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LEGAL UPDATE January-February 2010

ICC Victims’ Rights Legal Update

January - February 2010

(pdf version)

 

DRC situation

Developments in the ongoing Lubanga Trial

  • Victims’ final attempt for the legal recharacterisation of facts is rejected
  • Victims’ interrogate UN Special Representative of Children in armed conflict & DRC expert on names
  • Defense seeks clarification on judge’s questioning of witnesses
  • Debate on whether victims have a personal interest to question defense’s witnesses
  • Witness to give evidence via video-link

Opening of the Katanga & Ngudjolo Trial

  • Trial Chamber II provides reasoned decision on victims’ right to participate in the case
  • Victims want to be involved in the protocol on the modalities of protected witnesses’ ID disclosure
  • Trial Chamber II renders decision on the modalities of victims’ participation
  • Germain Katanga is granted the right to appeal the decision rejecting his request for a declaration on unlawful detention and stay of proceedings
  • The Prosecution appeal the Chamber’s oral rulings on witness’ testimony  

Sudan Situation

Al-Bashir Case 

  • Appeals Chamber rejects the exclusion of genocide charge in the warrant against Al-Bashir

Abu Garda Case

  • Parties awaited to reply victims’ applications for participation
  • Pre-Trial Chamber I declines to confirm the charges against Abu Garda

 

Situation in Central African Republic

Bemba Case

Decision on the procedures to be adopted for instructing expert witnesses

Parties and participants called to participate in Bemba’s detention review

 

Situation in the Republic of Kenya

PTCII rejects the Professors’ Amicus Curiae application

Prosecutor to give clarification and additional information


DRC Situation 

Developments in the ongoing Lubanga Trial

Victims’ attempt to modify the legal recharacterisation of facts following the appeal on this matter is rejected

[Background] On 15 December 2009, victims’ legal representatives submitted observations on the consequences of the Appeals Chamber (AC)’s decision of 8 December 2009,[1]  arguing that based on the Appeals Judgment, a new interpretation of Regulation 55 of the Regulations of the Court might still allow for a legal recharacterisation of the facts in the document containing the charges.[2] On 22 December 2009, the Office of the Prosecutor (OTP) responded,[3] stressing that the AC limited itself to reversing the initial decision and therefore, the Trial Chamber (TC) could determine which course of action to take.

On 8 January 2010, TCI rejected victims’ representatives’ observations,[4] while recognising that the legal characterisation of the facts could be subject to change in accordance with Regulation 55(2) of the Regulations of the Court. However, the Chamber stated that the suggested change in the legal characterisation supported by the victims’ representatives could only be done by reference to factual evidence which was not included in the confirmation of charges decision.

Victims’ interrogate UN Special Representative of Children in armed conflict & DRC expert on names

During the hearings of 7 January 2010, Trial Chamber I orally granted the victims’ legal representatives’ request to question two expert witnesses.[5]

Legal representatives asked questions on social, economic and cultural factors contributing to the recruitment of children in armed groups. Quoting the expert’s report on the invalidity of a child's consent to any of the three crimes of child soldiering, a victims’ legal representative asked the expert to elaborate further and also asked whether a distinction needed to be drawn between recruitment of boys and girls. The issue of sexual usage as an objective and/or a consequence of the recruitment into armed forces and more generally the forms of sexual exploitation that girls and boys suffered when integrated into armed groups was also raised. Finally, questions were asked on the confrontation between child and recruiter and the time frame of the crime of enlistment or conscription.[6]

Defense seeks clarification on judges’ questioning of witnesses

 On 15 January 2010, Lubanga’s defense requested that Trial Chamber I (TCI) determine principles regarding the interrogation of witnesses by judges and clarification as to the defense’s rights pursuant to article 64 (2) and 64(3)(a).[7] The defense argued that the questions should only touch upon the facts and circumstances described in the decision confirming the charges and that judges should not be able to ask leading questions. The defense requested to be allowed to object to the questions asked by the judges. So far judges have questioned witnesses on matters not directly linked to the charges such as the presence and role of girls in the UPC.

On 25 January 2010, the Prosecutor and Legal Representatives asked the Chamber to reject the defence’s request.[8] OTP submitted that the Chamber could ask questions addressed to matters other than the facts and circumstances described in the charges, as well as ask leading questions and that parties should be entitled to object to the Chamber’s questions.  

