Developments in the ongoing Lubanga Trial
Opening of the Katanga & Ngudjolo Trial
Central African Republic Situation:
Sudan situation: Abu Garda Case
Situation in the Republic of Kenya
Developments in the ongoing Lubanga Trial
Appeal reverses possibility of modifying the legal characterisation of facts; and Victims respond
On 8 December 2009, the Appeals Chamber unanimously reversed the Trial Chamber’s (TCI) decision, finding that TCI erred in law when finding that Regulation 55 contained two separate procedures and that it was permissible under Regulation 55 (2) and (3) to include additional facts and circumstances that are not described in the charges.
On 15 December 2009, legal representatives for victims filed observations on the consequences of the Appeal decision. They asked the Trial Chamber to recognize that the Appeals Chamber’s interpretation of regulation 55 would not prevent a new legal characterization of the facts described in the charges, as submitted to the Chamber’s for its appreciation.
On 18 December 2009, Defense responded, claiming the submission was inadmissible because the Chamber, by its decision of 8 December, put an end to the procedure of recharacterization. The Defense claimed that the request to recharacterise the facts was actually an inadmissible request to modify the charges; and that contrary to regulation 55, the recharacterization exceeded the facts and circumstances described in the charges.
Victims and Witnesses Unit will seek consent of witnesses before disclosing medical records
On 15 October 2009, the Registrar submitted the Victims’ and Witnesses Unit (VWU) report on confidentiality of medical records and consent to disclose medical records. The report states that where medical records are generated by VWU, it will seek witnesses prior informed consent and additional consent if it becomes necessary to disclose medical data to entities within the Court or the public. VWU will only disclose information related to medical records without informed consent in exceptional circumstances.
Opening of the Katanga & Ngudjolo Trial
In the run up to the commencement of trial on 24 November 2009, a number of decisions were handed down by Trial Chamber II.
345 people granted victims status at the opening of Katanga case
On 23 November 2009, the Chamber delivered a dispositive granting victims’ status to 14 applicants, rejected 24 applicants, and asked for additional information for 7 applicants. TC II accepted that the person appointed by the family of a deceased victim could participate on behalf of this victim. At the opening of the trial, 345 people had been granted victim status by the judges.
Ngudjolo’s request to delay the opening hearings is rejected
On 2 November 2009, Ngudjolo requested to delay the opening of trial because two of his legal assistants had left. TCII rejected Ngudjolo’s request and upheld the opening on 24 November 2009.
Disclosure of victims’ identity debated before TC II
[Background] On 7 September 2009, Katanga’s Defense requested the identity of victims who hadn’t opposed disclosing it at the beginning of the proceedings. On 9 September 2009, Ngudjolo joined the request. On 20 October 2009, the victims’ legal representatives responded stating that the risks for the victims were different at the time they gave their approval, and that nondisclosure would not affect fair trial rights.
On 6 November 2009, TCII ordered the identity of 206 victims to be communicated to the defence, and requested that Maitre Luvengika (representing the large group) contact his clients and give the Court more precision and that Maitre Gilissen (representing former child soldiers) provide the exact intentions of his clients as regards revealing their identity to the parties. The Chamber also requested both lawyers to contact VWU in order to determine protective measures.
On 18 November 2009, TCII issued a second decision, granting and rejecting disclosure based on the on the specific situation of each victim. The Chamber stated that disclosure would not apply to the public for security purposes and ordered VWU to submit its observations regarding the security of victims.
Maitre Gilissen, requested anonymity towards the public and individual measures of protection. He asked the Chamber to do a mapping of the localities where the victims live in order to have an overview of the context. Maitre Luvengika submitted that 36 victims were not opposed to disclosing their identity to the parties. However, for 10 victims that had not yet been contacted, he asked for anonymity as a protective measure.
On 17 December 2009, TCI issued a third decision granting Maitre Luvengika’s requests and reiterated that victims’ identity should never be disclosed to the public.
Designation of a common legal representative for the principal group of victims
[Background] On 22 July, the Chamber established two teams of common legal representation for the victims participating in the case, on the basis of rule 79 (1) of the Rules of procedure and evidence. The larger group of some 345 victims was initially represented by 11 different counsels. The 22 July decision required a single common legal representative for this group, designating the Registry to assist the lawyers in constituting the team of one principal counsel to be based in The Hague and assisted by a legal assistant and case manager, as well as a legal assistant based in DRC.
On 26 November 2009, the Registrar submitted a document assigning the principal group of victims to Maitre Luvengika and adding victims to this group. The Registrar notified the former legal representatives to forward the victims’ files to the new common representative.
Discussions on victims’ obligation to disclose exculpatory evidence
On 10 November 2009, the Defense filed “Additional Observations” on victims’ participation in the trial, submitting that victims and their representatives have an obligation to disclose to the Defense any evidence in their possession or control, which tends to show the innocence, or mitigate the guilt of the accused, or which may affect the credibility of the incriminating evidence or is material to the preparation of the Defense.
