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Legal Update - August September 2012

ICC Victims’ Rights Legal Update

2012

(PDF version)

 

Contents

Democratic Republic of Congo

Lubanga

  • Trial Chamber I issues first decision on reparations for victims
  • Defense granted leave to appeal the reparation decision
  • Victims seek to appeal the reparation decision

Central African Republic

Bemba

  • Trial Chamber III informs of possible re-characterisation

Darfur

Banda & Jerbo

  • Defence raises logistic and security concerns

Kenya

Ruto & Sang and Muthaura & Kenyatta

  • Applications from Kenyan NGOs to intervene on issues related to victims’ participation are rejected

Ruto & Sang

  • Victims’ legal representative withdraws his request to review a decision on legal aid

Libya

Gaddafi & Al-Senussi

  • Ongoing admissibility challenge in the Gaddafi case

Ivory Coast

Gbagbo

  • OPCV submits observations on the legal principles applicable to the determination of a suspect's fitness to stand trial
  • Defence’s challenge to the court’s jurisdiction rejected, appeal introduced

 

Democratic Republic of Congo

Lubanga case

Trial Chamber I issues first decision on reparations for victims

[Background] On 14 March 2012, Thomas Lubanga Dyilo was found guilty of the war crimes of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities.[1]

On 7 August 2012, Trial Chamber I (TC I) established principles in relation to reparations for victims specific to the Lubanga case and considered of paramount importance that victims participate in the reparations process.[2] The principles set out by the Chamber include the recognition that: 1) the right to reparations is well-established and a basic human right; 2) reparations should be accessible to all the victims, following a gender-inclusive approach; 3) reparations may be individual and/or collective and take the form of restitution, compensation, rehabilitation, or other, more symbolic forms such as outreach activities and 4) victims should receive appropriate, adequate and prompt reparations. TC I also decided that reparations may be granted to direct and indirect victims, including the family members of direct victims but also legal entities.[3]

In view of Mr Lubanga’s indigence, it was decided that reparations in this case will be implemented “through” the Trust Fund for Victims (TFV). TC I declared that Lubanga could only contribute on a voluntary basis to non-monetary reparations such as apologies.

TC I left it to the TFV to appoint a group of experts with a view to identify the potential beneficiaries of reparation measures and the forms reparations would take. It also stated that reparations administered through the TVF would tend to be collective. In addition, TC I indicated that it would not rule on individual applications for reparation received so far and that the forms would be transmitted to the TFV. A new Chamber will be in charge of monitoring and supervising the work and decisions of the TFV on reparations. On 16 August 2012, the Registry granted access to the TFV to the 86 applications for reparations received so far.[4]

The legal representation of victims for the purpose of the reparation phase will remain unchanged.[5]

Defense granted leave to appeal the reparation decision

On 13 August 2012, the Defence sought to appeal the decision on reparations. It contested inter alia the broad approach taken by TC I in relation to potential beneficiaries and the delegation to the Registry and experts of the evaluation of victims’ harm, the determination of reparation measures and the identification of beneficiaries.[6] The Defence also submitted that TC I subjected the determination of factual issues where compensation is paid by the TFV to an incorrect, “wholly flexible”, standard of proof. The Defence argued that such standard 1) did not allow the convicted person to respond to victims’ allegations and 2) was not precise enough to allow a non-judicial organ to determine reparations.[7]

On 29 August 2012, TC I partially granted the Defence’s appeal on four issues: (1) whether TC I had violated Mr Lubanga’s rights by enabling the victims of sexual violence to receive reparations; (2) whether the reparation criteria was “excessively vague”; (3) whether TC I had violated the Statute by delegating some judicial functions to the TFV and the supervision of the reparations proceedings to another Chamber; (4) whether the standard of proof for establishing the facts relevant to reparations awarded from the TFV was too vague to be applied by a non-judicial organ.[8]

TC I also stressed that the decision of 7 August 2012 did not constitute an ‘order for reparations’ since reparations were not ordered in it.

