Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE July 2009

 ICC Victims’ Rights Legal Update

July 2009

(pdf version)

 

DRC Situation

Lubanga case

  • The Chamber follows up victim participation decision granting victim status to parents
  • Trial Chamber I grants 6 victims the right to participate
  • Expert files report on names and other social conventions in DRC
  • Trial Chamber I authorizes victims to give evidence in person in the Lubanga trial
  • The Chamber may modify the legal characterisation of facts to include sexual slavery and inhuman treatment

Katanga and Ngudjolo case

  • The Presidency replaces judges in the Appeals Chamber division
  • Katanga will stay in detention
  • Queen’s University Belfast human rights center seeks leave to submit amicus curiae on sexual violence
  • 2 teams to represent over 300 victims: common legal representation in debate
  • Trial Chamber II grants 288 victims the right to participate

Central African Republic Situation

Bemba case

  • "Women's initiatives for gender justice" as amicus curiae
  • Aprodec asbl’ request to participate as amicus curiae is denied
  • Bemba’s granted interim release pending trial: possible states being consulted

Sudan Situation

Al-Bashir case

  • The Presidency replaces judges in the Appeals Chamber
  • Sudanese NGO file a motion to participate as amicus curiae

                                                                                                    

 

DRC Situation

Lubanga case

The Chamber follows up on victim participation decision granting victim status to parents

Background: In its 15 December decision on victims’ participation, the Chamber asked to receive supplementary information regarding 21 applications that were either incomplete, or the applicants, who are now adults, needed to inform the Court if they whished to act on their own. In this decision the Chamber also asked whether parents alleging personal harm as a result of their children's recruitment wanted to participate in their own right, as indirect victims.[1]

On 21 July 2009,[2] after having received the supplementary information requested, the Chamber:

-        Authorized victims a/0047/06, a/0048/06, a/0050/06, a/0052/06, a/0231/06, a/0232/06, a/0245/06, a/0248/06, a/0001/07, a/0005/07, a/0155/07, a/0612/08, and a/0613/08 to act on their own behalf rather than through a legal guardian.

-        Granted legal status to the parents of victim’s a/0002/06, a/0105/06, a/0246/06, a/0149/07, a/0155/07 and a/0613/08 for the personal harm they have suffered as a result of their children's alleged recruitment.

-        Granted legal status to applicants a/0255/07 and a/0256/07.

-        Did not grant legal status to a/0252/07 as he was apparently over fifteen at the time of recruitment. 

Trial Chamber I grants 6 victims the right to participate

On 10 July 2009 Trial Chamber I granted victim status to applicants a/0523/08, a/0611/08, a/0610/08, a/0249/09, a/0060/09 and a/0053/09.[3] The Trial Chamber instructed the Registry to assign them to existing teams of legal representatives in the trial. Application a/0609/08 was rejected, with the possibility of review if the applicant provides further clarification and information. 

Expert files report on names and other social conventions in DRC

As mentioned in the previous legal update, on 5 June Trial Chamber I requested an expert on names to submit a report no later than 3 July 2009 taking into account civil status and registration, names, family and date of birth. The report touches upon issues such as the fact that the tribal origin can usually be established through the name, and that a child when becoming an adult can choose a different name from the one he was given at birth.[4]

Trial Chamber I authorizes victims to give evidence in person

On 9 July, the Chamber publicly granted the request by 3 victims to present evidence in person in the Lubanga trial.[5]  The Chamber adjourned its decision on their request to also present their views and concerns in person.

On the victims’ request to give evidence:

-        The Chamber recognised that the region that the victims wished to provide evidence about in person had been referred to in the evidence and the prosecutor’s summary of evidence, but had not been addressed thus far in the trial.

-        The evidence may assist the Chamber in its consideration of reparations for certain victims and in its determination of to determine the truth;

-        The three applicants have demonstrated that the evidence they seek to present affects their personal interests and, in each instance, is directly related to the charges brought against the accused.

On the victims’ request to present views and concerns:

-        The Chamber stressed that it would be very difficult if all the participating victims in this case sought to present their views and concerns, and that this could be contrary to fair trial.

-        However, the Chamber stipulated that it is almost impossible to determine at this stage when it would be most appropriate for victims to express their views and concerns as a matter of principle. Determination must be made on a case by case basis.

