter.501 This, however, cannot conceal the dangers rolling disclosure might create. Apart from the question, whether rolling disclosure is compatible with the ICTR-RPE,502 Sluiter warns: “One may welcome ‘rolling disclosures’ from the perspective of the protection of witnesses. However, I would claim that it is illustrative of two matters of serious concern in relation to the functioning of the ICTR. First of all, protective measures apparently lack the authority to induce a reasonable amount of respect, which has everything to do with the absence of an adequate and direct enforcement mechanism in case of violations. Secondly, ‘rolling disclosures’ painfully make clear what is already generally seen as a significant problem: the trials take far too much time. Reasonably expedient trials which require constant and full participation of the parties to the proceedings would obviate the need for ‘rolling disclosures’.”503

499 Prosecutor v. Bagosora et al., No. ICTR-98-41-I, Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, para. 24 and passim (December 5, 2001). 500 Sluiter, 3 JICJ (2005), 962, 972. 501 In the same vein Croquet, 11 Melb. J. Int’l L. (2010), 27, 58. 502 In this regard, Judge Pavel Dolenc pointed out in his dissenting opinion to the aforementioned decision of the ICTR Trial Chamber: “[T]he specific provisions in Rules 66(A)(ii), 67(A) and 69(C), all of which require disclosure of identity prior to the trial, must take precedence over the general language in Rule 75(A), pursuant to the interpretive principle lex specialis derogat legi generali. To interpret Rule 75 to permit the Prosecutor to withhold the identities of witnesses from the Defence would run contrary to the clear instructions of Rule 69(C), which specifically addresses the protection of victims and witnesses in relation to disclosure to the Defence.”, see Prosecutor v. Bagosora et al., No. ICTR-98-41-I, supra note 499, S. 386, Separate Dissenting Opinion of Judge Pavel Dolenc, para. 19. He continues: “Most importantly, Rule 75(A) is itself expressly limited to measures that are ‘consistent with the rights of the Accused’. These rights are minimum guarantees set out in Article 20(4) of the Statute, which cannot be limited for reasons of witness protection. [. . .] [T]he Rules anticipate that disclosure of witness identities and statements be made prior to the commencement of trial.” (para. 20). 503 Sluiter, 3 JICJ (2005), 962, 972.

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d) Witness Proofing While at the ad hoc tribunals the preparation of witnesses for their testimony (witness proofing) is generally accepted,504 until the beginning of 2013 the ICC only allowed a set of measures aimed at acquainting witnesses with the layout of the Court, applicable procedure, and the role and functions of procedural actors (witness familiarisation).505 On 2 January 2013, however, Trial Chamber V of the ICC concluded hat it was “neither practical nor reasonable to prohibit pre-testimony meetings between parties and the witnesses they will call to testify at trial.”506 It interestingly justi504 Prosecutor v. Limaj et al., No. IT-03–66-T, Decision on the Defence Motion on Prosecution Practice of “Proofing Witnesses” (December 10, 2004). Generelly ICTY Manual on Developed Practices (2009), pp. 83 f., 105; Skilbeck, 8 JICJ (2010), 451, 457 ff.; see generally Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 665 ff. 505 Prosecutor v. Lubanga, No. ICC-01/04–01/06-679, supra note 28, S. 313, para. 18 ff., 28 ff. In the view of the Chamber in this decision, “there are several provisions of the Statute and Rules which, without being referred to as ‘witness preparation’, ‘witness familiarisation’ or ‘witness proofing’, encompass the measures contained in paragraphs 16 (i) to (vi) of the Prosecution Information in order to assist the witness in the experience of giving oral evidence before the Court so as to prevent the witness from finding himself or herself in a disadvantageous position, or from being taken by surprise as a result of his or her ignorance of the process of giving oral testimony before the Court.” However, it points out that “the practice of witness proofing advanced by the Prosecution is not embraced by any general principle of law that can be derived from the national laws of the legal systems of the world. On the contrary, if any general principle of law were to be derived from the national laws of the legal systems of the world on this particular matter, it would be the duty of the Prosecution to refrain from undertaking the practice of witness proofing as defined in paragraphs 16 (vii), (viii) and (ix) and 17 (ii), (iii) and (iv) of the Prosecution Information.” About this decision see Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 667 f.; see generally Ambos, Internationales Strafrecht, 3rd ed (2011), § 8 mn. 40 with further references, inter alia: Friman, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 271, 274; conf. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/061049, Decision regarding the practices used to prepare and familiarise witnesses for giving testimony at trial, para. 28 ff., 53 ff. (57) (November 30, 2007); Ambos, in: Stahn and Sluiter, eds., Emerging Practice (2009), pp. 599 ff.; Vasiliev, 20 CLF (2009), 193 ff.; Bock, Das Opfer vor dem IStGH (2010), pp. 390 ff.; about the admissibility of instructing expert witnesses see Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06-1069, Decision on the procedures to be adopted for instructing expert witnesses (December 10, 2007). 506 Prosecutor v. William Samoei Ruto and Joshua Aarap Sang, ICC-01/09-01/ 11-524, Decision on Witness Preparation, para. 50 (January 2, 2013), continuing: “Rather, judicious witness preparation aimed at clarifying a witness’s evidence and carried out with full respect of the rights of the accused is likely to enable a more accurate and complete presentation of the evidence, and so to assist in the Chamber’s truth finding function.”

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fied this conclusion by referring to its “truth finding function”507 – a typical policy-implementing feature. Thus, the Chamber now permits witness proofing as long as this is in accordance with the so-called “Witness Preparation Protocol”, which the Chamber annexed to its decision.508 This protocol aims at regulating witness proofing at the ICC and also contains a rule on disclosure: “Where the calling party obtains information during a preparation session that is subject to disclosure, it shall disclose that information to the non-calling party as soon as practicable, and in any event before the witness begins his or her examination in chief.”509 This rule is the response to the effect differences in recollection, especial additional recollections,510 can have on the defendant’s right to have adequate time and facilities for the preparation of the defence and echoes what Tochilovsky has said about the resulting disclosure obligations: “Indeed notice of such additional recollection shall be given to the Defence, before the evidence is given, thereby reducing the prospect of the Defence being taken entirely by surprise. When exculpatory or other new significant information is disclosed by a witness during proofing, this information must be provided to the defence as soon as reasonably practicable thereafter.”511 The ad hoc tribunals have consistently allowed the practice of pre-testimony interviews of witnesses for the better administration of justice, in the particular context of their proceedings, and to reduce any element of surprise to the Defence.512 Although there is no specific case law at the ICTR addressing this issue, witness preparation has been recognised in the jurisprudence when analysing how the content of an interview with a witness is to be disclosed.513 The duration of the proceedings and the time between 507 Ibid.: “Rather, judicious witness preparation aimed at clarifying a witness’s evidence and carried out with full respect of the rights of the accused is likely to enable a more accurate and complete presentation of the evidence, and so to assist in the Chamber’s truth finding function.” 508 Ibid., para. 51. 509 Prosecutor v. William Samoei Ruto and Joshua Aarap Sang, ICC-01/09-01/ 11-524-Anx, Annex to the Decision on Witness Preparation, para. 30 (February 7, 2013). 510 Tochilovsky, in: Doria, Gasser and Bassiouni, eds., Essays in Honour of Blishchenko (2009), p. 843, 854. 511 Ibid. 512 Prosecutor v. Karemera et al., No. ICTR-98-44-T, Decision on Defence Motions to Prohibit Witness Proofing, para. 9 (December 15, 2006): “Both this Tribunal and the ICTY have consistently allowed the practice of pretestimony interviews of witnesses for the better administration of justice, in the particular context of their proceedings, and to reduce any element of surprise to the Defence. This practice is in accordance with the Appeals Chamber’s finding that each party has the right to interview a potential witness.” 513 Ibid., para. 11.

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prior testimonies may result in the need for further interviews with a witness before he or she testifies and reduce the effect of surprise on the Defence in cases where the witness recollects elements that were not previously disclosed.514 The Prosecution has developed a practice of disclosing “will-say” or “reconfirmation statements” prior to the testimony of a witness.515 According to the ICTR Trial Chamber in Simba, a will-say statement is a communication from one party to the other party and the Chamber anticipating that a witness will testify about matters that were not mentioned in previously disclosed witness statements.516 They are generally communicated by Counsel immediately after learning of them during the preparation of the witness for examination.517 The Prosecution’s use of will-say statements is different from the normal method of giving notice through a written and signed statement disclosed in conformity with Rule 66 ICTR-RPE.518 Trial Chambers have considered that will-say statements are in conformity with the Prosecution’s obligations under Rule 67(D) ICTR-RPE.519 The will-say statement generally supplements or elaborates on information previously disclosed to the Defence, but it may also bring new elements to which the Defence was not put on notice. Although it is not acceptable for the Prosecution to mould its case against the accused in the course of the trial, it must be admitted that a witness may recall and add details to his or her prior statements.520 Witness proofing can create many problems of late disclosure and admission of evidence, as was repeatedly noted by Defence teams such as in the Karemera case before the ICTR,521 in the Haradinaj case before the ICTY,522 or in the Samoei Ruto and Aarap Sang case before the ICC.523 As Ambos points out, “only if witness proofing is completed during the 514 Prosecutor v. Lamaj et al., No. IT-03-66-T, supra note 504, S. 387, p. 2; Prosecutor v. Milutinovic´ et al., No. IT-05-87-T, Decision on Ojdanic´ motion to prohibit witness proofing, para. 20 (December 12, 2006). 515 Prosecutor v. Karemera et al., No. ICTR-98-44-T, supra note 512, S. 388, para. 11. 516 Prosecutor v. Simba, No. ICTR-01-76-T, Decision on the Admissibility of Evidence of Witness KDD, para. 9 (November 1, 2004). 517 Ibid. 518 Ibid. 519 Prosecutor v. Karemera et al., No. ICTR-98-44-T, supra note 512, S. 388, para. 11. 520 Ibid. 521 Ibid., para. 19. 522 See Prosecutor v. Haradinaj et al., No. IT-04-84-T, Decision on Defence Request for Audio-Recording of Prosecution Witness Proofing Sessions, para. 2 (May 23, 2007), where the Defence complained about the “discrepance between in-court testimony and proofing notes” of the Prosecution.

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Figure 31: Disclosure of Names and Witness Statements at the ICC

pre-trial stage and disclosure takes place early enough”, the disclosure obligations of the Prosecution may compensate the disadvantages of the defence.524 Thus, the Chambers admitted that especially late witness proofing could lead to disclosure problems.525 Nevertheless, the Trial Chamber in 523 See Prosecutor v. William Samoei Ruto and Joshua Aarap Sang, ICC-01/0901/11-452, Joint Defence Response to Prosecution Motion Regarding Scope of Witness Preparation, para. 13 (September 12, 2012), where the Defence submitted that “‘proofing’ should primarily remain a pre-trial activity to be conducted during the investigations stage [. . .]. It should not be done in tandem with, or instead of, the witness familiarization program conducted by the VWU. Nor should it be done once the witness has been brought to the place of testimony and shortly before he or she provides evidence to the chamber. To do so blurs the line between investigation and proofing on the one hand and a rehearsal of the evidence on the other. This potentially prejudices the accused because it typically leads to late disclosure of information and is more likely to produce contaminated testimony.” 524 Ambos, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 599, 614 with further references. 525 See, for instance, Prosecutor v. Milutinovic ´ et al., No. IT-05-87-T, Decision on Ojdanic´ Motion to Prohibit Witness Proofing, para. 21 (December 12, 2006): “[I]t appears as though it is the late proofing of witnesses, rather than proofing in

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the Karemera case points out that should a witness recall and add details to his or her prior statements during the review of his or her evidence, several remedies are possible, such as providing additional time to the Defence for its preparation or, where appropriate, the exclusion of the evidence.526 “Each time, the Chamber will apply the appropriate remedy on a case-bycase basis in conformity with the rights of the Accused, including the right to be tried without undue delay. The Chamber, however, considers that the Prosecution should give notice at the earliest possible date of any additional information the witness is likely to provide during testimony.”527

VI. Prosecution Disclosure Prior and at the Confirmation Hearing 1. U.S.A. As described previously,528 in U.S. criminal procedure two forms of pretrial control exist as far as felonies are concerned: first, the preliminary hearing (also called the preliminary examination), where the judge determines whether the state can show that there is probable cause to believe that the defendant has committed the crime as charged.529 Second, in the federal system and in some states, felony matters are referred to a grand jury as well as, or in place of, the preliminary hearing.530

and of itself, that may be leading to disclosure difficulties.”; Prosecutor v. Lamaj et al., No. IT-03-66-T, supra note 504, S. 387, p. 3, considering “late notice of new material, and a failure to provide signed statements of new or changed evidence”. For further references see Carter and Pocar, International Criminal Procedure (2013), pp. 93 f. 526 Prosecutor v. Karemera et al., No. ICTR-98-44-T, supra note 512, S. 388, para. 20; Prosecutor v. Bagosora et al., No. ICTR-98-41-T, Decision on Admissibility of Evidence of Witness DP (November 18, 2003). 527 Prosecutor v. Karemera et al., No. ICTR-98-44-T, ibid.; Prosecutor v. Blagojevic´ and Jokic´, IT-02-60-PT, supra note 255, S. 345, para. 22, 23. 528 Supra E. IV. 2. c) bb) (2). 529 CF. Rule 5 of the FRCP; McCord and McCord, Criminal Law and Procedure, rd 3 ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 70. 530 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19; Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 72.

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a) Preliminary Hearing In many jurisdictions the preliminary hearing is brief, with a strong probability that the case will proceed.531 However, it can also be “quite lengthy compared to a defendant’s initial appearance”.532 The preliminary hearing is a formal adversarial proceeding conducted in open court with a transcript made of the proceedings.533 That means that the prosecution presents evidence and then the defence can challenge it and even present its own evidence.534 In that sense, Rule 5.1(e) FRCP provides: “At the preliminary hearing, the defendant may cross-examine adverse witnesses and may introduce evidence but may not object to evidence on the ground that it was unlawfully acquired.” Because the preliminary hearing is not supposed to be a trial, rigid rules of evidence followed during trials are relaxed during these hearings.535 This is often criticised by practitioners, like the prosecution in Myers v. Commonwealth before the Supreme Judicial Court of Massachusetts, Suffolk, which argued “that granting defendants inflexible statutory rights to cross-examine witnesses against them and to present testimony in their own behalf would transform the preliminary hearing into a full-blown trial with disastrous results to a criminal justice system that is already overburdened.”536 However, the court responded that “past experience indicates that trial strategy usually prevents such a result as both the prosecution and the defence wish to withhold as much of their case as possible.”537 The defence in particular usually refrains from presenting evidence and witnesses, but may do so “in those rare instances where assertion of key facts such as evidence supporting affirmative defenses is likely to lead to a permanent dismissal of the charge.”538 531 Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 238. 532 See Hall, Criminal Law and Procedure, 5th ed (2009), p. 447. 533 Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 70; Hall, ibid., p. 447; See McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 422. 534 See Samaha, Criminal Procedure, 8th ed (2012), p. 422; McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 422. 535 Samaha, ibid., p. 422; McCord and McCord, ibid., p. 420. 536 Myers v. Commonwealth, 363 Mass. 843 (1973), at 856; 298 N.E.2d 819, 828 (1973). 537 Myers v. Commonwealth, 363 Mass. 843, 856 (1973); 298 N.E.2d 819, 828 (1973), continuing: “(N)ormally defense counsel will be more concerned at the preliminary with exploring rather than destroying the prosecution’s case. If they were aware of the defects in testimony capable of attack on cross-examination, most lawyers would prefer to save the attack for trial rather than tip their hand at this early stage.”, citing Graham and Letwin, 18 U.C.L.A. L. Rev. (1979–1971), 916, 926.

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Therefore, prosecutors reveal only enough of the state’s evidence “to satisfy the bindover standard”.539 Hence, how much material the defence actually receives during preliminary hearings, depends on several factors540 such as the following, outlined by Kamisar et al.: “(1) whether the prosecution can rely entirely on hearsay reports and thereby sharply limit the number of witnesses it presents; (2) whether, even assuming hearsay cannot be used, the bindover standard may be satisfied by the presentation of a minimal amount of testimony on each element of the offense; (3) whether, notwithstanding the ease with which the standard is met, the prosecution still follows a general practice of presenting most of its case; (4) whether the defendant is limited, both in cross-examination and in the presentation of witnesses, to direct rebuttal of material presented by the prosecution; (5) whether the defendant is willing to bear the tactical costs that may be incurred in utilizing his subpoena and cross-examination authority for discovery purposes.”541

Although the purpose of the preliminary hearing is for the judge to determine whether the state can show that there is probable cause to believe that the defendant has committed the crime as charged, it may also “provide the defense with the most valuable discovery technique available to him”, at least in those jurisdictions where pre-trial discovery is restricted.542 Therefore, the United States Court of Appeals (District of Columbia) states that “the purpose of a preliminary hearing is to afford the accused (1) an opportunity to establish that there is no probable cause for his continued detention and thereby to regain his liberty and, possibly, escape prosecution, and (2) a chance to learn in advance of trial the foundations of the charge and 538 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 422. See the interesting advice the authors give to law practitioners, that perfectly illustrates the approach to presenting evidence at the preliminary hearing: “If you work for the prosecution, explain to the victim the purpose of the hearing, and why the prosecutor will not be putting in all available evidence and calling all available witnesses. If you work for the defense, explain to the client and possibly close friends or family in attendance why the defense attorney may be calling witnesses and eliciting evidence that seems harmful to the defendant, and why the attorney is not objecting more at the hearing.” 539 Samaha, Criminal Procedure, 8th ed (2012), p. 422. Some states use the preliminary hearing to determine if the accused will be “bound over” for a grand jury hearing. In these states, there must be a finding of cause at the preliminary examination before a grand jury hearing will be held. Other states use the preliminary examination to determine whether the accused should be bound over for trial, bypassing grand jury proceedings altogether, see Del Carmen, Criminal Procedure, 7th ed (2007), p. 42; McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 422. 540 See McCord and McCord, ibid., p. 420. 541 Kamisar, LaFave and Israel, Modern Criminal Procedure, 11th ed (2005), p. 900. 542 United States ex re. Wheeler v. Flood, 269 F.Supp. 194, 198 (1967).

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the evidence that will comprise the government’s case against him.”543 The federal rules have been interpreted so that the preliminary hearing serves both purposes – determining probable cause and discovery – but do not specifically favour one purpose vis-a-vis the other.544 b) Grand Jury Proceedings The grand jury proceeding serves the same function as the preliminary hearing, i. e. “to prevent hasty and malicious prosecutions, to protect people from mistakenly being humiliated in public, and to decide whether there are grounds for prosecution.”545 However, grand jury proceedings are nonadversarial and are traditionally conducted in secrecy.546 The grand jury has broad investigative powers, including the power to subpoena people and documents.547 The prosecutor decides what witnesses need to be called and who should be given immunity.548 Those who testify before the grand jury are not entitled to have counsel in the jury room.549 However, most jurisdictions “permit target and other witnesses to suspend proceedings to leave the hearing room to consult counsel on a particular question”.550 Moreover, the usual rules of evidence applying at the trial stage do not apply to grand jury proceedings, e. g. illegally obtained evidence and hearsay evidence are admissible.551 This characterisation of the grand jury proceeding, which just has been described,552 imposes an important change on the disclosure description.553 While I have described what material the prosecution has to disclose or pre543

Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894, 901 (1965). McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 420. 545 Ibid., p. 34; Cole and Smith, Criminal Justice in America, 6th ed (2011), p. 19. See supra E. IV. 2. c) bb) (2). 546 Ferdico, Fradella and Totten, Criminal Procedure, 10th ed (2009), p. 75; Hall, Criminal Law and Procedure, 5th ed (2009), p. 450. 547 Ferdico, Fradella and Totten, ibid., p. 75. 548 Hall, Criminal Law and Procedure, 5th ed (2009), p. 450. 549 See Rule 6(d)(1) FRCP; In re Groban’s Petition, 352 U.S. 330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957) and U.S. v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); see also Hall, ibid. 550 McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 440. 551 U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, 66 O.O.2d 320 (1974); Costello v. U.S., 351 U.S. 904, 76 S.Ct. 692, 100 L.Ed. 1440 (1956), cf. McCord and McCord, ibid. 552 See supra E. IV. 2. c) bb) (2). 553 Disclosure is generally prohibited in grand jury proceedings, see Del Carmen, Criminal Procedure, 7th ed (2007), p. 45; Hall, Criminal Law and Procedure, 5th ed (2009), p. 450. 544

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sent to the defence, in grand jury proceedings the questions are: what does the prosecutor have to present to the grand jury and what is the defendant entitled receive? In other words: because of both the secrecy and the nonadversarial nature of the grand jury proceedings and the investigatory powers of the grand jury, the grand jury serves as a filter or even a dispenser with regard to disclosure, belonging to “no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people.”554 That does not mean that the grand jury is completely independent from the judicial branch.555 In fact, “its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office.”556 The two questions shall be elaborated in greater detail: aa) What Does the Prosecutor Present? With regard to the first question, i. e. what the prosecution has to present before a grand jury, it is important to note that in theory, the prosecutor is merely a legal adviser to the grand jury.557 In practice, however, the prosecutor dominates the proceeding.558 Grand jurors hear only the witnesses summoned by the prosecutor, and, as laypeople, they are heavily influenced by the legal advice of the prosecutor.559 Thus, the prosecutor does not have to present all evidence that he or she intends to rely on at the trial, as clarified in U.S. v Williams: “A grand jury proceeding is an ex parte investigatory proceeding to determine whether there is probable cause to believe a violation of the criminal laws has occurred, not a trial. Requiring the prosecutor to ferret out and present all evidence that could be used at trial to create a reasonable doubt as to the defendant’s guilt would be inconsistent with the purpose of the grand jury proceeding and would place significant burdens on the investigation.”560 This also applies to exculpatory evi554 See Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960); Hale v. Henkel, 201 U.S. 43, 61, 26 S.Ct. 370, 373, 50 L.Ed. 652 (1906). 555 There is, however, a “functional independence”, see U.S. v. Williams, 504 U.S. 36, 48 (1992). 556 See United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974); Rule 6(a) FRCP. 557 Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 247. 558 Ibid. 559 Ibid. 560 U.S. v. Williams 504 U.S. 36, 69 (1992); 112 S.Ct. 1735, 1753, 1754 (1992).

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dence,561 and has been criticised.562 Prior to the aforementioned Williams case, the courts were split on the question of whether prosecutors have an obligation to present to the grand jury substantially exculpatory evidence in their possession.563 Thus, with regard to ethical rules and standards, inter alia,564 Cassidy suggests that “states should impose upon prosecutors the duty to disclose to the grand jury all substantial and admissible exculpatory evidence – that is, evidence that primarily suggests either that the defendant did not commit the crime, or that someone else did – wherever omitting such facts would constitute a distortion of the evidence presented.”565 In the same vein, the National Association of Criminal Defense Lawyers proposed the following rule: “No prosecutor shall knowingly fail to disclose to the federal grand jury evidence in the prosecutor’s possession that exonerates the target or subject of the offense. Such disclosure obligations shall not include an obligation to disclose matters that affect credibility such as prior inconsistent statements or Giglio materials.”566

561 Ibid., 37; ibid., 1736, 1737: “[R]equiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence.” 562 See generally Cassidy, 13 Geo. J. Legal Ethics (1999–2000), 361, 369 ff., 403; Hall, Criminal Law and Procedure, 5th ed (2009), p. 450 (“Defendants have no right to know what evidence is presented to a grand jury, unless it is exculpatory (tends to prove the defendant’s innocence)”). 563 Compare United States v. Page, 808 F.2d 723, 728 (10th Cir. 1987) (“substantial exculpatory evidence [. . .] must be revealed to the grand jury”), United States v. Romano, 706 F.2d 370, 374 (2nd Cir. 1983) (“A dismissal is warranted only in extreme circumstances [. . .] the prosecutor is not obligated to present all possible defenses to a grand jury.”), and United States v. Flomenhoft, 714 E2d 708, 712 (7th Cir. 1983) (“while prosecutors need not present to the grand jury all circumstances which might be considered exculpatory, they must present evidence which clearly negates the target’s guilt.”), with United States v. Lasky, 600 F.2d 765, 768 (9th Cir. 1979) (“The prosecution was not required to present the grand jury with evidence which would tend to negate guilt.”), and United States v. Ruyle, 524 F.2d 1133, 1135 (6th Cir. 1975) (“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed . . . An indictment returned by a legally constituted and unbiased grand jury . . . is enough to call for a trial of the charge on the merits.”). 564 Cassidy, 13 Geo. J. Legal Ethics (1999–2000), 361, 377 ff. 565 Ibid., 403.

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Moreover, some states have enacted statutes that relax the secrecy of grand jury proceedings, e. g. allowing the target of a grand jury investigation to appear before the grand jury and either make a personal statement or give evidence on his own behalf.567 A number of states have even enacted statutes that, either expressly or by interpretation, require a prosecutor to disclose exculpatory evidence to the grand jury.568 Prosecutors in New York, for example, must disclose to the grand jury exculpatory evidence that is so “substantial” or “important” that it might reasonably affect the jury’s decision to indict.569 Due to this rather restricted duty to present evidence by the prosecutor, inter alia, the grand jury was criticised for being “the prosecutor’s darling,” a “puppet,” or a “rubber stamp.”570 A 1975 study found that the average time spent per case was only five (!) minutes;571 in 80 per cent of cases, there was no discussion by members of the grand jury;572 rarely did members voice a dissent;573 and the grand jury approved virtually all of the prosecutor’s recommendations.574 Thus, many commentators in recent years 566 National Association of Criminal Defense Lawyers, Evaluating Grand Jury Reform in Two States: The Case for Reform (November 2011), p. 31. 567 Cassidy, 13 Geo. J. Legal Ethics (1999–2000), 361, 384: “Nevada, New York, New Mexico, and Georgia each have departed from the federal rule via statutes allowing the target of a grand jury investigation to appear and give evidence on his own behalf. These statutes differ from one another in several respects.” (fn. omitted). 568 Ibid., 385, 386 with further references. 569 National Association of Criminal Defense Lawyers, Evaluating Grand Jury Reform in Two States: The Case for Reform (November 2011), p. 11. 570 See Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 247 with further references. 571 Carp, 55 Soc.Sci.Q. (1975), 853, 857, 858: “This average time of five minutes includes the assistant district attorney’s summary of the case and his recommendation as to how the case should be decided (about one minute per case), the hearing of testimony by whatever witnesses are called, and the actual secret deliberations by the grand jury on each case individually.” 572 Ibid: “The evidence also suggests that grand juries do discriminate in the amount of time allotted to specific categories of cases, that is, while a grand jury might spend several hours investigating and discussing a prominent murder or rape case, it might spend less than a minute dealing with the average robbery or drunken driving case.” 573 Ibid., 859: “The evidence further indicates that as the grand jury term progresses, there is a tendency toward increased unanimity in its voting patterns.” 574 Ibid., 860: “Although the interview data suggest that grand jurors are often critical of the prosecutor for inadequate and careless preparation of cases, for insensitivity to the inequities of our legal system, and for presenting the grand juries with inordinately heavy caseloads, the evidence also reveals that most grand juries tend (or are forced by circumstances) to rely heavily on the skill and integrity of the district attorney in deciding whether or not to bring an indictment.”

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have called for reform of the grand jury575 and many states have abolished the grand jury altogether in favour of other methods of pre-trial case screening, such as the use of judicial probable cause hearings.576 The reform proposals include – apart from the already mentioned extension of the disclosure obligations and allowing the suspect to testify – giving the grand jury administrative staff or independent legal counsel,577 prohibiting the use of hearsay testimony or forbidding resubmission of a case after a grand jury has initially declined to indict.578 bb) What Does the Defendant Receive? The second question of disclosure before a grand jury is, what is the defendant entitled to receive? This is an important question because under the grand jury procedure the prosecutor discovers information that may otherwise have been unavailable.579 Nevertheless, in general terms, a grand juror, the prosecutor and other grand jury participants “must not disclose a matter occurring before the grand jury”.580 Because a “matter occurring before the grand jury” is not defined by Rule 6(e) FRCP, the United States Court of Appeal found that the “grand jury secrecy rule covers not only evidence actually presented to that body but also anything that may tend to reveal what transpired before it, such as summaries of grand jury testimony”.581 The reason for this secrecy rule is that the “[p]urpose of [. . .] Rule 6(e)(2) is to protect the inner workings of the grand jury; the more a document reveals about that work, the greater the protection it receives under that rule.”582 Thus, not disclosable are, apart from the already mentioned “summaries of grand jury testimony” and “evidence actually presented to that body”: “grand jury minutes or witness transcripts”,583 “the identities of witnesses or jurors, the substance of testimony”,584 and “actual 575 See Arenella, 78 Mich. L. Rev. (1980), 463, 558; Campbell, 64 J. Crim. L. & Criminology (1973), 174, 174; see Simmons, 82 B.U. L. Rev. (2002), 1, 22, 68–73. 576 Cassidy, 13 Geo. J. Legal Ethics (1999–2000), 361, 363. 577 Amar, 28 U.C. Davis L. Rev. (1995), 1169, 1185. 578 See Washburn, 76 Fordham L. Rev. (2007–2008), 2333, 2336, 2337 with further references. 579 Hall, Criminal Law and Procedure, 5th ed (2009), p. 451. 580 Rule 6(e)(2)(B) FRCP. 581 U.S. v. Eastern Air Lines, Inc., 923 F.2d 241 (1991), 18 Media L. Rep. 1714 (1991). 582 In re Grand Jury Investigation, 55 F.3d 350, 353–354 (1995), citing In re Grand Jury Proceedings Relative to Perl, 838 F.2d 304, 306–307 (8th Cir.1988). 583 In re Grand Jury Investigation, 55 F.3d 350, 354 (1995). 584 In re Motions of Dow Jones & Co., 142 F.3d 496, 500 (1998); 330 U.S.App.D.C. 48, 52 (1998), citing SEC v. Dresser Indus., Inc., 628 F.2d 1368,

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transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”585 Does that mean that evidence or material that falls under the aforementioned disclosure rules is excluded from disclosure just because it is reviewed by the grand jury and therefore qualifies as a “matter occurring before the grand jury”? The answer is clearly no.586 As the U.S. Court of Appeals explained: “[I]t is not the purpose of the Rule to foreclose from all future revelation to proper authorities the same information or documents which were presented to the grand jury. Thus, when testimony or data is sought for its own sake – for its intrinsic value in the furtherance of a lawful investigation – rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury.”587

Thus, unlike testimony, documents that are presented to the grand jury are usually “created for purposes other than the grand jury investigation; they are therefore more likely to be useful for purposes other than revealing what occurred before the grand jury.”588 In other words, a document cannot be withheld merely on the basis that it was presented to the grand jury.589 Apart from these documents that do not qualify as a “matter occurring before the grand jury”, there is certain evidence, which does qualify as a “matter occurring before the grand jury” and the defendant is nevertheless entitled to obtain such evidence.590 Rule 16(a)(1)(B)(iii) FRCP, for exam1382 (D.C.Cir.1980) (en banc); Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981). 585 In re Motions of Dow Jones & Co., ibid.; Fund for Constitutional Gov’t v. National Archives & Records Serv., ibid. 586 In re Grand Jury Investigation, 630 F.2d 996, 1000 (3rd Cir. 1980): “The mere fact that a particular document is reviewed by a grand jury does not convert it into a ‘matter occurring before the grand jury’ within the meaning of 6(e).” 587 U.S. v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2nd Cir. 1960); see also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 291. 588 See U.S. v. Stanford, 589 F.2d 285, 291 (7th Cir. 1978), citing Illinois v. Sarbaugh, 552 F.2d 768, 772 n.2 (7th Cir.), Cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174 (1977). The Court continues: “Persons may have a legitimate interest in documents so that disclosure to them does not constitute disclosure of matters occurring before the grand jury.”, citing, e. g., United States v. Weinstein, 511 F.2d 622 (2nd Cir.) Cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). 589 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 292. 590 In more detail Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 292; see also the advice by McCord and McCord, Criminal Law and Procedure, 3rd ed (2006), p. 443: “A good defense team also does everything possible to obtain a copy of the grand jury record. To do so lessens the prosecutor’s advantage from being involved in the hearing and observing all the witnesses and evidence. Further, review of critical testimony may lay the groundwork for impeaching

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ple, obliges the government to “disclose to the defendant, and make available for inspection, copying, or photographing [. . .] the defendant’s recorded testimony before a grand jury relating to the charged offense.” Moreover, the disclosure of prior recorded statements of prosecution witnesses provided for by the Jencks Act and Rule 26.2 FRCP591 also apply to grand jury proceedings,592 of course, subject to restrictions.593 Moreover, Rule 6(e)(3)(E) FRCP entitles the court to authorise disclosure in certain circumstances.594 However, in those circumstances the defendant must show a “particularized need” for the grand jury material.595 This need arises when a litigant seeks to use “the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like.”596 The U.S. Court of Appeals in U.S. v. Plummer explained what constitutes a “particularized need”: “The standards the district court should follow when lifting the secrecy of a government witness whose trial testimony is inconsistent with testimony given at the grand jury. [. . .] A defense letter requesting the record, accompanied by a blank tape or computer disk, is one method to obtain the record.” 591 See supra F. V. 1. b). 592 See Jencks Act 18 USC § 3500(e)(3): “The term ‘statement’, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means [. . .] a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” See also Rule 26.2(f)(3): “As used in this rule, a witness’s ‘statement’ means [. . .] the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.” 593 See supra F. V. 1. b). See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 293 and Ch. 3. 594 The court may authorize disclosure – at a time, in a manner, and subject to any other conditions that it directs – of a grand-jury matter: (i) preliminarily to or in connection with a judicial proceeding; (ii) at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury; (iii) at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation; (iv) at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state-subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or (v) at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.” 595 Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 217 (1979); 99 S.Ct. 1667, 1672 (1979). However, overruled on other grounds by Agency Holding Corp. v. Malley-Duff and Assocs., Inc., 483 U.S. 143 (1987); United States v. Morales, 258 F.R.D. 401, 404 (E.D. Wash 2009); see Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 293 with fn. 175. 596 United States v. Procter & Gamble Co., 356, 683 U.S., 78 S.Ct. 987.

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grand jury proceedings are (1) that the desired material will avoid a possible injustice, (2) that the need for disclosure is greater than the need for continued secrecy, and, (3) that only the relevant parts of the transcripts should be disclosed.”597 As Cary, Singer and Latcovitch point out, a defence request for grand jury materials is more likely to be successful if it justifiably requests particular information as opposed to requesting all grand jury material without limitation.598 Furthermore, courts are “more prone to find a ‘particularized need’ in complex cases with multiple witnesses.”599 2. UK As I have outlined above, all prosecutions start in the Magistrates’ Court.600 If the offence is not a summary offence and the magistrates do not decide in favour of the Magistrates’ Court (in case of an offence triable either way) and fix a date for summary trial, but decide in favour of a trial on indictment, a committal proceeding is conducted in order to determine whether there is a sufficient prima facie case to go before the Crown Court.601 This proceeding has undergone many changes in the last three decades.602 Until 1967, the committal proceedings involved an oral hearing 597 U.S. v. Plummer, 941 F.2d 799, 806 (9th Cir. 1991), citing Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979). 598 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 294, citing United States v. Campbell, 324 F.3d 497, 498–499 (7th Cir. 2003) (“[D]efendant did not try to taylor his request; a demand for all transcripts of all testimony is a fishing expedition, which Rule 6(e) forbids.”). 599 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 294, citing U.S. v. Evans & Associates Const. Co., Inc., 839 F.2d 656, 658, 659 (10th Cir. 1988): “In the instant case, appellees gave these specific reasons why they needed the material: the passage of time between the events alleged, some events occurred nearly twenty years ago; the grand jury testimony was the only source of ‘fresh’ testimony available; there would be no interference with an ongoing investigation; the complexity of the charges; the number of potential witnesses; the volume of testimony heard by the grand jury; and finally, because the testimony would be extremely helpful to Evans in preparing its case because the testimony consisted of statements made by witnesses who testified in support of the conspiracy and much of their testimony would be uncorroborated. Assertions were also made by the Government in its motion for a continuance filed September 15, 1986 wherein it also argued the complexity of the case legally and factually, the voluminous evidence attendant to a 13-year course of conduct, and that it anticipated calling fifty witnesses and introducing hundreds of documents.” 600 Partington, English Legal System, 4th ed (2008), p. 108. 601 Slapper and Kelly, English Legal System, 10th ed (2009), pp. 166, 167. 602 Epp, Building on the Decade of Disclosure (2001), p. 159.

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of at least the prosecution witnesses.603 This has been made optional in 1967,604 reducing the committal proceeding to a mere formality.605 By the CPIA 1996,606 the interrogation of witnesses during committal proceedings was abolished, which essentially turned the proceeding into a mere written procedure.607 Finally, in 2001, the committal proceeding itself was abolished for all offences triable on indictment608 and for offences triable either way when Sched 3 to the Criminal Justice Act 2003 came into force609 with the Criminal Justice Act 2003 (Commencement No. 28 and Saving Provisions) Order 2012. a) The Old Committal Having outlined this development, there is now only one occasion in which the judges determine whether there is a sufficient prima facie case: when the Defence asks for it. Thus, in case of an indictable only offence and an either way offence (since 2012), the defence may apply for a hearing where the Crown Court determines that the “evidence against the applicant would not be sufficient for a jury properly to convict him.”610 However, because the abolishment of committal proceedings for either way offences has been made only recently and for the purpose of comparison with the confirmation hearing at the ICC, it is worth looking at the procedure of the committal proceedings before the Criminal Justice Act 2003 (Commencement No. 28 and Saving Provisions) Order 2012 came into force. In the case of either way offences, the defendant could choose between committals in the “old style” (s. 6(1) of the Magistrates’ Courts Act 1980 [MCA 1980]) and “new style” committals (s. 6(2) MCA 1980).611 Under the old style committal, the hearing was contested.612 According to s. 6(1) 603 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 142, 172. 604 Ibid.; cf. Schulte-Nover, Strafrichter in Deutschland und England (2003), p. 235; Ambos and Miller, 7 ICLR (2007), 335, 350. 605 Cf. also Huber, in: Perron, ed., Die Beweisaufnahme im Strafverfahrensrecht des Auslands (1995), p. 11, 29; Schulte-Nover, ibid., p. 220. 606 S. 47 CPIA 1996. 607 Ambos and Miller, 7 ICLR (2007), 335, 350 with further references. 608 Under the s. 51 Crime and Disorder Act 1998. See also Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 258. 609 Slapper and Kelly, English Legal System, 10th ed (2009), p. 171; Ashworth and Redmayne, ibid., p. 258. 610 S. 2(2) of Schedule III of the Crime and Disorder Act 1998; Ashworth and Redmayne, ibid. 611 Cf. Slapper and Kelly, English Legal System, 10th ed (2009), p. 171.

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MCA 1980, “[a] magistrates’ court inquiring into an offence as examining justices shall on consideration of the evidence (a) commit the accused for trial if it is of opinion that there is sufficient evidence to put him on trial by jury for any indictable offence; (b) discharge him if it is not of that opinion and he is in custody for no other cause than the offence under inquiry [. . .].” The magistrates heard and examined the evidence although the prosecution would only read out its witness statements and exhibits with the defendant’s lawyer asking the magistrates to rule that there was insufficient evidence to proceed.613 By contrast, under the “new style” committal, the magistrate “may commit the accused for trial for the offence without consideration of the contents of any statements, depositions or other documents, and without consideration of any exhibits which are not documents”.614 The defendant would decide to choose this variant of the committal proceedings “if it is clear that there is a prima facie case to answer”.615 Thus, the choice in favour of the “old style” or “new style” committal was a tactical one.616 However, it is important to note that while the “old style committal” prior to 1967 had several advantages for the defence,617 the “old style” after 1967 was of “little use to defendants”, because no witnesses could be called to give oral evidence.618 The only evidence tendered at an “old style” committal was prosecution evidence and that evidence had to be in writing.619 Furthermore, the prosecutor was not under a duty to disclose all their evi612 Ibid.; Epp, Building on the Decade of Disclosure (2001), pp. 160 f. calls the two variants of committal proceedings “long form committals” and “short form committals”. 613 Slapper and Kelly, English Legal System, 10th ed (2009), p. 171. 614 S. 6(2) of the Magistrates’ Courts Act 1980. 615 Slapper and Kelly, English Legal System, 10th ed (2009), p. 171. 616 Ibid. 617 Epp, Building on the Decade of Disclosure (2001), p. 161: “The process provided an opportunity to discover in full all of the evidence of a witness who was called and find out whether there were other witnesses or information that had not been previously mentioned. It provided the defence with an opportunity to consider the resolve and apparent credibility of the witnesses. Also, it is considered that skilled counsel could uncover defects in evidence garnered through manipulative interviewing techniques used by investigators. Cross-examination of the investigator could provide important information. The process also assisted in gleaning the prosecution’s theory regarding how the alleged criminal activity, and the crime, unfolded. If required, the court was able to subpoena and hear third party witnesses. Consequently, the committal process afforded the defence with the opportunity to become better informed about the case to be met at trial in the Crown Court.” 618 Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), p. 451. 619 Ibid.

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dence at a committal, at was decided in Wilkinson v. CPS.620 The Divisional Court held that: “[i]n committal proceedings the context involved no final decision as to guilt. Always remembering that there was a clear duty on the prosecution, whether at trial or in the course of committal proceedings, not to mislead the court. Further, the changes as to the form of committal proceedings did not affect the principle that the prosecution might choose which witnesses to rely upon for the purposes of committal proceedings.”621

Lord Bingham CJ stated that the prosecutor does not need not to tender before the examining justices more than a small part of the evidence, which might be called at the trial, provided he does not mislead the court or take unfair advantage of the defendant.622 With regard to prosecution disclosure for the purpose of the committal hearing, the prosecution was required to disclose: “(a) a summary of the evidence on which that case will be based; or (b) any statement, document or extract setting out facts or other matters on which that case will be based; or (c) any combination of such a summary, statement, document or extract; and (d) the defendant’s previous convictions.”623

S. 5A MCA 1980 determined what prosecution evidence was admissible in committal proceedings.624 The format of prosecution witness statements was provided for in s. 5B of the Magistrates Court Act 1980.625 Where the 620

Wilkinson v. CPS (1998) 162 JP 591; Crim. L.R. 1998, Oct, 743–744; 63 J. Crim. L. 1999, 17–19. Cf. Corker and Parkinson, Disclosure (2009), p. 68. 621 Wilkinson v. CPS (1998) Crim. L.R. 1998, Oct, 744. 622 Wilkinson v. CPS (1998), 63 J. Crim. L. 1999, 17, 18. See also R v. Epping and Harlow Justices, ex parte Massaro (1973) 57 Cr App R 499; Niblett, Disclosure (1997), p. 35. 623 Rule 21.3. of the Criminal Procedure Rules 2012; see also Emson, Evidence, 5th ed (2010), p. 514. 624 Corker and Parkinson, Disclosure (2009), p. 68. 625 S. 5B(2) and (3) of the Magistrates Court Act 1980: “The conditions falling within this subsection are that (a) the statement purports to be signed by the person who made it; (b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true; (c) before the statement is tendered in evidence a copy of the statement is given, by or on behalf of the prosecutor, to each of the other parties to the proceedings.

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defendant chose the “old style” committal, any statement admitted in evidence was “read aloud at the hearing; and where the court so directs an account shall be given orally of so much of any statement as is not read aloud.”626 S. 5(C) and (D) dealt with depositions and statements, while s. 5(E) defined “other documents” that may be admissible and s. 5(F) provides for “proof by production of a copy”. Under the “new style” committal the prosecution had to serve on the defendant the bundle of prosecution witness statements, unless those statements had been previously disclosed pursuant to the “advance information” rules in Part 21 of the Criminal Procedure Rules 2012.627 At the hearing itself, the bundle of witness statements had to be handed to the magistrates, who would not read the witness statements but check that there was no submission on behalf of the defendants that there was no case to answer.628 Assuming there was no such submission, the defendant would be committed to stand trial at the Crown Court.629 b) A Case to Answer Before the Crown Court Today, as previously mentioned, the committal proceedings I have described have been abolished for indictment only and – very recently – either way offences. Instead, the defence may apply for a hearing where the Crown Court determines whether the “evidence against the applicant would not be sufficient for a jury properly to convict him.”630 The judge has discretion as to whether to hear oral evidence on the application.631 According to Regulation 2 of the Crime and Disorder Act 1998 (Service of (3) The conditions falling within this subsection are that (a) if the statement is made by a person under 18 years old, it gives his age; (b) if it is made by a person who cannot read it, it is read to him before he signs it and is accompanied by a declaration by the person who so read the statement to the effect that it was so read; (c) if it refers to any other document as an exhibit, the copy given to any other party to the proceedings under subsection (2)(c) above is accompanied by a copy of that document or by such information as may be necessary to enable the party to whom it is given to inspect that document or a copy of it.” 626 S. 5B(4) of the Magistrates Court Act 1980. 627 Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), p. 448. 628 Ibid. 629 Ibid. 630 S. 2(2) of Schedule III of the Crime and Disorder Act 1998; Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 258. 631 S. 2(3) and (4) of Schedule III of the Crime and Disorder Act 1998: “No oral application may be made under sub-paragraph (1) above unless the applicant has given to the Crown Court sitting at the place in question written notice of his intention to make the application. Oral evidence may be given on such an application only with the leave of the judge or by his order; and the judge shall give leave or

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Prosecution Evidence) Regulations 2005, a person sent to Crown Court on an indictable only or either way offence is entitled to “copies of the documents containing the evidence on which the charge or charges are based, [. . .], no later than 70 days after the date on which the person was sent for trial or, in the case of a person committed to custody under section 52(1)(a) of the Act, no later than 50 days after that date”. The Crown Court may extend this time limit upon application by the prosecution.632 If the defence submits that there is no case to answer (i. e. it applies a hearing where the Crown Court determines whether the “evidence against the applicant would not be sufficient for a jury properly to convict him”), the judge is required “to take into account the whole of the evidence against a defendant, and to decide whether he is satisfied that it was sufficient for a jury properly to convict the defendant.”633 Hence, it is not appropriate for the judge “to view any evidence in isolation from its context and other evidence, any more than it is appropriate to derive a meaning from a single document or from a number of documents without regard to the remainder of the document or the other connected documents before the Court.”634 Justice Stanley Burnton, emphasising the central question of whether sufficient evidence exists, states: “That exercise requires the judge to assess the weight of the evidence. This is not to say that the judge is entitled to substitute himself for the jury. The question for him is not whether the defendant should be convicted on the evidence put forward by the prosecution, but the sufficiency of that evidence. Where the evidence is largely documentary, and the case depends on the inferences or conclusions to be drawn from it, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw from the documents, and decide whether it appears to him that the jury could properly draw those inferences and come to those conclusions.”635

make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so.” 632 See Fehily v. Governor of Wandsworth Prison [2002] EWHC 1295; [2003] 1 Cr App R 10; see also Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed (2009) p. 443; Corker and Parkinson, Disclosure (2009), p. 71; Tapper, Cross and Tapper on Evidence, 11th ed (2007), p. 302 with fn. 113. 633 R. (on the application of Inland Revenue Commissioners) v. Kingston Crown Court, [2001] 4 All ER 721; 2001 WL 825037 (Official Transcript), para. 16; see also Hungerford-Welch, ibid. 634 R. v. Kingston Crown Court, ibid.; see also Hungerford-Welch, ibid. 635 R. v. Kingston Crown Court, ibid.; see also Hungerford-Welch, ibid., pp. 443, 444.

