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

ICC Victim’s Rights Legal Update

2 February 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 mid October 2006.

 

Uganda Situation and cases

  • Death of Lukwiya
  • A single judge for victims applications
  • Victims denied common legal representative, and instead to be supported by OPCV, appointment of Defence Counsel

Central African Republic

  • Prosecutor gives information on preliminary examination

Sudan Situation

  • Attempt by the Defense to stay proceedings on victim protection is rejected
  • Defense’s challenge to the Court’s jurisdiction is rejected
  • First investigation nearly completed with victims focus / Prosecutor’s team to visit Sudan in January

DRC Situation-Lubanga case

  • The Prosecutor opposes Women’s Initiative request to file amicus
  • Prosecutor’s continued reluctance in letting victims participate in the DRC Situation
  • Victim status review
  • PTC I to provide further reasoning on allowing summary testimony, pseudonyms and redactions
  • Witness familiarization goes ahead before the confirmation of charges hearing
  • Appeals Chamber rejects Lubanga’s request for release on the basis of lack of jurisdiction
  • Charges against Lubanga are confirmed and case is referred for trial

_________________________________________________________________

 

UGANDA CASES & SITUATION

The death of Raska Lukwiya was confirmed in a statement by the Prosecutor on 7 November 2006.[1]

Single judge appointed for victim applications

On 22 November 2006, the Court appointed Mauro Politi as single judge for victims' applications, acknowledging that victims have applied to take part in the Uganda proceedings in respect to both the situation in Uganda and the cases against Joseph Kony, Vincent Otti, et al.[2]

Victims denied request for legal representation by the Court and nomination of Defense Counsel.

[Background] : Victims applied for participation in the proceedings on 19 June and 17 August 2006.  As of 1 February 2007: at least 49 applications for participation in the situation and in the case have been filed on a confidential basis.

On 1 February 2007, The victims’ request for the Court to secure their legal representation was denied by the Single Judge recalling that legal representation for the victims is not per se necessary for them to participate: there is no unconditional right for the victims to be provided with the assistance of a legal representative prior to the Chamber’s decision on the merit of their application. Judge Politi referred them to the Office of Public Counsel for Victims for assistance and support. [3]

In the same decision the Court appointed Michelyne C.St Laurent as counsel for the defense, which is entitled to provide observations on victim applications. Politi ordered protective measures, namely redaction of the victims’ applications, so as to protect their identities.

 

CENTRAL AFRICAN REPUBLIC

Prosecutor provides information on CAR preliminary examination

Following a request from the government of Central African Republic that the Prosecutor provide information on his alleged failure to decide within a reasonable time whether to initiate an investigation, the Prosecutor indicated on 12 December 2006,  that the preliminary examination needs to be “thorough and conducted in a comprehensive manner”. He explained that local proceedings had been initiated in CAR and these need to be assessed. The situation has evolved since July 2006 and there are allegations that new crimes were being committed. The Prosecutor received more information on previous allegations and is checking them carefully to ensure their credibility. On timelines: the Prosecutor stated that he is committed to completing the analysis as expeditiously as possible hoping to take a decision in the near future.[4]

 

SUDAN SITUATION

Appeals Chamber rejected ad hoc Defense Counsel attempt to stay proceedings on victim protection

On 20 October 2006, Maitre Shalluf, ad hoc counsel for the Defense sought to stay proceedings in relation to observations from Prof. Cassese and Louise Arbour on victims’ protection and the preservation of evidence, requesting that the Pre-Trial Chamber wait until a decision has been reached on his challenge to the Court’s jurisdiction.The Pre-Trial Chamber rejected his request on 2 November 2006.

Maitre Shalluf sought to appeal the Pre-Trial Chamber’s decision rejecting his request, arguing that the observations submitted by Prof. Cassese and Louise Arbour were an attempt to introduce new evidence in the case.  In this dispute, the Prosecutor requested the Court to deny the appeal, explaining the usage of Rule 103, namely that it allows the Court to request observations, and that such observations cannot be considered as new pieces of evidence.

On 22 November, the Appeals chamber denied Maitre Shalluf leave to appeal, explaining that the observations could not be considered as testimonies in relation to the merits of the situation.[5]    

Maitre Shalluf’s challenge to the Court’s jurisdiction is rejected

On 22 November, the Court rejected Maitre Shalluf’s request that it declare itself incompetent in the Darfur Situation indicating that that none of the articles stated by the defense counsel allowed him to contest the admissibility of the case or the competency of Court, especially considering the fact that no indictment had been made yet.[6] Maitre Shalluf sought to appeal this decision on 27 November but leave for appeal was denied on 12 December on the ground that the Defense Counsel’s request had no legal basis.

Prosecutor has nearly completed investigation of first case in the Darfur Situation: main focus is victims

On 19 December 2006, the Prosecutor submitted his 4th Report to the Security Council, pursuant to article 8 of Security Council Resolution 1593 (2005), outlining developments in the Darfur situation.

The report highlights that the continuing commission of crimes are included in his investigation and analysis, which shows the need for a sequence of cases rather than a single case. Due to the current security situation in Darfur, the investigations have continued to take place from outside Darfur.

