Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE Dec 2010 - Jan2011

ICC Victims’ Rights Legal Update

15 December 2010 – 31 January 2011

(pdf version)

Situation in Democratic Republic of Congo (DRC)

Developments in the DRC situation

  • OPCD objects to victims’ participation in the DRC Situation

Developments in the Lubanga case

  • Defence files its abuse of process submission
  • Documents linked to victim’s identity are admitted into evidence
  • Prosecution observations on three applications for victim participation

Developments in the Katanga and Ngudjolo case

  • Protection measures ordered by TC I to be applied by TC II
  • Observations from the Parties on two applications for victim participation
  • Victims’ statements on the extent of the harm suffered are tendered

Developments in the Mbarushimana case

  • Defence’s attempt to challenge the validity of the arrest warrant is rejected
  • Protective measures ordered for victims of sexual violence
  • Callixte Mbarushimana appears before the ICC

Situation in Central African Republic (CAR)

Developments in the Bemba case

  • Prosecution is denied leave to appeal the decision on the conduct of the proceedings
  • Jean-Pierre Bemba is to remain in detention
  • 553 applicants are granted victims’ participating status
  • First applications for reparation are transmitted to the Chamber

Situation in Darfur, Sudan

Developments in the Banda and Jerbo case

  • Legal representatives submit their observations prior to the decision on the confirmation of charges

Situation in Kenya

Developments in the Kenya situation

  • Intervention from an individual targeted by the Prosecution’s application is refused

Situation in Democratic Republic of Congo (DRC)

Developments in the DRC situation

OPCD objects to victims’ participation in the DRC Situation

On 16 December 2010, the Office of Public Counsel for the Defence (OPCD) opposed 13 applications for victim participation.[1] OPCD argued that they had not identified specific judicial proceedings which would affect their personal interests. OPCD recalled the 2008 Appeals Chamber’s judgment stating that “victims cannot be granted procedural status of victim entitling them to participate generally in the investigation”.[2] OPCD also stressed the recent jurisprudence in the Kenya Situation where Pre Trial Chamber II had ruled that while "victims may participate in proceedings related to the situation stage [...], victims participation may take place only when an issue arises which may require judicial determination.'' [3] A decision is awaited.

Developments in the Lubanga case

Defence files its abuse of process submission

[Background] Since opening its case on 27 January 2010, the Defense has continuously alleged that several witnesses lied about their identities, eventually informing the Chamber of its intention to file an abuse of process submission.[4]

On 10 December 2010, the Defence confidentially filed its « Requête de la Défense aux fins d’arrêt définitif des procédures »[5] requesting that proceedings in the case be terminated.  The defence alleges inter alia that some trial witnesses lied about their age and birthdates. Trial Chamber I (TCI) set 31st January 2011 as the deadline for the Prosecution and victims to respond. Should the Defense wish to reply, it should do so by 11 February 2011.[6]

Documents linked to victim’s identity are admitted into evidence

On 28 April 2010, the identity of victim a/0225/06 came into question after Defence witness DW-0032 testified that the fingerprints on the application form of victim a/0225/06 were his and not those of the victim-witness. The fingerprints of DW-0032 were then compared with those on victim’s a/0225/06 application form. The forensic report, which was ordered by the Chamber, subsequently concludes that the fingerprints on victims’ a/0225/06 form do not match those of Defence Witness 0032.

