After Callixte Mbarushimana’s failure to stop the French authorities from transferring him to The Hague, Nicholas Kaufmann, his lawyer, has a new trick up his sleeve to try to get his client released: contesting the validity of the arrest warrant that was issued on 28 September 2010. We are not yet even close to the trial stage of the proceedings, and already problems are appearing that are worth commenting upon.
The claim. Mr. Kaufman’s main argument is that the arrest warrant for Callixte Mbarushimana was “sought and issued at a time when the case against him was plainly inadmissible” because there was an ongoing investigation regarding these same crimes and his client in Germany. This, he argues, despite the Prosecution’s claims that there were no such investigations in any State when they applied for the arrest warrant, and in violation of the fundamental principle of complementarity the International Criminal Court functions on.
To put it in simple terms, the Defence’s filing argues in elaborate and lawyerly terms that the Prosecution lied on a fundamental condition of admissibility – that there is no ongoing investigation for the same crimes anywhere – to get the Pre-Trial Chamber to issue the arrest warrant.
For now, it is hard to assess the validity of Mr. Kaufman’s claims, and it is better to wait for the Prosecution’s rebuttal due on Monday to pass any form of judgment or comment on this. However, it doesn’t stop there.
More divulgation issues. Perhaps the most interesting information coming out of this latest Defence filing is the following:
12. The Pre-Trial Chamber is reminded that the Prosecution has refused, to date, to disclose to the Defence information from the criminal files held by the German authorities. In these circumstances, the Defence was obliged to petition Counsel acting for Mr. Mbarushimana in Germany with a request that he seek information pertaining to the fate of the German criminal proceedings.
Information which the Defence obtained. In other words, the Office of the Prosecutor (OTP) refused to divulge certain information to the Defence, information which turns out to be relevant since it allows them to make contest the validity of the arrest warrant – whether the Court agrees or not is irrelevant at this point – forcing the Defence to turn to the German authorities and Courts to obtain that same information.
The OTP’s divulgation obligations have been the object of much discussion, filings, and decisions since the beginning of the trials at the International Criminal Court, the Lubanga trial in particular having been (in)famously plagued with them. It is, to be fair, a complex issue, and I will not succumb to the temptation to draw massive conclusions and generalization from this specific Mbarushimana case.
But it is still baffling that the OTP would refuse to divulge information to a Defence team, forcing the latter to obtain the very same information from national authorities (only because it was possible in this very specific circumstances). To make matters worse, it turns out that that information was valuable to the Defence. This is not normal, and a lot more work on divulgation needs to be done over at the Office of the Prosecutor.
More on this next week. I am looking forward to the Prosecution’s response, and even more so to Pre-Trial Chamber’s reaction and decision.