-        The Chamber will determine when and by whom the views and concerns of the 3 victims are to be presented, after they have testified and once the individual circumstances of, and the details of their requests are clear.

The Chamber required the three victims, to confidentially file their final proposals as regards lifting anonymity (with the assistance of the VWU) as well as to file a summary of the evidence they intend to present by 10 August 2009.  

The Chamber may modify the legal characterisation of facts to include sexual slavery and inhuman treatment

 

Background: A joint application was filed on 22 May 2009 by victims’ representatives asking to requalify the facts particularized in the arrest warrant against Lubanga so as to include sexual slavery and inhumane treatment (based on Regulation 55 of the Regulations of the Court).[6]

On 14 July, Trial Chamber I recalled and described its power to re-characterize facts on the basis of Regulation 55, distinguishing the procedure under Regulation 55 (1) and (2): [7].

- Pursuant to Regulation 55 (1), if the re-qualification of facts occurs at the final stage of the Trial, it should not "exceed the facts and circumstances described in the charges."

- However, Regulation 55 (2) provides that requalification may occur at any time during the trial, and that the limits under Regulation 55 (2) and (3) do not require that modification is done "without exceeding the facts and circumstances described in the charges”. The Chamber indicated that the right to call new evidence or to examine previous witnesses, as provided by Regulation 55 (2) would not be relevant if the changes involved only applicable substantive law and not the facts themselves. It stated that the re-characterisation should comply with fair trial.

The Chamber concluded that the submissions by victims’ representatives and the evidence heard so far persuaded it that a possibility to modify the legal facts as required by Regulation 55 (2) existed. Accordingly, the Chamber granted the parties and participants the right to receive early notice and affirmed that at an appropriate stage of proceedings the defense, the prosecution and the victims' representatives shall be given the opportunity to make oral or written submissions. In due course, the Trial Chamber will articulate the procedural steps for a hearing to take place to consider all matters relevant to the possible modification.

Judge Fulford, in a dissenting opinion, argued against the distinction and that different parts of Regulation 55 could be read separately.[8]  He submitted that the Regulation as a whole is indivisible and that this was already clear in the Chambers’ previous decision dated 13 December 2007. He further added that a modification to the legal characterisation of the facts under Regulation 55 must not constitute an amendment to the charges, an additional charge, a substitute charge or a withdrawal of a charge, because these are each governed by Article 61(9); In his view victims representatives were here seeking to add five new charges rather than a change of legal qualification and as a consequence this does not qualify for a launch of the Norm 55 procedure. 

 

Katanga & Ngudjolo case

 The Presidency replaces judges in the Appeals Chamber division[9]

On 24 June 2009, Judges Akua Kuenyehia (Ghana) and Anita Usacka (Latvia) requested to be excused from sitting on the appeal of Trial Chamber II’s decision finding the case admissible, on the basis of their previous involvement in the Pre Trial phase of the case. The request was granted by the Presidency on 3 July 2009. For the purpose of this appeal the Presidency temporarily attached Judge Ekaterina Trendafilova, currently assigned to the Pre-Trial Division, and Judge Joyce Aluoch, currently assigned to the Trial Division, to the Appeals Chamber.

 Katanga will stay in detention

On 21 July 2009,[10] the Chamber decided that Katanga should remain in pre-trial detention. Indeed, pursuant to Article 60(3) of the Statute and Rule 118(2), the decision to keep Katanga in detention must be reviewed at least every 120 days. The extreme gravity of the crimes he is accused of, the safety of victims and the fact that the start of the trial is approaching were mentioned as reasons to keep him detained.

 

Queen’s University Belfast (QUB) seeks to submit an amicus curiae on sexual violence

QUB Human Rights Centre sought leave to submit an amicus curiae to assist the Court in resolving issues raised regarding the crime of sexual slavery on the basis of Rule 103.[11] The defense objected to this motion on 22 July 2009, and argued that the applicant’s brief was neither desirable nor appropriate for the proper determination of the case at this stage of the proceedings.

