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LEGAL UPDATE April 2009

ICC Victims’ Rights Legal Update

20 April 2009

(pdf version)

 

 DRC Situation

Lubanga Case

Katanga & Ngudjolo Case

Bosco Ntaganda Case


Uganda Situation

Kony, Otti, Okot Odhinambo & Dominic Ongwen Case


Darfur, Sudan Situation

Al-Bashir Case

Ahmad Harun & Ali Kushayb

 
CAR Situation

Jean-Pierre Bemba Case


 

DRC Situation

Legal Aid for Victims still subject to onerous administrative burdens

On 19 February 2009, the Presidency provided a reasoned decision[1] on why it had dismissed Mr. Keta’s request for judicial review of the Registrar's decision on legal aid filed on behalf of victims he represents.[2]

Background: On 28 March 2008, the Registrar issued a decision on the indigence of victims and their eligibility for legal assistance paid by the Court. The Registrar provisionally deemed the victims to be indigent, pending an investigation into their property and assets. The Registrar noted that the victims had not signed declarations confirming that they were unable to afford legal representation and, on an exceptional basis, accepted declarations signed by Mr. Keta on their behalf. However, such acceptance was temporary and subject to the Registrar receiving declarations signed by the victims themselves. Mr. Keta sought a judicial review of this decision,[3] seeking to set aside the need for the victims to sign a declaration of indigence in addition to completing a participation form (that also includes their signature and details of their circumstances). On 17 December 2008 the Presidency dismissed Mr Keta’s request for a review of the 28 March decision.[4]

On 19 February 2009, the Presidency found that the Registrar’s decision of 28 March 2008 was in accordance with current provisions governing legal assistance,[5] but that because the Registry has still to finalize its review of the legal assistance scheme to victims, the application should be dismissed. However, the Presidency requested that the Registry consider the viability of the scheme proposed by Mr. Keta in its report to the Assembly of States Parties.

Pre Trial Chamber gives victims access to defence office’s observations on its applications to participate

On 10 December 2008,[6] victim representatives applied to the Pre-Trial Chamber to see the unredacted version of OPCD’s (Office for Public Counsel of the Defence) observations on 28 victim participation forms, and for an opportunity to respond. The Single Judge Ušacka ruled in favour of the request, ordering that:

1)    OPCD should file an unredacted version of paragraphs 11 to 13 of its observations on a confidential basis (available only to the OPCD, Prosecutor and victims’ Representatives) by 12 December 2008, and

2)    The victims’ representative should file a response to OPCD’s observations contained in paragraphs 11 to 13 by 9 January 2009.

Appeals Decision reverses victim participation in Situation/ investigation phase

On 19 December 2008, the Appeals Chamber (AC)reversed two Pre-Trial Chamber 1 (PTCI) decisions on victim participation, whether it is possible to accord procedural status to victims in the investigative stage of a situation. [7] It recalls the Darfur decision stating that application process for victims’ participation is prior to, distinct and separate from the determination and the exercise of the modalities of participation, on 2 February 2009. 

Background:The 7 December and 24 December 2007[8] decisions stated that the stage of investigation into a situation and Pre-Trial stage of a case are appropriate stages for victim to participate. They went further by saying that “there is a procedural status of victims” in relation to a situation and cases proceedings.  

In reversing the PTCI decisions, the AC held that a Pre-Trial Chamber cannot grant procedural status to a victim as such but does not say that victims should not be allowed to participate in proceedings at the situation stage. Consequently victim’s procedural rights are not participation status rights.

The Appeal chamber makes it clear that this decision “does not preclude victims to seek participation in specific judicial proceedings including ones affecting investigation provided their personal interests are affected”.

It does not however indicate how the Pre Trial Chamber should thus deal with victims’ applications for participation in the investigation stage of the situation except for saying that PTC will have to decide itself on a case by case basis under the provisions of the Courts’ texts and that participatory rights can only be granted under art 68(3) and once the provisions of that articles are fulfilled, if their personal interests are concerned.

The Lubanga case  

On 26 January 2009, the ICC opened its first trial in the case against Thomas Lubanga. Lubanga was the first person charged in the DRC situation as well as the Court’s first detainee. Transcripts of the public hearings are available on the Court’s website.[9] Opening statements for the prosecution and victims’ representatives took place on 26 January.[10] Since then, witnesses have been called by the Prosecution, including former child soldiers.

Issues concerning dual status of victims and witnesses addressed

  • Four victims that are also Prosecution witnesses seek permission to question witnesses: On 26 January 2009,[11] four prosecution witnesses that OPCV represents seek[12] authorisation to question four witnesses immediately after the close of the Prosecutions questions, in respect of issues within the interests of these victims not already covered by the Prosecution questions. 

  • Inappropriate contact between witnesses and legal representatives will be avoided: During the 12 January 2009 status conference, the Defence raised the need to ensure spontaneity in testimony when it came to witnesses who were also participating as victims. Inappropriate contact between witnesses and their lawyers has to be avoided. On 15 January 2009, the victims’ representatives filed joint observations;[13] agreeing with this point. While the legal representatives should never be prevented from meeting and discussing with their clients, of course they are bound by their code of conduct which guides them in appropriate conduct and discussions.

  • Victims’ Representatives may be called to disclose evidence: In the absence of a legal framework obliging victims’ representatives to disclose evidence they may have collected, the Trial Chamber decided[14] that they could be called to disclose information other than what they intend to use in Court. The Trial Chamber (confirmed on Appeal) had already determined that in cases where the Chamber decides to allow evidence to be submitted by a legal representative, it will determine the manner in which such evidence should be communicated to the parties.

