Democratic Republic of Congo
Central African Republic, Bemba
Darfur, Banda & Jerbo
Security concerns for witnesses
Ruto & Sang and Muthaura & Kenyatta
Ruto & Sang
Muthaura & Kenyatta
Ivory Coast, Gbabgo
Lubanga sentenced to 14 years in prison
[Background] On 14 March 2012, Trial Chamber I (TC I) unanimously found Thomas Lubanga guilty, as a co-perpetrator, of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in hostilities from 1 September 2002 to 13 August 2003.
On 10 July 2012, TC I, Judge Elizabeth Odio Benito dissenting, sentenced Thomas Lubanga to 14 years of imprisonment. The six years that he had already spent in detention will be deducted from that sentence. TC I took into account the gravity of the crimes and considered the severe and long-lasting physical, psychological and social damage caused to the child soldiers. The Chamber also found that:
the involvement of children in the hostilities had been widespread;Lubanga held a position of authority and had made an essential contribution to the common plan;Lubanga was clearly an intelligent and well-educated individual, able to understand the seriousness of the crimes of which he was convicted.
TC I did not consider the harsh punishments and sexual violence allegedly suffered by the child soldiers as aggravating factors. TC I ruled that it had not been proven beyond a reasonable doubt that they had occurred in the ordinary course of Lubanga’s plan and further could not be directly attributed to Lubanga. TC I also noted Lubanga’s cooperation with the Court and his respectful attitude throughout the proceedings. Finally, TC I ruled that it would be inappropriate to impose a fine in addition to the prison term given Lubanga’s indigence.
Judge Elizabeth Odio Benito disagreed with the Majority’s decision to the extent that, in her view, it disregarded the damage caused to the victims and their families, particularly as a result of harsh punishments and sexual violence. She concluded that Mr Lubanga should be sentenced to 15 years of imprisonment.
On 7 August 2012, TC I decided, for the first time in proceedings at the ICC, on the principles that are to be applied to reparations for victims in the case, considering the involvement of victims of paramount importance (see next issue for more detail).
Seven new counts for Bosco Ntaganda
[Background] On 22 August 2006, an arrest warrant was issued against Bosco Ntaganda for three counts of war crimes (enlistment, conscription and using children under the age of 15 to participate actively in hostilities) allegedly committed as a top commander of Thomas Lubanga’s militia, the Union of Congolese Patriots/Patriotic Forces for the Liberation of Congo. On 14 May 2012, the Prosecutor sought to bring additional charges against him for three counts of crimes against humanity (murder, persecution based on ethnic grounds, and rape/sexual slavery) and four counts of war crimes (intentional attacks against civilians, murder, rape/sexual slavery and pillaging). The crimes allegedly took place from 1 September 2002 to the end of September 2003, in the context of the conflict in Ituri, Democratic Republic of the Congo (DRC).
On 13 July 2012, Pre-Trial Chamber II (PTC II) issued a second arrest warrant for Bosco Ntaganda, for the additional charges listed above.
PTC II issues an arrest warrant for Sylvestre Mudacumura
On 13 July 2012, PTC II issued an arrest warrant for Sylvestre Mudacumura. PTC II considered that there were reasonable grounds to believe that Mr Mudacumura was responsible for ordering nine counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property, pillaging and outrages against personal dignity) allegedly committed from 20 January 2009 to the end of September 2010, in the context of the conflict in the Kivus, in the DRC. The Chamber found that Mudacumura could be held responsible for ordering those crimes under Article 25(3)(b) of the Rome Statute, but not as an indirect co-perpetrator due to the lack of evidence of an FDLR policy to attack civilians. The Chamber held that there was insufficient evidence to show that murder of civilians occurred in Mutakato on or about 2 December 2009, or that rape occurred at Busurungi in late April or early May 2009.
The Chamber also refused to include charges of crimes against humanity as the Prosecutor had not demonstrated that the Forces Démocratiques pour la Liberation du Rwanda (FDLR) had led a campaign of attacks targeting the civilian population as such.