On 6 September 2012, the Defence rejected the Chamber’s position and also appealed the decision directly before the Appeals Chamber on the basis that it constituted an order for reparation appealable under Article 82(4). The Defence requested suspensive effect of the impugned decision.[9]

On 13 September 2012, the Office of Public Counsel for Victims (OPCV) requested that victims be allowed to participate in the Defence’s appeal.[10] In doing so, OPCV also invited the Appeal Chamber to depart from its previous jurisprudence whereby the participation of victims in interlocutory appeals needs to be decided on a case by case basis. OPCV highlighted that victims had a manifest interest in participating in proceedings related to reparations and that they should not have to ask for leave to participate in an interlocutory appeal on reparations issues.

Victims seek to appeal the reparation decision

On 24 August 2012, OPCV and the Legal Representatives of Victims (LRV) of Team V02 sought to directly appeal the reparation decision stressing that it should be considered an order for reparation appealable under Article 82(4). They argued that TC I erred in law by 1) rejecting individual claims for reparations without consideration of their merits, 2) delegating its responsibilities to the TFV and the Registry and 3) leaving to a newly constituted Chamber to monitor and oversee the work of the TFV in relation to the implementation of reparations.[11]

On 3 September 2012, the LRV of Team V01 also introduced an appeal against the decision.[12] The LRV argued that TC I erred in law in (1) rejecting individual claims for reparation without analysing them; (2) exempting the convicted person from any obligation in terms of reparation and alternatively, (3) in declaring the Defence and the Prosecutor parties to the reparation proceedings.

A decision is pending.

Central African Republic

Bemba case

Trial Chamber III informs of possible re-characterisation

[Background] Mr Bemba is on trial for alleged criminal responsibility as military commander for two crimes against humanity (rape; murder) and three war crimes (rape; murder; pillaging a town or a place).

On 21 September 2012, Trial Chamber III (TC III) informed the parties and participants that in accordance with Regulation 55(2), it may change the characterisation of the facts in the case.[13] While Pre-Trial Chamber II confirmed the charges pursuant to Article 28(a), TC III indicated that it may consider, under the same mode of liability, the alternate form of knowledge stated in Article 28(a)(i) which holds criminally responsible the accused who “should have known” about the crimes committed or about to be committed by the forces under his effective control, authority or command.

Darfur

Banda & Jerbo case

Defence raises logistic and security concerns

[Background] On 6 January 2012, the Defence requested a temporary stay of proceedings due to inter alia the impossibility for both the Prosecution and the Defence to enter Sudan and to secure witness testimony and critical evidence.[14] On 19 June 2012, a status conference was held to discuss logistical and security issues concerning Mr Banda and Mr Jerbo.

On 6 August 2012, the Defence updated the Chamber on these concerns and stressed that security in Sudan and Darfur remained volatile and that the Sudanese Government had continued to violate the human rights of political opponents, human rights activists, and the population of border regions. It also documented continuous witness intimidation and crimes against Sudanese people.[15] On 24 August 2012, the LRV indicated that the Defence’s submission was in fact part of its previous request for a temporary stay of proceedings and was unlikely to assist the Chamber in its determination of the issue.[16]

Kenya

Ruto & Sang and Muthaura & Kenyatta cases

Applications from Kenyan NGOs to intervene on issues related to victims’ participation are rejected

On 24 August and 5 September 2012, two Kenyan NGOs – the Civil Society Organization Network and Kituo Cha Sheria – respectively sought to intervene as amicus curia on issues related to victims’ participation in the trials.[17] They proposed to intervene, inter alia, on:

- The keen interest of victims in Kenya to exercise their right to participate in proceedings and their need for guidance on how and when they could participate, including on when the application process shall commence;

- The importance of meaningful participation for victims in Kenya;

- The application process to be applied;

- The need for effective outreach;

- Considerations relevant to the modalities of victims’ participation and their representation in the cases.[18]

