Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE Feb 2011

ICC Victims’ Rights Legal Update

1st February - 4 March 2011

(pdf version)

 

Note: this is not a comprehensive summary; it only relates to key developments impacting on victims’ rights within the ICC’s jurisdiction released between 1st February to 4March 2011.

 

Situation in Democratic Republic of Congo (DRC)

Developments in the Lubanga case

  • Information from applications of victims who testified is disclosed
  • Fifteen new victims are granted participating status
  • Trial Chamber I rules that abuse of process allegations do not warrant a stay of proceedings

Developments in the Katanga and Ngudjolo case

  • Two new victims are granted participating status
  • Limited resources impair legal representative’s ability to assess his clients’ views on anonymity
  • Only two victims to give testimony before the Chamber
  • Relatives of deceased victims to continue their action
  • Prosecution Witness’ testimony to be excluded following contradictions and allegation of perjury

 

Situation in Kenya

Developments in the Kenya Situation

  • Victims’ participation in article 58 proceedings ruled out

 

Referral of the Situation in Libya

  • Following the UN Security Council referral, the Prosecutor opens an investigation

 

Situation in Democratic Republic of Congo (DRC) 

Developments in the Lubanga case

Information from applications of victims who testified is disclosed

[Background] The Defence alleged that some victim-witnesses had lied to the Court and requested disclosure of information relating to the persons who had assisted the victims to fill in application forms.[1]

On 4 February 2011, Trial Chamber I (TC I) issued a public redacted version of a decision requesting the Victims Participation and Reparation Section (VPRS) to disclose to the parties information relating inter alia to the persons and NGOs who had assisted victims a/0225/06, a/0229/06 and a/0270/07.[2] TC I found that lifting the redactions would not increase the risks to these persons and organisations, and may well assist the Defence in its attempt to establish the true identity of victim-witnesses.

Fifteen new victims are granted participating status

On 8 February 2011, TC I issued a public redacted version of its decision granting victim status to fifteen new applicants.[3] The fifteen victims are young girls who were allegedly subjected to, inter alia, rapes, abductions and pillages by UPC members, in 2003.[4]

 

The judges recalled that:

  •     An applicant only needed to provide evidence establishing prima facie his or her identity and the link between the alleged harm suffered and the charges against the accused;
  •      As there was no basis to doubt the role of the individuals who assisted the applicants or the integrity of the process, disclosure of their identities was not warranted;
  •      Similarities among victims’ applications were “unsurprising and [did] not in any way undermine their credibility” in particular given the broad context of the systematic conscription of children under the age of 15 into the military forces of the Union of Congolese Patriots.

Trial Chamber I rules that abuse of process allegations do not warrant a stay of proceedings

[Background] On 10 December 2010, the Defence confidentially filed an application requesting the Chamber to stay the proceedings on the ground of an alleged abuse of process.[5] It alleged that four intermediaries who acted for the Prosecutor prepared false evidence, that the Prosecutor knew that certain evidence was untruthful, failed to investigate its reliability, and had deliberately omitted to disclose significant exculpatory evidence to the Defence. The role of three victims who came to testify was also questionned.

On 23 February 2011, TC I orally indicated it had dismissed the Defence’s request and on 2 March 2011, it made public a redacted version of its decision.[6] The Chamber recalled the high threshold required to order a stay of proceedings for an abuse of process. Following the approach set by the Appeals Chamber, TC I addressed two questions, namely whether it was odious or repugnant to the administration of justice to allow the proceedings to continue, and whether the rights of the accused had been breached to the extent that a fair trial had been rendered impossible.[7] The Judges also recalled that a stay of proceedings was to be restricted to extreme cases where a lesser remedy was not available.

While the Chamber found that a stay of proceedings was not warranted in this case, it rejected the Prosecution’s argument that the Defence’s allegations were not properly substantiated. Instead, it stated that these allegations could be addressed as part of the ongoing trial process or resolved at the end of the trial.