Number of victims participating in the case reaches 4,451
On 19 July 2012, Trial Chamber III granted participatory status to 331 new victims and rejected the applications of 49 victims, bringing the number of victims participating in the case to 4,451. It recalled that the identities of intermediaries, who assisted victims in completing their application forms, could be redacted except when the intermediary was a person known to the parties, when he or she worked for the Court or was a participant involved in the proceedings. The Chamber also took note of an internal report by field interpreters which highlights that some victims were reluctant to indicate that they were victims of rape, and often used other terms to express that they had been raped.
371 victims have applied for reparations so far
On 12 January 2011, the Registry transmitted the first 332 applications for reparations to the Defence and the Chamber. On 5 July 2012, the Registrar transmitted 39 additional applications for reparations to the Chamber and the legal representatives and to the Defence. This brings the total number of applications for reparations received so far in the case to 371.
Banda & Jerbo case
Appeal of the Darfuri victims regarding common legal representative’s appointment rejected
[Background] On 30 September 2011, the former legal representatives of two victims from Darfur requested a review of the Registry’s decision to appoint Mrs. Helen Cissé and Mr. Jens Dieckmann as common legal representatives of victims (CLRV). On 25 May 2012, Trial Chamber IV (TC IV) confirmed the Registry's appointment, holding that the interests of the two Darfuri victims were not significantly distinct from the interests of the other victims and thus did not warrant a separate legal representation.
The former Legal Representatives of the two Darfuri victims sought leave to appeal the decision, which was rejected on 13 July 2012. It ruled, inter alia, that the former Legal Representatives had no standing.
Kenya’s request to access case documents rejected due to security concerns
[Background] On 16 September 2011, the Government of Kenya (GoK) sought the receipt of “all statements, documents and other evidence in the possession of the Court in the Situation in the Republic of Kenya and in the two Kenya cases currently before the ICC”. Some of the information requested was confidential.
On 12 July 2012, the Chamber rejected the GoK’s request in relation to confidential documents. It took note of reports from the Prosecutor and the Victims and Witnesses Unit in which they raised concerns regarding the disclosure of confidential information and mentioned incidents when some witnesses had been subject to threats or suffered certain harm. Incidents whereby confidential information relating to prosecution witnesses had been leaked were also reported.
Ruto & Sang and Muthaura & Kenyatta cases
Trials to start on 10 and 11 April 2013
On 9 July 2012, Trial Chamber V (TC V) set the dates for the commencement of the trials in the two Kenyan cases, Ruto & Sang and Muthaura & Kenyatta, for 10 and 11 April 2013 respectively.
The Prosecutor requests multiple characterization of Ruto, Muthaura & Kenyatta’s responsibility
On 3 July 2012, the Prosecution requested the Chamber to give notice that in addition to indirect co-perpetration, the criminal responsibility of Muthaura, Kenyatta and Ruto could equally be characterized as (i) ordering, soliciting or inducing under Article 25(3)(b); aiding, abetting or otherwise assisting under Article 25(3)(c); or contributing “[i]n any other way” to a crime committed by a “group of persons acting with a common purpose” under Article 25(3)(d).
The Defence teams opposed the Prosecution’s submission, arguing that further evidence was needed and that the request was either tardy or premature. The victims’ legal representative (LRV) supported the Prosecution’s application, noting that the most accurate characterization in this case was that of indirect co-perpetration under article 25(3)(a).
Ruto & Sang case
Victims want acts of destruction of property, looting and physical injuries to be charged separately
[Background] On 23 January 2012, Pre-Trial Chamber II (PTC II), with Judge Kaul dissenting, confirmed the charges against Mr Ruto and Mr Sang. They are accused of being criminally responsible as an indirect co-perpetrators pursuant to article 25(3)(a) for the crimes against humanity of murder, deportation or forcible transfer of population and persecution. On 11 June 2012, a status conference was held to discuss inter alia the possibility of applications for legal re-characterisation of facts under Regulation 55 of the Regulations of the Court.
On 4 July 2012, the LRV submitted that acts of destruction and/or burning of property, infliction of injuries and looting, currently referred to as ‘means by which the crimes [of forcible displacement] currently charged were allegedly committed’, should also be specifically included as independent charges such as persecution and other inhuman acts. The LRV added that victims who did not end up displaced as a result of these crimes could be left out by the current formulation.The Defence teams of Ruto & Sang both objected to the LRV’s request, adding that it was premature.