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c) Conclusion As I have previously described, in the same breath as the committal proceedings at the Magistrates’ Court disappeared, many hearings prior to the commencement of the trial have been introduced, such as the pre-trial hearing or preliminary hearing, the PCMH and the preparatory hearing.636 Some see the introduction of those various hearings as one reason why the committal proceedings at the Magistrates’ Court have been made unnecessary, together with the above-mentioned expansion of the disclosure regime637 and “something as banal as the invention of the photocopying machine”.638 The creation of the CPS which, whatever its flaws, does review the strength of the case and does discontinue a considerable number of prosecutions, may also be part of the explanation.639 Others see in the extensive use of those hearings a shift away from the traditional “adversarial” or “trial centered” procedure.640 Therefore, it is hardly surprising that the courts start to caution against the excessive use of those hearings. In R v. I,641 for example, the Court of Appeal gave guidance on preparatory hearings and endeavoured to restrict their use. LJ Hughes stated in this case, that “[v]irtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal.”642 The decision declares that a preparatory hearing must be made by the judge alone and cannot be made by agreement between the parties.643 636

See supra E. IV. 2. c) bb) (1). See supra F. III. 2. 638 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 258. 639 Ibid. 640 See supra E. IV. 2. c) bb) (5). 641 [2009] EWCA Crim 1793; [2010] 1 Cr App R 10. 642 Ibid., 21. 643 Ibid., LJ Hughes continues to summarise what ought to be the practice for such hearings: “(i) Given the co-extensive powers of case management outside the preparatory hearing regime, courts ought to be very cautious about directing a preparatory hearing under section 29 CPIA or section 7 CJA 1987; in particular, the desire of one party to test a ruling by interlocutory appeal is not a good enough reason for doing so, unless the point is one of the few which is genuinely suitable for that procedure (see para 21 above) and there is a real prospect of such appeal being both capable of resolution in the absence of evidence and avoiding significant wastage of time at the trial. (ii) A decision that a judge who has conducted a preparatory hearing should not conduct the trial is one which must be made by the judge concerned. It must not be made administratively, for example by the listing officer. (iii) Such a decision must be made only after a hearing at which all parties have had the opportunity to make representations. 637

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3. ICC As I described at the very outset, the reason for the study have been the different interpretations of disclosure and communication provisions for the purpose of the confirmation hearing. So far, I have shown disclosure rules that are independent from any trial stage, which means that they also apply to the stage prior to the confirmation hearing. In order to grasp those disclosure provisions that apply merely to this stage of the proceedings, it is necessary to refrain from the approach of focusing on the “what” (i. e. the material) of disclosure and conduct a stage-dominated approach instead, i. e. focusing on the “when”. The following description of the disclosure process prior to and at the confirmation hearing will be somewhat incomplete because it will dispense with a clear opinion on the disputes about the scope of disclosure, especially prior to the confirmation hearing. The reason for this is obvious: those disclosure disputes are the reason why this study had recourse to Damaška’s models and analysed the entire international criminal process. Therefore, the result of a contextual interpretation of the (pre-trial) disclosure problems described at the outset will be presented at the end of this study. Hence, at this point I will merely describe the confirmation hearing, the disclosure prior and at the confirmation hearing and the problems that are caused by the different understanding of the confirmation hearing. a) The Confirmation Hearing Before I outline the relevant disclosure rules, it is necessary to characterise the confirmation hearing in more detail. When a person has been surrendered to the Court, or appeared voluntarily or due to a summons, the PreTrial Chamber must be satisfied that the person was informed of the alleged crimes and of his or her rights set out in Art. 55 ICC-Statute.644 As I have (iv) The ordinary rule is that the judge who has had conduct of the preparatory hearing should also conduct the trial. (v) That rule may not be departed from without compelling reason. (vi) Before departing from it, the judge, if not himself the court’s resident judge, ought to consult that judge, and all judges should consult one of the circuit’s presiding judges; they will of course respect any directions or advice given. (vii) Active steps must be taken in the planning of court business and judicial commitments to avoid wherever possible the necessity for a judge to find himself having to consider leaving any complex case between case management/preparatory hearing and trial; if, unusually, that necessity should arise in a preparatory hearing case (as it did here) the question to be resolved is not a matter of law but of judgment for the judge; this court could interfere only if his decision were one which no reasonable judge could arrive at.” (at 22). 644 See Calvo-Goller, The Trial Proceedings of the ICC (2006), p. 169.

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described,645 the interface between this investigation and trial stage is the confirmation hearing as provided for in Art. 61 ICC-Statute.646 It has been suggested – together with the initial proceedings (Art. 60 ICC-Statute) and the disclosure of evidence – that the confirmation hearing constitutes an intermediate phase, which has to be treated as a separate phase.647 According to Art. 61(1) ICC-Statute, “within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.”648 The last sentence suggests that the confirmation hearing is to be held in the presence of the accused as well as his or her counsel.649 However, the Pre-Trial Chamber “may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial” under the conditions laid down by Art. 61(2) ICC-Statute. In principle, the confirmation hearing is held in public,650 but parts of it may take place in closed session (in camera) in order to protect witnesses.651 At the confirmation hearing, the Prosecutor “shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.”652 The structure of the hearing is laid down in Rule 122 ICC-RPE.653 The accused may challenge the Prosecutor’s evidence and pre645

See supra E. IV. 2. c) bb) (4). Ambos, Internationales Strafrecht, 3rd ed (2011), p. 330; Ambos and Miller, 7 ICLR (2007), 335, 336. Calvo-Goller, The Trial Proceedings of the ICC (2006), pp. 169 ff.; Safferling, International Criminal Procedure (2012), p. 316. 647 Ambos and Miller, ibid.; Marchesiello, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1231, 1239 ff.; Stegmiller, The Pre-Investigation Stage of the ICC (2011), p. 59. 648 For a drafting history of this article, see Shibahara and Schabas, in: Triffterer, ed., Commentary (2008), pp. 1171 ff. 649 Schabas, Introduction to the ICC, 4th ed (2011), p. 291. 650 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06-672, Decision on the Defence request for leave to appeal regarding the transmission of applications for victim participation (November 6, 2006). 651 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04–01/06-678, Decision on the Schedule and Conduct of the Confirmation Hearing (November 7, 2006); see also Schabas, Introduction to the ICC, 4th ed (2011), p. 291. 652 Art. 61(5) ICC-Statute; in more detail on the threshold requirement Ambos and Miller, 7 ICLR (2007), 335, 345; Safferling, International Criminal Procedure (2012), pp. 339, 340. 653 See in more detail Ambos and Miller, ibid., 346. 646

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sent evidence.654 The Registry is required to create and maintain a full record of all proceedings before the Pre-Trial Chamber, including all documents.655 The Prosecutor, the defendant (or the person concerned) and the victims have access to this record.656 According to Art. 61(7) ICC-Statute, at the confirmation hearing, the Pre-Trial Chamber must “determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” The decision setting out its findings – made by the majority and not a single judge657 – shall be delivered in written form within 60 days of the date on which the confirmation hearing ends.658 Interestingly, where the evidence presented does not meet the required threshold for confirming the charges as required by Art. 61(7)(a) ICC-Statute, and because such evidence is not irrelevant and insufficient to a degree that merits declining to confirm the charges under Art. 61(7)(b) ICC-Statute,659 the Pre-Trial Chamber shall “[a]djourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.”660 The confirmed charges constitute – in the words of Safferling – the “final indictment”.661 This decision can only be appealed “if the specific requirements Art. 61(6) ICC-Statute; Schabas, Introduction to the ICC, 4th ed (2011), p. 291 with reference to Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/ 06-1486, Decision on the Consequences of Nondisclosure 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, Separate Opinion of Judge Georghios M. Pikis, para. 43 (October 21, 2008). 655 Rule 121(10) ICC-RPE; Safferling, International Criminal Procedure (2012), p. 321; Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 25, italics added. See supra E. II. 4.; IV. 2. a) bb) (2) (c) and c) aa). 656 Safferling, International Criminal Procedure (2012), p. 321. About the question whether victims should have access to all documents in the record or only to public evidence see Bock, Das Opfer vor dem IStGH (2010), pp. 525 ff. with further references. 657 See Art. 57(2) ICC-Statute. 658 Regulation 53 RegCourt; Safferling, International Criminal Procedure (2012), p. 325. 659 See Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-388, Decision Adjourning the Hearing Pursuant to Article 61(7)(c)(ii) of the Rome Statute, para. 16 (March 3, 2009): “Only after this evidence is provided will the Chamber be in a position to make its final determination on the merits. This process requires analysis and evaluation of the evidence and related documents already before the Chamber in order to justify the request for further evidence.” 660 Art. 61(7)(c) ICC-Statute. 661 Safferling, International Criminal Procedure (2012), p. 325. 654

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under article 82(l)(d) of the Statute are met, and leave of the Chamber is granted.”662 Therefore, the Chamber is not obliged to give reasons for its decision.663 b) Disclosure Prior to and at the Confirmation Hearing According to Art. 61(3) ICC-Statute, “[w]ithin a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing.” A detailed provision on what shall be included in the document containing the charges can be found in the Regulations of the Court.664 Together with the document containing the charges, the OTP must provide a list of the relevant evidence (Art. 61(3)(a) ICC-Statute; Rule 121(3) ICC-RPE; Regulation 51 RegCourt). Rule 121 ICC-RPE complements Art. 61(3) ICC-Statute in so far as it provides “a detailed regime governing disclosure of evidence prior to the confirmation hearing.”665 According to that provision, the Pre-Trial Chamber must receive all evidence 662 Prosecutor v. Bahar Idriss Abu Garda, No. ICC-02/05-02/09-267, Decision on the “Prosecution’s Application for Leave to Appeal the ‘Decision on the Confirmation of Charges’”, p. 5, 6 (April 23, 2010): “[T]his Chamber and other Chambers of the Court have previously and consistently held, the decision on the confirmation of charges was intentionally excluded by the drafters of the Statute from the categories of decisions which may be appealed directly to the Appeals Chamber.” with reference to Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-915, Decision on the Prosecution and Defence applications for leave to appeal the Decision on the confirmation of charges, para. 19 (May 24, 2007); Prosecutor v. Jean-Pierre Bemba Gombo, No. ICC-01/05-01/08-532, Decision on the Prosecutor’s Application for Leave to Appeal the “Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, para. 12 (September 18, 2009); Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.l, 14 April 1998, pp. 126–127; Brady and Jennings, in: Lee, ed., The Making of the Rome Statute (1999), p. 294, 300. 663 Safferling, International Criminal Procedure (2012), p. 337. 664 Regulation 52 RegCourt: “The document containing the charges referred to in article 61 shall include: (a) The full name of the person and any other relevant identifying information; (b) A statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court; (c) A legal characterisation of the facts to accord both with the crimes under articles 6, 7 or 8 and the precise form of participation under articles 25 and 28.” 665 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 407.

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disclosed between the Prosecutor and the person666, making necessary orders for disclosure, and organising status conferences to ensure that disclosure occurs under satisfactory conditions.667 Rule 121 ICC-RPE demonstrates that the Prosecutor does not have to present all inculpatory evidence he or she indents to rely at the confirmation hearing.668 Moreover, the Registry “shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule.”669 Both of those facts create the far-reaching problems I have outlined at the outset of this study: first, how much evidence should be disclosed inter partes prior to the confirmation hearing? Second, how much evidence should be communicated to the Pre-Trial Chamber? Third, how much evidence should be registered into the record of proceedings? While these questions are not difficult to answer with regard to inculpatory evidence, things get complicated when it comes to evidence the OTP does not wish to use at the confirmation hearing, i. e. exculpatory material.670 As I have described at the outset, the various Chambers answer those questions differently: with regard to first question, the Bemba PTC requires the Prosecution “to disclose the evidence which is of true relevance to the case, whether that evidence be incriminating or exculpatory”,671 while the Lubanga PTC considers it sufficient to disclose the “bulk” of exculpatory evidence prior to the confirmation hearing and all exculpatory evidence thereafter.672 With regard to the second question the Bemba PTC demands “communication of all exculpatory evidence”,673 while the Lubanga PTC takes a different view and states that only the exculpatory evidence on which the parties intend to rely at the confirmation hearing has to be com666

The ICC-Statute deliberately avoids using the word “suspect”. According to Marchesiello, the person concerned may be considered as “suspect” prior to the formal investigation, as “investigated” after the formal investigation has been authorised, and as “indicted” or “accused” during the pre-trial and trial phase, see Marchesiello, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1231, 1234 ff. Crit. Ambos and Miller, 7 ICLR (2007), 335, 339, 340. 667 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 407. 668 Brady, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 261, 266. 669 Rule 121(10) ICC-Rules. 670 In England and Wales, this material is called “unused material”, see supra F. III. 2. 671 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 67. 672 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 119 ff., 124. 673 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 28.

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municated to the Chamber.674 The third question is answered by the Bemba PTC to the extent that “all evidence is to be registered into the record of the case by the Registry and that, for the registration, they are to accord the Registry a reasonable time”.675 The Lubanga PTC disagrees: “[O]nly the evidence on which the parties intend to rely at the confirmation hearing is communicated to the Pre-Trial Chamber by filing it in the record of the case.”676 Again, these questions will be answered at a later stage of this study, since they are not merely disclosure problems but go to the heart of the international criminal process. In other words – and this cannot be emphasised enough – these questions cannot be answered without making some crucial decisions about the ICC process as a whole. It should also not be forgotten, that there could be disclosure even earlier than disclosure “prior to the confirmation hearing”. In the Mbarushimana case the, prior to Mbarushimana’s surrender to the ICC, the defence filed a disclosure request for material related to the arrest of Mbarushimana, in particular “information forming the basis for the Prosecutor’s application pursuant to Article 58 of the Rome Statute”, “material sought in three requests for disclosure made by the Defence to the Prosecutor” and “exculpatory and/or materially relevant information necessary for the pursuit of challenges under Article 19(2)(a) of the Rome Statute and Rule 117(3)”.677 The Chamber noted that the right to disclosure of documents for the three purposes identified by the Defence were “not expressly set forth in the Statute or the Rules”.678 However, the existence of a right to such disclosure for the purposes of applications for interim release was confirmed by the Appeals Chamber in Bemba.679 Partially granting the request of the defence, the Pre-Trial Chamber affirmed the defence the right to have access to documents which are essential for the purposes of applying for interim release and challenging the validity of the arrest warrant, but limited the scope of disclosure because of the sensitive nature of the material.680 674 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 41, 50 ff. 675 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 55. 676 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 47, 57. 677 Prosecutor v. Callixte Mbarushimana, No. ICC-01/04-01/10-47, Decision on the Defence Request for Disclosure, para. 1–3 (January 5, 2011). 678 Ibid., para. 10. 679 Prosecutor v. Bemba, No. ICC-01/05-01/08-323, supra note 297, S. 130, para. 28. 680 Prosecutor v. Callixte, No. ICC-01/04-01/10-47, supra note 677, S. 413, para. 15 ff.

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c) Conclusion: The Purpose, Aim and Nature of the Confirmation Hearing One of the reasons why provisions governing the disclosure regime prior to and at the confirmation hearing are interpreted differently is the disagreement as to what the purpose and nature of the confirmation hearing is. The idea of a confirmation hearing was new to international criminal procedure,681 and so a comparison with the procedural rules at the ICTY/ICTR or at the SCSL does not bring any insights: at the former, the procedure to confirm the indictment is a mere review of the charges, pursuant to Art. 19(1) ICTY-Statute and Art. 18(1) ICTR-Statute, and the latter provides for a review of an indictment according to Rule 47 SCSL-RPE.682 Thus, the Pre-Trial Chambers at the ICC see themselves as being in a position to identify the purpose and nature of the confirmation hearing. According to the Pre-Trial Chamber in Katanga and Chui, “[t]he purpose of the confirmation hearing is to ensure that no case proceeds to trial without sufficient evidence to establish substantial grounds to believe that the person committed the crime or crimes with which he has been charged. This mechanism is designed to protect the rights of the Defence against wrongful and wholly unfounded charges.”683 The Chamber further remarks “that the confirmation hearing has a limited scope and purpose and should not be seen as a ‘mini-trial’ or a ‘trial before the trial.’”684 This was confirmed by the Appeals Chamber: “This limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The PreTrial Chamber need not be convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe. This limited purpose is also reflected in the fact that the Prosecutor may rely on documentary and summary evidence and need not call the witnesses who will testify at trial.”685 Schabas, Introduction to the ICC, 4th ed (2011), p. 288. In more detail Safferling, International Criminal Procedure (2012), pp. 317 ff. 683 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, No. ICC-01/0401/07-717, Décision relative à la confirmation des charges, para. 63 (30 September 2008). 684 Ibid. 685 Prosecutor v. Callixte Mbarushimana, No. ICC-01/04-01/10-514, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges”, para. 47 (May, 30 2012). 681 682

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This wording recalls the statements of US courts regarding the purpose of a preliminary hearing. These courts perceive a danger of turning the preliminary hearing into a “full blown trial” in a theoretical sense, which is avoided by the parties’ rather restrained disclosure tactics. However, the similarities to the United States preliminary hearing are not as obvious as they might seem: of course, on the one hand, both hearings are oral hearings, structured in an adversarial manner and serve the purpose of determining whether there is sufficient evidence to have a case against the defendant. On the other hand, the judge conducting the preliminary hearing does not have the same inquisitorial rights as the Pre-Trial Chamber has during the confirmation hearing. Furthermore, it is often overlooked that while in the US-system the defendant is charged by the prosecutor, the “charge” in ICC-proceedings is formally issued by the Pre-Trial Chamber’s confirmation decision.686 This becomes apparent by the comparison of Rule 5.1 FRCP and Art. 61(3)(a) ICC-Statute. The first sentence of Rule 5.1 FRCP reads: “If a defendant is charged with an offense other than a petty offense, a magistrate judge must conduct a preliminary hearing [. . .].”687 By contrast, para. 3 letter (a) of Art. 61 ICC-Statute, a provision named “Confirmation of charges before trial”, lays down that “[w]ithin a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial [. . .]”.688 Thus, while in US proceedings, before the preliminary hearing the person is already charged and called “the defendant”, the ICC-Statute avoids using the terms “accused” or “defendant” and speaks of “person” instead, which means, that the suspect becomes the person charged only after the confirmation decision has been rendered.689 This is nothing unusual in International Criminal Procedure, as Rule 47(H)(ii) SCSL-RPE demonstrates: “Upon approval of the indictment [. . .] [t]he suspect shall have the status of an accused.”690 In sum, the preliminary hearing in the U.S.A. does not serve as a role model for the confirmation hearing and does not give any indication of its purpose or nature. The same applies to the grand jury proceeding. In this proceeding, the investigative role of the grand jury is certainly something that slightly resembles the investigative role of the Pre-Trial Chamber during the confirmation proceedings. However, this is probably the only simi686

Cf. Safferling, International Criminal Procedure (2012), p. 317. Italics added. 688 Italics added. 689 Cf. Schabas, Introduction to the ICC, 4th ed (2011), p. 289. 690 See Safferling, International Criminal Procedure (2012), p. 317, who also refers to Rule 47(H)(ii) SCSL-RPE. 687

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larity. In the confirmation hearing, the prosecutor does not have the same role as his counterpart in the grand jury proceeding, who serves as a legal advisor to the grand jury, deciding what witnesses need to be called and who should be given immunity. Moreover, the restricted rights of the defence to present evidence and to be represented by counsel in the grand jury proceeding are not similar to the approach in the confirmation hearing. Hence, it is fair to say that “a kind of pre-trial supervision of the indictment is recognized in both common and civil law jurisdictions.”691 On the one hand, the proceeding may be “similar to that in the German Criminal Procedure Code”;692 on the other hand, in Germany the judge who examines the prosecutor’s decision to indict from both a factual and legal perspective is the same judge as in the actual trial phase.693 This is not the case at the ICC, where the Pre-Trial Chamber conducts the confirmation hearing and the Trial Chamber is responsible for the trial.694 In addition, Art. 39(4) ICC-Statute even states that “under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case.”695 The confirmation hearing also resembles the Italian model of pre-trial hearings and the French (and Belgian) model of the hearings of the Chambre de l’Instruction, while at the same time Ambos and Miller demonstrate the differences: “German and Italian judges may directly raise additional evidence, whilst their ICC counterparts leave this to the Prosecutor. In France, the oral hearing of the Chambre de l’Instruction is only an appeal to the Juge d’Instruction, not the standard procedure.”696 Schabas writes that “[t]he confirmation hearing seems to resemble preliminary hearings held under common law procedure, allow691 Ambos and Miller, 7 ICLR (2007), 335, 356; see also Ambos, 58/59 The Review (1997), 45, 56. 692 Shibahara and Schabas, “Confirmation of the charges Before Trial”, in: Triffterer, ed., Commentary (2008), mn. 5. 693 Stuckenberg, “Vor § 198”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, Vol. V, 26th ed (2008), mn. 8. Crit. Roxin and Schünemann, Strafverfahrensrecht, 27th ed (2012), § 40 mn. 3; Kühne, Strafprozessrecht, 8th ed (2010), mn. 622.1 f. (“Gleichwohl ist die Möglichkeit eines psychologischen Konflikts des Richters nicht von der Hand zu weisen, der in der Hauptverhandlung so denken und handeln muss, als ob er zu der Wahrscheinlichkeit der Tatbegehung durch den Beschuldigten niemals zuvor eine Entscheidung gefällt hätte. [. . .]”); Ambos and Miller, 7 ICLR (2007), 335, 355. 694 However, it must be noted that this separation between Trial and Pre-Trial Chamber is not be done cognitively, because the (usually) reasoned confirmation decision is transmitted to the Trial Chamber. For more information see supra E. IV. 2. a) bb) (2) (a) and (c) and infra F. VIII. 2.; G. I. 695 See, additionally, Regulation 46(1) RegCourt: “The Presidency shall constitute permanent Pre-Trial Chambers with fixed compositions.” 696 Ambos and Miller, 7 ICLR (2007), 335, 357.

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ing the Court to ensure that a prosecution is not frivolous and that there is sufficient evidence for a finding of guilt.” With regard to the preliminary hearing in the U.S.A., I have explained why such similarity does not exist. However, the abolished committal proceedings in England and Wales did include some resembling features: they were conducted before another court than the trial court (which is not the case with the new committal-like proceedings before the Crown Court), and both the prosecution and the defence could present evidence. In sum, the comparison with the review-procedures of different countries are not very useful to determine the purpose of the confirmation hearing at the ICC. However, what can be drawn from those comparisons is the conclusion that it would be too easy to say that the confirmation hearing has a limited scope and purpose and should not be seen as a “mini-trial” or a “trial before the trial.”697 This statement simply ignores the practical impact the confirmation hearing has. As Calvo-Goller remarks, “a charge confirmed by the Pre-Trial Chamber gives a strong presumption of the person’s guilt even before the trial begun.”698 This could be especially true if the Defence “decides to lodge all the available exculpatory evidence according to article 61 (6)”, with the result that, after the confirmation, “the accused could possibly find herself in a position, where her guilt is prejudiced and she needs to prove her innocence.”699 Therefore, as persistently as the PreTrial Chambers may demand that the confirmation hearing should not be a trial before a trial (or a “mini trial”), the reality shows that this proceeding may indeed be capable of being such a trial.700 As I did not commit myself to research on how the ICC-Process should be, but how the ICC-Process is, I cannot attach great importance to the statements of the Pre-Trial Chambers in this regard. In fact, the purpose of the confirmation hearing is not only to serve as a filter ensuring that the “really important cases go to trial”, but also to avoid time-consuming discussions about disclosure of evidence in the trial phase.701 This can inter alia be concluded from a statement by the Pre-Trial Chamber in Nourain and Jerbo Jamus: “[T]he relationship between the pre-trial phase and the 697 Prosecutor v. Katanga and Chui, ICC-01/04-01/07-717, supra note 683, S. 414, para. 64. 698 See Calvo-Goller, The Trial Proceedings of the ICC (2006), p. 171. 699 Ambos and Miller, 7 ICLR (2007), 335, 348. 700 Shibahara and Schabas, “Confirmation of the charges Before Trial”, in: Triffterer, ed., Commentary (2008), mn. 7; Calvo-Goller, The Trial Proceedings of the ICC (2006), p. 171; Ambos and Miller, ibid. 701 Ambos and Miller, ibid., 347, 348; see also Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 276; Fourmy, in: Cassese, Gaeta and Jones, eds., Rome Statute, Vol. II (2002), pp. 1207, 1225.

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trial phase of the proceedings goes beyond the filtering of cases by the PreTrial Chamber for the benefit of the Trial Chamber.”702 It also takes into account, that the ICC-Rules enable the Pre-Trial Chamber to “manage the hearing rather rigorously”703 by several trial mechanisms such as the creation of a record of the proceedings that is held by the Registry and even transmitted to the Trial Chamber.704 As to the statement of the Pre-Trial Chamber in Katanga and Chui, holding that the confirmation hearing “is designed to protect the rights of the Defence against wrongful and wholly unfounded charges”,705 the Pre-Trial Chamber in Nourain and Jerbo Jamus replies: “First and foremost, it should be recalled that the proceedings leading to the confirmation hearing are not provided for the sole benefit of the parties. The aim of the procedural framework laid down in the Statute is to allow the facts alleged by the Prosecutor as forming the basis of the most serious criminal offences to be presented in full whenever either the interests of justice, which are paramount, or the interests of the victims, which are also critical, so require.”706

As long as the Pre-Trial Chambers deny that the confirmation hearing is both practically and legally a “mini trial”, it is difficult – even impossible – to conduct a coherent interpretation of the disclosure rules. There is a clear discrepancy between disclosure restrictions (such as authorising the prosecution only to disclose the “bulk” of exculpatory material to the defence, or allowing the prosecution to communicate only the evidence it intends to rely upon the confirmation hearing) on the one hand and both the practical consequences of a positive confirmation decision and the structure of the confirmation hearing (which, e. g., provides for investigative powers of the Pre-Trial Chamber) on the other hand. Again, my opinion on the interpretation of the disclosure regime prior to the confirmation hearing shall not be of interest here. However, it must be noted that the purpose of the confirmation hearing is one of the parameters, which is crucial in deciding which interpretation shall be preferred. Therefore, I agree with Safferling when he says: “At the end of the day it has to be decided whether the confirmation of charges hearing is the little sister of the trial, or whether it merely bears the function of filtering out cases which are obviously without merit. In the latter case the hearing can be considerably shortened and the decision 702 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC-02/05-03/09-121-CORR-RED, Corrigendum of the “Decision on the Confirmation of Charges”, para. 32 (March 8, 2011). 703 Safferling, International Criminal Procedure (2012), pp. 321, 322. 704 Rule 121(10) ICC-Rules, see supra E. IV. 2. a) bb) (2) (a) and (c). 705 Prosecutor v. Katanga and Chui, ICC-01/04-01/07-717, supra note 683, S. 414, para. 63. 706 Prosecutor v. Nourain and Jerbo Jamus, ICC-02/05-03/09-121-CORR-RED, supra note 702, S. 418, para. 45.

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should nor be reasoned.”707 This decision has obviously not been made yet. On the one hand, the Pre-Trial Chamber in Katanga and Chui emphasised that the confirmation hearing “is designed to protect the rights of the Defence against wrongful and wholly unfounded charges”, on the other hand the Pre-Trial Chamber in Banda Nourain and Jerbo Jamus replied “that the proceedings leading to the confirmation hearing are not provided for the sole benefit of the parties.” Likewise, one the one hand “[t]he purpose of the confirmation hearing is to ensure that no case proceeds to trial without sufficient evidence to establish substantial grounds to believe that the person committed the crime or crimes with which he has been charged”, on the other hand “the relationship between the pre-trial phase and the trial phase of the proceedings goes beyond the filtering of cases by the Pre-Trial Chamber for the benefit of the Trial Chamber.” Finally, on the one hand the confirmation hearing “should not be seen as a ‘mini-trial’”, on the other hand the Pre-Trial Chamber in the Lubanga confirmation decision “carefully evaluated the evidentiary materials presented both by the Prosecutor and the Defence (listing the pieces of evidence to which the Chamber attached particular weight in order to issue its decision and even citing some excerpts from them), it looked for corroboration and interlinking of the single elements tendered by the Prosecution in order to find ‘strong’ grounds, it considered the views and concerns of the victims’ legal representatives and, finally, it took into account the exculpatory materials proposed by the Defence, their value, their strength and their potential to convince the three judges that the grounds to confirm the charges are insufficient. For all these steps, PTC I gave a detailed statement of its findings.”708

In the same vein, Safferling remarks that the Pre-Trial Chambers “have acted as though this was indeed intended and have decided issues such as the admissibility of evidence according to Art. 69(7) ICC-Statute, which is systematically not applicable at the pre-trial stage”,709 and Schabas states that “[j]udges have used the confirmation hearing to recharacterize the crimes in light of the evidence presented.”710 English practice today demonstrates that an extensive provision of material for the purpose of determining whether sufficient evidence exists to have a case to answer is nothing unusual: while in the committal proceedings, which have now been abolished for indictable only and either way of707 Safferling, International Criminal Procedure (2012), p. 338; see also Schabas, Introduction to the ICC, 4th ed (2011), p. 288, stating that the confirmation hearing “has proven to add significant length to the trial proceedings overall.” 708 Miraglia, 6 JICJ (2008), 489, 498 about the Lubanga Confirmation decision. On the effect this has for the impartiality of the Trial Judges see supra E. IV. 2. a) bb) (2) (a) and (c) and infra F. VIII 2.; G. I. 709 Safferling, International Criminal Procedure (2012), p. 338. 710 Schabas, Introduction to the ICC, 4th ed (2011), p. 288.

Figure 32: General Prosecution Disclosure Obligations at the ICC

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fences, the prosecution did not have to tender before the examining justices more than a small part of the evidence which might be called at the trial, at the hearing where the Crown Court determines whether the “evidence against the applicant would not be sufficient for a jury properly to convict him”,711 the judge is required “to take into account the whole of the evidence against a defendant, and to decide whether he is satisfied that it was sufficient for a jury properly to convict the defendant.”712 Of course, one could argue that both situations – the hearing before the Crown Court and the confirmation hearing – are by no means comparable, since the Crown Court is also the court where the decision about the guilt of the defendant is made, while at the ICC this is done by the Trial Chamber and not by the Pre-Trial Chamber. However, this argument would be flawed, because the two situations are indeed comparable: in both situations the person who decides whether there is a case to answer for the defendant is not identical to the decision maker who decides on the guilt of the defendant. At the ICC, the decision makers are different judges; at the Crown Court, the decision maker is the jury.

VII. Sanctions The following analysis of pre-trial disclosure at the ICC, in England and Wales and in the U.S.A. is the final analysis in this regard, before I come to a final conclusion. It deals with sanctions for disclosure failures and will be the most important analysis for categorising pre-trial disclosure along the lines of Damaška’s concept. 1. U.S.A. In the U.S.A., if a party does not comply with the rules of disclosure, the court can impose sanctions. The source of these sanctions can be very different: the sanctions can be mandated by the applicable rules themselves, they can be mandated by the US Constitution or they can be within the inherent power of the court.713 Because the “potential remedies are many and varied, and the appropriate order typically depends on the facts and circumstances of the violation and the underlying case”,714 I will only outline the 711 S. 2(2) of Schedule III of the Crime and Disorder Act 1998; Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 258. 712 R. (on the application of Inland Revenue Commissioners) v. Kingston Crown Court, [2001] 4 All ER 721; 2001 WL 825037 (Official Transcript), para. 16; see also Hungerford-Welch, Criminal Procedure and Sentencing, 7th ed. (2009), p. 443. 713 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 386. 714 Ibid.

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general approach to sanctioning disclosure violations in the United States. Moreover, I will not describe any civil suits for disclosure violations, connected with the prosecutor’s absolute immunity.715 a) Sanctions by Rule or Statute Excluding special rules governing disclosure prior to or at the preliminary or grand jury hearing, the two most important disclosure provisions mentioned above are Rule 16 FRCP and the Jencks Act/Rule 26.2 FRCP. Rule 16(d)(2) lays down: “If a party fails to comply with this rule, the court may: (A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (B) grant a continuance; (C) prohibit that party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.”

As the word “may” suggests, the court has a broad discretion to sanction disclosure violations under this rule.716 The court is entitled to choose not to impose any sanctions and must only order a new trial based on alleged discovery error “when a defendant demonstrates prejudice to his substantial rights.”717 This discretion applies not only to the question of whether to impose a sanction at all, but also to the question of which sanction should be imposed. As Rule 16(d)(2)(D) FRCP makes clear, the potential sanctions are “illustrative and not exclusive”,718 because the court “may [. . .] enter any other order that is just under the circumstances”. In selecting a proper sanction, “a court should typically consider (1) the reasons the government delayed producing requested materials, including whether the government acted in bad faith; (2) the extent of prejudice to defendant as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance.”719 Therefore, Rule 16(d)(2)(D) FRCP grants a great deal of flexibility, ranging from entitling the defence counsel “to revise her opening statement or recall 715 For more information see Weeks, 22 Okla. City U. L. Rev. (1997), 833, 871 ff. 716 Cf. U.S. v. Cuellar, 478 F.3d 282, 293 (5th Cir. 2007) (“Rule 16(d)(2) states that the court ‘may’, but is not required to, impose sanctions.”). 717 U.S. v. Cuellar, ibid. 718 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 183. 719 U.S. v. Gonzales, 164 F.3d 1285, 1292 (10th Cir. 1999), citing United States v. Russell, 109 F.3d 1503, 1511 (10th Cir.1997); see also U.S. v. Brown, 592 F.3d 1088, 1090 (10th Cir. 2009).

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witnesses to the stand for additional examination”, in case a discovery violation is “uncovered in the middle of the trial”,720 to even a mistrial,721 although this might be a “drastic sanction”.722 The discretion to grant a mistrial remains unaffected even in cases of wilful non-disclosure,723 although some courts may suggest otherwise.724 The most controversial sanction is certainly the exclusion of evidence pursuant to Rule 16(d)(2)(C) FRCP. The courts are divided as to the approach to this sub rule: some courts have approved the exclusion of evidence, while others are more sceptical.725 Regarding the latter, the United 720

Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 185. U.S. v. Martinez, 455 F.3d 1127, 1130 (10th Cir. 2006) (“Depending on the circumstances, even a mistrial could be appropriate under Rule 16(d)(2)(D)”), citing United States v. Crouthers, 669 F.2d 635, 641 (10th Cir.1982) (suggesting that defendant could have moved for a mistrial). A mistrial is usually declared “merely because of circumstances that make it impossible or impracticable to continue the particular trial to conclusion”, see LaFave et al., Criminal Procedure, 5th ed ((Hornbook Series), 2009), p. 1214. Whether a retrial for the same offence is permitted, depends on the defendant’s consent or objection to a mistrial: A retrial is permitted “where a mistrial is ordered in response to a motion by a defendant or with the defendant’s consent.” This “results in a waiver of double jeopardy”. By contrast, a mistrial that is “declared by a judge despite the objection of the defendant ordinarily bars the defendant’s retrial”, with the exception that the mistrial “is based on manifest necessity”, see generally Lippman, Criminal Procedure (2011), pp. 536–538; Miller and Wright, Criminal Procedures, 4th ed (2011), p. 998. A “mistrial” should not be confused with a “dismissal”, which “is granted for an error or defect thought to present an absolute barrier to conviction on the offense charged”, see LaFave et al., ibid., p. 1214. The difference “is more procedural than substantive. A mistrial contemplates setting a new trial date for the same charge, while a dismissal requires the State to refile charges and begin again”, see Dressler and Thomas III, Criminal Procedure, 4th ed (2010), p. 1340. However, as it is the case with a mistrial, in some circumstances a second trial can also be forbidden after a dismissal, see Dressler and Thomas III, ibid., p. 1340; LaFave et al., ibid., pp. 1222 f. 722 U.S. v. Martinez, 455 F.3d 1127, 1130 with fn. 2 (10th Cir. 2006). 723 U.S. v. Clark, 385 F.3d 609, 621 (6th Cir. 2004) (“It is questionable, however, whether Rule 16 requires a mistrial even in cases of willful non-disclosure. The plain language of Rule 16(d)(2) is discretionary; it carves out no mandatory sanctions for willful violations.”) See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 186. 724 See, e. g., U.S. v. Muhammad, 948 F.2d 1449, 1455 (6th Cir. 1991): “Following Bartle, we find that absent a showing of some impropriety or willfulness by the government, it was within the district court’s discretion to admit Muhammad’s statement to Officer Snow.”, citing United States v. Bartle, 835 F.2d 646 (6th Cir.1987). This means argumentum e contrario, that it “would not be in the court’s discretion but a mandatory decision, if the defence shows “impropriety or willfulness by the government”. 725 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 185 with further references. 721

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States Court of Appeals viewed this sanction as “extreme”726 and the same court stated in a different case: “[W]e emphasize the Supreme Court has never approved exclusion of evidence as a sanction for government misconduct in the absence of a constitutional violation or statutory authority for such exclusion.”727 The Jencks Act and Rule 26.2 FRCP respectively create a similar situation. Rule 26.2(e) FRCP, which is named “Sanction for failure to produce or deliver a statement”, reads: “If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.” Interestingly, in comparison to 16(d)(2) FRCP, this rule has two peculiarities: first, the court has no discretion as to the sanction once the requirements have been fulfilled. Second, the rule distinguishes between sanctions against the defendant and sanctions against the prosecutor: if the defendant disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. By contrast, if the prosecutor disobeys an order to produce or deliver a statement, the court must declare a mistrial if justice so requires.728 In practice, however, the courts found a way to depart from the clear wording of Rule 26.2(e) FRCP, identifying certain discretion as to the choice of the sanction.729 The reason for this is the different wording of the Rule’s predecessor, the Jencks Act. According to 18 USC § 3500 (d), “[i]f the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.” Unsurprisingly, the United States Court of Appeals has stated: “When a prosecutor ‘elects not to comply’ with the Jencks Act requirements, the court shall strike the testimony from the record or shall declare a mistrial. The District Court is limited to these harsh remedies of subsection (d) only when the government ‘elects’ not to comply; in other words, only when the government intentionally or consciously chooses to ignore the disclosure requirements under the statute. When there is no bad faith or motive to suppress, and when any prejudice is curable at trial, the government has not ‘elected not to comply’ and subsection (d) does not control. When the violation occurs through negligence or oversight, U.S. v. Brown, 592 F.3d 1088, 1090 with fn. 4 (10th Cir. 2009). U.S. v. Gonzales, 164 F.3d 1285, 1292 (10th Cir. 1999). 728 Italics added. See also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 214. 729 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 214. 726 727

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the trial court has the discretion to formulate remedies as justice requires under the circumstances of the case.”730

Apart from the fact that Rule 26.2 FRCP was intended to replace the Jencks Act731 and the reference to the Jencks Act in cases where the outcome of applying Rule 26.2 FRCP is simply not suitable (which is nothing less than cherry-picking), not every court has agreed with the view of the United States Court of Appeals in U.S. v. Taylor. In U.S. v. Beasley, for instance, the court stated: “Because, under the Jencks Act, we consider results, not motive, we conclude that the government violated its statutory duty, however innocently, in failing to produce statements in the possession of a government department.”732 The United States Court of Appeals in U.S. v. Montgomery added: “[W]e have refused to fashion a good faith exception to the requirements of the Jencks Act”.733 b) Brady-Violation Sanctions? As I have outlined above, the obligation to disclose exculpatory material in the U.S.A. does not follow from a rule or a statute, but from the famous case Brady v. Maryland, which made disclosure of exculpatory evidence a constitutional (fair trial) rule.734 Thus, because the disclosure of exculpatory evidence is governed by case law, the same applies to the sanctions for disclosure violations.735 aa) Sanctions by Brady Itself, Due Process and Supervisory Powers The general limits of sanctions for violations, such as Brady violations – i. e. violations of a constitutional rule – have been defined by the United States Supreme Court in U.S. v. Morrison: “Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”736 Since the Supreme Court defines discloU.S. v. Taylor, 13 F.3d 986, 990 with further references (6th Cir. 1994). See supra F. V. I. b) with fn. 384, S. 365. 732 U.S. v. Beasley, 576 F.2d 626, 627 (5th Cir. 1978). 733 U.S. v. Montgomery, 210 F.3d 446, 451 (5th Cir. 2000); see generally Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 215. 734 See supra F. III. 1. a). 735 See generally Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), pp. 388 ff. 736 U. S. v. Morrison, 449 U.S. 361, 361 (1981); 101 S.Ct. 665, 668 (1981); see also Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 389. 730 731

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sure sanctions in rather general terms, this statement does not give an answer to the possibilities courts have to sanction Brady violations. In this regard, two stages of disclosure violations have to be distinguished: violations that are discovered after trial, or on appeal, and violations that are discovered during the trial.737 Because Brady is a post-trial assessment of whether the prosecutor’s suppression of evidence resulted in prejudice to the defendant,738 many courts demand a new trial:739 as I have previously mentioned,740 once the defendant has demonstrated a reasonable probability of a different outcome, the appellate court cannot find the failure to disclose harmless, since the reasonable probability test “necessarily entails the conclusion that the suppression [of the evidence] must have had ‘substantial and injurious effect or influence in determining the jury’s verdict.’”741 It is important to note, however, that the courts are not compelled to order a new trial. As briefly mentioned above,742 non-disclosure of exculpatory evidence is categorised as “harmless errors” instead of a violation of the constitution.743 Thus, the courts struggle to identify which prosecutorial failures to disclose are important enough to justify overturning a conviction.744 The question of a sanction for Brady violations becomes even more difficult in respect of a Brady violation during the trial.745 The courts have the possibility of ordering a new trial, as the United States District Court did in U.S. v. Washington, stating that the “Government’s failure to disclose impeachment evidence about key witness until after the first day of trial prejudiced defendant”.746 However, the courts may also impose a different re737

Cf. Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 389. Strickler v. Greene, 119 S. Ct. 1936,1948 (1999); supra F. III. 1. d). 739 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 389 with further references; see also State v. Munson, 886 P.2d 1000, the “best known Oklahoma violation of the disclosure requirement imposed by Brady”, where Munson’s conviction was overturned; Williamson v. Reynolds, 904 F. Supp. 1529 (E.D. Okla 1995); Silk-Nauni v. Fields, 676 F. Supp. 1076 (W.D. Okla 1987); see in more detail Weeks, 22 Okla. City U. L. Rev. (1997), 833, 851 ff.; 860 ff. 740 Supra note F. III. 1. c). 741 Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566 (1995). 742 Supra note F. III. 1. f). 743 See Kyles v. Whitley, 514 U.S. 419, 436–437 (1995), citing Bagley for the proposition that “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense”. 744 Miller and Wright, Criminal Procedures: Prosecution and Adjudication, 4th ed (2011), p. 285; about reform proposals in this regard see infra F. VIII. 1. a). 745 Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), pp. 389 f. 746 U.S. v. Washington, 294 F.Supp.2d 246 (2003) (“Defense counsel’s inability to investigate the circumstances of this conviction for false reporting before the start of trial, plan his overall trial strategy based on the investigative results, and his resulting inability to fully or effectively exploit the underlying facts of the conviction 738

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medy instead of ordering a new trial, because the deficient process was cured.747 The case of U.S. v. Struckman is remarkable for many reasons relating to possible sanctions for Brady violations: first, the trial court suppressed evidence derived from government representatives who violated their duty under Brady.748 Second, the United States Court of Appeals emphasised that “dismissal with prejudice may be an appropriate remedy for a Brady or Giglio violation using a court’s supervisory powers where prejudice to the defendant results and the prosecutorial misconduct is flagrant.”749 Third, the court noted that: “[e]ven if the federal government’s conduct does not rise to the level of a due process violation, a trial court may nonetheless dismiss an indictment with prejudice under its inherent supervisory powers (1) to implement a remedy for the violation of a recognized statutory or constitutional right, (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury, and (3) to deter future illegal conduct.”750

The latter particularly demonstrates the wide discretion a court in the United States has to impose a sanction for disclosure violations – not only with regard to violations of codified disclosure rules, but also to the rule to disclose exculpatory material, following Brady v. Maryland. bb) Civil Actions and Criminal Charges Against Prosecutors for Brady Violations In the U.S.A., lawyers working in the criminal justice system enjoy legal immunity, i. e. it is not possible to sue a prosecutor, defense attorney, or a judge just because of a lost case.751 The Supreme Court has decided that beyond the generalized credibility arguments, was, in the Court’s view, prejudicial to this defendant, in the context of this short and weak case. [. . .] As the Court’s earlier ruling discussed, in this case the combination of a short trial, weak Government evidence, and an overbearing prosecutor provided the context in which the claimed existence of prejudice caused by the late-disclosed material has been evaluated.”, at 250, 251). See Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 390 with fn. 22 for further references. 747 See U.S. v. Struckman, 611 F.3d 560, 578 (9th Cir. 2010): “[E]ven assuming the indictment process was deficient for its reliance on unlawfully obtained evidence, that deficiency was cured when Struckman was convicted by a jury after trial that excluded all of the suppressed evidence.” Cf. Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 389. 748 U.S. v. Struckman, 611 F.3d 560, 577 (9th Cir. 2010). 749 Ibid., italics added. 750 U.S. v. Struckman, 611 F.3d 560 (9th Cir. 2010). 751 Neubauer and Fradella, America’s Courts and the Criminal Justice System, 10th ed (2011), p. 133; Anenson, 31 Pepp. L. Rev. (2003–2004), 915, 916; Ribstein, 7 J.L. Econ. & Pol’y (2010–2011), 617, 634.