On 16 December 2010, the forensic report was admitted as evidence by the Chamber.[7]

Prosecution observations on three applications for victim participation

On 23 December 2010, the Prosecution submitted its observations on the remaining 3 of 15 victims’ applications that had been transmitted to the parties in June 2010.[8] The supplementary information supplied to the parties with respect of the remaining three led the Prosecution to support the applications.[9]

Developments in the Katanga and Ngudjolo case

Protection measures ordered by TC I to be applied by TC II

On 10 January 2011, TC II ruled that certain protective measures ordered by TC I were necessary to ensure the safety of witnesses in relation to proceedings in the Katanga and Ngudjolo case. As the Prosecution had sought to introduce statements into the Katanga/Ngudjolo case, which had been made by witnesses in the Lubanga case, questions arose as to whether the redactions ordered by TC I should automatically apply before TC II.[10] Given that all accused (Katanga, Lubanga and Ngudjolo) were in custody in the same detention centre, the Judges found that disclosure of the witnesses’ names in the Katanga/Ngudjolo case could lead to their identity to be known by Mr Lubanga or his supporters.[11]

Observations from the Parties on two applications for victim participation

On 10 January 2011, TC II invited the Parties to present their observations on two applications for participation, for which missing information was finally provided on 8 December 2010 and 4 January 2011 respectively.[12] While the Prosecution stated that both victims’ applications should now be granted, the Defence indicated that only applicant a/0160/09 qualified for participating status.[13] Indeed, the defence submitted that applicant a/0114/08 had not explained to what extend he had been involved as a child soldier in the Bogoro attack.

Victims’ statements on the extent of the harm suffered are tendered

[Background] On 1 December 2010, TC II announced that victims a/0381/09, a/0018/09, a/0191/08 and pan/0363/09 who had been granted the right to present evidence would appear before the Court, starting on 21 February 2011.[14]

On 26 January 2011, Maitre Nsita, the victims’ legal representative, transmitted to the Chamber and the parties (in redacted format) additional statements ahead of his clients’ testimonies.[15] He indicated that these statements not only provided additional information on the victims’ stories, but also detailed the harm they allegedly suffered. The Chamber had indeed underlined that the victims’ testimonies could be of use should it later be brought to assess the overall harm suffered by victims.

On 28 January 2011, Maitre Nsita informed the Chamber that following further interviews with victim a/0381/09, he wished to withdraw her/him from the list of victims due to testify.[16]

Developments in the Mbarushimana case

Defence’s attempt to challenge the validity of the arrest warrant is rejected

On 9 January 2011, the Defence requested Pre Trial Chamber I (PTC I) to declare the arrest warrant void, arguing that it had been sought and issued at a time when the case against Callixte Mbarushimana was inadmissible, due to ongoing investigation in Germany.[17] The Defence argued that the Prosecution had failed to supply that “decisive information” to the Chamber and recalled article 17(1)(a) of the Rome Statute, which provides that “the Court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a State which has jurisdiction over it […].”. The Prosecution opposed the Defence’s request on 17 January 2011.[18]

On 28 January 2011, PTC I rejected the Defence’s challenge. It ruled that the admissibility of a case was not a substantive requisite for the issuance of a warrant of arrest, unless there were uncontested facts that rendered a case clearly inadmissible or an ostensible cause impelling the exercise of proprio motu review.[19]

Protective measures ordered for victims of sexual violence

On 21 January 2011, the Prosecution requested a protective order “against the public disclosure of sensitive information contained in four UN documents […], specifically the identity of victims of sexual violence”.[20] The Prosecution recalled the obligation placed upon itself and the Chamber to ensure the confidentiality of sensitive information and to protect the safety, wellbeing, dignity and privacy of victims and witnesses.

On 25 January 2011, PTC I granted the request prohibiting parties and participants to disclose the said information to any third parties.[21]

Callixte Mbarushimana appears before the ICC

On 14 January 2011, the Registry informed the Chamber that the French Cour de Cassation had authorised the transfer of Mr Mbarushimana to the ICC.[22] Mr Mbarushimana was transferred to the Court on 25 January and made his first appearance before PTC I on 28 January 2011, when he was informed of his rights and the charges brought against him.[23] The confirmation of charges hearing will take place on 4 July 2011.