Debate on whether victims have a personal interest to question defense’s witnesses

On 20 January 2010, the defense submitted observations on victims’ right to examine defense’s witnesses and on the notion of personal interest before Trial Chamber I (TCI):[9]

-       The defense claimed that in common law systems, the intervention of victims supporting the prosecution’s case, could aggravate the charges and prejudice equality of arms;

-       The defense submitted that only victims who were personally concerned should be allowed to question defence’s witnesses and that this should only apply to victims whose identity was known.

 

The legal representatives of victims requested the Chamber to reject the defense’s observations arguing that victims had a personal interest in questioning witnesses. [10]

On 27 January 2010, during the ongoing trial, the Defense submitted that the presence of legal representatives of victims whose personal interests are not affected, was not appropriate for security reasons. On 29 January 2010, the Defense filed further observations on this issue, explaining that this presence could be potentially dangerous for defence witnesses;[11] and that the legal representatives of victims could reveal the witness’ indentity to the victims they represent, putting witnesses at risk.

Following submissions from the victims’ representatives,[12] which emphasised that they are bound by their professional code of conduct and recalled the decisions issued by TCI[13] and TCII[14] which recognized victims’ representatives’ right to attend and participate in hearings, Judge Fulford said orally that he did not think the legal representatives would present a threat if they learned the identity of witnesses.

Witness to give evidence via video-link

In November 2009, the Defence had requested leave for witnesses to give evidence via video-link from Ituri on the basis that the given witness is extremely vulnerable.[15] Legal Representatives opposed the application relying on jurisprudence from International Criminal Tribunal for Rwanda and on ICC’s texts.[16]

On 9 February 2010, the Trial Chamber I (TCI) referred the matter to the Victims and Witnesses Unit, for its assessment,[17] recalling that the Chamber is generally enjoined to protect the psychological well-being and dignity of its witnesses and that the change in environment can be extremely destabilising for the witness. The Chamber observed that neither party "owns" the witnesses it intends to call; witnesses are witnesses of the Court and it is for the Chamber to assess individual needs.

Developments in the ongoing Katanga/Ngudgolo trial

Trial Chamber II provides individual reasoning on decisions to grant victim status

[Background] On 23 November 2009, Trial Chamber II (TCII) granted victim status to 14 applicants, rejected 24 applicants, and requested 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.[18] At the opening of the trial, 345 people had been granted victim status by the judges.[19]

On 22 December 2009, TCII provided the individualised reasoning for each applicant.[20] TCII confirmed that a victim’s parents can continue the action triggered by a deceased victim if they demonstrate a family link. The legal representative for the deceased victim needs to be mandated by the victim’ relatives.

Decision on the modalities of victims’ participation

On 22 January 2010, TCII issued a decision on the modalities of victims’ participation in the trial of Mr Katanga and Ngudjolo, noting that so far, 359 victims had been granted the right to participate in the case. [21]

First, TCII recalled that pursuant to article 68-3 of the Rome Statute, victims can expose their views and concerns and that following rule 89-1, it is the duty of the Court to establish modalities of participation. As there is no definition of “views and concerns”, each Chamber is to determinate the meaning depending on the specificities of the case:  

  • each victim must demonstrate his or her personal interest; thereafter representatives would not have to demonstrate that personal interest again during the trial.

As a general rule, TCII recalled that during hearings, victims can participate (as described below) if it is relevant for the truth and not against the equity, impartiality and celerity of proceedings. TCII ruled that victims’ participation encompassed the following:

-     Right to make opening and closing statements at the beginning and the end of trial

-     Right to attend and participate in hearings

-     Right to examine witnesses, experts or the accused

-     Right to attend the familiarisation process ahead of witness’ testimonies

-     Right to present evidence (including exculpatory evidence)

-     Right to challenge the admissibility of evidence

-     Right to have the double status of a victim and a witness called by one of the parties

-     Right to access confidential documents and evidence in the case.