Two teams allowed to represent over 300 victims, common legal representation for victims in debate

-        The Chamber grants victims status to 288 applicants[12]

On 31 July 2009, Trial Chamber II granted legal status of victims to 288 out of the 345 applications that were still pending in the Katanga/Ngudjolo case. The Chamber granted victim status to an applicant who had submitted 4 separate claims arguing of the harm suffered in result of the death of his relatives. The Chamber also requested additional information on 40 applications to be submitted before 24 August (such as proof of identity, additional information on the place the harm is alleged to have been suffered, names of family members, proof of right to represent a moral person, proof of consent not to act on one’s own behalf…). 5 applications were rejected.

-        Only two teams to represent all the victims in the Katanga/Ngudjolo case

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. [13]

The Chamber argued that there are a large number of victims allowed to participate in the case and there do not seem to be tensions between them in terms of ethnicity, age, gender or the type of crimes. Falling outside of this large group, a small number of former child soldiers, who may have perpetrated crimes that victimized the other applicants, and who are also from a different ethnic background would thus require a separate common legal representative.

The Chamber ordered the Registry to assist the victims in choosing a common legal representative, in consultation with the legal representatives who are currently participating in this case.[14]  In the case where the common legal representative faces a conflict of interest that is irreconcilable, the Chamber will take appropriate measures and may, for example, appoint the Office of Public Counsel for the Victims to represent one group of victims.

Finally, the Registry, in consultation with the common legal representative, shall propose a suitable support structure, in order to provide the common legal representative with the necessary legal and administrative support, to the extent possible and within the limits of the available legal aid structure. The support structure may rely on resources available to the Registry at the seat of the Court and in the field.

 

Central African Republic Situation

Bemba case

Women's Initiative for Gender Justice (WIGJ) file an amicus curiae on cumulative charging

On 31 July 2009, WIGJ filed an amicus in which, while emphasising the rights of the accused, it affirmed that “upon finding of guilt, cumulative convictions are impermissible, but at the charging stage, cumulative charging does not violate the rights of the accused.”[15] Moreover, the amicus submitted that with respect to at least 3 categories of witnesses, (a child under 10 years old; the brother of rape victim beaten while his sister was raped; and a person who watched the sexual assaults of relatives) the cumulative charging test was not applied correctly and was too narrow. Finally, the amicus highlighted that international human rights law demands that gender based crimes be examined in all proceedings in a manner that is not discriminatory. However the approach of the Chamber diminishes effective access of victims to justice and could inadvertently contravene art 21(3) of the Statute which requires that rules and norms applicable to the ICC be applied and interpreted in accordance with internationally recognised human rights and be free from any discrimination on grounds such as gender, age, race.

On 21 July 2009, OPCV had requested to be given the opportunity to respond to the observations to be submitted by the Women's Initiatives and requested the Chamber to order the notification of these submissions to the victims' representatives. [16] On 24 July 2009, the Chamber denied OPCV’s request.  Single Judge, Hans-Peter Kaul stated that OPCV had already provided sufficient information to allow the Chamber to take an informed decision on the Prosecutor's request to appeal.

Single Judge Ekaterina Trendafilova denies APRODEC’s request to file amicus curiae

On 17 July 2009, the Chamber rejected a request from APRODEC asbl. to file an amicus on the issues of the relevance, probative value and admissibility of the evidence as determined by the Chamber, and the question of the inadmissibility of the case according to article 17(l) (d) of the Rome Statute.[17]  The Chamber indicated that the observations offered by the NGO were not desirable for the proper determination of the case at this stage.

Pre-Trial Chamber already denied one of their request to file an amicus curia on 29 May 2009[18].

Six States to provide observations on eventual interim release of Bemba on their territory pending trial

On 29 June 2009,[19] Single Judge Trendafilova held a public hearing regarding Bemba’s interim release. Pursuant to Article 60(3) of the Statute and Rule 118(2), his detention must be reviewed at least every 120 days. Bemba requested interim release to Belgium, France or Portugal.

He argued that:

With regard to the risk of fleeing, he would not go to DRC as his security would be at risk.

With regard to the obstruction of the investigation, he requested to cooperate with the Prosecutor.

With regard to the fear of pressure to be put on witnesses, he was no longer in the same financial situation and therefore was unable to use his financial assets.