The Prosecutor recalls that the protection of victims is a “specific statutory duty imposed on [his] Office and the Court, and requires a security framework for responding to emergencies threatening the safety of victims and witnesses.” The Prosecutor has made it his priority to reach the victims, through conducting more than 70 missions to 17 countries.

Prosecutor to visit Sudan, while Defense attempts to get involved in the investigation

On 22 January 2007 ICC investigators were to be sent to Khartoum in the “next few days”, in relation to the Prosecutor requesting arrest warrants.[7] Counsel for the defence has requested to be informed of and attend the interrogations that would be undertaken while the OTP is in Sudan.  

In response, the Prosecutor argued that the Pre Trial Chamber had expressly limited the role of the ad hoc Counsel for the Defense to observations sollicted by the Chamber under Rule 103 - regarding victim protection. The defense had no standing to request involvement in the investigation and the Prosecutor expressed concern the lack of regard for procedure.

 

DRC situation update

Prosecutor’s opposition to Women’s Initiative Amicus Request in the DRC Situation

On 10 November 2006 the Women’s Initiative for Gender Justice re-filed its request to submit an amicus brief, this time in the DRC ‘situation case’ instead of the Lubanga Case (this was at the Chamber’s suggestion). They intended to submit observations on 1) the role of the PTC in supervising the Prosecutor’s discretionary powers and 2) the criteria for determining victim status. Women’s Initiative argued that, in determining victim status, the causal link between the harm suffered and the accused should not necessarily have to be related to crimes listed in the arrest warrant.[8]  

The Prosecutor opposed the amicus request on 5 December, claiming that the arguments were irrelevant and hypothetical and that the applicant was asking the Court to go beyond its powers.

Prosecutor is reluctant toward new victim applications in the DRC Situation.

On 30 November, the Prosecutor submitted his observations on applications a/0006- 9, a/0016-63 and a/0071-80 and a/0105 in the DRC Situation. Despite the decision of 17 January 2006, which granted victims the right to participate in the DRC Situation, the Prosecution re-iterated that victims should not be permitted to participate in the situation. He stated that it would jeopardize the appearance of integrity and objectivity of the investigationand impair the confidentiality of all information related to the investigation.

However he indicated that if the Court was to allow victims to participate in the situation, then applications a/0004- 9, 16-63, 71, 72-80 should be granted while applications 18, 26-27 and 38 should be denied on the ground that they did not provide sufficiently whether the harm suffered fell within the Court’s jurisdiction.[9]

 

DRC Lubanga case update

Victim Status in the Lubanga Case as of January 2007

Victims a/0001, 2, 3: Victim Status granted

Victims a/0004, 5, 6, 7, 8, 9, 16, 71-80: Victim Status Denied

Victims a/0105: Victim Status Granted

Dispute over Disclosure of Evidence: PTC I to provide further reasoning in its decisions on summary testimony, pseudonyms and redacted documents

[Background] Since the beginning of the proceedings, the Defense has consistently argued that in order to guarantee a fair trial all protective measures preventing full disclosure of witness identities should be lifted before the confirmation hearing.

On 14 December, the Appeals Chamber[10] reversed two decisions of PTC I which had authorized non disclosure of witness identities and the use of redacted documents. In both cases, the Appeals Chamber considered that the PTC I failed to provide sufficient reasoning. The Chamber highlighted that the use of summary testimony, pseudonyms and redacted documents were not per se incompatible with the Rules as long as they respected the right to a fair trial. The Appeals Chamber invited PTC I to re consider both cases in the light of the present decisions.

Witness familiarization goes ahead before confirmation hearing, but not witness “proofing”.

On 8 November PCT I ordered the Victims and Witnesses Unit to proceed with witness familiarization for the witnesses scheduled to testify at the confirmation hearing and described the modalities of this practice. It recalled art 57(3) and 68(1) of the Rome Statute which ensure “victims and witness protection including measures to protect their (…) psychological well being.” PTC I clearly distinguished familiarization from “proofing” by the Prosecution, which was rejected by the Court.[11]

The Appeal Chamber upholds PTC I decision rejecting Lubanga release on lack of jurisdiction

On the 3 October, the PTC I rejected Lubanga application of  23 May 2006 which called for his release on the basis of the Court’s lack of jurisdiction under art 19(2)(a) of the Statute.[12] The Defense appealed this decision on 9 October.  

On 14 December, the Appeals Chamber,after considering the DRC and the victims’ representatives observations,  upheld PTC I’s decisionagreeing that although breaches of the rights of the accused may provide ground for halting the proceedings, no such violation had been shown. Finally, it concluded that the detention of the Mr. Lubanga in the DRC did not challenge his right to a fair trial at the ICC level.[13]

Victims take part in appeal proceedings;  Appeals Chamber confirms decision not to grant Lubanga bail

On 20 October, the Defense sought to appeal PTC I’s refusal to grant bail to Lubanga.[14]

Lubanga’s Defense then submitted that PTC I had violated its obligation to periodically review his detention and that it had failed to apply the principles of necessity and proportionality to determine whether there was a less restrictive means of ensuring his attendance at trial and the protection of witnesses. Both the Prosecutor and the Legal Representatives of the victims argued that granting Lubanga bail would be inconsistent with combating impunity and would constitute a threat to victims.