On 16 November 2009, OTP requested that the Chamber reject the defence request on the basis that the ICC Statute and Rules do not impose disclosure obligations on victims: disclosure obligations apply to the parties only. Victims’ legal representatives observed that victims, as participants as oppose to parties, had different rights and obligations, which do not include disclosure obligations. A decision is still pending.
Notification of reparation claims to the Defense
On 24 November 2009, the Registrar filed a notification of 42 reparation claims to the Defense.
Request for clarification on the effective participation of victims
On 2 December 2009, legal representatives for victims presented their observations before the TCII aiming to obtain answers on the effective participation of victims. Thus, they asked the Chamber to order the communication to participating victims of the agreed points between parties (rule 69 of the Rules) and the access to exculpatory evidence. They also asked the Chamber to allow legal representatives to take part in the familiarization of witnesses’ process.
On 7 December 2009, the Defense team for Ngudjolo responded opposing the communication of exculpatory materials arguing that this prerogative is only granted for parties, that is to say, Prosecution and Defense. Moreover, access to evidence for the Legal Representatives would represent a breach of the equality of arms. On the contrary, Defense didn’t oppose to the communication of the agreed points and didn’t profess on the familiarization with witnesses’ process.
Protective measures during witness testimony
[Background] On 28 August 2009, OTP requested TCII to grant protection measures for witnesses he called to testify. On 11 November 2009, OTP asked for specific measures such as the use of a pseudonym and image distortion in retransmission).
On 9 December 2009, TCII issued a decision on protective measures during testimony but asked the Prosecutor to give more details for the first request, including individualized information justifying the solicited measures, as well as regarding witnesses’ observations.
Central African Republic Situation
Trust Fund for Victims notifies its programme for the Central African Republic
On 30 October 2009, the Trust Fund for Victims (TFV) notified Pre-Trial Chamber II of its proposed programme of activities for the Central African Republic (CAR). TFV indicated that it will launch a public tender called “Request for Proposals” which will be the basis for organisations to submit proposals on physical rehabilitation, psychological rehabilitation and material support in a transparent manner. The projects will target groups of victims and their families who have suffered harm as a result of crimes of sexual violence falling within the jurisdiction of the Court. As outlined by regulation 50 (a)(ii) of the Regulations, the specified activities do not pre-determine any issue. TVF has two main mandates, this procedure being launched in relation to the second: 1) to implement awards for reparations ordered by the Court against a convicted person and 2) to use “resources other than those collected from awards for reparations, fines and forfeitures” for the benefit of victims.
On 16 November 2009, Pre Trial Chamber II asked the TVF to select specified activities and award projects to implementing partners and then notify the Chamber of its conclusion to undertake specified activities. According to TVF, this approach could impede the transparency that an open tender might provide.
OTP and Victims’ representatives support hearings in situ
[Background] At the first status conference, TC III asked the Prosecutor to submit observations on whether part of the trial should be conducted in situ. On 12 October 2009, OTP proposed to conduct parts of the trial, such as the opening, the examination of victims/crime based witnesses and the delivery of the final decision in Bangui, in order to reach out to affected communities.
On 3 November 2009, legal representatives of victims responded, supporting in situ proceedings in the interest of the affected communities and for a broader access for victims. However, they stressed that witnesses should benefit from protective measures and that in situ hearings shouldn’t coincide with the elections scheduled in early 2010 for security purposes.
Defence’s request for disclosure of dates of events is redundant
On 7 October 2009, Defence requested that the dates of the facts contained in victims’ applications should be disclosed. On 12 October 2009, the victim representatives stated that they were not aware of the extent of the redactions in the application forms forwarded to the defence, but had no objection to the disclosure of the dates of the alleged events.
Trial Chamber III rejected the Defence’s request because the dates of events alleged by each victim were included in the annex to the "Fourth decision on Victim's Participation" issued by Pre-Trial Chamber II on 12 December 2008, notified to the defence on 15 December 2008.
Submissions on jurisprudence on victims’ participation
[Background] On 7 October 2009, TC III requested the parties and participants to review existing jurisprudence and submit proposals on whether or not it should depart from that jurisprudence.
On 4 November 2009, OTP filed its submission, requesting:
1) the endorsement of existing jurisprudence regarding the requirements for victims’ participation, namely: the timing, and modalities of victims’ participation, as well as mechanisms for exchange of information between the Prosecution and legal representatives of victims and the treatment of victims authorized to participate in the proceedings;
2) departure from the existing jurisprudence on contact with individuals enjoying dual victim/witness status arguing that OTP should maintain direct contact with dual status persons rather than through the Victims and Witness Unit and was better placed to respond in a timely manner to requests and concerns relating to contact by dual status persons. Direct contact would also facilitate the Prosecution’s discharge of its obligation to protect victims and witnesses pursuant to Article 68(1). OTP also recommended departing from the jurisprudence on victim’s access to confidential records stating that access to confidential portions of the record by Legal Representatives should only be granted in highly exceptional situations.
