LEGAL UPDATE July-August 2010

Past issues of the Legal Update

ICC Victims’ Rights Legal Update

July – August 2010

(pdf version)

DRC situation 

Developments in the DRC Situation

• Defence opposes victims’ application for a review of Prosecution’s decision not to investigate alleged Bemba’s crimes in DRC  

Developments in the ongoing Lubanga Trial

• Prosecution appeals decision to stay proceedings for abuse of process
• Prosecution appeals decision to release Mr Lubanga

Developments in the ongoing Katanga and Ngudjolo Trial

• Defence responds to Protocol on the modalities for contacting victims
• Defence Appeal against the decision on the modalities of victim participation at trial is dismissed
• Defence Appeal on unlawful detention and stay of proceedings is dismissed
• Registry submits its observations on private session hearings
• Defence requests disclosure of Intermediary P143’s identity
• TCII invites observations from the parties on possible site visit to DRC

Situation in Central African Republic

Developments in the ongoing Bemba Case

• Defence requests suspensive effect of its appeal against the decision on admissibility and abuse of process
• OTP required to file a new amended Document Containing the Charges
• Defence appeals the continued detention of Bemba
• 192 victims apply to participate in the proceedings
• Presidency confirms change of judges in TCIII  

Situation in Darfur, Sudan

Developments in the ongoing Al Bashir Case

• Second arrest warrant against Al Bashir including crimes of genocide
• TCIII rejects eight applications for victim participation 

Developments in the Banda and Jerbo Case

• Victims apply to participate in the confirmation of charges proceedings  

DRC situation

Developments in the DRC Situation

Defence opposes victims’ application for a review of Prosecution’s decision not to investigate alleged Bemba’s crimes in DRC

[Background] On 28 June 2010, two alleged victims in Ituri requested to present their views and concerns about the Office of the Prosecutor (OTP)’s decision not to investigate Bemba’s crimes in Ituri to the Chamber.[1] So far, Jean Pierre Bemba is only being prosecuted for crimes committed in the Central African Republic.

The Defence requested that the victims’ application be dismissed due to its failure to identify a specific proceeding in the DRC situation affecting victims’ personal interests.[2] The Defence argued that the Pre-Trial Chamber may only examine the Prosecutor’s decision if the Prosecutor has decided not to prosecute and if this decision is motivated by discretionary factors rather than lack of evidence, which is not currently the case. This is the first time since the Appeals Judgment of December 2008 that victims have undertaken to present their views and concerns in a situation.[3]

Pre-Trial Chamber 1 ordered the Prosecution to respond to the victims’ requests by 15 September 2010.[4]

Developments in the ongoing Lubanga Trial

Prosecution appeals decision to stay proceedings for abuse of process 

[Background] On 12 May 2010, Trial Chamber I (TCI) requested that the Prosecution disclose the identity of intermediary 143 by 7 July 2010.[5] This was not done; instead, the Prosecution requested an extension of time on the grounds that disclosure at that point was unsafe. Alternatively, it requested a stay of proceedings until security measures had been implemented. OTP relied on its statutory duty to protect those at risk which, it maintained, it must honour at all times.[6] Two further orders for disclosure were not complied with.[7] 

On 8 July 2010, TC1 issued a decision noting that further delay in disclosure would negatively impact the fairness of the trial and reminded the Prosecution that although it has protective obligations when investigating and prosecuting crimes, these are subject to the Chamber’s authority to order and vary protective measures. [8]  It therefore ordered a stay of proceedings for abuse of process. 

On 15 July 2010, the Chamber granted the Prosecutor leave to appeal.[9] OTP indicated that it had not intended to defy TC1’s authority but simply to provide urgent pre-disclosure protection, in line with its statutory duty, and submitted that it had not been allowed to present its concerns. In its view, it had pursued all proper legal avenues to respect its obligations and therefore the stay of proceedings was disproportionate and excessive given possible alternatives.[10] Victims’ legal representatives sought leave to participate in the appeal,[11] which was granted for all but five victims.[12] In their view, this decision was incomprehensible and based on the Chamber’s misunderstanding of the Prosecution’s motivations. They submitted that it would not only undo their chances of reparation but also belittle their suffering and the uncertainty of the last four years.[13]  The Judgment of the Appeals Chamber on the Stay of Proceedings is awaited.