Disputes ensued on the acceptability of the victims’ representative response. Both the Defense and the Prosecutor questioned whether victims had a right to take part in the appeal proceedings and if so, whether they had complied with the deadlines for filing their applications.

On 12 December the Appeals Chamber deemed the victims’ responses unacceptable as they were filled without the leave of the Appeals Chamber, however, they weregranted the right to participate in the appeal proceedings for “the purpose of presenting their views and concerns respecting their personal interest in the issues” at stake.

On 14 December the Appeals Chamberrejected the Lubanga’s challenge to jurisdiction and denied that abuse of process had taken place (confirming PTC 1’s decision).

Charges against Lubanga are confirmed and case is committed to trial

The confirmation of charges hearing took place in The Hague from 9 November until 28 November 2006. During this public hearing, all participants to the proceedings had the chance to be heard including victims representatives.

On 29 January 2007, PTC I confirmed the three charges against Thomas Lubanga :

1) enlisting children under the age of fifteen;
2) conscripting children under the age of fifteen; and
3) using children under the age of fifteen to participate actively in hostilities.

The Court decided that there was sufficient evidence to establish substantial grounds to believe that the accused is criminally responsible for co perpetrating the crimes listed above. The case was committed to trial before a Trial Chamber, but no date was given.[15]

On 30 January 2007, the Defense appealed the decision confirming the charges against Lubanga on the basis that it denied his release. Lubanga’s defense requested the Appeals Chamber to reverse the PTC I decision and to order Lubanga’s immediate release.[16]

 

 

 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] Statement by the Chief Prosecutor Luis Moreno-Ocampo on the  reported death of Raska Lukwiya ICC-OTP-20060814-151

[2] Decision designating a Single Judge on Victim's issues, ICC 02/04-01/05-130, 22 November 2006, http://www.icc-cpi.int/iccdocs/doc/doc272752.PDF

[3] Decision, ICC 02/04-01/05-134, 1 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc232762.PDF

[4] Prosecution's Report, ICC-01/05-7, 15 December 2006,  http://www.icc-cpi.int/iccdocs/doc/doc320182.PDF

[5] Décision relative à la requête sollicitant l'autorisation d'interjeter appel  du conseil ad hoc pour la Défense  ICC-02/05-33, 22 November 2006,  http://www.icc-cpi.int/iccdocs/doc/doc259790.PDF(French) 

[6] Décision relative aux conclusions aux fins d'exception d'incompétence et d'irrecevabilité ICC-02/05-34, 22 November 2007, http://www.icc-cpi.int/iccdocs/doc/doc259791.PDF (French)  

[7] cicc bulletin 25/01/200

[8] Request submitted pursuant to rule 103(1) of the Rules of Procedure and Evidence for leave to participate as amicus curiae  ICC-01/04-313, 10 November 2006,   http://www.icc-cpi.int/iccdocs/doc/doc252016.PDF and ICC-01/04-313-Anx1, 10 November 2006, http://www.icc-cpi.int/iccdocs/doc/doc252017.PDF. See also VRWG’s September and October bulletins.

[9] Prosecution's Observations, ICC-01/04-315, 30 November 2006, http://www.icc-cpi.int/iccdocs/doc/doc252022.PDF

[10] Judgments on the appeal of Mr. Thomas Lubanga Dyilo against the decisions of Pre-Trial Chamber I, ICC 01/04-01/06-773, 14 December 2006, http://www.icc-cpi.int/iccdocs/doc/doc243667.PDF; ICC 01/04-01/06-774, 14 December 2006, http://www.icc-cpi.int/iccdocs/doc/doc243668.PDF

[11] Decision on the Practices of Witness Familiarisation and Witness Proofing, ICC 01/04-01/06-679,  8 November 2006, http://www.icc-cpi.int/iccdocs/doc/doc243711.PDF

[12] Decision on the Defence Challenge to the Jurisdiction of the Court, ICC 01/04-01/06-512, 3 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc192939.PDF

[13] Judgment on the Appeal against the Decision on the Defence Challenge to the Jurisdiction of the Court ICC-01/04-01/06-772, 14 December 2006, http://www.icc-cpi.int/iccdocs/doc/doc243774.PDF

[13] Prosecution's Response to the Defence Request for Interim Release, ICC 01/04-01/06-531,

[14] Defense Appeal , ICC-01/04-01/06-594, 9 November 2006, http://www.icc-cpi.int/iccdocs/doc/doc192995.PDF

[15] Pre-Trial Chamber I commits Thomas Lubanga Dyilo for trial, ICC01/04-01/06-803, 29 January 2006, http://www.icc-cpi.int/iccdocs/doc/doc266175.PDF 

[16] Defence Appeal Against the Pre-Trial Chamber’s ‘Décision sur la confirmation des charges’, ICC-01/04-01/06-797, 30 January 2007, http://www.icc-cpi.int/iccdocs/doc/doc232824.PDF