 

On 1 February 2010, Katanga’s Defence sought leave to appeal the decision on 5 grounds:[22] namely that the Trial Chamber erred in finding that the legal representatives of victims :

-        may question witnesses, experts and the accused in a manner which can clarify or complete the elements of proof already provided by the witness;

-        may present evidence and call victims to testify on the crimes against the accused, in a manner which includes incriminating evidence and testimony;

-        might call witnesses on matters including the role of the accused in crimes charged against them;

-        were not bound by a a general obligation to communicate to the parties every element in their possession, whether incriminating or exculpatory;

-        may, with authorisation of the Chamber, give their observations on the relevance or admissibility of items of evidence, without distinguishing between the position where they are mounting a challenge to admissibility or relevance as opposed to supporting a prosecution application to admit evidence.

On 4 February, victims’ representatives asked TCII to reject the request for leave to appeal.[23] On 15 February, the Defence sought to reply to the victims’ representatives as they raised a matter which was not in their request for leave to appeal.[24] The Defence’s request for leave to appeal was still pending at the time of writing.  

Katanga granted the right to appeal the decision rejecting his motion for a declaration on unlawful detention and stay of proceedings

On 11 February 2010, TCII granted Katanga leave to appeal the decision on his motion on unlawful detention and stay of proceedings, pursuant to article 82(1)(d) of the Statute.[25] The Chamber found that the impugned decision involved an issue that could significantly affect the fair and expeditious conduct of the proceedings.

On 25 February 2010, the defense filed its appeal before the Appeals Chamber on the following grounds:[26]

(i)       The Trial Chamber erred in its legal finding that the lateness of the motion rendered it inadmissible;

(ii)      The Trial Chamber erred in its factual finding that the Defence motion was too late.

 

Prosecution’s appeal the Chamber’s oral rulings on witness’ testimony

On 15 February 2010, the Prosecution sought to appeal an oral ruling of 20 November 2009[27] which barred parties from showing a witness his prior statements during direct questioning or asking leading questions on particular matters, particularly where the witness’ in-court testimony was at odds with prior statements.[28]

   

Darfur Situation

Al Bashir Case

Pre-Trial Chamber I’s (PTC1) decision of 10 December 2009 granted 12 victims the right to participate in the pre-trial stage of the case against Al Bashir.[29]

Appeals Chamber rejects exclusion of genocide charges in the warrant against Al-Bashir

[Background] On 4 March 2009 Pre-Trial Chamber I (PTCI) declined to confirm charges of genocide against Omar Hassan Ahmad al-Bashir.[30] On 13 March 2009, the Prosecution sought leave to appeal this decision. On 4 January 2010, a victims’ representative sought leave to participate in the appeal.[31]

On 3 February 2010, the Appeals Chamber (AC) reversed the impugned decision stating that PTCI had applied an erroneous standard of proof and directed PTCI to decide anew, on the basis of the correct standard of proof, whether a warrant in respect of the crime of genocide should be issued against Al-Bashir.[32]

The AC stated that the “proof by inference” standard by PTC1[33] was higher and more demanding than the "reasonable grounds to believe" standard required under article 58 (1)(a) of the Statute.  

Abu Garda Case

Parties’ observation on victims’ applications are awaited

On 29 January 2010, Pre-Trial Chamber I issued a decision setting a time limit for the parties’ observations on 20 applications for victims’ participation,[34] following the Registry report filed on 12 January 2010.[35]

Pre-Trial Chamber I decides not to confirm the charges against Abu Garda

 On 8 February 2010, Pre-Trial Chamber I (PTCI) decided not to confirm the charges brought against Abu Garda.[36]

PTCI was not satisfied that there was sufficient evidence to establish substantial grounds to believe that Abu Garda could be held criminally responsible either as a direct or as an indirect co-perpetrator of the crimes charged by the Prosecution (violence to life, intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission, and pillaging) allegedly committed during an attack on 29 September 2007, against the African Union Mission stationed at the Haskanita Military Group Site, in North Darfur.

The decision does not preclude the Prosecution from bringing additional evidence or requesting leave to appeal.  

 

Situation in Central African Republic

Bemba Case

Leading up to the commencement of trial[37], the Trial Chamber resolved the following pending issues.