Trial Chamber clarifies “direct” / “indirect victims”:   Victims of child soldiers’ conduct are excluded

The Registry requested guidance for the Trial Chamber on whether ‘indirect victims’, including those who have suffered harm as a result of crimes committed by children recruited by the UPC, could participate in trial proceedings. 19 sample victim applications[15] were provided to the Chamber by the Registry (VPRS). The Trial Chamber sought observations on these applications by the parties. The Prosecution provided its observations on 5 December 2008[16], followed by OPCV[17] (Office of Public Counsel for Victims) and the Defence.[18]

On 8 April 2009[19], the Trial Chamber recalled its decision of 18 January 2008, in which it held that "people can be the direct or indirect victims of a crime within the jurisdiction of the Court."[20] It indicated, that two categories of victims can participate: those whose harm is a direct result of a crime within the jurisdiction of the Court, and "indirect victims": those whose harm is a result of the suffering of direct victims.

  • For direct victims: the injury, loss or damage suffered by natural persons must result from the crimes confirmed against Thomas Lubanga. Thus, direct victims of these crimes are the children below fifteen years of age who were allegedly conscripted, enlisted or used actively to participate in hostilities by the UPC within the time period confirmed by the Pre-Trial Chamber.

  • Indirect victims must establish that, as a result of their relationship with the direct victim, the loss, injury, or damage suffered by the latter gives rise to harm to them. Examples include close personal relationships, or when a person intervenes to prevent one of the crimes alleged against the accused. Excluded from the category of "indirect victims", however, those who suffered harm as a result of the conduct of direct victims.

Victims’ representatives seek to obtain evidence and examine witnesses

On 26 February 2009, the victims’ representatives filed a joint submission[21] on the communication of evidence and records produced during the trial. They asked the Trial Chamber to confirm that evidence and records not yet filed in the case needed to be communicated to the parties and that, victims’ representatives had the right to question witnesses after the Defence’s cross examination.

The defence responded on 2 March,[22]asking the Chamber to reject the request and to declare that only victims authorised to question witnesses will have access to evidence not yet filed in the case, assuming that a direct link with the victims’ personal interests has been proved.

The Prosecutor also responded on 2 March.[23] The view of the Prosecutor was that victims’ representatives should not be given a general right in the abstract to receive in advance all documents that the parties intend to introduce at trial; only specific rights should be granted on a case-by-case basis when personal interests are demonstrated. The Prosecution submitted that victims only ought to be permitted to make discrete applications to examine witnesses in appropriate circumstances where they can demonstrate that their personal interests are affected and their participation is not inconsistent with the rights of the Accused. A decision is still pending.

Trial Chamber clarifies scope and nature of expert witness testimony

On 6 February 2009, the Trial Chamber issued a decision[24] containing instructions to an expert witness on child soldiers and trauma, after having sought input from the parties on the nature and scope of the instructions. The report of the expert witness Elizabeth Schauer is available online,[25] as is the Report prepared by Mr. Roberto Garreton, former UN Special Rapporteur for DRC, which provides a background on the conflict in Ituri.[26]

Victims’ representatives clarify the use of first and second names in DRC

On 20 March 2009 several Congolese victims’ lawyers filed a submission explaining the use of names in the DRC,[27] in light of the fact that the identity of witnesses has become the subject of repeated questioning during the proceedings. The defence had raised the issue of variances in the names of witnesses on different documents on many occasions. 

Prior to the commencement of Trial the following issues were addressed

Registrar recognises indigence of certain victims and asks them to apply for legal aid when necessary to protect their interests

On 19 January 2009, the Registrar took a decision on the indigence of victims.[28] Its preliminary assessment was that the victims do not have sufficient means to pay for all or any of their legal costs. The Registrar decided to provisionally consider the applicants wholly indigent, pending the outcome of the investigation into their property and assets. However, it invited the applicants to apply for legal assistance on a case-by-case basis when action to preserve their interests in the proceedings was necessary.

In an earlier decision on 9 January 2009,[29] the Registrar determined that three out of thirteen of Maitre Diakese’s clients should be granted indigent status on a provisionally basis. Four of them are not to be considered indigent at this point (as they didn’t fill in the form regarding assets) and that the rest would be considered on a case-by-case basis.

Clarification is sought on the role of OPCV

On 19 December 2008[30], OPCV asked the Chamber to appoint her as legal representative of victims’ a/0047/06 to a/0052/06, a/0078/06 and a/0149/08, until a common legal representative is chosen by them or appointed by the Chamber itself.

On 26 December 2009,victims’ representatives submitted a joint request about the role of OPCV.[31] They noted that the decision to appoint OPCV as counsel for certain victims was provisional. If OPCV were to continue to represent such victims for the duration of the trial, this would negatively impact on their other functions, notably the assistance the office is supposed to provide to other counsel.

Statements by Victims’ representatives’ on their intention to participate during the trial[32]

On 6 January 2009, OPCV made a statement on behalf of the victims it represents,[33] followed by Mr. Diakese on 8 January 2009,[34] Mr. Keta[35] and Mr. Mulamba[36] on 9 January 2009.

Legal Representatives propose to form two groups and have OPCV continue to represent 4 victims

On 14 January 2009,[37] following Chambers’ invitation that victims’ representatives propose how they will regroup common legal representation, the lawyers presented joint observations that they will form two groups and request OPCV to continue to represent four victims. They also sought authorization to make 20 minute statements at the opening of the trial. The defense responded on 15 January 2009[38]that the use of the OPCV as a legal representative was meant to be provisional and so it requests the Registrar to appoint another legal representative.

Victims and Witnesses Unit issue report on preparation of witnesses for testimony

Following discussion regarding the preparation of witnesses for testimony, the Victims and Witnesses Unit of the Registry issued a report on practices used to prepare and familiarize witnesses for testimony at trial.[39] They explain that familiarization starts when the witness arrives in The Hague. Copies of witness statements are provided to the witnesses to read in the secure area of VWU, where only staffs of the VWU and security services are permitted. The VWU raises concerns that if the parties are allowed to be present, this would be a high number of persons in the room, and recommends to restrict the number of persons to 3 – one for defence, prosecution and victims’ legal representative. The process for obtaining a copy of a witness statement is also explained, as is the familiarization film that witnesses watch as part of the familiarization process. 

