Democratic Republic of the Congo (pdf version of the DRC update)
Ngudjolo Chui case
Lubanga case: Appeals on conviction, sentence and reparation issued
[Background] On 14 March 2012, Trial Chamber I (TC I) convicted Thomas Lubanga as a co-perpetrator of the war crimes of conscripting and enlisting children under fifteen years in the Patriotic Forces for the Liberation of Congo (FPLC) and using them to participate actively in hostilities. The crimes were committed between early September 2002 and 13 August 2003 in Ituri, Democratic Republic of Congo (DRC). On 10 July 2012, Mr Lubanga was sentenced to 14 years in prison. On 7 August 2012, the Chamber issued its decision on reparation.
Appeals Chamber confirms Mr Lubanga's conviction
On 3 October 2012, Mr Lubanga appealed his conviction. He argued that:
Appeals Chamber’s Judgment
On 1 December 2014, the Appeals Chamber (AC) rejected the appeal. It rejected Mr Lubanga’s argument that the Chamber had convicted him on the basis of evidence, including video evidence, which did not allow a clear evaluation of whether children recruited/used were below 15. It clarified that the Appeals Chamber only intervenes if it finds that the conclusions in the original decision were unreasonable. In this instance, the Appeals Chamber considered that this was not the case.
The AC nevertheless found that Trial Chamber 1’s approach to the determination of whether a child was ‘actively participating in hostilities’ was flawed. It clarified that while the terms ‘to participate actively in hostilities’ reflected a wide variety of activities there should be a link between these activities and the combat in which the armed group of the perpetrator was engaged. However, the AC concluded that this error did not justify reversing Mr Lubanga’s conviction.
Judge Ušacka filed a dissenting opinion finding that the charges had not been sufficiently detailed and that the age of alleged child soldiers had not been proven beyond reasonable doubt. As a result, she submitted that the conviction should have been reversed. Judge Song also partly dissented. While finding that it was right to reject Mr Lubanga’s appeal, he found that the Trial Chamber erred in convicting him of three separate offences (conscription, enlistment and use of children to actively participate in hostilities) and that these should instead be considered three separate conducts of a single offence.
Appeals Chamber upholds sentence, review hearing coming up
On 3 October 2012, Mr Lubanga appealed his sentence. He argued that:
The Prosecutor also appealed the sentence calling for an increase. She argued that 14 years of prison was manifestly disproportionate in light of the gravity of the crimes for which Mr Lubanga had been convicted. She also argued that the Chamber had not sufficiently considered factors such as the particularly dangerous way young children were used in the UPC/FPLC or the effects enlistment and use in hostilities had on the former child soldiers.
On 1 December 2014, the Appeals Chamber dismissed the appeals. Here as well, the Appeals Chamber clarified that it only intervenes if it finds that the conclusions in the original decision were unreasonable, which it said was not the case in this instance. It also found that Mr Lubanga had not demonstrated that his detention in DRC was related to the conduct for which he had been convicted by the ICC.
On 16 July 2015, the Court will hold a hearing to consider whether Mr Lubanga’s sentence should be reduced. Article 110(3) of the Statute indeed provides that once a convicted person has served two thirds of his sentence, ‘the Court shall review that sentence to determine if it should be reduced’.
Appeals Chamber amends Decision on the principles and procedures on reparations
On 7 August 2012, Trial Chamber I issued its decision on the principles and procedures to be applied to reparations in the Lubanga case. In view of Mr Lubanga’s indigence, the Trial Chamber decided that:
Mr Lubanga argued that:
Appeals Chamber’s Judgment
On 3 March 2015, the Appeals Chamber found that Trial Chamber I's decision contained errors as a result of which the order for reparation needed to be amended. The Appeals Chamber clarified that an order for reparations must contain the following five elements:
The Appeals Chamber also found that:
The Appeals Chamber instructed the TFV to present a draft plan for collective reparations no later than 3 September 2015. The Appeals Chamber also exceptionally sought the Trust Fund’s assistance in assessing ‘the anticipated monetary amount that it considers necessary to remedy the harms caused by the crimes for which Mr Lubanga was convicted’. The parties will be able to appeal that finding.
