Litigating Fair Trial: The Right to Notice
Defects in the charging instrument – whether an indictment (at the ad hocs) or a confirmation of charges decision (at the ICC) – are a landmine for fair trial violations.
The right to notice – to be informed in detail of the charges in a language the defendant fully understands and speaks – is a cornerstone of fair trial in all international courts and tribunals.
The law is that each element of each allegation (both crimes and modes of liability) against a defendant must be factually supported. An indictment is defective if it fails to plead required material facts.
What are material facts? Judge Dolenc answered the question in his Separate Opinion in the Ntagerura case:
In practical terms, the material facts of the crime answer the following seven questions, which guide any criminal investigation, prosecution and judgment: Who (is the alleged perpetrator); Where; When; What (was committed or omitted); Whom to (victim); What means; and Why (motive). Answers to these seven questions are necessary in order to individualize the Accused, the alleged crime, the modes of the Accused’s participation, and the form of his criminal responsibility.
The right to notice, as well as other fair trial rights, mirrors the same rights articulated in universal declarations and covenants, as well as regional ones. But, what is often overlooked is that these rights are enumerated “as minimum guarantees.” But, even “at a minimum” the international courts and tribunals fall far short of implementing these rights, starting from the first one – the right to notice – from which, it could argued, all other rights are derived.
The right to notice is fundamental. Full stop.
The notice provided in charging instruments is usually defective.
As Professor Y. McDermott has written, the “Courtroom is both the place where substantive rights can be taken away and the avenue through which an individual can prevent these rights from being taken away.”
So, one would expect that the first order of business of a defence counsel or team is to analyze and evaluate the charging instrument and litigate its defects, by making appropriate written motions and/or raising objections orally on the record. This is a core task. Maybe, if the defendant prevails, the Defence will learn more specifically the basis of the allegations (charges and modes of liability), making investigations and generally, trial preparation, more informed. But, even where motions on defects are (partially) granted, it is rare that the Prosecution fully provides what is required to comply with fair trial requirements. Given this reality, it is important to comprehensively preserve the lack of notice as a fair trial violation for appellate purposes.
The contemporaneous making, and preservation of, objections is always best; this practice can hopefully pre-empt arguments of untimeliness, sometimes relied upon by the Chamber to reject the Defence litigation.
However, the making of contemporaneous objections, especially to defects in a charging instrument, is not “a given.” In each case, based on different factors and reasons, there are at least three possible scenarios regarding objections to defects:
- they are not raised in a comprehensive manner;
- they are raised only partially; and/or
- they are not raised with clarity and specificity.
Objections (written or oral) start with the words, “I/The Defence object(s).” Sounds simplistic? Perhaps. But these two words are absolutely necessary because: (1) they directly place the objection before the Trial Chamber for its ruling (which may or may not be done contemporaneously); and (2) they make preservation of objections, and their content clear on the record for the appellate attorney down the road. Appellate work in a criminal defence case begins at the pre-trial proceedings. In sum, the Defence must find a way to litigate lack of notice in the charging instrument from the very beginning of a case, in its pre-trial stage.
Examples of Litigating Notice Issues in Three International Criminal Cases: Ongwen, Military II (Nzuwonemeye) and Simba.
The procedural histories and preservation of objections in each case are not uniform; they are detailed in the respective pleadings. However, collectively, they illustrate different possible ways to litigate, based on different case scenarios.
The Ongwen Case at the ICC – The “Defects Series”
(Note: A complete compilation of pleadings in English and French filed by the Defence, Prosecution, and Victims’ Representatives as well as Trial and Appellate Chamber Decisions is available on the ICC Legal Tools Database).
Dominic Ongwen has been prosecuted, based on a Confirmation of Charges decision (CoC Decision) with 70 charges and 7 modes of liability.
The Ongwen case is currently (June 2020) in the deliberations stage, and we are waiting for the verdict. A few defects in the Confirmation of Charges decision were raised initially in the case in 2016 and preserved at various subsequent times; more comprehensive pleadings on defects in the charging instrument were filed in 2019 in the “Defects Series.”
The “Defects Series” was conceived by the Defence as the most logical method to address the 70 crimes and 7 modes of liability charged against Mr. Ongwen, in a 104-page Confirmation of Charges decision.