On 13 September 2012, Trial Chamber V (TC V) dismissed the two applications, stressing that it had already received a "Draft Protocol on the application process for victim participation and reparations at the Trial stage" from the Registry which did not call for further proposals on the issue. [19]

On 3 October 2012, TC V ruled on the application process to be applied in the case departing from previous jurisprudence and practice.[20] (For further detail, see ‘Q & A - The landmark ICC Decision on Victims' Representation and Participation in the Kenya Cases’ available on the VRWG website).[21]

Ruto & Sang case

Victims’ legal representative withdraws his request to review a decision on legal aid

[Background] On 1 June 2012, the LRV requested TC V to review decisions from the Registrar on the scope of legal assistance following the Registrar’s refusal to cover costs associated with activities of the LRV’s field workers.[22] On 25 June 2012, the LRV submitted a proposal for part‐time work of team members and detailed justification of activities to be undertaken by her team, which was authorised by the Registry on 18 July 2012.

On 8 August 2012, the LRV withdrew her request for review.[23] However, she stressed that she did not find the level of resources provided adequate to meet the reasonable needs associated with the representation of victims at this stage of the proceedings.

Libya

Gaddafi & Al-Senussi case

Ongoing admissibility challenge in the Gaddafi case

[Background] On 1 May 2012, Libya challenged the admissibility of the case, arguing that it was already investigating Gaddafi at the national level.[24] On 30 July 2012, Libya requested the Chamber to extend the deadline to reply to the parties and participants’ submissions until after the appointment of a new Ministry of Justice in Libya.[25] This was granted by the Chamber on 9 August 2012.[26]

On 7 September 2012, Libya submitted a report to the Chamber in which it explained that there had been “significant progress” towards the formation of a new Government which should be completed by 20 September 2012.[27] Libya also indicated that Mr Gaddafi’s proceedings at the domestic level would start immediately after the Government’s formation and the appointment of a Minister of Justice and a Prosecutor-General.

A public hearing was held on 9 and 10 October 2012 to discuss these issues further. A decision on admissibility is still awaited.

Ivory Coast

Gbagbo case

OPCV submits observations on the legal principles applicable to the determination of a suspect's fitness to stand trial

[Background] On 26 June 2012, the Single Judge appointed three medical experts to proceed with a medical examination of Mr Gbagbo to determine his fitness to participate in the confirmation of charges hearing. On 2 August 2012, PTC I postponed the hearing – finding it necessary to wait until the issue of fitness is resolved.[28]

On 15 August 2012, the Single Judge authorized OPCV to submit general observations on the legal principles applicable to the determination of a suspect's fitness to stand trial and the procedure to be followed.[29] OPCV was not granted access to the experts’ reports. On 23 August 2012, OPCV submitted its observations, reiterating the victims’ wish that the hearing on the confirmation of charges be held as soon as possible.[30] It stressed that while arrangements could be put in place in order to avoid long sitting hours for the benefit of the suspect, the latter’s presence at the confirmation of charges hearing was an essential element of the proceedings for the victims.

On 24 and 25 September 2012, PTC I held a hearing to discuss this issue further. No new date for the confirmation of charges has yet been set.[31]

Defence’s challenge to the court’s jurisdiction rejected, appeal introduced

[Background] On 24 May 2012, the Defence challenged the Court’s jurisdiction indicating that it had no jurisdiction over the facts or time period mentioned in the arrest warrant against Mr Gbagbo.[32] It argued that the declaration of 18 April 2003 on which the ICC based its jurisdiction, did not cover the period concerned. It further submitted that the confirmation of the declaration on 14 December 2010 by Mr Ouattara was void since he was not entitled to engage the Ivorian State at that time. In the alternative, the Defence sought a finding from PTC I that Mr Gbagbo's rights under Articles 55 and 59 of the Statute were infringed during his detention in Ivory Coast and in the course of his transfer to The Hague, and that these violations rendered a fair trial impossible.