Katanga case: Reparation phase opens
[Background] On 7 March 2014, Mr Katanga was convicted of murder as a crime against humanity and murder, attacking a civilian population, destruction of property and pillaging as war crimes in relation to an attack on Bogoro (Ituri, DRC) on 24 February 2003. He was sentenced to 12 years of imprisonment. Appeals against the conviction were discontinued and both the conviction and the sentence are thus final.
On 27 August 2014, Trial Chamber II (TC II) ordered the Registry to report on applications for reparations. Following consultations with 305 victims participating in the case, the Registry filed on 21 January 2015 a public version of its report.  On 27 January and 15 May 2015, the Legal Representative of Victims, Me Fidel Nsita, also submitted observations.
The filings set out that:
External stakeholders file submissions on reparation
On 1 April 2015, Trial Chamber II authorised four interveners to file observations on reparation in accordance with Article 75 of the Statute.
Parties and the Trust Fund make submissions on reparation
On 30 April, 13 and 14 May 2015, the Prosecution, the Trust Fund and the Defence respectively filed observations on reparation. Their submissions addressed, amongst others, the following issues:
The Defence, the Prosecutor and the Trust Fund agreed that only those who suffered harm as a result of the crimes for which Mr Katanga has been convicted should qualify as direct or indirect victims entitled to reparation. All agreed that the Chamber may consider inviting the Trust Fund to use its assistance mandate to support other victims including those of the crimes for which Mr Katanga was acquitted.
The Defence advanced that Mr Katanga’s liability for reparation should be proportional to the degree of his involvement in the crimes for which he was convicted; it stressed that Trial Chamber II had found Mr Katanga guilty on the basis of his awareness of the crimes rather than his intent that they be committed. The Prosecutor and the Trust Fund opposed this position.
The Trust Fund specified that its ability to complement reparation awards was only applicable to collective reparation and that its ‘other resources’ were not meant to complement individual reparation awards, such as financial compensation. The Defence highlighted that personal reparation awards may be more appropriate, noting that this was also the preference of victims. It opposed the Trust Fund’s submission that it could only contribute to collective reparation.
The Trust Fund suggested that the Chamber consider holding in situ reparation hearings and seek expert advice on the consequences of the harm suffered by victims. It also suggested that Trial Chamber II issues the reparation order in two successive parts:
Chamber sets deadline for new applications for reparation to be submitted
On 8 May 2015, the Chamber set 1 October 2015 as the deadline for the Registry to submit to the Chamber any new applications for reparations to be received as well as additional information relating to applications that have already been submitted.
Ngudjolo Chui’s acquittal confirmed on appeal
[Background] Mathieu Ngudjolo Chui was accused of three counts of crimes against humanity and seven counts of war crimes in relation to an attack against the village of Bogoro (Ituri) in 2003. Whilst Mr Katanga and Mr Ngudjolo’s cases were tried jointly, Trial Chamber II severed the cases on 21 November 2012. On 18 December 2012, Trial Chamber II acquitted Mr Ngudjolo finding that the evidence in its possession was not sufficient to establish beyond all reasonable doubt that he committed the alleged crimes. On 20 December 2012, the Prosecution appealed the verdict.
On 27 February 2015, the Appeals Chamber confirmed (by a majority of 3 judges to 2) Mr Ngudjolo’s acquittal. Judge Cuno Tarfusser and Judge Ekaterina Trendafilova dissented finding that Trial Chamber II had erred in refusing to allow the Prosecutor to access some of Mr Ndudjolo’s recorded phone conversations and that as a result, the acquittal should have been amended or reversed and a new trial ordered.
Ntaganda case moves to trial
[Background] On 9 June 2014, the charges against Bosco Ntaganda were unanimously confirmed. He is accused of 13 counts of war crimes (murder and attempted murder; attacking civilians; rape; sexual slavery of civilians; pillaging; displacement of civilians; attacking protected objects; destroying the enemy's property; and rape, sexual slavery, enlistment and conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities) and 5 counts of crimes against humanity (murder and attempted murder; rape; sexual slavery; persecution; forcible transfer of population). The alleged crimes relate to events that occurred in 2002-2003 in Ituri, DRC. On 4 July 2014, Pre-Trial Chamber II rejected the Defence’s application for leave to appeal the Confirmation of Charges Decision. The trial is set to start on 7 July 2015.