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prosecutors enjoy absolute immunity from civil lawsuits when acting as courtroom advocates.752 This doctrine of absolute immunity is based on the same Common Law principle753 that applies for judges and grand juries acting within the scope of their duties.754 It stems from “the very beginning of English jurisprudence for the purpose of protecting the advocacy system and its participants”, and reached the U.S.A. after colonisation.755 Absolute immunity “defeats a suit at the outset, so long as the official’s actions were within the scope of the immunity”, even if the official has made “grave” mistakes.756 Qualified immunity, on the contrary, protects low-level executive officials when “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”757 The formerly qualified “good-faith immunity”, which was dependent on the circumstances and motivation of the official’s actions,758 has therefore been made a slightly more objective test.759 Although the doctrine of absolute immunity exists in all fifty states of the U.S.A., there are still many open question regarding that doctrine,760 and whether the 752 See, for instance, Connick v. Thompson, 131 S.Ct. 1350, 1355–1356, 1366 U.S. 2011; Van de Kamp v. Goldstein, 555 U.S. 335, 338–339; Neubauer and Fradella, ibid., p. 139. 753 See already Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872). 754 Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976); Brink, 4 Charleston L. Rev. (2009–2010), 1, 3. 755 Anenson, 31 Pepp. L. Rev. (2003–2004), 915, 916, 918 ff.: “Common law courts have recognized absolute immunity for nearly 400 years. The origins of the litigation privilege have been traced back to medieval England. The privilege arose soon after the Norman Conquest and the introduction of the adversary system in the eleventh century. Courts have aptly declared that the doctrine of absolute immunity is ‘as old as the law.’” [fn. omitted]. 756 Stump v. Sparkman, 435 U.S. 349, 359 (1978); Anenson, ibid., 918. 757 Pearson v. Callahan, 555 U.S. 223, 231 (2009); Harlow v. Fitzgerald, 57 U.S. 800, 801, 805, 818, 102 S.Ct. 2727, 2737; Trammell, 47 Ga. L. Rev. (2013), 1099, 1154. 758 See Scheuer v. Rhodes, 416 U.S. 232, 238–239, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Wood v. Strickland, 420 U.S. 308, 320–322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975); Imbler v. Pachtman, 424 U.S. 409, 419, 96 S.Ct. 984 (1976); Anenson, 31 Pepp. L. Rev. (2003–2004), 915, 918: “The privilege applies regardless of malice, bad faith, or any nefarious motives on the part of the lawyer so long as the conduct complained of has some relation to the litigation.” 759 Brink, 4 Charleston L. Rev. (2009–2010), 1, 31. 760 Which – according to Anenson – include: “[T]he types of claims for which the doctrine provides immunity; whether the doctrine protects conduct as well as statements; the kinds of legal proceedings in which the privilege will attach; what constitutes the condition of ‘relevance;’ whether the privilege provides protection before and after, or only during, the lawsuit; and finally, whether the absolute immunity doctrine is considered a defense to or an immunity from suit.”, see Anenson, 31 Pepp. L. Rev. (2003–2004), 915, 927 ff.

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Prosecutor can be sued or not largely depends on the violation itself. In case of wrongful litigation, i. e. “frivolous claims being asserted through the judicial process against innocent parties”,761 a civil claim can be brought forward on the ground of so-called “malicious prosecution”, which is rooted in the Fourth Amendment’s protection against unreasonable seizures.762 Moreover, if an arrest is not supported by probable cause, there may be a civil suit based on the Common Law theory of false imprisonment.763 Civil actions can even be initiated based on abuse of process, which establishes the so-called “tort of abuse of process”.764 A different picture, however, occurs when the prosecutor suppressed exculpatory evidence. In the case Imbler v. Pachtman,765 the Supreme Court declined a civil suit “for malicious prosecution under Civil Rights Act of 1871” because of the absolute immunity766 of the prosecutor – although “such immunity leaves the genuinely wronged criminal defendant without civil redress against a prosecutor 761

Van Patten, 55 S.D. L. Rev. (2010), 214, 230. See, e. g., Pitt, 491 F.3d at 510; Gregory v. City of Louisville, 444 F.3d 725, 748 (6th Cir. 2006); Smart v. Bd. of Trustees of Univ. of Illinois, 34 F.3d 432, 434 (7th Cir. 1994); Uboh v. Reno, 141 F.3d 1000, 1003 (11th Cir. 1998); generally van Patten, 55 S.D. L. Rev. (2010), 214, 230. 763 See, e. g., Harris v. Bornhorst, 513 F.3d 503, 514–15 (6th Cir. 2008), cert. denied, 128 S.Ct. 2938 (2008); Kijonka v. Seitzinger, 363 F.3d 645 (7th Cir. 2004); Nunez Gonzalez v. Vasquez Garced, 389 F.Supp.2d 214 (D.P.R. 2005); generally van Patten, ibid., 231. 764 See, e. g., Hauser v. Bartow, 273 N.Y. 370, 7 N.E.2d 268. See also Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Association, Inc., Local 1889, AFT-CIO, et al., 38 N.Y.2d 397, 403, 343 N.E.2d 278, 282–283, 380 N.Y.S.2d 635, 642, 91 L.R.R.M. (BNA) (1975): “[T]hree essential elements of the tort of abuse of process can be distilled from the preceding history and case law. First, there must be regularly issued process, civil or criminal, compelling the performance or forebearance of some prescribed act. Next, the person activating the process must be moved by a purpose to do harm without that which has been traditionally described as economic or social excuse or justification [. . .]. Lastly, defendant must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of the process.” See also van Patten, ibid., 232 with further references. 765 For a detailed analysis of other case law see van Patten, ibid., 214 ff. 766 “[T]he alternative of qualifying a prosecutor’s immunity would disserve the broader public interest, in that it would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to proper functioning of the criminal justice system and would often prejudice criminal defendants by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice. 42 U.S.C.A. § 1983.”, see Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 985 (1976); see also Brink, 4 Charleston L. Rev. (2009–2010), 1, 28 ff., who nevertheless remarks, that “[a]t the time of the Imbler decision, the standard and procedures applicable in cases of qualified immunity were quite different than they are today. Qualified immunity was then thought of as good-faith immunity.” [fn. omitted]. 762

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whose malicious or dishonest action deprives him of liberty”.767 18 USC § 242 basically criminalises wilful civil rights violations.768 Although the Court stressed that it is generally possible that a prosecutor “could be punished criminally for willful deprivations of constitutional rights on the strength of 18 U.S.C. s 242”,769 in practice, there has been only one case in which a prosecutor has been found guilty of a violation of 18 USC § 242 for a Brady violation.770 As Brink remarks: “[E]ven if prosecutors were willing to charge other prosecutors to be successful in a criminal case, one would have to prove beyond a reasonable doubt that the prosecutor’s conduct was willful. As a result, the levelling of criminal charges against a prosecutor for conduct occurring in the course of a prosecution is all but unheard of.”771 Therefore, much hope has been set on the case Connick v. Thompson772 before the U.S. Supreme Court773 – hopes, which the Court defeated in a 767

Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 985 (1976). “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”; see also Smith, 61 Vand. L. Rev. (2008), 1935, 1968 ff. 769 Imbler v. Pachtman, 424 U.S. 409, 429 (1976); 96 S.Ct. 984, 994 (1976); see also Weeks, 22 Okla. City U. L. Rev. (1997), 833, 878. 770 See Matter of Brophy, 83 A.D.2d 975, 442 N.Y.S.2d 818 (1981). In this case, the respondent – a prosecutor – “was convicted in the United States District Court for the Western District of New York, upon a verdict, of the misdemeanor of willfully depriving an individual of rights secured to him by the United States Constitution in violation of sections 242 and 2 of title 18 of the United States Code. He was sentenced to pay a fine of $500.” See also Weeks, 22 Okla. City U. L. Rev. (1997), 833, 878 with fn. 259; see also Johns, 80 Fordham L. Rev. (2011–2012), 509, 520. 771 Brink, 4 Charleston L. Rev. (2009–2010), 1–36, 27; see also Smith, 61 Vand. L. Rev. (2008), 1935, 1968 ff. 772 Connick v. Thompson, 131 S.Ct. 1350 U.S. 2011. The details of the case and reason why it went up to the Supreme Court are elaborated infra F. VIII. 1. a) aa). 773 Krischke, for instance, estimates: “If Thompson is successful, the decision will represent the first crack in the once-thought impenetrable shield of prosecutorial immunity from federal civil liability for wrongful convictions, particularly where 768

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5–4 decision, finding that the New Orleans Parish District Attorney’s Office could not be held liable under U.S.C. § 1983 for failure to train its prosecutors based on a single Brady violation.774 It is especially this decision that was subject to great criticism: it “provides prosecutors with a green light to continue to disregard Brady violations and leaves innocent men and women like Thompson without civil remedies when ‘ministers of justice’ perpetrate flagrantly unconstitutional acts that lead to years wrongfully spent behind bars”,775 and “ignored basic notions of due process embedded in the U.S. Constitution”.776 Some cannot even find any historical justification for absolute prosecutorial immunity.777 Thus, in proposing solutions, some suggest to simply apply the doctrine of qualified immunity to prosecutorial misconduct,778 others demand “specific legislation allowing for direct federal remedies against prosecutors who violate constitutional rights in securing convictions against the innocent” – especially since 18 U.S.C. § 242, which was passed as part of the Civil Rights Act of 1871,779 was a reaction to “the campaign of violence and deception in the South, fomented by the Ku Klux Klan, which was denying decent citizens their civil and political rights”780 and not to prosecutorial misconduct.781 A different situation occurs when a prosecutor destroys exculpatory evidence: in this case, he or she may be held liable because destroying evidence is said to be not related to a prosecutor’s prosecutorial function.782 Absolute immunity has also been denied when the prosecutor participated in the investigative process by giving advice to the police,783 or when “a the prosecutor’s office failed to properly train its assistant prosecuting attorneys on the rules of Brady.” [fn. omitted], see Krischke, 19 J.L. & Pol’y (2010–2011), 395, 425. 774 See generally Autry, 69 Nat’l Law. Guild Rev. (2012), 29 ff. 775 Ibid., 34. 776 Ibid. 777 Johns, 80 Fordham L. Rev. (2011–2012), 509, 510, 521 ff. 778 Ibid., 527 ff. 779 Brink, 4 Charleston L. Rev. (2009–2010), 1, 3. 780 Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947 (1985); Briscoe v. LaHue, 460 U.S. 325, 336–340, 103 S.Ct. 1108, 1116–1118, 75 L.Ed.2d 96 (1983). 781 Krischke, 19 J.L. & Pol’y (2010–2011), 395, 427; Johns, 80 Fordham L. Rev. (2011–2012), 509, 521 ff. 782 See Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980) (per curiam); Davis v. Grusemeyer, 996 F.2d 617, 630 n.28 (3d Cir. 1993); Yarris v. County of Delaware, 465 F.3d 129, 136–37 (3d Cir. 2006); van Patten, 55 S.D. L. Rev. (2010), 214, 231. 783 Burns v. Reed, 500 U.S. 478, 492–493, 111 S.Ct. 1934, 1942–1943, 114 L.Ed.2d 547, 59 USLW 4536 (1991); see also Brink, 4 Charleston L. Rev. (2009– 2010), 1, 5.

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prosecutor performs the investigative functions normally performed by a detective or police officer”.784 cc) Disciplinary Proceedings As mentioned above, Rule 3.8(d) of the ABA Model Rules of Professional Conduct lays down that “[t]he prosecutor in a criminal case shall [. . .] make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal [. . .].” The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. They serve as models for the ethic rules of most states.785 To date, California is the only state that does not have professional conduct rules that follow the format of the ABA Model Rules of Professional Conduct.786 However, disciplinary bodies hardly ever sanction prosecutors who violate the Brady rule.787 In a comprehensive study, Richard Rosen conducted an exhaustive examination of the available printed sources and surveyed the disciplinary bodies for lawyers in each of the fifty states and the District of Columbia.788 Rosen concluded that “disciplinary charges have been brought infrequently and meaningful sanctions rarely applied. The result is a disciplinary system that, on its face, appears to be a deterrent to prosecutorial misconduct, but which has had its salutary impact seriously weakened by a failure of enforcement. Because the other available sanctions for Brady-type misconduct, such as removal from office or contempt citations, are rarely if ever used, and because the development of strict materiality standards has lessened the chance that a conviction will be reversed because of this misconduct, at present insufficient incentive exists for a prosecutor to refrain from Brady-type misconduct.”789 784 Buckley v. Fitzsimmons, 509 U.S. 259, 273–274, 113 S.Ct. 2606, 2616, 125 L.Ed.2d 209, 61 USLW 4713 (1993). 785 See , last visited 27 September 2013. Before the adoption of the Model Rules, the ABA model was the 1969 Model Code of Professional Responsibility. Preceding the Model Code were the 1908 Canons of Professional Ethics (last amended in 1963). 786 Ibid. 787 Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1545; see also Krischke, 19 J.L. & Pol’y (2010–2011), 395, 430. 788 Rosen, 65 N.C. L. Rev. (1987), 693, 696, 697.

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Weeks, basing his study on Rosen, found seven cases where prosecutors had been referred to disciplinary bodies for purported Brady violations.790 Four of these referrals resulted in sanctions, the most severe of which was a six-month suspension.791 In another study, Zacharias is more optimistic and found over 100 cases in which prosecutors have been disciplined.792 In fact, there is no legal requirement for prosecutors to follow rules of professional conduct and “those who break them will only be held accountable within their offices”.793 That state and local prosecutors in the U.S.A. are elected794 and the electoral system is supposed to “act as an effective check”795 does not change this situation.796 It is quite the opposite: the election process seems to place pressure on prosecutors to deliver convictions.797 789

Ibid., 697, fn. omitted. “Thirty-five states reported that no formal complaints had been filed for Brady-type misconduct. The response from one state indicated that three formal complaints had been filed and dismissed after a hearing. [. . .] Only two states reported the imposition of informal sanctions in cases in which no formal complaints were filed. One reported the issuance of a letter of caution, and another indicated one minor disciplinary action that could not be specified for reasons of confidentiality. [. . .] Taken together, the survey results and the reported cases demonstrate that, at least up to the present, the United States Supreme Court’s reliance on the Disciplinary Rules as a deterrent for Brady-type misconduct is misplaced. In light of the numerous reported cases that contain evidence of intentional Brady-type misconduct, the instances of discipline are too rare, and the sanctions most often imposed too lenient, to support a reliance on the disciplinary codes, as they have up until now been enforced, to deter Brady-type misconduct.”, at 731, fn. omitted. See also Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1545, 1546. 790 Weeks, 22 Okla. City U. L. Rev. (1997), 833, 833; see also Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1545, 1546. 791 Weeks, ibid.; Medwed, ibid. 792 Zacharias, 79 N.C. L. Rev. (2000–2001), 721, 744 ff. 793 Krischke, 19 J.L. & Pol’y (2010–2011), 395, 430; Ribstein, 7 J.L. Econ. & Pol’y (2010–2011), 617, 635 f. 794 47 states elect their prosecutors, and in the remaining three, an elected attorney general appoints the local chief prosecutors, see Brink, 4 Charleston L. Rev. (2009–2010), 1, 13. 795 Davis, Arbitrary Justice (2007), p. 166: “Ironically, the current system of choosing state and local prosecutors through the electoral process was established for the purpose of holding prosecutors accountable to the people they serve.” 796 Ibid., p. 166–167: “The electorate has little information about a prosecutor’s specific charging and plea bargaining practices or how he plans to exercise this discretion before electing him to office, or, in the case of appointed prosecutors, before commenting on his appointment. [. . .] Although the electorate can and does vote prosecutors out of office, it is not making these decisions in a fully informed manner.”; see also Krischke, 19 J.L. & Pol’y (2010–2011), 395, 430–431. 797 Brink, 4 Charleston L. Rev. (2009–2010), 1, 13: “In recent years, prosecutorial elections most often have revolved around assertions that one candidate is tougher on crime than his or her opponent.”

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Interesting at this point, again, is the difference between the Court’s approach to prosecutorial misconduct and Rule 3.8(d) of the ABA Model Rules of Professional Conduct. This is especially true with regard to the responsibility of supervisory lawyers in the prosecutor’s office for mistakes of subordinate lawyers. In Van de Kamp v. Goldstein, for example, the United States Supreme Court stated that if the “plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”798 On the contrary, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association commented on Rule 3.8(d): “Any supervisory lawyer in the prosecutor’s office and those lawyers with managerial responsibility are obligated to ensure that subordinate lawyers comply with all their legal and ethical obligations. Thus, supervisors who directly oversee trial prosecutors must make reasonable efforts to ensure that those under their direct supervision meet their ethical obligations of disclosure, and are subject to discipline for ordering, ratifying or knowingly failing to correct discovery violations. To promote compliance with Rule 3.8(d) in particular, supervisory lawyers must ensure that subordinate prosecutors are adequately trained regarding this obligation. Internal office procedures must facilitate such compliance.”799

dd) Other Potential Remedies Other potential judicial remedies are, for instance: instructing the jury simply to assume certain facts that the undisclosed information could have proven, or holding the non-disclosing party in contempt.800 With regard to jury instructions, in 2005, Elizabeth Napier Dewar suggested that “the court should consider instructing the jury on Brady law and granting the defendant permission to argue that the failure raises a reasonable doubt about the defendant’s guilt.”801 This would be similar to “the ‘missing evidence’ and ‘missing witness’ doctrines”, under which “[e]ach side in a criminal case has long been allowed to argue that the failure of a party to produce a witness or evidence when that party might be naturally 798

Van de Kamp v. Goldstein, 555 U.S. 335, 349 (2009); 129 S.Ct. 855, 864 (2009). 799 Standing Committee on Ethics and Professional Responsibility of the American Bar Association, Formal Opinion 09–454, Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense, 8 July 2009, p. 8, fn. omitted. See also Parajon, 119 Yale L.J. (2010), 1339, 1342, 1343. 800 Smith, 61 Vand. L. Rev. (2008), 1935, 1955; Dewar, 115 Yale L.J. (2005– 2006), 1450, 1456. 801 Dewar, ibid., 1450.

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expected to do so creates an inference that the missing testimony or evidence would have been unfavorable to that party.”802 Four years later, Judge Malloy used this remedy in the case U.S. v. W.R. Grace before the United States District Court, District Montana. When he learned of a Brady violation during the trial (the prosecution withheld “material proof pertinent to the credibility of Robert Locke”, the prosecution witness) he explained the Brady rule803 and instructed the jury: “In this case, the Department of Justice and the United States Attorney’s Office have violated their constitutional obligations to the defendants, they have violated the Federal Rules of Criminal Procedure, and they have violated orders of the Court. [. . .] The government has violated its solemn obligation and duty in this case by suppressing or withholding material proof pertinent to the credibility of Robert Locke. As a sanction for this inexcusable dereliction of duty the Court has entered an order that prohibits consideration of any proof offered by Robert Locke in the case brought against Robert Bettacchi.”804

He continues: “Having made this ruling the court does not mean to suggest that you should give any more credence to Robert Locke’s testimony as to any of the other defendants. Indeed, you should examine Locke’s entire testimony with great scepticism and with greater caution than that of other witnesses. In evaluating his testimony you should consider the bias that he has displayed toward W.R. Grace, his relationship with the prosecution team and the extent to which those matters may have influenced his testimony.”805

It is worth reading the instructions as a whole, because they demonstrate the legitimacy of this remedy806 and another effect that goes beyond the compensation of inequalities in the particular case: the deterrence of Brady 802

Ibid., 1457. U.S. v. W.R. Grace, 2009 WL 1160402 (D.Mont.) (Jury Instruction): “The United States Supreme Court has determined that when a defendant is on trial in the federal court, prosecutors have a constitutional obligation to turn over to the defendant evidence that is favorable to the accused either because it is exculpatory or because it is impeaching, that is, the proof may provide information that undermines the credibility of any witness called by the prosecution in the case. The government and its agents cannot suppress any such proof either willfully or inadvertently. The rules of criminal procedure place an obligation on the government and its agents, to produce certain kinds of evidence or proof if it is requested by the defendants or ordered by the court. The suppression by the prosecution of evidence favorable to an accused violates the due process of the law where the evidence is material to the question of guilt, irrespective of the good faith or bad faith of the prosecution. Prosecutors have an affirmative duty to comply with the Constitution, the Federal Rules of Criminal Procedure and the orders of the court. That duty includes the affirmative responsibility to learn of any evidence favorable to the accused and to disclose such evidence in a timely manner so that it can be effectively used by the accused.” 804 U.S. v. W.R. Grace, 2009 WL 1160402 (D.Mont.) (Jury Instruction). 805 Ibid. 803

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violations.807 This effect is especially achieved by clear language such as the instruction by Judge Malloy. Similarly, the defence can be allowed to argue to the jury that the Brady violation raises reasonable doubt about the defendant’s guilt and the strength of the government’s case.808 This was the case in Shelton v. United States, where the court stated: “It has always been understood – the inference, indeed, is one of the simplest in human experience – that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.”809

Other possible remedies include contempt proceedings. The initiation of these proceedings is within the court’s inherent authority.810 With regard to statutory law, two provisions may be applicable: First, 18 USC § 401 states: “A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as – (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; (2) Misbehavior of any of its officers in their official transactions; (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

Second, according to Rule 42(b) FRCP, “the court (other than a magistrate judge) may summarily punish a person who commits criminal con806 Ibid.: “The issues I have described have been fully addressed by the Court, and an adequate remedy is in place to allow the trial to move forward. It remains your duty to give dispassionate consideration to the proof in the record, within the confines of my instructions to you, and to reach a verdict based on the facts before you and not on any other ground.” 807 In the same vein Dewar, 115 Yale L.J. (2005–2006), 1450, 1461 ff. 808 Cf. ibid., 1450; Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 400. 809 Shelton v. U.S., 983 A.2d 363, 370, citing, inter alia, United States v. Remington, 191 F.2d 246 (2nd Cir. 1951), where the court held that “[e]vidence of efforts to suppress testimony or evidence in any form like the spoliation of documents is affirmative defense of the weakness of the prosecution’s case.” Id. at 251. 810 Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124 (1987); Cary, Singer and Latcovitch, Federal Criminal Discovery (2011), p. 403.

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tempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; [. . .]”811 However, despite these rules, few courts have exercised this contempt power.812 Tracey L. Meares assumes that the reasons for this could be that “courts are concerned about effectively controlling prosecutorial misconduct”, that courts “traditionally have viewed contempt as an extraordinary sanction for attorney misconduct rather than an ordinary one, employing the sanction only as a last resort” and “exercise of the contempt power is not cheap”.813 2. UK There are three types of sanctions and remedies available in England and Wales for prosecution violations against the disclosure regime: first, sanctions available to the court at trial, such as a stay of proceedings as an abuse of process; second, sanctions as per judicial review to challenge the decisions of the prosecution and/or court in relation to disclosure issues; third, non-disclosure or incomplete disclosure as a ground of appeal.814 This categorisation follows from para. 23 of the Attorney General’s Guidelines on Disclosure: “Investigators and disclosure officers must be fair and objective and must work together with prosecutors to ensure that disclosure obligations are met. A failure to take action leading to inadequate disclosure may result in a wrongful conviction. It may alternatively lead to a successful abuse of process argument, an acquittal against the weight of the evidence or the appellate courts may find that a conviction is unsafe and quash it.”815

Although this paragraph refers to “investigators and disclosure officers”, it also applies to prosecution conduct,816 not least because of the connection between the police and prosecution (especially at a time prior to the creation of the CPS).817 811 This rule describes direct contempt, which refers to “acts that occur in the presence of the judge.” By contrast, indirect contept refers to “actions taken outside the presence of a court, but which are violative of a court order”, see Hall, Criminal Law and Procedure, 5th ed (2009), p. 182. 812 Meares, 64 Fordham L. Rev. (1995–1996), 851, 893 with further references; see also Smith, 61 Vand. L. Rev. 1935 (2008), 1955. 813 Meares, ibid., 894 ff. 814 I adopted this categorisation from Niblett, Disclosure (1997), p. 173. 815 Italics added. 816 Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.65. 817 For further details see supra E. IV. 2. c) bb) (1) and The Royal Commission on Criminal Procedure, Chairman: Sir Cyril Philips, The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (1981).

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a) Sanctions and Remedies Available at Trial There is not much statutory law that provides for sanctions for disclosure violations in England and Wales. The CPIA 1996 in particular is not really concrete in this regard. While s. 11 CPIA 1996 provides for detailed responses to the failure of the defence to disclose evidence, the Act provides no specific sanctions for prosecutors who fail to disclose important information.818 The only provision concerning disclosure failure by the prosecution is s. 10 CPIA 1996. This provision basically says (in rather complicated wording) that staying the proceedings for abuse of process is permissible if the prosecution delays disclosure to such an extent that the “accused is denied a fair trial”.819 However, late disclosure “on its own” does not establish “grounds for staying the proceedings for abuse of process.”820 Nevertheless, the trial court still has a couple of remedies at hand to react to disclosure violations by the prosecution, those are, inter alia, staying the proceedings, excluding evidence or issuing certain orders. aa) Stay of the Proceedings Because of an Abuse of Process (Trial) Both civil and criminal courts have an inherent power to stop a case from proceeding in order to prevent the judicial process from being abused.821 A stay “is not equivalent to an acquittal, and it is possible that the authorities could attempt to prosecute the defendant again for the same offence.”822 Its discretion to stay should be exercised only in exceptional circumstances.823 According to the Court of Appeal in the leading case of R. v. Ian Anthony Beckford, there are two broad situations in which proceedings may be stayed: “(a) Cases where the court concludes that the defendant cannot receive a fair trial; (b) Cases where the court concludes that 818

Cf. Redmayne, 60 Mod. L. Rev. (1997), 79, 93; Kuo and Taylor, 38 Loy.U. Chi.L.J. (2007), 695, 718. 819 See s. 10(3) CPIA 1996 (“Subsection (2) does not prevent the failure constituting such grounds if it involves such delay by the prosecutor that the accused is denied a fair trial.”). 820 See s. 10(2) CPIA 1996 (“Subject to subsection (3), the failure to act during the period concerned does not on its own constitute grounds for staying the proceedings for abuse of process.”). 821 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 272; see also Connelly v. D.P.P. (1964) 48 Cr.App.R. 183; [1964] A.C. 1254. 822 Ashworth and Redmayne, ibid.; see also Plotnikoff and Woolfson, supra note 205, S. 337, p. 101. 823 Re Attorney General’s Reference (No.1 of 1990) [1992] 95 Cr. App. R. 296, 302; see also Plotnikoff and Woolfson, ibid.

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it would be unfair for the defendant to be tried.”824 The court also remarked that “[i]n some cases of course the two categories may overlap.”825 An abuse of process can be caused by the following disclosure-related problems: “a) failures by the prosecution to comply with their obligations to provide proper disclosure; b) exceptionally late disclosure of material; c) failures by investigators and/or disclosure officers to properly advise prosecuting solicitors and/or prosecution advocates as to the proper state of disclosure; d) the inadvertent or deliberate misleading of prosecuting solicitors and/or prosecution advocates, in relation to non-sensitive, sensitive or public interest immunity material; e) the consequent inadvertent misleading of judges tasked to determine disclosure to which the defence may be entitled.”826

At trial, these disclosure violations can usually be cured by a stay of proceedings and measures such as disclosure; “granting of adjournments to the defence when faced with very late disclosure”; exclusion of evidence; or “suitable judicial directions”.827 However, the court can only take these measures if there is a “complaint of deliberate violation of the accused’s right to disclosure.”828 Furthermore, “[b]efore even contemplating an abuse of process application, defence practitioners should first exhaust all the CPIA 1996 disclosure routes, and, in particular, the opportunity to make s 8 applications.”829 In the following, I will distinguish between situations where the prosecution did not disclose certain material at all or where it provided insufficient disclosure. It is important to note that the reasons for a stay of proceedings are not reported in most of the cases I am going to outline. Therefore, I will take reasons for and quotes from these decisions from secondary sources, especially the analyses in Young, Summers and Corker, Abuse of Process830 and Wells, Abuse of Process831.832 824

R. v. Beckford (Ian Anthony), [1996] 1 Cr. App. R. 94, 101; see also Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 272. 825 R. v Beckford (Ian Anthony), ibid. 826 Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.70. 827 Ibid., mn. 4.71. 828 Ibid. 829 Ibid., mn. 4.69. S. 8(2) CPIA 1996 states: “If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.” 830 3rd ed (London: Tottel Publishing, 2009).

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(1) Non-disclosure In R. v. El-Treki, the Ipswich Crown Court stayed the proceedings because the second Beckford situation occurred (“Cases where the court concludes that it would be unfair for the defendant to be tried.”833). In this case, the trial judge ordered the defence be given viewing facilities of CCTV camera video footage from the nightclub locus of an alleged assault. The defendant was not allowed to enter the premises with his legal advisers. This failure by the prosecution, coupled with a series of earlier delays and prosecution disclosure failures, led to an abuse of process.834 In R. v. Humphreys, a decision not without criticism,835 Judge Crush stayed the indictment as an abuse of process (on both Beckford situations), because of “numerous breaches by the prosecution in relation to their disclosure obligations under the CPIA 1996 and its Code of Practice, particularly in relation to material evidence regarding a co-conspirator who was to give evidence on behalf of the Crown.”836 The court “branded the prosecution with a ‘culture of non-disclosure’, which entailed substantial failures to retain and record relevant material, repeatedly late disclosure, ‘selective’ disclosure and the flouting of judicial orders in relation to disclosure.”837 In R v. Docker, the police had fabricated statements and other evidence, had not revealed this fact and the prosecution had not obeyed the pre-trial disclosure order.838 As a result, the judge ruled that the police had been significantly at fault in respect of disclosure and directed that the charges be permanently stayed on the ground of abuse of process.”839 Wells, Abuse of Process, 2nd ed (2011). Epp faced the same problem, when he stated: “However, the brevity of the reports of the reasons make a precise analysis of some of these decisions impossible.”, see Epp, Building on the Decade of Disclosure (2001), p. 183. 833 See supra F. VII. 2. a) aa) with fn. 824, S. 439. 834 See R. v. El-Treki, 7 February 2000, Ipswich Crown Court, No T990513, [2000] 8 Archbold News 3–4, cited in Wells, Abuse of Process, 2nd ed (2011), p. 72. 835 See, e. g., Epp, Building on the Decade of Disclosure (2001), p. 183: “While one can sympathise with the frustration of the court as expressed in the reasons, it is respectfully submitted that a fair trial could have occurred before a new jury as, by this stage, the defence had obtained extensive disclosure. It was of great importance that allegedly corrupt police officers should be tried.” 836 R. v. Humphreys (14 February 2000), Maidstone Crown Court, cited in Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.74. 837 R. v. Humphreys (14 February 2000), Maidstone Crown Court, cited in Young, Summers and Corker, ibid. 838 R. v. Docker, (28 September 1993, unreported), Wolverhampton Crown Court, cited in Epp, Building on the Decade of Disclosure (2001), p. 183. 831 832

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(2) Insufficient Disclosure In R v. Lindsay, Sinclair, George, Rachar and Cook,840 Judge Pontius stayed proceedings as an abuse of process, criticising the piecemeal disclosure by the prosecution: “Over these proceedings as a whole the ominous and ever-lengthening shadow of disclosure has fallen. [. . .] Documents have been discovered and disclosed, in varying quantities, not only in the many weeks and months leading up to the start of these proceedings last February, but also throughout the two months and more of court time that they have occupied.”841 Judge Pontius doubted that the prosecution would be able (and willing) to disclose all relevant documents: “Given the history of ‘creeping disclosure’ that we have seen during this hearing, together with what preceded it, I have no confidence that all relevant documents have now been disclosed.”842 Consequently, the judge realised that the trial would eventually “collapse” or a successful appeal against a possible conviction would be very likely, when he stated: “I am conscious of the very real prospect of a trial proceeding with the inevitable continuing ‘drip-feed’ disclosure that has led to my decision; sooner or later the trial would be likely to collapse as a result, at far greater – and wholly unjustifiable – cost to the public purse. Worse still is the prospect – just as real – of a lengthy trial resulting in convictions which, many months later and after yet more relevant documents come to light, cannot be sustained on appeal. This court, like Customs & Excise, has a clear responsibility to protect the revenue and thus to keep unnecessary waste of public funds to a minimum and, further, but of equal and obviously related importance, to keep complex and large-scale trials within a manageable compass.”843

In R v. Vocaturo, Brown, Drewery, Roden, Saunders, Edwards-Sayer, Sharma and Pathak, the Vocaturo defence repeatedly requested disclosure of 8000 pages of Vocaturo’s business trading records, but the prosecution failed to disclose those documents. The judge stayed the proceedings and the stay was upheld by the Court of Appeal, rejecting the prosecution’s in839 R. v. Docker, (28 September 1993, unreported), Wolverhampton Crown Court, referred to in Darker and others v. Chief Constable of West Midlands [2001] 1 A.C. 435 (in this case, defendants in R. v. Docker brought an action against the police claiming damages for conspiracy to injure and misfeasance in public office, alleging, inter alia, that police officers had fabricated evidence against them. The trial judge dismissed this action and the Court of Appeal dismissed the plaintiffs’ appeal.), cited in Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.75. 840 18 May 2005, Blackfriars Crown Court, Indictment No T2004-7470, cited in Wells, Abuse of Process, 2nd ed (2011), p. 81. 841 At p. 30 of the judgment transcript (lines 14–20), cited in Wells, ibid. 842 At p. 59 of the judgment transcript (lines 16–21), cited in Wells, ibid. 843 At p. 62 of the judgment transcript, cited in Wells, ibid.

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terlocutory appeal.844 Another defendant requested the disclosure of 10000 pages of material, which the prosecution failed to turn over. In response, Judge Teare stated: “If the prosecution continue with their present, and if I may say so, obstructive attitude towards the presentation of the defence case, then I have come to the reluctant but firm conclusion that this case should be stayed because the defendant cannot have a fair trial, and that it would not be fair to try him, when the prosecution refuse him material which is in their possession and their possession alone, and which he avers can assist his defence. While seeking to exercise judgment in what is and what is not discloseable, the prosecution must always look at the case with a dispassionate eye, but when prolonged applications by the defence are made they must realise that there may, and I emphasise may, be grounds for stepping outside the confines of the CPIA and approaching disclosure with compassion.”845

With regard to his decision, the judge remarked: “I come to the conclusion that without disclosure of the material requested by the defence since September 2006 it would be unfair to try the defendant, because he is denied the documentation that he, rightly or wrongly, avers will assist his defence. There are then two pathways open to me. Either I order disclosure or I stay the trial.”846 Interestingly, the judge decided not to order disclosure and therefore to cure the failure of the prosecution during the trial, but to choose the harsher variant of staying the proceedings, giving the following reasons: “The prosecution have had a year to respond to a request, properly made, on arguable grounds by competent counsel, for disclosure of material. If they insist on remaining behind the barricade of the Criminal Investigations and Procedure Act 1996, even though they must be aware that the fairness of that approach must be a subject of criticism at trial, then they must take the consequences. Nothing would have been easier than to permit supervised inspection or duplication of the material at the expense of the defence. If the prosecution approach the case without concession then they can expect none. I have come to the conclusion, giving every latitude to arguments on both sides, that in respect of this defendant, AO, the indictment should be stayed as there is a real danger that he can have no fair trial.”847

844 R. v. O 2007 WL 4610678; [2007] EWCA Crim 3483. The case is summarised in Wells, ibid., p. 84. 845 Nottingham Crown Court (Indictment No T200217170), para. 15, cited in R. v O, ibid., para. 14. 846 Nottingham Crown Court, ibid., para. 16, cited in R. v O, ibid. 847 Nottingham Crown Court, ibid., para. 18, cited in R. v O, ibid.

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bb) Exclusion of Evidence Another possible remedy against the failure to disclose evidence by the prosecution is to exclude certain evidence from admission at trial. The relevant governing provision is s. 78 of the Police and Criminal Evidence Act 1984 (PACE), which states at paragraph 1: “In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”848

However, there is disagreement as to which evidence shall be excluded. According to Roberts, “the prosecution could be prevented from introducing undisclosed material at trial in exercise of the court’s power under section 78 of the Police and Criminal Evidence Act 1984”.849 This has been questioned by Niblett, who could not “imagine why the prosecution would wish to introduce undisclosed material, which by its very nature is not material worthy of adduction as part of the Crown case, unless circumstances arose in which the prosecution wished to cross-examine on the basis of such documents”.850 In other words, as I understand it, if there is evidence that the prosecution has failed to disclose, this evidence will usually be damaging for the prosecution case and the exclusion of this evidence as a remedy to this failure will rather have a rewarding than a sanctioning effect for the prosecution. Consequently, in contrast to Roberts, Niblett describes a situation where the exclusion of evidence pursuant to s. 78 PACE would be the appropriate remedy: “[S]. 78 is more likely to come into play when the prosecution try to adduce admissible evidence, such as a confession, but the non-disclosure of material which may have put the defence on inquiry to challenge the confession has caused unfairness. For example, if there was failure to disclose that the defendant had been seen by a doctor and prescribed medication before an interview. In these circumstances, the confession and not the unused material may be ruled out under s. 78.”851

Apart from the understanding that s. 87 PACE applies to evidence that has not been previously disclosed, Edwards provides a more context-related 848 Of course, the exclusion of evidence can also be based upon an abuse of process arising from non-disclosure, see s. 82(3) PACE 1984: “Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.” See also Epp, Building on the Decade of Disclosure (2001), p. 181. 849 Roberts, 9 Arch. News (1994), 5, 6. 850 Niblett, Disclosure (1997), p. 175. 851 Ibid.

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approach: According to him, s. 87 PACE provides for the exclusion of evidence “which is misleading in the absence of full disclosure”.852 Under this approach, it is even possible to exclude evidence because unused material (i. e. exculpatory material853) has not been previously disclosed – not by excluding this unused material, but by excluding material supporting the prosecution case, being “misleading” as result of the non-disclosure of the unused material. cc) Orders by the Court As mentioned above,854 before even contemplating an abuse of process application, defence practitioners should first exhaust all the CPIA 1996 disclosure routes, and, in particular, the opportunity to make s. 8 applications.855 S. 8(2) CPIA 1996 provides that “[i]f the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.” Thus, an order of the Court pursuant to s. 8 CPIA 1996 is a remedy for nondisclosure. However, this is not the only order a court can make. As I have discussed above, reforms of the English criminal process within the last decade have been providing the judges with more utilities to effectively manage cases. This is clearly demonstrated by Rule 3.2. CPR 2012. According to that provision, “[t]he court must further the overriding objective by actively managing the case”, and it must do this “by giving any direction appropriate to the needs of that case as early as possible.”856 The Rule even gives detailed examples of what “active case management” includes,857 some of 852

Edwards, Crim. L.R. (1997), 321, 327. For more details on the disclosure of unused material see supra F. III. 2. 854 Supra F. VII. 2. a) aa) with fn. 829, S. 439. 855 Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.69. S. 8(2) CPIA 1996 states: “If the accused has at any time reasonable cause to believe that there is prosecution material which is required by section 7A to be disclosed to him and has not been, he may apply to the court for an order requiring the prosecutor to disclose it to him.” 856 Rule 3.2(1) and (3) of the Criminal Procedure Rules 2012. 857 Rule 3.2(2) of the Criminal Procedure Rules 2012: “Active case management includes (a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way; 853

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which are highly relevant for the disclosure process. Rule 3.5 CPR 2012 describes “[t]he court’s case management powers” and entitles the court to “give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.”858 This includes the power to “specify the consequences of failing to comply with a direction”.859 If a party fails to comply with a rule or a direction, the court may “(a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and (c) impose such other sanction as may be appropriate.”860 There are two cases, among others, that demonstrate the relevance of such disclosure remedies. In R. v. Phillips, the prosecution failed to provide certain information despite specific case management orders to do so.861 On appeal, the court highlighted recent decisions of the Court of Appeal, which stated that it “has been made clear to Crown Court judges that they should be robust in case management decisions and that this court will strive to uphold them.”862 The court declared: “Active hands-on case management, both pre-trial and during the trial, is an essential part of the judge’s task. The decisions of this court should be well-known, but we refer to Chaaban [2003] EWCA Crim 1012, Jisl [2004] EWCA Crim 696 and most recently Lee [2007] EWCA Crim 764.”863 With regard to case management orders, the court urged, “the parties who are ordered to take steps must take them. Case progression staff, both on the prosecution and defence side, must ensure compliance with case management orders. The responsibilities of prosecution and defence, particularly in accordance now with the Criminal Procedure Rules, are well-known.”864 Although the appeal was successful, the non-compliance was not the ground upon which the conviction of the appellant was quashed.865 In another case – R. v. Owens – the disclosure problem was one I have mentioned above: the “‘dip-feeding’ of evidence from the prosecution”,866 (f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (g) encouraging the participants to co-operate in the progression of the case; and (h) making use of technology.” 858 Rule 3.5.(1) of the Criminal Procedure Rules 2012. 859 Rule 3.5.(2)(i) of the Criminal Procedure Rules 2012. 860 Rule 3.5.(6) of the Criminal Procedure Rules 2012. 861 R. v. Phillips (Alan), 2007 WL 1292743, para. 32. 862 Ibid., para. 36. 863 Ibid. 864 Ibid., para. 37. 865 See also Denyer, Case Management in the Crown Court, 2nd ed (2012), p. 32. 866 R. v. Owens (Mark James), 2006 WL 2524788, para. 25.

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i. e. where the prosecution conducts piecemeal disclosure, providing the defence with evidence a bit at a time.867 The judge urged “very strongly” that there should be no further evidence disclosed after the end of May 2004 and the prosecution advised that there were some “continuity statements” yet to come but thought they would be served within that time frame. A new date for trial of 4 January 2005 was fixed. At a pre-trial review on 5 November 2004, the question of additional evidence was raised again. The prosecution said that there was the possibility of some further evidence in relation to “one very modest area” and sought a time limit for its service. Eventually the judge made an order in these terms: “. . . anything served following 21 days from today will not be admitted, full stop. I will stand by that one . . . Whatever is served after that will definitely not be admitted . . .”868 Approximately two weeks before the trial, the prosecution served 18 pages of witness statements and about 100 pages of exhibits. Also provided were some 800 pages of interviews and further disclosure of over 7,000 pages of documents by way of unused material has been made.869 This late service of further evidence led, at the beginning and in the course of the trial, to five separate applications, one of them by the defence “to exclude the evidence”.870 The judge refused and admitted the material with a few exceptions.871 This was appealed by the defendants,872 although the appeal was unsuccessful. The court held: “The judge was entitled, having satisfied himself that there was ultimately no unfairness and no undue prejudice in the service of this material, to conclude that, his own order of 5 November 2004 notwithstanding, it would be in the interests of justice to permit the material encompassed by the 16th NAE to go forward for consideration as to its admissibility or exclusion on its own merits.”873 b) Appeal Because of Disclosure-violations Disclosure violations cannot only be remedied at trial, but also after trial as a ground of appeal. The Court’s power to quash a conviction is contained in s. 2 of the Criminal Appeal Act 1968 (CAA 1986), as amended by the Criminal Appeal Act 1995 (CAA 1995), which reads: 867 868 869 870 871 872 873

Cf. supra F. VII. 2. a) aa). R. v. Owens (Mark James), 2006 WL 2524788, para. 25. Ibid., para. 26. Ibid., para. 27. Ibid. Ibid., para. 42. Ibid., para. 52.

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“(1) Subject to the provisions of this Act, the Court of Appeal – (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.”

Until 1995, s. 2 CAA 1968 permitted the Court of Appeal to allow an appeal against conviction where it felt: “(a) that the verdict of the jury should be set aside on the ground that, under all the circumstances of the case, it is unsatisfactory or unsafe; or (b) that the judgment of the court of trial should be set aside on the ground of a wrong decision of any question of law; or (c) that there was a material irregularity in the course of the trial, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no miscarriage of justice has actually occurred.”874

Thus, while until 1995 cases had to be brought under the CAA 1968 on the basis of an “unsafe or unsatisfactory” conviction or a “material irregularity”, the CAA 1995 replaced those requirements by a single all encompassing ground, i. e. the Court of Appeal is required to dismiss the appeal unless “they think that the conviction is unsafe”. This was supposed to allow the appellate court the flexibility to consider all categories of appeal without needing to place it within a particular listed ground.875 However, subsequent to the enactment of the CAA 1995, the Court of Appeal made clear that “unsafe” does not exclude “unsatisfactory”: “As to the meaning of ‘unsafe’ [. . .] the word can refer either to guilt or innocence of the crime convicted, or it can refer to a miscarriage of justice in the round, including such abuse of process as would have prevented proceedings. . . . [T]he amendment was intended to be a codifying provision and as no obvious answer can be given to the scope of unsafe, Bank of England v. Vagliano [1891] A.C. 107 at page 144 permits the Court to look at the previous state of the law; the parliamentary debates provide clear evidence of what the new provision is intended to do, namely to re-state existing practice; it is unlikely that the Crown would argue for a narrow meaning; the section has no substantive effect and the ultimate question of whether there has been a miscarriage of justice is the same as whether the conviction is unsafe.”876 874 S. 2 of the Criminal Appeal Act 1968, as not amended by the Criminal Appeal Act 1995, cited in Slapper and Kelly, English Legal System, 10th ed (2009), p. 177; Niblett, Disclosure (1997), p. 181. 875 Epp, Building on the Decade of Disclosure (2001), p. 195. 876 R. v. Mullen (Nicholas Robert) (No.2) [1999] 2 Cr. App. R. 143, 153, 154.