Situation in Central African Republic (CAR)

Developments in the Bemba case

Prosecution is denied leave to appeal the decision on the conduct of the proceedings

[Background] On 19 November, Trial Chamber III (TC III) ruled on the conduct of the proceedings and mode of questioning at trial. The Prosecution sought to appeal the decision, objecting to an alleged ban on leading questions imposed by the decision. OTP also argued that the decision failed to compel parties to question the credibility of a witness during testimony, creating a situation where witness’ credibility could be doubted without the witness having an opportunity to respond to allegations.[24]

On 15 December 2010, TC III rejected the Prosecution’s request.[25] The Chamber stated that while it expected the parties to use neutral questions, it had stopped short of imposing a prohibition on asking leading questions. Furthermore, the Chamber underlined that its silence on a possible obligation for parties “to put their case” to witnesses did not interfere with counsel's obligations in either presenting evidence or acting on behalf of the accused.

Jean-Pierre Bemba is to remain in detention

On 17 December 2010, on the basis of the Appeals judgement ordering it to carry out a new review of Mr. Bemba’s detention,[26] TC III decided that there had been no change justifying a modification of its previous ruling and confirmed that Jean Pierre Bemba would remain in custody.[27]

553 new victims admitted in the case

[Background] On 22 February, 30 June and 18 November 2010, TC III granted victims status respectively to 54, 81 and 624 applicants.[28] Two further sets of applications were still pending before the Chamber.

On 23 December 2010, TC III granted victim participating status to 553 applicants, rejecting 24 applications, and deferring its decision on 76 applications until further information is submitted.[29] The Judges recognised, inter alia, that applicants might not be in a position to clearly attribute responsibility for their victimisation. Therefore, in the absence of any indication that the crimes were exclusively committed by perpetrators not linked to the present case, the mere reference in the applications to other persons or warring groups would not, as such, automatically serve to exclude the applicant. TC III also reiterated that applications submitted on the basis of harm not included in the charges should be rejected. These included harm resulting from shelling, destruction of property by fire (when there is no indication that the property was looted before being destroyed), torture, temporary detainments, assault, acts of illegal occupation of property, ransacking, instances of snakebites, sudden miscarriages and unexplained coma.

The Chamber also requested that victims who wished to participate in person during the trial proceedings had until 7 January 2011 to apply. To date, 1,312 victims have been granted participating status in this case.

First applications for reparation are transmitted to the Chamber

On 12 January 2011, the Registry transmitted 332 redacted applications for reparations to the Defence. The reparation applications were also transmitted unredacted to the Chamber.[30]

Situation in Darfur, Sudan

Developments in the Banda and Jerbo case

Legal representatives submit their observations prior to the decision on the confirmation of charges

On 16 December 2010, Helene Cissé, legal representative for 21 victims in the pre-trial proceedings, submitted her final written observations ahead of the decision on the confirmation of charges.[31] She emphasised the importance for victims’ representatives to make oral statements and the need for public proceedings, stressing that both allowed victims, often illiterate, to stay informed of the proceedings. Recalling the harm suffered by the families of those who were killed during the attack, she called on the Chamber to confirm the charges.

Situation in Kenya

Developments in the Kenya situation

Suspect’s attempt to intervene as amicus is denied

[Background] On 15 December 2010, the Prosecutor announced the names of six individuals targeted by two applications for summonses to appear before the Court, pursuant to article 58 of the Rome Statute.[32]

On 21 December 2010, Mr William Ruto, one of individuals named by the Prosecution, applied through his lawyers to intervene as amicus curiae under rule 103.[33] He requested to be heard on various issues relating to the fairness of the prosecution’s investigation as well as the lack of credibility of the reports on which the Prosecution had based its requests for summonses to appear.

On 18 January 2011, PTC II rejected his application, recalling that the core rationale underlying an amicus curiae submission was that the Chamber be assisted in the determination of the case by an independent and impartial intervener having no other standing in the proceedings.[34] The Chamber’s decision on the Prosecutor’s applications for summonses to appear against the six persons is still pending.