On 15 August 2012, PTC I rejected the Defence’s jurisdictional challenge, noting that the words of the declaration of 18 April 2003, whereby Ivory Coast specifically recognised the jurisdiction of the Court for an “undetermined period”, made it clear that the State accepted the ICC’s jurisdiction over events from 19 September 2002 onwards.[33] PTC I also considered subsequent letters and statements as further evidence of its acceptance of the ICC’s jurisdiction for the alleged crimes. Finally, PTC I noted that in the absence of any involvement on the part of the Court in the detention of Mr Gbagbo in Ivory Coast, it could not determine any particular violation of Mr Gbagbo's fundamental rights during his detention.

On 21 August 2012, the Defence appealed the decision.[34] The Defence argued that PTC I (i) relied on unsubstantiated affirmations or failed to answer all arguments submitted by the Defence and (ii) was inconsistent in being occasionally more demanding to the Defence or more lax towards other parties.[35]

A decision is pending.

These are summaries of ICC decisions and related pleadings relevant to victims’ rights. For further information please consult linked documents. Comments to Gaelle Carayon: gaelle@redress.org

Produced for the Victim’s Rights Working Group by

We are grateful for the support of the John D. And Catherine T. MacArthur Foundation.

[1] Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842, http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf

[2] Decision establishing the principles and procedures to be applied to reparations, 7 August 2012, ICC-01/04-01/06, http://www.icc-cpi.int/Menus/Go?id=f491ef55-3612-4205-a195-d44a7b90ca0a&lan=en-GB.

[3] For a more detailed summary on the Decision of 7 August 2012, please see Victims’ Right Working Group, ‘Lubanga Case - Q & A on ICC Landmark Decision on Reparations for Victims’ (14 August 2012) at http://www.vrwg.org/home/home/post/36-lubanga-case---q--a-on-icc-landmark-decision-on-reparations-for-victims/.

[4] Transmission to the Trust Fund for Victims of applications for reparations, 16 August 2012, ICC-01/04-01/06-2906, http://www.icc-cpi.int/iccdocs/doc/doc1455284.pdf.

[5] Notification of appointment of the legal representatives of victims and applicants for reparations, 27 August 2012, ICC-01/04-01/06-2910, http://www.icc-cpi.int/iccdocs/doc/doc1459730.pdf

[6] Requête de la Défense sollicitant l’autorisation d’interjeter appel de la « Decision establishing the principles and procedures to be applied to reparation » rendue le 7 août 2012, 13 August 2012, ICC‐01/04‐01/06, http://www.icc-cpi.int/iccdocs/doc/doc1453621.pdf.

[7] The Response of the Prosecution is available at Prosecution’s Response to Defence Application for leave to Appeal the ”Decision establishing the principles and procedure to be applied to reparations”, 17 August 2012, ICC-01/04-01/06-2908, http://www.icc-cpi.int/iccdocs/doc/doc1455587.pdf; the Response of the OPCV and LRV is available at Réponse conjointe à la « Requête de la Défense sollicitant l'autorisation d'interjeter appel de la "Decision establishing the principles and procedures to be applied to reparation" rendue le 7 août 2012 », 17 August 2012, ICC-01/04-01/06-2907, http://www.icc-cpi.int/iccdocs/doc/doc1455497.pdf.

[8]Decision on the Defence request for leave to appeal the Decision establishing the principles and procedures to be applied to reparations, 29 August 2012, ICC-01/04-01/06-2911, http://www.icc-cpi.int/iccdocs/doc/doc1461050.pdf; On 10 September 2012, the Defence filed its appeal brief, Defence document in support of the appeal against Trial Chamber I’s Decision establishing the principles and procedures to be applied to reparation, rendered on 7 August 2012, 10 September 2012, ICC-01/04-01/06-2919, http://www.icc-cpi.int/iccdocs/doc/doc1471633.pdf

[9] Acte d’appel de la Défense de M. Thomas Lubanga à l’encontre de la « Decision establishing the principles and procedures to be applied to reparation » rendue par la Chambre de première instance I le 7 août 2012, 6 September 2012, ICC-01/04-01/06-2917, http://www.icc-cpi.int/iccdocs/doc/doc1467508.pdf

[10] Requête relative à la participation des victimes à l'appel interlocutoire interjeté par la Défense à l'encontre de la "Decision establishing the principles and procedures to be applied to reparation" délivrée par la Chambre de première instance I le 7 août

2012, 13 September 2012, ICC-01/04-01/06-2921, http://www.icc-cpi.int/iccdocs/doc/doc1468341.pdf.