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This is also demonstrated by comments of government representatives. After the enactment of the CAA 1995, a spokesperson said: “In dispensing with the word ‘unsatisfactory’, we agree with the Royal Commission on criminal justice that there is no real difference between ‘unsafe’ and ‘unsatisfactory’; the Court of Appeal does not distinguish between the two. Retaining the word ‘unsatisfactory’ would imply that we thought there was a real difference and would only lead to confusion.”877 Therefore, a material procedural irregularity continues to be a basis for appeal.878 With regard to disclosure, there are generally three disclosure issue scenarios reaching the appeal stage. First, on appeal, where the court receives any evidence which was not but should have been disclosed during the Crown Court proceedings (fresh evidence appeal). Second, where the prosecution may have improperly failed to reveal the existence of admissible evidence until after the trial (procedural irregularities appeals). Third, where the trial judge may have erred in refusing to order the disclosure of evidence (disclosure order appeals).879 I will focus largely on the first two scenarios. aa) Fresh Evidence Appeals The fresh evidence appeal is governed by s. 23(1)(c) CAA 1968, which provides: “For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice [. . .] c) receive any evidence which was not adduced in the proceedings from which the appeal lies.” In considering whether to receive any fresh evidence, the Court of Appeal shall have regard in particular to: “(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”880

In the leading case of R v. Pendleton, the House of Lords outlined when a conviction is “unsafe” with regard to fresh evidence, by stating that “it Cited in Slapper and Kelly, English Legal System, 10th ed (2009), p. 177; Niblett, Disclosure (1997), pp. 178, 179. 878 Epp, Building on the Decade of Disclosure (2001), p. 195. 879 Cf. Corker and Parkinson, Disclosure (2009), pp. 236 ff.; Epp, Building on the Decade of Disclosure (2001), pp. 193 ff. 880 S. 23(1)(c) of the Criminal Appeal Act 1968. 877

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will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”881 In more general terms, the House of Lords demanded that the Court of Appeal must bear “very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty” and that “it is not and should never become the primary decision-maker.”882 This case has been applied and followed by numerous courts.883 bb) Procedural Irregularities Appeal With regard to procedural irregularities that may lead to an appeal, the overriding objective of the courts is “to avoid determining cases on technicalities where it believes that the breach of them did not result in real prejudice or injustice.”884 This was elaborated by Judge Fulford in R v. Ashton: “In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised 881

R. v. Pendleton (Donald) [2002] 1 Cr. App. R. 34, para. 19. Ibid. 883 See, e. g., R. v. Jenkins (Sion David) [2004] EWCA Crim 2047; R. v. Siddall (John Stephen) [2006] EWCA Crim 1353; (2006) 150 S.J.L.B. 809; R. v. Pope (John Randall) [2010] EWCA Crim 2499; R. v. Hall (Simon John) [2011] EWCA Crim 4; R. v. Maloney (Gerald) [2003] EWCA Crim 1373; R. v. Ubolcharoen (Phanida) [2009] EWCA Crim 3263; R. v. Cooper (David C) [2003] EWCA Crim 2257; R. v. Markham (Richard) [2006] EWCA Crim 1503; R. v. PF [2009] EWCA Crim 1086; R. v. D [2006] EWCA Crim 2600; R. v. Boreman (Victor Matteo) [2006] EWCA Crim 2265; R. v. W [2003] EWCA Crim 693; R. v. Nolan (Patrick Michael) (2006) 103(45) L.S.G. 29; R. v. O’Toole (Patrick Francis) [2006] EWCA Crim 951; R. v. Cummiskey (John Joseph) [2003] EWCA Crim 3933; R. v. Dallagher (Mark Anthony) [2002] EWCA Crim 1903; [2003] 1 Cr. App. R. 12; [2002] Crim. L.R. 821; R. v. Keyes (Anthony Matthew) [2003] EWCA Crim 1683; R. v. George (Barry) [2007] EWCA Crim 2722; (2007) 151 S.J.L.B. 1498; R. v. Mahmood (Sajid) [2006] EWCA Crim 391; R. v. Murray (Anne Marie) [2003] EWCA Crim 27; Sangster (Mark) v. Queen, The [2002] UKPC 58; R. v. NG [2004] EWCA Crim 2268; R. v. L (Stuart) [2005] EWCA Crim 3119; R. v. Assadi (Morteza) [2003] EWCA Crim 47; R. v. Evans (John Derek) [2009] EWCA Crim 2243; [2010] Crim. L.R. 491; R. v. Singh (Gulbir Rana) [2003] EWCA Crim 3712; R. v. Robson (Michael) [2006] EWCA Crim 2749; (2006) 150 S.J.L.B. 1531; R. v. George (Michael) [2006] EWCA Crim 3284; R. v. Francis (Devon Lloyd) [2011] EWCA Crim 375; R. v. Pomfrett (Peter) [2009] EWCA Crim 1939; [2010] 1 W.L.R. 2567; [2010] 2 All E.R. 481; [2010] 2 Cr. App. R. 28; R. v. Martindale (Zoe Virginia) [2003] EWCA Crim 1975; R. v. Ely (John Brian) [2005] EWCA Crim 3248; R. v. Gray (Paul Edward) [2003] EWCA Crim 1001. 884 Corker and Parkinson, Disclosure (2009), p. 237. 882

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(‘a procedural failure’), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.”885

In R. v. Laing, at trial the jury did not receive information that damaged the credibility of victims, who also served at chief witnesses. These victims bolstered their credibility by presenting themselves as decent, credible, ordinary citizens and the defendants, L and B, were convicted. Nevertheless, the jury received information that damaged the credibility of the victims (who also served as chief witnesses) in a trial against two other defendants who took part in the same warfare activities and the jury acquitted the defendants. Although the prosecution argued that the convictions were to be regarded as safe, since the undisclosed information would not have added anything very significant to the material that was explored in the course of the trial, the convictions of L and B were quashed and a retrial of all counts was ordered. The court stated: “The fact of the matter is that with this fresh material the cross-examination of Davis and Henry [the victims and chief witnesses of the prosecution] would have been likely to have made a far greater impact than the cross-examination which could be mounted without the benefit of it. In our judgment the end result was that the trial became unbalanced – significantly so – by the fact of this non-disclosure to the jury of factors which may – we emphasise may – have led the jury to doubt whether it would be safe to convict in the second trial. We do not decide any strict point of admissibility, but it seems clear to us that if the defence had been provided with this material the use of it would have enabled the defence to mount a far more effective attack on the credibility of the main witnesses who gave evidence identifying the appellants as two of those who took part in the attack. In our view, therefore, these convictions are unsafe and they must be quashed.”

In R v. Karim, the appellant contended, inter alia, that if undisclosed material available post-trial had been available at trial, the judge might not have permitted the reading of a witness statement (where the prosecution witness was unavailable to give oral evidence). Additionally, the appellant argued that undisclosed material had the potential to damage the Crown’s case (i. e. it was unused material) and the he might not have pleaded guilty if full disclosure had been made.886 However, the Court of Appeal rejected the appeal, because it was “wholly unpersuaded that the post-trial disclosure adds anything of significance to the disclosure made at the time of trial.”887 885 886

R. v Ashton (John) [2006] 2 Cr. App. R. 15, para. 4. R. v. Karim (Imran Abid), 2005 WL 401742.

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cc) Stay of the Proceedings Because of an Abuse of Process (Appeal) As I have demonstrated above,888 at trial the defence may issue a “complaint of deliberate violation of the accused’s right to disclosure”889 and both civil and criminal courts have the inherent power to stop a case from proceeding in order to prevent abuse of the judicial process.890 However, if this application is unsuccessful at trial, the accused may appeal against the conviction, arguing that the trial judge erred in not acceding to the application.891 This is demonstrated by the Court of Appeal case of R. v. Mullen, where the Court held that “the meaning of ‘unsafe’ in section 2 of the Criminal Appeal Act 1968 (as amended by section 2 of the Criminal Appeal Act 1995) was broad enough to permit the quashing of a conviction on the sole ground that it was unsafe because of abuse of process prior to trial.”892 Therefore, the Court of Appeal has not been reluctant to quash convictions because of an abuse of process an trial, sometimes ordering a retrial and sometimes not. In R. v. Smith, for example, the appellant appealed against a conviction because he had unsuccessfully applied to stay the proceedings on the basis the prosecution had failed to disclose certain documents.893 The Court of Appeal held that the conviction was unsafe and stated: “The relevance of the material to these applicants is that it would have provided support for their application for a stay on the basis that there had been an abuse of process [. . .]. The failure to disclose the material therefore denied them a fair trial.”894 Similarly, in R. v. Early the Court of Appeal allowed the appeal because of insufficient disclosure and 887

Ibid., para. 23. The Court continued: “In our judgment, the ruling that Hanusek’s [i. e. the prosecution witness’] statement could be read was unimpeachable. It would not have been affected by what has been subsequently disclosed, which does nothing material to improve the appellant’s position vis-a-vis Hanusek, or to impair the prosecution’s ability to proceed with a retrial on count 10. The same comments apply in relation to the suggestion that the appellant might not have pleaded guilty had full disclosure been made earlier.”, para. 25. For further case-law see Corker and Parkinson, Disclosure (2009), pp. 240 ff. 888 See supra F. VII. 2. a) aa) with fn. 828, S. 439. 889 Young, Summers and Corker, Abuse of Process, 3rd ed (2009), mn. 4.71. 890 Ashworth and Redmayne, The Criminal Process, 4th ed (2010), p. 272; see also Connelly v. D.P.P. (1964) 48 Cr.App.R. 183; [1964] A.C. 1254. 891 Cf. Corker and Parkinson, Disclosure (2009), p. 243. 892 R. v. Mullen (Nicholas Robert) (No.2) [1999] 2 Cr. App. R. 143. 893 R. v. Smith (Matthew) 2004 WL 1808946. 894 Ibid., para. 19, applying R v. Austin [2004] EWCA Crim. 1983: “In other cases such as Gell convictions have been quashed because of non-disclosure, or wrongful disclosure but, in those cases, if there had been disclosure, it might have had a causative impact on a tenable abuse argument.”

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dishonest prosecution witnesses.895 In R. v. Maame Osei-Bonsu, the Court of Appeal also quashed a conviction as unsafe. At trial, the defence applied at the end of the prosecution case to stay the proceedings as an abuse of process. Before trial the defence had sought disclosure from the CPS of the names and addresses of any witnesses on whom the prosecution did not intend to rely upon. No details were supplied. During the trial the prosecution failed to produce police officers’ notebooks (as they had been archived, but were no longer available) and computer-aided dispatch messages (which could impact on the credibility of the prosecution witnesses, in particular as to who had complained to the police and had made the first contact with the police).896 3. ICC Both the Statute and the RPE lack a provision for disclosure sanctions before the ICC.897 However, that does not mean that the Chambers do not have any power to respond to disclosure violations, both at the trial and post-trial stage. First, according to Rule 121(8) ICC-Statute, “[t]he Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired.” That means, with regard to disclosure, that failure to fulfil the disclosure time limits by the parties in view of the confirmation hearing will lead to the exclusion of evidence.898 Second, as described above, the Trial Chamber has a wide range of instruments to manage and direct the proceedings. According to 64(8)(b) ICC-Statute, “the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute.” Because during the drafting of the ICC-Statute no agreement could be reached on the conduct of trial proceedings, the drafters decided not to regulate many questions in detail but to give the Trial Chamber discretion in fulfilling its function.899 One of the measures a Trial Chamber may deem necessary is to stay proceedings in cases of an abuse of process, which is considered by the Court as “drastic” and “exceptional” remedy.900 895

R. v. Early (John) [2003] 1 Cr. App. R. 19. Case cited and summarised in Wells, Abuse of Process, 2nd ed (2011), p. 72. 897 See generally Caianiello, 10 ICLR (2010), 23, 36 ff.; see also Ambos, 12 ICLR (2012), 115, 127; Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), pp. 403, 412 f. 898 Caianiello, ibid., 36. 899 Gallmetzer, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 501, 501; Safferling, International Criminal Procedure (2012), p. 141. 896

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a) Stay of Proceedings Because of an Abuse of Process Chambers at the ICC have had several opportunities to comment on the abuse of process doctrine.901 They have recognised, on the one hand, that the principle of abuse of process leading to the court’s authority to stay proceedings is not provided for in the Statute, nor is it “generally recognised as an indispensable power of a court of law”.902 However, they have stated on the other hand, that the ICC-Statute safeguards the rights of the suspect and the accused, especially under Arts. 55 and 67 ICC-Statute. Art. 21(3) ICC-Statute requires that the Court exercise its jurisdiction in accordance with internationally recognised human rights norms, first and foremost, the right to a fair trial.903 Accordingly, the Appeals Chamber in Lubanga pointed out that “if no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped”.904 However, not every breach of the rights of the suspect and/or the accused is tantamount to an abuse of process entailing the need to stay the proceedings.905 Only gross violations, which make it impossible for the accused “to make his/her defence within the framework of his rights” justify the proceedings being stayed.906 Thus, as has been stated in the case law of the Court,907 beha900 See Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2582, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010 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”, para. 55 (October 8, 2010). See generally Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 198 ff. 901 Prosecutor v. Callixte Mbarushimana, No. ICC-01/04-01/10-264, Decision on the “Defence request for a permanent stay of proceedings”, p. 4 (July 1, 2011) with further references; Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, No. ICC-02/05-03/09-410, Decision on the defence request for a temporary stay of proceedings (October 26, 2012). 902 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-772, 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, para. 35 (December 14, 2006); Prosecutor v. Callixte, No. ICC-01/04-01/10-264, supra note 901, S. 453, p. 4. 903 Prosecutor v. Lubanga, No. ICC-01/04-01/06-772, ibid., para. 36–37; Prosecutor v. Callixte, No. ICC-01/04-01/10-264, supra note 901, S. 453, p. 4. 904 Prosecutor v. Lubanga, No. ICC-01/04-01/06-772, ibid., para. 37. 905 Prosecutor v. Callixte, No. ICC-01/04-01/10-264, supra note 901, S. 453, p. 4. 906 Prosecutor v. Lubanga, No. ICC-01/04-01/06-772, supra note 902, S. 453, para. 39; Prosecutor v. Callixte, No. ICC-01/04-01/10-264, supra note 901, S. 453, pp. 4, 5. 907 See, e. g., Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 89.

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viours which may trigger a stay of proceedings are those that entail unfairness of such a nature that it cannot be resolved, rectified or corrected in the subsequent course of the proceedings.908 One form of this “behaviour” has included disclosure violations by the prosecution. As I will demonstrate in the following subsections, the Trial Chamber imposed a stay of proceedings because of an abuse of process relating to disclosure violations in connection with Art. 54(3)(e) ICC-Statute909 and the identity of certain intermediaries.910 aa) Non-disclosure in Connection with Art. 54(3)(e) ICC-Statute In the former situation, a conflict arose between the Prosecution’s right to obtain confidential “lead” evidence pursuant to Art. 54(3)(e) ICC-Statute and its responsibility to disclose potentially exculpatory evidence under Art. 67(2) ICC-Statute.911 A lot has been written about this conflict and about the subsequent decisions of the Chambers.912 Given that legal problems of disclosure restrictions are not the issue of this study, I will approach the problem from the angle of prosecutorial misconduct and abuse of process. In the Lubanga case, the Prosecution obtained evidence from the UN and certain nongovernmental organisations (NGOs) pursuant to confidentiality agreements made under Art. 54(3)(e) ICC-Statute.913 Basically, 908

Prosecutor v. Callixte, ICC-01/04-01/10-264, supra note 901, S. 453, p. 5. “The Prosecutor may [. . .] [a]gree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; [. . .].” This provision establishes a disclosure restriction. Again, disclosure restrictions are not subject of this study (see supra F. I.). For more information especially about Art. 54(3)(e) ICC-Statute see Ambos, 12 NCLR (2009), 543–568. 910 See infra F. VII. 3. bb). 911 Cf. Whiting, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 207, 209, who points out, that this conflict “is built right into the Statute of the ICC”. 912 Whiting, ibid., 207 ff.; Ambos, 12 NCLR (2009), 543–568; Anoushirvani, 22 Pace Int’l L. Rev. (2010), 213–239. 913 Article 18(3) of the ICC-U.N. Relationship Agreement provides that “the United Nations and the Prosecutor may agree that the United Nations provide documents or information to the Prosecutor on condition of confidentiality and solely for the purpose of generating new evidence and that such documents shall not be disclosed to other organs of the Court or third parties, at any stage of the proceedings or thereafter, without the consent of the United Nations.”, cited in Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 93. The same rule applies to the U.N. peacekeeping mission, MONUC, in the Democratic Republic of Congo by way of Article 10(6) of the MONUC Memorandum of Understanding with the ICC, which reads: “Unless otherwise specified in writing [. . .], documents held by MONUC that are provided by the United Nations to the Prosecutor shall be 909

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there is nothing wrong with that. As long as the amount of evidence obtained this way is relatively minor and the documents or information were received on a confidential basis “solely for the purpose of generating new evidence”, the Prosecution is allowed to do this.914 In other words, a few documents and pieces of information can be obtained, coupled with an agreement for non-disclosure, as long as the only purpose of receiving this material is that it leads to other evidence. However, this was far from what the Prosecution did. First, the Prosecution obtained more than fifty (!) per cent of its evidence on the basis of confidentiality agreements.915 The Prosecution itself admitted that its use of Art. 54(3)(e) ICC-Statute to obtain evidence “may be viewed as excessive” and that “an excessive use of Art. 54(3)(e) would be problematic”.916 Second, a great amount of these documents were exculpatory material relevant to defence preparation.917 As I have outlined above, these document usually have to be turned over to the defence.918 Third, and most importantly, the Prosecution did not use the Art. 54(3)(e)-agreements only for the purpose to obtain other evidence, i. e. its “springboard or lead potential”.919 In fact, the Prosecution did quite the opposite, as the Trial Chamber described: “[T]he prosecution’s general approach has been to use Article 54(3)(e) to obtain a wide range of materials under the cloak of confidentiality, in order to identify from those materials evidence to be used at trial (having obtained the information provider’s consent). This is the exact opposite of the proper use of the provision, which is, exceptionally, to allow the prosecution to receive information or documents which are not for use at trial but which are instead intended to ‘lead’ to new evidence.”920 understood to be provided in accordance with and subject to arrangements envisaged in Article 18, paragraph 3, of the Relationship Agreement.”, cited in Ambos, 12 NCLR (2009), 543, 550. 914 Cf. Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 93. 915 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-79, Hearing Transcript, pp. 5–6 (March 13, 2008). 916 Cf. Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 32. 917 Ibid., para. 63 (“In this case over 200 documents, which the prosecution accepts have potential exculpatory effect or which are material to defence preparation, are the subject of agreements of this kind. On 10 June 2008, the Chamber was told that there are ‘approximately’ 95 items of potentially exculpatory material and 112 items which are ‘material to defence preparation’, pursuant to Rule 77, making a total of 207 items of evidence. Of these 207 items, 156 were provided by the UN.”, fn. omitted). 918 See supra F. III. 3. 919 Cf. Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 72. 920 Ibid., para. 73.

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The excessive recourse to Art. 54(3)(e) ICC-Statute was admitted – although as a result of a misunderstanding, as was subsequently pointed out921 – by the OTP’s Senior Trial Attorney during one of the pre-trial status conferences: “Of course, there was never any intention on the side of the Prosecutor [. . .] that these materials were received only for lead purposes. The point was to obtain these materials as quickly as possible for the sake of the ongoing investigation and then to allow the Office of the Prosecutor to identify the materials it wishes to use as evidence and then seek permission.”922 From the detailed descriptions so far follows, that the prosecution clearly engaged in misconduct. Consequently, the Trial Chamber had to choose the appropriate remedy. As I have pointed out, there is no provision that explicitly provides for remedies or sanctions in such a case. One possibility would have been to simply order the disclosure of the exculpatory material, disregarding any confidentiality agreements, pursuant to Art. 72(7) ICC-Statute.923 Obviously, the Prosecution wanted to avoid this solution at all costs since this would have endangered their (future) cooperation with the information providers.924 Therefore, the Prosecution “submitted that disclosure of exculpatory material should not be ordered by the Chamber pursuant to 921

Cf. Ambos, 12 NCLR (2009), 543, 552. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-86-ENG, Transcript of the Hearing on May 2008, Trial Chamber I, p. 23 lines 8–14 (May 6, 2008). 923 “Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State’s representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and (iii) The Court may make such inference in the trial of the accused as to the existence or non existence of a fact, as may be appropriate in the circumstances; or (b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.” 922

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its powers under Article 72(7)”.925 Instead, the Prosecution preferred a second solution, namely that the appropriate remedy for non-disclosure “where the evidence is so critical as to materially impact on the guilt or innocence of the accused is for the Chamber to make such inferences in the trial as to the existence or non-existence of facts as may be appropriate in the circumstances, and where the Chamber considers this remedy to be insufficient, the appropriate remedy is the dropping of the relevant charges”.926 In the end, the Chamber chose a third solution: the stay of proceedings because of an abuse of process, also labelled as the “balancing approach”.927 It stated that “[t]he prosecution’s approach constitutes a wholesale and serious abuse, and a violation of an important provision which was intended to allow the prosecution to receive evidence confidentially, in very restrictive circumstances.”928 The Chamber recognised an “apparent tension” between Art. 54(3)(e) and Art. 67(2) ICC-Statute, but considered this tension “to be negligible”, if Art. 54(3)(e) “is used appropriately”.929 In more concrete terms, it stated that: “although exculpatory material may be included in the springboard or lead evidence, in the limited circumstances in which this provision should be used, it is likely that a mechanism can be established which facilitates all necessary disclosure; for instance, the prosecution may need to make arrangements with the information-provider for disclosure of such parts of the Article 54(3)(e) material as will enable it to provide any potentially exculpatory evidence to the accused.”930

Thus, the Trial Chamber issued a stay of the proceedings, because “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”931 and this “right to a fair trial – which is without doubt a fundamental right – includes an entitlement to disclosure of exculpatory material.”932 On 21 October 2008, the 924 The OTP stressed the importance of information providers on numerous occasions, see, e. g. Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 26. 925 Ibid., para. 48; Prosecutor v. Thomas Lubanga Dyilo, Transcript of hearing on 6 May 2008, ICC-01/04-01/06-T-86-ENG, page 12, line 4 to page 13, line 8. 926 Ibid. 927 Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 194 ff.: “The balancing approach recognizes that remedies such as dismissal, stay, retrial, and exclusion may impose significant burdens on third parties and on the justice system, and it takes these burdens into consideration when determining the optimal remedy.” (p. 194). 928 Prosecutor v. Lubanga, No. ICC-01/04–01/06-1401, supra note 34, S. 314, para. 73; see generally Turner, ibid., 179 ff. 929 Cf. Prosecutor v. Lubanga, ibid., para. 76. 930 Ibid. 931 Ibid., para. 93.

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Appeals Chamber confirmed the stay,933 but made clear that the Trial Chamber “intended to impose a stay that was conditional and therefore potentially only temporary”.934 Considering that the reasons for the suspension had “fallen away”, the Trial Chamber finally lifted the stay on 18 November 2008.935 Since then, it seems the Prosecution had become more careful with respect to Art. 54(3)(e) material, as later decisions on defence requests to stay the proceedings demonstrate.936 bb) Non-disclosure in Connection with Intermediaries The second stay imposed on the proceedings in the Lubanga case was a result of problems arising from the Prosecution’s cooperation with so-called “intermediaries”. Intermediaries are “local organisations and/or private persons supporting the OTP by assisting in the collection of evidence and communication with potential witnesses, given their familiarity with the cultural, geographic and other characteristics of the region where alleged crimes took place”.937 In the case against Lubanga about twenty-three intermediaries assisted the OTP, seven of whom were used to contact approximately half of the witnesses the OTP called to give evidence against Lu932 Ibid., para. 77. With ponderous words, the Chamber continued: “This is an international criminal court, with the sole purpose of trying those charged with the ‘most serious crimes of concern to the international community as a whole’ and the judges are enjoined, in discharging this important role, to ensure that the accused receives a fair trial. If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary – indeed, inevitable – that the proceedings should be stayed.” (para. 91). 933 Prosecutor v. Lubanga, No. ICC-01/04-01/06-1486, supra note 654, S. 410. For a detailed chronology of events see Ambos, 12 NCLR (2009), 543, 553 ff.; id., Internationales Strafrecht, 3rd ed (2011), p. 121 with fn. 161–163. 934 Prosecutor v. Lubanga, No. ICC-01/04-01/06-1486, supra note 654, S. 410, para. 75, continuing: “The Trial Chamber acknowledged, however, that circumstances might change, in particular should the information providers alter their position and give their consent to the disclosure of the documents in question.” 935 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-98-ENG, Hearing Transcript Trial Chamber I, page 3 line 25 (November 18, 2008); see also Ambos, 12 NCLR (2009), 543, 546. 936 See, e. g., Prosecutor v. Nourain and Jerbo Jamus, No. ICC-02/05-03/09-410, supra note 901, S. 453, para. 145 ff. 937 See ICC Monitor 41st November 2010 – April 2011, p. 9; Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. I, p. 31. The ASP broadly defines an intermediary “as an individual or entity that facilitates contact between the Court and a witness, victim or other source of information.”, see ASP, Resolution ICCASP/9/Res.5, Adopted at the 5th plenary meeting (10 December 2010), Annex, para. 2 with fn. 3.

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banga.938 Usually, both the cooperation with intermediaries and their use to create incriminating evidence are perfectly legal. Moreover, the Chamber deemed it appropriate that the identities of the intermediaries would not have to be disclosed to the defence, if particular material required protection and if the statement or document, in its redacted form, is sufficiently comprehensible for the purposes of dealing with trial issues.939 Nevertheless, during the proceedings against Lubanga the suspicion arose that certain intermediaries had bribed various persons to prepare false evidence for alleged former child soldiers.940 This, of course, turned the formerly incriminating evidence into evidence that was material for the preparation of the Defence case, which means that the identities of those intermediaries in question simply should be disclosed.941 Consequently, on 15 March 2010 the Chamber indicated that the defence was entitled to know the names of certain intermediaries.942 Balancing the need for intermediary-protection on the one hand and the rights of the accused on the other, the Trial Chamber adopted an approach under which, inter alia, the intermediary’s identity is disclosable under Rule 77 ICC-RPE,943 if “prima facie grounds have been identified for suspecting that the intermediary in question had been in contact with one or more witnesses whose incriminating evidence has been materially called into question, for instance by internal contradictions or by 938 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 3. 939 Cf. Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 6. 940 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-146-CONFEXP-ENG-ET, Transcript of hearing on 13 March 2009, page 3, lines 11–18 (“[. . .] the Defence explained that they wished to explore the possibility that certain people have participated in preparing false evidence for alleged former child soldiers, and in this case that [143] helped the witness to invent a false story or a false identity, or both.”), cited in Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 16. 941 Cf. Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-240CONF-ENG-ET, Transcript of hearing on 8 February 2010, page 2, lines 3 ff., where the Chamber said: “We are concerned as to the issue of disclosure in relation to intermediaries in the case, and we wish at the moment simply to put principally the Defence and the Prosecution on notice that we would like in the very near future to address the issue of whether there has been sufficient disclosure to the Defence, given the evidence that we have heard thus far as part of the Defence case.”, cited in Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 34. 942 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-261-CONFENG-ET, Transcript of hearing on 15 March 2010, page 6, line 18 to page 7, line 8, cited in Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 41. 943 About Rule 77 ICC-RPE see supra F. IV. 3.

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other evidence.”944 Because “some intermediaries may have attempted to persuade individuals to give false evidence”, those prima facie grounds have been identified. As a consequence, the Trial Chamber ordered the Prosecution to disclose confidentially to the Defence the identity (“names and other identifying information” plus the “professional background”) of certain intermediaries.945 That the proceedings had to be stayed did not – at least not directly – result from the mere fact that the Chamber discovered that certain intermediaries, whose identity did justifiably not have to be revealed, had bribed witnesses to give false testimony. Rather, it resulted from the non-compliance of the Prosecution with the disclosure order just mentioned.946 The Prosecution quite frankly remarked, after having missed the deadline by the Trial Chamber to comply with the order: “The Prosecution consider that it cannot disclose the information in the current circumstances, but will consult with the VWU as to whether the security situation allows for disclosure 944 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 139. The entire approach is: “a) Given the markedly different considerations that apply to each intermediary (or others who assisted in a similar or linked marmer), disclosure of their identities to the defence is to be decided on an individual-by-individual basis, rather than by way of a more general, undifferentiated approach. b) The threshold for disclosure is whether prima facie grounds have been identified for suspecting that the intermediary in question had been in contact with one or more witnesses whose incriminating evidence has been materially called into question, for instance by internal contradictions or by other evidence. In these circumstances, the intermediary’s identity is disclosable under Rule 77 of the Rules. [. . .] c) The identities of intermediaries (or others who assisted in a similar or linked manner) who do not meet the test in b) are not to be disclosed. d) Disclosure of the identity of an intermediary (or others who assisted in a similar or linked manner) is not to be effected until there has been an assessment by the VWU, and any protective measures that are necessary have been put in place. e) The identities of intermediaries who did not deal with trial witnesses who gave incriminating evidence are not to be revealed, unless there are specific reasons for suspecting that the individual in question attempted to persuade one or more individuals to give false evidence or otherwise misused his or her position. Applications in this regard will be dealt with by the Chamber on an individual basis. f) The threshold for calling intermediaries prior to the defence abuse submissions is that there is evidence, as opposed to prima facie grounds to suspect, that the individual in question attempted to persuade one or more individuals to give false evidence.” 945 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2434-RED2, supra note 468, S. 380, para. 150. 946 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2517-RED, Redacted Decision on the Prosecution’s Urgent Request for Variation of the TimeLimit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, para. 12, 13 (July 8, 2010).

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now.” They continued: “The Prosecution is bound by autonomous statutory duties of protection that it must honour at all times.”947 From the perspective of disclosure remedies, the refusal of the Prosecution to implement the Court’s order is the fact that distinguishes this stay of proceedings from the earlier stay caused by an incorrect reading of Art. 54(3)(e) ICC-Statute. This refusal had – in the view of the Court – a twofold impact: first, it had an impact on the assessment of evidence by the Court. Second, it had an impact on the administration of justice. Both impacts were described and provided with an explicit warning by the – noticeably enraged – Chamber in sharp language. With regard to the former, the Chamber warned: “However, if the identifying information for 143, despite the orders of the Chamber, is not disclosed to the defence, then the Chamber will need to scrutinize the impact of this eventuality in the context of its overall assessment of the evidence in the case, and the fairness of the proceedings against the accused.”948 This is an astonishing statement that has been overlooked by many commentators so far. The warning that the Chamber “will need to scrutinize the impact of this eventuality in the context of its overall assessment of the evidence in the case” recalls two forms of disclosure remedies I described earlier: first, the exclusion of evidence; and second, the instruction of the jury. As I have shown, in England and Wales s. 87 PACE provides for the exclusion of evidence as a remedy for non-disclosure “if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”949 I have also made clear that this remedy does not necessarily have to follow from s. 87 PACE, but can also be based upon an abuse of process arising from non-disclosure.950 There are two possibilities of which exact evidence could be excluded,951 one of them being a context-related approach, according to which s. 87 PACE provides for the exclusion of evidence “which is misleading in the absence of full disclosure”.952 Under this approach, the 947 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2515, 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 VWU, para. 1, 3 (July 7, 2010), cited in Prosecutor v. Lubanga, No. ICC-01/04-01/06-2517-RED, supra note 946, S. 460, para. 13. 948 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2517-RED, supra note 946, S. 460, para. 20, italics added. 949 See supra F. VII. 2. a) bb). 950 See supra F. VII. 2. a) aa). See also Epp, Building on the Decade of Disclosure (2001), p. 181. 951 See supra F. VII. 2. a) bb). 952 Edwards, Crim. L.R. (1997), 321, 327.

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judge can exclude material that would support the Prosecution case but is “misleading” as a result of the non-disclosure of the material the Prosecution did not intend to use at trial (because it was, for instance, favourable to the accused).953 This context-related approach might have been what the (English) Presiding Judge Fulford had in mind when he referred to the “overall assessment of the evidence in the case”. Moreover, the wording of the Chamber further recalls the non-disclosure remedy of jury instructions in US criminal procedure. As I have described, in a case before the United States District Court, District of Montana (where the Prosecution also did not comply with a Court order), Judge Malloy instructed the jury that it should view the testimony of a Prosecution witness “with great scepticism” as a result of the non-disclosure.954 In another case, the judge instructed the jury that it could infer from the prosecution’s disclosure failure that the prosecution case was not very strong in its entirety, saying: “The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.”955 Again, there is a striking similarity between this “mass of alleged facts constituting his cause” and the “overall assessment of the evidence in the case” which the Trial Chamber in Lubanga referred to. Second, with regard to the impact on the administration of justice, the Trial Chamber chose even sharper words. For the Chamber, the Prosecutor’s refusal to implement the orders of the Chamber revealed that the Prosecutor “does not consider that he is bound to comply with judicial decisions that relate to a fundamental aspect of trial proceedings”.956 The Chamber remarked (it is worth reading the entire passage): “No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations. The judges, not the Prosecutor, decide on protective measures during the trial, once the Chamber is seized of the relevant issue, as regards victims, witnesses and others affected by the work of the Court, and the prosecution cannot choose to ignore its rulings.”957 953

See supra F. VII. 2. a) bb) and F. III. 2. U.S. v. W.R. Grace, 2009 WL 1160402 (D.Mont.) (Jury Instruction), see supra F. VII. 1. b) dd). 955 Shelton v. U.S., 983 A.2d 363, 370, citing, inter alia, United States v. Remington, 191 F.2d 246 (2nd Cir. 1951), where the court held that “[e]vidence of efforts to suppress testimony or evidence in any form like the spoliation of documents is affirmative defense of the weakness of the prosecution’s case.” Id. at 251. 956 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2517-RED, supra note 946, S. 460, para. 21. 957 Ibid., para. 27, continuing: “It is for the Chamber to determine whether protective measures are necessary (following consultation with the VWU under Article 954

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This remark is both welcome and alarming: welcome, because it serves another function that I previously mentioned in the context of non-disclosure remedies in US-Law – deterrence of future disclosure violations through strong language that shows that there are areas in international criminal procedure with no allowance of exceptions, compromises and delays.958 Unfortunately, the remark of the Chamber is also alarming because it clearly demonstrates a certain degree of powerlessness. Obviously, any harsher sanction against the Prosecution was not an option for the Chamber. Therefore, it did not have any choice but to use rigorous language in order to hope to deter similar conduct in the future. After another order of additional disclosure,959 the Trial Chamber refused the application of the defence to stay the proceedings permanently.960 In this context, the defence applied for a permanent stay because of – inter alia – “the Prosecutor’s deliberate failure to discharge his disclosure and inspection obligations”.961 As a result, the Trial Chamber, after considering the case law on abuse of process before the ICC in detail,962 asked the following questions: “[F]irst, would it be ‘odious’ or ‘repugnant’ to the admin68(4) of the Statute); their nature; and whether they are consistent with the accused’s right to a fair trial. These are issues for the Court, and the Court alone, to determine, having heard submissions and having considered all the information the judges consider necessary and relevant. The Prosecutor now claims a separate authority which can defeat the orders of the Court, and which thereby involves a profound, unacceptable and unjustified intrusion into the role of the judiciary. [. . .] The Prosecutor has chosen to prosecute this accused. In the Chamber’s judgment, he cannot be allowed to continue with this prosecution if he seeks to reserve to himself the right to avoid the Court’s orders whenever he decides that they are inconsistent with his interpretation of his other obligations. In order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court.” (para. 28). 958 See supra F. VII. 1. b) dd). On the US-Law Dewar, 115 Yale L.J. (2005– 2006), 1450, 1461 ff. 959 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2597-Red, Public Redacted Decision on the Prosecution’s Requests for Non-Disclosure of Information in Witness-Related Documents (December 3, 2010). 960 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2690-Red, Redacted Decision on the “Defence Application Seeking a Permanent Stay of the Proceedings”, para. 224 (March 2, 2011). 961 This was one out of “five serious failings”, see Prosecutor v. Lubanga, No. ICC-01/04-01/06-2690-Red, ibid., para. 23. In more detail para. 101 ff. The Defence submitted that the Prosecution “deliberately omitted to disclose significant exculpatory evidence” (para. 102) and “deliberately delayed disclosure of evidence that is material to the preparation of the defence case” (para. 103), and gave examples. 962 Ibid., para. 160–165.

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istration of justice to allow the proceedings to continue, or second have the accused’s rights been breached to the extent that a fair trial has been rendered impossible.”963 Although the Prosecution admitted that it made mistakes with regard to its disclosure obligations,964 the Chamber stated that: “the suggested failure to make prompt disclosure (which is alleged on occasion to have been deliberate, and which sometimes was effected after the relevant witness had testified) cannot properly be characterised as something that would render it ‘odious’ or ‘repugnant’ to the administration of justice to allow the proceedings to continue. Similarly, the suggested individual breaches of the accused’s right to disclosure (whether viewed individually or collectively) do not constitute such a serious violation of the statutory safeguards as to make his trial ipso facto unfair.”965

The Chamber also emphasised that this does not mean that there have not been disclosure failures by the Prosecution. Nevertheless, in the view of the Chamber, those failures did not reach the high threshold of an abuse of process. Instead, the Chamber announced that “[t]he alleged failings on the part of the prosecution can be addressed as part of the ongoing trial process.” Reading this, it is hard to resist asking how the Chamber is planning to “address” these failings “as part of the ongoing trial process”, when it proved to be unable to sanction the prosecution for its previous misconduct?966 After the Trial Chamber refused to stay the proceedings a third time (and permanently), the trial resumed on 30 March 2011 and a judgement was rendered on 14 March 2012,967 which – again and finally – addressed the disclosure failures by the prosecution,968 especially and extensively the intermediary problem.969

963 Ibid., para. 166, citing Prosecutor v. Lubanga, ICC-01/04-01/06-772, supra note 902, S. 453, para. 27, 30, 37. 964 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2690-Red, supra note 960, S. 463, para. 207. 965 Ibid., para. 212. 966 For a general comment on the existing remedies and sanctions for non-disclosure see infra F. VIII. 967 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42. 968 The judges addressed two forms of disclosure failures: incomplete and late disclosure, see Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 121, 122; see also Ambos, 12 ICLR (2012), 115, 124. 969 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 178–477. About the difference between non-disclosure and incomplete disclosure see Ambos, ibid., 124 with fn. 65.

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b) Disciplinary measures Unlike the remedy of staying the proceedings, which is imposed by the judge and granted principally to the accused, disciplinary proceedings against the Prosecution relate more directly to an international tribunal’s inherent power.970 Provisions of disciplinary measures can be separated into general prohibitions against misconduct and breach of duty at the ICC, Staff Rules and Rules for Professional Conduct. aa) General Prohibitions Against Misconduct and Breach of Duty With regard to the first category (general prohibitions against misconduct and breach of duty at the ICC), Art. 47 ICC-Statute is titled “Disciplinary measures” and reads: “A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.”971 This provision is directed especially at the Prosecutor, although it also applies to any judge or Registrar or Deputy Registrar.972 In addition, the ICCRPE provide for procedural requirements in relation to disciplinary measures. Rule 25 ICC-RPE defines misconduct of a “less serious nature”.973 970 Mégret, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), p. 416, 477. 971 Art. 46(1) ICC-Statute concerns the removal from office. 972 Mégret, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), p. 416, 479. 973 “1. For the purposes of article 47, ‘misconduct of a less serious nature’ shall be constituted by conduct that: (a) If it occurs in the course of official duties, causes or is likely to cause harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as: (i) Interfering in the exercise of the functions of a person referred to in article 47; (ii) Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority; (iii) Failing to enforce the disciplinary measures to which the Registrar or a Deputy Registrar and other officers of the Court are subject when a judge knows or should know of a serious breach of duty on their part; or (b) If it occurs outside the course of official duties, causes or is likely to cause harm to the standing of the Court. 2. Nothing in this rule precludes the possibility of the conduct set out in subrule 1 (a) constituting ‘serious misconduct’ or ‘serious breach of duty’ for the purposes of article 46, paragraph 1 (a).”

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The aforementioned disclosure failures certainly meet the definition in Rule 25(1)(a)(ii) ICC-RPE: “Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority; [. . .].” According to Rule 26(1) ICC-RPE, complaints about alleged misconduct “shall include the grounds on which it is based, the identity of the complainant and, if available, any relevant evidence. The complaint shall remain confidential.” The procedure governing those complains is outlined in Rule 26(2) ICC-RPE: “All complaints shall be transmitted to the Presidency, which may also initiate proceedings on its own motion, and which shall, pursuant to the Regulations, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. The Presidency shall be assisted in this task by one or more judges, appointed on the basis of automatic rotation, in accordance with the Regulations.”

This rule is supplemented by Regulation 120 RegCourt, which provides that “the Presidency shall be assisted by three judges [. . .] in order to determine whether a complaint is anonymous or manifestly unfounded.”974 The judges shall, where necessary, “seek additional comments from either the person being complained against or the complainant and shall make a recommendation to the Presidency on whether such complaint is admissible or should be set aside in accordance with rule 26, sub-rule 2.”975 The person who is the object of the complaint “shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her.”976 Once disciplinary measures against the Prosecutor are requested, “any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties.”977 In case those measures are requested against the Deputy Prosecutor, “[a]ny decision to give a reprimand shall be taken by the Prosecutor”978 and “[a]ny decision to impose a pecuniary sanction shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor.”979 Disciplinary measures can be “[a] reprimand” or “[a] pecuniary sanction”.980 Another tool to investigate the alleged misconduct of staff and elected officials of the court are so-called “oversight mechanisms”. At the ICC, 974

Regulation 120(1) RegCourt. Regulation 120(2) RegCourt. 976 Rule 27(2) ICC-RPE. 977 Rule 30(2) ICC-RPE. 978 Rule 30(3)(a) ICC-RPE. 979 Rule 30(3)(b) ICC-RPE. 980 Rule 32 ICC-RPE. The pecuniary sanction “may not exceed six months of the salary paid by the Court to the person concerned.” (Rule 32(b) ICC-RPE). 975

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apart from the existing statutory mechanisms on misconduct and management already mentioned,981 there are currently four existing oversight mechanisms: The Office of the Internal Audit;982 the External Auditor;983 the Audit Committee;984 and the Committee on Budget and Finance.985 However, while these mechanisms deal entirely with budgetary and financial concerns,986 another mechanism that was established by the Assembly of States Parties987 in accordance with Art. 112(4) ICC-Statute988 explicitly addresses all sorts of misconduct of staff and elected officials: the “Independent Oversight Mechanism” (IOM). Especially the U.S.A. were leading in proposing such a mechanism in the Preparatory Committee.989 The IOM is not yet fully operational and “the development of the mechanism, its Operating Manual, and other provisions relating to the establishment of the IOM are on-going.”990 A comprehensive proposal for the full operationalisation of the IOM is expected in 2014.991 The IOM “may receive and investigate reports of misconduct or serious misconduct”, including possible unlawful acts by the elected officials of the Court,992 staff members and contractors.993 The term “misconduct” includes “any act or omission by 981 See generally Olásolo et al., Assessing the role of the independent oversight mechanism (2011), pp. 39 ff. 982 Rule 110.1 of the Financial Regulations and Rules of the ICC. 983 Art. 118 ICC-Statute: “The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.” 984 See ASP, Report of the Committee on Budget and Finance on the work of its eleventh session, Seventh Session, ICC-ASP/7/15 (31 October 2008), para. 24 ff. 985 Regulation 12.9 of the Financial Regulations and Rules of the ICC. 986 Olásolo et al., Assessing the role of the independent oversight mechanism (2011), p. 39. 987 Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth session, The Hague, 18–26 November 2009 (ICC-ASP/8/20), vol. I, part II, ICC ASP/8/Res.1. 988 “The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.” 989 See Schabas, Commentary (2010), p. 1128 with further references. 990 Olásolo et al., Assessing the role of the independent oversight mechanism (2011), p. 11. 991 ASP, Report of the Bureau on the Independent Oversight Mechanism, Eleventh Session, ICC-ASP/11/27 (1 November 2012), Annex I, para. 1. 992 Including “a judge, the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court”, see ASP, Resolution ICC-ASP/9/Res.5, Adopted at the 5th plenary meeting (10 December 2010), Annex, para. 2. 993 Including “staff subject to the Staff and Financial Regulations and Rules of the Court [. . .] and all contractors and/or consultants retained by the Court and working on its behalf”, see ASP, Resolution ICC-ASP/9/Res.5, Adopted at the 5th

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elected officials, staff members or contractors in violation of their obligations to the Court pursuant to the Rome Statute and its implementing instruments, Staff and Financial Regulations and Rules, relevant administrative issuances and contractual agreements, as appropriate.”994 The results of investigations conducted by the IOM will then be transmitted to the Presidency, Registrar or Prosecutor of the Court, “together with recommendations for consideration of possible disciplinary or jurisdictional action.”995 An interesting aspect with regard to the sanctioning of misconduct is the ability of the IOM to “recommend that the Court refer the matter for possible criminal prosecution to relevant national authorities, such as those of the State where the suspected criminal act was committed, the State of the suspect’s nationality, the State of the victim’s nationality and, where applicable, of the host State of the seat of the Court.”996 Thus, in theory the IOM does indeed have the ability to sanction prosecutorial misconduct, what puts teeth into the investigatory powers of the IOM. The probability that these sanctions will be imposed, however, is a different matter. Because the former Chief Prosecutor Luis Moreno Ocampo objected to the competence of the IOM to investigate in his office without his prior agreement,997 the ASP revised the IOM’s procedures and limited its own investigatory powers.998 The IOM will now have to take into consideration any objections by a head of an organ.999 Should the IOM still consider that there is a need for an investigation, a third party “with judicial or prosecutorial experience appointed by the Bureau” will be brought in to resolve the issue.1000 Moreover, the Registrar questioned whether it was necessary at all to have an IOM, since “the Court already has mechanisms to address misplenary meeting (10 December 2010), Annex, para. 2. Interestingly, the term “contractor” or “consultant” does not include an “intermediary”, see ASP, Resolution ICC-ASP/9/Res.5, Adopted at the 5th plenary meeting (10 December 2010), Annex, para. 2 with fn. 3. About intermediaries and disclosure in more detail see supra F. VII. 3. a) bb). 994 ASP, Resolution ICC-ASP/9/Res.5, ibid., Annex, para. 2 with fn. 2. 995 Ibid., Annex, para. 4. 996 Ibid., Annex, para. 31. In that case, the IOM is also entitled to recommend that “privileges and immunities be waived”, see ibid., Annex, para. 32. 997 He argued that it follows from Art. 42 ICC-Statute, that “it is not just the Prosecutor who is independent, but the entire office. [. . .] Accordingly, the OTP was of the view that, as a consequence of this article, a member of its staff could not be obliged to cooperate with an IOM investigation without the Prosecutor’s consent.”, see ASP, Report of the Bureau on the Independent Oversight Mechanism, Ninth Session, ICC-ASP/9/31 (19 November 2010), para. 44. 998 Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 243. 999 ASP, Resolution ICC-ASP/9/Res.5, Adopted at the 5th plenary meeting (10 December 2010), Annex, para. 21. 1000 Ibid., Annex, para. 22.

