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LEGAL UPDATE April 2008

ICC Victims’ Rights Legal Update

14 April 2008

(pdf version)

 

DRC Situation

  • Appeal against the 24 December decision on the victims’ applications for participation
  • Appeal against the 7 December decision on the status of victims’ application procedure
  • Observations and Decision on the Notification of the Trust Fund for Victims (TFV)

DRC Lubanga Case

  • Appeal against the 18 January landmark decision on victims’ participation
  • Decision on the Victims Office (OPCV)’s role

DRC Katanga & Ngudjolo Case

  • Decision joining the Cases against Katanga and Ngudjolo
  • Decision on 12 applications for participation in the case

Darfur Situation

  • OTP and OPCD appeal the 6 December decision granting status to 11 victims
  • OPCD appeal brief on a Decision denying it additional information on victims’ applications

Uganda Situation & Case

  • Decision on the Notification of the Trust Fund for Victims
  • Decision on victims’ application for participation

 

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DRC Situation

Appeal against the 24 December decision on the victims’ applications for participation

[Background] On 6 February[1], Single Judge Sylvia Steiner granted the Prosecutor (OTP) and the Defence Office (OPCD) leave to appeal the 24 December decision, which granted status to 61 victims. On 18 February, both filed their briefs in support of the appeal.

OPCD claimed that “there can be no procedural status of victim during the investigative and pre-confirmation phase” because the personal interests of the applicants are not affected “in a general manner” at these stages[2].In addition, OPCD voiced that “applicants seeking to participate on the basis of moral harm should be required to adduce reliable documentation concerning the identification of the alleged primary victim, and the nature of their relationship to this person”. The Prosecution sustained that the Pre-Trial Chamber misinterpreted article 68(3) and its criteria and asked the Appeals Chamber to “direct the Pre-Trial Chamber to only grant a victim-applicant participation on the basis that their personal interest are specifically affected, in connection with identified proceedings before the Chamber, and specifying the modalities of their participation in those proceedings[3].

Legal representatives of victims as well as the Victims Office (OPCV) representing both victims[4] and applicants[5] applied to participate in the appeal. In line with the requirements set out for victims seeking to participate in an interlocutory appeal, they identified (i) whether and how the personal interests of victims are affected by the appeal, (ii) why it would be appropriate to allow them to present their views and (iii) why their participation would not prejudice the rights of the Defence. OPCV claimed that the issues raised by the defence sought to restrain or deny victims the right to participate at the investigation stage. OPCD[6] and OTP[7] presented their consolidated responses to all victims’ applications to participate in the appeal on 20 March. Both asked the Chamber to reject the participation of applicants.

Appeal against the 7 December decision on the status of victims’ application procedure

On 23 January, OPCD was granted leave to appeal the 7 December decision that denied OPCD’s request that victim-applicants provide supplementary information. Legal representatives of victims submitted their requests for leave to participate, arguing that the issues raised could impact on the procedural status of victims in the situation and on their ability to present their views and concerns. OPCV requested to participate in the appeal[8], underlying that the scope of the appeal, as defined by the Judge, is much broader than the issues initially raised by OPCD and that the impact on victims’ rights could be even greater. OTP and OPCD responded to these applications on 4 March, asking the Chamber to reject applicants’ requests to participate in the appeal.

Observations and Decision on the Notification of the Trust Fund for Victims (TFV)

[Background] On 24 January, the Board of Directors of the Trust Fund notified Pre-Trial Chamber I of specific projects to assist victims’ in DRC[9]. On 5 February, parties and participants were invited to file their observations by 20 February.

Legal representatives of victims[10], OPCV[11] and OTP[12] stated that the projects do not predetermine any issue to be determined by the court, they do not violate the presumption of innocence nor are they prejudicial to or inconsistent with the rights of the accused and a fair trial. Nonetheless, OPCV and legal representatives also opined that, as it refers to the notions of “accused” and “trial”, Regulation 50-a-ii seems to apply only at the trial stage. The Prosecution partly based its conclusion on the fact that “the projects are aimed at benefiting general groups of victims and not specific individuals participating in the proceedings of the case“. 

OPCD stated that the information provided by the Board was not sufficient[13]. It requested additional information on the intermediaries, the date, location and nature of the alleged crimes, and expressed concerns that the process could “predetermine any case-related litigation concerning the principles governing reparations”. On 28 February, the Chamber allowed the Board to respond to OPCD. The Board argued that the two mandates were mixed up by OPCD and that the projects identified are not dealing with reparations but with its role to assist victims[14].

On 11 April, Pre-Trial Chamber I approved the TFV’s projects recommending nonetheless that, “before resorting to any other activities or projects, the Board […], undertake a study evaluating and anticipating the resources which would be needed to execute in the cases pending before this Court an eventual reparation order pursuant to article 75 of the Statute[15].

