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LEGAL UPDATE April 2007

 

ICC Victim’s Rights Legal Update

14 April 2007

(pdf version)

 

Note: this is not a comprehensive summary; it only relates to key developments impacting on victims’ rights within the ICC’s jurisdiction since the beginning of March 2007.

 

Darfur Situation

  • Ad hoc counsel for the defense is released from his responsibilities

DRC-Lubanga Case

  • Lubanga case enters new phase: Trial Chamber was constituted and new Defense Counsel designated.
  • The OTP opposes Defense’s request to appeal except in relation to certain issues
  • OTP highlights the need for protection of witnesses and victims.

Uganda Situation and Cases

  • The Office of Public Counsel for Victims (OPCV) is denied access to material due to security of victims and witnesses.
  • The Prosecutor continues to seek disclosure of unredacted victims’ applications.
  • The OPCV provides independent assessment on victims’ applications in Uganda situation
  • OTP and Defense object to OPCV making submissions on victims’ applications and protective measures.
  • The Prosecutor calls for the withdrawal of the arrest warrant against Raska LUKWIYA

 

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Situation in Darfur

Ad hoc counsel for the defense is released from his responsibilities

On 15 March, Maitre Shalluf was released from his responsibilities following the Court’s decision to terminate proceedings under Rule 103 (interveners). The Court highlighted abuses of procedure by the Counsel through baseless, frivolous and vexatious claims. An attempt to appeal that decision was turned down a few days later by the Court.

 

DRC - Lubanga Case

Lubanga case enters new phase: Trial Chamber was constituted and new Defense Counsel designated.

A Trial Chamber was constituted on 6 March, to which the Lubanga case has been referred.[1] Trial Chamber I is composed of Judge Elizabeth Odio Benito (Costa Rica), Judge René Blattmann (Bolivia), and Judge Adrian Fulford (UK).

However, the transmission of documents to the Trial Chamber was halted to allow Lubanga to be assigned a new defense counsel and to give him/her sufficient time to be familiarized with the case.

[Background] Maitre Flamme filed a confidential request to be removed from the case on 20 February. The exact reasons are not known, (though there were disputes regarding the Registrar’s refusal to remunerate certain portions of the work undertaken).  Maitre Catherine Mabille was selected by Lubanga and was assigned as his counsel on 20 March. However, she listed some preconditions on the composition of her team, and has not accepted the position as yet. The proceedings are suspended until she formally accepts. On 5 April, the Registrar asked the Court to require that she takes a decision without delay.

The OTP opposes Defense’s request to appeal except in relation to certain issues

[Background] On 5 February the Defence filed a confidential request to appeal the confirmation of charges (in parallel with the public one also filed). The defence also filed a confidential request to appeal the confirmation decision. A redacted version was filed publicly at the Chambers’ request: the Defence claimed that the confirmation of charges decision may impede fair and expeditious conduct of the proceedings. He claimed that inter alia the Chamber had erred in accepting Prosecution evidence after the stipulated deadline; that it had erred in modifying the charges as presented by the Prosecutor and that it had erred in refusing that the defence withdraw statements of witnesses from its list of evidence.

Following Lubanga’s appeal request, the Prosecutor responded by saying that he was generally opposed to leave being granted except in relation to matters such as the Chamber’s determination on issues that had not been raised at the confirmation hearing.[2]

OTP highlights the need for protection of witnesses and victims.[3]

On 29 March 2007 the Prosecutor highlighted issues to be given consideration in anticipation of the first status conference in the Lubanga trial. He stressed the need for the Chamber to establish an efficient system to protect witnesses’ identities with the involvement of the Victims and Witnesses Unit (VWU). He stated that the release of witnesses’ names by the Prosecutor should only be made shortly before the hearing due to security concerns.

 

Uganda Situation and cases

The Office of Public Counsel for Victims (OPCV) is denied access to material due to security of victims and witnesses.[4]

[Background] An ex parte closed hearing was held on 12 February to discuss how and to what extent the Office of Public Counsel for Victims (OPCV) should have access to confidential material in fulfilling the tasks entrusted to it.

On 16 March 2007, the Court rejected OPCV’s request to access documents or material included in the record whether of the situation or of the case bearing upon issues of security and safety of victims and witnesses. The Court also called upon OPCV to refrain from taking initiative on tasks entrusted to it prior to seeking and obtaining advice from the relevant Registry sections with specific responsibilities in the area of victims’ safety and security. 

The Prosecutor continues to seek disclosure of unredacted victims’ applications

[Background] The Office of the Prosecutor (OTP) requested that redactions should be lifted from victims’ applications submitted for his observations. His request was dismissed on 20 February as was his request for leave to appeal the decision.[5]

On 23 March 2007, OTP applied to vary protective measures under Regulation 42(3) by lifting redactions from victims’ applications.[6] He argued that failure to do so would create inconsistencies with previous rulings by the Court in the DRC situation and Lubanga case and with jurisprudence from other international tribunals. He recalled the July 2005 Decision on Protective Measures requested by Applicants 01/04-1/dp to 01/04-6/dp in the DRC situation which recalls the confidentiality duty of the OTP,[7] he also stated that the Prosecutor is already aware of the situation of many victims. Moreover, he claimed that the decision failed to demonstrate that such redactions were “strictly necessary”.

On 4 April, OTP’s applications to lift the redactions were dismissed. The Court held that the OTP failed to demonstrate a change in circumstances justifying a variation of the protective measure.