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conduct”.1001 Taken into account the concessions the ASP had to make and the limited capacity of the IOM, an operating IOM will probably neither prevent nor effectively sanction prosecutorial misconduct.1002 bb) Staff Rules The second category of possible disciplinary measures against the Prosecutor is governed by the Staff Rules of the ICC. Those Rules are directed especially at alleged wrongdoing within the Prosecutor’s office and situations when this wrongdoing falls within the Prosecutor’s disciplinary powers.1003 Of course, those Rules are not directed at the Prosecutor him or herself since the Prosecutor cannot be expected to discipline him or herself.1004 Moreover, since neither the ICC-Statute nor the ICC-RPE specifically define a violation of the Staff Rules as “serious misconduct” or “a serious breach of duty”, a violation of the Staff Rules alone cannot serve as a basis for the ASP to remove the Prosecutor or the Deputy Prosecutor.1005 However, he or she is responsible for determining whether OTP staff members have violated the Staff Rules and what disciplinary measures should be imposed.1006 The Prosecutor is advised in this capacity by the Disciplinary Advisory Board, which can take evidence and make recommendations.1007 In Chapter X, the Staff Rules deal with “disciplinary measures”. Disciplinary proceedings can be instituted in case a staff member fails to act “in accordance with any official document of the Court governing rights and obligations of staff members” or fails “to observe the standards of conduct expected of an international civil servant”, which amounts to “unsatisfactory conduct”.1008 If a staff member allegedly commits “unsatisfactory conduct”, he or she is entitled to certain procedural rights outlined in Rule 110.2 Staff Rules ICC.1009 During the disciplinary proceedings, the staff 1001 ASP, Report of the Bureau on the Independent Oversight Mechanism, Seventh Session, ICC-ASP/7/28 (4 November 2008), para. 18; in the same vein Olásolo et al., Assessing the role of the independent oversight mechanism (2011), p. 43: “[S]ignificant overlap between the various auditing provisions already in place within the structure of the ICC may exist.” (fn. omitted). 1002 In the same vein Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 181, 244. 1003 Cf. Mégret, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), p. 416, 477, italics added. 1004 Ibid., pp. 478, 479. 1005 Markovic, 47 Tex. Int’l L. J. (2011–2012), 201, 207. 1006 Ibid., 206. 1007 Rules 110.3(a), 110.4(b), (d)–(e) Staff Rules ICC; Markovic, ibid. 1008 Rule 110.1 Staff Rules ICC. 1009 “(a) No disciplinary proceedings may be instituted against a staff member until after he or she has been notified in writing of the allegations against him or

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member may be suspended from duty, “[i]f the Registrar or the Prosecutor, as appropriate, decides that the staff member’s continuance in service would prejudice the interests of the Court”.1010 Rule 110.6(a) Staff Rules ICC lists forms of disciplinary measures which may be imposed by the Registrar or the Prosecutor: “Written censure; Deferment for a specified period or withholding of within-grade increment; Loss of one or more withingrade increments; Suspension without pay; Fine; Demotion; Termination of appointment, with or without notice, or compensation in lieu thereof, notwithstanding staff rule 109.2; or [s]ummary dismissal for serious misconduct pursuant to staff rule 110.7.” Explicitly excluded from this list are “[r]eprimand, written or oral, by a supervisor; Recovery of monies owed to the Court; or [s]uspension pursuant to staff rule 110.5.”1011 Summary dismissal is anticipated for “serious misconduct”, such as “serious failure to observe the standards of conduct”, especially when malicious.1012

her and of the right to seek the assistance of another person in his or her defence, and has been given a reasonable opportunity to respond to those allegations. (b) No staff member may be subject to disciplinary measures until after the referral of the matter to a Disciplinary Advisory Board for advice as to what measures, if any, are appropriate, except that no such advice shall be required: (i) If referral to the Disciplinary Advisory Board is waived by mutual agreement of the staff member concerned and the Registrar or the Prosecutor, as appropriate; or (ii) In respect of summary dismissal imposed by the Registrar or the Prosecutor, as appropriate, in cases of serious misconduct. (c) In cases of summary dismissal imposed without prior referral of the case to a Disciplinary Advisory Board in accordance with paragraph (b)(ii), the former staff member concerned may, within sixty days of receiving written notification of the measure, request that the measure be reviewed by a Disciplinary Advisory Board. Such a request shall not have the effect of suspending the measure. After receipt of the advice of the Disciplinary Advisory Board, the Registrar or the Prosecutor, as appropriate, shall decide as soon as possible what action to take in respect thereof. (d) A staff member shall be entitled to be represented or assisted by a staff member or a former staff member of his or her choosing during the course of disciplinary proceedings at his or her own expense.” 1010 Rule 110.5(a) Staff Rules ICC. This suspension “shall be with pay unless, in exceptional circumstances, the Registrar or the Prosecutor, as appropriate, decides that suspension without pay is appropriate. The suspension shall be without prejudice to the rights of the staff member and shall not constitute a disciplinary measure.” 1011 Rule 110.6(b) Staff Rules ICC. 1012 Rule 110.7 Staff Rules ICC. Cf. Mégret, in: Reydams, Wouters and Ryngaert, eds., International Prosecutors (2012), p. 416, 478.

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cc) Rules of Professional Conduct The third category of disciplinary measures at the ICC is provided in the Codes of Conduct. Like the ABA Model Rules for Professional Conduct in the U.S.A.,1013 the ICC also has Codes of Conduct that ensure the compliance of trial participants with ethical rules and values. The ICC has three Codes of Conduct, the Code of Judicial Ethics, the Code of Professional Conduct for counsel and the Code of Conduct for the OTP. The Code of Judicial Ethics was adopted by the judges pursuant to Regulation 126 RegCourt.1014 The Code of Professional Conduct for Counsel was adopted by the ASP and applies “to defence counsel, counsel acting for States, amici curiae and counsel or legal representatives for victims and witnesses practising at the International Criminal Court”.1015 Since the Prosecutor was given the authority to set up his own office,1016 the Code of Professional Conduct for Counsel does not apply to the OTP.1017 Furthermore, Rule 9 ICC-RPE provides that it is the Prosecutor’s responsibility to “govern the operation of the office”, including whether or not he would have a code of conduct and regulations.1018 Therefore, when the OTP started working, it had neither regulations nor a code of conduct (which was still the case when the first stay of the proceedings was imposed by the Trial Chamber in the Lubanga case in June 2008).1019 The OTP eventually published regulations on 23 April 2009 (one can only assume that the disclosure failures in the Lubanga case had something to do with it). Nevertheless, the OTP has only recently introduced a code of conduct, which entered into force on 5 September 2013 and which is basically a reference to the staff rules of the ICC. Thus, looking for consequences of a 1013

See supra F. VII. 1. b) cc). Art. 1 Code of Judicial Ethics. Regulation 126 RegCourt reads: “1. The Presidency shall draw up a Code of Judicial Ethics, after having consulted the judges. 2. The draft Code shall then be transmitted to the judges meeting in plenary session for the purpose of adoption by the majority of the judges.” 1015 Cf. Art. 1 Code of Professional Conduct for counsel. 1016 Cf. Art. 42(2) ICC-Statute. 1017 See also Roosevelt, 24 Geo. J. Legal Ethics (2011), 835, 840, who also provides an interesting reason for this: “The Prosecutor may have been given the responsibility to set up his own office as a carrot to take the job. Negotiations over how to set up the OTP took a great deal of time at the conference where the Rome Statute was drafted. It was difficult to recruit someone for the position of Prosecutor because there were many uncertainties about how much support he or she would have from states. This would mean the Prosecutor would be operating in a new, international arena, possibly without a government behind him or her.” (fn. omitted). 1018 Ibid. 1019 See supra F. VII. 3. a) aa). 1014

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possible prosecutorial misconduct, Rule 74 reads: “Any unsatisfactory conduct may result in the Prosecutor imposing appropriate disciplinary measures in accordance with Chapter X of the Staff Rules.” That does not mean that there have not been any proposals or drafts for a code of conduct before. In 2003, Morten Bergsmo, Senior Legal Advisor at the ICC-OTP Legal Advisory Section at that time, drafted a Prosecutorial Code of Conduct, which appeared on the ICC’s website.1020 In comparison to the then existing Professional Conduct for Prosecution Counsel at the ad hoc tribunals, Bergsmo’s draft was much more specific.1021 The draft – which is not available at the ICC’s website anymore, but was kindly provided to me by Morten Bergsmo himself – contains seven chapters, 21 sections and several regulations. Most interesting for the purpose of this study are the provisions on truth, exonerating evidence and disclosure. Chapter 2, Regulation 6.3(d) reads: “In accordance with the principles set out in this Code, members of the Office shall in all their dealings with and relations to the Court and in all matters arising in the performance of their duties or the exercise of their powers: [. . .] (d) endeavour to establish the truth in preliminary examinations, investigations and prosecutions, in accordance with article 54 of the Statute and Regulation 13; [. . .].” This provision confirms the (policy-implementing) goal of truth within international criminal proceedings and especially of the ICC. It demonstrates, that also the OTP is bound to it and cannot excuse itself by pointing to its role as a party within “adversarial” proceedings. A possible objection by the OTP, that substantive truth finding is utopian since the OTP is not a “recording angel”,1022 counters the draft by its footnote to that provision: “This standard of truth-seeking is excerpted from the statement of purpose supporting the duty of the Prosecutor to investigate all relevant facts and evidence, that is, ‘In order to establish the truth . . .’ (art. 54(1)(a)). As the search for truth cannot be an obligation of result, the term ‘strive’ is used to convey an obligation of means of central importance for individual choices of conduct.” Regulation 13 provides for specific standards of “truth-seeking”, inter alia: first, “to provide the factual and evidentiary basis for an accurate assessment of whether there may be criminal responsibility under the Statute”; second, the “investigation of both incriminating and exonerating circumstances as a matter of equal priority and with equal diligence”; and third, “prompt reporting of concerns which, if substantiated, would tend to render a previous conviction made by the Court unsafe, bring the administration of justice into disrepute or constitute a miscarriage of justice; and full conformity to the applicable rules on 1020

Roosevelt, 24 Geo. J. Legal Ethics (2011), 835, 844. Ibid., 846. 1022 About this argument and substantive truth finding in more detail, see supra E.IV.1.b.bb.(2)(a)(aa). 1021

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disclosure of new evidence”.1023 Especially the second and third standard are remarkable. The second standard does not only highlight the (policy-implementing) feature of investigating both incriminating and exonerating evidence, but also stresses the importance of the word “equally” in a footnote: “The Statute requires that incriminating and exonerating circumstances be investigated ‘equally’. This standard interprets ‘equally’ as equality in priority, diligence and resource-allocation, and thus relevant to several professions and levels of seniority within the Office.” This statement contains a reference to the principle of equality of arms in its basic facets I have described above,1024 and serves as another important and necessary guideline for the OTP. The investigation of exonerating evidence, as an element of truth finding, is further specified in Regulation 46 of the draft: “During evidence collection, all care shall be taken to identify exonerating evidence. The Evidence Officer shall ensure that potentially exonerating evidence is properly identified and labelled as such in the Evidence Registration Form. If any material points to further potentially exonerating material, this potential shall be recorded. If the lead is not pursued further, the reasons for this decision shall be recorded on the Evidence Registration Form.”

This regulation demonstrates that already in 2003 its drafter(s) predicted that the provisions of the ICC-Statute and the ICC-RPE on lead evidence would not prevent the OTP from conducting an illegal approach to lead evidence. The third standard stresses the importance of on-going disclosure and the prevention of miscarriages of justice for the OTP. However, with regard to disclosure the most interesting fact is not this standard itself but what Bergsmo’s draft actually does not contain. The entire section 5 is titled: 1023 The entire Regulation reads: “Seeking the truth includes, inter alia: (a) upholding the central aim of investigation and analysis, namely to provide the factual and evidentiary basis for an accurate assessment of whether there may be criminal responsibility under the Statute; (b) investigation of both incriminating and exonerating circumstances as a matter of equal priority and with equal diligence; (c) assessment of the materiality of facts and the probative value of evidence according to all relevant circumstances and irrespective of mere advantage or disadvantage to any potential case; (d) prompt reporting of concerns which, if substantiated, would tend to render a previous conviction made by the Court unsafe, bring the administration of justice into disrepute or constitute a miscarriage of justice; and full conformity to the applicable rules on disclosure of new evidence.” [footnotes omitted] As the phrase “inter alia” demonstrates, this enumeration is not final, i. e. the draft rightfully recognises, that the truth-seeking aspect is a matter of principle that cannot be regulated in every detail. 1024 See supra F.II.

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“Disclosure [and access for defence counsel]”. The first striking fact is, that the draft mentions “disclosure” and “access” in the same title and therefore stresses the importance of communication – an issue that will prove to be vital for this study.1025 The second striking fact is the footnote to that title: “It is suggested that a section on disclosure be included at a later stage, once the Pre-Trial Chamber has clarified the scope of the Office’s disclosure obligations.” This section makes two important statements, which are almost identical to some findings of this study: first, the most important stage for disclosure is the pre-trial stage. Second, it is the Pre-Trial Chamber who must establish a disclosure regime out of the existing disclosure provisions. This confirms my demand for a uniform interpretation of the disclosure rules – without it even a Code for Professional Conduct must remain incomplete. In sum, Bergsmo’s draft serves as a specific and comprehensive guideline for the OTP and is more than suitable as a basis for disciplinary measures. Whether it was because or in spite of these specific regulations, that the then Chief Prosecutor Luis Moreno-Ocampo decided not to enact Bergsmo’s proposed Code of Conduct, remains a matter of speculation. Some authors regard this decision as a political one.1026 The draft that is currently available was prepared by the secretariats of the International Association of Prosecutors (IAP) and the Coalition for the International Criminal Court (CICC).1027 Part 4 of this draft code deals with “Offences and Misconduct of the Court”. Art. 14 thereby explicitly refers to disclosure failures: “Prosecutors shall: [. . .] Not harm the functioning of the Court by engaging in serious misconduct or serious breach of duty, including, inter alia, concealing information, disclosing information in a manner seriously prejudicial to the judicial proceedings or any person, failing to comply with duties, or adversely affecting the credibility of an offi1025

See infra G.III. Schiff, Building the ICC (2008), p. 10 (“During the yearlong interim between the Statute’s coming into force and the Chief Prosecutor’s appointment, officials in the OTP developed draft regulations for how to proceed. Upon taking office, however, the new Chief Prosecutor suspended those early plans, and crafted a model for his office’s operations that appeared to take diplomatic-political considerations into more immediate account than would have the implementation of the draft regulations [. . .].”); Roosevelt, 24 Geo. J. Legal Ethics (2011), 835, 845, 846 (“However, when Moreno-Ocampo became Chief Prosecutor, he set aside Bergsmo’s proposed regulations in favor of ‘a model for his office’s operations that appeared to take diplomatic-political considerations in[to] more immediate account than would have the implementation of the draft regulations.’ Under the Rome Statute, MorenoOcampo had the right to do this because he had ‘full authority over the management and administration of the Office.’” [footnotes omitted]). 1027 Hereinafter Draft Code of Professional Conduct CICC. 1026

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cial in a manner that can not be subsequently remedied.”1028 This provision is remarkable in two ways: first, it apparently recognises the necessity of restraints and disciplinary measures for the Prosecutor given the few remedies the accused has (“[. . .] or adversely affecting the credibility of an official in a manner that can not be subsequently remedied.”). Second, while Art. 14(1) and (3)–(6) of the draft code describe rather general “offences” the Prosecutor should not commit,1029 Art. 14(2) enlists specific offences that are not exclusive, one of this being “concealing information” and “disclosing information in a manner seriously prejudicial to the judicial proceedings or any person”. This also applies to the last paragraph of Art. 14, which reads: “Prosecutors shall: [. . .] Abstain from obstructing the trial by, inter alia, giving false testimony, knowingly presenting false evidence, interfering with the testimony or attendance of a witness, retaliating against a witness for giving testimony or hindering the collection of evidence, disrupting court proceedings, refusing to comply with a direction by the Court, and soliciting or accepting a bribe as an official of the Court in connection with his or her official duties.”1030

The refusal to comply with a direction by the court is explicitly listed. Considering that this draft had already been published by the IAP and the CICC in 2002, and recalling the deliberate refusal of the OTP in the Lubanga case to comply with the order of the Trial Chamber to reveal the identities of certain intermediaries,1031 which led to the second stay of the proceedings, it becomes very clear why the OTP has not published a code of conduct at that time.

1028

Art. 14(2) Draft Code of Professional Conduct CICC. “Prosecutors shall: 1. Not commit offences likely to cause harm to the proper administration of justice or internal functioning of the Court, violate the dignity of the Court, or interfere with the procedures necessary to guarantee its independence, objectivity, and effectiveness; [. . .] 3. Not engage in misconduct of a less serious nature, that may cause harm to the proper administration of justice; 4. Not abuse the official duties of Prosecutors by harming the standing of the Court or hampering the goal of securing a fair trial; 5. Accept the Rules as a guideline for ethics and professional responsibility, and exercise integrity, thoroughness, sensitivity, cooperation, and professionalism to the highest degree in all functions. 6. Not engage in any activity which would undermine his or her integrity and independence in his or her official capacity. [. . .]” (fn. omitted). 1030 Italics added. The fn. refers to Art. 70 ICC-Statute and Rules 170–172 ICCRPE. 1031 See supra F. VII. 3. a) bb). 1029

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Art. 15 Draft Code of Professional Conduct CICC refers to disciplinary measures provided by the ICC-Statute and ICC-RPE and demands that the Prosecutor respects those disciplinary measures and procedures.1032

VIII. Conclusion In the previous pages I have described the pre-trial disclosure regime of the ICC in comparison to the regimes in England/Wales and the U.S.A. I will now analyse whether this pre-trial disclosure regime indicates a conflict-solving or a policy-implementing process. This analysis is methodologically difficult for two reasons: first, as I have outlined, the disclosure process is influenced by the entire procedural system, and cannot be completely separated from broader procedural categorisations. Second, the provisions governing pre-trial disclosure at the ICC are diverse and ambiguous. Therefore, I deemed it methodologically necessary to compare the possible impact of disclosure rules on the procedural categorisation at the ICC with the impact of domestic disclosure rules in England/Wales and the U.S.A. This comparison will demonstrate the differences between the domestic systems on the one hand and the ICC system on the other. As I have explained above, in a conflict-solving model both parties must have equal chances to win. If one party is in a structurally superior position (i. e. a state prosecutor), the process must create measures to re-establish a balance. One of those measures is the exchange of information (disclosure). In a policy-implementing process, the priority is not equality of arms but the implementation of policy-implementing goals, whereby one of those goals can be (but does not necessarily have to be) equality of arms. In other words, in those legal systems where one party of a criminal conflict is a state official the perception of equality of arms may differ: while the conflict-solving process strives to create an equality of arms by – inter alia – disclosure rules, the policy-implementing process accepts that there cannot 1032 “Prosecutors shall: 1. Respect these standards of ethical conduct and, to the best of their ability, prevent and actively oppose any departure therefrom; 2. Report to the Prosecutor any believed past or imminent departure from the precepts of this Code; 3. Observe the provisions of this Code or be dealt with by the Prosecutor, in the exercise of his or her discretion, and subject to the staff rules of the United Nations, in addition to any sanctions that may exceptionally be imposed upon prosecutors pursuant to the Rules; 4. Respect the procedures of discipline that may impose sanctions of, inter alia, a fine, reprimand, or possible term of imprisonment; 5. Respect the procedure of removal for serious misconduct, and the necessary suspension of duty pending investigation.” (fn. omitted).

VIII. Conclusion

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be such an equality. Consequently, the defendant must have access to the case file to the extent policy-implementing goals prescribe it.1033 1. The Disclosure Rules in the U.S.A. and England/Wales with a View to Damaška’s Categorisation It is no secret that the criminal process in both England/Wales and the U.S.A. resembles the conflict-solving process, although those legal systems enacted procedural rules and mechanisms borrowed from the policy-implementing ideal.1034 The disclosure rules of these legal systems are therefore created to compensate for the inequalities that exist because of the superior position of a state prosecutor (i. e. the CPS, District Attorney etc.). However, many studies show that these inequalities are often far from compensated for by disclosure rules because of instances of prosecutorial misconduct. a) Disclosure Problems in the U.S.A. with Regard to Exculpatory Material Most instances of disclosure failure occur within the context of the Brady obligation to disclose exculpatory material.1035 Although most prosecutors seem to strive to fulfil their Brady obligations,1036 Brady violations take place with regularity.1037 As Yaroshefsky described it: “Studies have pinpointed the suppression of exculpatory evidence as a factor in many documented wrongful convictions later overturned by post-conviction DNA testing. In some of those cases, prosecutors simply deemed the evidence not to be important. In others, prosecutors eager to secure convictions willfully bypassed the disclosure rules.”1038 An investigation conducted in 1999 by the Chicago Tribune found that “[s]ince a 1963 U.S. Supreme Court ruling designed to curb misconduct by prosecutors, at least 381 defendants nationally have had a homicide conviction thrown out because prosecutors concealed evidence suggesting innocence or presented evidence they knew to be false. [. . .] Of the 381 defendants, 67 had been sentenced to death. [. . .] Nearly 30 of those 67 Death Row inmates – or about half of those whose 1033

See generally supra E. IV. 2. c) aa). See supra E. IV. III. 1035 About the obligation to disclose exculpatory material in the USA see supra F. III. 1. 1036 Dettelbach, 57 Case W. Res. L. Rev. (2006–2007), pp. 615, 615–616. 1037 Yaroshefsky, 8 D.C.L. Rev. (2004), 278, 285; Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1540. 1038 Yaroshefsky, 8 D.C.L. Rev. (2004), 278, 278. 1034

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cases have been resolved – were subsequently freed. But almost all first spent at least five years in prison. One served 26 years before his conviction was reversed and the charges dropped.”1039 Analyses of wrongful convictions lacking DNA evidence further suggest that Brady violations frequently contribute to the conviction of the innocent.1040 Even worse, many Brady violations are not documented, since they never get to the attention of any court or supervising agency.1041 One reason for this is the materiality test.1042 According to Alafair Burke, this test forces prosecutors to “engage in a bizarre kind of anticipatory hindsight review” dependent on an artificial comparison of the evidence and the as-of-yet unborn trial record.1043 Before any evidence has been adduced, the prosecution is expected to know when evidence is “material” enough to trigger the disclosure obligation.1044 In a similar vein, Deal says that “[t]his outcome-oriented pretrial guessing game is unfair, impractical, and – most importantly – unsatisfying as an interpretation of the constitutional guarantee of due process. [. . .] Moreover, the incentive structure created by Brady materiality seems to invite prosecutors to ‘play the odds’ – to disclose favorable evidence only when they feel they must in order to avoid reversal.”1045 Thus, as Medwed points out, “[s]cholars have repeatedly condemned Brady’s materiality standard, often on the premise that it all too easily empowers overzealous prosecutors to engage in gamesmanship to dodge their obligations to disclose.”1046

1039 See Armstrong and Possley, “The Verdict: Dishonor”, Chi. Trib., Jan. 10, 1999, at 1 (available at http://www.chicagotribune.com/news/watchdog/chi-020103 trial1,0,479347.story, latest visit September 4, 2013). 1040 Bedau and Radelet, 40 Stan. L. Rev. (1987–1988), 23, 23–24. 1041 Gurwitch, 50 Santa Clara L. Rev. (2010), 303, 306–307; Gershman, 57 Case W. Res. L. Rev. (2006–2007), 531, 537 (“When a prosecutor chooses not to disclose evidence, that decision is seldom revealed to outsiders unless he later has a change of heart or it somehow finds its way into defense hands.”). 1042 About the materiality test see supra F. III. 1. a). 1043 Burke, 47 Wm. & Mary L. Rev. (2005–2006), 1587, 1610; see also id., 57 Case W. Res. L. Rev. (2006–2007), 575, 576. 1044 Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1542, who also points out: “Having already concluded that the defendant is likely guilty, a prosecutor might discount the subsequent discovery of exculpatory information so as to shirk the uncomfortable psychic reality that he may have charged an innocent person with a crime.”, p. 1543. 1045 Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1784, 1785, continuing: “Imagine if the Supreme Court claimed that the guiltier a defendant seemed, the less robust his right to cross-examine witnesses or the more permissible the use of coercive interrogation techniques. After conviction, remedies can shift based on assessments of guilt; before conviction, procedural rights should not.”, fn. omitted.

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aa) Connick v. Thompson A striking example is the case of Connick v. Thompson.1047 In this case, the former state prisoner Thompson brought a civil action for deprivation of rights against district attorney Connick pursuant to 42 USC § 1983.1048 A month before the scheduled execution of Thompson, a crime lab report was discovered that proved the innocence of the accused. The Prosecution did not disclose this report and therefore violated its Brady obligation. The reviewing court vacated both convictions and Thompson was found not guilty on the murder charge.1049 In the subsequent civil trial, the jury found the district attorney’s office liable for “failure to train and awarded Thompson damages.” The Court of Appeal affirmed this decision by an equally divided court.1050 Although the United States Supreme Court reversed the prior courts’ decisions and found that the district attorney’s office “may not be held liable under § 1983 for failure to train its prosecutors based on a single Brady violation”,1051 in this case it was demonstrated how shockingly the Prosecutors acted under their Brady obligations. Even at trial, Prosecutor Connick persisted in misstating Brady’s requirements.1052 For example, he urged that there could be no Brady violation arising out of “the inadvertent conduct of [an] assistant under pressure with a lot of case load.”1053 The court, however, correctly instructed the jury that, in determining whether there has been a Brady violation, the “good or bad faith of the prosecution does not matter.”1054 The testimony of members of the Dis1046

Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1544, for examples see 1546–1547. For a less demanding materiality test Joseph, 17 Cap. Def. J. (2004– 2005), 33, 39 ff. 1047 Connick v. Thompson, 131 S.Ct. 1350 U.S. 2011. 1048 “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 1049 See the case history in Connick v. Thompson, 131 S.Ct. 1350, 1353 U.S. 2011. 1050 Ibid., 1354. 1051 Ibid., 1354, 1358–1366. 1052 Ibid., 1376. 1053 Ibid., 1378.

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trict Attorney’s Office revealed similar misunderstandings. One of those members admitted, “that he never reviewed police files, but simply relied on the police to flag any potential Brady information.”1055 In 1985, Connick acknowledged, many of his prosecutors “were coming fresh out of law school.”1056 Thompson’s expert characterised Connick’s supervision regarding Brady as “the blind leading the blind.” For example, in 1985, trial attorneys “sometimes . . . went to Mr. Connick” with Brady questions, “and he would tell them” how to proceed. But Connick acknowledged that he had “stopped reading law books . . . and looking at opinions” when he was first elected District Attorney in 1974.1057 The court reported that “[s]oon after Connick retired, a survey of assistant district attorneys in the Office revealed that more than half felt that they had not received the training they needed to do their jobs.”1058 A striking example is the office policy manual. This manual “was a compilation of memoranda on criminal law and practice circulated to prosecutors from 1974, when Connick became District Attorney, through 1987. [. . .] The manual did not acknowledge Giglio v. United States.”1059 As noted above,1060 in Giglio v. United States1061 the court decided to cover any materials that could be used to show bias on the part of government witnesses, such as information about promises, rewards, or inducements made in exchange for their testimony or anything else that could impeach the credibility of those witnesses in the stand.1062 Most interestingly, in the case of Kyles v. Whitley, previously referred to,1063 it was also DA Connick’s Office that garnered attention because it featured “so many instances of the state’s failure to disclose exculpatory evidence.”1064 In this case “Connick told the jury he was satisfied with his Office’s practices and saw no need, occasioned by Kyles, to make any changes.”1065 Thus, the evidence was 1054

Ibid. Ibid. 1056 Ibid., 1379. 1057 Ibid., 1380. 1058 Ibid. 1059 Connick v. Thompson, 131 S.Ct. 1350, 1381 U.S. 2011. 1060 See supra F. III. 1. a). 1061 See Giglio v. United States, 405 U.S. 150, 154–155 (1972). 1062 Cassidy, Prosecutorial Ethics (2005), p. 69. Medwed, 67 Wash. & Lee L. Rev. (2010), 1533, 1537. 1063 Supra F. III. 1. d). 1064 Connick v. Thompson, 131 S.Ct. 1350, 1382 U.S. 2011; Kyles v. Whitley, 514 U.S. 419, 455, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (Stevens, J., concurring). 1065 Connick v. Thompson, ibid., citing Kyles v. Whitley, ibid. 1055

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“more than sufficient” that “Connick and the prosecutors who served under him were not merely negligent regarding Brady. Rather, they were deliberately indifferent to what the law requires.”1066 Regarding the education of deputy DAs, the court continued: “On what basis can one be confident that law schools acquaint students with prosecutors’ unique obligation under Brady? Whittaker [deputy DA] told the jury he did not recall covering Brady in his criminal procedure class in law school. Dubelier’s [deputy DA] alma mater, like most other law faculties, does not make criminal procedure a required course.”1067 This was by no means a coincidence or an isolated case, as the Supreme Court made clear: “Research indicates, however, that from 1980 to the present, Brady questions have not accounted for even 10% of the total points in the criminal law and procedure section of any administration of the Louisiana Bar Examination. A person sitting for the Louisiana Bar Examination, moreover, need pass only five of the exam’s nine sections.1068 One can qualify for admission to the profession with no showing of even passing knowledge of criminal law and procedure.”1069

In relation to the district attorney’s responsibilities in this regard, the Supreme Court said: “A District Attorney aware of his office’s high turnover rate, who recruits prosecutors fresh out of law school and promotes them rapidly through the ranks, bears responsibility for ensuring that on-the-job training takes place. In short, the buck stops with him.”1070 bb) U.S. v. Stevens Another remarkable occasion of prosecutorial misconduct was reported recently. In 2008, U.S. Senator Theodore F. Stevens was convicted by the Federal Court in Washington, D.C. on public corruption charges.1071 Subsequent to this conviction, something astonishing happened: on 1 April 2009, a newly-appointed team of prosecutors filed a motion to set aside the verdict and dismiss the indictment due to disclosure failures of their predeces1066

Connick v. Thompson, ibid. Ibid., 1385; Barkow, Edwards and Nissel, Connick v. Thompson: Amici Curiae Brief (2010), p. 21. 1068 See La. State Bar Assn., Articles of Incorporation, Art. 14, § 10(A), La.Rev.Stat. Ann. § 37, ch. 4, App. (West 1974). 1069 Connick v. Thompson, 131 S.Ct. 1350, 1386 U.S. 2011. 1070 Ibid., 1387. 1071 See United States v. Stevens, Criminal Case No. 08–231 (D.D.C.); see also reference in U.S. v. Kohring, 637 F.3d 895 C.A.9 900 (Alaska), 2011. Stevens was charged on seven counts, see Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, p. 13; see generally Brink, 4 Charleston L. Rev. (2009–2010), 1, 21 ff. 1067

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sors and pursuant to Rule 48(a) FRCP.1072 Six days later, on 7 April 2009, Judge Sullivan of the United States District Court set aside the verdict and dismissed the indictment, declaring: “There was never a judgment of conviction in this case. The jury’s verdict is being set aside and has no legal effect.”1073 This, however, did not end the story. It was, so to say, rather the beginning. On the same day, in response to a series of allegations and confirmed instances of prosecutorial misconduct during and following the five-week trial of Senator Stevens, the District Court appointed Henry F. Schuelke III as a special counsel to investigate and prosecute such criminal contempt proceedings as may be appropriate against six Department of Justice attorneys responsible for the prosecution of Senator Stevens.1074 Apart from the case itself, the interesting fact here is the mentioned report. Henry F. Schuelke had unprecedented access to internal communications among members of the prosecution team and testimony from the prosecutors themselves about their conduct. This kind of direct evidence about the preparation and conduct of a trial is usually shielded from public view.1075 The investigation by the special counsel lasted two years and required the examination and analysis of over 128,000 pages of documents, including the trial record, prosecutors’ and agents’ emails, FBI notes, and depositions of prosecutors, agents and others involved in the investigation and trial.1076 After special counsel Schuelke submitted the report regarding allegations of prosecutorial misconduct, the District Court ruled that the report was subject to public disclosure.1077 Thereafter motions were filed to permanently seal the report.1078 On 28 February 2012, the Court finally denied the motion not to disclose the report (only a certain part was allowed to kept under seal) and 1072 Rule 48(a) FRCP reads: “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent.” 1073 U.S. v. Stevens, Not Reported in F.Supp.2d, 2009 WL 6525926 D.D.C., 2009. 1074 See Order Appointing Henry F. Schuelke, United States v. Stevens, No. 08– cr–231, 2009 WL 6525926 (D.D.C. Apr. 7, 2009). 1075 See Welch II and Taylor III, “The Brady problem: Time to Face Reality”, NLJ, June 16, 2012, available at , last visited 28 September 2013. 1076 Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, p. 12. 1077 In re special proceedings, 825 F.Supp.2d 203, 2011 WL 5828550 (Misc. No. 09–0198 (EGS), Nov. 21, 2011). 1078 Cf. In re special proceedings, 842 F.Supp.2d 232, D.D.C., 2012, February 08, 2012; see also case history in In re Special Proceedings, 840 F.Supp.2d 370, 371 D.D.C., 2012, February 27, 2012.

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the report could subsequently be published as “Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009”. This report of 525 pages offers a detailed and interesting evidence of prosecutorial misconduct. In his executive summary, Schuelke concluded: “The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’ defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”1079 More concretely, Schuelke criticised – as was done in Connick v. Thompson – the lack of legal knowledge about Brady and Giglio: “[T]he prosecutors never conducted or supervised a comprehensive and effective review for exculpatory information. The review of the government’s files for Brady information was conducted by FBI and IRS agents, some of whom were unfamiliar with the facts or with Brady/ Giglio requirements, unassisted and unsupervised by the prosecutors.”1080 With regard to the lack of supervision of the prosecutors, Schuelke described an almost scandalous occurrence: four attorneys of the prosecutor’s office became “second and third chairs respectively”, because they were replaced by Ms. Morris, an attorney who had “a general, but not a detailed knowledge of the years-long investigation of Senator Stevens.”1081 In response, “[h]er four displaced colleagues resented her appointment, and Ms. Morris, in an attempt to avoid making the situation worse, ‘tr[ied] to make herself as little as possible’, and did not supervise the prosecution.”1082 As a direct consequence of the dismissal of the indictment against Senator Stevens, the convictions of Senator Peter Kott1083 and Victor Kohring,1084 1079 Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, p. 12. 1080 Ibid., p. 14. 1081 Ibid. 1082 Ibid. 1083 Peter Kott was convicted of conspiracy, see U.S. v. Kott, 423 Fed.Appx. 736 C.A.9 (Alaska), 2011. 1084 Victor Kohring, a former member of the Alaska State House of Representatives, was convicted in federal district court on three counts of public corruption felonies: conspiracy to commit extortion and attempted extortion under color of official right and bribery under 18 U.S.C. § 371 (Count 1), attempted interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a) (Count 3), and bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B) (Count 4). Kohring was acquitted of Count 2 – interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a), see U.S. v. Kohring, 637 F.3d 895, 898 C.A.9 (Alaska), 2011.

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Alaskan state legislators, were reversed and new trials ordered because significant exculpatory information in those cases was concealed from the defence, including the same impeachment information about the same government witness that had been concealed from Senator Stevens.1085 I have described the circumstances of these cases in detail because they perfectly demonstrate the flaws a disclosure system has in compensating for institutional inequalities. It is widely recognised that “prosecutors tend to be transitory, particularly at the state level, they are likely to act to maximize their personal professional gain.”1086 As Bibas has remarked, “prosecutors receive promotions and better jobs if they have favorable win-loss records and rack up many convictions.”1087 Moreover, a “tunnel vision” of prosecutors, created by “institutional pressures and cognitive biases”, causes 1085 Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to the Court’s Order, dated April 7, 2009, p. 12; see U.S. v. Kohring, 637 F.3d 895, 900 C.A.9 (Alaska), 2011 (“After Senator Stevens’ charges were dismissed, Kohring moved us to order the government to disclose, under Brady/Giglio, all evidence ‘favorable to the accused.’ Brady, 373 U.S. at 87, 83 S.Ct. 1194. The government then moved us to remand the matter to the district court for further proceedings under Brady/Giglio. We ordered Kohring released pending appeal and remanded the matter to the district court for the limited purpose of determining whether the government had breached its obligation of full disclosure under Brady/Giglio and, if so, whether Kohring was prejudiced and entitled to a remedy.”); see also see U.S. v. Kott, 423 Fed.Appx. 736, 738 C.A.9 (Alaska), 2011, where Judge Fletcher, concurring in part and dissenting in part with Judges Sedwick, Tashima and Thomas, who ordered a new trial, bitterly remarked (it is worth reading the statement as a whole): “I am deeply troubled by the government’s lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial – despite the government’s failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government’s star witnesses, Bill Allen and Rick Smith, regarding the payments Kott allegedly received. The undisclosed pages also reveal an ongoing investigation of Allen for sexual exploitation of minors and his attempts to suborn perjurious testimony from one of the minors, and information regarding Smith’s questionable mental health around the time of Kott’s trial. The government’s stance on appeal leads me to conclude that it still has failed to fully grasp the egregiousness of its misconduct, as well as the importance of its constitutionally imposed discovery obligations. Because a new trial, in my view, is insufficient to remedy the violation of Kott’s constitutional right to a fair trial and to deter future illegal conduct, I would exercise our supervisory authority to dismiss the indictment with prejudice.” 1086 Deal, 82 N.Y.U. L. Rev. (2007), 1780, 1801, 1802. See also White Dunahoe, 61 N.Y.U. Ann. Surv. Am. L. (2005), 45, 62–67, arguing that since low-level prosecutors are transitory and loosely supervised, political pressure created by public recognition of mistakes or misconduct are unlikely to affect their individual cost-benefit analysis in given situation. 1087 Bibas, in: Steiker, ed., Criminal Procedure Stories (2006), pp. 141 ff.; cf. Deal, ibid., 1801, 1802; see also Krischke, 19 J.L. & Pol’y (2010–2011), 395, 421,

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prosecutors to seek or interpret evidence in ways that support existing beliefs, expectations, or hypotheses.”1088 It is the incentive to win – a typical conflict-solving element – what encourages prosecutors to hide evidence and put witnesses on the stand they know to be lying.1089 cc) Intermediate Conclusion In the 50 years since the Supreme Court’s Brady decision, there have been numerous violations of the Brady rule.1090 Most of those violations only come to light after the trial – if they are discovered at all.1091 As Wells and Taylor point out: “A disturbing number result in release or new trials for men and women who have been incarcerated for long periods of time. Statistics are not available, but whatever the actual number, one is too many, and there certainly have been more than one.”1092 Certainly, a case where the insufficient training of deputy prosecutors nearly led to the execution of an innocent person, and a case where an untrained prosecutor was reluctant to supervise her subordinates because they showed resentment towards her appointment, are extreme examples. However, the manner in which the prosecution violated its disclosure obligations also shows that in a procedural system that resembles the conflict-solving ideal, disclosure rules are – strictly speaking – an alien element. b) Disclosure Problems in England and Wales with Regard to Unused Material Similar problems have occurred in England and Wales in relation to the compelled disclosure of unused material. In their very detailed and famous study undertaken on behalf of the Home Office, Joyce Plotnikoff and Richard Woolfson analysed the operation of the law concerning disclosure of unused prosecution material to the de422; about the “win-at-all-costs”-mentality see Brink, 4 Charleston L. Rev. (2009– 2010), 1, 14. 1088 Findley and Scott, Wis. L. Rev. (2006), 291, 309. 1089 In the same vein Krischke, 19 J.L. & Pol’y (2010–2011), 395, 420; Brink, 4 Charleston L. Rev. (2009–2010), 1–36, 14. 1090 See also Welch II and Taylor III, supra note 1075, S. 482. 1091 Subsequently to the disclosure failures in the Stevens case, several senators expressed concerns about ordinary criminal defendants if a sitting senator could be treated so unfairly by prosecutors, , last visited 28 September 2013. 1092 Welch II and Taylor III, supra note 1075, S. 482 (fn. omitted).

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fence.1093 Although the study “arose out of concerns about the operation of the Criminal Procedure and Investigations Act 1996 (CPIA) since its implementation in April 1997” and was published in 2001,1094 i. e. before the CPIA 1996 underwent important changes subsequent to the CJA 2003, and its operation has been influenced by the Attorney General’s Guidelines 2005,1095 some results of the study are still relevant and need to be properly recognised. Most interestingly, there are three forms of criticism that very much resemble the criticism expressed in the U.S.A.: first, that there has been deliberate misconduct by persons who are expected to disclose; second, insufficient training of persons who are expected to disclose; and third, impracticability of the disclosure regime.1096 For comparative reasons, I used the words “persons who are expected to disclose”, since in England and Wales the police have many more disclosure duties (see, for instance, the institution of the disclosure officer) than their counterparts in the U.S.A.1097 The separation of disclosure duties between the CPS and the police is highly criticised. It is said that the CPIA 1996 created an “awkward split of responsibilities”1098 between the CPS and the police.1099 The legis1093

Plotnikoff and Woolfson, supra note 205, S. 337, p. ix. With regard to the methodology of their study, Plotnikoff and Woolfson explained: “Information for the study was obtained through in-person and telephone interviews, questionnaire surveys and data collection from files. Telephone interviews on disclosure policy were conducted with senior members of the 43 regional police forces in England and Wales. A total of 975 questionnaires were completed by disclosure officers, prosecutors, justices’ clerks, judges, barristers and defence solicitors. In addition, approximately 100 interviews were conducted with interested organisations and individuals in the course of the research.” 1094 Plotnikoff and Woolfson, ibid. 1095 About the changes made by statutes and statutory instruments see supra F. III. 2. 1096 More generally, see the summary in Ward and Akhtar, Walker and Walker’s English Legal System, 10th ed (2008), p. 618 (“The findings show that, generally, there is a lack of resources for both prosecutors and police; a lack of training; police conflicts of interest; reliance on defective schedules; the increasing lack of defence or Crown Court experience of CPS staff; the lack of adequate remuneration for members of the Bar to read unused material. These findings point to issues other than the disclosure rules themselves as being the key factors if the 1996 Act provisions are to fully achieve their objectives.”). 1097 See supra F. III. 2 c). 1098 Crown Prosecution Service Inspectorate, The Inspectorate’s Report on the Thematic Review of the Disclosure of Unused Material, Thematic Report 2/2000 (London: CPS, March 2000), mn. 13.2. 1099 Her Majesty’s Crown Prosecution Service Inspectorate, Disclosure – A Thematic Review of the Duties of Disclosure of Unused Material Undertaken by the CPS (London and York: Her Majesty’s Crown Prosecution Service Inspectorate, May 2008), p. 92 mn. 28; Quirk, 10 E. & P. (2006), 42, 51.

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lation makes the prosecutor responsible for disclosure when, in reality, “lawyers are only as good as the material given to them”.1100 aa) Disclosure Failures Caused by Police and Prosecution Plotnikoff and Woolfson found, inter alia, that “the most prevalent problem with unused material according to the CPS, barristers, defence solicitors and justices’ clerks was the failure by the police to include material on a schedule”.1101 The CPS and other legal advisers found that unused material was commonly omitted from schedules and/or wrongly listed, especially in high volume crimes such as burglary, but also in serious drug and sexual offence cases.1102 The CPS labelled the quality of descriptions by disclosure officers as poor in a large number of cases.1103 The fact that proper disclosure is highly influenced by a police officer’s conduct is commonly criticised among scholars in England and Wales. It is said that the disclosure regime places too much power in the hands of the police officer who “is potentially biased, will be likely to construct a case against the accused, and has inadequate knowledge of what is likely to be useful for the defence if disclosed.”1104 In an interesting study, Hannah Quirk found that police officers in England and Wales “are accorded an inquisitorial, investigative role in an adversarial system, yet they continue to be perceived, by both themselves and the public, as agents of the prosecution. [. . .] One sergeant declared: ‘we’re salesmen for jail . . . it’s us against them’.”1105 Some officers bluntly demonstrated their reluctance to give the defence potentially exculpatory evidence: “This thing where you’ve got to give them all your, all the weaknesses in your case. Well, if they can’t find them, why should we give them? I mean all they’re giving us is ‘that’s what my defence is going to be’.”1106 Furthermore, only two police forces described the training on disclosure provided by their force as adequate, and the average length of training received by disclosure officers across volume, major and serious crime was less than a day.1107 Fewer than half the disclosure officers in all three cate1100

Her Majesty’s Crown Prosecution Service Inspectorate, ibid. Plotnikoff and Woolfson, supra note 205, S. 337, p. x. 1102 Ibid., Fig. 4, p. 27; Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14–076. 1103 See Plotnikoff and Woolfson, ibid., Fig. 5. p. 29; Bailey, Ching and Taylor, ibid. 1104 See Bailey, Ching and Taylor, ibid., mn. 14–083. 1105 Quirk, 10 E. & P. (2006), 42, 48, fn. omitted. 1106 Ibid. 1107 Plotnikoff and Woolfson, supra note 205, S. 337, p. xvii. 1101

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gories had been trained specifically for their role.1108 In her study, Quirk concluded that the responsibility of disclosure officers to compile schedules of unused material “is onerous, time consuming and unpopular, as one sergeant interviewed complained, ‘Nobody in their right mind would volunteer to be a disclosure officer; I was a pressed man!’”1109 Quirk further remarks that the disclosure scheduling: “involves more than just bureaucratic cataloguing: it requires judgments about the legal significance of material, the consideration of multiple possible defences and potentially complex legal argument. Police officers are neither qualified nor trained for such a role; more than 20 per cent of decisions to discontinue cases by the CPS are due to the police having failed to establish an essential legal element of the offence charged. The provisions are complicated and the officers whom I interviewed appeared to have little understanding of what was required of them.”1110

However, a difficulty in applying the test for unused material arises not only when the police are concerned but also, at least to a certain extent, with regard to prosecutors.1111 Again, Quirk reveals an interesting example of “very adversarial attitudes of prosecutors” by citing a prosecutor who “applauded the CPIA provisions”, saying: “Now we are entitled to say ‘on your bike, why should we do it all?’ Sometimes you were ending up doing their defence work for them because you were giving them their defence.”1112 bb) Disclosure Failures Caused by the Disclosure Test Itself However, the reluctance and difficulties of prosecutors dealing with the test for unused material may not solely be caused by their own adversarial attitudes, but also by the test itself. To a certain extent the prosecutor has to assess what legal arguments the defence could mount and therefore has to anticipate what the defence needs – a similar feature has been identified in the Brady obligation created by the U.S. Supreme Court. As a prosecutor described it: “[y]ou have to have a bit of a Sixth Sense to anticipate what isn’t there”.1113 Although the disclosure manual reassures that “[i]t is not necessary, prior to the receipt of a defence statement, to speculate about every possible defence or submission that may be raised”,1114 it instantly 1108 1109 1110 1111 1112 1113

Ibid. Quirk, 10 E. & P. (2006), 42, 47. Ibid. Ibid., 52. Ibid., fn. omitted. Ibid., fn. omitted.