Four parts of the series were filed on 1 February 2019:
Part I: Defects in Notice and Violations of Fair Trial;
Part 2: Defects in the Modes of Liability;
Part 3: Defects in Pleading of Command Responsibility and Common Purpose Liability; and
Part 4: Defects in the Charged Crimes.
The Trial Chamber issued a decision rejecting the Motions on 7 March 2020, on grounds of untimeliness. It is available at https://www.icc-cpi.int/CourtRecords/CR2019_01322.PDF The Appeals Chamber confirmed the Trial Chamber decision, but explicitly paved a way for the Defence to continue its litigation on fair trial violations:
- The Trial Chamber therefore did not err when it declined to consider the merits of Mr Ongwen’s jurisdictional challenges contained in the Defects Series. This is notwithstanding the possibility for Mr Ongwen to challenge the legal interpretation of the relevant provisions in his closing submissions before the Trial Chamber, as correctly observed by the Trial Chamber, and eventually before the Appeals Chamber, should a conviction be entered and an appeal lodged against it. (footnotes omitted) https://www.icc-cpi.int/CourtRecords/CR2019_03885.PDF
The Defence amended the previously identified defects in sexual and gender based crimes (SGBC) in its Motion on Defects regarding SGBC, filed in September 2019. The Trial Chamber rejected the Motion, in its Decision issued in October 2019.
Nzuwonemeye Team Wins Appellate Reversal based, in part, on Defects in the Indictment in “Military II” Case at ICTR
In the “Military II” case, Lead Counsel Chief Charles A. Taku and I (with our Defence team) won an acquittal for our client, Major F.X. Nzuwonemeye on appeal based on grounds that included lack of notice, a fair trial violation. A full analysis of the appellate victory is in my article, “Litigating Human Rights: Fair Trial and International Criminal Justice, The Appellate Acquittals of Major F.X. Nzuwonemeye in the Ndindiliyimana et al. Case at the International Criminal Tribunal for Rwanda (‘ICTR’).” The article was published in the Spring 2015 Edition of Africa Law Today, the ABA-SIL’s Africa Committee Newsletter. click here to see pdf.
The initial defence counsel representing the client had filed a timely motion objecting to defects in the first Indictment. However, when the Motion on Defects here was filed in October 2007, neither the original counsel nor the original indictment were still operating in the case. The amended indictment on which Nzuwonemeye was prosecuted is here, Military II Amended Indictment – 2004. The procedural history is found in the motion at pages 6-10. The Defence had to argue “good cause” to support the timing of our filing of a comprehensive defects motion on the amended indictment on which Nzuwonemeye was being prosecuted.
The Simba Case and Defects in the Pleading of Joint Criminal Enterprise (JCE) at the ICTR
Aloys Simba was prosecuted based on an amended indictment at https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-01-76/indictments/en/040510.pdf. More information about the Simba case is available at www.unmict.org.
The Simba case was one of the first single defendant cases at the ICTR in which the Prosecution alleged JCE as a mode of liability. JCE is a “judge-made” legal doctrine, and, as a former Prosecutor quipped, stands for Just Convict Everybody. JCE is a legal hotspot for violations of fair trial, especially notice. It was heavily litigated by Defence teams at the ICTR and ICTY, and citations to jurisprudence are found in the Motion.
From the inception of the Simba case, the Defence objected to defects in the indictment, including in the pleading of the allegation of “joint criminal enterprise.” In my article “Tortured Law/Tortured Justice” I identify the fair trial errors in the Trial and Appeal Chamber Judgments on JCE, detail the procedural history and summarize the relevant trial and appellate decisions. The full article is available at https://nsuworks.nova.edu/ilsajournal/vol17/iss2/9/.
