Justice delayed is justice denied.
William E. Gladstone
Sunlight is said to be the best of disinfectants.
Louis Brandeis
The written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end.
ICC Chambers Practice Manual, Seventh Edition (2023), para. 88.
On 6 December 2023, Trial Chamber X of the International Criminal Court (ICC) issued an order scheduling the pronouncement of its trial judgment in the Al Hassan case for 14:00 on Thursday, 18 January 2024 — over a month ago. Closing arguments had ended on 25 May 2023. With plenty of recesses during the trial proceedings, 10 months to render a decision (as required by the Chambers Practice Manual) is more than reasonable – assuming the Chamber is organized and efficient. Not being rocket science, and with plenty of best practices developed over the decades since the first ad hoc and successive international(ized) criminal tribunals and courts (ICTs) were established, drafting a judgment within this period should be no challenge.
It is not as if the Trial Chamber (judges and staff) are starting at ground zero once the proceedings end. The summary of testimony, even a crude sketching out of the judgment, begins as the evidence is adduced. To what extent those summaries are relied upon – without going over the transcripts to see whether what was summarized accounts for nuances missed and details refined by carefully reviewing, analyzing, and synthesizing the evidence – depends, I guess, on the judges and their predilection on how evidence is assessed and the degree to which they get involved. Some judges delegate much of this process to their assistants, who, in most instances, seemingly ghostwrite the judgment.
That this 10-month benchmark was adopted by the ICC judges is to be commended. Of course, unlike the ad hoc tribunals for the former Yugoslavia and Rwanda, where the United Nations Security Council was footing the bill, the ICC is funded by the State Parties. This may account for the top-down pressure on the judges to get with the program in delivering justice within a reasonable time, as opposed to dragging things out. Especially when by doing so their tenure (and judicial salaries) could be extended by months, even years. Recall that some of these ICC judges are champion chanters of the judicial independence mantra to external suggestions or efforts regarding judicial efficiency and professionalism or when seeking higher pay and retirement benefits (see Shehzad Charania’s interview of Judge Chile Eboe-Osuji). Call me a cynic, but rarely have I come across judges at the ICTs who are time/budget‑conscious in rendering decisions and judgments. Some of the worst offenders are the ones that cavalierly impose short and strict deadlines on the parties – in part, might I add, because they lack experience and appreciation of the challenges faced by the parties, especially the defence, which generally is under-sourced and over-worked.
To its credit, Trial Chamber X announced that it would deliver its trial judgment in Al Hassan well under 10 months. Whether the judges were being realistic, having been diligent throughout the trial proceedings in summarizing the evidence as it was adduced and analyzing any discrete legal issues that ultimately would factor into the deliberation equation for making findings of facts and conclusions of law, or whether they were overly optimistic, having failed to appreciate complexities that were bound to surface during the deliberations, is unclear. The judges’ health issues would fall under the category of force majeure. Hence, credit for the Chamber’s prescience of setting a self-imposed deadline for producing the judgment, including separate opinions and dissents, well within 10 months.
Trial Chamber X had sufficient latitude in timely delivering the trial judgment. Even if Presiding Judge Mindua continues to be unable to appear in court to read the summary, this function is purely ceremonial. It can be delegated to a Single Judge. Procedural matters (decisions on disclosure, protective measures, legal aid, etc.) were taken up by Single Judge Kimberly Prost, not the full bench. A good example is her recent decision on the Defence’s request for review of the Registrar’s decision on legal aid – issued, incidentally, after the Chamber’s vacated the date for the pronouncement of the trial judgment.
Transparency is needed for a variety of reasons, not least of all, on the seriousness of Presiding Judge Mindua’s illness. The parties must know since when he has been ill, and to what extent this illness may have compromised his ability to work actually and meaningfully with his staff and deliberate with his fellow judges. Why? Because the parties – the prosecution, defence, and victims – may need to make submissions on the soundness of the deliberation process, and, ineluctably, the trial judgment. It is not a matter of just curiosity, but of professional obligations and ethical responsibilities – namely, due diligence.
In a joint submission, the Al Hassan Defence and the Legal Representatives of Victims raise the need to know a date when the judgment will be pronounced for resources reasons – short deadlines, mission trips, and augmentation of hours and staff. During this period the Defence, in particular, is operating with a reduced team that may or may not be able to fully reconstitute itself for the sentencing and appeal phases. Win, lose, or draw, this case will make its way to the Appeals Chamber.
I am less inclined to be concerned about the sentencing. Provided, of course, resources were made available to the Defence to gather evidence, secure witnesses, and prepare legal memoranda on sentencing issues. The Counsel Support Section (CSS), for budget, accounting, and auditing purposes may have been reticent to go beyond the Legal Aid Policy (LAP), which, save for very tangible and digestible reasons articulated for loosening up the purse strings, generally interprets the allocation of funds conservatively. Speaking from experience, however well the case may have been tried, and however confident the Defence may feel about the prospects of a total acquittal, diligent counsel should not wait until the judgment to get their sentencing ducks in a row. Since much depends on the CSS’s interpretation of the LAP, it behooves the Defence to proffer cogent and credible reasons justifying expenditures for sentencing before the issuance of the trial judgment. Reading a bit of the tea leaves from the joint submission, it appears this was done.
Why this post?
Am I just being a curmudgeonly gadfly, making much ado about nothing? Presumptuously, I think not.
I am not challenging the genuineness of the reasoning for postponing the issuance of the trial judgment to a date unknown on account of Presiding Judge Mindua’s health. I don’t know enough, because enough to form a reasoned opinion was not provided by Trial Chamber X. But something does seem awry.