Decision on the procedures to be adopted for instructing expert witnesses 

On 12 February 2010, Trial Chamber III decided that the procedures for instructing expert witnesses would be as follows:[38]

i)                the prosecution should provide the defence with the name and CV of the socio-linguistic expert witness, if possible with agreement from the victims’ representatives;

ii)               the defence is to file its observations on all the proposed expert witnesses;

iii)              the joint experts are to be jointly instructed;

iv)             if the parties cannot agree joint instructions, the joint experts are to be given separate instructions, wholly or in part;

v)              the parties shall only instruct separate experts after that proposed course has been raised in a timely manner with the Chamber;

vi)             to the extent that victims are participating on an issue or as regard evidence which is to be the subject of expert evidence, they are to be given an opportunity to contribute to the expert's instructions (jointly with the parties or separately);

vii)            whenever an expert is to be instructed jointly, the instructions to the expert should be filed with the Chamber at an early stage;

Counsel must ensure that they apply to include experts who are not on the list of experts, and that the Chamber receives confirmation via email to the Legal Adviser to the Trial Division.  

Parties and participants’ participation in Bemba’s detention review

On 19 February 2010, Trial Chamber III requested the parties and participants to file their observations on the periodic review of Mr Bemba’s detention every 120 days pursuant to Articles 60(3) and 61(11) of the Rome Statute and to Rule 118(2) of the Rules of Procedure and Evidence.[39]

On 24 February 2010, the legal representatives of victims filed their observations and stressed that there were no changes in the circumstances meriting a modification of the Trial Chamber’s last detention order. The Legal Representatives were concerned about the possibility for Bemba of submitting victims to pressure and of putting their lives at risk.    

 

Situation in the Republic of Kenya

Pre-Trial Chamber II rejects the Professors’ Amicus Curiae application

On 11 January 2010, Professors Max Hilaire and William A. Cohn requested Pre-Trial Chamber II (PTCII) leave to appear as Amicus Curiae.[40] They proposed to submit on:

a)     The threshold for the exercise of jurisdiction and authorization to commence investigations under Article 15;

b)     The application of the principle of complementarity in the circumstances of Kenya;

c)     The timing of the Prosecutor’s application;

d)     The long term political and social aspects relating to the prosecution ;

e)     The cumulative effect on the efforts to set up a local tribunal and the actions of the President and Prime Minister of Kenya on the complementarity principle and the interests of justice in allowing commencement of an investigation;

f)      The extent of and progress in investigations and prosecution of crimes against humanity in Kenya and the effect thereof on the complementarity principle under the ICC Statute

g)     General issues of jurisdiction;

h)     Any other issue that PTC may deem appropriate and within the competence of the proposed Amicus Curiae.

Victims’ legal representatives requested that PTCII reject the application[41] mentioning their concerns that Professor Max Hilaire’s view on the domestic African legal framework could prejudice the rights and interests of the victims.[42]

On 3 February 2010, PTCII rejected the Amicus Curiae application explaining that the proposed submission would not assist in reaching a proper determination of the Prosecutor's Request.[43]

Prosecutor to give clarification and additional information

On 18 February 2010, Pre-Trial Chamber II requested clarification and additional information in relation to the request for authorization to commence an investigation into the situation in the Republic of Kenya[44] in relation to the post-election violence of 2007-2008: 

1)    The State and/or organizational policy under article 7(2) (a) of the Statute

The Chamber recalled that to meet the requirements of a crime against humanity under the Statute, the acts committed must be carried out "pursuant to or in furtherance of a State or organizational policy" within the meaning of article 7(2)(a) of the Statute. Therefore, in order to support the alleged commission of a crime against humanity, the Chamber asked the Prosecution to give more information on the linkage between, on the one hand, events, the persons involved, the acts of violence allegedly committed in the various regions of the Republic of Kenya during different periods of time and, on the other hand, a policy of a State or one or more organizations.

2)    Admissibility within the context of the situation in the Republic of Kenya.

In order to follow the requirements of regulation 49(2)(c) of the Regulations and regulations 33 and 34 of the OTP Regulations, the Chamber asked the Prosecutor to provide more recent information on:

1)    The incidents that are likely to be the focus of an investigation

2)    The groups of persons involved that are likely to be the target of an investigation for the purpose of identifying the potential cases under consideration

3)    Domestic investigations, if any, with respect to those potential cases as constituted by the previous two elements.