Defence tries to appeal victim’s participation in trial - decision is still pending

On 22 December 2008, the defense sought to appeal[40] two decisions granting victims the right to participate in the proceedings[41]. The Defence raised three issues:

1)     The Chamber has overstepped its jurisdiction by permitting victims alleging damages as a result of crimes other than those confirmed by Trial Chamber

2)     The Trial Chamber erred in admitting applicants whose requests included significant contradictions

3)     The Trial Chamber erred in law when it declared admissible requests by minors “without legal capacity” and recognizing them the ability to give their consent to a third party to make a request on their behalf. On 26 December 2009 the victims’ legal representatives made observations about the Defense request to appeal, asking the Chamber to reject it.[42] And on 29 December 2008, OPCV also made a response to the Defense request.[43]

Prosecutor and Defence application for leave to appeal has been denied

The Trial Chamber denied on the 16 December 2008[44]  the request formulated by the Prosecution and Defence for leave to appeal the decision issued by the Trial Chamber on 24 April 2008, on disclosure issues, responsibilities for protective measures and other procedural matters.[45]

Background: The Decision addressed, inter alia, the respective responsibilities of VWU and Prosecution for providing protective measures for witnesses; the prosecution's obligation of disclosure; certain redactions to evidence requested by the prosecution; and the disclosure of potentially exculpatory material.

The Chamber denies applications for protective measures

On the 9 December 2008,[46] in order to prevent witness ‘proofing’, the TCI rejected the prosecution’s oral request to speak with victims on their arrival in The Hague, but encouraged cooperation between the VWU and prosecutor. In fact, VWU of the Registry should be the only organ of the Court which should deal with witnesses upon their arrival in The Hague, and therefore in charge of assessing witness security.

Prosecutor made observations on Victims’ applications

On 5 December 2008 the Prosecutor made observations[47] on 12 redacted victim applications.[48] It requested that the Chamber grant victims status to victims a/0063/07, a/0122/08, a/0123/08, a/0125/08, a/0130/08, a/0124/08, a/0126/08, a/0406/08 and a/0409/08. However it contended that applicants’ a/0149/08, a/0404/08, and a/0405/08 should provide further information in order to allow full evaluation of their applications.

On the same day the Prosecutor also made observations on supplementary information that other victims had supplied.[49] It recommended granting victim status to a/0002/06, a/0047/06, a/0048/06, a/0051/06, a/0052/06, a/0221/06, a/0224/06, a/0225/06, a/0227/06, a/0229/06, a/0230/06, a/0236/06, a/0237/06, a/0238/06, a/0239/06, a/0240/06, a/0055/07, a/0056/07, a/0057/07, a/0058/07, a/0060/07, a/0155/07, a/0156/07, a/0172/07, a/0187/07 and a/0007/08. But it requested that applications a/0077/06 and a/0243/06 be dismissed, since they did not fulfill the criteria set out in Rule 85. [50]

The Defence received the first 7 reparation applications

Under the Rule 94-2 of the Rule and Procedures, followingTrial Chamber I’s oral decision of 16 January 2009[51] and the oral intervention of the Registry during the status conference of 22 January 2009[52]; VPRS transmitted 7 applications for reparation to the defence on 26 January 2009.[53]

 

Katanga and Ngudjolo Case

The Trial Chamber grants Protective measures

On the 25 March 2009,[54] following a prosecution request for protective measures during trial,[55] the Chamber while referring to previous decisions of the Appeals Chamber, decided that there was an objective risk to the security of the persons concerned and granted the request under the article 54-3-f of the Statute and the rule 81-4.

Background: The Prosecutor asked the Chamber to authorize the following measures:

- Distortion of the voice and image of individuals appearing in two video recordings, not yet communicated to the Defence
- Maintenance of the distortion of the voice and image and not disclosing the name of an individual appearing in a video which has already been communicated on 20 June 2008.

Victims explain the need for Katanga to stay in detention

On 12March 2009, victims’ representatives exposed their observations on Katanga[56] and Ngudjolo Chui’s[57] detention. They should continue to be detained due to the changed scene in DRC following the proposal of a draft amnesty law (currently before parliament) which might make their future transfer to the court difficult and moreover because of the extreme gravity of the crimes committed.

Background:In the 5 of March 2008 decision the Trial Chamber invited all parties to render observations on Katanga’s continued detention. Indeed, pursuant to Article 60(3) of the Statute and Rule 118(2), the decision to keep Katanga in detention must be reviewed at least every 120 days as at 11 April 2009, he is remained 120 days in custody since the decision on 12 December 2008, the Chamber, as required by the Article 60(4), must ensure that a person is not detained for an unreasonable period before trial due to inexcusable delay by the Prosecutor. The same procedure applied for detain Ngudjolo Chui.  

Registry assigned OPCV as temporary legal representative

On the 6 March 2009,[58] the Registrar assigned OPCV to provisionally represent victims a/0520/08, a/0524/08, 0527/08, a/0053/09, a/0067/09 to a/0086/09, a/01121/09 to a/0120/09 and a/0122109 to a/0128/09.   

The treatment of applicants that are minors

On the 27 February 2009,PTCII reiterated criteria for an application to be complete, as well as the type of documentation needed to prove identity, the legal guardianship, etc.[59] The Chamber observed that rule 89(3), which mentions child applicants, doesn’t exclude minors applying[60] on a case by case basis regarding its maturity and its capacity of discernment. This decision contradicts the PTC1 and PTC2 decisions,[61] stipulating that a minor needed to be represented before the Court by an adult.