 

Developments in the Katanga and Ngudjolo case 

Two new victims are granted participating status

On 9 February 2011, Trial Chamber II (TC II) granted victim status to two new victims in the case. It follows the submission on 8 December 2010 and 4 January 2011 by the victims’ legal representative, of long-awaited additional information.[8] This brings the number of victims admitted in the case to 365.

Limited resources impair legal representative’s ability to assess his clients’ views on anonymity

[Background] On 17 December 2010, the Chamber had requested Maitre Gilissen to inform the bench and the parties of whether two of his clients, participating in the case, agreed to their identities being disclosed to the parties.

On 15 February 2011, he indicated that he was not in a position to respond to the Chamber and needed additional time.[9] He explained that his intermediaries lacked the necessary resources to consult with his clients, former child soldiers, who were psychologically and socially fragile, lived in remote places and had to move constantly. He stressed that the inability to have a member of his team in the field created serious difficulties and that more time was needed to either allow the work of his intermediaries to continue, or to enable him to travel to the field and meet with his clients.

Only two victims to give testimony before the Chamber

[Background] On 9 November 2010, victims a/381/09, a/0018/09, a/191/08, and pan/0363/09 (on behalf of minor a/363/09 and in her own right) were granted the right to testify, starting on 21 February 2011.[10]

Maitre Nsita, their legal representative, subsequently requested to withdraw victim a/0381/09 and victim a/0363/09 from the list of victims due to appear before the Chamber.[11] Both requests were granted by the Chamber which, on 21 February 2011, also ruled that pan/0363/09 would no longer be heard as witness of the Court.[12] It follows allegations from the Prosecution that pan/0363/09 might not have told the whole truth.

Testimonies of witness-victims a/0018/09 and a/191/08 started on 21 February with protective measures such as voice distortion and the use of closed session to protect their identities from the public.[13]

Relatives of deceased victims to continue their action

[Background] On 17 December 2010, TC II ordered the legal representatives of victims to provide, where available, assents of all remaining victims on disclosure of their identities to the parties. The Chamber also ordered to be informed of whether relatives of deceased victims intended to continue their actions.

 On 15 February 2011, Maitre Nsita informed the Chamber that the families of deceased victims a/0051/08, a/0197/08, a/0311/09 and a/0025/08 had met and each appointed a person to act on behalf of the deceased victims.[14] Proof of identity and kinship were also submitted. It is worth noting that while relatives have been allowed to continue the action of deceased victims in this case, such a right was rejected in the Lubanga Case.[15]

Maitre Nsita provided, where available, the agreement of his clients with regards to disclosure of their identities. He also requested the Chamber to extend protective measures granted to victims in the case to the relatives appointed to continue the action of deceased victims.

Prosecution Witness’ testimony to be excluded following contradictions and allegation of perjury

[Background] On 14 December 2010, the Prosecution informed the Chamber that it would no longer rely on the testimony of witness P-159, who testified between 17 and 29 March 2010. The Defence further requested that “legal proceedings for perjury against P-159 be initiated.” [16]

On 24 February 2011, the Chamber noted the agreement between the parties that there were serious questions about the credibility of P-159's testimony and concluded that it would not give it any evidentiary weight.[17] TC II further recalled that the authority to initiate an investigation with regards to the offences defined in article 70 of the Rome Statute lied with the Prosecution.[18] It added that should the Prosecution not initiate proceedings, the Court could still request the Democratic Republic of the Congo to submit the case to its competent authorities.[19]

 

Situation in Kenya

Developments in the Kenya Situation 

Victims’ participation in article 58 proceedings ruled out 

[Background] On 15 December 2010, the Prosecutor requested Pre Trial Chamber II (PTC II) to issue summonses to appear forHenry Kosgey,Joshua Arap Sang, William Ruto, Uhuru Kenyatta, Francis Kirimi Muthaura and Mohammed Hussein Ali.[20] On 18 January 2011, PTC II had rejected William Ruto’s request to be heard as an amicus curiae.[21]

On 20 January 2011, Mohammed Hussein Ali also requested to participate in the proceedings. [22] He argued that as "persons [victims] and other entities [amici] with a lesser [...] interest in the proceedings [had] been allowed to participate" in other proceedings under article 58 of the Statute, he "[did] not expect to be treated any less".