Might there be more to this than what the parties and public are being told? I know it’s not cool to question the integrity of judges. And I’m not. But then again, is it too much of an affront, too impertinent, too cheeky to dare question the completeness of the Chamber’s reasoning. After all, as it seems, when Trial Chamber X was asked informally when the trial judgment would be pronounced, rather than give a date or even a guesstimate, the parties were told to file formal submissions. Strange, but maybe not, since by filing submissions the clock ticks away, seemingly for a weighty issue to be decided, as opposed to providing the parties a quick and simple answer – assuming such an answer is handy and convincing.
Here are some rough thoughts. Mind you, I am not involved in, nor have I ever been involved in the Al Hassan case in any capacity by any party. I just find this entire affair curiously strange and worth the effort to comment on for transparency reasons.
-
-
- When the order was issued scheduling the date when the judgment would be publicly pronounced in court – some 43 days in advance – Trial Chamber X would have, presumably, completed the drafting of the judgment, with the added time tacked on to polish, re-proof, and if appropriately meticulous, re-check the authority cited to make sure it was accurate and that it correctly supported the factual claim or legal argument for which it was cited. It also gave the parties and the public adequate time to clear their schedules for anyone required or wishing to attend in person. In other words, the trial judgment must have been completed and ready to pronounce on 6 December 2023.
-
-
-
- The accused and victims have a right to have the proceedings conducted expeditiously. This includes issuing the judgment. If indeed the judgment was, as it should have been, ready to be pronounced on 6 December 2023, why was it not – even in the absence of Presiding Judge Mindua? Were he too ill to attend and/or read out the summary, he could have participated remotely, and have one of the other judges read the summary in his stead. Surely this could have been done with no appreciable concern as to the appropriateness of the proceedings. As I’ve noted, Single Judge Prost most recently dispensed – quite nicely might I add – with a legal submission of some significance concerning the Al Hassan’s fair trial rights.
-
-
-
- There being no information as to how long Presiding Judge Mindua will be out of commission, the parties are in limbo. As it stands, the Defence has limited resources. Unlike the prosecution, which has plenty of warm bodies on salary with benefits and perks, the defence is reduced effectively to a skeletal crew. Unlike in a domestic practice where a lawyer or firm will pick up other work relatively easily to keep staff employed and to pay for salaries and office expenses, at the ICC and other ICTs, defence counsel and staff are independent contractors. Being in trial for years on a complex case with witnesses straddling continents and where there is little predictability on the length of the case, effectively kills a domestic practice. Legal assistants with institutional memory of the case and legal issues are also unlikely to sit around waiting, indeterminately, for the judgment to be issued and to see whether their services will be needed. Likewise, once put on a reduced workload/salary (or frozen), the staff have difficulty making ends meet. Finding immediate temporary employment in international criminal law is exceptionally difficult. Thus, it is common for highly qualified, gifted, trained, and knowledgeable staff to return to their domestic jurisdictions to find work or seek steadier employment opportunities elsewhere. Employment from which they may not be able to readily return to the ICC teams.
-
-
-
- As already noted, the parties should be told the specifics of Presiding Judge Mindua’s illness. For privacy purposes, this could be provided confidentially. Eventually, however, even the public should be provided with some basic information, which, depending on the substance, would, could, or should raise issues concerning the deliberative process and reliability of the trial judgment. I do not mean to be cold or insensitive, but even the British people have been given some basic information on the King’s health challenges. The defence, especially, must know so as to determine whether any of Al Hassan’s fair trial rights, afforded to him by the Rome Statute, might have been infringed. Judges tend to loath having to answer questions when put to them by the parties. Understandable as this might be, it is not excusable when such questions are put in good faith, grounded in legitimate legal justifications and imperatives, not to mention real world practical considerations.
-
-
-
- Could the delay also be about dissent among the judges? One need not be a conspiracy theorist (which I am not, so I think) to question whether the judges, during the final stretches in drafting the judgment have grown apart in their respective analysis and synthesis of the evidence to such a degree that the majority’s (if this is the case) findings of facts and conclusions of law are so openly challenged and visibly flawed by the dissenting judge that to issue the judgment as provisionally drafted would expose not just weaknesses in the assessment of the evidence, but also in the quality of the judging – and by extension, the quality and capacity of certain judges. I have no clue if this is the case, nor am I advocating that this is likely the case. But it is not beyond the ken. Indeed, it is acknowledged that in the course of circulating draft opinions in the United States Supreme Court, reasoning has evolved, while, on occasion, majorities have been known to shift and become minorities. It is not beyond the possible reasons – in addition to any legitimate health issues – for the indefinite, or at least unknowable, delay in setting a date to deliver the trial judgment in the Al Hassan Granted, this is all speculation, but that is what normally takes place when there is a deliberate information gap and presumed efforts of stalling and foot-dragging in allowing facts to surface for disinfectant sunlight and objective analysis.
-
There are other reasons I can think of to muse about. For instance, what if Al Hassan is acquitted? Would this indefinite delay not impact on his efforts for provisional release while the appeal is pending? I will stop here.
To be clear, I am neither casting aspersions nor alluding to judicial impropriety. My inquiring mind wants more, wondering what gives. Perhaps we might find out soon. The sooner, the better. Al Hassan, incarcerated at the United Nations Detention Unit, deserves to know the unadulterated, unvarnished, unedited facts.
In the end, this may be nothing more than a storm in a teacup. Let’s hope it is.
About Author
Great and thought-provoking article on why the Judgment should take as long as it has. It will be interesting to see how the Trial Chamber responds to the pressure, especially as it has to balance the concerns you have raised with the need to be seen to be independent and not to be under the direction or control of any person, not least, the Defence.