Each case would be considered individually, noting information provided by the Registry on the minor’s maturity and capacity, and the Chamber could require that a request be introduced by an adult, on behalf of the minor.

The Chamber temporarily designated OPCV as counsel for the applicants until a decision on their status is made, or until they designate their own lawyer. Victims allowed to participate in Pre-Trial proceedings can participate at trial without re-registering their applications.

Background: On 10 December 2008, PTCII asked the Registry to submit a report on a series of questions regarding the treatment of victim applications, which it did on 16 December. Thereafter in January, the defence, prosecution and certain legal representatives presented their observations on the report.

Common legal representation before the Court

On the 6 February 2009,[62] Victims’ legal representatives informed the Chamber that they are forming three groups to collectively represent victims.

 

Bosco Ntaganda Case

On the 26 March 2009, Judge Sylvia Steiner was appointed as Single Judge of Pre-Trial Chamber 1 in this case.

 

Situation in Uganda

On the 23 March 2009 Judge Hans-Peter Kaul was designated as single judge on victims’ issues. [63]

Landmark decision on Victims’ application for participation

On 10 March 2009,[64] PTCII appointed Mrs. Michelyne C. Saint-Laurent as counsel for the defense, entrusted with protecting the interests of the defense in proceedings on the applications for participation in the Situation and in the Case.[65] The Chamber rejected 9 applicants out of 22: these were minors and pursuant to rule 89(3), somebody should be acting on their behalf, the 13 left are not accepted as yet.[66]

NB - here victims were applying for victims status in the Situation, not to be granted any specific procedural rights therein. (See the 19 December 2008 decision in the DRC situation above, about procedural status for victims).

The Chamber ordered the Registrar to 1) transmit the applications to OPCV by Friday 20 March 2009, for the purpose of providing support and assistance to the applicants; 2) provide the Prosecution and Defense redacted copies of the applications by Friday 20 March 2009. The Prosecutor and the Defense have until Monday 30 March 2009 to submit their observations.[67]

The Appeal Chamber confirms that there is no need for evidence to assess emotional harm as the result of the loss of a parent  

On 23 February 2009,[68] the Appeals Chamber rejected a Defence appeal[69] thereby confirming the decision of Pre-Trial Chamber II of 14 March 2008[70] that granted victim status to a number of victims.

Background: On 26 March 2008, the Defense requested to appeal the aforementioned decision on two grounds.[71] On 2 June 2008, PTCII allowed the appeal on one of the grounds alone. Thus, the question on appeal was whether:[72]

“In order to establish mental harm suffered, as a result of physical harm suffered by another person, should the identity of the latter and its relationship with the applicant be required?” Had the PTC erred in not requiring the submission of evidence to establish the identities of family members and their relationship with the applicants when finding that applicants (a/0094/06, a/0103/06, a/0120/06 and a/0123/06) suffered emotional harm as the result of the loss of members of their families?

The Appeals Chamber (by majority) confirmed the impugned decision by saying that “applicants had suffered emotional harm as the result of the loss of a family member’’ and that there were no need for evidence to be submitted. However, it held that the PTC had erred in how it had arrived at its finding. It concluded that if this question[73] becomes relevant in any future proceedings, the Chamber would reconsider the issue on different facts as this decision was limited to the current facts only.

Defence request to appeal victims’ participation decision is denied

On 10 February 2009,[74] the Pre Trial Chamber rejected the Defence request to appeal a Decision of 21 November 2008, granting victim status to applicants in the Pre-trial stage of the proceedings in the situation and in the case[75].

Background: 1 December 2008:[76] Defence Request for leave to appeal the Decision[77] on two issues “firstly the 21 November 2008’ decision failed to respond to any observations raised by the Defence and secondly Judge Politi granted status of victims to a number of applicants, despite the fact that the role of victims in the pre-trial phase should be limited to situations expressly envisaged by the Court”.

Judge Politi rejected the Defence request considering, that the first one does not qualify as an “issue” for the purposes of article 82-1(d) of the Statute as constructed by the Appeal Chamber in its decision of 13 July 2006. Regarding the second issue, Judge Politi said that this one is just a “disagreement” in relation to the interpretation of the Statute, which does not define an “appealable subject”.

Victims participants will be forming two groups

On 9 February 2009, the Single Judge Mauro Politi divided the victims into two groups, first the ‘Ugandan situation victims’ and then the ‘case victims’.[78] Each group would need a separate legal representative.

The Single Judge revoked the appointment of Ms Adesola Adeboyejo as legal representative of victims but appoints Ms Paolina Massidda, Principal Counsel of OPCV, as legal representative of a first group of victims;[79] and Ms Sarah Pellet, Acting Counsel of OPCV, as legal representative of the second group of victims.[80]

 

Joseph Kony, Vincent Otti, Okot Odhinambo and Dominic Ongwen Case

The Pre-Trial Chamber finds Uganda Case to be admissible

On 21 October 2008 the Pre-Trial Chamber initiated proceedings on the continued admissibility of the Uganda cases in order to review whether Uganda is ‘unable’ or ‘unwilling’ to prosecute the crimes.[81] The Uganda Victims’ Foundation and REDRESS sought and obtained leave to intervene as amicus curiae and submitted a written text on the progress of domestic accountability in Uganda. Observations regarding the amicus submission and more broadly were filed by OTP, the Defence, OPCV and the Government of Uganda.

On 10 March, the Pre-Trial Chamber decided that the case was admissible at this stage.[82] The Defence was granted leave to appeal the decision on 3rd April.[83]

   

Situation in Darfur, Sudan

On 26 March 2009, Judge Cuno Tarfusser was appointed Single Judge of Pre-Trial Chamber I in the Darfur Situation.[84]

Important Appeal decision regarding victim participation in the investigation stage of the proceedings.