Here is an excerpt:
V. “NEVER TOO LATE”-THE PROSECUTION’S CHANGE IN THE MATERIAL ELEMENT OF IDENTITY IN THE ALLEGED JCE SEVEN MONTHS AFTER IT HAD CLOSED ITS CASE
The issue of the timing of “notice” was particularly egregious in respect to the identity of the participants of the alleged JCE. Paragraph 14 of the Indictment stated that “[i]n preparing and planning the massacres, which occurred in the Gikongoro and Butare prefectures in April and May 1994, Aloys Simba acted in concert with” eight named persons and others not known to the Prosecution. The Defence prepared its case based on the allegations that the eight named individuals in paragraph 14, according to the Prosecution, comprised the members of the alleged joint criminal enterprise. The Defence questioned witnesses about Simba’s relationship, if any, to these named persons. The Trial Chamber, as well, questioned witnesses similarly on the names in paragraph 14. Thus, the Defence-as well as the Prosecution and the Trial Chamber-relied on paragraph 14 of the Simba Indictment as the factual support for the material element of identity of the named persons in the alleged joint criminal enterprise.
In its Closing Brief, filed on June 22, 2005, the Prosecution changed the identity of the alleged joint criminal enterprise members, by close to fifty percent. The Prosecution identified a new total of fifteen individuals, almost twice as many as in paragraph 14. Seven new persons who did not appear on the paragraph 14 list had been added, and one of the original names had been removed.
The Defence, obviously taken by surprise, had been-more accurately-ambushed. But the Judgment is silent on this fair trial violation. No where can one find a reference in the Judgment to the Prosecution’s nearly fifty percent change of the alleged JCE membership in its Closing Brief.
In fact, the Trial Chamber found that the Indictment “adequately identifies the participants alleged to have materially committed the crimes forming part of the common criminal purpose.” The Trial Chamber held that “some are named in various paragraphs throughout the Indictment in connection with planning of the attack.”. . .
 Appellate jurisprudence from the ad hoc tribunals affirms that the indictment suffers from a material defect if it does not plead the Prosecution’s case with sufficient detail. See, for example, Prosecutor v. Kupreškić, IT-95-16-A, Appeal Judgment, 23 October 2001, paras 114, 124,246, available at: http://www.icty.org/x/cases/kupreskic/acjug/en/kup-aj011023e.pdf; see also Rule 47 (c) of the ICTR Rules of Procedure and Evidence, and Article 18(4) of the ICTY Statute.
 Prosecutor v. Kvočka, IT-98-30/1-A, Appeal Judgment, 28 February 2005, para. 28, available at: http://www.icty.org/x/cases/kvocka/acjug/en/kvo-aj050228e.pdf
 Prosecutor v. Ntagerura et al., ICTR-99-46-T, Judgment and Sentence (judgment affirmed by the Appeals Chamber, 7 July 2006), Separate Opinion of Judge Dolenc, 25 February 2004, para. 21, available at: https://www1.umn.edu/humanrts/instree/ICTR/IMANISHIMWE_ICTR-97-36/IMANISHIMWE_ICTR-99- 46-T .pdf.
 See, Appendix IV: ICC Comparison Chart, comparing ICC rights and international conventions in Professor M. Cherif Bassiouni’s Introduction International Criminal Law, (International and Comparative Criminal Law Series), Martinus Nijhoff Publisher; 1st Edition (2003), pp. 661-671.
McDermott, Yvonne. Fairness in International Criminal Trials, (Oxford Monographs in International Humanitarian & Criminal Law) 1st Edition, p. 27.
 The Simba case is an example where the Trial Chamber partially granted the Defence Motion (at http://www.worldcourts.com/ictr/eng/decisions/2004.05.06_Prosecutor_v_Simba.pdf) but, at the appellate level, the Appeals Chamber fully rejected all arguments of defective notice in the allegation of the joint criminal enterprise (at https://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-98-42/appeals-chamber-judgements/en/151214-judgement.pdf).
 I am aware that, theoretically, a defence attorney could argue that not challenging a defective charging instrument is a tactical decision, designed to show the illegitimacy of the legal system. The argument would go: why litigate to assist the Prosecution to produce an amended indictment which provides the legally required notice? If the client decides he wants to go through the judicial process, failing to object to a defective indictment and silently proceeding to trial, makes it nearly impossible to litigate fair trial violations. At the end of the day, the legitimacy of the proceeding or its verdict cannot be successfully challenged. While I share the view which questions the fundamental legitimacy of the international justice system as implemented, I think it is important also to make tactical choices which give a client the strongest procedural opportunities to struggle within that system.