On 11 February 2011, PTC II rejected his request, recalling that “there [was] no legal basis for a person under the Prosecutor's investigation to submit observations at [that] stage of proceedings.”[23]  The Chamber clarified that no victims had been allowed to participate in article 58 proceedings so far. It added that proceedings that are to be conducted ex parte  (as is the case with proceedings under article 58 of the Statute) were, by definition, not "appropriate" for the purposes of victims' participation. Thus, victims would not be allowed to participate in any such proceedings even if their personal interests were affected.[24] 

 

Referral of the Situation in Libya

Following the UN Security Council referral, the Prosecutor opens an investigation

On 26 February 2011, the Security Council of the United Nations (UNSC) unanimously referred the Situation in Libya to the Prosecutor of the ICC, in accordance with article 13(b) of the Rome Statute.[25]

On 3 March 2011, the Prosecutor announced his decision to open an investigation in Libya. He stated that the worst incidents so far identified had taken place in Benghazi, on 15 February 2011; Misratah, Al-Bayda, Derna, Zenten and Ajdabiya on 16 February 2011;   Misratah, on 18 February 2011; and Tripoli and Az-Zawiyah, on 20 February 2011. He added that his office had identified some individuals with “formal or de facto authority, who commanded and had control over the forces that allegedly committed the crimes.” He named them as Muammar Al Gaddafi, the chairman of the Revolutionary Command Council, and his inner circle; the Minister of Foreign Affairs; the Head of Regime Security and Military Intelligence; the Head of Gaddafi’s Personal Security; and the Head of the Libyan External Security Organization. [26]

On 4 March 2011, the Presidency of the ICC assigned the Situation in the Libyan Arab Jamahiriya to PTC I.[27]



[1] Transcript of hearing on 3 May 2010, ICC-01/04-01/06-T-277-CONF-ENG ET, pages 1-2.

[2] Redacted Decision on the disclosure of information from victims' application forms (a/0225/06, a/0229/06 and a/0270/07), 4 February 2011, ICC-01/04-01/06-2586-Red, http://www.icc-cpi.int/iccdocs/doc/doc1014287.pdf; the original confidential decision was issued in October 2010.

[3] Redacted version of the Corrigendum of Decision on the applications by 15 victims to participate in the proceedings, 8 February 2011, ICC-01/04-01/06-2659-Corr-Red, http://www.icc-cpi.int/iccdocs/doc/doc1017020.pdf.

[4] For more details on claims from the 15 victims, see annex A of the decision, ICC-01/04-01/06-2659-AnxA-Red2, http://www.icc-cpi.int/iccdocs/doc/doc1017029.pdf.

[5] Requête de la Défense aux fins d'arrêt définitif des procédures, 10 December 2010, ICC-01/04-01/06-2657-Conf.

[6] Redacted Decision on the Defence Application Seeking a Permanent Stay of the Proceedings, 2 March 2011, ICC-01/04-01/06-2690-Red, http://www.icc-cpi.int/iccdocs/doc/doc1030726.pdf

[7] Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, http://www.icc-cpi.int/iccdocs/doc/doc243774.PDF

[8] Cinquième décision relative à 2 demandes de participation de victimes à la procédure, 9 February 2011, ICC-01/04-01/07-2693, http://www.icc-cpi.int/iccdocs/doc/doc1017932.pdf.

[9] Soumission du représentant légal du groupe des victimes enfants soldats relative à l’anonymat des victimes a/0390/09 et a/0452/09, 15 February 2011, ICC-01/04-01/07-2707, http://www.icc-cpi.int/iccdocs/doc/doc1022052.pdf;

[10] Décision aux fins de comparution des victimes a/0381/09, a/0018/09, a/0191/08 et pan/0363/09 agissant au nom de a/0363/09, 9 November 2010, ICC-01/04-01/07-2517, http://www.icc-cpi.int/iccdocs/doc/doc964978.pdf.