Muthaura & Kenyatta case
The Prosecutor requests a recharacterisation of the acts of forcible circumcision/penile amputation and looting/destruction of property
[Background] On 23 January 2012, when confirming the charges, Pre‐Trial Chamber II (PTC II) characterized forcible circumcision and penile amputation as “other inhumane acts”, rejecting their original characterisation by Prosecution as “other forms of sexual violence”. The chamber ruled that there was no showing that the acts were “of a sexual nature”. PTC also characterized property destruction as a predicate act underlying the charge of deportation or forcible transfer but not of persecution.
On 3 July 2012, the Prosecution submitted that PTC II erred in its characterisation of the above acts and requested that the Chamber consider changing their legal characterisation as provided for under Regulation 55 of the Regulations of the Court. OTP argued that forcible circumcision and penile amputation should be characterized as “other forms of sexual violence”, adding that such acts were inherently sexual in nature and that the harm they caused was not merely physical but also attacked the victims’ sexuality. The Prosecution also argued that looting and destruction of property should be considered as predicate acts underlying the charge of persecution in addition to the charge of deportation or forcible transfer.
Both Defence teams submitted that the Prosecution’s application should be dismissed as premature and also as an attempt to amend charges while circumventing the correct procedure. The legal representative of victims observed that while it would have been more appropriate for the Prosecution to appeal the Confirmation of Charges Decision, the sexual nature of the crimes of forced circumcision and penile amputation was indicated by their effect on victims’ sexual lives, their purpose, and the element of force that they involved. He also supported the Prosecution’s application to re-characterise the acts of looting and destruction of property.
OPCV accesses several documents regarding charges and evidence
[Background] On 6 June 2012, the OPCV requested access to the Document Containing the Charges, the List of Evidence and the Element-Based Chart submitted by the Prosecution on 16 May 2012. OPCV also requested additional access to several Annexes attached to the Defence’s challenge to the ICC’s jurisdiction and any future document filed confidentially in the case, which the Chamber might identify as relevant.
On 27 June 2012, the Chamber granted the first request finding that it would not prejudice the security of witnesses. It rejected the second request, ruling that the current level of classification was warranted and that the information currently available to the OPCV enabled it to properly present its observations.
The 139 participating victims refuse to lift anonymity
Single Judge Fernandez de Gurmendi granted participatory status in the confirmation of charges hearing and related proceedings to 139 victims. She appointed Paolina Massida, principal counsel from the Office of Public Counsel for Victims (OPCV), as the common legal representative of all the victims (CLRV). On 5 July 2012, the appointed CLRV informed the Chamber that following a mission to Côte d’Ivoire, she had consulted her 139 clients and that, for security reasons, none of them wished to disclose their identity at this point in time.
Single judge rejects the request for Gbagbo’s interim release
The Single judge rejected the Defence’s request for interim release, recalling that in issuing an arrest warrant against Gbagbo, Pre-Trial Chamber III had found that his detention was necessary to ensure his appearance before the Court, inter alia, because he appeared to have the political motivations as well as the necessary political contacts and funds to abscond. The Single Judge considered that these conclusions continued to be valid.
Confirmation of charges hearing postponed for the second time, Côte d’Ivoire not authorized to participate
Pre-Trial Chamber I (PTC I) rejected a request from the government of Côte d'Ivoire to be represented at the confirmation of charges hearing. The Chamber found that there was no issue which would require oral submissions from Côte d’Ivoire.
On 2 August 2012, PTC I postponed the confirmation of charges hearing for the second time finding it necessary to wait until the issue of Mr. Gbagbo’s fitness to take part in it is resolved. The confirmation of charges hearing had been scheduled to start on 13 August 2012. However, following the receipt by the Chamber of medical reports in relation to the health of Mr. Ggagbo, submitted on 19 July 2012 by three experts appointed by the Chamber, the Chamber ordered the Prosecutor and the Defence to submit their observations on the medical reports, respectively, by 13 and 21 August.