Prosecution appeals decision to release Lubanga

On 15 July 2010, TCI ordered Lubanga’s release as a result of the prior decision to stay proceedings.[14] 

Prosecution sought leave to appeal the decision on Mr Lubanga’s release with suspensive effect.[15] The Defence opposed the appeal, stating that developments in the proceedings no longer justified detention and the risks of his absconding were hypothetical.[16]  On 22 July 2010, the Appeals Chamber granted suspensive effect to the appeal, ordering that Lubanga be detained pending judgment on appeal on release.[17] 

On 29 July 2010, the Defence submitted observations reminding the Chamber that a decision for release is not conditional on a stay of proceedings and that release can be considered on its own. Since, in its view, the suspension was permanent, this entitled Lubanga to be released.[18]

Victims’ legal representatives sought leave to participate in the appeal against the order for Mr. Lubanga’s release,[19] which was granted for all but five victims.[20]  They filed submissions opposing the release and contested the Defence’s arguments regarding permanent suspension.[21] In their view the decision to release Lubanga was incomprehensible, particularly as it did not clarify whether he would be returned to the Congolese authorities or retained at Court’s disposal, leaving open the possibility that he may escape proceedings or return to Ituri to commit more crimes. They indicated that the Chamber had made the decision of its own initiative without Defence even requesting it, based on the unconditional stay of proceedings; both decisions being inextricably linked, if the decision to stay proceedings were to be quashed, therefore, so automatically should the decision for release. The Judgment of the Appeals Chamber on Trial Chamber’s order to release Mr. Lubanga is awaited. 

Developments in the ongoing Katanga & Ngudjolo Trial

Defence responds to Protocol on the modalities for contacting victims

[Background] On 17 June 2010, legal representatives of victims submitted a protocol outlining a suggested procedure for parties wishing to contact participating victims.[22] 

The Defence objected on the grounds that, not only did the protocol recommend that parties wishing to contact victims should inform their legal representatives beforehand, but that the latter should also be present at any interview. It proposed that the Protocol include words to ensure that the legal representative refrain from influencing victims’ responses to Defence questioning.[23] The legal representatives refuted all the Defence arguments,[24] and a decision on the Protocol is awaited. 

Defence’s Appeal against the decision on the modalities of victim participation at trial is dismissed

[Background] On 22 January 2010, Trial Chamber II (TCII) issued its Decision on the Modalities of Victim Participation at Trial.[25] The Defence was permitted to appeal three of five grounds, namely that TCII had erred in finding that the legal representatives of the victims:[26]

-       may present evidence and call victims to testify, incriminating the accused;

-       may call witnesses on matters including the role of the accused ;

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

The Appeals Chamber dismissed the appeal on all three grounds,[27] finding that the Trial Chamber has discretion under the Statute to request the submission of any evidence, including the role of the accused, which will assist it in determining the truth, as long as this is not inconsistent with the rights of the accused and fair trial. It also confirmed that as the victims’ role in the proceedings is more limited than that of the Prosecutor, they are subject to less stringent disclosure obligations. 

Defence’s Appeal on unlawful detention and stay of proceedings is dismissed

[Background] On 20 November 2009, Trial Chamber II (TCII) rejected a Defence motion for a declaration on unlawful detention and a stay of proceedings, in that such motions should be brought before the Pre-Trial Chamber at the earliest possible stage.[28] The motion had been filed too late.

The Appeals Chamber pointed out that the decision on late filing was in line with TCII’s discretionary power under the Statute to ensure fair and expeditious proceedings and dismissed the Defence appeal.[29]

Registry submits its observations on private session hearings

[Background] on 7 June 2010, the Registry was called upon to submit its observations on the Defence request regarding the use of closed session hearings. 