On the 2 February 2009,[85] the Appeal Chamber rendered its Judgment on victim participation in the investigation stage of the proceedings. Following decisions in the DRC situation,[86] the Appeal Chamber confirms that the Pre-Trial Chamber cannot grant the procedural status of victim, entailing a general right to participate in the investigation. Indeed, based on the same appeal as in the DRC Situation, the Appeal Chamber here adopts the same reasons “without need arising either to reframe or rephrase them”.

Sudanese Citizens organizations apply to intervene : no arrest warrants should be issued now

On 12 January 2009,[87] Citizens Organisations in Sudan[88]requested that no arrest warrants be issued by the Pre-Trial Chamber at this time for these reasons:

(1) issuing such warrants would have grave implications for peace building process and that deference must be given to considerations of national interest and security;

(2) The interests of justice will not be served, particularly in light of the Prosecutor’s conduct in bringing these applications;

(3) Such warrants could entrench the negative perceptions of the ICC and thus contribute to a deterioration of the situation in Sudan; and,

(4) Alternative means of transitional justice and resolution are being and will be pursued, without the need for any consideration of involvement of the ICC at this stage.

Request denied by Pre-Trial Chamber

On 4 February, their application for leave to intervene was rejected.[89] The Chamber considered article 53(3)(b) of the Statute, which provides for the Chamber's proprio motu review of any Prosecution's decision "not to proceed" which is solely based on the interests of justice.

The Chamber emphasised that article 53(3) (b) of the Statute only confers upon the Chamber the power to review the Prosecution's exercise of its discretion when it results in a decision not to proceed (as opposed to a decision to proceed). On 19 February 2009, the applicant’s application for leave to appeal was rejected.[90]

 

Al-Bashir case

Arrest warrant issued against Al-Bashir

The warrant has been issued on 4 March 2009.[91] Moreover, on the 6 March 2009,[92] the Registrar transmitted to all UN member states party and not to the Rome Statute, a request to arrest and surrender to the ICC Mr. Al-Bashir. Also, it transmitted a request to the Government of Sudan.[93]

Prosecutor seeks to add a genocide count

On 10 March 2009 the Prosecutor sought[94] to appeal the Pre-Trial Chamber’s decision issuing the arrest warrant against Al-Bashir, arguing that the Pre-Trial Chamber should have also approved the counts relating to genocide.

 

Central African Republic

Jean-Pierre Bemba Case

Amnesty International as amicus curiae

Amnesty International’s application to intervene as amicus curiae on the issue of superior responsibility was granted by PTCII on the 9 April 2009. [95] AI has been allowed to intervene on the following issues:

i) the requisite mental element for military commanders;

ii) the liability for the failure to punish misconduct as applied to non-state actors and;

iii) whether causation is an element of superior responsibility.

The Defence and the Prosecutor have until the 27 April 2009 to respond.

Prosecution communication on confidentiality matter

On the 8 December 2008,[96] the office of the Prosecutor made a statement on Confidential Redacted Documents pursuant to Pre-Trial Chamber III’s decision on re-classifying and unsealing certain documents dated 1 December 2008.

Background:  On 1 December 2008, PTC3 ordered all disclosure to be released to the defence. Certain documents need to be re-classified as “confidential” and others can retain their prosecutorial redactions.[97] The decision divided the documents into three main categories:

i)               Documents that are either publically accessible and/or did not refer to victims or witnesses are no longer classified as “confidential” and “under seal”

ii)              Documents that did not reveal the identity of victims or witnesses, were relevant to the Defence 8/12/08 confirmation of charges hearing and had already been disclosed to the Defense, were reclassified as confidential.

iii)             Documents found to contain identifying information about protected victims, witnesses and/or persons at risk or information indicating the modalities of their protection were to retain the Prosecutor’s original redactions, and be communicated to the Defense in redacted form.

Single Judge Hans-Peter Kaul grants victims status to 54 victims (The Fourth Decision on Victims' Participation)

On 12 December 2008,[98] Judge Kaul granted victim status to 54 applicants in the current proceedings, also assuring them future participatory rights.

 

The Single Judge requested VPRS to report on the availability of official identity documents in CAR and clarified the standards for proxy applicants. He also affirmed the rights of deceased victims to participate.[99] Each applicant must meet an objectively “satisfactory” burden of proof, as allowed by the discretionary standard as established by PTCII.  Applications that are incompletes remain pending.

 

Victim participating in the Bemba case were deemed to have the following:

1)     The right to attend public hearing on the confirmation of charges. The Chamber deferred ruling on whether victims can attend in camera or ex parte proceedings

2)     The Legal Representatives of victim participants may make a 20 minute opening statement, explaining their reasons for participating, as well as a closing statement  

3)     Access to public documents, evidence and transcripts of public proceedings

4)     Notification of all public decisions and filings, as well as the timing of the confirmation hearing

5)     The right to make succinct oral and/or written submissions through their legal representatives on issues of law and fact raised in the hearing, as long as (a) the victim’s application has proven his/her interests are affected by the issue and (b) that the submission is deemed appropriate by the Chamber.

The Judge rejected a general victim participant’s right to question witnesses. Then the Judge rejected the defence argument for unredacting certain information on victim applications, as well as its request for an extension of time to review applications. 

Problematic appointment of a CAR legal representative

The Pre-Trial Chamberappointed Marie-Edith Douzina Lawson as the common legal representative for victims participating in the case on the 5 January 2009.[100]

However, the Registry, in a submission to the Chamber, issued on the 9 January 2009,[101] notes that it contacted all victims to confirm whether they agreed to be represented by a common legal representative from CAR but all the victims expressed the wish to continue to be represented by OPCV.  

Background: On 16 December 2008.[102] Single Judge Kaul, while considering the need to avoid conflicts of interests, noted the large number of victims’ participants from CAR. Victims in the case met the criteria for common representation.[103]

The Single Judge explained that common legal representation is appropriate where there exists a defined, shared trait amongst a group of victims, such as language, circumstances, specific crimes, views and local traditions.

