Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE August 2007

 

ICC Victim’s Rights Legal Update

6 August 2007

(pdf version)

 

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

Darfur Situation

  • Victim representatives call for confidentiality in handling victims applications
  • 20 Darfur victims grant power of attorney to the Public Counsel for Victims
  •  Court issues requests for the arrest and surrender of Ahmad Harun and Ali Kushayb
  • Prosecutor continues to oppose victims’ participation in investigation proceedings

DRC-Lubanga Case

  • Victim representatives call for confidentiality and non disclosure of identities during application
  • Reassurances on the protection of applicants-victims’ identity
  • Prosecutor continues to oppose victims’ participation in the investigation phase
  • Victims denied right to participate in the admissibility stage of the attempts to appeal the confirmation of charges decision
  • Lubanga’s appeal against the decision on the confirmation of charges is inadmissible
  • Election of presiding judge of Trial Chamber I in the Lubanga trial and timeline for status conference and other matters

Uganda Situation and Cases

  • Victims and Witness Unit to submit observations on victims and witness protection in the unsealing of document in the situation and case
  • Proceeding against Raska Lukwiya are terminated

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Situation in Darfur

Victim representatives call for confidentiality in handling victims applications

[Background] On 23 May 2007, the Single judge invited parties to submit observations on victim 15 applications. However, the judge transmitted applications to the Office of the Prosecutor (OTP) and to the Office of Public Counsel for the Defence (OPCD) disclosing their full identity.

On 1 June, the legal representatives for the victims highlighted that previously the Court had granted anonymity to the applicants and that most of their families were living in Darfur. They requested that the applicants only be referred to by the number assigned by the Victims Participation and Reparation Section (VPRS).

On 8 June, the court granted their request and added that the legal representatives would be heard on matters related to protection and safety if necessary.[1] The Court highlighted that OTP and OPCD had an obligation to respect confidentiality under regulation 144(2) and (3) of the Regulations of the Registry, and that in addition members of OPCD were bound by the Code of Professional Conduct for Counsel.

On 23 July, PTC I ordered OTP and OPCD to respect the confidentiality of the applications, and invited observations on a further 5 applications, again transmitting unredacted versions to both OTP and OPCD.

20 Darfur victims grant power of attorney to the Public Counsel for Victims

On 1 June the legal representatives of victims a/0011/06 to a/0015/06, a/0021/07, a/0023/07 to a/0033/07, and a/0035/07 to a/0038/07 granted power of attorney to Paolina Massidda, Principal Counsel of the Office of Public Counsel for Victims (OPCV).

Court issues requests for the arrest and surrender of Ahmad Harun and Ali Kushayb 

On 5 June 2007, the Court issued requests for the arrest and surrender of Ahmad Harun and Ali Kushayb to Sudan, Egypt, Eritrea, Ethiopia and Libya as well as to ICC States parties, and to members of the Security Council that are not parties to the Rome Statute.

OTP continues to oppose victims’ participation in the investigation phase[2]

On 8 June 2007, the Prosecutor submitted its observations on applicants a/001/06, a/0012/06, a//0013/06, a/0014/06 and a/0015/06 in the Darfur situation.  In line with previous submissions in the DRC and Uganda situations, the Prosecutor reiterated his objection to victims’ participating in investigation proceedings, indicating that experience from the other situations had shown that a significant number of applicants were unlikely to participate in subsequent cases and that article 68(3) did not apply to the investigation.

 

DRC Situation

Victim Representatives call for confidentiality and non disclosure of identities during application process

[Background] On 23 May 2007 the Pre Trial Chamber invited observations from the Prosecution and Defence (OPCD) on a group of victims’ applications to participate in the DRC investigation proceedings. The Court failed to mention any protective measures except that the victims not to be contacted directly.

On 4 June 2007, Carine Bapita, the legal representative for victims a/0231/06 to a/0233/06 and a/0242/06 to a/0250/06 requested that the parties refer to the applicants by their designated number only. She stressed that all her clients had requested anonymity from the defence, and that she was unhappy that the application forms had been transmitted to the parties in full, without specifying any requirements that they should not disclose the identities in their observations. She underlined that the security situation had not changed and that a conflict of interest could arise for OPCD: it had the full identities of the victims and was mandated to assist the accused.