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constrains this statement: “Nevertheless, where a distinct explanation has been put forward by the accused, or is apparent from the circumstances of the case, it must be considered in the context of assessing whether there is any material requiring disclosure. This consideration should take place at the earliest opportunity, and does not need to await the receipt of a defence statement.”1115 Moreover, the test for unused material itself provides a challenge for disclosure officers and prosecutors. 82 per cent of judges, 38 per cent of CPS respondents, 30 per cent of senior police officers and 27 per cent of disclosure officers felt that it was unrealistic to expect police officers to identify undermining material.1116 Quirk reveals this even clearer in her study: “Despite repeated questioning, the case-building officers did not appear to know what was meant by ‘might undermine the case for the prosecution’. None of the officers interviewed had seen a defence statement, which they were supposed to have reviewed when considering secondary disclosure.”1117 cc) Intermediate Conclusion All in all, the intermediate conclusion made in the context of US law can also be used for the obligation to disclose unused material in England and Wales: the difficulties both police officers and prosecution face in applying the test for compelled prosecution disclosure show that in a procedural system that resembles the conflict-solving ideal, disclosure rules are – strictly speaking – an alien element. This is not changed by the fact that criminal procedure reforms in recent years have – by strengthening the judge’s managerial attitude and abolishing, for example, the committal proceedings for indictment only and either-way offences – taken a policy-implementing turn. To be more precise, the move in England towards making the prosecution to disclose “unused material”, which eventually led to the CPIA 1996, has had a parallel in France in a series of changes to allow the defendant’s lawyer more extensive acces au dossier.1118 This, however, is only a 1114 This requirement for defence disclosure prior to secondary prosecution disclosure has been abolished by the CJA 2003, cf. supra F. III. 2. c). However, as Quirk remarks, the continuing duty of review introduced by the CJA 2003 “still fails to consider the working routines of the police and prosecution”, see Quirk, ibid., 55. 1115 Para. 12.17 CPS Disclosure Manual. 1116 Plotnikoff and Woolfson, supra note 205, S. 337, p. xviii. 1117 Quirk, 10 E. & P. (2006), 42, 47. 1118 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), p. 1, 19.

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drop in the bucket since, in a system that promotes conflict-resolution, disclosure has always caused problems and by its very nature, will continue to do so.1119 Hannah Quirk perfectly summarised the problem of compelled disclosure in a system that resembles the conflict-solving mode of procedure: “The statutory regime requires the culturally adversarial police to fulfil an effectively inquisitorial function; prosecutors to view material from a defence perspective; the defence to act in the interests of the administration of the justice system rather than of their clients; and defendants to cooperate with proceedings against themselves. The administrative burden imposed by the disclosure scheme on already overburdened practitioners has led to the routinised, minimal fulfilment of its requirements and the delegation of essential legal tasks by both sides to nonlawyers.”1120

c) Conclusion I have demonstrated how both the U.S.A. and England/Wales strive to have a procedural form of conflict-resolution. In this procedural form, the contestants have to be on the same level, otherwise the contest could not be regarded as fair anymore and, consequently, the procedural contest loses legitimacy. I have also shown that in England/Wales and the U.S.A. the contestants do not have an equal chance of winning, because one contestant is a state official. This is the point where disclosure rules enter the stage. In an ensemble with other procedural rules, they are designed to re-establish the equality of arms to a realistic extent. However, those disclosure rules are alien to a system that ideally promotes conflict-resolution. They do not fit into the stage design. As scandalous as the instances of disclosure failures I previously described may seem, they are only natural in a system where both parties are trying to win their case. Since a main principle of this system is, however, equality of arms, the process must provide further mechanisms to compensate for inequalities as soon as it becomes apparent that the equality of the parties is at risk. Both the US- and the English/ Welsh systems demonstrate how a system resembling the ideal of a conflict-solving process responds in this case: they first concentrate on the parties and then – as a last resort – on the contest itself. Concentrating on the parties means providing mechanisms that prevent them from achieving a superior position vis-à-vis the opponent, by abuse for instance. However, since in a conflict-solving process the parties are the ones who decide when to start and end a contest, and the judge is only an impartial arbiter, it would violate the whole system if – for example – the judge steps in and 1119 1120

Redmayne, Crim. L. Rev. (2004), 441, 460. Quirk, 10 E. & P. (2006), 42, 46.

VIII. Conclusion

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compensates the inequality that occurred to the advantage of one party (by conducting his or her own investigations or giving the party helpful tips). Thus, the hands of the system are tied in this regard and it can only enact rules that lead to a voluntary restriction of the parties’ conduct, such as ethical rules, rules of conduct or through training and education.1121 Unsurprisingly, in the legal systems described above these rules are manifold as are – unsurprisingly again – the instances where the parties disregarded those rules. The parties’ sole desire to win their cases runs through the conflict-solving form of procedure like a common theme – if they had to choose between winning a case and complying with ethical rules, they would eventually prefer the former option. Thus, the system concentrates – as an alternative – on the contest itself by providing a wide range of different sanctions which, when it comes to crunch, end the proceedings immediately. This must be said very clearly: in a conflict-solving form of procedure, the contest must be ended as soon as a fair contest with an equal chance of winning cannot be established any more. This may seem strange from the perspective of criminal law, because here certain societal functions have to be fulfilled. However, this does not play a role in the conflict-solving process, where policy-implementing goals are disregarded. I have shown that the sanctions in the U.S.A. – compared to England and Wales the closest legal system(s) that contain conflict-solving proceedings – range from the exclusion of evidence, holding the party criminally liable or staying the proceedings to reversing convictions on appeal. The U.S.A. even allows the judge to appoint special counsel to investigate alleged misconduct by one of the parties. Therefore, one could say that sanctioning has the most logical consequences in the U.S.A., because in their conflict-solving tradition the fairness of the contest is more important than the judge reaching a decision on the merits. As Damaška puts it: “Where a litigant commits a serious breach of procedural propriety, proceedings must be discontinued even if the breach imparts accurate and decisive information on the merits of the case.”1122 In other words: “[H]ow a decision is reached counts as much as what it says.”1123 This is different in the policy-implementing ideal, where “procedure is basically a handmaiden of substantive law. If the purpose of the legal process is to realise state pol1121 See, e. g., Bailey, Ching and Taylor, Smith, Bailey and Gunn on The Modern English Legal System, 5th ed (2007), mn. 14-083 (“Disclosure has always caused problems and by its very nature, will continue to do so. However, the problems can be alleviated to an extent through training and education which seeks to address the cultural problems of prosecution reluctance to disclose, and the structural problems involved in what the legislative regime demands.”). 1122 Damaška, Faces of Justice (1986), p. 102. 1123 Ibid., pp. 102, 103.

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icy in contingent cases, decisions are legitimated primarily in terms of the correct outcomes they embody.”1124 Therefore, “when a particular breach of a procedural provision is nevertheless established, the decision stemming from the breach – if substantively accurate – is not as readily invalidated as it is in the conflict-solving process.”1125 This, of course, does not mean that procedural misconduct is ignored in the policy-implementing form of process. As I explained earlier, if this misconduct endangers the realisation of policy-implementing goals, judges in this system will decide to – for instance – reverse a decision.1126 England and Wales provide a slightly different picture: because this legal system seems less close to the conflict-solving ideal than the U.S.A., the variety of sanctions for prosecutorial misconduct is slightly reduced. In fact, one could say that the main sanction is the stay of proceedings (or the quashing of a conviction, order of a retrial etc.) because of an abuse of process. However, in line with the ideal of a reactive state, the judges still do not hesitate to stay the proceedings, i. e. to end the contest because of a procedural irregulation. The elaborate case law on the abuse of process compensates – so to say – for lacking the variety of sanctions the U.S.A. has. In sum, it can be said that both US- and English/Welsh system have more conflict-solving tendencies than policy-implementing when it comes to pre-trial disclosure and sanctions offered for pre-trial-disclosure failures. 2. The Disclosure Rules at the ICC with a View to the Damaška Categorisation The question is now which procedural model the ICC pre-trial disclosure regime resembles. With regard to both the pre-trial disclosure rules per se and the failures that arise in breach of those rules, the ICC system resembles the system in the U.S.A. and England/Wales respectively and therefore indicates a conflict-solving form of procedure. The similarities with the US-system are particularly obvious, which is not surprising, since the basis 1124

Ibid., p. 148. Ibid., p. 149. 1126 Ibid. (“The defendant’s strongest argument by far is to suggest that in the long run failure to reverse a tainted decision could impair the capacity of the justice system to attain accurate results. Thus the strongest argument for reversal of a conviction based on a coerced but truthful confession is clearly not one from compassion or humanity; rather, it is the claim that failure to reverse will lead to future exposure of the judicial apparatus to unreliable self-incriminations. In other words, procedural safeguards in the activist state are most securely established if they are attached to concern for maintaining a process that maximizes the probability of attaining accurate results on the merits.”). 1125

VIII. Conclusion

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of the disclosure rules within the ICC-RPE are the RPE of the ad hoc tribunals, which, in turn, take inspiration from some U.S. rules of disclosure, e. g. Rule 16 FRCP.1127 Moreover, as I have illustrated when discussing the sanctions at the ICC, the ICC Prosecutor shows the same adversariality that has been identified in England/Wales and the U.S.A. Explaining the various disclosure violations by the Prosecution, in the judgment against Lubanga – the first ICC judgment – the judges of the Trial Chamber referred to the “degree of international and local pressure, once it was known that officials from the Court had arrived in the country.”1128 If one adds to this the fact that the international and national public, including and in particular the victims and the civil society organisations representing them, judge the ICC by its numbers of indictments and, better still, its convictions,1129 it is not surprising that the Prosecution’s main focus is on finding incriminating evidence. If national investigators have little appreciation for disclosure of exculpatory evidence in an ordinary murder case,1130 how can one expect that investigators of an international criminal court act differently with regard to systematic and widespread mass murder? Thus, the consequence of a lack of an effective non-disclosure sanctions regime is that both parties simply “try their luck” and either hide important evidence or make broad claims that the other side constantly violates its disclosure obligations. The Chamber touches on the sore point of the whole system implicitly in the following summarising statement: “In its final submissions, the defence asserts that the prosecution failed to fulfil its obligations as regards disclosure and to investigate exculpatory circumstances, arguing that these suggested failures ‘impair the reliability of the entire body of evidence presented at trial by the Prosecution’ to such an extent that it cannot support findings ‘beyond all reasonable doubt’. The prosecution argues that it met its disclosure and investigative obligations, and it is submitted that the proceedings have not been vitiated in the manner complained of.”1131

Thus, in sum, it is fair to say that both the disclosure rules per se and the disclosure attitude of the Prosecutor indicate the existence of a conflict-solving form of procedure at the ICC. However, this is only one part of the picture. One should not forget that a conflict-solving form of procedure 1127 Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 135, 202; Tochilovsky, 6 Eur. J. Crime Crim. L. & Crim. Just. (1998), 55. 1128 Prosecutor v. Lubanga, No. ICC-01/04–01/06–2842, Judgment, supra note 9, S. 42, para. 121. The following section is – at least in part – an excerpt from a draft I prepared for Ambos, 12 ICLR (2012), 115, 127 (see also the first footnote of this article). 1129 See Swoboda, Verfahrens- und Beweisstrategien (2013), p. 235. 1130 See for UK disclosure law Quirk, 10 E. & P. (2006), 42, 47, 53. 1131 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 119 (fn. omitted).

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means an equal chance of winning for both parties. The disclosure rules are only designed to compensate possible inequalities, since the equality of arms has a crucial position within the conflict-solving form of procedure. Nevertheless, at the ICC, the Defence and the Prosecution are not equal at all – both structurally and procedurally. Strictly speaking, there is no equality of arms between the Prosecution and the Defense in terms of resources allocated to prepare a fair and equitable process.1132 In war crimes trials, the Defence is disadvantaged in the preparation of the case and regularly the question of the “equality of arms” arises.1133 Jenia Iontcheva Turner describes the Defence at the ICC: “[D]efense counsel is seen often as an intruder in the system. He is underpaid and goes for several months without remuneration . . . [I]n many circumstances the Registry has cited lack of resources as a reason for not paying or for reducing to ridiculous amounts the remuneration due to me. Also, many fee assessment and finance officials who are responsible for fee assessment and payment are lay men . . . Yet they assess legal work and at times demand details which violate the confidentiality of the client’s case . . .”.1134

Moreover, defence counsel do not constitute a fourth pillar in the structure of the Court. Whilst the Prosecutor is an organ of the Court and hence vested with ample resources, this does not hold true for the defence.1135 Safferling remarks: “At least theoretically, the statutory framework of the ICC provides for sufficient mechanisms to safeguard the equality of arms. However, it remains doubtful whether a defence [. . .] is truly in the same position as the Prosecutor.”1136 Of course the inequality of the contestants does not automatically result in a process being categorised as policy-implementing. As I have said, even in legal systems with a procedural model that resembles the conflict-solving ideal one party in a criminal trial is a state official. Moreover, the principle of equality of arms does not demand total structural equality. The para1132 Turner, 48 Va. J. Int’l L. (2007–2008), 529, 580 with fn. 238, citing Questionnaire # 11, Defense Attorney, ICTR (July 22, 2007); see also Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 607 (“The prosecutor and defense attorney will always have different powers during the investigation stage, regardless of whether the prosecutor is placed in the judicial or the executive branch.”). 1133 Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 483. The Defence spoke of the “clearly inequality of resources”, see Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-681, Response to order of 7 November 2006, p. 4 (November 8, 2006); see also Roosevelt, 24 Geo. J. Legal Ethics (2011), 835, 841 ff., 843. 1134 Turner, 48 Va. J. Int’l L. (2007–2008), 529, 580 with fn. 238, citing Questionnaire # 11, Defense Attorney, ICTR (July 22, 2007). 1135 Safferling, International Criminal Procedure (2012), p. 186. 1136 Ibid.

VIII. Conclusion

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meter that distinguishes a conflict-solving from a policy-implementing mode in this regard is the position of equality of arms: are equal chances of winning constitutive for the process (as in the conflict-solving mode)? In this case, the strong inequality I have just mentioned must lead to more disclosure. Or are equal chances of winning only indirectly significant for the process, namely, if policy-implementing goals promote such equal chances of winning, because, for instance, inequality may cause inaccurate results in the future? In this case, the strong inequality at the ICC must lead to a stronger involvement of the judge (as in the policy-implementing mode).1137 The ICC system accepts the inequality between the Prosecution and the Defence and indicates that within the context of the ICC, equal chances of winning are not constitutive, considering, inter alia, the following aforementioned features: The ICC-RPE encourage increased judicial control in the proceedings;1138 the judges are able to participate in the examination of evidence and are not limited to the evidence that is disclosed through party interaction;1139 the judges can ask the parties to conduct certain measures, or can themselves direct the adoption of measures on behalf of the parties or victims and witnesses;1140 the Trial Judge does not enter the case unprepared and does not have a “virgin mind”;1141 the Trial Chamber has the authority to “modify the legal characterisation of facts”;1142 the judge has broad powers to supervise the prosecution;1143 and – most importantly – the Prosecution has the duty to look for exculpatory evidence.1144 This acceptance can also be proven by two other facts. As I have described, the normal reaction of a conflict-solving process to inequality of the parties is broader disclosure. If this does not help, the system enacts ethical rules and rules of conduct and if this does not help, sanctions must be imposed. This is not the case at the ICC. While there is Code of Judicial 1137 Swoboda reaches a similar conclusion with regard to the equality of arms at the ICTY, see Swoboda, Verfahrens- und Beweisstrategien (2013), p. 307; with regard to the law at the ICTY, see also May and Wierda, International Criminal Evidence (2002), p. 272: “[T]he Trial Chamber itself is in a position to restore any lost balance by calling its own evidence or by excluding evidence if required in the interests of the trial. Thus, the fact that the Trial Chamber assumes a more active role in international criminal trials than in ordinary adversarial proceedings can assist to redress any imbalance between the parties.” 1138 Supra E. IV. 2. a) bb) (2). 1139 Supra E. IV. 1. b) bb) (2) (a) and 2. a) bb) (2) (a). 1140 Supra E. IV. 2. a) bb) (2) (a). 1141 Supra E. IV. 2. a) bb) (2) (a) and (c). 1142 Supra E. IV. 2. a) bb) (2) (d). 1143 Supra E. IV. 2. b) bb) (1) and (5). 1144 Supra E. IV. 2. b) bb) (4).

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Ethics and a very detailed Code of Professional Conduct for counsel, there are only insufficient ethical rules for the Prosecution.1145 With regard to inequality, the second corrective measure (i. e. the enactment of ethical rules and rules of conduct) is not existent at the ICC. On top of that, even the third corrective measure that is supposed to compensate inequalities – sanctions – reveals a strong policy-implementing notion. As I have shown above,1146 the Prosecution deliberately committed several disclosure violations in the context of the Lubanga trial and even admitted to this.1147 In the two instances where the Trial Chamber imposed a stay of the proceedings, this stay was only provisional and the trial resumed after a while. Even when the Prosecution deliberately refused to comply with a court order, the Trial Chamber could not do anything other than express the warning that the Chamber “will need to scrutinize the impact of this eventuality in the context of its overall assessment of the evidence in the case” and choosing rigorous words against the Prosecutor in order prevent him from similar refusals in the future.1148 In a third instance, the Trial Chamber refused the application of the defence to stay the proceedings permanently.1149 Although the Prosecution admitted that it made mistakes with regard to its disclosure obligations,1150 the Chamber stated that the suggested failure to make prompt disclosure (which is alleged on occasion to have been deliberate, and which sometimes was effected after the relevant witness had testified) cannot properly be characterised as something that would render it “odious” or “repugnant” to the administration of justice to allow the proceedings to continue. In other words, the only sanction the Trial Chamber had – the stay of proceedings – maintained a provisional effect, i. e. the stay lasted until the Judges found that the Prosecutor had complied with its obligation to communicate to the defence those elements potentially favourable to its case.1151 Thus, even when applied, sanctions are not meant to hit the party that disregarded its duties, but rather to act as a threat that remains effective as long as the party continues to behave unfairly.1152 This means nothing less than when a particular breach of a procedural provision is established at the ICC, the decision stemming from the breach is not as readily invalidated as 1145 This is criticised by, e. g., Markovic, 47 Tex. Int’l L. J. (2011–2012), 201, 208 and Roosevelt, 24 Geo. J. Legal Ethics (2011), 835, 841 ff., 843. 1146 Supra F. VII. 3. a). 1147 Supra F. VII. 3. a) aa) and bb). 1148 Supra F. VII. 3. a) bb). 1149 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2690-Red, supra note 960, S. 463, para. 224; supra F. VII. 3. a) bb). 1150 Ibid., para. 207. 1151 Caianiello, 10 ICLR (2010), 23, 38. 1152 Ibid., 39.

VIII. Conclusion

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it is in the conflict-solving process.1153 A procedural sanction is only imposed if it does not endanger the realisation of policy-implementing goals.1154 As I have described above,1155 the special goals of the ICC – inter alia, the provision of an accurate record of events, substantive truth finding and the satisfaction of victims – clearly indicate a strong policy-implementing character.1156 How could those goals be implemented if the judges imposed a permanent stay of the proceedings and released the defendant in the middle of the trial? Considering the “degree of international and local pressure” that was mentioned in the first judgement of the ICC,1157 the fact that the international and national public, including and in particular the victims and the civil society organisations representing them, judge the ICC by its numbers of indictments,1158 and the financial contributions the States Parties make for the benefit of the Court,1159 a permanent stay in the Lubanga trial was almost inconceivable. As Turner points out, the ICC “ultimately selects those remedies and sanctions that effectively deter misconduct and promote the fairness of the trial while not sacrificing other legitimate goals of the ICC”.1160 This, however, reflects very clearly the policy-implementing nature of procedural sanctioning at the ICC.1161 The dis1153 This is the exact subsumtion under the attitude towards sanctions in an activist state, as Damaška describes it, see Damaška, Faces of Justice (1986), p. 149. 1154 Ibid. 1155 Supra E. IV. 1. b) bb). 1156 Swart, 6 JICJ (2008), 87, 107. 1157 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 121. 1158 Ambos, 12 ICLR (2012), 115, 127. 1159 In 2011, the total budget of the ICC was 103,607,900 Euros and the potential costs at the ICC for 2012 are 128,570,900 Euros. See for further information “Report of the Committee on Budget and Finance on the Work of its Seventeenth Session”

last visited 28 September 2013; see also Ambos, Treatise on International Criminal Law, Vol. I (2013), Ch. I, mn. 32. 1160 Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 181, 204 ff.; also in favour of this approach Naymark, 4(2) J. Int’l L & Int’l Rel. (2008), 1, 14: “[T]he balancing of the rights of the accused and the interest of the public in prosecution in the test for the determination of a stay of proceedings should be subsumed into a more general analysis of the impact of trial continuation on the project of international justice’s public reputation.” (fn. omitted). 1161 In the same vein Caianiello, 10 ICLR (2010), 23, 39: “[I]t could be reasonable to expect that, because of the essentially accusatorial framework, sanctions should tend to punish the unfair behaviour of one of the litigants, without much concern for the possibility of the process reaching an end on the merits of the charges. There is, instead, a rather surprising lack of procedural sanctioning provisions and, in more than one case, the Rules specify that the violations of their requirements do not lead to the exclusion of the evidence that should have been communicated.”

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closure sanctions seem oriented towards leading the trial to a conclusion on the merits, rather than punishing the misconduct of a negligent party as such.1162 In sum, it can be said that the mix of procedural models shows dangerous side effects when it comes to disclosure at the ICC. Although the rules themselves and the attitude of the parties imply a conflict-solving form of proceedings, what really characterises the disclosure process are not the existing provisions but those which are actually not there: sufficient rules of conduct for the Prosecutor and a variety of strict sanctions for disclosure failures. Together with the acceptance of a strong inequality of arms – not only in a structural but also in a procedural way – this shows that the system of the ICC to receive information from the other party in the process is policy-implementing and not conflict-solving. The part of disclosure that is indeed conflict-solving, i. e. most of the disclosure rules and the disclosure practice of the parties, is without the corrections of rules of conduct and sanctions only a caricature of a conflict-solving disclosure process. Therefore, strictly speaking, the “disclosure regime” at the ICC should be correctly labelled an “information access regime”, but I will, for reasons of simplification, retain the former phrase.

1162 Ibid., 40; for other possible remedies see generally Turner, 45 N.Y.U. J. Int’l L. & Pol. (2012), 175, 215 ff. (sentencing reductions, 217 ff.; dismissal of select counts, 225 ff.; “declaratory relief”, 228 ff.; compensations to acquitted defendants, 230 ff.; discqualifications, 233 ff.; sanctions for misconduct before the court (contempt), 234 ff.; “administrative sanctions”, 238 ff.; investigations by the Independent Oversight Mechanism, 241 ff. etc.).

G. The Solution I. Active Judge As I have analysed above,1 there are features of the judiciary that indicate both a coordinate and hierarchical structure, while hierarchical features prevail in my view. I recognised a qualitative domination of hierarchical elements, such as the existence of an Appeals Chamber and the professionalisation of decision makers. All in all, the “strong centrifugal tendencies”,2 which Damaška describes as inherent in the coordinate model, are explicitly avoided at the ICC: “We want to have one court, a court that is perceived as one force, not as a series of centrifugal forces.”3 Moreover, the overall picture of the judge at the ICC appears to be policy-implementing.4 Although he or she has no duty to seek the truth,5 his or her role is highly influenced by the special goals of international criminal justice. The goals of substantive truth finding and the provision of an accurate historical record require optimal levels of fact-finding accuracy. Thus, the judge has a rather managerial role and is highly involved in fact-finding activities. Certainly, the ability of both the Defence and the Prosecution to present evidence and examine witnesses indicates a conflict-solving form of procedure, where the bulk of legal information, as well as the facts of the case, 1

Supra E. IV. 2. a) aa). Damaška, 84 Yale L.J. (1975), 480, 515. 3 See Terris, Romano and Swigart, The International Judge (2007), p. 83. 4 Supra E. IV. 2. a) bb) (2). Nevertheless, more detailed questions remained unanswered, such as the role of the Pre-Trial Chamber and the nature of the confirmation hearing highly depend on the overall structure of the ICC system, because both the Statute and the RPE contain ambiguous provisions that can be interpreted differently, inked in the colours of Common Law and Civil Law (see supra IV. 2. a) bb) (2) (e)). However, as I made clear, those remaining questions concerning – at least in part – rather specific issues should not negate that the ICC judge in general is closer to the policy-implementing than to the conflict-solving ideal (supra IV. 2. a) bb) (2) (e)). 5 See, however, the recent decision on witness proofing, Prosecutor v. William Samoei Ruto and Joshua Aarap Sang, ICC-01/09-01/11-524, Decision on Witness Preparation, para. 50 (January 2, 2013), “Rather, judicious witness preparation aimed at clarifying a witness’s evidence and carried out with full respect of the rights of the accused is likely to enable a more accurate and complete presentation of the evidence, and so to assist in the Chamber’s truth finding function.” [italics added]. 2

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G. The Solution

reaches the judge through the filter of party argument. Furthermore, the judge may also question the witnesses after the parties did6 and does not have to be the first questioning the witnesses, as it is the case at the STL.7 Still, the overall picture seems to be policy-implementing: in certain cases, the judges may assist the defence and treat both parties unequally (given the strong position of the OTP8), he or she may order measures and the production of additional evidence. In addition, there is no jury as a decision-maker at the ICC. Instead, the task of guilt determination lies in the hands of professional judges to the effect that “the nature of the proceedings shifts away from resolving a dispute between the State and the accused toward a more tightly controlled forum for determining the defendant’s guilt.”9 This policy-implementing role should be taken more seriously and the first judgement of the ICC, in particular, demonstrates the reluctance of ICC judges to effectively manage the trial from the outset.10 The judgement impressively demonstrates how differently the role of a trial chamber can be interpreted. The Chamber makes the parties and participants “responsible for identifying” the relevant evidence,11 but reserves for itself the right to intervene whenever it sees fit.12 While this approach is legitimate in light 6

See Rule 140(2)(c) of the ICC-RPE. Article 20 STL-Statute provides that unless otherwise decided by the trial chamber, “examination of witnesses shall commence with questions posed by the presiding judge, followed by questions posed by other members of the Trial Chamber, the Prosecutor and the Defence”. The trial chamber may also proprio motu “decide to call additional witnesses and/or order the production of additional evidence”. See also Higgins, 5 J. Int’l Crim. Just. (2007), 394, 397. 8 See supra F. VIII. 2. and infra G. II. and III. 2. c) bb). 9 Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 26, who continue: “As a whole, then, a bench trial takes on a more inquisitorial form than a classic trial by jury. With a single expert fact-finder at its core, it has the tendency to become more of an inquest by a state official and less of a contest between opposing parties.” (p. 29). 10 The following section is – at least in part – an excerpt from a draft I prepared for Ambos, 12 ICLR (2012), 115, 121–124 (see also the first footnote of this article). 11 Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 95; see also para. 96, quoting a decision of 12 April 2011: “For the documents that have been admitted into evidence without having been introduced during the examination of a witness (viz. the bar table documents) [. . .] the parties and participants are to identify the documents, or parts thereof, that are relied on, and to provide a sufficient explanation of relevance.”). 12 See Hearing of 1 April 2011 that was cited in the Judgment, Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 95 (“Now, it may be that the Bench will consider some of the evidence that you have not identified. That, of course, is a matter entirely for us if we choose to do so.”). 7

I. Active Judge

501

of the ICC-Statute and the ICC-RPE,13 it is not in line with the ideal of a policy-implementing process. Quite the opposite: the passive attitude of a judge in a policy-implementing process leads to delays, especially given the complexity and length of international criminal trials.14 In a similar vein, Damaška himself states: “[J]udge-driven fact-finding arrangements would become preferred over those in which parties mount and orchestrate their own competing cases. Thus, the tendency toward increased judicial responsibility for the production of evidence – manifest in the ICC-Statute and the ICC-RPE – would appear as welcome development.”15 The experience so far indicates that judges of international criminal tribunals, despite some conflict-solving characteristics of the proceedings, should take a more active, managerial role, more known to the policy-implementing ideal,16 which is especially important given the ambiguity of many procedural rules.17 This does not mean, though, that the excessive length of a trial is always the result of the judges’ interpretation of their role as passive umpires. The Pre-Trial Chambers especially perceive a very active role.18 In the Lubanga proceedings, for example, Jugde Jorda exercised his power in a broad fashion. In a hearing before Pre-Trial Chamber I on 27 November 2006 he alluded to the truth-seeking role of his PTC and “the objective of this confirmation hearing (. . .) to supplement the adversarial debate between the parties.”19 While this sounds strange to Common Law judges,20 it is remarkable that they too may see the need to take a more active role. 13 See, e. g., Art. 64(6)(b), (d), (8)(b) and (9)(a) ICC-Statute; Rules 140, 141 ICC-RPE. 14 See generally Boas, The Miloševic´ Trial (2007), 131 ff. It is worthwhile recalling in this context that the Chamber needed almost a year to prepare the opening of the trial (cf. Prosecutor v. Lubanga, No. ICC-01/04-01/06, supra note 10, S. 42, para. 29, setting the commencement date for 31 March 2008). 15 Damaška, in: Cassese, ed., The Oxford Companion to International Criminal Justice (2009), p. 175, 184. 16 See Langer, 53 Am. J. Comp. L. (2005), 835, 840; Ohlin, 14 UCLA J. Int’l L. & Foreign Aff. (2009), 77, 80; Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 487. 17 Cf. Zappalà, in: Cassese, ed., The Oxford Companion to International Criminal Justice (2009), pp. 216, 220, 221, who summarises: “Generally speaking, one thing is sure: had judges exercised self-restraint from the outset there would be no ICL system today.” 18 See de Hemptinne, 5 J. Int’l Crim. Just. (2007), 402, 414, 415 with further examples. 19 Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-T-45-EN, Transcript, p. 19 lines 7-10 (November 27, 2006) (Kai Ambos notes in passing that Judge Jorda made this point surely in his mother tongue French, see Ambos, 12 ICLR (2012), 115, 122 with fn. 51). 20 Schabas, Introduction to the ICC, 4th ed (2011), p. 313.

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Thus, Judge Fulford quite bluntly refers to the Chamber’s “statutory authority to request any evidence that is necessary to determine the truth . . .”21. On the other hand, with a clear focus on expediency, he calls for brevity in filings.22 Unfortunately, however, the judges do not seem to take this active role too seriously; rather, they see it in the sense of the position regarding the collection of evidence mentioned above,23 as a kind of fall back right which will be invoked only exceptionally. This is understandable, given the conflict-solving elements the process has and given the (perceived) “party contest”.24 One might wonder why a judge would remain passive, although the procedural rules allow him or her to do otherwise? However, this is far from unusual and especially nothing that results from the unique character of – as many authors incorrectly call it – the “sui generis” procedure at the ICC, where allegedly adversarial elements are blended with inquisitorial elements.25 These authors overlook that even in systems that tend towards a conflict-solving form of procedure, “[t]here are no firm barriers to judicial activism.”26 It is the judge himself who deliberately chooses to remain passive and he would only interpret his role more actively, if he has to. Moreover, empirical research shows that judges in the U.S.A. take a more active role when a jury is not present.27 As Damaška puts it: “[T]he passive stance of the coordinate adjudicator is located on pragmatic grounds: unfamiliar with the dispute, he his ill prepared to take charge of procedural action himself. [. . .] Because the exercise of discretion permeates all aspects of his temporary office, his detachment at trial is essentially an exercise in selfrestraint, buttressed by the ideology of non-involvement. However, like a dormant volcano, he may under certain circumstances erupt into vigorous activity.”28 21 Decision on the admissibility of four documents, No. ICC-01/04-01/06-1399Corr, 13 June 2008 (corrigendum issued on 20 January 2011), para. 24 (also quoted in Prosecutor v. Lubanga, No. ICC-01/04-01/06-2842, Judgment, supra note 9, S. 42, para. 107. 22 At the conference “The ICC’s Emerging Practice: The Court at Five Years”, The Hague, 4 October 2007 (where Fulford sat on Panel 4 on ‘Fairness and expeditousness of ICC proceedings’). See also Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 481. 23 The Chamber makes the parties and participants “responsible for identifying” the relevant evidence, but reserves itself the right to intervene whenever it sees fit. 24 As I have analysed above, the trial at the ICC is not a party contest in the sense of a pure conflict-solving procedure, see supra E. IV. 3. 25 About wrong modelling see supra E. III. 4. a) aa). 26 Damaška, Faces of Justice (1986), p. 216. 27 Stephen J. Schulhofer’s study of bench trials in Philadelphia concluded that judges typically played an active role in questioning witnesses and during closing statements by counsel, see Schulhofer, 97 Harv. L. Rev. (1984), 1037, 1070–1071; see generally Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 39.

I. Active Judge

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Thus, it is no wonder that many judges at the ICC – the presiding judge of the Trial Chamber in the Lubanga trial was the English judge Sir Adrian Fulford – see their active role as a kind of fall back right which will be invoked only exceptionally. However, in doing so, they overlook a crucial fact of their deliberate passivism: contrary to a pure conflict-solving trial, the judges at the ICC are familiar with the dispute and not unprepared to take procedural action themselves. As I have described above, there are communication obligations that allow the Pre-Trial Chamber to receive certain information in advance in order to be able to decide substantial and procedural questions.29 Even more importantly, the judge(s) of the Pre-Trial Chamber reason their findings in the confirmation decision and this decision shall be transmitted to the Trial Chamber according to Rule 130 ICCRPE. That basically means that the judges of the Trial Chamber do not enter the trial stage with a “virgin mind” or “tabula rasa”, and “legal limits” of the case are not only prescribed by the parties but also influenced by the Pre-Trial Chamber.30 Therefore, the passivism of the judges at the ICC seems to be an ill-founded routine that is neither necessary nor appropriate. As I have shown, in many Common Law countries today, judges are encouraged to take a more active role and “it is probably inevitable that their assumption of the role of trier of fact will push them to take a more interventionist – even inquisitorial – stance, whether they like it or not.”31 Groome, in this context, shows how the efficiency of the Milosevic´ trial at the ICTY suffered because of the passive role of the judges,32 describing the approach of the prosecution in a robbery trial as a striking example.33 28

Damaška, Faces of Justice (1986), p. 216. See supra E. IV. 2. a) bb) (2) (b). Only the extent of those obligations is disputed, see the questions asked at the outset of this study (supra B.) and my solution at the end (infra G. III.). 30 See supra E. IV. 2. a) bb) (2) (a) and (c); F. VIII. 2.; E. IV. 2. a) bb) (2) (d). 31 Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 29. 32 I am aware that the ICTY has far more conflict-solving elements than the ICC and is also structurally different. This slightly reduces the legitimacy of this example. 33 Groome, 25 Penn St. Int’l L. Rev. (2006–2007), 791, 801: “[L]et’s consider a simple robbery case where the prosecution must prove three elements: 1. there was a theft; 2. there was force and 3. the defendant is the person who committed the act. The prosecutor must produce evidence to prove each of these beyond reasonable doubt. It might be that the jury early in the case has no doubt that there was a forcible theft – a robbery. They have serious concerns with the identity of the perpetrator and are interested anxious to hear all possible evidence in this regard. The Prosecutor, unable to speak with the jury, does not know this. He therefore, in the prudent discharge of his duties pedantically adduces all of his evidence for each element lest a reasonable doubt germinate in the mind of a juror. What would happen if the trier of fact – if the juror in my example could say: ‘We have all the 29

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Before the ICC, judges should take up the responsibility to lead the proceedings for the sake of both the implementation of the goals of the court and expeditious proceedings.34 I even go further and agree with de Hemptinne’s proposal to create either investigating chambers, with the authority to direct investigations, or to enable the existing Pre-Trial Chamber to – inter alia – issue orders when the prosecutor refuses to take specific investigative steps.35 This is necessary not because it would be more desirable than the current situation but because it would be more consistently given the procedural nature of the system. Of course this proposal will not go without criticism, especially from those familiar with the Common Law tradition and/or the so-called adversarial process. The long-held view of adversarial theorists is that when a judge engages in the examination of witnesses he “descends into the arena and is liable to have his vision clouded by the dust of the conflict.”36 However, the Common Law tradition does not automatically exclude all forms of inquisitions conducted by judges, as indicated by the U.S.A. system itself, more specifically: U.S. administrative law. In many U.S. states the administrative judge is very close to many judges within the Civil Law tradition or – to put it into Damaška’s categorisation – those judges are structurally hierarchical and have policy-implementing responsibilities. These states bring administrative judges together into one administrative unit, usually called a “central panel”, from which individual agencies request judges.37 Administrative law judges usually act as inquisitorial judges evidence we need to decide the first two elements. What we need now is all the evidence available on the issue of identification.’ How much more efficient does our robbery trial become when we empower the fact-finder to direct the inquiry rather than stifling our fact-finder in name of impartiality. By combining these segregated functions we increase the efficiency of the trial process. [. . .] The [Milosevic] trial would have taken a very different course if the Chamber had been empowered to more actively direct the inquiry in a way that met their needs as finders of fact. We, as prosecutors, being forced to blindly anticipate their questions, their potential doubts were compelled to introduce not necessarily the evidence the Chamber most wanted or needed to decide the case but what we perceived they most needed and wanted. We invited the Chamber on several occasions to take a greater role in directing the focus of the inquiry. They declined for obvious reasons – expressing a view that we presented sufficient evidence on an issue would create an impression (abhorrent in a adversarial system) that the trier of fact had a view of the evidence before hearing all of the evidence and the arguments of both parties.” 34 See also Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 490. 35 De Hemptinne, 5 J. Int’l Crim. Just. (2007), 402, 414, 415, 416. 36 van Kessel, 67 Notre Dame L. Rev. (1991–1992), 403, 527 (fn. omitted). 37 Flanagan identified twenty-five states and at least three major cities. Flanagan, 54 Admin. L. Rev. (2002), 1355, 1357; see generally Koch Jr., 11 Ind. J. Global

II. The Parties and the System in General

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and try to assure that the case is fairly presented and decided. They may use their own knowledge of the subject, while civil and criminal court judges can be disqualified if they know about the subject, and must actively assure an adequate record.38 Furthermore, while judges in the U.S. system are not allowed to consult their own experts,39 the administrative process takes a much more liberal approach in that regard.40 In sum, the administrative process has many elements that are known to the Civil Law tradition.41 The argument that administrative law is not criminal and its process is therefore not comparable to the criminal process would not be wellfounded: many administrative proceedings are close to criminal proceedings, since often administrative law empowers agencies to order “civil penalties”, which although not criminal, are not easily distinguishable from criminal fines.42 The United States Court of Appeals made clear that even when legislature has indicated an intention to establish a civil penalty, the penalty might still be characterised as a criminal sanction.43 In addition, the difficult separation of an administrative penalty from an a one has always been an issue in the law of the European Union.44

II. The Parties and the System in General As I have analysed above, the organs of the ICC, especially the judiciary and the OTP, are hierarchically structured and dominated by a strong sense Legal Studies (2004), 139, 147 (“A self-managed judiciary has suggested its advantages in the United States, and its adoption demonstrates that it can be incorporated into a common law setting.”). 38 Koch Jr., ibid., 154. 39 Under the Model Code of Judicial Conduct, judges may seek legal advice only. Model Code of Judicial Conduct (2000), at Canon 3B(7). See also Shaman, Lubet and Alfini, Judicial Conduct and Ethics, 3rd ed (2000), p. 173 (“While judges may, under certain circumstances, obtain expert advice concerning the law from disinterested legal experts, the exception does not extend to experts in other areas.”). 40 Koch Jr., 11 Ind. J. Global Legal Studies (2004), 139, 158. 41 Ibid., 153. 42 See, e. g., 15 USC § 45, titled “Unfair methods of competition unlawful; prevention by Commission”. 43 Noriega-Perez v. U.S. 179 F.3d 1166, 1172 C.A.9 (Wash.), 1999, citing Hudson, 118 S.Ct. 493. The court established “seven guideposts”, which are: “whether the sanction (1) involves an affirmative disability or restraint, (2) has historically been treated as a criminal punishment, (3) requires a showing of scienter, (4) promotes the traditional aims of criminal punishment – retribution and deterrence, (5) applies to behavior which is already a crime, (6) has an alternative non-criminal purpose, and (7) is not excessive in relation to the alternative purposes.” 44 Cf. Ambos, Internationales Strafrecht, 3rd ed (2011), § 9 mn. 7 with further references in fn. 52, 53.

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of professionalisation and specialisation.45 I therefore came to the conclusion that any matter within the organs of the Court can be dealt with by hierarchical instruments because this hierarchy does exist. With regard to the reactive/activist-state-notion, I have assessed that the system of the ICC is a policy-implementing one with a couple of conflict-solving features.46 The OTP in particular finds itself in a policy-implementing position, which is, inter alia, supported by the facts that it has to investigate both incriminating and exculpatory evidence and that it is subject to superior review to a certain extent.47 It follows from this that all protagonists in a trial before the ICC must act in accordance with this – mainly – hierarchical structure and policy-implementing process. A first step in that direction would be to recognise that fair chances of winning do not exist at the ICC and that the equality of arms principle is only relevant if it helps implementing the policy of the ICC.48 The Prosecution is and will be structurally and procedurally superior vis-à-vis the Defence. This superiority is in itself not an indication of a policy-implementing form of procedure. In fact, in many countries a lack of funding for defenders and insufficient procedural rules to compensate inequalities are obvious and well documented.49 However, in connection with a procedural superiority of the Prosecution, both facts imply that the system accepts the inequality of the parties. Apart from the procedural and structural superiority of the OTP vis-à-vis the Defence, the ICC Statute omits provisions guaranteeing sufficient funding for fair defence investigation of the facts of a case.50 Furthermore, the Committee on Budget and Finance recommended that the ASP in its 11th session (14–22 November 2012) implement the proposals of the Registry for Legal Aid cuts at the ICC for 2013,51 which was highly criticised by several Defence organisations.52 45

See supra E. IV. 3. In a similar vein Tuinstra, who recognises, that “[T]he scales appear to tilt somewhat more toward the policy-implementing side than the conflict-solving side”, see Tuinstra, Defence Counsel (2009), p. 147. 47 See supra E. IV. 2. b) bb) (4). 48 See supra F. II. and VIII. 1. c), 2. See also Safferling, Towards an International Criminal Procedure (2001), p. 267. 49 See, e. g. for the situation in the USA, Mosteller, 36 N.C.J. Int’l L. & Com. Reg. (2010–2011), 319 ff. See also Bradley, 7 CLF (1996), 471, 473: “[In the Adversary system,] for one thing, the prosecution typically has greater resources than the defense, including a professional police force to carry out investigations and a whole legal department of well-paid prosecutors who are generally skilled and enthusiastic.” 50 Gallant, 34 Int’l Law (2000), 21. 51 Assembly of Stattes Parties to the Rome Statute of the International Criminal Court, Official Records, Vol. II, ICC-ASP/11/20, para. 86 ff. 46

II. The Parties and the System in General

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This all shows that the purpose of the trial is not to create a “fair contest” to resolve a dispute, but to accurately and fairly identify, investigate and adjudicate which individuals have violated international norms.53 It would be a necessary consequence to accept that the international criminal process is far from reflecting a pure contest, where dispute resolution prevails over the aspiration to maximise accurate fact-finding.54 In a system where the provision of a historical record and substantive truth finding are identified as special goals and the prosecution is structurally and procedurally superior vis-à-vis the Defence, imbalances might be corrected by “increasing the independence and authority of judges and moving back toward a modern Continental-style inquiry system.”55 The recommendation to establish an independent commission to assist in the investigation process,56 as the UN Security Council did in Lebanon “to assist the Lebanese authorities in their investigation [. . .] to help identify its perpetrators, sponsors, organizers and accomplices”,57 is therefore not necessary, because the OTP already is – within the procedural system of the ICC – supposed not to act a zealous advocate anyway.

52 See, for instance, , last visited 8 November 2012. 53 Groome, 25 Penn St. Int’l L. Rev. (2006–2007), 791, 797. 54 Cf. Damaška, Faces of Justice (1986), p. 123. In a similar vein Groome, 25 Penn St. Int’l L. Rev. (2006–2007), 791, 797: “[O]nce we accept this we must recognize the affinity that exists between the international criminal trial and its inquisitorial parent. International criminal trial procedure must abandon its reliance on the adversarial process to yield the truth and develop its own methodology to uncover the truth in a process that fairly strikes the balance between the rights of the defendant, the victim and the international community.” 55 Van Kessel, in: Feeley and Miyazawa, eds., Japanese Adversary System (2002), p. 225, 242. 56 Higgins, 5 J. Int’l Crim. Just. (2007), 394, 396 (“The establishment of an independent commission to assist in the investigation process may provide a valuable contribution to improving the fairness and expeditious conduct of war crimes trials at the pre-trial stage. The commission would be staffed by independent investigators experienced in conducting complex investigations. Acting in the interests of the whole community, the commission would gather evidence for both the prosecution and the defence in respect of the alleged crimes and subsequently present its dossier to the trial chamber.”). 57 Security Council Resolution 1592, adopted on 7 April 2005, § 1.