 

DRC Lubanga Case

Appeal against the 18 January landmark decision on victims’ participation

[Background] On 28 January, the Defence and Prosecution sought to appeal the landmark 18 January decision[16] which set important precedents regarding victims’ participation.

On 26 February, besides Judge Blattman’s dissenting opinion, Trial Chamber I granted leave to both appeals on the following issues[17]:

i) Whether the notion of victim necessarily implies the existence of personal and direct harm;

ii) Whether the harm alleged by a victim and the concept of "personal interests" under Article 68 of the Statute must be linked with the charges against the accused;

iii) Whether it is possible for victims participating at trial to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence.

On 10 March, the Prosecution[18] and the Defence[19] issued their appeal briefs. Legal representatives of victims[20] and OPCV[21] applied to participate in the appeal and on 7 April, the Defence and Prosecution filed their responses. They both agreed that only victims recognised in the case should be allowed to participate. OTP added observations on the modalities of such participation, stating that legal representatives of victims should only be authorised to file their views and concerns in written, and that OTP and the Defence should be permitted to respond to any of the filings.

Decision on the Victims Office’s role

[Background] On 9 January, hearings were held on issues to be considered prior to the commencement of the Lubanga trial, including the dual role of OPCV.

On 6 March 2008, Trial Chamber I decided that it was important to prevent conflicts of interest with respect to the dual role of OPCV and that the core role of the Office, given its “limited” resources, should be providing support and assistance to legal representatives of victims and victims themselves. The capacity of OPCV as legal representative of victims should be limited and temporary.[22]

The Chamber also clarified that OPCV is not itself a party to or a participant in proceedings; opportunities for the Office to appear before the Chamber can be triggered by: (i) the Chamber; (ii) a victim or his or her representative, who has asked for OPCV’s assistance; (iii) OPCV, if it is representing one or more victims; or (iv) OPCV, if granted leave to address the Chamber on a specific issue. The Trial Chamber also indicated in its capacity as a legal representative, OPCV should have the same access to documents as other legal representatives.

 

DRC Katanga & Ngudjolo Case

Decision on joining the Cases against Germain Katanga and Mathieu Ngudjolo

On 10 March, Pre-Trial Chamber I decided to join the cases of Germain Katanga and Mathieu Ngudjolo as the Defence failed to show that the joining would be prejudicial[23]. The hearing on the confirmation of the joint charges has been set to start on 21 May.

Decision on 12 applications for participation in the case

On 13 February, Katanga’s Defence sought to appeal the 7 February decision authorising observations on victims’ applications to participate in the case. The Defence had been provided with redacted versions of the applications due to ongoing insecurity in the DRC. However, on 27 February[24], Judge Sylvia Steiner rejected the Defence request.

On 20 March[25], Katanga’s Defence filed its observations, stating that the applications were excessively redacted and requested access to the Registrar’s reports on the applications. Katanga challenged the legal validity and authenticity of the documents provided and claimed not to be in position to verify the statements which he claimed were highly prejudicial to his client.

On 2 April, the Judge granted victim status to 5 victims both in the Pre-Trial stage of the joint case and in the DRC situation proceedings[26]. She rejected Katanga’s request to access the Registry’s reports and also rejected the other 7 applications mainly because the victimisation suffered did not coincide with the specific time frame of the attack on Bogoro village on or around 24 February  2003.

Modalities of participation at the pre-trial stage

Following the 2nd April decision, legal representatives of victims filed observations on the non-disclosure of their clients’ identities and on the procedural rights that should apply at the pre-trial stage:

  • The legal representative of victim a/0333/07[27] asked that his client’s identity not be disclosed;
  • As regards the confirmation of charges hearing, he claimed the right to:

(i) have access to the full case and situation record,
(ii) participate in hearings,
(iii) submit observations, either oral or written, on issues related to the trial preparation and development and,

The other victims[28] allowed disclosure of their identity to Katanga and Ngudjolo but not the public. These victims requested access to the full case and situation index and claimed to be authorised to participate in all Status conferences (open or closed sessions).
As regards the confirmation of charges hearing, they claimed the right to:

(i) present observations at the beginning and at the end of the hearing,
(ii) to intervene during open sessions whenever victims’ interest is concerned by the issues raised during the hearing,
(iii) interview witnesses according to Rules 91-3 of the Rules of Procedure & Evidence.

(iv) have the opportunity to respond observations presented by OTP or the Defence.

The decision on modalities is pending.

 

Darfur Situation

OTP and OPCD appeal the 6 December decision granting status to 11 victims

[Background] On 12 December, both OTP and OPCD sought to appeal the 6 December decision granting victim status to 11 applicants. On 6 February, Judge Steiner partly granted their requests[29].