[1] Observations du Bureau du Conseil Public pour la Défense sur les 13 demandes de participation en tant que victime dans la situation en République Démocratique du Congo, 16 December 2010, ICC-01/04-586-Red, http://www.icc-cpi.int/iccdocs/doc/doc986316.pdf.

[2] Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, 19 December 2008, ICC-01/04-556, http://www.icc-cpi.int/iccdocs/doc/doc612293.pdf. [emphasis added]

[3] Decision on Victims' Participation in Proceedings Related to the Situation in the Republic of Kenya, ICC-01/09-24, 3 November 2010, para. 9, http://www.icc-cpi.int/iccdocs/doc/doc962483.pdf.

[4] Hearing transcript,  27 January 2010, ICC-01/04-01/06-T-236-Red-ENG, p. 20-21, http://www.icc-cpi.int/iccdocs/doc/doc895021.pdf; See Redacted Decision on Intermediaries, 31 May 2010, ICC-01/04-01/06-2434-Red2, para. 54, http://www.icc-cpi.int/iccdocs/doc/doc881407.pdf.

[5] ICC-01/04-01/06-2657-Conf ; While a public redacted version of the filing is not yet available, part of the defence arguments have been described in subsequent public filings.

[6] Trial Chamber I oral decision, 25 November 2010, ICC-01/04-01/06-T-337-Red-ENG, p. 3, http://www.icc-cpi.int/iccdocs/doc/doc999820.pdf.

[7] Decision on the Prosecution's application for admission of four documents from the bar table pursuant to Article 64(9), 16 December 2010, ICC-01/04-01/06-2662, http://www.icc-cpi.int/iccdocs/doc/doc986437.pdf.

[8] Transmission to the parties of fifteen new victims' applications for participation in accordance with Trial Chamber I's oral decision of 17 June 2010, 25 June 2010, ICC-01/04-01/06-2509, http://www.icc-cpi.int/iccdocs/doc/doc902619.pdf.

[9] Transmission to the parties and Me Keta of redacted supplementary documents related to applications a/0026/10, a/0031/10 and a/0738/10, 11 November 2010, ICC-01/04-01/06-2617; Prosecution’s Observations on supplementary information related to applications a/0026/10, a/0031/10 and a/0738/10, 23 December 2010, ICC-01/04-01/06-2633-Red, http://www.icc-cpi.int/iccdocs/doc/doc992010.pdf.

[10] See VRWG’ Legal Update of September 2009 available at http://www.vrwg.org/downloads/publications/01/Sept%202009%20Legal%20Update.pdf; See “Order in relation to the disclosure of intermediary P-143, 1 February 2010, ICC-01/04-01/07-1817, para. 17, http://www.icc-cpi.int/iccdocs/doc/doc816361.pdf; See “Redacted Decision on the application to disclose the identity of intermediary 143”, 10 December 2009, ICC-01/04-01/06-2190-Red, paras. 27-32, http://www.icc-cpi.int/iccdocs/doc/doc791516.pdf.

[11] Décision sur les mesures de protection en faveur de 16 témoins protégés dans l'affaire Lubanga, 10 January 2011, ICC-01/04-01/07-1915-Red, http://www.icc-cpi.int/iccdocs/doc/doc996137.pdf.

[12] Décision invitant le Procureur et la Défense à présenter leurs observations sur deux demandes de participation de victime, 10 January 2011, ICC-01/04-01/07-2642, http://www.icc-cpi.int/iccdocs/doc/doc995374.pdf; “Huitième rapport du Greffe sur les informations supplémentaires reçues concernant des demandes de participation de victims”, 8 December 2010, ICC-01/04-01/07-2621-Conf-Exp.; ICC-01/04-01/07-2639-Conf-Exp, par. 3. The legal representatives of the victims had initially been granted until 15 December to submit the missing information relating to applicants a/0114/08 and a/0160/09. “Quatrième Décision relative à 2 demandes de participation de victimes à la procedure”, ICC-01/04-01/07-2516, 8 November 2010, http://www.icc-cpi.int/iccdocs/doc/doc964599.pdf.