Single judge specified that the common legal representative should preferably be from the CAR, and that any victim objections or conflicts of interest should be referred to OPCV. OPCV will therefore continue to act as legal representative if no legal representative has been appointed by the victims and if some of the victim object to or has a conflict of interest with the common representation facilitated by the Registry.

Various OPCV requests denied (sixth decision on victims' participation) on 8 January 2009.[104]

- OPCV requested to intervene by oral submission during the confirmation of charges hearing on issues of jurisdiction and admissibility relating to victims’ interests. As such issues have not yet been subjected to judicial review; the Single Judge Hans-Peter Kaul declined to rule on the question and instead reiterated the Fourth Decision’s language on victim participant access to the confirmation of charges hearing and related public documents and evidence. 

- OPCV requested to be notified by the Registry before the confirmation of charges hearing of any confidential filings of written submissions of points of law or fact made by the Prosecutor or Defence. The Judge Hans-Peter Kaul settled that no such confidential filings had been made as of 8 January 2009, and again referred to the participants’ access to public documents as set in the Fourth Decision. 

- OPCV requested to be provided by the Prosecutor and Defence of any ordered evidence list they intend to present at the confirmation of charges hearing. The Single Judge stated that the request for access to evidence lists is premature as no such list exists, but if one is later created, it may be shared with OPCV.

- OPCV requested to be provided by the Prosecutor with all witness statements made by its represented victims (a/0459/08, a/0465/08 and a/0467/08) and to be authorized to participate in any camera proceedings concerning the statements of these victims, and if so allowed, to order the Prosecutor to furnish the Principal Counsel with a list of evidence. The Single judge Hans-Peter Kaul rejected this request as well and instructed OPCV to refer to public documents, as well as their clients for additional information. Lastly the Judge denied the OPCV’s request to participate in camera proceedings, referring again to the limits of the Fourth Decision.

Request by OPCV to confirm the charges against the accused

On the 26 January 2009,[105] OPCV, as the victim’s legal representative, requested PTCIII to confirm all the charges against the accused, Jean-Pierre Bemba Gombo, in order to bring the latter before a trial chamber.[106] The decision of confirmation of charges is still pending.

 

 