[11] Acte d’appel à l’encontre de la « Decision establishing the principles and procedures to be applied to reparation » délivrée par la Chambre de première instance I le 7 août 2012, 24 August 2012, ICC-01/04-01/06-2909, http://www.icc-cpi.int/iccdocs/doc/doc1458961.pdf

[12] Acte d'appel des représentants légaux des victimes, équipe V01 contre la "Decision establishing the principles and procedures to be applied to reparation" du 7 août 2012 de la Chambre de première instance I, 3 Septembre 2012, ICC-01/04-01/06-2914, http://www.icc-cpi.int/iccdocs/doc/doc1469944.pdf

[13] Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court, 21 September 2012, ICC-01/05-01/08-2324, http://www.icc-cpi.int/iccdocs/doc/doc1472172.pdf.

[14] Defence Request for a Temporary Stay of Proceedings, 6 January 2012, ICC-02/05-03/09-274, http://www.icc-cpi.int/iccdocs/doc/doc1296602.pdf

[15] Public Redacted Version of "Defence Submission on Updates Regarding Logistical Issues and Security Concerns" filed 6 August 2012, 6 August 2012, ICC-02/05-03/09-375-Red2, http://www.icc-cpi.int/iccdocs/doc/doc1447738.pdf

[16] Réponse des Représentants Légaux Communs sur le Document Présenté par la Défense comme une Mise à Jour de ses Préoccupations Concernant la Sécurité et les Problèmes de Logistique, 24 August 2012, ICC-02/05-03/09-383, http://www.icc-cpi.int/iccdocs/doc/doc1458999.pdf

[17] Request for Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, 24 August 2012, ICC-01/09-02/11-470, http://ww.icc-cpi.int/iccdocs/doc/doc145920 8.pdf ; Request for Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, 24 August 2012, ICC-01/09-01/11-450, http://www.icc-cpi.int/iccdocs/doc/doc1459208.pdf; Request for Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, 5 September 2012, ICC-01/09-02/11-480, http://www.icc-cpi.int/iccdocs/doc/doc1464106.pdf ; Request for Leave to Submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence, 5 September 2012, ICC-01/09-01/11-454, http://www.icc-cpi.int/iccdocs/doc/doc1464105.pdf.

[18] On 30 August 2012, the LRV submitted that participating victims supported the request and the relief sought through it by the CSO Network. See Victims’ Response to the 24 August 2012 Request for Leave to Submit Amicus Curiae Observations, 30 August 2012, ICC-01/09-02/11-472, http://www.icc-cpi.int/iccdocs/doc/doc1461630.pdf

[19] Decision on two requests for leave to submit amicus curiae observations, 13 September 2012, ICC-01/09-01/11-456, http://www.icc-cpi.int/iccdocs/doc/doc1463294.pdf ; ICC-01/09-02/11-484, http://www.icc-cpi.int/iccdocs/doc/doc1463296.pdf.

[20] Decision on victims' representation and participation, 3 October 2012, ICC-01/09-02/11, http://www.icc-cpi.int/iccdocs/doc/doc1479387.pdf; Decision on victims' representation and participation, 3 October 2012, ICC-01/09-01/11-460, http://www.icc-cpi.int/iccdocs/doc/doc1479374.pdf.

[21] Victims’ Rights Working Group, ‘Q & A - The landmark ICC Decision on Victims' Representation and Participation in the Kenya Cases (18 October 2012) at http://www.vrwg.org/home/home/post/39-q--a---the-landmark-icc-decision-on-victims--representation-and-participation-in-the-kenya-cases/.

