By Justice Hub
ICC Prosecutor Fatou Bensouda has asked for a delay in the case against Dominic Ongwen, a former commander in the rebel Lord’s Resistance Army in Uganda. He’s been charged with war crimes and crimes against humanity. She gives a number of reasons for the requested delay to January of next year, including a lack of Acholi-speaking interpreters and translators. The case has sparked off a debate online about what a guilty plea from Ongwen might mean. Justice Hub spoke to William Schabas, professor of international law who’s written a basic introduction to the ICC, to ask what he makes of these developments.
Q: Is it normal for a prosecutor to ask for such a long delay before the confirmation of charges hearing?
There’s never anything normal at the ICC. This is again a unique situation in the history of the Court. They developed a series of five cases back in 2005 on the situation in Uganda and nothing happened. They weren’t able to capture anybody. It isn’t an appropriate use of resources for a prosecutor to stay on a case forever. So the case went dormant.
Q: Shouldn’t a prosecutor always be ready?
These cases have been frozen for a long period of time – a decade. Here, it’s much more complicated than a domestic court. Remote locations, different languages and victims are involved. All these are very legitimate issues. In principle, I don’t see anything unreasonable in the delay. You can’t expect Prosecutor Fatou Bensouda to be on a red-alert footing at any given moment when someone just appears out of the blue like this.
Q: Has Uganda not been a priority for the Court?
Most people had written it off. The Uganda situation has for all practical purposes been closed for a long time. The five arrest warrants were issued in June 2005, and then they became public a few months later. The then prosecutor, Luis Moreno Ocampo, was criticized at the time for only prosecuting one side in the conflict and not prosecuting the government forces. He said he was getting to that, but that prosecuting the rebels was the priority. He had reasons, which some people didn’t find entirely satisfactory.
Q: But since that time no more work has been put into the investigations?
In fact, around 2010 and 2011, the Office of the Prosecutor declared they were not doing anything more. They had to indicate how they were disposing of the budget, and Uganda was not the main priority. It is reasonable that Bensouda will need a little time. And the judges will make sure it’s not excessive.
Q: The prosecution says it will have to disclose more than 90,000 pages of evidence to the defence. Plus transcripts of intercepts of telephone conversations. That sounds like a lot of work.
One of the issues here is that the prosecutor has been developing a new approach. Judges had been very critical of the fact that in the past the prosecutor had been coming to the confirmation hearing – which is the next stage for Ongwen – with a kind of a half-baked case. Previously the prosecutor would proceed with the initial steps in the prosecution but without really having a case that was ready to go to trial. This would become apparent at the confirmation of charges hearing when they had to produce the evidence. So Bensouda has reacted to that saying we’re going to be better prepared when we get to that stage. This is a dusty, old case she inherited from her predecessor.
Q: Will the Office of the Prosecutor have the personnel to work on this case?
That’s another problem that they didn’t have in the past. They are booked up solid with other work. It wasn’t like this a decade ago when they were starved for work and they had loads of time for everything. Huge amounts of resources were expended without advancing things very much. 10 years ago there was nobody in custody, there were no real pending cases. Now she’s strapped for resources. Its not like she can say ‘take that team of eight people and put them on the case’. They are all busy, and this is an unexpected case. It’s not part of the planning.
Q: Shouldn’t there be plans, including for the practical issues like finding Acholi translators?
They do risk analyses. And you’re supposed to plan on what’s the worst that could happen. I don’t know if this would rank as an extremely unforeseen circumstance. But certainly if you were doing planning for the work of the prosecutor, this might be part of the perfect storm scenario. First this guy shows up from Uganda, and then Gadhafi gets sent from Libya. In fact they could easily have three or four people show up, and the Office of the Prosecutor wouldn’t be able to take them to trial for years and years. It’s a problem for this court that they are going to have to figure out how to handle. It’s a challenge.
Q: Is it possible – it would be a first at the ICC – that Ongwen might plead guilty and there would be some kind of plea bargain where the two sides agree a sentence for him?
Yes, it would be a first. There have been plea bargains at the international criminal tribunals for the former Yugoslavia and for Rwanda. As a general rule, they were very effective because they enabled the Court to close cases to reduce their caseload. And one might say, given the strain on the prosecutor, that this situation is causing there are good practical reasons for her to be open to such a possibility. It would help her problem go away.
Q: What about plea-bargaining, where a sentence is agreed in advance?
It’s a word that a lot of people are probably very uncomfortable with around the International Criminal Court. It’s something that adversarial systems – like the UK and the US – are familiar with, but not so much inquisitorial systems such as those in continental Europe. They are more uncomfortable with it.
Q: But is it possible at the ICC?
There is a provision in the Rome Statute to deal with this. It’s called the guilty plea provision. So it’s all set out. But in practice, no one is entirely sure how it would work. The lawyers from the adversarial systems are pretty familiar with the principles. It’s premised on the idea that you get the prosecution lawyer and the defence to agree how the case should be disposed of – the appropriate charges and the appropriate sentence. In principle, judges are not going to interfere with that. And that the whole system is well served by permitting this kind of compromise.
Q: What are the downsides to a plea bargain?
A lawyer from the adversarial system would not be deeply suspicious of it, especially if it’s done relatively in public, the way it was at the Yugoslavia Tribunal. But it does involve compromises and, for example, it does reduce the didactic effect of the trial. Some argue it does not serve the victims. To that, the lawyer who likes plea-bargaining would say ‘well you get a guilty plea. Isn’t that a great service to the victims? You don’t have to go through a trial where they have to come and testify. And where it might lead to an acquittal.’ There’s a concern, of course, that the level of guilt gets understated. And there’s also a concern that the accused person admits to more than they really need to admit to in order to reach this compromise.
Q: How does it work in practice?
Well, it doesn’t bind the judges. When we say a bargain, it doesn’t mean the defence lawyer and the prosecutor meet in a bar, shake hands on something and then it’s a done deal. They still have to demonstrate to the Court that corners aren’t being cut in some kind of unacceptable way. I don’t think people really understand that about the procedure. It does have judicial supervision.
When the judges have to approve it, they’re going to be torn between wanting to show that they are smarter than the two lawyers, and they may try to tamper with it a little bit – there’s that temptation – or to respect it and not to intervene.
Q: What would make a plea bargain appropriate in this case?
Ongwen has some elements in his past that ought to be viewed favourably. The fact that he was a child soldier himself ought to count for a lot. And if the prosecutor is prepared to recognize that, and the judges will be disciplined enough not to tamper with it, it could bode well for the future of the Court. It’s a good idea if it can work.
Q: There’s a debate we’ve seen online about this between Alex Whiting and Sergey Vasiliev about the merits of this approach.
That’s between an American lawyer and a Dutch Russian lawyer – an illustration of the different legal systems: adversarial versus inquisitorial. If a plea bargain does happen, the debate will go onto another level. Within the prosecutor’s office, her deputy James Stewart, who has done this kind of work throughout his career, understands the system. But then it will be the luck of the draw as to which of the judges are assigned to deal with this. If you get judges from a system where they are not familiar with this, from the inquisitorial system, there would a tendency for them to treat this with suspicion. And that could be a problem. And you might have judges who come from the adversarial system but who might be academics and not have experienced this kind of agreement at the coalface of prosecuting. And they don’t know how it works either, not like those who’ve gone to court every morning and had this kind of caseload.