The Malian Government refers the situation in Mali since January 2012 to the OTP
On 18 July 2012, the Government of Mali referred “the situation in Mali since January 2012” to the Office of the Prosecutor (OTP) and requested an investigation to determine whether one or more persons should be charged for crimes committed. It submitted that the Malian courts were unable to prosecute or try the perpetrators. The OTP who had been following the situation in Mali since 17 January 2012 decided to immediately proceed with a preliminary examination of the situation in order to assess the Rome Statute criteria for opening an investigation.
These are summaries of ICC decisions and related pleadings relevant to victims’ rights. For further information please consult linked documents. Comments to Gaelle Carayon: email@example.com
Produced for the Victim’s Rights Working Group by REDRESS.
 Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red), 16 May 2012, ICC-01/04-611-Red-Corr2, http://www.icc-cpi.int/iccdocs/doc/doc1413826.pdf
 Decision on the Prosecutor's Application under Article 58, 13 July 2012, ICC-01/04-02/06-36-Red, http://icc-cpi.int/iccdocs/doc/doc1441449.pdf; Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red), 16 May 2012, ICC-01/04-611-Red-Corr2, http://www.icc-cpi.int/iccdocs/doc/doc1413826.pdf
 Public redacted version of "Decision on the tenth and seventeenth transmissions of applications by victims to participate in the proceedings", 19 July 2012, ICC-01/05-01/08-2247-Red, http://www.icc-cpi.int/iccdocs/doc/doc1442557.pdf
 The Registry notes that when applicants have applied for both participation and reparations before the deadline for participation and using joint form, the later were transmitted to the parties in the regular course of the transmission of applications to participate in the proceedings. Transmission to the Chamber of unredacted versions of applications for reparations, 5 July 2012, ICC-01/05-01/08-2240, http://www.icc-cpi.int/iccdocs/doc/doc1437745.pdf; Notification to the Defence and the Legal Representatives of the Applicants of redacted applications for reparations pursuant to rule 94(2) of the Rules of Procedure and Evidence, 5 July 2012, ICC-01/05-01/08-2241, http://www.icc-cpi.int/iccdocs/doc/doc1437748.pdf
 Request of Victims a/1646/10 and a/1647/10 for the Trial Chamber to review the Registry’s “Notification of appointment of common legal representatives of victims” in accordance with Regulation 79(3), 30 September 2011, ICC-02/05-03/09-228, http://www.icc-cpi.int/iccdocs/doc/doc1240384.pdf; In doing so the lawyers referred to and annexed the letter the VRWG submitted to the Registry on 17 August 2011regarding common legal representation.; Notification of appointment of common legal representatives of victims, 14 September 2011, ICC-02/05-03/09-215, http://www.icc-cpi.int/NR/exeres/14200213-9CDA-4386-BADC-8D9EBCBBA896.htm; See VRWG Legal update September 2011
 Request for Assistance on behalf of the Government of the Republic of Kenya pursuant to Article 93(10), Article 96 and Rule 194, 16 September 2011, ICC-01/09-79, http://www.icc-cpi.int/iccdocs/doc/doc1233884.pdf
 Decision on the Second Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence, 12 July 2012, ICC-01/09-97, http://www.icc-cpi.int/iccdocs/doc/doc1440979.pdf
 Decision on the schedule leading up to trial, 9 July 2012, ICC-01/09-01/11-440, http://www.icc-cpi.int/iccdocs/doc/doc1439279.pdf; Decision on the schedule leading up to trial, 9 July 2012, ICC-01/09-02/11-451, http://www.icc-cpi.int/iccdocs/doc/doc1439275.pdf
 Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to the accuseds’ individual criminal responsibility, 3 July 2012, ICC-01/09-02/11-444, http://www.icc-cpi.int/iccdocs/doc/doc1436787.pdf ; Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to William Samoei Ruto’s individual criminal responsibility, 3 July 2012, ICC-01/09-01/11-433, http://www.icc-cpi.int/iccdocs/doc/doc1436934.pdf
 Defence Response to Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to William Samoei Ruto’s individual criminal responsibility, 24 July 2012, ICC-01/09-01/11-442, http://www.icc-cpi.int/iccdocs/doc/doc1444206.pdf ; Response to the “Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to the accused’s individual responsibility", 24 July 2012, ICC-01/09-02/11-457-Corr, http://www.icc-cpi.int/iccdocs/doc/doc1444471.pdf; Defence Response to the “Prosecution’s Submissions on the law of indirect co-perpetration under Article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to the accused’s individual criminal responsibility, 25 July 2012, ICC-01/09-02/11-460, http://www.icc-cpi.int/iccdocs/doc/doc1444703.pdf
 Victims’ Response to the “Prosecution’s Submissions on the law of indirect co-perpetration under article 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) with respect to the accuseds’ individual criminal responsibility", 24 July, ICC-01/09-02/11-456, http://www.icc-cpi.int/iccdocs/doc/doc1444201.pdf
 Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012 ICC-01/09-01/11-373, http://www.icc-cpi.int/iccdocs/doc/doc1314535.pdf ; In both cases, Judge Kaul maintained that the ICC lacked competence because the nature of the crimes did not amount to crimes against humanity as codified by the Rome Statute.