Whilst submitting that a balance was necessary between closed sessions in the interests of witness and victim protection and public hearings for the benefit of the accused and publicity, it also pointed out that the Defence’s perception that there were disproportionate numbers of closed sessions was erroneous. 

Defence requests disclosure of Intermediary P143’s identity 

On 9 July 2010 Defence requested disclosure of the identity of Intermediary P143, based on a recent similar request in the Lubanga trial.[30] They claimed this would assist in the cross-examination of two witnesses.[31] The Prosecution reminded the Chamber that such a request had previously been denied and disputed the fact that the Defence needed this disclosure for effective cross-examination.[32] The Chamber consequently ordered the Victims and Witnesses Unit to put in place security measures for the intermediary, putting disclosure on hold in the interim.[33] 

TCII invites observations from the parties on possible site visit to DRC 

During a status conference on 9 July 2010, TCII invited observations from the parties on a possible site visit to Bogoro village in Eastern DRC.[34] The Defence noted that such a visit was essential, and the legal representative, Mr Gilissen, agreed saying that victims would be in favour, not only for the purpose of investigations but to reassure them that their problems were being given due attention. The Prosecution also supported a visit. Me Luvengika, legal representative of victims, indicated that he was still considering whether or not to call some of his victim clients as witnesses.[35]      

Situation in Central African Republic

Developments in the ongoing Bemba Case

Defence requests suspensive effect of its appeal against the decision on admissibility and abuse of process 

[Background] On 25 February 2010, the Defence contested the admissibility of the Bemba case and Trial Chamber III (TCIII) to adjourn for abuse of process on the basis that proceedings had been initiated in Central African Republic.[36] TCIII rejected the Defence’s arguments, regarding both admissibility and abuse of process (see previous legal updates for fuller account of admissibility proceedings).[37] The Defence sought leave to appeal the decision[38] and the date of trial commencement was postponed again as a result.[39] 

On 5 July the 2010, the Defence filed a request for suspensive effect of its appeal on admissibility.[40] OTP argued that this request went beyond the scope of a ‘suspensive effect’ and was tantamount to a stay of proceedings,[41] and that it failed to satisfy the relevant criteria. The request was consequently rejected by the Chamber, which stated that Defence should have filed its request within the time limit of the appeal, and that the suspensive effect was unnecessary as proceedings would neither lead to an irreversible situation nor defeat the purpose of the appeal.[42] 

OTP required to file a new amended Document Containing the Charges (DCC) 

[Background] On 15 June 2009, PTC II issued its decision confirming the charges against Bemba.[43]  On 7 October 2009, TCIII asked whether OTP could file a fresh Document Containing the Charges (DCC) pointing out that "it was extremely helpful to have the Prosecution submit a fresh document containing the charges which reflected the final way in which the Pre-Trial Chamber had described them.”[44] The Prosecutor filed an amended DCC, but on 12 February 2010, the Defence argued that it did not reflect the language and meaning of the decision confirming the charges, inter alia, it added unconfirmed charges or extended their scope. [45]

On 20 July 2010, TCIII found that the majority of the second amended DCC reflected its decision confirming the charges and thus only partially allowed the Defence’s request[46]  TC III requested minor changes to wording, and the removal of certain facts which had been uncorroborated or of low probative value before Pre Trial Chamber 1. TCIII notably rejected the Defence’s request to limit the crime of pillaging to four distinct areas, stating that these crimes could not be confined so exclusively. A revised second amended DCC was filed by OTP on 18 August.[47]

Defence appeals the continued detention of Bemba 

On 7 July 2010, TCIII issued an order postponing the commencement of trial and requesting submissions on the review of Bemba’s detention by 15 July 2010.[48] A status conference was set for 30 August 2010. The Prosecutor and victims’ legal representatives supported continued detention as postponement of the trial did not amount to a significant change in circumstances which could justify release.[49] The Defence argued that the postponement of trial, as well as the Chamber’s request that the Prosecution file a second amended Document Containing the Charges, constituted such a change.[50] It therefore requested release, unconditional or conditional, and asked that the Registry negotiate with State Parties to accept Bemba and guarantee his attendance at Court.