   

 


[1] On 8 December 2009, the Appeals Chamber unanimously reversed the decision of TCI of 14 July 2009, finding that TCI erred in law when finding that Regulation 55 contained two separate procedures thus it was not permissible under Regulation 55 (2) and (3) to include additional facts and circumstances that are not described in the charges.
[2] ICC-01/04-01/06-2215, see annex ICC-01/04-01/06-2215-AnxI, http://www.icc-cpi.int/iccdocs/doc/doc793403.pdf
[3] ICC-01/04-01/06-2211. The defence filed its submissions on 18 December 2009, and the prosecution on 22 December 2009: Réponse de la Défense aux "Observations conjointes des Représentants Légaux des Victimes quant aux conséquences de l'arrêt de la Chambre d'appel du 8 décembre 2009", datées du 15 décembre 2009, 18 December 2009, ICC-01/04-01/06-2214. Prosecution's Observations on the consequences of the Appeal Judgment of 8 December 2009, 22 December 2009, ICC-01/04-01/06-2215.
[4] ICC-01/04-01/06-2223, http://www2.icc-cpi.int/iccdocs/doc/doc802895.pdf
[5] TCI, Trial Transcript, 7 January 2010, ICC-01/04-01/06-T-223-ENG, http://www.icc-cpi.int/iccdocs/doc/doc802628.pdf
[6] Trial Transcript, 7 January 2010, ICC-01/04-01/06-T-223-ENG, http://www.icc-cpi.int/iccdocs/doc/doc802628.pdf, from page 25, line 17 to page 31, line 11.
[7] ICC-01/04-01/06-2252
[8] 25 Janvier 2010, ICC-01/04-01/06-2264, Réponse conjointe des représentants légaux des victimes a la requête de la défense aux fins de détermination des principes applicables aux questions posées aux témoins par les juges, http://www.icc-cpi.int/iccdocs/doc/doc811371.pdf. 25 Janvier 2010, ICC-01/04-01/06-2265, Prosecution’s Response to the Defence “Requête aux fins de détermination des principes applicables aux questions posées aux témoins par les juges, http://www.icc-cpi.int/iccdocs/doc/doc811652.pdf
[9] Observations de la Défense sur le droit des victimes d’interroger les témoins de la Défense et sur la notion d’ « intérêt personnel », 20 Janvier 2010, ICC-01/04-01/06-2253, http://www.icc-cpi.int/iccdocs/doc/doc808571.pdf
[10] Réponse conjointe des représentants légaux des victimes aux « Observations de la défense sur le droit des victimes d’interroger les témoins de la défense et sur la notion d’intérêt personnel », 26 Janvier 2010, ICC-01/04-01/06-2267, http://www.icc-cpi.int/iccdocs/doc/doc813309.pdf
[11] Observations de la Défense sur la protection de l’identité des témoins de la Défense autorisés à conserver l’anonymat vis-à-vis du public, à l’égard des victimes participantes dont l’intérêt personnel n’est pas concerné par leurs témoignages, 29 January 2010, ICC-01/04-01/06-2275, http://www.icc-cpi.int/iccdocs/doc/doc814839.pdf
[12] Réponse conjointe des Représentants légaux des victimes aux observations de la Défense sur la protection de l’identité de ses témoins à l’égard des victimes Participantes, 4 February 2010, ICC-01/04-01/06-2281-Red, http://www.icc-cpi.int/iccdocs/doc/doc818531.pdf
[13] Voir la « Décision relative à la participation des victimes » (Chambre de première instance I), 18 janvier 2008, n° ICC-01/04-01/06-1119-tFRA, paras. 112-115
[14] Voir la « Décision relative aux modalités de participation des victimes au stade des débats sur le fond » (Chambre de première instance II), 22 janvier 2010, n° ICC-01/04-01/07-1788, paras. 69-70
[15] ICC-01/04-01/06-2197-Conf, paragraphs 1 and 2, not available online
[16] Réponse à la requête de la Défense pour déposition par vidéoconférence d'entendre un témoin de la Défense, 29 January 2010, ICC-01/04-01/06-2276-Conf, not available online
[17] TCI, Redacted Decision on the defence request for a witness to give evidence via video-link, 9 February 2010, ICC-01/04-01/06-2285-Red, http://www.icc-cpi.int/iccdocs/doc/doc820206.pdf
[18] 23 November 2009, ICC-01/04-01/07-1669:
[19] On 31 July 2009, TCII granted victim status to 288 applicants out of 345, ICC-01/04-01/07-1347-Corr: http://www.icc-cpi.int/iccdocs/doc/doc721143.PDF. On 28 October 2009, TCII invited OTP and the Defence to make observations on 39 victims’ applications, pursuant to Rule 89 (1).[ICC-01/04-01/07-1567: http://www.icc-cpi.int/iccdocs/doc/doc771606.pdf]. On 9 November 2009, the Defense submitted its observations on the victims’ applications. The Defense opposed some applications, for instance, those that indicate a location different from Bogoro village (ICC-01/04-01/07-1616: http://www.icc-cpi.int/iccdocs/doc/doc778780.pdf). The same day, OTP filed its response, recommending victim status for 35 of the 39 applicants (ICC-01/04-01/07-1611: http://www.icc-cpi.int/iccdocs/doc/doc778594.pdf).
[20] Motifs de la deuxième décision relative aux demandes de participation de victimes à la procédure, 22 Décembre 2009, ICC-01/04-01/07-1737, http://www.icc-cpi.int/iccdocs/doc/doc797065.pdf
[21] TCII, 22 January 2010, « Décision relative aux modalités de participation des victimes au stade des débats sur le fond » http://www.icc-cpi.int/iccdocs/doc/doc810967.pdf, ICC-01/04-01/07
[22] Defence Request for Leave to Appeal the Décision relative aux modalités de participation des victims au stade des débats sur le fond (ICC-01/04-01/07-1788), 1 February 2010, ICC-01/04-01/07-1815, http://www2.icc-cpi.int/iccdocs/doc/doc816344.pdf
[23] Réponse conjointe des Représentants légaux des victimes à la demande de la Défense de Germain Katanga d’être autorisée à interjeter appel de la décision de la Chambre relative aux modalités de participation des victimes, 4 February 2010, ICC-01/04-01/07-1841, http://www.icc-cpi.int/iccdocs/doc/doc818394.pdf
[24] Defense request for leave to reply to Réponse conjointe des Représentants légaux des victimes à la demande de la Défense de Germain Katanga d’être autorisée à interjeter appel de la décision de la Chambre relative aux modalités de participation des victimes, 15 February 2010, ICC-01/04-01/07-1870, http://www.icc-cpi.int/iccdocs/doc/doc822178.pdf
[25] TCII, Decision on the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain Katanga en illégalité de la détention et en suspension de la procédure", 11 February 2010, ICC-01/04-01/07-1859, http://www.icc-cpi.int/iccdocs/doc/doc821369.pdf
[26] Document in Support of the Defence Appeal of the Décision relative à la requête de la Défense de Germain Katanga en illégalité de détention et en suspension de la procédure, 25 February 2010, ICC-01/04-01/07-1916-Corr, http://www.icc-cpi.int/iccdocs/doc/doc828650.pdf
[27] On 20 November 2009, Trial Chamber II issued a decision broadly providing directions for the conduct of the proceedings and testimony (“Rule 140 Decision”). On 8 February 2010, the Chamber addressed the issue of a witness whose testimony is consistent with his prior statements in some respects but who provides contradictory evidence on other matters.
[28] Prosecution’s Application for Leave to Appeal Oral Rulings on Clarifying Inconsistencies in Prior Statements and Partial Hostility, 15 February 2010, ICC-01/04-01/07-1872, http://www.icc-cpi.int/iccdocs/doc/doc822305.pdf
[29] Decision on Applications a/0011/06 to a/0013/06, a/0015/06 and a/0443/09 to a/0450/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case, 10 Décembre 2009, ICC-02/05-01/09-62, http://www.icc-cpi.int/iccdocs/doc/doc793087.pdf
[30] PTCI, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3, http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf