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III. Communication and Registration 1. Communication As I have described above,58 contrary to a pure conflict-solving trial, the judges at the ICC are familiar with the dispute and not unprepared to take procedural action themselves, because, inter alia, there are communication obligations that allow the Pre-Trial Chamber to receive certain information in advance in order to be able to decide substantial and procedural questions.59 The question is: to what extent does the Pre-Trial Chamber receive information from the parties prior to the confirmation hearing? The provisions of disclosure prior to trial (Art. 64(3)(c),(6)(d) ICC-Statute) were highly disputed amongst Civil Law lawyers on the one hand and Common Law lawyers on the other hand during negotiations of the Rome Statute.60 Moreover, Rule 121 ICC-RPE does not necessarily preclude disclosure to the Pre-Trial Chamber in order to help the Pre-Trial Chamber to understand the issues and strengthen its position for making disclosure orders or orders for further investigations or evidence.61 Consequently, as described at the outset of the study, the Bemba PTC prefers broad disclosure and communication obligations.62 This is in line with the view of “civil lawyers” during the negotiations of the Rome Statute, who stated that the Trial Chamber must be fully apprised of the case prior to hearing the trial, enabling the Trial Chamber either to ensure the provisions of Art. 64(3)(c) and Art. 64(6)(d) ICC-Statute or to properly fulfil its task during the trial itself.63 On the contrary, the Lubanga PTC firmly believes in narrow disclosure and communication obligations. This is in line with the view of “common law” lawyers during the negotiations of the Rome Statute, who believed that the Trial Chamber could be prejudiced by material or information that it saw prior to trial but which was not ultimately introduced into evidence at the trial.64

58

See supra E. IV. 2. a) bb) (2). See supra E. IV. 2. a) bb) (2) (b). 60 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 424. 61 Ibid. 62 Supra B. III. and V. 63 Brady, in: Lee, ed., Elements of Crimes and Rules of Procedure and Evidence (2001), p. 403, 424. 64 Ibid., 425. 59

III. Communication and Registration

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a) Broad Communication Generally Ensures to Implement ICC Policies I have shown that the role of those judges is highly influenced by the special goals of international criminal justice, especially the provision of an accurate historical record and substantive truth finding.65 While the method of presentation remains dominantly adversarial, the judges are able to participate in the examination of evidence and are not limited to the evidence that is disclosed through party interaction.66 Thus, if the judges considered themselves bound to what the parties advanced at the confirmation hearing (or at the trial), they would not be able to implement the goals of international criminal justice, and especially the provision of a historical record and substantive truth finding. I have demonstrated with many examples that the PreTrial Chamber in particular, with its extensive powers, has a policy-implementing setting, which allows – and even more, which obliges – the PreTrial Chamber to aspire to implement the goals of international criminal justice. Thus, to state that “the Pre-Trial Chamber is not a finder of truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued (footnote omitted)”67 ignores the important role of the Pre-Trial Chamber within a policy-implementing international organisation. In fact, the only way to come to the conclusion that the Pre-Trial Chamber is not a finder of truth is to artificially disconnect the Chamber from the rest of the Court and to pick out those pre-trial provisions that suggest a rather restricted task of the Chamber. In my view, this method has serious flaws and can only be achieved by disregarding the rules of interpretation, especially a contextual interpretation. It is not possible to view the role and function of the Pre-Trial Chamber by disregarding the entire procedural system. I therefore see no alternative to broad communication obligations to the Pre-Trial Chamber. b) Broad Communication Specifically Facilitates Disclosure These broad communication obligations ensure that the Pre-Trial Chamber has sufficient knowledge in order to use its extensive power to implement the goals of international criminal justice. It also ensures that the PreTrial Chamber can handle disclosure failures that would otherwise delay the entire process – as I have shown, the Lubanga trial had to be stayed 65

See supra E. IV. 1. b) bb) (2) (a). See supra E. IV. 1. b) bb) (2) (a) and 2. a) bb) (2) (a). 67 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 55. 66

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twice because of disclosure failures by the Prosecution. Of course there were many factors that led to those stays but it would certainly not have harmed if broader communication and disclosure obligations had been established at the pre-trial stage (while the Bemba PTC required the Prosecution “to disclose the evidence which is of true relevance to the case, whether that evidence be incriminating or exculpatory”,68 the Lubanga PTC considered it sufficient to disclose the “bulk” of exculpatory evidence prior to the confirmation hearing and all exculpatory evidence thereafter.69). Most interestingly, even authors from legal systems that tend towards a conflict-solving form of procedure have realised that broad communication obligations can indeed have a positive effect on the disclosure process. In the U.S.A., for instance, some scholars have called for judicial involvement in screening prosecutors’ Brady decisions during the discovery phase,70 which would require that at the time of pre-trial discovery the prosecutor submit his full case file to the trial court or a magistrate for inspection.71 The judge would have the authority to determine whether the file has exculpatory evidence that has to be disclosed pursuant to the Brady rule.72 Subsequent to this determination, the judge would notify the prosecutor about the information recommended for disclosure and the prosecutor could object.73 In sum, broad communication would be the logical consequence, considering the policy-implementing setting of the ICC as an international organisation and of parts of the process and of the Chambers. 2. Registration – Introduction of the Double-dossier Principle The next question is whether all evidence should be registered into the record of the case by the Registry, as the Bemba PTC requires,74 or whether – according to the Lubanga PTC – “only the evidence on which the parties intend to rely at the confirmation hearing is communicated to the Pre-Trial Chamber by filing it in the record of the case.”75 68

Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 67. Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 119 ff., 124. 70 Capra, 53 Fordham L. Rev. (1984–1985), 391, 427–428; Brown, 93 Cal. L. Rev. (2005) 1585, 1636–1638. 71 Capra, ibid., 427, italics added. 72 Ibid., 428. 73 Ibid. 74 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 55. 75 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 47, 57. 69

III. Communication and Registration

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Figure 33: The ICC’s Record of the Proceedings

a) Case File for the Pre-Trial Chamber and the Trial Chamber This question is actually only a step away from the question that has arisen since the negotiations of the Rome Statute: would it be possible to have a case file, as it is known in many legal systems familiar with the Civil Law tradition?76 It is important to note why this question is still “a step away” from the issue of a case file: whether the Pre-Trial Chamber may use the record of proceedings as a case file is usually distinguished from the question of what the Trial Chamber should see prior to trial.77 76 With “only one step away” I mean that the issue of a case file does not only concern the Pre-Trial Chamber but also the question what the Trial Chamber should see prior to trial.

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Many authors have written in favour or against a case file and most of them with regard to the latter question. This approach is flawed, because it – again – artificially disconnects the trial phase from the pre-trial phase. I am aware that the Trial Chamber decides about the guilt of the accused, while the Pre-Trial Chamber must “determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.”78 However, as I see it, the necessity of receiving a great amount of information is proportionate to the effect the decision of the relevant Chamber has on the person or the accused respectively. The result of a decision – e. g. guilt or no guilt, sufficient or insufficient evidence, etc. – is only an indication of how much information should be communicated and disclosed. As I have remarked, the confirmation decision has a high practical impact on the person, giving a strong presumption of the person’s guilt even before the trial begun.79 Moreover, the judge(s) of the Pre-Trial Chamber provide reasons of their findings in the confirmation decision. Consequently, with regard to access to information, the pretrial phase should not be disconnected from the trial phase. In addition, the powers of the Pre-Trial Chamber should not be underestimated. As I have pointed out,80 this is confirmed by the Pre-Trial Chambers. For instance, the Pre-Trial Chamber in Nourain and Jerbo Jamus stated: “[T]he relationship between the pre-trial phase and the trial phase of the proceedings goes beyond the filtering of cases by the Pre-Trial Chamber for the benefit of the Trial Chamber.”81 My analysis of the possibility of having a case file therefore extends to both pre-trial phase and trial phase. b) Access of the Trial Chamber to a Possible Case File Furthermore, I note in passing that after all I have said so far, the question is not whether the Trial Chamber is allowed to see the record of the proceedings, but how much information and evidence respectively that record contains, i. e. whether this record may have components of a case file.82 It is therefore more a question of whether everything is put into the 77 Cf. Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 275 (“The problem of the Record of the proceedings arises both at the pre-trial and trial stages: at the pre-trial stage, it is a problem of what it is going to be in the Record, at the trial stage it is also a question of who is going to have access to this Record.”). 78 Art. 61(7) ICC-Statute. 79 Supra F. VI. 3. c). 80 Supra F. VI. 3. c). 81 Prosecutor v. Nourain and Jerbo Jamus, ICC-02/05-03/09-121-CORR-RED, supra note 702, S. 418, para. 32.

III. Communication and Registration

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record at the pre-trial stage or not.83 I have pointed out that the broad powers of the chambers – Pre-Trial Chamber and Trial Chamber – require broad knowledge of the facts of the case. Thus, I reject the argument that the court should be as untainted as possible84 at the very outset of the analysis of how much the Court should actually know. Gilbert Bitti, referring to the rulings of the ECHR and the Human Rights Committee85 states in this regard: “[N]one of [the rulings of the ECHR] has ever stated that a Judge was not impartial because he looked before the trial at the Record of the proceedings. This has nothing to do with impartiality: it is a problem of the common law tradition and the role of the Judge and nothing else. I would even submit that the position of my common law colleagues will not work in practice: as far as everybody (Prosecutor, Defence, victims, representatives of States) will have access to this Record, they will refer to it in their motions and there will be no other possibility for the Trial Chamber but to consult the Record in order to decide on those motions; there is little sense to say that they can have access to that but not to this and besides: who is going to control that?”86

c) The Record of the Proceedings as a Case File In my view, the answer to the question of whether the ICC can have a case file depends on what a case file actually is. I have analysed the case file in detail.87 In order to elaborate on whether the record of the proceedings can be used as a case file, I identify three components of a case file: the knowledge component; the structure component; and the weight component.

82

This question arose because Rule 131 contains a list of who is entitled to consult the Record of the proceedings: the Defence, the Prosecutor, the representatives of States and the victims or their legal representatives. Nothing is said about the judges. 83 Cf. Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 278 (“First of all, the Record of the proceedings will contain all the evidence disclosed at the pre-trial stage, so we go back to the preceding part of this note: if everything is put into the Record at the pre-trial stage, the debate is over.”). 84 Cf. Internal expert paper, Measures available to the International Criminal Court to reduce the length of proceedings, para. 68; Cf. Brady, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 261, 271. 85 Citing McGoldrick, The Human Rights Committee (1991). 86 Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 279. 87 See supra E. IV. 2. c) aa).

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aa) The Knowledge Component The knowledge component allows the judge to be properly informed about the background of the case.88 In legal systems resembling an activist state, the judge has the case file in his hands and is thoroughly familiar with its contents.89 As soon as formal proceedings have commenced, the court becomes the supervisor of the case, replacing the prosecutor.90 The prosecutor must include in this case file every document that contains any information relating to the investigation; nothing except purely internal instructions and communications among members of the prosecutorial staff may be kept from the defendant.91 If at the trial the defendant should present a recently fabricated story, the Presiding Justice may remind him of any contradictions between that story and his previous testimony, or of the fact that he failed to mention the point when he previously talked with investigating officials.92 Should the defendant deny the accuracy or completeness of the portions of the dossier to which the Presiding Justice refers, the officials who recorded the previous statements of the accused may be called as witnesses.93 The defendant and his counsel have the right to inspect the entire dossier, that is, all of the evidence collected by the prosecution and the investigating magistrate, which also diminishes the probability of obtaining a conviction by a strategy of surprise.94 As I have repeatedly pointed out, the broad powers of the Chamber, such as the examination of witnesses as permitted under Rule 140 ICC-RPE or requesting additional evidence in accordance with Art. 69(3) ICC-Statute, go with the necessity to be properly informed about the case. If the judge knows less about the case than counsel, he or she would risk pursuing lines of inquiry that fully informed counsel have explored and abandoned as inappropriate.95 It would therefore make judicial questioning much more ef88

Cf. Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479,

488. 89

Schlesinger, 26 Buff. L. Rev. (1977), 361, 375 with fn. 65. Van Kessel, 67 Notre Dame L. Rev. (1991–1992), 403, 422. 91 See Lüderssen and Jahn, “§ 147”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, Vol. IV, 26th ed (2007), mn. 2, 23 f.; van Kessel, 67 Notre Dame L. Rev. (1991–1992), 403, 423. 92 Schlesinger, 26 Buff. L. Rev. (1977), 361, 375 with fn. 65; see Mosbacher, “§ 254”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, Vol. VI/1, 26th ed (2010), mn. 23; Meyer-Goßner and Schmitt, Kommentar zur Strafprozessordnung, 56th ed (2013), § 254 mn. 7; see more critically Herrmann, 1996 St. Louis-Warsaw Transatlantic L.J. (1996), 127, 139. 93 See Mosbacher, “§ 254”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, Vol. VI/1, 26th ed (2010), mn. 24. 94 Schlesinger, 26 Buff. L. Rev. (1977), 361, 372. 90

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fective if the judge had access to a case file in order to be adequately prepared for trial.96 This means that all evidence has to be put into the record for the confirmation hearing, and that the record, maintained by the Registry, has to be updated prior to trial, which would eliminate the numerous motions on disclosure before the Trial Chambers that exist before the two ad hoc tribunals.97 If “knowledge is power”, as Heinsch quotes,98 in proceedings before the ICC this power can – according to the procedural structure – only be in the possession of the judge and not the parties. Even in the U.S.A. some scholars have called for judicial involvement in controlling the prosecutor’s compliance with the obligation to disclose exculpatory evidence according to the Brady rule.99 One proposal requires that at the time of pre-trial discovery the prosecutor submit his full case file to the trial court or a magistrate for inspection.100 The independent adjudicator would have the authority to determine whether the file has Brady evidence.101 After the adjudicator reaches a decision, she would notify the prosecutor about the information recommended for disclosure.102 At this point, the prosecutor could object.103 That this is practically possible even in a legal system familiar with the Common Law tradition, is demonstrated – again – by the U.S.A.: the administrative law judge has full view of the overwhelming majority of documentary evidence (the medical and related records) well in advance of the commencement of the administrative hearing.104

95

Damaška, 45 Am. J. Comp. L. (1997), 839, 851. Jackson, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 221, 241. 97 Cf. Internal expert paper, Measures available to the International Criminal Court to reduce the length of proceedings, para. 69; see also Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 277; Brady, in: ibid., p. 261, 270. 98 Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 490, citing Sir Francis Bacon, Religious Meditations, Of Heresies, 1597, available at , last visited 28 September 2013. 99 Capra, 53 Fordham L. Rev. (1984–1985), 391, 427–428; Brown, 93 Cal. L. Rev. (2005) 1585, 1636–1638. 100 Capra, ibid., 427. 101 Ibid., 428. 102 Ibid. 103 Ibid. 104 Cf. Wolfe and Proszek, 33 Tulsa L.J. (1997), 293, 337, fn. omitted. 96

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bb) The Structural Component As I have concluded that the record of the proceedings is suitable for providing the judge and the participants with a broad knowledge of the case, the question is now whether access to that knowledge fits into the structure of the ICC. As I have previously described,105 the case file has only a legitimate existence within a hierarchical process, where it “integrates all segments into a meaningful whole”, interconnecting professional judges being part of a permanent bureaucracy composed of many stages and echelons of authority. In legal systems familiar with the Civil Law tradition, the case file is established during proceedings containing all the exonerating and incriminating circumstances and is, after the confirmation of charges, handed over to the trial chamber.106 As I have pointed out, there are elements in the ICC proceedings that indicate a hierarchical structure, such as the form of appellate review or the form of the confirmation hearing.107 Of course, at first sight the existence of a disclosure regime rules out the possibility of having a case file. However, as I have pointed out, access to information in whatever form is always determined by the procedural structure.108 That means that although both the disclosure rules per se and the disclosure attitude of the Prosecutor indicate a conflict-solving form of procedure at the ICC, the existence of a case file would still be possible if structure and form of the ICC process allow for it. I have repeatedly stated that many factors indicate that the ICC system promotes policy-implementation.109 This system also allows for disclosure rules if those rules help implementing the goals of international criminal justice – a possible effect on the inequality of the participants is only of secondary importance.110 Therefore, it is fair to say that the existence of disclosure rules does not prevent the establishment of a case file before the ICC. Furthermore, this case file would structurally fit into the ICC system, because this system has strong hierarchical and policy-implementing features.

105 106

Supra E. IV. 2. c) aa). Cf. Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479,

488. 107 108 109 110

Supra E. IV. 3. See supra F. VIII. 1. c) and 2. Supra E. IV. 3. Supra F. VIII. 2.

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cc) The Weight Component So far, two components of the case file have been identified in the record of the proceedings. However, that alone does not mean that the record of proceedings may be used as a case file. In fact, the most important component is yet to be analysed: the weight component. A case file is not merely constituted by a case record that contains information that is available to the participants and even to the judge. As Damaška correctly points out, a main feature of the case file is the weight that is attributed to the information available. I have shown that in France and Belgium, for instance, “evidence” tends to mean a piece of information that receives attention by the dossier. The statements in the case file have been accurately recorded in earlier inquiries, and their credibility may have been vouched for by other officials who heard the witnesses first-hand.111 Because these officials are independent and impartial, statements accredited by them are entitled to much greater weight than out-of-court statements related by parties in the course of a contested trial.112 The idea of the prosecutor’s impartiality leads to the belief that all the evidence he has gathered is credible evidence regardless of how it was collected.113 A German district court judge I have had the opportunity to speak with confirmed that the evidence in the dossier contains a strong assumption of weight and credibility because of the impartiality of the prosecution. Since most judges worked as prosecutors before, the sense of scepticism towards the impartiality of the prosecution is rather reduced. In other words: the hierarchical system ensures supervision and trust from the judges towards the prosecutors. Because of the impartiality of the Prosecution at the ICC,114 it is possible to attribute the necessary weight to the evidence in the record of the proceedings, especially because the investigation teams of the prosecution, and not any enforcement agency like the police, collect the evidence.115 On the contrary, in legal systems familiar to the Common Law tradition, nothing really counts as “evidence” until it has been heard orally at trial.116 The same is true at the ICC and that serves as a crucial obstacle to classify111

Doran, Jackson and Seigel, 23 Am. J. Crim. L. (1995–1996), 1, 22. Ibid. 113 Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 607. 114 In the Lubanga case the defence applied for a permanent stay of the proceedings because, inter alia, the Prosecution failed “to act fairly and impartially”, see Prosecutor v. Lubanga, No. ICC-01/04-01/06-2690-Red, supra note 960, S. 463, para. 23, 119 ff., 219 ff. 115 See supra E. IV. 2. b) bb). 116 Spencer, in: Delmas-Marty and Spencer, eds., European Criminal Procedures (2002), pp. 1, 21, 22. See supra E. IV. 2. c) aa). 112

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ing the record of the proceedings as a case file. According to Art. 74(2) ICC-Statute, “[t]he Court may base its decision only on evidence submitted and discussed before it at the trial.”117 A pure case file approach, however, means that the judge “may rely on evidence from the dossier, even if it has not been expressly discussed by the parties”.118 dd) Advantages of the Case File Vis-à-Vis Its Biased Objections In normal circumstances, this means that the record of the proceedings could not be used as a case file. However, both the advantages of a case file vis-à-vis the disadvantages and the expressed demands for the establishment of such a file call for a couple of solution approaches to this problem. A case file would not only fit into the structure of the ICC process, but also provide the judge with the necessary knowledge of the case and would, most importantly, prevent disclosure failures by overzealous prosecutors and allow the structurally and procedurally disadvantaged defendant to have adequate access to the collected material. It would moreover “obviate the need for exclusion at trial such as hearsay and reduce the number of witnesses who may have to attend trial and give oral evidence”.119 On the contrary, the reservations expressed towards the establishment of a case file seem to have their basis in the obviously still existent connection between the word “case file” or “dossier” and the (sometimes emotional) bias against “inquisitorial systems”.120 In general terms, the avoidance of a language “carrying too much baggage from one particular family” was one reason why the Rome Statute negotiators replaced technical terms such as “indictment”, “judge d’instruction”, and “cross-examination” with neutral terms.121 More specifically, this is also the reason why Heinsch seriously cautions against calling the record of the proceedings “dossier” or “case file” – even when it is used like this – because “lawyers from an adversarial system will react very reluctant and sceptical when confronted with the term ‘dossier’ for the very understandable reason that this concept is not known to such a great extent in the Anglo-American legal system.”122 Thus, it is no surprise when Keen concludes from the lack of an explicit reference to a dossier that a dossier- or case-file-approach should not be 117

Italics added. De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 435. 119 Jackson, in: id., Langer and Tillers, eds., Essays in Honour of Damaška (2008), pp. 221, 247, 248. 120 About the wrong modelling see supra E. III. 4. a) aa). 121 See Kreß, 1 JICJ (2003), 603, 605. 122 Heinsch, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 479, 490. 118

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taken at the ICC, disregarding that reports clearly show that during the negotiations of the Rome Statute the delegations wanted to include such a reference but could not reach an agreement and deliberately fell back to a “constructively ambiguous” provision, leaving it for the Court to decide whether such an approach would be suitable or not.123 This bias also comes to light in an article of Monroe H. Freedman, who cautions against the dossier, which is “little more than a file compiled by the police”, by citing the dissertation of Boštjan M. Zupancˇicˇ, who is said to have “clerked for several investigating magistrates in the Circuit Court of Ljubljana, Yugoslavia”.124 Zupancˇicˇ writes that “one cannot start from the presumption of innocence” under an inquisitorial system and continues: “In purely practical terms, if one opens a file in which there is only a police report and the prosecutor’s subsequent request for investigation and develops one’s thought processes from this departing point – one cannot but be partial. A clear hypothesis is established as to somebody’s guilt, and the investigating magistrate’s job is to verify it. But just as a scientist cannot start from the premise that his hypothesis is wrong, so the investigating magistrate cannot start from the premise that the defendant is innocent.”125

Adopting Zupancˇicˇ’s report, Freedman concluded that “as a result, prosecutorial bias on the part of the inquisitorial judge is not a matter of probability; it is a certainty.”126 This may have been true with regard to Slovenia,127 but to draw inferences from this about the “inquisitorial system”, i. e. to suggest that the situation in other “inquisitorial” legal systems does not differ, is simply incorrect and confirms my impression that many authors generalise and use wrong models for the sake of their own conclusions. First, the term “case file” or “dossier” is defined differently. In Germany, a case file is composed of all incriminating and exonerating documents that have been collected from the moment the police started their investigation plus the parts of the file that have been created subsequent to the indictment and the supplementary file of the court or the prosecution.128 123

See supra E. IV. 2. c) aa). Freedman, 1 Chap. L. Rev. (1998), 57, 77. 125 Zupanc ˇ icˇ, Criminal Law (1981), p. 54 with fn. 45. 126 Freedman, 1 Chap. L. Rev. (1998), 57, 77, citing Zupanc ˇ icˇ, Criminal Law (1981), pp. 54–63 and fn. 45. 127 By contrast, today the Slovenian criminal process is organised in an “accusatorial manner” with the exception that the trial court is bound to seek the truth, see Šugman et al., “Slovenia”, in: European Institute for Crime Prevention and Control, ed., Criminal Justice Systems in Europe and North America (2004), p. 26. 128 BGHSt 30, 131, 138; Laufhütte, “§ 147”, in: Hannich, ed., Karlsruher Kommentar zur Strafprozessordnung, 6th ed (2008), mn. 4, translation by the author. 124

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This definition is not without criticism.129 It shows, however, that a case file in Germany is per definitionem far from being “little more than a file compiled by the police”. Second, Freedman also ignores that the position of the police and their cooperation with the prosecution differ within the “inquisitorial system”. Third, the assertion that the judge “cannot start from the presumption of innocence” in a system where he has access to a case file is simply ill-founded. In English jury proceedings, the judge also receives transcripts of the evidence the prosecution plans to present at the trial. This, however, is not considered problematic since it is the jury rather than the judge who will decide the case.130 Of course neither in “inquisitorial systems” nor at the ICC do juries decide upon the guilt of the defendant. However, even the internal expert paper for the ICC does not see the problem of bias because of the professionalism of the judges, stating that “the ICC judges are likely to be clearly aware of the risk of real or perceived bias, and thus able to guard against it.”131 ee) Solutions for a Case File in Line with Art. 74(2) ICC-Statute Thus, the only valid argument against the use of the record of the proceedings as a case file is the wording of Art. 74(2) ICC-Statute, basically saying that evidence must be discussed before the Court at trial, which indicates that the material in the record cannot have the weight it should have to qualify as a case file. However, there are solutions to this weight problem. (1) Does Art. 74(2) ICC-Statute Comprise Pre-Trial and Trial Phase? One solution could be to understand “at trial” as embracing both the process before the Pre-Trial Chamber and the process before the Trial Chamber.

129 For a broader definition that includes so-called “Spurenakten” see Lüderssen and Jahn, “§ 147”, in: Erb et al., eds., Strafprozessordnung und Gerichtsverfassungsgesetz, Vol. IV, 26th ed (2007), mn. 41; Stuckenberg, “§ 199”, in: Erb et al., eds., id., mn. 19 f.; Peters, in: Hanack, Rieß and Wendisch, eds., FS Dünnebier (1982), p. 53, 66. 130 Herrmann, 1996 St. Louis-Warsaw Transatlantic L.J. (1996), 127, 139. 131 Cf. Internal expert paper, Measures available to the International Criminal Court to reduce the length of proceedings, para. 69.

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(a) No Qualitative Difference in the Weight of the Evidence At first sight, this solution might be flawed because the Pre-Trial Chamber consists of judges different from the Trial Chamber and Art. 74(2) ICC-Statute – even if embracing both Pre-Trial and Trial Chamber – certainly requires the evidence to be discussed before the Chamber determining the guilt or non-guilt of the accused. However, this would be a circular argument, because it implies that the evidence in the record of the proceedings that had been inspected by the Pre-Trial Chamber had qualitatively less weight than the evidence that would be inspected by the Trial Chamber. As I have demonstrated: this is not the reality.132 Apart from the fact that the pre-trial stage is more than a filter stage and that the confirmation hearing gives a strong presumption on the person’s guilt, why did the Pre-Trial Chambers extensively evaluate evidentiary materials and decided issues such as the admissibility of evidence in accordance to Art. 69 (7) ICC-Statute? The answer is simpler than it appears: Rule 64(1) ICC-RPE lays down that “[a]n issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber”, which clearly shows that the Rules do not distinguish between Pre-Trial Chamber and Trial Chamber in this regard. Thus, the impediment to this solution is not that the Pre-Trial Chamber does not decide upon the guilt of the defendant. (b) Contradiction Between Broad Communication and Weight Instead, the real problem is that there may be a contradiction in obliging the prosecution to communicate all evidence to the Pre-Trial Chamber (which would be registered in the record of the proceedings) and to give this evidence considerable weight. As I have suggested, the purpose of communicating all evidence to the Pre-Trial Chamber is primarily to enable the Pre-Trial Chamber to exercise its powers, such as to order the production of additional evidence or to order the provision of sensitive material to the defence. The rationale behind my preference of broad communication is to solve as many disclosure problems as possible prior to trial, in order to avoid unnecessary stays or other delays of the trial. For this purpose the Pre-Trial Chamber is not supposed to “discuss” every piece of information that is in the record of the proceedings. However, only this information may have the weight that is constitutive for a case file. In other words: the point is not that the information the Pre-Trial Chamber “discusses” (in the sense of Art. 74(2) ICC-Statute) does not have the same weight as it would 132

See supra F. VI. 3. c).

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have in case the Trial Chamber had discussed it (because the Pre-Trial Chamber only determines whether there is sufficient evidence to proceed and the Trial Chamber decides upon the guilt of the defendant). The point is that the Pre-Trial Chamber cannot and shall not discuss all the evidence that is communicated to it for the purpose of exercising its powers because the Prosecution shall be obliged to communicate all evidence, including sensitive information etc. If the Pre-Trial Chamber discussed every piece of such information, it would reveal evidence about whose revelation it was supposed to decide. To quote a famous English proverb: you cannot have one’s cake and eat it too. (2) Separation of the Case Record for the Pre-Trial Phase and the Trial Phase Consequently, it is necessary to separate the case record of the pre-trial and the trial phase to a certain extent. (a) Case Record at the Confirmation Hearing: Emphasis of the Knowledge Component I therefore suggest the following procedure: the prosecution must communicate all evidence – incriminating and exonerating – to the Pre-Trial Chamber, pursuant to Rule 121(2) ICC-RPE. All this evidence is registered in the record of the proceedings. On the basis of this record, the Pre-Trial Chamber exercises its power to – for example – order the production of additional evidence or order additional disclosure. During this time, the defendant’s right to access the record of the proceedings may be subject to restrictions. The procedure known to lawyers in Germany, which only allows the defence counsel to inspect the case file on behalf of the client133 and discuss the content with him or her,134 would not be an option at the ICC, because in contrast to the German counsel, counsel at the ICC are or133

The holder of the right to access the record of the proceedings is – in accordance with Art. 6(3)(b) ECHR – the defendant or the person respectively, cf. Ambos, 115 ZStW (2003), 583, 601. 134 See Laufhütte, “§ 147”, in: Hannich, ed., Karlsruher Kommentar zur Strafprozessordnung, 6th ed (2008), mn. 2 ff. An exception provides § 147(7) 1st sentence StPO: “Where an accused has no defence counsel, information and copies from the files shall be given to the accused upon his application, provided that this is necessary for an adequate defence, cannot endanger the purpose of the investigation, also in another criminal proceeding, and that overriding interests of third persons meriting protection do not present an obstacle thereto.”, translation available at , last visited 28 September 2013.

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ganised in a conflict-solving setting.135 The existence of a Code of Professional Conduct for counsel is irrelevant in that regard.136 The possible restricted access to the record has a twofold justification: first, there are still rules that order disclosure and therefore, second, the purpose of the broad communication is, as I have repeatedly stressed, that the Pre-Trial Chamber can properly exercise its powers, e. g. make disclosure orders. (b) Case Record at Trial: Emphasis of the Weight Component After the confirmation hearing, the record of the proceedings is transmitted to the Trial Chamber pursuant to Rules 130, 131 ICC-RPE. However, only the part of the case record comprising evidence that has been admitted by the Pre-Trial Chamber establishes the case file for the trial. Any additional evidence submitted at the trial stage could then simply be added to the case record. At this point all participants to the proceedings – including the victims – and the judges have unlimited access to the case record. The unlimited access is now possible because sensitive information or information that has to be otherwise protected has either been approved for disclosure or made subject to non-disclosure. The reduced record of the proceedings, in turn, takes Art. 74(2) ICC-Statute and the weight-problem into account and is harmless with regard to the rights of the defendant because ideally there are no remaining disclosure failures by the prosecution as a result of the broad communication prior to the confirmation hearing. This part of my solution is adopted from an approach suggested by De Smet137 and has further advantages: once evidence has been admitted by the Pre-Trial Chamber, it acquires the status of admitted evidence for the remainder of the case. After that, it would no longer be allowed to raise the issue of admissibility or relevance again, except under special circumstances.138 Furthermore, this approach takes into account Art. 68(3) ICCStatute:139 having a case record containing all admitted evidence is extre135

See supra E. IV. 2. c) dd). See supra E. IV. 2. c) dd) (3). 137 De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 435. 138 Rule 64(1) ICC-RPE, see de Smet, ibid. 139 “Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.” 136

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mely important for victims who are allowed to participate in the proceedings.140 This serves as another conceptual legitimisation for a case file, since – as I have repeatedly analysed – the ICC as a whole has a policyimplementing form of procedure and one special goal of criminal justice is the satisfaction of victims.141 (aa) First Obstacle: the Prosecutor’s (Alleged) Duty to Continue Investigations Beyond the Confirmation Hearing Unfortunately, the proposal that the parties shall have unlimited access to the case record at trial may run counter with the decision of the ICC Appeals Chamber on 13 October 2006.142 In this decision, the Appeals Chamber found that the Pre-Trial Chamber “erred in finding that the Prosecutor’s investigation in respect of Mr. Lubanga Dyilo must be brought to an end before the confirmation hearing”143 and held that “the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth”.144 The Appeals Chamber based this decision on Art. 54(1)(a) ICC-Statute, which lays down that the Prosecutor shall, “[i]n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”145 The Appeals Chamber further recognised that, “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing” but this “is not a requirement of the Statute.”146 It therefore accepted the argument of the Prosecutor “that in certain circumstances to rule out further investigation after the confirmation hearing may deprive the Court of significant and relevant evidence, including potentially exonerating evidence – particularly in situations where the ongoing nature of the conflict results in more compelling evidence becoming available for the first 140

De Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 435. See supra IV. 1. b) (2) (b). 142 Prosecutor v. Lubanga, No. ICC-01/04-01/06-568, supra note 279, S. 348. 143 Ibid., para. 49. 144 Ibid., para. 52. This view has been adopted by Trial Chamber IV in the case against Nourain and Jerbo Jamus, see Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, No. ICC-02/05-03/09-140, Prosecution’s Response to the Defence’s Oral Application of 19 April 2011, para. 7 (May 4, 2011). 145 Prosecutor v. Lubanga, No. ICC-01/04-01/06-568, supra note 279, S. 348, para. 52. 146 Ibid., para. 54. 141

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time after the confirmation hearing”. As a consequence, as long as the Prosecution investigates, the defendant or his or her counsel cannot have unlimited access to the case record at trial, since this unlimited access might, inter alia, endanger ongoing investigations. This is the reason why in Germany, for example, complete access to the case file at trial is only permissible because the prosecution stops investigating once the trial commenced.147 Any further investigatory step is done or ordered by the trial judge.148 Similarly, the fact that at the ECCC all parties are granted access to the case file at all times149 is only possible because the Rules do not provide for the parties to be able to take part in the gathering of evidence during the investigative process other than by means of filing investigative requests in which the parties can request for the Co-Investigating Judges to collect evidence on their behalf.150 147

§ 170 StPO: “[Conclusion of the Investigation Proceedings] (1) If the investigations offer sufficient reason for preferring public charges, the public prosecution office shall prefer them by submitting a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there is a particular interest in the notification.” (translation available at , last visited 28 September 2013). Cf. Beulke, Strafprozessrecht, 12th ed (2012), mn. 319; Griesbaum and Schmid, “§ 170”, in: Hannich, ed., Karlsruher Kommentar zur Strafprozessordnung, 6th ed (2008), mn. 1, 2. 148 Cf. § 244(2) StPO: “In order to establish the truth, the court shall, proprio motu, extend the taking of evidence to all facts and means of proof relevant to the decision.” Beulke, Strafprozessrecht, 12th ed (2012), mn. 406. 149 See e. g. Internal Rule 55(6): “The Greffier of the Co-Investigating Judges shall keep a case file, including a written record of the investigation. At all times, the Co-Prosecutors and the lawyers for the other parties shall have the right to examine and make copies of the case file under the supervision of the Greffier of the Co-Investigating Judges, during working days and subject to the requirements of the proper functioning of the ECCC.” 150 Internal Rule 58(6): “At any time during an investigation, the Charged Person may request the Co-Investigating Judges to interview him or her, question witnesses, go to a site, order expertise or collect other evidence on his or her behalf. The request shall be made in writing with a statement of factual reasons for the request. If the Co-Investigating Judges do not grant the request, they shall issue a rejection order as soon as possible, and in any event, before the end of investigation. The rejection order shall state the factual reasons for rejection. The Charged Person shall immediately be notified of the rejection order. The Charged Person may appeal the rejection order to the Pre-Trial Chamber.” and Rule 59(5): “At any time during an investigation, the Civil Party may request the Co-Investigating Judges to interview him or her, question witnesses, go to a site, order expertise or collect other evidence on his or her behalf. The request shall be made in writing with a statement of factual reasons for the request. If the Co-Investigating Judges do not grant the request, they shall issue a rejection order as soon as possible, and

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It is clear that this possibility of ongoing investigations beyond the confirmation hearing is controversial, because neither the ICC-Statute nor the ICC-RPE contain a provision that expressly confers upon the Prosecution the right to continue with the investigation after the confirmation hearing.151 To conclude, however, that this leads to a general permission to conduct investigations beyond the confirmation hearing is an interpretation not in conformity with the structural dimension of the ICC that I outlined in this study. First, even the prohibition on conducting further investigation beyond the confirmation hearing does not mean that there cannot be exceptional circumstances “which might justify subsequent isolated acts of investigation”.152 Second, the requirement to complete the investigation prior to the confirmation hearing “prevents the Prosecution from routinely undertaking additional investigative steps to fill the gaps in the case [. . .] after the charges have been confirmed so that by the time the trial starts, the evidentiary nature of the case [. . .] has substantially mutated to [the accused’s] detriment”.153 This statement of Single Judge Steiner of the Pre-Trial Chamber includes an important structural argument: the finding of the Appeals Chamber that the Prosecution is generally allowed to conduct investigations beyond the confirmation hearing reduces the confirmation hearing to a filter hearing quasi through the backdoor, because the Prosecution could reserve further investigative steps for the post-confirmation stage. I have outlined that the confirmation hearing is much more than a filter instrument and that broad communication of all material prior to the confirmation hearing is necessary – all this would make absolutely no sense if the Prosecution would not at least be compelled to finish its investigations. One could even go further, as a third argument, and say that allowing further investigations deprives the Pre-Trial Chamber of its powers to request the conduct of further information etc.154 Thus, in sum, it would not in any event, before the end of investigation. The rejection order shall state the factual reasons for rejection. The Civil Party shall immediately be notified of the rejection order, and may appeal to the Pre-Trial Chamber.” 151 Cf. Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 130, who expressly states that Art. 69(1) sets up a procedure for amendment and withdrawal of the charges after the confirmation hearing, but does not extend the Prosecutor’s power to investigate beyond the confirmation hearing. 152 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, para. 131; Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-166, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, leave to Appeal, para. 138 (June 23, 2006). 153 Prosecutor v. Lubanga, No. ICC-01/04-01/06-166, ibid. 154 In a similar vein de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 438 (“The combined effect of the decisions by the Pre-Trial Chamber (that the Defence must not submit exonerating evidence at the confirmation stage), the Trial Chamber (that the evidence admitted by the Pre-Trial Chamber has

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be in line with the procedural structure of ICC nor would it be appropriate to generally permit the Prosecution to conduct further investigations beyond the confirmation hearing and therefore obstruct the defence from being able to access the record of the proceedings used as a case file. However, it is also important to note that a permission to conduct further investigation can be cured by assigning the additional (exculpatory) evidence that is found by the prosecution to the general disclosure process. Pursuant to Art. 64(3)(c) ICC-Statute, the Trial Chamber shall “provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.” For this purpose, the Trial Chamber is entitled to convene a status conference to order disclosure.155 Thus, the rights of the defence to have adequate time and facilities for the preparation of the trial could be safeguarded even if the investigation continues beyond the confirmation of the charges.156 This solution is however, because of the flaws just mentioned, only preferable as a compromise. (bb) Second Obstacle: Admitted Evidence Before the Pre-Trial Chamber is Not Automatically Admitted Evidence Before the Trial Chamber Another decision by the Trial Chamber in the Lubanga case imposes an obstacle to the proposal adopted from De Smet, namely, that the evidence admitted by the Pre-Trial Chamber acquires the status of admitted evidence for the remainder of the case. Trial Chamber I states in the Lubanga case: “Generally, there is agreement that subject to the operation of specific provisions such as Rule 68(a) (which provides for the introduction of prior recorded testimony if particular criteria are met), evidence before the Pre-Trial Chamber cannot be introduced automatically into the trial process simply by virtue of having been included in the List of Evidence admitted by the Pre-Trial Chamber, but instead it must be introduced, if necessary, de novo. Therefore, the record of the pre-trial no formal status before it and must be re-submitted) and the Appeals Chamber (the Prosecutor’s right to continue investigating after confirmation of charges) leads to the conclusion that the Pre-Trial Chamber has no significant role in the mise en état of the cases.”) The mise en état of a criminal case is under French criminal procedural law the preparatory phase by which the case is prepared for trial by the juge d’instruction; see Bitti, in: Fischer, Kreß and Lüder, ed., International and National Prosecution (2001), p. 273, 275, citing Guillien et al., Lexique de termes juridiques (1981), p. 278; Cornu, Vocabulaire juridique (1988), p. 505. 155 See Regulation 54 RegCourt. 156 Cf. Prosecutor v. Lubanga, No. ICC-01/04-01/06-568, supra note 279, S. 348, para. 55.

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proceedings (and all the evidence admitted for that purpose) transmitted to the Trial Chamber by virtue of Rule 130 is available mainly to be used as a ‘tool’ to help with preparation and the progress of the case. Nonetheless, the parties (and where relevant, the participants) can agree convenient mechanisms for the introduction of undisputed evidence.”157

Trial Chamber I referred to the Pre-Trial Chamber, which stated that all evidence included in the prosecution and defence Lists of Evidence “shall be admitted into evidence for the purpose of the confirmation hearing, unless it is expressly ruled inadmissible by the Chamber upon a challenge by any of the participants at the hearing”.158 Of course, one could now argue that if one interprets Rule 121(2) ICCRPE as requiring the communication of “all evidence” and not only the evidence the prosecution intends to rely upon at the confirmation hearing, the Pre-Trial Chamber’s decision to admit evidence must consequently not only be valid “for the purpose of the confirmation hearing” but for the entire proceedings. However, this would fail to observe that the communication and admissibility are two different pairs of shoes and serve different functions. The missing possibility to exclude evidence as a disclosure sanction especially shows that – for now – the only measure to prevent disclosure failures is broad communication. Furthermore, I do not agree with the PreTrial Chamber in Lubanga that the Prosecution is obliged only to communicate evidence which it intends to rely at the confirmation hearing, arguing that Rule 121(2) ICC-RPE expressly refers to evidence under Art. 61(3) ICC-Statute, concerning evidence on which the Prosecution intends to rely at the confirmation hearing.159 I agree with the Pre-Trial Chamber in Bemba that the reference to “all evidence” in Rule 121(2)(c) ICC-RPE implies that communication to the Chamber comprises all the evidence disclosed between the parties and that it is not limited to the evidence which the parties intend to rely on or to present at the confirmation hearing.160 However, when “[a]ll evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing” means that all evidence of the Prosecution must be available to the judge at the confirmation hearing, “shall be admitted into evidence for the purpose of the confirma157

Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-1084, Public Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, para. 8 (December 13, 2007). 158 Prosecutor v. Thomas Lubanga Dyilo, No ICC-01/04-01/06-678, Decision on the schedule and conduct of the confirmation hearing, p. 9 (November 7, 2006). 159 Prosecutor v. Lubanga, No. ICC-01/04-01/06-102, supra note 2, S. 34, annex, para. 41. 160 Prosecutor v. Bemba, No. ICC-01/05-01/08-55, supra note 1, S. 34, para. 43.

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tion hearing” consequently means, that evidence can be admitted into evidence for the confirmation hearing only and not also for trial. (c) Adoption of the Double Dossier System Known in Italy A solution to this problem could be to establish a variant of the Italian “double dossier” system. In Italy, a new Codice di procedura penale was introduced on 24 October 1988 to shift away from a centuries old “inquisitorial” to an “adversarial” mode161 and imposed some major changes, inter alia, to separate the trial phase from the investigation phase.162 The aim of these changes was to restructure Italian criminal procedure along adversarial lines and to provide Italian criminal justice with new, efficient procedures to cope with its judicial overload problem.163 In Italy, there are two dossiers: the investigative dossier and the trial dossier. The investigative dossier is set aside at the end of the investigation and is available to the parties, who may use it to prepare for trial or to challenge a witness’ credibility during his or her trial testimony.164 The decision on whether or not to refer the case for trial is made by the judge at the preliminary hearing.165 Prior to rendering this decision, full evidentiary disclosure takes place and the defendant and his counsel acquire a right to inspect the file of the case.166 The preliminary hearing (udienza preliminare) resembles the ICC confirmation hearing: it is held in presence of the parties and a debate between the parties takes place. The prosecutor will summarise the results of his investigation and will summarily indicate the elements collected against the accused that justify his request to refer the case for trial.167 Because at least for the purpose of this preliminary hearing the prosecutor is obliged to investigate both exculpatory and incriminating evidence,168 the hearing is based on the documents contained in the prose161 Cf. Grande, 48 Am. J. Comp. L. (2000), 227; Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 571. 162 Freccero, 21 Am. J. Crim.L. (1994), 345 ff.; Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 586; Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 571; id., 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 312 (“The principle of separation of phases is exemplified by the separation of the dossiers.”). 163 Cf. Grande, 48 Am. J. Comp. L. (2000), 227. 164 Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 586. 165 Grande, 48 Am. J. Comp. L. (2000), 227, 234. 166 Art. 419 CPP, n.2, cf. Grande, 48 Am. J. Comp. L. (2000), 227, 234. 167 Grande, ibid., 241. 168 Although Art. 385 CPP states that “[t]he prosecutor completes every activity necessary under article 326 c.p.p. and also assesses the facts and circumstances favoring the person under investigation”, which appears to resemble Art. 54(1)(a) ICC-Statute at first sight, the prevailing view in Italy points out that under the code

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cutor’s investigative file, which can be inspected by the defendant and his counsel before the hearing.169 The judge at the preliminary hearing, the giudice dell’udienza preliminare, who is different from the trial judge,170 has the power to request further information.171 The preliminary hearing therefore has not only the aim of filtering cases that have to be sent to trial and allowing alternative trial procedures, but also of allowing the defendant to adduce any exculpatory evidence he has collected in order to stop the case from moving forward to trial.172 Compared to, e. g., the U.S.A.173 and Germany174, it is the closest procedure to the confirmation hearing and is based on a dossier. I therefore think that the record of proceedings can be used as such a dossier at the confirmation hearing. In Italy, after the preliminary hearing when the case goes to trial, the trial judge is given a completely new dossier, the trial dossier (fascicolo per il dibattimento),175 to be filled only with the evidence collected during trial,176 which under certain circumstances may also be introduced by the trial judge sua sponte,177 or which the judge can ask the parties to submit on certain specific issues.178 The prosecutor’s file, containing the evidence accumulated during the pre-trial investigation, is no longer available to the trial judge.179 However, although in theory this trial dossier is supposed to be empty when the trial judge receives it, the Codice di procedura penale of 1988 the Italian prosecutor is no longer in charge of collecting evidence on behalf of the person under investigation, because read together with the mentioned Art. 326 CPP, the prosecutor is obliged to collect the evidence in favour of the suspect only for the very limited purpose of deciding whether to prosecute or not. Consequently, subsequent to the determination whether the case is strong enough to go forward to trial, the prosecutor in Italy is under no obligation to look for exculpatory evidence. See generally Grande, 48 Am. J. Comp. L. (2000), 227, 235 with further references. 169 Grande, ibid., 241. 170 Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 571. However, no attempts to create a jury system were made in the new Code, cf. Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 592. 171 Art. 421 bis, 422(1) CPP, cf. Maiwald, Einführung in das italienische Strafrecht und Strafprozessrecht (2009), p. 214. 172 Grande, 48 Am. J. Comp. L. (2000), 227, 242. 173 See supra E. IV. 2. c) bb) (2) and F. VI. 1. 174 §§ 199–211 StPO. See also Beulke, Strafprozessrecht, 12th ed (2012); Kühne, Strafprozessrecht, 8th ed (2010), mn. 609 ff. 175 Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 571, 572. 176 Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 586. 177 Art. 507 CPP; see also Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009– 2010), 297, 315. 178 Art. 506 CPP; cf. Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 591.