On 5 June 2007, a similar submission was made by the anonymous legal representative of victims a/0107/06 to 109, 128 to 162, 188, 199, 203, 209 to 214, 220 to 222,224 to 230 and 234 to 241. This legal representative also requested anonymity from the public and other parties.

  • On 11 June 2007 the Prosecutor responded, providing reassurances about the way in which it handles victim applications. For instance, the Prosecutor said that his submissions always used the allocated numbers to refer to the victims, and that it constantly took all necessary measures to protect victims’ anonymity to ensure their safety.
  • The prosecutor supported the legal representative’s request to remain anonymous.

On 19 June 2007, the Court granted the requests of both legal representatives. It invited the Prosecutor and OPCD to respect the confidential nature of the applications and to refer to the applicants by their designated numbers only. The court also stated that it could hear the legal representatives on security issues on a case by case basis. It also granted anonymity for the second legal representative, authorising his name to be expunged from public documents for the time being.

On 17 July[3], the Court invited observations on a further group of applications, namely a/0163/06 à a/0187/06 for participation in the investigation phase, and granted the parties access to unredacted versions of the applications recalling their duty to respect confidentiality.

The anonymous victim representative responded to this invitation going further. 

Victims’ representative requests  further measures to protect victims identities and opposes transmission of the Registrar’s report[4]

On 20 July, the anonymous legal representative requested the Court to recall the full versions of the applications and not allow the identity of victims to be transmitted to the OTP and the OPCD in the future, arguing that victims’ identities should only be revealed on a ‘need to know basis’, particularly at the application phase, when the Court itself has stated that it would not be able to protect victims. Furthermore, the legal representative requested that the confidential reports on the victim applications produced by the Registrar (VPRS) should not be disclosed to the parties, unless the legal representative was also provided with a copy.

On 26 July, OPCD opposed the filing arguing that the legal representative did not have the mandate to make such a request and that he did not show the necessity of such protective measures. However, OPCD did not oppose that the report from the registrar be transmitted too to the legal representative. 

Prosecutor continues to oppose victims’ participation in the investigation proceedings[5]

On 25 June, the Prosecutor, reiterated his position that victims a/0106/06 to a/0110/06, 128 to 162, 188, 199, 203, 209, 214, 220 to 222 and 224 to 250 should not be allowed to participate in the investigation proceedings. He claimed that even if one could establish that there was an interest in victims’ participation at that stage, it would still be inappropriate.

 

DRC – LUBANGA CASE

Victims denied right to participate in appeal of the confirmation of charges decision[6]

[Background] On 2 February 2007, the Victims filed a joint application in which they requested the Appeals Chamber to authorise their filing of a response the Defence’s submissions on the appealability of the confirmation of charges decision on the ground that they had an obvious interest in the outcome of the appeal. They asked to participate in the appeal proceedings more generally and in particular by submitting written observations.

The Prosecutor and Defence both opposed the Victims' application to participate in the appeal proceedings.

On 13 June 2007, the Appeals Chamber denied the victims’ request, concluding that they had not demonstrated that their personal interests were affected. It recalled that the ability of victims to participate was not automatic, but depended upon a determination by the Appeals Chamber that participation was appropriate. In a separate concurring opinion, Judge Sang Hyun Song indicated that, while the question of the admissibility of the appeal did affect their personal interests, the request of the Victims has to be dismissed because it would be inappropriate.

Lubanga’s appeal against the decision on the confirmation of charges is said inadmissible. [7]

On the same day, 13 June 2007, the Appeals Chamber also dismissed Lubanga’s Appeal against the confirmation of charges decision. The court stated that wording of Article 82 (1) (b) of the Statute, providing the basis of interlocutory appeals was explicit and that there was no ambiguity as to its meaning, its ambit or range of application which confers exclusively a right to appeal a decision that deals with the detention or release of a person subject to a warrant of arrest.

Trial Chamber I elects a Presiding Judge and schedules a  status conference for the Lubanga Trial

After weeks of uncertainty on Lubanga’s counsel, on 22 June 2007 Maitre Catherine Mabille finally accepted the Court’s modified package for representing Thomas Lubanga.