Trial to open in The Hague despite earlier recommendation for hearings in Bunia
On 19 March 2015, Trial Chamber VI recommended to the Presidency that the opening statements of the trial in the Ntaganda case should be held in Bunia, DRC. The Chamber considered that holding part of the proceedings in situ would bring them closer to affected communities and would be ‘in the interests of justice’.
On 15 June 2015, the Presidency ruled against holding the opening hearing in Bunia.  Taking into account new submissions by victims, the Prosecutor and the Registry, it decided that the opening statements would be held in The Hague. The Presidency concluded that the potential benefits of holding proceedings in Bunia were outweighed by various concerns including: security risks, the potential costs of holding the proceedings in situ, the fact that affected communities would have had limited access to the proceedings, as well as views submitted by victims which expressed fear for their own security, fear of heightened ethnic tension and concern that the accused’s return would remind them of the suffering and trauma experienced during the events in the case.
Chamber rules on the application process for the participation of victims at trial and legal representation
On 6 February 2015, the Chamber ruled in favour of a new approach for victims to apply to participate in the trial proceedings. The Chamber distinguished between victims participating directly in proceedings and those participating solely through a common legal representative (CLR). The Chamber indicated that the procedure to allow victims to participate in person would only be decided upon if and when the Chamber decided to allow for this kind of participation.
Regarding participation through a CLR, the Chamber endorsed the use of an individual simplified application form. It also delegated part of the application process to the Registry who will be required to:
The Chamber ruled that only applications that fall within Group C would go to the parties for observations and then be individually reviewed by the judges. The Chamber will endorse the Registry’s assessment for Group A and B applications unless there is a clear error.
The Registry is also tasked, every four months, to provide a detailed report, in coordination with the LRVs, about the general situation of participating victims.
In its 6 February decision, the Chamber had directed the Registry to consult with victims who participated during the confirmation stage on whether the current legal representation system (two counsels from OPCV) should be maintained. On 16 March 2016, the Registry recommended that OPCV continue to represent victims participating in the case, indicating that 81% of the victims consulted wished to continue to be represented by their current counsel. The Registry also stressed that victims had called for increased and more regular interactions with their lawyers. It thus submitted that the composition of and resources available to the legal representatives’ team should allow for frequent and quality contact between the legal representatives’ team and their clients.
On 16 June 2015, the Majority of the Chamber endorsed the Registry’s recommendation explaining that it could not identify any concrete reason to change a system that appeared to be functioning very well so far. Judge Ozaki dissented. She submitted that counsel from OPCV may not be or be perceived to be independent as they are part of the institution and that as a result an external counsel, based in DRC should have been appointed.
 Trial Chamber I had ruled that “[t]he decisive factor […] in deciding if an ‘indirect’ role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target”.
 Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute”, ICC-01/04-01/06-3122, 1 December 2014. http://icc-cpi.int/iccdocs/doc/doc1877186.pdf
 Appeal of the Defence for Mr Thomas Lubanga against Trial Chamber I’s “Decision establishing the principles and procedures to be applied to reparation rendered on 7 August 2012”, ICC-01/04-01/06-2917, 6 September 2012, http://icc-cpi.int/iccdocs/doc/doc1467508.pdf.
 Acte d’appel à l’encontre de la « Decision establishing the principles and procedures to be applied to reparation », ICC-01/04-01/06-2909, 24 August 2012, http://www.icc-cpi.int/iccdocs/doc/doc1458961.pdf; Acte d'appel des représentants légaux des victimes, équipe V01 contre la "Decision establishing the principles and procedures to be applied to reparation" du, ICC-01/04-01/06-2914, 3 Septembre 2012, http://www.icc-cpi.int/iccdocs/doc/doc1469944.pdf.
 See, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”, ICC-01/04-01/06-3129, 7 August 2012, http://www.icc-cpi.int/iccdocs/doc/doc1919024.pdf.