On 28 July 2010, TCIII rejected the Defence’s arguments.[51] The Defence sought leave to appeal[52] on the grounds that TCIII’s decision was based on prior decisions without proper examination of the facts.[53] On 18 August 2010, the Office of Public Counsel for Victims (OPCV) was granted the right to participate in the appeal,[54] and submitted that the Chamber had not erred on the facts or law regarding the criteria for review of detention and, having considered all arguments by the parties, is entitled to reiterate prior decisions. OPCV also refuted the Defence’s arguments regarding the change of circumstances.[55]

192 victims apply to participate in the proceedings

On 15 July 2010, the Registrar transmitted the redacted versions of 192 victims’ application for participation to the parties which had until 20 August to file their observations.[56]  The Prosecution supported all but two applications, which did not demonstrate a sufficient causal link between harm suffered and the crimes.[57] The Defence rejected all the applications,[58] on the basis that the extent of redactions led to difficulties discerning the true facts and credibility of events, prejudicial to the rights of the accused. A decision is awaited.

Presidency confirms change of judges in TCIII

On 20 July 2010, the Presidency announced that Judge Sylvia Steiner and Judge Kuniko Ozaki would replace Judge Elizabeth Odio Benito and Judge Adrian Fulford in TCIII. The third judge, Judge Joyce Aluoch, will remain.

Situation in Darfur, Sudan

Developments in the ongoing Al Bashir Case

Second arrest warrant against Al Bashir including crimes of genocide 

[Background] On 4 March 2009[59] the PTC decided that OTP had submitted insufficient material to support that Al Bashir acted with specific intent to destroy the Fur, Masalit and Zaghawa populations, and for this reason did not examine whether there were reasonable grounds to believe that the material elements, of each of the counts of genocide were fulfilled. On Appeal, it was ruled that the PTC had applied an erroneous standard of proof and the matter was remanded to the PTC.[60] 

On 12 July 2010 PTCI issued its second decision on the Prosecution’s application for a warrant of arrest.[61] It found that there were reasonable grounds to believe Al Bashir was responsible for crimes of genocide against the said populations and issued a second arrest warrant.[62] This decision also dismissed a prior application by SWTUF and SIDG[63] to make amici curiae submissions on the Prosecutor’s application to add genocide charges. 

TCIII rejects eight applications for victim participation 

[Background] On 18 June 2010, OTP opposed eight victim applications for participation noting that none of the applicants appeared to have suffered harm as a result of the alleged crimes committed by Al Bashir. Indeed, although the harm was caused during the course of events mentioned in the arrest warrant, it was not caused by groups affiliated with the accused. OPCD agreed.[64] 

On 9 July 2010, TCIII agreed that the applicants failed to fulfil the victim criteria as the harm suffered did not appear to be linked to the forces under Mr Al Bashir’s command, or were of a different nature from those specified in the arrest warrant. [65] TCIII nevertheless indicated that it was not necessary for applicants to specifically identify Al Bashir as the perpetrator; the identity of the person responsible for need only be provided “to the extent possible”.

Developments in the Banda and Jerbo Case 

Victims apply to participate in the confirmation of charges proceedings 

On 6 July 2010, 87 victims participating in the Abu Garda proceedings applied to participate as in the Banda and Jerbo proceedings.[66] Neither the Prosecution nor Defence have opposed their participation.[67] The Chamber called for observations on these 87 applications and also indicated that any new complete applications for participation in the confirmation of charges proceedings should be filed by 20 October 2010.[68] So far 8 additional victims’ applications have been transmitted to the Chamber.[69]