Limited charges and limited judgments by the International Criminal Court – who bears the greatest responsibility?

Abstract

REDRESSThis article considers the first verdict of the International Criminal Court in the Lubanga case. It focuses on the narrow scope of the conviction, resulting from the very limited charges brought by the Office of the Prosecutor and its failure to seek to amend the charges when evidence of wider crimes came to light during the trial. The article also considers the failed attempts of legal representatives for victims to encourage the Court to re-visit the charges, and analyses the Pre-Trial and Trial Chambers' (in)action in response. The limited provisions in the Rome Statute which afford a degree of oversight on prosecutorial discretion were never properly activated by the Court, with the result that the evidence which emerged during trial that exceeded the charges was never considered.

Conflicting Institutions and the Search for Gender Justice at the International Criminal Court

“…The point of this rule was to better protect defendant rights to a fair trial and to “enhance the efficiency of proceedings through the encouragement of a precise charging practice from the very beginning of the proceedings” (Stahn 2005, 31). After extensive litigation on the regulation, the victim’s representatives’ submission was refused: in denying the application, the Trial Chamber made it clear once again that its was constrained by the Prosecutor’s charging strategy because “factual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges” (ICC-01/04-01/06-2223; see Ferstman 2012).…”

“…An effort by ICC Judge Odio Benito’s to work around these amendment restrictions by drawing out victim testimony during the Lubanga trial was curtailed by the Defense. Such developments raise critical questions for future ICC practice when evidence of sexual violence emerges during the trial phase, and the need for the prosecution to pay careful attention to including these charges from the outset (Ferstman 2012; Merope 2011, 322; Smith 2011).…”