 The Registry’s Report on applications for reparations in accordance with Trial Chamber II’s Order of 27 August 2014, ICC-01/04-01/07-3512-Anx1-Red2, 21 January 2015, http://www.icc-cpi.int/iccdocs/doc/doc1902748.pdf.
 Redacted version of Observations des victimes sur les réparations, ICC-01/04-01/07-3514, 27 January 2015, http://www.icc-cpi.int/iccdocs/doc/doc1902885.pdf; Observations des victimes sur les principes et la procédure en réparation, ICC-01/04-01/07-3555, 15 May 2015, http://www.icc-cpi.int/iccdocs/doc/doc1976254.pdf.
 Queen's University Belfast's Human Rights Centre (HRC) and University of Ulster's Transitional Justice Institute (TJI) Submission on Reparations Issues pursuant to Article 75 of the Statute, ICC-01/04-01/07-3551, 14 May 2015, http://www.icc-cpi.int/iccdocs/doc/doc1977076.pdf.
 Observations de la Ligue pour la Paix, les Droits de l'Homme et la Justice (LIPADHOJ) présentées en vertu de l'article 75-3 du Statut, 15 May 2015, ICC-01/04-01/07-3552-Conf. The submission, while reclassified as public is not yet available. It is referred to in the Defence Consolidated Response to the Parties, Participants and Other Interested Persons’ Observations on Reparation, ICC-01/04-01/07-3564, 16 June 2015, http://www.icc-cpi.int/iccdocs/doc/doc1997243.pdf.
 Prosecution’s Observations on the Procedure for Reparations, ICC-01/04-01/07-3544, 30 April 2005, http://www.icc-cpi.int/iccdocs/doc/doc1969721.pdf ; Observations on Reparations Procedure, ICC-01/04-01/07-3548, Trust Fund, 13 May 2015, http://www.icc-cpi.int/iccdocs/doc/doc1976188.pdf ; Defence Observations on Reparations, ICC-01/04-01/07-3549, 14 May 2015, http://www.icc-cpi.int/iccdocs/doc/doc1977015.pdf.
 Décision sur la demande de clarification concernant la mise en œuvre de la Règle 94 du Règlement de procédure et de preuve et étapes ultérieures de la procédure, ICC-01/04-01/07-3546, 8 May 2015, http://www.icc-cpi.int/iccdocs/doc/doc1974452.pdf.
 See, Judgment on the Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment pursuant to article 74 of the Statute”, ICC-01/04-02/12-271, 27 February 2015, www.icc-cpi.int/iccdocs/doc/doc1918951.pdf.
 Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06-309, 9 June 2014, http://icc-cpi.int/iccdocs/doc/doc1783301.pdf.
 Decision on the “Requête de la Défense sollicitant l’autorisation d’interjeter appel de la Décision sur la confirmation des charges datée du 9 juin 2014”, ICC-01/04-02/06-322, 4 July 2014, http://icc-cpi.int/iccdocs/doc/doc1796795.pdf.
 At the time of writing the Defence has applied for the start of the trial to be postponed.
 Presidency Decision on the recommendation to the Presidency on holding part of the trial in the State concerned, ICC-01/04-02/06-645-Red, 15 June 2015, http://www.icc-cpi.int/iccdocs/doc/doc1985625.pdf.
 Decision on victims’ participation in trial proceedings, 6 February 2015, ICC-01/04-02/06-449,
 The Chamber indicated that Group B victims’ applications should be further sub-divided as follows: (i) applicants who failed to demonstrate their identity or kinship; (ii) applicants who suffered alleged harm outside the temporal scope of the charges; (iii) applicants who suffered alleged harm outside the geographic scope of the charges and (iv) applicants who were rejected for any other reason.
 Registry’s Report on Consultation with victims pursuant to Decision ICC- 01/04-02/06-499, ICC-01/04-02/06-513-Conf-Exp, 16 March 2014, http://www.icc-cpi.int/iccdocs/doc/doc1936284.pdf. However, the Registry also explained that many victims felt that they did not have enough information to be in a position to assess the performance of their legal representative and to make an informed decision on whether they should continue to represent them.