[13] Prosecution’s Observations on Additional Documents Provided by Applicants a/0114/08 and a/0160/09, 18 January 2011, ICC- 01/04-01/07-2653, http://www.icc-cpi.int/iccdocs/doc/doc1000001.pdf; Observations de la Défense de Mathieu Ngudjolo sur deux demandes de participation de victimes (règle 89-1 du Règlement de procédure et de preuve), 21 January 2011, ICC-01/04-01/07-2658, http://www.icc-cpi.int/iccdocs/doc/doc1002147.pdf.

[14] See  “Ordonnance portant calendrier de la comparution des témoins a/0381/09, a/0018/09, a/0191/08 et pan/0363/09 et de l'ouverture de la cause de la Défense de Germain Katanga,“ 1 December 2010, ICC-01/04-01/07-2602, http://www.icc-cpi.int/iccdocs/doc/doc974650.pdf; However, on 31 January 2011, victim a/0381/09 was taken out from the list of victims authorised to appear: see Notification du retrait de la victime a/0381/09 de la liste des témoins du représentant légal, 31 January 2011, ICC-01/04-01/07-2669, http://www.icc-cpi.int/iccdocs/doc/doc1010987.pdf; Décision relative à la Notification du retrait de la victime a/0381/09 de la liste des témoins du représentant légal, 31 janvier 2011, ICC-01/04-01/07-2674, http://www.icc-cpi.int/iccdocs/doc/doc1011356.pdf.

[15] “Communication aux parties de déclarations complémentaires des victimes a/0191/08 et a/0018/09 ainsi que de pan/0363/09, et demande de pouvoir procéder à certaines expurgations dans ces déclarations“, 26 January 2011, ICC-01/04-01/07-2661, http://www.icc-cpi.int/iccdocs/doc/doc1008208.pdf.

[16]  Notification du retrait de la victime a/0381/09 de la liste des témoins du représentant légal, 28 January 2011, ICC-01/04-01/07-2669, http://www.icc-cpi.int/iccdocs/doc/doc1010987.pdf; the reasons for the withdrawal have been filed confidentially.

[17] Defence Challenge to the Validity of the Arrest Warrant, 9 January 2011, ICC-01/04-01/10-32, http://www.icc-cpi.int/iccdocs/doc/doc995176.pdf; Supplementary Information in support of the Defence Challenge to the Validity of the Arrest Warrant, 25 January 2010, ICC-01/04-01/10-40, http://www.icc-cpi.int/iccdocs/doc/doc1004644.pdf.

[18] Prosecution response to the 'Defence Challenge to the Validity of the Arrest Warrant”, 17 January 2011, ICC-01/04-01/10-35-Conf; Prosecution motion to strike the "Supplementary Information in support of the Defence Challenge to the Validity of the Arrest Warrant", 27 January 2011, ICC-01/04-01/10-49.

[19] Decision on the Defence Challenge to the Validity of the Arrest Warrant, 28 janvier 2011, ICC-01/04-01/10-50, http://www.icc-cpi.int/iccdocs/doc/doc1008978.pdf.

[20] Prosecution application for protective measures for four documents, 21 January 2011, ICC-01/04-01/10-38, http://www.icc-cpi.int/iccdocs/doc/doc1002080.pdf.

[21] Decision on the Prosecution application for protective measures for four documents and on the subsequent unsealing and reclassification of certain documents in the record of the case, 25 January 2011, ICC-01/04-01/10-42, http://www.icc-cpi.int/iccdocs/doc/doc1005980.pdf.

[22] Information from the French authorities in relation to the surrender of Callixte Mbarushimana, 14 January 2011, ICC-01/04-01/10-34, http://www.icc-cpi.int/iccdocs/doc/doc998512.pdf.