The OPCV provides independent assessment on victims’ applications in Uganda situation

On 26 March 2007, after conducting a visit in Uganda, OPCV submitted information that it judged useful for the assessment of victims’ applications to participate in the proceedings.[8]

  • It claimed that victims’ participation in the situation is consistent with the Rules and Statute, referring to the preparatory works for the drafting of the documents. The Office also referred to the jurisprudence of the European Court of Human Rights and of the Inter-American Court of Human Rights which recognize victims’ participation at the investigation stage.
  • Regarding their participation, OPCV found that all but one of the 49 applications should be granted victim status in the situation (the events concerning a/0089/06 took place before 1st July 2002). OPCV indicated specifically that 21 applications (a/0010/2006, a/0081/06, a/0090/06, a/0094/06, a/0095/06, a/0097/06, a/0098/06, a/0100/06, a/0103/06, a/0111/06, a/112/06, a/0113/06, a/0116/06, a/0117/06, a/118/06, a/0119/06, a/0120/06, a/0121/06, a/0122/06, a/0123/06 and a/0124/06)  out of the 49 received should be granted victim status.

OTP and Defense object to OPCV making submissions on victims’ applications and protective measures.

[Background] On 26 March OPCV submitted its observations on victims’ applications (see above). On 23 March OTP applied on for variation of protecting measures (see above).

Recalling its obligation to provide support to the 49 Ugandan victim applicants, OPCV,[9] indicated that the victims should have a right to be heard on the variation of the protective measures. It requested leave to respond to OTP’s observations on the lifting of redactions and in the alternative that the victims should be heard; it also asked leave to respond/reply to any submission from OTP or the Defense relating to the protection of applicants in both the situation and the case.

On 3 April OTP objected to OPCV’s submissions stating that OPCV had exceeded its mandate as provided by the Statute and Rules. OTP recalled the 1st February decision that denied the victims a legal representative at this stage. In addition, OTP argued that OPCV’s position on each victim application was contrary to its duty to support all applicants. Moreover it claimed that the OPCV was acting as de facto independent advisor to the Single Judge while it did not have any mandate to do so.

In its decision of 4 April, the Court took the opportunity to state that the admissibility of OPCV’s submissions would be analyzed on a case by case basis.

On 10 April, the Defense submitted its observations, agreeing with OTP’s that OPCV had exceeded its mandate. 

The Prosecutor calls for the withdrawal of the arrest warrant against Raska LUKWIYA[10]

Following reports of Lukwiya’s death and DNA tests supporting the fact, on 22 March the Prosecutor called for the withdrawal of the arrest warrant indicating that even though no death certificate had been issued, the death had not been contested and that maintaining the warrant could create confusion.

 

 
 

The Victims' Rights Working Group (VRWG) is a network of over 200 civil society groups and individual experts created in 1997 under the auspices of the NGO Coalition for an International Criminal Court. Affiliated organisations include NGOs from Uganda, DRC and Sudan as well as international NGOs. The VRWG works to ensure that victims’ rights are effectively protected and respected, and that their needs and concerns are met throughout the judicial process of the ICC. Particular attention is paid to the need to ensure that the Court will render not only retributive, but also restorative justice, that will aim, inter alia, to prevent re-victimization, to break cycles of violence and war, and to provide reparations and rehabilitation for victims. The VRWG advocates for fair and effective structures and procedures at the Court to facilitate victims' full and active participation. For a list of affiliated organisations see our website See http://www.vrwg.org

 


 

 

 

 

 

 

 

 

 

[1] Decision constituting Trial Chamber I and referring to it the case of The Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06-842, 6 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc248266.PDF

[2] Prosecution's Response to Defense Request for Leave to Appeal the Pre-Trial Chamber's 'Décision sur la confirmation des charges', ICC-01/04-01/06-843, 29 January 2007, http://www.icc-cpi.int/iccdocs/doc/doc248262.PDF

[3] Prosecution's Submission in Anticipation of a Status Conference, ICC-01/04-01/06-853, 29 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc253423.PDF

[4] Decision on the OPCV's 'Request to access documents and material', ICC-02/04-01/05-222, 16 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc297248.PDF

[5] See March legal update and Decision on the "Prosecution's Request for Leave to Appeal the Decision Denying the 'Application to Lift Redactions From Applications for Victims' Participation to be Provided to the OTP' ", ICC-02/04-01/05-219, 9 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc297243.PDF

[6] Prosecution’s Application under Regulation 42(3) to Vary Protective Measures by Lifting Redactions from Applications for Victims’ Participation Provided to the OTP, and To Submit a Further Reply under Rule 89(1) in the Case and Situation, ICC-02/04-88, 22 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc349123.PDF

[7] See Public Redacted Version of the Decision, ICC 01/04-73, 21 July 2005, http://www.icc-cpi.int/iccdocs/doc/doc183712.PDF

[8] OPCV's Observations on the Victims' Applications a/0010/06, a/0064/06to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 to participate in the Uganda situation and in the case The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen, ICC-02/04-89, 26 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc349124.PDF

[9] OPCV's Request to appear before the Single Judge or to otherwise beheard on the protective measures for Applicant a/0010/06, a/0064/06 to  a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 in the Uganda situation an in the case The Prosecutor v. Joseph Kony, VincentOtti, Okot Odhiambo, Raska Lukwiya and Dominic Ongwen an to file a response to the Prosecution's Application to vary protective measures ICC-02/04-90,  29 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc350234.PDF

[10] Prosecution's Request that the Warrant of Arrest for Raska LUKWIYA Be Withdrawn and Rendered Without Effect Because of His DeathICC-02/04-01/05-230,  22 March 2007, http://www.icc-cpi.int/iccdocs/doc/doc297257.PDF and ICC-02/04-01/05-230-Anx1, 22 March 2007,  http://www.icc-cpi.int/iccdocs/doc/doc297258.PDF