The Trial Chamber elected Judge Adrian Fulford as Presiding Judge on 12 July 2007.[8]

On 18 July 2007, Trial Chamber announced four hearings on the Lubanga trial:

-        4 September hearing: to discuss areas of agreement to be determined before the trial.

-        11 September hearing:  to discuss trial date, language, disclosure of evidence and an “e-court protocol”,

-        25 September hearing : to discuss the role of victims in the period leading up to the trial, procedure for instructing expert witnesses and approaches to witness familiarization and witness proofing. NB: the role of victims during the trial will be discussed at a later stage.

-        17 October hearing: to discuss the status of evidence heard by the Pre Trial Chamber and the status of Pre Trial Decisions in trial proceedings.

 

Uganda Situation/cases

Victims and Witness Unit (VWU) to submit observations on victims and witness protection in the unsealing of document in the situation and case. [9]

On 12 July 2007, Single Judge Fatoumata Diarra asked the VWU to submit its observations on the proposed unsealing of the Pre Trial Chamber Decision of 10 July 2006 “all previous filings, decisions and court proceedings related to the subject matter of that decision”.

Proceedings against Raska Lukwiya terminated

On 11 July 2007, the Court terminated the proceedings against Raska Lukwiya following acknowledgment of his death.

 
 

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

 

 

 

 

 



 

 

 

[1] Decision on Confidentiality Matters and Extension of Page Limit, ICC-02/05-79, 8 August 2007, http://www.icc-cpi.int/NR/exeres/B0BC4525-1847-482B-A520-EC1ADA7328C1.htm

[2] Prosecution's Reply under Rule 89(1) to the Applications for Participation of Applicants a/0011/06, a/0012/06, a/0013/06, a/0014/06 and a/0015/06 in the Situation in Darfur, the Sudan, ICC-02/05-81, 8 August 2007, http://www.icc-cpi.int/NR/exeres/30866628-79E2-4562-8A0D-1AB89D58D8D5.htm

[3] Decision authorising the filing of observations on applications for participation in the proceedings  ICC-01/04-358, 17 July 2007, http://www.icc-cpi.int/iccdocs/JUDSUMM/JSV_ICC_0104_358.pdf

[4] Demande du représentant légal des victimes (expurgé) ICC-01/04-361, 20 July 2007 (French) http://www.icc-cpi.int/NR/exeres/C8E8408C-05BD-4686-8E94-823F16B92B2C.htm

[5] Prosecution's Reply under Rule 89(1) to the Applications for Participation of Applicants a/0106/06 to a/0110/06, a/0128/06 to a/0162/06, a/0188/06, a/0199/06, a/0203/06, a/0209/06, a/0214/06, a/0220/06 to a/0222/06 and a/0224/06 to a/0250/06  ICC-01/04-346, 25 June 2007, http://www.icc-cpi.int/NR/exeres/0977E38B-055D-419D-9A27-531F81D86EF9.htm

[6] Decision of the Appeals Chamber on the Joint Application of a/0001/06 to a/0003/06 and a/0105/06 concerning the "Directions andDecision of the Appeals Chamber" of 2 February 2007 ICC-01/04-01/06-925, 13 June 2007, http://www.icc-cpi.int/NR/exeres/4666FBDD-EBBA-45A8-96CC-6D4C70BAE468.htm

[7] Decision on the admissibility of the appeal of Mr. Thomas Lubanga, ICC01/04-01/06-926, 13 June 2007, http://www.icc-cpi.int/NR/exeres/1D9CF215-CA40-4F72-ACA3-3728A2799E07.htm

[8] Request for submissions on the subjects that require early determination ICC-01/04-01/06-936, 18 July 2007, http://www.icc-cpi.int/NR/exeres/11B4D9EA-A424-4BD0-BFB1-FE8C91585319.htm

[9] Order to the Prosecutor and VWU to submit observations on the unsealing of certain documents in the record both of the situation and of the case  ICC-02/04-01/05-249, 12 July 2007, http://www.icc-cpi.int/NR/exeres/52B6E633-0AFA-4C97-96BB-3502A0372954.htm