[23] Order scheduling the first appearance of Mr Callixte Mbarushimana, 25 January 2011, ICC-01/04-01/10-43, http://www.icc-cpi.int/iccdocs/doc/doc1005995.pdf.

[24] Decision on Directions for the Conduct of the Proceedings, 19 November 2010, ICC-01/05-01/08-1023, http://www.icc-cpi.int/iccdocs/doc/doc969802.pdf; Prosecution’s Request for Leave to Appeal the Trial Chamber’s Decision on Directions for the Conduct of the Proceedings, 29 November 2010, ICC-01/05-01/08-1060, http://www.icc-cpi.int/iccdocs/doc/doc973859.pdf.

[25] Decision on the Prosecution's Request for Leave to Appeal the Trial Chamber's Decision on Directions for the Conduct of the Proceedings, 15 December 2010, ICC-01/05-01/08-1086, http://www.icc-cpi.int/iccdocs/doc/doc985736.pdf.

[26] Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010, 19 November 2010, ICC-01/05-01/08-1019, http://www.icc-cpi.int/iccdocs/doc/doc969582.pdf.

[27] Decision on the review of detention of Mr Jean-Pierre Bemba Gombo pursuant to the Appeals Judgment of 19 November 2010, 17 December 2010, ICC-01/05-01/08-1088, http://www.icc-cpi.int/iccdocs/doc/doc987466.pdf.

[28] Decision defining the status of 54 victims who participated at the pre-trial stage, and inviting the parties' observations on applications for participation by 86 applicants, 22 February 2010, ICC-01/05-01/08-699, http://www.icc-cpi.int/iccdocs/doc/doc826750.pdf; Decision on the participation of victims in the trial and on 86 applications by victims to participate in the proceedings, 30 June 2010, ICC-01/05-01/08-807, http://www.icc-cpi.int/iccdocs/doc/doc903085.pdf; Decision on 772 applications by victims to participate in the proceedings, 18 November 2010, ICC-01/05-01/08-1017, http://www.icc-cpi.int/iccdocs/doc/doc969148.pdf.

[29] Decision on 653 applications by victims to participate in the proceedings, 23 December 2010, ICC-01/05-01/08-1091, http://www.icc-cpi.int/iccdocs/doc/doc991989.pdf.

[30] Notification of applications for reparations in accordance with Rule 94(2) of the Rules of Procedure and Evidence, 12 January 2011, ICC-01/05-01/08-1111, http://www.icc-cpi.int/iccdocs/doc/doc997345.pdf; Notification to the Defence of applications for reparations in accordance with Rule 94(2) of the Rules of Procedure and Evidence, 12 January 2011, ICC-01/05-01/08-1132, http://www.icc-cpi.int/iccdocs/doc/doc999348.pdf.

[31] “Observations écrites finales”, 16 December 2010, ICC-02/05-03/09-117, http://www.icc-cpi.int/iccdocs/doc/doc985881.pdf.

[32] Prosecutor’s Application Pursuant to Article 58 as to Ruto, Kiprono Kosgey and Arap Sang, 15 December 2010, ICC-01/09-30-Red, http://www.icc-cpi.int/iccdocs/doc/doc985613.pdf; Prosecutor’s Application Pursuant to Article 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, 15 December 2010, ICC-01/09-31-Red, http://www.icc-cpi.int/iccdocs/doc/doc985621.pdf.

[33] Transmission by the Registry of an application communicated by Katwa & Kemboy Advocates, Commissioners for oaths on behalf of Applicant William Ruto, 21 December 2010, ICC-01/09-32, http://www.icc-cpi.int/iccdocs/doc/doc991302.pdf.

[34] Decision on Application for Leave to Submit Amicus Curiae Observations. 18 January 2011, ICC-01/09-35, http://www.icc-cpi.int/iccdocs/doc/doc999959.pdf.