 Hearings Transcripts, 11 June 2012, ICC-01/09-01/11-T-16-Red, http://www.icc-cpi.int/iccdocs/doc/doc1425104.pdf; 11 June 2012, ICC-01/09-01/11-T-15, http://www.icc-cpi.int/iccdocs/doc/doc1424878.pdf; Hearings Tanscripts, 12 June 2012, ICC-01/09-02/11-T-19-Red, http://www.icc-cpi.int/NR/exeres/9885CDA9-8A77-40D0-8608-22DB0DE8FC24.htm; 12 June 2012, ICC-01/09-02/11-T-18, http://www.icc-cpi.int/NR/exeres/CC932475-1CB1-448C-A999-29F8960C29E1.htm
 Joint Defence Response to Submissions of Victims’ Representative on Regulation 55 and Article 25(3), 25 July 2012, ICC-01/09-01/11-444, http://www.icc-cpi.int/NR/exeres/761BE968-257E-47CD-92E2-4668BF3A6A4E.htm
 Response to the “Prosecution’s application for notice to be given under Regulation 55(2) with respect to certain crimes charged”, 24 July 2012, ICC-01/09-02/11-455, http://www.icc-cpi.int/iccdocs/doc/doc1444167.pdf; Defence Response to the “Prosecution’s application for notice to be given under Regulation 55(2) with respect to certain crimes charged”, 25 July 2012, ICC-01/09-02/11-459, http://www.icc-cpi.int/iccdocs/doc/doc1444561.pdf
 Victims’ Observations on the “Prosecution’s application for notice to be given under Regulation 55(2) with respect to certain crimes charged”, 24 July 2012, ICC-01/09-02/11-458, http://www.icc-cpi.int/iccdocs/doc/doc1444316.pdf
 Information as to the agreement between the Common Legal Representative and the Prosecution on access to documents and Requests in relation to the schedule of the confirmation of the charges hearing, 6 June 2012, ICC-02/11-01/11-143, http://www.icc-cpi.int/iccdocs/doc/doc1423994.pdf
 Decision on Victims' Participation and Victims' Common Legal Representation at the Confirmation of Charges Hearing and in the Related Proceedings, 4 June 2012, ICC-02/11-01/11-138, http://www.icc-cpi.int/iccdocs/doc/doc1423293.pdf
 Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo, 1 May 2012, ICC-02/ll-01/ll-105-Conf-Anx9; Decision on the "Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo", 13 July, ICC-02/11-01/11-180-Red, http://icc-cpi.int/iccdocs/doc/doc1441665.pdf
 Decision on issues related to the proceedings under rule 135 of the Rules of Procedure and Evidence and postponing the date of the confirmation of charges hearing, 2 August 2012, ICC-02/11-01/11-201, http://www.icc-cpi.int/iccdocs/doc/doc1447135.pdf
 Press Release, ICC Prosecutor Fatou Bensouda on the Malian State referral of the situation in Mali since January 2012, 18 July 2012, ICC-OTP-20120718-PR829, http://www.icc-cpi.int/NR/exeres/B8DAF5A7-DD53-43D2-A3A8-0BC30E6D00B9.htm