[11] 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,; ICC-01/04-01/07-2674, http://www.icc-cpi.int/iccdocs/doc/doc1011356.pdf; Notification du retrait de la victime a/0363/09 de la liste des témoins du représentant légal, 10 février 2011, ICC-01/04-01/07-2695-Conf ; Décision relative à la Notification du retrait de la victime a/0381/09 de la liste des témoins du représentant légal », 31 January 2011, http://www.icc-cpi.int/iccdocs/doc/doc1010987.pdf.

[12] Décision relative à la Notification du retrait de la victime a/0363/09 de la liste des témoins du représentant légal, rendue le 11 février 2011, 21 February 2011, ICC-01/04-01/07-2699-Red, http://www.icc-cpi.int/iccdocs/doc/doc1025672.pdf.

[13] Version publique expurgée de la Décision sur la requête aux fins de prononcé de mesures de protection au bénéfice des témoins a/0381/09, a/0018/09, a/0191/08, pan/0363/09 et de la victime a/0363/09, 22 February 2011, ICC-01/04-01/07-2663-Red, http://www.icc-cpi.int/iccdocs/doc/doc1026196.pdf

[14] Cinquième soumission du représentant légal relative à la notification du décès de cinq victimes, à la reprise des dossiers de certaines victimes décédées et à la divulgation de l’identité de victimes et/ou de repreneurs d’action de certaines victimes, 15 February 2011, ICC-01/04-01/07-2706, http://www.icc-cpi.int/iccdocs/doc/doc1022038.pdf.

[15] Participation on behalf of deceased victims was rejected in the Lubanga case, TC I , Redacted version of Decision on 'indirect victims, 8 April 2009, ICC-01/04-01/06-1813, paras. 44-52, http://www.icc-cpi.int/iccdocs/doc/doc662407.pdf; it has however been allowed in the Bemba case: TC III, 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  

[16] Prosecution's Notice that it will not rely on the testimony of Prosecution Witness P-159 to prove its case, 14 December 2010, ICC-01/04-01/07-2631-Conf; ICC-01/04-01/07-2683-Conf.

[17] Decision on the Prosecution's renunciation of the testimony of witness P-159, 24 February 2011, ICC-01/04-01/07-2731, http://www.icc-cpi.int/iccdocs/doc/doc1027401.pdf.

[18] Article 70 rules offences against the administration of justice, providing inter alia that “The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; [...]”

[19] According to Rule 162, the Court may request a State Party to exercise jurisdiction pursuant to article 70.

[20] 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

[21] 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.

[22] Transmission by the Registry of an "Application for Leave to Participate in the Proceedings before the Pre-Trial Chamber relating to the Prosecutor's Application under Article 58(7)", 20 January 2011, ICC-01/09-37 & ICC-01/09-37-ANXA , http://www.icc-cpi.int/NR/exeres/34AA6545-74E2-452E-9677-55292070DF9B.htm.

[23] Decision on the "Application for Leave to Participate in the Proceedings before the Pre-Trial Chamber relating to the Prosecutor's Application under Article 58(7)', 11 February 2011, ICC-01/09-42, http://www.icc-cpi.int/iccdocs/doc/doc1020106.pdf.

[24] Ibid; PTC II had previously found on 3 November 2010 that victims may participate in proceedings related to the Situation stage, when they have a personal interest in the outcome of the proceedings, only when an issue arises which may require judicial determination, Decision on Victims' Participation in Proceedings Related to the Situation in the Republic of Kenya, 3 November 2010, ICC-01/09-24, http://www.icc-cpi.int/iccdocs/doc/doc962483.pdf;

[25] UNSC Resolution 1970, 26 February 2011, S/RES/1970, http://www.un.org/News/Press/docs//2011/sc10187.doc.htm.

[27] Decision Assigning the Situation in the Libyan Arab Jamahiriya to Pre-Trial Chamber I, 4 March 2011, ICC-01/11-1, http://www.icc-cpi.int/iccdocs/doc/doc1032131.pdf.