[22] Urgent request by the Victims' Representative pursuant to regulation 83(4) of the Regulations, 1 June 2012, ICC-01/09-01/11-420, http://www.icc-cpi.int/iccdocs/doc/doc1422264.pdf.

[23] Communication by the Victims’ Representative to the Trial Chamber of the decision of the Registrar dated 18 July 2012, 8 August 2012, ICC-01/09-01/11-445, http://www.icc-cpi.int/iccdocs/doc/doc1448351.pdf.

[24] Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute, 1 May 2012, ICC-01/11-01/11-130, http://www.icc-cpi.int/iccdocs/doc/doc1405819.pdf.

[25] Libyan Government Request for Status Conference and Extension of Time to file a Reply to the Responses to its Article 19 Admissibility Challenge, 30 July 2012, ICC-01/11-01/11-192, http://www.icc-cpi.int/iccdocs/doc/doc1445799.pdf.

[26] Decision on the "Libyan Government Request for Status Conference and Extension of Time to file a Reply to the Responses to its Article 19 Admissibility Challenge", 9 August 2012, ICC-01/11-01/11-200, http://www.icc-cpi.int/iccdocs/doc/doc1449158.pdf.

[27] Libyan Government’s provisional report pursuant to the Chamber’s Decision of 9 August 2012 & Request for leave to file further report by 28 September 2012, 7 September 2012, ICC-01/11-01/11-205, http://www.icc-cpi.int/iccdocs/doc/doc1466615.pdf.

[28] Decision on issues related to the proceedings under rule 135 of the Rules of Procedure and Evidence and postponing the date of the confirmation of charges hearing, 2 August 2012, ICC-02/11-01/11-201, http://www.icc-cpi.int/iccdocs/doc/doc1447135.pdf.

[29] Decision on the OPCV's "Request for leave to submit observations and Request to access the Expert Reports", 15 August 2012, ICC-02/11-01/11-211, http://www.icc-cpi.int/iccdocs/doc/doc1454489.pdf. On 7 August 2012, the OPCV requested to be given access to the Expert Reports. See Request for leave to submit observations and Request to access the Expert Reports, 7 August 2012, ICC-02/11-01/11-203, http://www.icc-cpi.int/iccdocs/doc/doc1448272.pdf.

[30] Observations on the legal principles applicable to the determination of a suspect’s fitness, 23 August 2012, ICC-02/11-01/11-228, http://www.icc-cpi.int/iccdocs/doc/doc1458715.pdf.

[31] Order scheduling a hearing in relation to Mr Gbagbo's fitness to take part in the proceedings against him, 12 September 2012, ICC-02/11-01/11-241, http://www.icc-cpi.int/iccdocs/doc/doc1467927.pdf.

[32] Requête en incompétence de la Cour Pénale Internationale fondée sur les articles 12 (3), 19 (2), 21 (3), 55 et 59 du Statut de Rome présentée par la défense du Président Gbagbo, 24 May 2012, ICC-02/11-01/11-129, http://212.159.242.180/iccdocs/doc/doc1417734.pdf

[33] Decision on the "Corrigendum of the challenge to the jurisdiction of the Intemational Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo (ICC- 02/11-01/11-129)", 15 August 2012, ICC-02/11-01/11-212, http://www.icc-cpi.int/NR/exeres/BAD933B4-4A47-43A9-BD07-E3A3638F724F.htm

[34] Defence appeal against Pre-Trial Chamber I’s Decision on the “Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo” (ICC-02/11-01/11-212), 21 August 2012, ICC-02/11-01/11-225, http://www.icc-cpi.int/iccdocs/doc/doc1458892.pdf

[35] Document à l’appui de l’appel de la « Decision on the "Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo" » (ICC-02/11-01/11-212) including Annexes, 6 September 2012, ICC-02/11-01/11-240, http://www.icc-cpi.int/iccdocs/doc/doc1466397.pdf.