On 18 February, OPCD[30] and the Prosecution[31] presented their appeal briefs challenging victims' applications to participate in the Darfur situation proceedings. (See above: similar to proceedings in the DRC situation – appeal of the 24 December decision)

OPCD file appeal brief on Decision denying additional information on victims’ applications

[Background] On 3 December, Single Judge Steiner rejected OPCD’s request for additional information on victims’ applications. On 23 January, she granted ODCP leave to appeal the decision[32].

On 4 February, OPCD filed its appeal brief[33]. (See above the similar proceedings in the DRC situation – appeal of the 7 December decision). Legal representatives filed their applications for participation.

 

Uganda Situation & case

Decision on the Notification of the Trust Fund for Victims (TVF)

[Background] On 28 January, the Trust Fund for Victims notified Pre-Trial Chamber II that it had assessed needs in Northern Uganda and identified rehabilitation projects in accordance with Regulation 50[34]. Legal representatives of victims[35], the Prosecution[36] and OPCD[37] filed their observations. They all defended a similar opinions as in the DRC situation (see above).

On 19 March, Pre-Trial Chamber II approved the implementation of the activities proposed by the TFV[38]. It decided that the information provided was sufficient (in contrast to the position taken by the Pre-Trial Chamber in the DRC situation)[39]. It stated that “the proposed activities are defined in general and nondiscriminatory terms, without reference to any identified alleged perpetrator, specific crime or location or individually identified victim and thus they are not incompatible with the criteria laid down in regulation 50 (a)(ii) of the TFV Regulations”.

Decision on victims’ application for participation

On 14 March, Pre-Trial Chamber II rendered a decision on 41 victims’ applications for participation[40]. 4 applicants were granted status in the situation, 5 in the case against the top LRA commanders and 3 in both the situation and the case. The Judge asked VPRS to provide information that would corroborate the statements made by 12 other applicants. Single Judge Mauro Politi rejected one applicant in the situation and deferred the decision on 16 others due to missing documents.

Documents requested in support of an application:

Single Judge Politi raised the issue of documents to prove identity: on 1 February 2007 he had decided that documents proving identity should “(i) be issued by a recognised public authority; (ii) state the name and the date of birth of the holder, and (iii) show a photograph of the holder”. However, in October 2007, at the request of the Chamber, VPRS issued a report on available documentation in Uganda. As a result, the Judge has now decided that the February 2007 requirements must be widened. The Judge indicated that he would assess the applications considering:

(i) whether the identity of the applicant as a natural person appears duly established; (ii) whether the events described by each applicant constitute a crime within the jurisdiction of the Court; (iii) whether the applicant claims to have suffered harm; and (iv) most crucially, whether such harm appears to have arisen "as a result" of the event constituting a crime within the jurisdiction of the Court”.

Finally, the Judge pointed out that when the events described in the applications are not those appearing in the warrants of arrest in the Case, the statements would need to be corroborated by sufficient information from other sources.

On 25 March, the Defence sought to appeal the decision on two grounds[41] (see the similar proceedings in the DRC and Darfur situations). The Prosecution didn’t oppose the Defence request[42].

 

 
 

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] ICC 01/04-444, 6 February 2008, http://www.icc-cpi.int/NR/exeres/5E017C2B-2A20-49F2-B1B5-6B65AEA1088A.htm

[2] ICC 01/04-455, 18 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc440542.PDF

[4] ICC 01/04-475, 28 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc463788.PDF

[5] ICC 01/04, 478, 28 Febraury 2008, http://www.icc-cpi.int/iccdocs/doc/doc444818.PDF

[6] ICC 01/04-489, 20 March 2008, http://www.icc-cpi.int/iccdocs/doc/doc460143.PDF

[7] ICC 01/04-488, 20 March 2008, http://www.icc-cpi.int/iccdocs/doc/doc460138.PDF

[8] ICC 01/04-466, 21 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc463786.PDF and ICC 01/04-467, 21 February, http://www.icc-cpi.int/iccdocs/doc/doc434876.PDF

[10] ICC 01/04-463, 20 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc467941.PDF (French)  and ICC 01/04-461, http://www.icc-cpi.int/iccdocs/doc/doc467939.PDF

[11] ICC 01/04-460, 20 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc467938.PDF (French)

[12] ICC 01/04-462, 20 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc467940.PDF

[21] ICC 01/04-01/06-1228, 18 March 2008, http://www.icc-cpi.int/iccdocs/doc/doc457036.PDF

[36] ICC 02/04-119, 19 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc442527.PDF

[38] ICC 02/04-126, 19 March 2008, http://www.icc-cpi.int/iccdocs/doc/doc459788.PDF

[39] ICC 02/04-01/05-280, 14 March 2008, http://www.icc-cpi.int/iccdocs/doc/doc454993.PDF