The Accused offered a list of 20 personal guaranties he would be ready to give if such a release was granted.[20]

Accordingly, Single Judge requested the potential host States submit their observations on Bemba's interim release and the conditions that would need to be imposed to enable them to accept him on their territory. On 2 July 2009, the defense submitted a request to add Germany, Italy and South Africa to the list.[21] On 10 July the Chamber ordered those new countries to submit their observations no later than 7 August 2009.[22]

On 14 August[23], Single Judge Trendafilova granted conditional release to Bemba recalling that deprivation of liberty was the exception, not a rule that pre trial detention was not pre trial punishment and should not be used for punitive purposes. The conditions of the release are to be determined at a later stage. The Judge requested additional information from the potential host States and invited them to a series of public hearings from 7 till 14th September.

 

Sudan Situation

Al-Bashir case: the Prosecutor’s appeal against the confirmed charges raises issues

The Presidency replaces judges in the Appeals Chamber [24]

On 2 July, Judges Akua Kuenyehia and Anita Usacka requested to be excused from sitting on the appeal against the decision confirming the warrant of arrest against Al Bashir[25], on the basis of their previous involvement in the pre-trial phase of the case against Al-Bashir. Judge Ekaterina Trendafilova, and Judge Joyce Aluoch, currently assigned to the Trial Division, where temporarily attached to the Appeals Chamber.

Sudanese NGOs file a motion to participate as amicus curiae

Background: On 24 June 2009 Pre trial Chamber I granted the Prosecutor leave to appeal the Arrest Warrant decision of 4 March 2009 against President Al Bashir on the Chamber’s exclusion of genocide charges.[26]

On 20 July, the Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG) requested leave to participate in the appeal as amicus curiae.[27]

The amicus intends to:

-        Give the Appeal Chamber the benefit of submissions contrary to the Prosecution’s arguments, in the absence of arguments from any other party.

-        Submit supporting materials in order to have the genocide charges rejected by the Appeal Chamber.

-        They argue that the arrest warrant could have a serious impact on peace agreements and national security.

The decision is still pending.

The two NGOs were previously denied the right to intervene in the case by Pre trial Chamber on 19 February 2009.[28]



[1] See the 15th December 2008 decision : http://www.icc-cpi.int/iccdocs/doc/doc610182.pdf

[4] The report, dated 30 June 2009 is available here: http://www.icc-cpi.int/iccdocs/doc/doc706243.PDF. The Chamber’s request for the report, dated 5 June 2009, is available here: http://www.icc-cpi.int/iccdocs/doc/doc696428.pdf

[5] The decision is a redacted public version of a confidential decision dated 26 June 2009.: http://www.icc-cpi.int/iccdocs/doc/doc707345.pdf.

[7] The decision is dated 14 July 2009, http://www.icc-cpi.int/iccdocs/doc/doc710538.pdf

[11] The QUB Human Rights Centre is part of the School of Law at Queen’s University Belfast.  http://www.icc-cpi.int/iccdocs/doc/doc704753.pdf

[14] If they fail to choose a common legal representative, the Registrar will choose one for them.

[15] On 13 July 2009, Women’s Initiative for Gender Justice (WIGJ) sought to file an amicus curiae in relation to the Prosecutor’s request to appeal confirmation of charges against Jean-Pierre Bemba. http://www.icc-cpi.int/iccdocs/doc/doc708756.pdf ; On 17 July 2009, Single Judge Trendafilova granted the request and granted the Prosecutor and the Defense the opportunity to respond to the NGO observations. http://www.icc-cpi.int/iccdocs/doc/doc712269.pdf

[17] It is a non-governmental organisation, Association pour la promotion de la démocratie et du développent de la RDC . http://www.icc-cpi.int/iccdocs/doc/doc711585.pdf

[18] For more details, please look at the June 2009 legal update.

[19] See the hearing transcripts : http://www.icc-cpi.int/iccdocs/doc/doc704715.pdf

[20] For more details about the guarantees see the transcripts page 25.

[25] The Prosecution has appealed the Chamber’s decision confirming the warrant of arrest against Al Bashir in relation to the exclusion of genocide charges and whether the Chamber had applied the correct standard of proof.

[26] See the June 2009 legal update for more details.

[28] See the April 2009 legal update for more details.