[31] The Appeals Chamber rejected their first application for an extension of the time limit for filing observations in the context of the Appeal, considering that the Victims had not shown good cause, Request for an Extension of the Time Limit Prescribed in the Regulations of the Court and Observations on the Victims’ Right to Participate in the Prosecution’s Appeal against the Decision on the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir, 27 August 2009, ICC-02/05-01/09-35, http://www.icc-cpi.int/iccdocs/doc/doc733355.pdf. On 28 January 2010, the Appeals Chamber granted victims the right to participate in the appeal. [Decision on the Second Application by Victims a/0443/09 to a/0450/09 to Participate in the Appeal against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir", 28 January 2010, ICC-02/05-01/09-70, http://www.icc-cpi.int/iccdocs/doc/doc814400.pdf] AC recalled that there was no automatic right of participation in interlocutory appeals and noted that it would not ordinarily accept requests for participation at such a stage as proceedings in the present appeal were far advanced. However, AC accepted that circumstances were beyond the control of victims and accordingly deemed their participation to be appropriate. Finally, the AC stated that for victims to make submissions on the substance of an appeal they should  request to be granted the right to do so. Nevertheless, in the present case, AC decided to allow the victims' substantive submissions.
[32] Appeals Chamber, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 3 February 2010, ICC-02/05-01/09-73, http://www.icc-cpi.int/iccdocs/doc/doc817795.pdf
[33] he Pre-Trial Chamber stated that the "reasonable grounds" standard would be met (and a warrant would be issued) if the evidence provided by the Prosecutor "show[s] that the only reasonable conclusion to be drawn therefore is the existence of reasonable grounds to believe in the existence" of the requisite specific genocidal intent. See paragraphs 147 to 161 of the decision.
[34] PTCI, Decision Setting a Time Limit for the Parties' Replies to 20 Applications for Victims' Participation in the Proceedings, 29 January 2010, ICC-02/05-02/09-240, http://www.icc-cpi.int/iccdocs/doc/doc815934.pdf
[35] ICC-02/05-02/09-238-Conf-Exp.
[36] PTCI, Decision on the Confirmation of Charges, 8 February 2010, ICC-02/05-02/09-243-Red, http://www.icc-cpi.int/iccdocs/doc/doc819602.pdf
[37] Trial Chamber III, Decision on the Date of Trial, 5 November 2009, ICC-01/05-01/08-598, http://www.icc-cpi.int/iccdocs/doc/doc777533.pdf; the date of the trial has now been postponed until 5 July 2010, http://www.icc-cpi.int/NR/exeres/D4399AA5-7027-4935-A347-1621357D5E0C.htm
[38] TCIII, Decision on the procedures to be adopted for instructing expert witnesses, 12 February 2010, ICC-01/05-01/08-695, http://www.icc-cpi.int/iccdocs/doc/doc821745.pdf
[39] Order requesting the parties and participants' observations regarding the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence, 19 February 2010, ICC-01/05-01/08-698, http://www.icc-cpi.int/iccdocs/doc/doc826043.pdf
[40] Request by professors Max Hilaire and William A. Cohn to appear as amicus curiae, 11 January 2010, ICC-01/09-8, http://www2.icc-cpi.int/iccdocs/doc/doc804008.pdf; Max Hilaire is an Associate Professor and Chair of the Depatment of Political Science at Morgan State University. William A. Cohn has practiced as an Attorney at Law San Francisco and has lectured and addressed students at the University of New York
[41] Victim’s Response to the Application of Professors Max Hilaire and William A. Cohn to Appear as Amici Curiae, ICC-01/09-11, 20 January 2010, http://www.icc-cpi.int/iccdocs/doc/doc808369.pdf
[42] The application for leave stipulates that Professor Max Hilaire “is currently engaged on researching ways to resolve the Kenyan conflict using indigenous dispute resolution mechanisms” and that he “thinks that it is necessary to give the domestic African legal framework sufficient chance to work and permit the ICC intervention in exceptional circumstances”.
[43] Decision on Application to Appear as Amicus Curiae and Related Requests, 3 February 2010, ICC-01/09-14, http://www.icc-cpi.int/iccdocs/doc/doc818173.pdf
[44] Situation in the Republic of Kenya, Pre-Trial Chamber II, Decision Requesting Clarification and Additional Information, 18 February 2010, ICC-01/09-15, http://www.icc-cpi.int/iccdocs/doc/doc825223.pdf