[1] On 19 February 2009, http://www.icc-cpi.int/iccdocs/doc/doc633250.pdf
[2] Mr Keta submitted a request for legal assistance on behalf of the victims to the Registrar on 22 February 2008 (not publicly available).
[3] Request for Review of the Registrar’s Decision, 14 April 2009,  http://www2.icc-cpi.int/iccdocs/doc/doc481706.PDF
[4] http://www.icc-cpi.int/iccdocs/doc/doc611414.pdf
[5] See the Regulation 84(1) of the Regulations of the Court provides: "[w]here a person applies for legal assistance to be paid by the Court, the Registrar shall determine the applicant's means and whether he or she shall be provided with full or partial payment of legal assistance.” See also the Regulation 113(2) of the Regulations of the Registry.
[6] http://www.icc-cpi.int/iccdocs/doc/doc608654.pdf
[7] http://www.icc-cpi.int/iccdocs/doc/doc612293.pdf
[8] The two decisions are, PTCI Decision of 7 December 2007, concerning “OCPD Production Requests and Disclosure of Exculpatory Materials (ICC-01/04-417) and the 24 December 2007 Decision on victims’ requests to participate in the investigation of crimes in the situation in the Democratic Republic of the Congo (ICC-01/04-423).
[9] http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0106/Transcripts/
[10] http://www.icc-cpi.int/iccdocs/doc/doc623638.pdf
[11] http://www.icc-cpi.int/iccdocs/doc/doc622931.pdf
[12] Witnesses: OTP038, OTP041, OTP0298 and OTP0299 and victims: a/0047/ 06, a/0048/06, a/0050/06 and a/0052/06.
[13] http://www.icc-cpi.int/iccdocs/doc/doc618907.pdf
[14]  http://www.icc-cpi.int/iccdocs/doc/doc621699.pdf
[15] On 28 November 2008 the VPRS communicated nineteen sample applications to the parties and participants: ICC-01/04-01/06-1519.
[16] http://www.icc-cpi.int/iccdocs/doc/doc607495.pdf
[17]  http://www2.icc-cpi.int/iccdocs/doc/doc607669.pdf
[18] http://www.icc-cpi.int/iccdocs/doc/doc608573.pdf
[19] Trial Chamber Decision on indirect Victims of 8 April 2009, http://www.icc-cpi.int/iccdocs/doc/doc662407.pdf
[20] http://www.icc-cpi.int/iccdocs/doc/doc409168.PDF
[21] http://www.icc-cpi.int/iccdocs/doc/doc637237.pdf
[22] http://www.icc-cpi.int/iccdocs/doc/doc637784.pdf
[23] http://www.icc-cpi.int/iccdocs/doc/doc637994.pdf
[24] http://www.icc-cpi.int/iccdocs/doc/doc628274.pdf
[25] http://www.icc-cpi.int/iccdocs/doc/doc636752.PDF.
[26] http://www.icc-cpi.int/iccdocs/doc/doc634688.pdf
[27] http://www.icc-cpi.int/iccdocs/doc/doc647425.pdf
[28] http://www.icc-cpi.int/iccdocs/doc/doc644347.PDF
[29] http://www.icc-cpi.int/iccdocs/doc/doc619445.PDF
[30] http://www.icc-cpi.int/iccdocs/doc/doc612386.pdf
[31] http://www.icc-cpi.int/iccdocs/doc/doc613781.pdf
[32] According to the PTCI decision of 15 December 2008.
[33] With respect to victims: a/0047/06, a/0052/06, a/0078/06 and a/0149/08, OPCV’s statement http://www.icc-cpi.int/iccdocs/doc/doc614902.pdf
[34] With respect to victims: a/00155/08, a/00156/08, a/00404/08, a/00405/08, a/00406/08, a/00407/08 and a/00409/08, http://www.icc-cpi.int/iccdocs/doc/doc616412.pdf
[35] With respect of victims: a/0221/06, a/0224/06, a/0225/06, a/0226/06, a/0227/06, a/0229/06, a/0230/06, a/0236/06, a/0237/06, a/0238/06, a/0239/06, a/0240/06, a/0054/07, a/0055/07, a/0056/07, a/0057/07, a/0058/07, a/0059/07, a/0060/07, a/0063/07, a/0168/07, a/0169/07, a/0170/07, a/0171/07, a/0172/07, a/0173/07, a/0179/07, a/0181/07, a/0183/07, a/0184/07, a/0187/07, a/0188/07, a/0190/07, a/0191/07, a/0270/07; http://www.icc-cpi.int/iccdocs/doc/doc16556.pdf
[36] In respect of victims: a/0149/07 and a/0162/07 http://www.icc-cpi.int/iccdocs/doc/doc616666.pdf
[37] http://www2.icc-cpi.int/iccdocs/doc/doc617526.pdf
[38] http://www.icc-cpi.int/iccdocs/doc/doc618546.pdf
[39] http://www.icc-cpi.int/iccdocs/doc/doc614010.PDF
[40] http://www.icc-cpi.int/iccdocs/doc/doc613405.pdf
[41] Trial Chamber I decision on the 15 December 2008, which granted 91 victims the right to participate in the trial proceedings.  http://www.icc-cpi.int/iccdocs/doc/doc610182.pdf. Trial Chamber I decision on the 18 December 2008, whichgranted only one victim out of three the right to participate in the proceedings, but refused it to the other two victims as their applications were incomplete.  http://www.icc-cpi.int/iccdocs/doc/doc611441.pdf
[42] http://www.icc-cpi.int/iccdocs/doc/doc613780.pdf
[43] http://www.icc-cpi.int/iccdocs/doc/doc613859.pdf
[44] http://www.icc-cpi.int/iccdocs/doc/doc610534.pdf
[45] Decision called "Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters". http://www.icc-cpi.int/iccdocs/doc/doc484920.pdf
[46] http://www.icc-cpi.int/iccdocs/doc/doc608115.pdf
[47] Prosecutor’s Observations on Redacted Applications for Victim Participation: http://www.icc-cpi.int/iccdocs/doc/doc607438.pdf
[48] Concerning applicants’ a/0063/07, a/0122/08, a/0123/08, a/0124/08, a/0125/08, a/0126/08, a/0130/08, a/0149/08, a/0404/08, a/0405/08, a/0406/08 and a/0409/08.
[49] http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-1543-ENG.pdf
[50] See the Rule 85: http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/140164/Rules_of_procedure_and_Evidence_English.pdf
[51] http://www2.icc-cpi.int/iccdocs/doc/doc619677.pdf, Page 54 lines 12-24.
[52] http://www2.icc-cpi.int/iccdocs/doc/doc622419.pdf, Page 8, line 8 to page 9, line 21.
[53] http://www.icc-cpi.int/iccdocs/doc/doc623493.pdf
[54] http://www.icc-cpi.int/iccdocs/doc/doc649930.pdf
[55] Regarding voice and image distortion of persons appearing in several videos.
[56] http://www.icc-cpi.int/iccdocs/doc/doc643928.pdf ; http://www.icc-cpi.int/NR/exeres/DE242D50-BEC9-43A8-BC75-D7ECEA9EC150.htm; http://www.icc-cpi.int/NR/exeres/7689A6D0-0FED-48A0-B7F2-F2DB9FB7B4D3.htm
[57] http://www.icc-cpi.int/NR/exeres/DA35675C-DE34-4365-A339-9875E4B723EE.htm; http://www.icc-cpi.int/NR/exeres/C223FAB2-8EA2-4764-890A-6AF951F367BC.htm;
[58] http://www.icc-cpi.int/iccdocs/doc/doc640712.pdf
[59] http://www.icc-cpi.int/iccdocs/doc/doc637414.pdf
[60] Meaning, without a guardian.