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provides some exceptions and allows some records to be removed from the investigative dossier and placed into the trial dossier before the beginning of trial.180 According to Panzavolta, “[t]hese exceptions include evidence which is objectively impossible to reproduce in court, evidence which has been produced by the parties during their confrontation in front of a judge during the investigation (incidente probatorio) because of a serious risk of not reproducing it at trial, records regarding the corpus delicti, and records of prior convictions of the accused. In other words, the magistrate can select from the investigative dossier the few records that the Code allows the judge access to and place these records in the trial-dossier.”181

This is now182 protected by the Italian Constitution: “The law regulates the cases in which the formation of evidence does not occur in an adversary proceeding with the consent of the defendant or owing to reasons of ascertained objective impossibility or proven illicit conduct. All judicial decisions shall include a statement of reasons.”183 Furthermore, this takes into account that despite the transplanted conflict-solving elements the Italian state remains an activist state, which accepts, inter alia, that there cannot 179

Grande, 48 Am. J. Comp. L. (2000), 227, 243. The investigative records of the prosecution may, however, be used to challange the credibility of a witness’s statement during trial, see Arts. 431–433 CPP, cf. Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 312. 180 According to Art. 431 CPP at the end of the hearing in which he has filed a formal charge against the accused or in a hearing appositely called, the judge of the preliminary hearing decides which records meet the exceptions provided by law and therefore should be put in the trial-dossier, see Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 588. 181 Panzavolta, ibid., fn. omitted; Art. 512, 513 CPP; see also Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 572 (“Of course, some exceptions were introduced to the principle that the only legitimate evidence is that produced at the trial, either directly or through the reading of the records placed in the trial dossier. In cases where the witness had died or it was impossible to call him to testify, the Code of 1988 granted the right of using prior statements of the witness. Another exception was introduced for cases where the accused remained silent at trial once the other party had requested his examination.”); id., 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 312, 313. 182 The Constitution had to be amended for that purpose, see infra F. II. 2. 183 Art. 111(5) Italian Constitution. Translation available at , last visited 28 September 2013. The entire Art. 111 Italian Constitution is also reproduced infra G. IV. with fn. 234, S. 540. Following a couple of decisions coming from the Constitutional Court, in August of 1992, a bill was passed that increased the number of exceptions to the rule against the admissibility of out-of-court evidence. After the passage of the bill, the parties could introduce records of other proceedings at trial as well as decisions made in collateral cases. Also, the use of out-of-court statements of witnesses who had not been present at trial was expanded; see generally Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 599.

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be equality between the parties.184 As I have previously mentioned, that the equality of arms received attention in the Constitution shows that this principle is not constitutive for the Italian process, but that policy-implementing goals – being to reduce the caseload at Italian Courts and unfair treatment of the defendant that developed over the years185 – made the inclusion of that principle necessary. (d) The Double Dossier System Supplemented by the Adoption of Internal Rule 87(3) of the ECCC Internal Rule I therefore regard this as a good option for the ICC process, because in international criminal proceedings there is an imminent risk that the timeframe between the first contact with the witness and his or her testimony at trial is so large, that the witness will not be available or will change his or her story because of memory loss.186 Those kinds of situations may occur with far greater frequency at the ICC than in domestic proceedings.187 This is demonstrated by Rule 68 ICC-RPE, which allows the Trial Chamber to admit the prior recorded testimony of the witness as documentary evidence when both parties have had the opportunity to question the witness during the taking of testimony (not necessarily before a judge) and use its discretion to freely assess all the evidence, including imposing further requirements such as the corroboration of the material in question.188 I am confident that the suggested Italian double dossier system could indeed work at the ICC, contrary to the situation in Italy, where practitioners were reluctant to apply parts of the new Code due to cultural reasons.189 In line with Art. 74(2) ICC-Statute, which provides that evidence must be “discussed” before the Court at trial, the evidence which remained in the case record for the purpose of the trial should either be treated as prior re184

Cf. Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 313 (“In the criminal process, however, the equality of arms of the parties cannot be perfectly achieved, because the prosecutor is a public party who acts in the general interest for the implementation of justice, having coercive powers and police assistance at his disposal.”). 185 Supra F. II. 2.; cf. Grande, 48 Am. J. Comp. L. (2000), 227. 186 Cf. de Smet, in: Stahn and Sluiter, eds., Emerging Practice (2009), p. 405, 427 (“It is well-known that witness recollection of relevant detail diminishes considerably over time.”). 187 Ibid. 188 Combs, in: Schabas and Bernaz, Routledge Handbook of International Criminal Law (2011), p. 323, 327; Calvo-Goller, The Trial Proceedings of the ICC (2006), p. 272. 189 In more detail see infra G. IV.

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corded testimony pursuant to Rule 68 ICC-RPE or, quasi as ultima ratio, be summarised, read out, or appropriately identified in court. This basically adopts the approach of Internal Rule 87(3) of the ECCC Internal Rule. By making clear that evidence in the trial case record, which came from the record of the confirmation hearing, does not automatically form part of the evidence in the case, the weight component is taken into account. Regulation 54 RegCourt allows a status conference to be held about these evidentiary issues. ff) Conclusion To introduce the proposed double dossier system into the ICC procedure would be structurally the logical consequence and procedurally appropriate to implement the goals of international criminal justice. There are elements in the ICC proceedings that indicate a hierarchical structure, such as the form of appellate review or the form of the confirmation hearing. This structure needs a tool that “integrates all segments into a meaningful whole”, as Damaška put it. The broad rights of appeal before the ICC, which are strong indications of a hierarchical ideal, especially require such a tool. Moreover, the double dossier would provide both Pre-Trial Chamber and Trial Chamber with the necessary knowledge to exercise their powers and to manage the proceedings to the extent that it reduces delays and costs. Renowned scholars recognise that adversarial methods of proof without a managing judge cause unpredictability, uncertainty and – above all – costliness.190 It is not surprising that the first criticism of the new Italian Code of 1988, which introduced more conflict-solving elements, was made by prosecutors and judges, who complained about the “perceived loss of efficiency”.191 Most interestingly, even in the U.S.A. some scholars have called for judicial involvement in controlling the prosecutor’s compliance with the obligation to disclose exculpatory evidence pursuant to the Brady rule.192 It is also recognised that the constant claim that the other participant violated procedural rules causes delays and high costs.193 For many 190 See supra A. I.; C. I. Cf. Kagan, Adversarial Legalism (2003), p. 4; Bentham, in: Bowring, ed., The Works of Jeremy Bentham, Vol. V (1792/1843), pp. 231, 235; see also Hodgson, 35 N.C.J. Int’l. & Comm.Reg. (2010), 319, 330: “What is perhaps appealing about a more inquisitorial procedure is its perceived efficiency. While adversarialism favors lengthy and therefore expensive trials, with opportunities to challenge live evidence, inquisitorialism avoids the duplication of evidence by allowing the admission of written evidence gathered during the pre-trial investigation.” 191 Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 573. 192 Capra, 53 Fordham L. Rev. (1984–1985), 391, 427–428; Brown, 93 Cal. L. Rev. (2005) 1585, 1636–1638.

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observers, international criminal proceedings are therefore too costly, too long and no longer politically or financially viable.194 Consequently, the Secretary-General of the United Nations appointed an expert group to review the efficiency of the operation of the International Tribunals and make recommendations for improvement. With regard to the introduction of a case file, the expert group recommended: “A possible means of reducing the length of trials which the Trial Chambers might consider, especially since it appears to be contemplated by ICTY rule 94 ter, is encouragement of the use of prepared direct testimony by both expert and other witnesses. Instead of a witness spending days in court giving direct testimony, it would be submitted in advance, in written question and answer form, and the witness would later appear in court. The opposing party could then object to written questions and cross-examine the witness. An analogous proposal also merits consideration. The proposal would involve preparation of a dossier by the prosecution containing witness statements, with comments by the defence, to permit a selection of relevant witnesses by the Trial Chamber and admission of witness statements as documentary evidence. Were this proposal adopted, some additional translation work would probably be required and additional work by the prosecution team would also be necessary.”195

One might now expect the Prosecutor to object to this proposal. However, this was not the case. Following the release of expert group’s report, the General Assembly requested that the Secretary-General obtain comments from the International Tribunals on the experts’ recommendations. The Prosecutor expressly supported the dossier-approach by stating: “The Prosecutor considers that the key to reducing the length of trials is that the judge should be fully informed in advance about the case. In order to manage the proceedings efficiently judges should have the benefit of a complete dossier of evidence. On this basis, in agreement with the parties, the judges are then well placed to decide which witnesses need to be heard and which evidence can be admitted in writing or agreed by other means. [. . .] These are all complex issues and the Expert Group is right to highlight them in the report.”196 193

See generally Boas, The Miloševic´ Trial (2007), 131 ff. It is worthwhile recalling in this context that the Chamber needed almost a year to prepare the opening of the trial (cf. Prosecutor v. Lubanga, No. ICC-01/04-01/06, supra note 10, S. 42, para. 29, setting the commencement date for 31 March 2008). 194 Higgins, 5 J. Int’l Crim. Just. (2007), 394, 394. 195 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 22 November 1999, UN Doc. A/54/ 634, para. 88 and recommendation 12. 196 Comments on the report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, 27 April 2000, A/54/ 850, para. 39, 44.

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Taking this into account, the record of the proceedings should be used as a double dossier. The restrictions proposed present a good compromise and – above all – make it possible to see the record of the proceedings as a double dossier without changing the Rules.

IV. Summary and Concluding Remarks At the outset of this study, I described and analysed the Chambers’ different approaches to disclosure and communication and have now concluded that broad communication and the establishment of a case file is the logical consequence and preferable for many reasons. However, the question of whether to pursue broad communication or not was not the only question I asked at the outset. Another question of no less importance was how to deal with the fact that judges at the ICC decide important procedural questions differently. Because the ICC Statute relies on the “constructive ambiguity” of the legal texts,197 it became en vogue to decide procedural matters on a case-bycase basis.198 The advantages of this case-by-case approach are apparent: all legal actors retain their flexibility and the application of the statute becomes much easier. With regard to disclosure/discovery and communication, one could go even further and ask: why should a rule be written to deny or grant discovery for all criminal cases? It is possible, for example, either to presume that discovery is to be permitted, but to allow the government to oppose it in a particular case, or to presume that it is not to be permitted absent a showing by the defendant of specialized need.199 However, it is obvious that this approach has dangerous side effects, which become worse in the context of an international (criminal) trial. If a trial participant cannot predict to a certain extent the answer of a procedural question, he or she will of course try everything to ensure that this question is answered in his or her favour. This unpredictability and uncertainty will increase delays and costs of international criminal trials, especially considering the absence of a precedent. Be that as it may, that unpredictability and uncertainty exist at the ICC does not automatically mean that this is unwelcome and has to be changed. Although every legal system today promotes a certain degree of predictability, it has been long acknowledged that legal systems familiar with the Civil Law tradition are said to lean more towards consistency and predictabil197

Safferling, International Criminal Procedure (2012), p. 112. See supra C. 199 See Saltzburg and Capra, American Criminal Procedure, 9th ed (2010), p. 975. 198

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ity,200 while those systems familiar with the Common Law tradition prefer a case-by-case approach, causing unpredictability that is only cured by precedent to a certain extent.201 Embracing these cultural elements too,202 Damaška’s concept distinguishes between logical legalism that is in-built in a hierarchical model with policy-implementing justice, while judges of coordinate officialdom and conflict-solving justice apply a pragmatic legalism. This distinction is – again – based on ideal models and recalls the “internal dispositions of legal actors” Langer described.203 The decisional paradigms of pragmatic legalism “are in the form of examples telling how concrete life situations should be treated”, because pragmatic legalism “views social life as being so complex and fluid that decisional standards are targeted to narrow areas, referring to concrete sets of facts.”204 The approach the decision maker who applies a pragmatic legalism conducts can be described as follows: “Confronted with a case – a life situation – the decision maker compares it to the standard example, and the closer the similarity between the two, the greater will be the guiding force of the standard.”205 Such standards, states Damaška, “cannot be detached from the pragmatics of their application to specific cases. Indeed, they are so deeply enmeshed in detail that a relatively minor change in circumstance makes standards only partially applicable.”206 Therefore, while Civil Law is said to be dominated by scholars and academic lawyers, Common Law is dominated by “practitioners turned judges”.207 Merryman, for instance, claims that the Common Law is the law of judges and the Civil Law is the law of legal scholars.208 200

Kagan, Adversarial Legalism (2003), p. 4. Ibid.; Bentham, in: Bowring, ed., The Works of Jeremy Bentham, Vol. V (1792/1843), p. 231, 235. 202 About the cultural elements in Damaška’s concept see supra E. III. 4. c) dd). 203 See in more detail supra E. III. 3. c) ff) (2) (b). 204 Damaška, Faces of Justice (1986), p. 22; see also Swoboda, Verfahrens- und Beweisstrategien (2013), p. 163. 205 Damaška, ibid. 206 Ibid. 207 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 41. 208 Merryman and Pérez-Perdomo, Civil Law Tradition, 3rd ed (2007), p. 60 (“This is what we mean when we say that legal scholars are the dominant actors of the civil law. Legislators, executives, administrators, judges, and lawyers all come under the scholars’ influence. Scholars mold the civil law tradition and the formal materials of the law into a model of the legal system. They teach this model to law students and write about it in books and articles. Legislators and judges accept their ideas of what law is, and, when legislators and judges make or apply law, they use concepts the scholars have developed. Thus, although legal scholarship is not a formal source of law, the doctrine carries immense authority. [. . .] In the United States, where the legislature is also theoretically supreme, there is a well-known saying (originated by a judge) that the law is what the judges say it is. This is, properly 201

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Figure 34: Standards of Decisionmaking According to Damaška

The ideal decisional standards in a coordinate structure of authority combine “common sense and prudence” with “ethical, political or religious norms”, which Damaška calls “substantive justice”.209 This substantive justice has several effects: first, it “cannot aspire to the degree of firm predictability that could be achieved if technocratic or legalistic models of decision making were adopted. Nor is such predictability likely to be desired in an apparatus composed of horizontally arranged lay officials.”210 Second, there are “complex technical rules regulating the conduct of trial protagonists before the lay decision maker.”211 Nevertheless, “[t]he official presiding over proceedings can refuse to enforce them if he thinks it best under the circumstances.”212 Although in this setting a code exists, the judges do not commit themselves to a stable approach to statutory interpretation.213 By contrast, logical legalism is “partial to sweeping ordering schemes, and attached to standards that are more context free and therefore more understood, a realistic statement of fact. Judges have to decide how to characterize legal problems presented to them, which principles of law to apply to the problems, and how to apply them in order to arrive at a result.”). 209 Damaška, Faces of Justice (1986), p. 27. 210 Ibid., p. 28. 211 Ibid., p. 64. On the general technical component see p. 43: “[T]echnical aspects of the common law were deeply immersed in the pragmatics of litigation and responsive to concrete particulars of cases. In other words, the flavor of the technical component was closer to pragmatic than to logical legalism.” About the technical aspects of the criminal process in the U.S.A., especially with respect to criminal evidence, see Swoboda, Verfahrens- und Beweisstrategien (2013), pp. 161 f. 212 Damaška, Faces of Justice (1986), p. 64. 213 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 41.

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general: a network of interlocking principles and rules tends to be created.”214 Decisions made under this approach “cannot take into account many concrete aspects of the case that the pragmatic orientation easily accommodates.”215 The origin of this approach is “usually attributed to the rise of Italian universities in the late eleventh centuries” and characterised by “the search for the right solution” that implies “reliance on textual analysis and logical penetration of its meaning.”216 In other words, law was regarded “as a self-contained, or closed system – a ‘science’.”217 Consequently, Civil Law lawyers see interpretation as a scientific exercise.218 With regard to procedural regulation, Damaška stresses that “where the spirit of logical legalism reigns, it is considered ideal that the legal process be regulated by an internally consistent network of unbending rules.”219 Thus, from the perspective of rigid hierarchical organisation, there would be no point in having a regulation that the official presiding over proceedings can refuse to enforce if he thinks it best under the circumstances.220 As Charles H. Koch describes it: “Civil law judges move, but according to well established rules, whereas common law judges often see statutory language as providing a mere springboard from which they create the law for a specific case.”221 This cultural distinction between logical legalism and pragmatic legalism is not a mere theoretical exercise but has important practical implications. Situations where procedural rules are transplanted into a different structural setting are not rare. In Italy, for instance, this was basically the reason why the reform of 1988 did not work.222 The drafters of this reform operated under the presumption that fixing the written laws was sufficient to implement the change.223 They did not only transplant conflict-solving elements into a hierarchical structure of authority (this is actually possible, as Damaška shows),224 but they also disregarded that some conflict-solving ele214

Damaška, Faces of Justice (1986), p. 22. Ibid. 216 Ibid., p. 31. 217 Ibid. 218 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 43. 219 Damaška, Faces of Justice (1986), pp. 54, 55. 220 Ibid., p. 64 with fn. 29, citing Drost, Das Ermessen des Strafrichters (1939), p. 88: “All is lost if the judge wants to be smarter than the statute.” 221 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 43. 222 Cf. Marafioti, in: Jackson, Langer and Tillers, eds., Essays in Honour of Damaška (2008), p. 81, 81. 223 Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 596, 597. 224 Cf. Damaška, Faces of Justice (1986), pp. 205 ff. The best example that this can work indeed is the German civil procedure. 215

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ments are much harder to implement without a coordinate structure.225 However, the turn to the accusatorial process was not initially welcomed, especially by judges, since the majority of them were familiar with the traditional inquisitorial system.226 Recall what Langer has said: “An inquisitorial structure of interpretation and meaning gives the judge broad investigatory powers while giving more limited powers to the prosecution and defence. At the same time, though, any attempt to change this structure of interpretation and meaning will usually generate a reaction by the judges who protest against being disempowered through a new procedural structure of meaning.”227 It is said that the fault of the 1988 Italian codification was that it had not been adequately prepared for in cultural terms.228 As Illuminati describes it: “Italian judges were accustomed to having an almost unlimited power to introduce evidence, to having full knowledge of the investigative dossier and the freedom to use any document from that dossier for the decision. Judges conceived of their role as one of seeking the truth, where they were supposed to search in all possible ways and with all the permitted means in order to accomplish their duty. Judges were accustomed to being the active protagonists of the trial; the focus now shifted to the parties’ initiatives and arguments.”229

The judges not only continued applying a style of legal thinking which is known to a hierarchical and policy-implementing setting, but they were also confident that this legal thinking was far better than the way the new reform prescribed it.230 The result was, as Elisabetta Grande describes it, “that the transplant ended up being little more than an acoustic imitation, in which the mixture of the new ‘adversarial’ elements with the old non-adversarial ones produced effects diametrically opposed to those expected: the defendant in the Italian legal system is today less protected against abuses of power than he was prior to the introduction of common law adversarial 225

Grande, 48 Am. J. Comp. L. (2000), 227, 232 (“What is surprising is that it has been thought possible to import the adversary model by importing just some of its features and by transplanting them into a non-adversary institutional context.”). 226 Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 309. 227 Langer, 45 Harv. Int’l L.J. (2004), 1, 14 with further references. See generally supra E. III. 3. c) ff) (3). 228 Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 573; see Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 609 (“After analyzing the factors most often cited as leading to the downfall of the accusatorial system, it seems clear that the breakdown in the system was almost exclusively due to cultural factors.”). 229 Illuminati, ibid. 230 Cf. Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 609 (“The magistrates not only kept thinking in terms of the old inquisitorial ideology, but they also strongly believed that such ideology was far better than the new one. This failure to adapt to the new ideology was the primary cause for the fall of the adversarial-accusatorial system.”).

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elements.”231 Consequently, in 1992, several Constitutional Court decisions overturned the basic structure of the system and the relationship between the investigative and the trial stage.232 This, however, did not necessarily make things better and, therefore, the parliament tried to re-establish the conflict-solving structure by amending Art. 111 of the Constitution,233 introducing the fair trial principle and, in particular, the principle of parties’ confrontation in the collection of evidence.234

231

Grande, 48 Am. J. Comp. L. (2000), 227, 232, fn. omitted. Illuminati, 35 N.C.J. Int’l L. & Com. Reg. (2009–2010), 297, 309; see also id., 4 Wash. U. Global Stud. L. Rev. (2005), 567, 574 (“[T]he strongest attack on the Code came in 1992, when the Constitutional Court and the legislature struck down the accusatorial construction.”); see also Panzavolta, 30 N.C.J. Int’l L. & Com. Reg. (2004–2005), 577, 600 (“By the end of the summer of 1992, the accusatorial system of criminal procedure had been definitively weakened. All that remained was a confused system, one which permitted a vast use of the information gathered unilaterally by the prosecutor during his investigations but, at the same time, did not grant the judge all the powers for seeking ‘real truth’ as the investigative judge had under the Code of 1930.”). 233 Art. 111 § 4 of the Italian Constitution, translated and reprinted in Wolfrum and Grote, eds., Constitutions of the Countries of the World (2009); the law added five sections to Article 111 of the Constitution with the goal of fair trial reform. 234 Constitutional Law n.2 of Nov. 23, 1999, Gazz. Uff. n.300 of 23 Dec. 1999. Art. 111 now reads: “Jurisdiction is implemented through due process regulated by law. All court trials are conducted with adversary proceedings and the parties are entitled to equal conditions before an impartial judge in third party position. The law provides for the reasonable duration of trials. In criminal law trials, the law provides that the alleged offender shall be promptly informed confidentially of the nature and reasons for the charges that are brought and shall have adequate time and conditions to prepare a defence. The defendant shall have the right to cross-examine or to have cross-examined before a judge the persons making accusations and to summon and examine persons for the defence in the same conditions as the prosecution, as well as the right to produce all other evidence in favour of the defence. The defendant is entitled to the assistance of an interpreter in the case that he or she does not speak or understand the language in which the court proceedings are conducted. In criminal law proceedings, the formation of evidence is based on the principle of adversary hearings. The guilt of the defendant cannot be established on the basis of statements by persons who, out of their own free choice, have always voluntarily avoided undergoing cross-examination by the defendant or the defence counsel. The law regulates the cases in which the formation of evidence does not occur in an adversary proceeding with the consent of the defendant or owing to reasons of ascertained objective impossibility or proven illicit conduct. All judicial decisions shall include a statement of reasons. Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom pronounced by ordinary and special courts. This rule can only be waived in cases of sentences by military tribunals in time of war. Appeals to the Court of Cassation against decisions of the Council of State and the Court of Auditors are permitted only for reasons of jurisdiction.”, translation avail232

IV. Summary and Concluding Remarks

541

Having outlined those truly ideal characterisations of different cultural approaches, I repeat the question asked in a previous chapter: does the ICC system provide for strong certainty, predictability and consistency?235 This, as I have pointed out, depends on the structure of authority of the ICC. While the question had to remain unanswered in earlier parts of this analysis, I can answer it now. The ICC itself is mainly coordinate, but it consists of three organs that are partly hierarchical in nature and has several professional officials.236 The judiciary at the ICC has hierarchical features that, in my view, prevail vis-à-vis the coordinate features.237 I also recognised a qualitative domination of hierarchical elements, such as the existence of an Appeals Chamber and the professionalisation of decision makers.238 Furthermore, both the ICC as a whole and its judiciary appear in a policyimplementing setting,239 which better fits into the hierarchical and the coordinate structure of authority.240 Therefore, I conclude that hierarchical elements dominate at the ICC, which means that it would not be appropriate to say that predictability and consistency do not play an important role in the ICC process. On the contrary, taking into account the many hierarchical and policy-implementing features, it would be the logical consequence if judges leaned more towards logical than pragmatic legalism. This would promote consistency and predictability. When in Italy it was observed that after the reform of 1988 judges played an active role because of the hierarchical setting, and therefore were accustomed to having an almost unlimited power to introduce evidence, to having full knowledge of the investigative dossier and the freedom to use any document from that dossier for the decision,241 the opposite phenomenon occurs at the ICC: judges within a hierarchical setting and with a policy-implementing form of procedure still do not adapt their legal thinking and approach to the decisional standards of this setting. able at , last visited 28 September 2013. 235 See supra C. 236 Supra E. IV. 1. a). 237 Supra E. IV. 2. a) aa) (3) and 3. 238 Supra E. IV. 1. a). and 2. a) aa) (3). 239 Supra E. IV. 1. b) and 2. a) bb). 240 Damaška, Faces of Justice (1986), p. 185: “The combining of hierarchical organization with policy-implementing justice is in many other respects quite successful. Where the activist state strives toward utilitarian goals, this is scarcely surprising: hierarchical resolve and bureaucratic efficiency offer formidable instruments for the realization of state programs. Once higher authority has formulated a policy, the consistent application of that policy is relatively sure; impasses can be resolved relatively quickly and cleanly.” 241 Illuminati, 4 Wash. U. Global Stud. L. Rev. (2005), 567, 573.

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The hierarchical setting and policy-implementing form of justice has, in turn, also an influence on the answer to the second question I asked in a previous chapter: is a specification of how a broad contextual interpretation should be conducted supposed to provide the judge with an interpretative method to find the correct and definitive answer? Or is a specification of how a broad contextual interpretation should be conducted supposed to provide the judge with methods to justify why he chose one answer over others? I have concluded that Damaška’s concept is suitable for a broad contextual interpretation that includes the entire procedural structure and not only a couple of provisions.242 Therefore, the question is now whether the contextual interpretation, including Damaška’s concept, should provide the judge with a tool to find the right answer or to justify the correct answer. In case of the latter, inconsistency and unpredictability would find its way into ICC proceedings through the backdoor (the front door is already closed because of the hierarchical and policy-implementing features that include logical legalism). As I have pointed out, the question of whether to seek the right answer or only one correct answer depends – again – on the legal tradition.243 As Damaška states: “The Continental will seek the right solution; his counterpart will display a liberal agnosticism about ‘right’ answers, coupled with a procedural outlook. He will be primarily concerned about good arguments for a case.”244 Therefore, the commitment of ICC judges towards certainty, predictability and consistency depends on the legal thinking, the “law in minds” of the judges. This legal thinking depends – in turn – on the structure of authority and form of justice of and at the ICC. In other words: while in domestic legal systems the method of legal thinking is rather fixed (because it is influenced by the legal tradition that has evolved over centuries and shaped the minds of the individuals), at the ICC level the method of legal thinking must be determined first (because a legal tradition did not grow over centuries but must be created).245 In concreto: whether varying decisions on the same disclosure problem are permissible or not depends on how the ICC procedure is systematised, because it influences the understanding of certain concepts. I have undertaken to conduct a thorough and comprehensive analysis of the ICC and its procedure and tried to resist the temptation of concluding that the ICC is simply an organisation that blends several traditions and procedural systems to a unique body of rules that is called “sui generis” or that the ICC procedure is adversarial in nature, because the ICC judges al242 243 244 245

Supra E. III. 4. c) dd). Supra E. III. 4. c) dd) (3). Damaška, 116 U. Pa. L. Rev. (1968), 1363, 1375. See in more detail Campbell, 26 LJIL (2013), 155 ff.

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legedly favoured an adversarial approach in certain cases.246 Both approaches are flawed: the former ignores that it is still possible to categorise a system as predominantly one theoretical type or its opposite; the latter is a circular argument in even two ways: first, it suggests that a procedural mode providing the judges with a context within certain procedural questions can be decided is determined by the respective decisions of these judges. In other words: The finding or justification of a decision by the interpretation of legal norms is reduced to absurdity, since not the legal norms but the (later) decision itself constitute the judge’s decision. This encourages inconsistency and unpredictability. Second, the decision to put the determination as to what type of procedure an organisation may have in the hands of the decision maker is per se a Common Law feature, i. e. a decision in favour of a certain procedural type. Thus, the question as to what mode of procedure the ICC has is already answered by its methodological approach. If one has to make a decision on the characterisation of the ICC and its process, it is possible to identify certain features and categorise them. For this categorisation I chose Damaška’s concept out of the many concepts and categories that have been created over the years. All these categories have persuasive elements, but it seems that their users hesitate to apply them with all consequences to the ICC and its process. Of course, there is only a fine line between the lack of courage and a healthy sense of reality. Who knows whether the categorisation of the ICC and its process is a tedious act of courage or a high road to perdition? Be that as it may, in analysing the ICC and its process, in order make assumptions about the disclosure and communication questions asked at the outset, I have identified a strong policy-implementing setting. Whether it is the international organisation of the ICC itself or its judiciary, the OTP and (at least in part) the counsel for the defence: the policy-implementing form of justice and procedure is obvious. On the contrary, the structure of authority was another matter. It was certainly not easy to identify the structure of authority and a clear picture was almost impossible to draw. Instead, I had to make choices. In my view, while both the OTP and counsel for the defence reveal similarities with the coordinate ideal, the judges as decision makers and the ICC as an international organisation demonstrate similarities with the hierarchical ideal. Because the latter conclusion is more important for the question of whether judges at the ICC should – in case of a procedural 246 See Swoboda, Verfahrens- und Beweisstrategien (2013), p. 203 with fn. 324, who argues that the judges in the cases against Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui and Jean-Pierre Bemba chose an adversarial setting.

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problem – seek the right answer, the hierarchical structure requires the judges to indeed seek for the right answer by conducting, inter alia, a thorough and broad contextual interpretation. The identification of a broad contextual interpretation is both the basis and the consequence of the main results of this study: the legal culture to seek for the right answer requires a general methodology to interpret statutes. This methodology promotes consistency and resolves issues of vagueness and ambiguity.247 It also entails the realisation of the policy or other immediate purposes of statutes,248 and therefore ensures the implementation of the goals of international criminal justice. A hierarchically structured court usually secures this policy-implementing effect of a general methodology. It is simply not enough to see statutory language as providing a mere springboard from which the law for a specific case is created, as a legal thinking within the Common Law tradition suggests.249 A “panoramic view”250 is necessary, i. e. a higher level of abstraction instead of finding argumentative patterns of legal reasoning.251 Only a broad contextual interpretation and an attitude concerned with the right answers will ensure predictability and certainty at the ICC – unless some day the structural and procedural setting is changed. In this study, I have asked to what extent the OTP has to disclose and communicate exculpatory material. Adopting Langer’s approach to analyse plea bargaining mechanisms, I categorised the ICC-process and identified the position of disclosure and communication within that process, before I came to the conclusion that it would better fit into the existing ICC-process if disclosure had to be conducted by way of open-file-disclosure and that every piece of information that is disclosed between the parties had to be communicated to the Chamber and saved in the record of proceedings. This record of the proceedings must serve as a double-dossier: one dossier for the pretrial stage and one for the trial stage.

247

See supra E. III. Summers, Form and Function in a Legal System (2006), p. 242. 249 Koch, Jr., 25 Mich. J. Int’l L. (2003–2004), 1, 43. 250 Damaška, 116 U. Pa. L. Rev. (1968), 1363 K, 1367 ff. 251 In his article about legal training, Mirjan Damaška expressed the contrast between the two mentioned traditions when he wrote: “There is a significant lack of the argumentative approach towards the law [in Continental legal training] which permeates the atmosphere of law schools in this country. The moving spirit of analysis is not the desire to find the best argument for a proposition, but rather the quest for the ‘right’ answer to the problem at hand. Conspicuous by its absence is the intertwining of legal and nonlegal arguments so common here.”, see Damaška, 116 U. Pa. L. Rev. (1968), 1363, 1369; see also Nagle, 29 Stetson L. Rev. (1999– 2000), 1091, 1094. 248

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Subject Index ABA Formal Ethics Opinions 329 ABAs Model Rule of Professional Conduct 329 abbreviated proceedings 269 Abu Garda 34–40, 78–82, 84, 86, 89– 91, 411 accurate historical record 216–218, 221–222, 227, 243, 249, 302, 307, 499, 509 accusatorial 118, 120–121, 125, 131– 132, 144, 155, 166, 176, 190, 497, 519, 539–540 activist decision maker 239 activist state 146, 208, 220, 225, 240, 316 administrative judge 232, 504 admission of guilt 125–126, 301 adversarial 117 analytical 165 analytical jurisprudence 167–171 anti-inquisitorialism 121 Appeals Division 233 arraignment 231, 272, 275–276 arrest 34, 117, 134–135, 151, 155, 159, 256, 269, 273–274, 278, 282, 312, 320, 344, 413, 429, 509, 525 Assembly of States Parties 205, 466– 467 Audit Committee 467 average type 181 bad character evidence 271 balancing approach 457 Banda Nourain 78–79, 419 Beibringungsgrundsatz 154

Bemba 34–40, 77–81, 83–84, 87–88, 90–91, 97, 129–131, 312, 314, 379, 410–413, 508, 510, 528, 543 Brady 83, 248, 265, 268, 310–311, 322–326, 328–331, 344, 347, 350– 352, 357–358, 377–378, 411–412, 425–427, 430–436, 452, 477, 479, 481–485, 488, 508, 510, 513, 515, 533 bulk 36, 45, 77, 238, 241, 249, 384, 412, 418, 499, 510 bureaucratic model 141 calling to account 143 case-by-case basis 41, 166, 391, 535– 536 case file See dossier 512 case record 248, 266–268, 517, 522– 525, 532 CCTV 271, 440 centrifugal tendencies 237, 499 certainty 43, 51, 63, 65, 69–70, 110, 112, 196–199, 444, 519, 541–542, 544 Chambre de lInstruction 416 change a culture of impunity 216, 226 charge bargaining 44, 116, 123, 138, 155, 238, 248, 259–260, 269–270, 274, 276, 297, 300–302, 304, 312, 344, 353, 392–393, 396, 406, 409– 410, 415, 417, 423, 430, 479, 502, 530–531 Civil Law 32, 45–46, 50, 62, 72, 101, 105–110, 112–113, 118–121, 129, 133, 144, 146, 152–154, 157, 159– 160, 166, 188, 192, 195–198, 200, 229–231, 242, 244–245, 248–249, 253, 285, 292–293, 298, 302, 304– 305, 317, 320, 499, 504, 508, 511, 535–536, 538

Subject Index Coalition for the International Criminal Court 474 Code for Crown Prosecutors 259–260 Code of Professional Conduct for Counsel 296, 471 coercive measures 256 coercive power 256 committal hearing 247, 286, 404 committal proceedings 270, 286, 401– 405, 407, 417, 489 Committee on Budget and Finance 233, 467, 497, 506 Common Administrative Services Division 207 Common Law 32, 44–46, 50, 55–56, 60, 62, 71, 101, 105–108, 110–113, 118–121, 133, 142, 144, 152–153, 157–160, 166, 188, 192, 195–197, 230–232, 242, 244–245, 248–249, 261, 285, 293, 298, 303, 305, 317, 332, 335, 338, 343, 352–353, 369, 371, 380, 382, 428, 499, 501, 503– 504, 508, 515, 517, 536, 543–544 communication 28–29, 31, 33–34, 36– 37, 39, 46, 71, 77, 80–82, 84, 86–88, 90–92, 96, 113, 123, 129, 280, 288, 305, 310, 389, 408, 412, 458, 474, 503, 508–510, 521, 523, 526, 528, 535, 543 confirmation hearing 34–36, 40, 77, 79–85, 87, 89–91, 97–98, 129, 245, 247, 250, 282, 287, 306, 347, 355, 358–359, 377–380, 391, 402, 408– 409, 411–419, 421, 452, 499, 501, 508–510, 515–516, 521–524, 526, 528–529, 533 conflict-solving 185–186, 220, 223, 225, 242, 290, 296, 306–307, 318, 477, 485, 489, 493, 501, 510, 538 constructive ambiguity 41, 535 coordinate ideal 145, 207, 251, 253– 254, 268, 285, 287–288, 290, 543 coordinate officialdom 27, 29, 145, 201, 206, 232, 235, 536

595

coordinate procedure 284 correct answer 76, 96, 112, 197, 199, 542 corroboration 290, 419, 532 counsel 118, 129, 136, 150, 152, 155, 206, 217, 224, 241, 248, 250, 273– 274, 278–279, 287, 290, 292–297, 299, 315, 319–321, 333, 351, 367, 372–373, 382, 392, 394, 398, 403, 409, 416, 422, 426, 442, 471, 474, 482, 491, 494, 496, 502, 514, 522, 525, 529, 540, 543 CPIA 1996 271–272, 332, 335–342, 353–355, 357, 366–367, 371, 373, 402, 438–440, 444, 486, 489 CPS 259, 269, 368 Crime Control Model 133–136, 138– 139, 176 Criminal Appeal Act 446–448 Criminal Justice Act 2003 259, 269– 270, 272–273, 332, 337–341, 354, 357, 366, 371, 402, 486, 489 criminal procedure 115 Crown Court 270–273, 301, 336–337, 367–368, 401–403, 405–406, 417, 421, 440–442, 445, 448, 486 Crown Court Protocol on Disclosure 337 Crown Posecutor 269 customary law 48–49, 67, 71 day in court 268 day-in-court trial 268, 285 defensive model 150, 183, 185 descriptive 165, 172, 177 deterrence 137, 211–216, 306, 505 Diplock Trials 233 Director of Public Prosecutions 273 disciplinary measures 465–466, 469– 472, 474–476 disclosure obligations stricto sensu 319 disclosure restrictions 28, 310, 418, 454

596

Subject Index

distinguishing 61, 142, 155, 168 Division of Court Services 207 Division of Victims and Counsel 207 document containing the charges 411, 415 documentary evidence 288, 290, 515, 532, 534 dossier 29, 124, 264–265, 267, 279– 280, 288, 290, 304, 320, 489, 507, 514, 517–519, 529–535, 539, 541, 544 double-dossier 28, 510, 544 double jeopardy 273, 423 Due Process Model 133, 135–136, 175 effet utile 71 empirical 98, 148, 165, 168, 171, 175, 180–183, 185–186, 189–190, 229, 502 equality of means and resources 315 equality principle 122, 130, 185, 225, 312–318, 320–322, 331, 344, 369, 473, 476, 490, 494–495, 506, 532 Ermittlungsrichter 159, 239 European Union 55, 69, 505 exculpatory evidence 29, 34, 36, 77– 78, 80, 88–89, 108, 257, 322–323, 325–326, 328–331, 344–345, 347, 350–352, 356, 379, 396–397, 412, 417, 425–426, 429, 431, 454, 457, 463, 477, 480, 483, 487, 493, 495, 506, 510, 515, 530, 533 exculpatory information 274 exculpatory material See exculpatory evidence 322 explanatory 33, 165, 172, 177, 190 External Auditor 467 family model 137, 139 fascicolo per il dibattimento 530 French Constitution 230 general deterrence 213 general jurisprudence 167, 170–171

general request for exculpatory information 324 giudice dell'udienza preliminare 530 goals of International Criminal Justice 210, 228 grammatical interpretation 53 grand jury 130, 275–276, 286, 363– 365, 391, 393–401, 415, 422 grand jury proceedings 393–395, 398, 400 guilty plea 125, 221, 273, 300–302, 336, 370 harmless errors 330, 366, 426 Health and Safety Executive 366, 370– 371, 373 hierarchical ideal 145, 185, 200, 235, 250, 252–253, 264, 285–286, 290, 297, 533, 543 hierarchical officialdom 145, 230, 236, 250 hierarchical ordering 145, 201, 207, 254 hierarchical structure 203, 235, 267, 289, 302, 305, 499, 506, 516, 533, 538, 543 hinreichender Tatverdacht 279 historical interpretation 52, 54, 74, 84 hybrid systems 160 ideal-types 32, 121, 171, 180–181, 185, 187, 190, 194–195, 200, 262, 305, 308 Immediate Office of the Registrar 207 immunity 330–331, 375, 394, 416, 422, 427–431, 434, 439 Independent Oversight Mechanism 467–469 initial appearance 274, 312, 392 inquisitorial 117 inquisitorial judges 127, 219, 505 inspection 36–38, 78, 83, 320–321, 350, 352–355, 358, 360, 363, 378, 400, 422, 442, 463, 467, 510, 515

Subject Index inter partes disclosure 36, 77 Interessentheorie 292 interlocutory appeals 236, 283 intermediaries 379, 454, 458–460, 468, 475 intermediate phase 279, 282, 409 International Association of Prosecutors 474 international community 202, 213– 214, 224, 305–306, 458, 507 international legal system 202 international organisation 204, 209, 220, 226, 250, 305–306, 509–510, 543 international organisations 202, 204, 254, 256, 306 international society 202 interpretation 30–32, 41, 43, 47–48, 51–60, 62–75, 77, 79–89, 91–92, 94– 99, 105, 107, 109, 113, 115, 125– 126, 128–129, 143, 162–163, 165, 169, 171, 180, 188, 191, 194–197, 200, 208, 240, 287, 291, 298, 305– 306, 309, 323, 349, 351, 356, 358, 378–379, 382, 384, 397, 408, 418, 462–463, 474, 478, 501, 509, 526, 537–539, 542–544 interpretative 165 interpretive 172 investigating magistrate 107, 159, 254, 260, 514, 519 investigation of exonerating evidence 264 investigatory powers of the grand jury See grand jury 395 iura novit curia 248 Jencks Act 363–366, 400, 422, 424– 425 judicial interrogation 278, 286 juge d’instruction 107, 239, 527 just deserts 141, 211, 213 just deserts model 141

597

Katanga 39, 78, 90, 130, 224, 237, 312, 314, 380, 385, 414, 417–419, 543 knowlegde component 514 laissez-faire 146, 201, 208, 240, 262 laissez-faire philosophy 146, 201 late disclosure 348, 389–390, 438–440, 464 law in action 165, 190 law in minds 172, 186, 199, 542 law in the books 190 legal families 50, 106 legal pluralism 203 legal system 27, 32, 44, 60, 62–63, 73, 98, 103–105, 108–109, 121, 130, 132, 167, 181, 185, 187, 190, 195, 197– 198, 202, 218, 235, 246, 260, 299, 302, 322, 397, 491–492, 515, 518, 535–536, 539 legal translation 99 legal transplants 100 lex certa 69, 71–72 lex praevia 69, 72 lex scripta 72 lex stricta 72 Literal Rule 56 live testimony 145, 268, 288–289, 307 logical legalism 29, 145, 201, 536– 538, 542 Lubanga 34–39, 42, 77–78, 80, 83, 85–87, 89–91, 97, 129, 161, 224, 246, 307, 313–314, 344–345, 347– 348, 356–359, 377–380, 387, 409– 413, 419, 453–464, 471, 475, 493– 494, 496–497, 500–503, 508–510, 517, 524, 526–528, 534, 543 Magistrates Court 270, 336, 343, 367– 368, 371, 401, 407 malicious prosecution 429 managing offender behaviour 141 mandate providers 204

598

Subject Index

materiality test 324–326, 328–329, 335, 351–352, 356–357, 362, 432, 473, 478–479 medical model 141 methodology 30, 32, 44, 46–47, 51– 52, 92, 94, 163–164, 172, 196, 486, 507, 544 Miranda 129, 155 miscarriages of justice 29, 334, 473 mistrial 365, 423–424 models of criminal justice 114 models of criminal procedure 113–114 National Association of Criminal Defense Lawyers 396–397 negative special deterrence 214 non-punitive model 139 normative jurisprudence 172 normative models 164 obiter dictum 61 offensive approach 150, 182 Office of Public Counsel for the Defence 296 Office of Public Counsel for Victims 224 old style committal 402–403 oral testimony 121, 268, 288–289, 379, 387 order of a retrial 492 Organtheorie 293 Overruling 61 oversight mechanisms 466 PACE 370, 443, 461 PCMH See Plea and Case Management Hearing 407 piecemeal disclosure 441, 446 Plea and Case Management Hearing 271, 286 plea bargaining 44, 99, 102, 119, 124, 136, 142, 303–304, 433, 544 plea negotiations 303

policy-implementing 27–29, 185–186, 200, 209, 215–216, 220–222, 225– 228, 238, 240–242, 248–250, 254, 258, 261–264, 290, 292, 294–295, 299, 301–302, 305, 307, 313, 317, 319, 322, 384, 388, 472, 476–477, 489, 491–492, 494, 496–501, 504, 506, 509–510, 516, 524, 532, 536, 539, 541–543 policy-implementing goals 321–322, 476, 492, 495 policy-implementing justice 220 positive special deterrence 214 power model 141 pre-assessment interviews 379 preliminary examination 255, 270, 274, 282, 391, 393 preliminary hearing 270, 274–276, 286, 391–394, 407, 415, 417, 529–531 preparatory hearing 271–272, 286, 407–408 pre-trial investigations 257 prescriptive 164 primary disclosure 336, 342 principle of legality 63, 69–70, 72, 260 prior recorded testimony 288–290, 527, 532–533 private bar 297 procedural culture 125 prosecutorial misconduct 331, 427, 431–432, 434, 437, 454, 468, 472, 477, 481–484, 492 public prosecutor 223, 261–263, 280, 304, 316, 525 punitive system 139 ratio decidendi 60–61 reactive state 146, 208–209, 216, 247, 316 Rechtsbegründung 75 Rechtsfindung 75, 109, 196 record of the proceedings 90, 248, 266–268, 287, 290, 418, 512–513, 516–518, 520–523, 527, 535, 544

Subject Index

599

Registry 36, 86, 88–90, 205, 237, 248, 265–266, 296, 300, 410, 412, 418, 494, 506, 510, 515 rehabilitation 116, 137, 140, 211, 215– 216, 223 reliability model 138 restoration of international piece and security 225 retribution 141, 210–213, 215–216, 306, 505 right answer 76, 95–96, 112, 197, 542–543 rolling disclosure 385–386 Rules of Professional Conduct 322, 328–329, 331, 432, 434, 471

sufficient basis for prosecution 282 summary trial 270, 274, 288, 342–343, 369, 371, 401 superior review 145, 251, 254, 288, 506 Supreme Court Secretariat of Japan 230 systematical interpretation 53

sanctions 28, 63, 185, 311, 330–331, 421–425, 427, 432–433, 437–438, 452, 456, 464, 468, 476, 491–493, 495–498 satisfaction of victims 223 Schuelke report 482–483 secondary disclosure 336, 489 Security and Safety Section 207 Security Council referral 281 self-representation 297–298 sensitive material 374, 521 sentence bargaining 301, 304 single echelon of authority 145 social disciplinary model 138 sociology of law 165, 180, 191 stare decisis 50–51, 60, 113, 200 State Party referral 281 status passage model 141 statutory interpretation 59 stay of the proceedings 437–439, 451, 453–454, 457, 461, 492, 496–497 Strafbefehl 279 structural component 516 structural equality 494 substantive truth finding 218, 220–222, 227, 243, 472, 497, 499, 507, 509

unused material 332–333, 336–339, 342–343, 353–354, 367, 371–373, 412, 443–444, 446, 450, 485–489

tabula rasa 245, 503 teleological interpretation 54 traditional goals 209, 211, 216, 226, 306 triable-either-way offences 270 trial manager 239 two cases approach 110, 317

value and principle approaches 141, 174 Verhandlungsgrundsatz 154 victim participation 141, 224, 409 victim protection 223 victim reparations 223 victim satisfaction model 140 video testimony 289 virgin mind 242, 245, 248, 495, 503 von Savigny 53–54 weight component 513, 517, 523, 533 will-say statement 389 witness anonymity 375–376, 381, 383 witness familiarization 387, 390 witness lists 360 Witness Preparation Protocol 388 witness proofing 77, 313, 387, 389, 499 written statement 279, 339, 363–364, 369 written testimony 145, 288 wrong modelling 152