On 26 November 2009, victims’ legal representatives submitted their response to OTP. They stated that VWU was the most able to be in contact with people who have a double status, disagreeing with direct contact proposed by the Prosecutor. As regards victims’ access to confidential records, they rejected the “highly exceptional situations” condition which would damage victims’ ability to participate effectively at trial.
The Defence asked for a departure from the jurisprudence, rejecting the participation of anonymous victims. It asked whether applications for participation made by double status victims should be considered as preliminary declarations, and thus disclosed in accordance with Rule 76 on Pre-trial disclosure relating to prosecution witnesses.
On 18 December 2009, legal representatives for victims filed their response to the defence’s observations stressing that they were filed after the deadline. On victims’ participation, they mentioned the TCI 18 January 2009 jurisprudence which allows the TC to admit their participation. They then added that applications for participation could not be considered preliminary declarations.
Bemba will stay in detention
On 9 November 2009, the Appeals Chamber rejected the amicus application filed by the organisation Association pour la promotion de la démocratie et du développement de la République démocratique du Congo (Aprodec),  that wished to participate in the appeal against the decision on Interim release of Jean-Pierre Bemba. The Appeals Chamber found that that the observations that Aprodec wished to make would repeat submissions already provided by the parties and participants.
On 2 December 2009, the Appeals Chamber reversed the impugned decision and ordering the continued detention of Mr Bemba. The Chamber stressed that a decision on interim release is not discretionary and found that the PTC erred in granting conditional release without specifying the appropriate conditions that make conditional release feasible (article 58(1)), identifying the State to which Mr Bemba would be released and whether that State would be able to enforce the conditions imposed by the Court.
Defense contests victims’ observations on their participation in the trial phase
On 13 November 2009, in response to Victims’ observations on their participation in the proceedings during trial, the Defence team for Mr Bemba argued that as victims were not parties to the trial, they would need to demonstrate a direct interest if they wanted to participate in trial proceedings. Each applicant should re-submit his/her application for participation in the trial phase for the Trial Chamber to examine. Moreover, the Defence also stated that protection measures should be re-enacted for the trial phase.
Abu Garda Case
Victims’ final observations on the confirmation of charges hearing
On 23 November 2009, victims’ representatives submitted their final observations on the confirmation of charges hearing finding that the Prosecution had established a case against Abu Garda and urging the Chamber to confirm the charges of: 1) intentionally directing attacks against personnel, installations, materials, units and vehicles involved in a peacekeeping mission pursuant Art.8(2)(e)(iii); 2) violence to life (the crimes of murder and attempted murder) pursuant to Art. 8(2)(c)(i); 3) pillaging pursuant to Art.8 (2)(e)(v).
Situation in the Republic of Kenya
Situation in the Republic of Kenya assigned to Pre-Trial Chamber II
On 5 November 2009, the Presidency received a letter from the Prosecutor, indicating its intention to submit a request for the authorisation of an investigation into that situation considering that “there is a reasonable basis to proceed with an investigation into the Situation in the Republic of Kenya in relation to the post-election violence of 2007-2008”.
On 6 November, 2009, the Presidency issued a decision assigning the situation in the Republic of Kenya to Pre-Trial Chamber II composed of Judges Ekaterina Trendafilova (Bulgaria), Hans-Peter Kaul (Germany) and Cuno Tarfusser (Italy).
Kenya investigation is in the hands of the Pre-Trial Chamber
On 26 November 2009, the Prosecutor requested authorization to open an investigation before Pre-Trial Chamber II (PTCII), in accordance with article 15(3) of the Statute, whereby the Prosecutor may initiate investigations proprio motu if he concludes that there is a reasonable basis to proceed with an investigation. Supporting material was annexed to the request. According to Prosecutor, several crimes within the Court’s jurisdiction allegedly occurred (murders, rape and other forms of sexual violence, deportation or forcible transfer of population, other inhumane acts) which can be legally characterized as crimes against humanity.
First clarifications on victims’ participation
On 23 November 2009, by general means OTP notified victims of its intention to request authorization to commence an investigation into the situation in Kenya, in accordance with Rule 50 of the Rules of Procedure and Evidence.
On 10 December 2009, the Pre-Trial Chamber specified that victims may make written representations within 30 days of the notification. The Chamber asked the Victims Participation and Reparations Section to: 1) identify, to the extent possible, the community leaders of the affected groups to act on behalf of those victims who may wish to make representations (collective representation); 2) receive victims' representations (collective and/or individual); 3) conduct an assessment, whether the conditions set out in rule 85 of the Rules have been met; and 4) summarize victims' representations into one consolidated report with the original representations annexed thereto. Finally, the Chamber ordered that all victims' communications received by the Court in relation to this procedure be submitted directly to VPRS.