[61] PTCI, Decision on the Applications for Participation Filed in Connection with the Investigation in the Democratic Republic of Congo by Applicants a/0189106 to a/0198106, a/0200106 to a/0202106, a/0204/06 to a/0208/06, a/0210/06 to a/0213/06, a/0215/06 to a/0218/06, a/0219/06, a/0223/06, a/0332/07, a/0334/07 to a/0337/07, a/0001/08, a/0030/08 and a/0031/08, 4 November 2008, par. 33 http://www.icc-cpi.int/iccdocs/doc/doc583202.pdf; PTC II, Decision on victims' applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07, in the Ugandan situation, 21 November 2008, par. 19 and 20. http://www.icc-cpi.int/iccdocs/doc/doc595826.pdf
[62] http://www.icc-cpi.int/iccdocs/doc/doc628611.pdf
[63] http://www.icc-cpi.int/iccdocs/doc/doc649201.pdf
[64] See http://www.icc-cpi.int/iccdocs/doc/doc641262.pdf
[65] Pursuant to rule 8:  http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/140164/Rules_of_procedure_and_Evidence_English.pdf
[66] See the Rule : http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7-B3E8B115E886/140164/Rules_of_procedure_and_Evidence_English.pdf
[67] Find the Prosecution’s observations http://www.icc-cpi.int/iccdocs/doc/doc654696.pdf and the Defence’s observations http://www.icc-cpi.int/iccdocs/doc/doc658616.pdf
[68] http://www.icc-cpi.int/iccdocs/doc/doc635538.pdf
[69] Decision on victims' applications for participation Victims a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06.
[70] Filed both in the Uganda situation and identically in the Kony et al case. See http://www.icc-cpi.int/iccdocs/doc/doc454972.PDF.  A public redacted version of this Decision was filed under the document numbers ICC-02/04-01/05-282
[71] the "Defense Application for Leave to Appeal the Decision on victim’s applications for participation issued on 14 March 2008’: http://www.icc-cpi.int/iccdocs/doc/doc459793.PDF
[72] See the Decisions Granting Leave to Appeal: http://www.icc-cpi.int/iccdocs/doc/doc500436.PDF
[73] Namely the question of whether these applicants suffered emotional harm, as the result of the loss of a family member.
[74] http://www.icc-cpi.int/iccdocs/doc/doc629754.pdf
[75] See the ‘Decision on victims' applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07’ http://www.icc-cpi.int/iccdocs/doc/doc595826.pdf
[76] http://www.icc-cpi.int/iccdocs/doc/doc604826.pdf
[77] See http://www.icc-cpi.int/iccdocs/doc/doc595826.pdf
[78] http://www.icc-cpi.int/iccdocs/doc/doc629122.pdf
[79] Victims: a/0065/06, a/0066/06, a/0068/06, a/0088/06, a/0091/06, a/0092/06, a/0093/06, a/0096/06, a/0102/06, a/0115/06, a/0125/06, a/0126/06, a/0115/07, a/0117/07 and a/0118/07, granted the status of victim in the context of the Situation.
[80] Victims: a/0090/06, a/0094/06, a/0095/06, a/0098/06, a/0103/06, a/0112/06, a/0118/06, a/0121/06, a/0122/06, a/0124/06, a/0076/07, a/0077/07, a/0078/07, a/0081/07, a/0082/07, a/0084/07, a/0085/07, a/0090/07, a/0091/07, a/0092/07, a/0093/07, a/0094/07, a/0095/07, a/0096/07, a/0097/07, a/0098/07, a/0099/07, a/0100/07, a/0101/07, a/0102/07, a/0103/07, a/0105/07, a/0106/07, a/0107/07, a/0112/07 and a/0123/07, granted the status of victim of the Case.
[81] Decision initiating proceedings under article 19, requesting observations and appointing counsel for the Defence, http://www.icc-cpi.int/iccdocs/doc/doc578326.pdf
[82] http://www.icc-cpi.int/iccdocs/doc/doc641259.pdf
[83] http://www2.icc-cpi.int/iccdocs/doc/doc657157.PDF
[84] Judge Cuno Tarfusser is from Italy and is on the WEOG regional group.
[85] http://www.icc-cpi.int/iccdocs/doc/doc626814.pdf
[86] PTCI Decisions of 7December 2007 http://www.icc-cpi.int/iccdocs/doc/doc388041.PDF and 24 December 2007 http://www.icc-cpi.int/iccdocs/doc/doc400706.PDF; in the DRC situation.
[87] http://www.icc-cpi.int/iccdocs/doc/doc616795.PDF
[88] Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG)
[89] http://www2.icc-cpi.int/iccdocs/doc/doc627395.pdf.
[90] http://www.icc-cpi.int/iccdocs/doc/doc634214.pdf
[91] http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf.
[92] http://www.icc-cpi.int/iccdocs/doc/doc642266.pdfhttp://www.icc-cpi.int/iccdocs/doc/doc642283.pdf.
[93] http://www.icc-cpi.int/iccdocs/doc/doc639772.pdf.
[94] http://www.icc-cpi.int/iccdocs/doc/doc644001.pdf
[95] http://www2.icc-cpi.int/iccdocs/doc/doc665288.pdf. Indeed, Amnesty International filed an application to intervene as amicus curiae in the case on the issue of superior responsibility on the 6 April 2009, find here the application : h tp://www.icc-cpi.int/iccdocs/doc/doc659903.pdf
[96] http://www.icc-cpi.int/iccdocs/doc/doc607896.pdf
[97] http://www.icc-cpi.int/iccdocs/doc/doc604834.pdf
[98] http://www2.icc-cpi.int/iccdocs/doc/doc610092.pdf
[99] “In case an application is made on behalf of a deceased person, the Single Judge recognizes this person as a victim of the case provided that (1) the deceased was a natural person, (2) the death of the person appears to have been caused by a crime within the jurisdiction of the Court and (3) a written application on behalf of the deceased person has been submitted by his or her successor. The Single Judge is aware that rule 89(3) of the Rules establishes that a person may act "with the consent of the victim" or "on behalf of a victim, in the case of a victim who is a child or (...) a disabled person". However, the Single Judge holds that the question whether a deceased person may be recognized as a victim of the case must be decided in conformity with internationally recognized human rights and related jurisprudence pursuant to article 21(3) of the Statute. The Single Judge finds it self-evident that a victim does not cease to be a victim because of his or her death.” [Paras. 39, 40] “The Single Judge is of the view that, albeit a deceased person cannot be a participant in the proceedings, his or her rights can be represented in proceedings before the Court by his or her successor, if the successor is a victim recognized as participant in the proceedings.” [Para 44]
[100] http://www.icc-cpi.int/iccdocs/doc/doc614791.pdf
[101] http://www2.icc-cpi.int/iccdocs/doc/doc616662.pdf
[102] Decision on Issues Concerning Common Legal Representation of Victims,  http://www.icc-cpi.int/iccdocs/doc/doc616662.pdf
[103] Citing Article 68, Rule 90 and Regulations 79(2), 80 and 81.
[104] http://www.icc-cpi.int/iccdocs/doc/doc616216.pdf
[105] http://www2.icc-cpi.int/iccdocs/doc/doc623270.pdf
[106] Indeed, the Defense, the Prosecutor and the victims legal representative had until the 26th of January 2009 to send writing declarations to the PTCIII.