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LEGAL UPDATE June 2011

ICC Victims’ Rights Legal Update

31st May – 4 July 2011

(pdf version)

Note: The summaries below are unofficial summaries of ICC decisions and related pleadings relevant to victims’ rights issues. The summary does not purport to be complete. For a more in-depth review, please review the documents hyper-linked in this summary. Any comments on this Legal Update should be directed to Gaelle Carayon at gaelle@redress.org.

 

Situation in the Democratic Republic of Congo (DRC)

Developments in the Lubanga case

  • OPCV submits closing submissions
  • Identities of four victims disclosed to the parties

Developments in the Katanga and Ngudjolo case

  • TC II allows relatives to continue the action of deceased victims
  • TC II suspends return of 3 detained witnesses pending a decision on their request for asylum

Developments in the Mbarushimana case

  • Parties submit observations on 14 applications for participation
  • PTC I rejects Defence’s request for a permanent stay of proceedings
  • PTC I dismisses proposal on victim participation in the confirmation hearing

 

Situation in Central African Republic (CAR)

Developments in the situation of the CAR

  • Trust Fund for Victims launches programme in the CAR

 

Situation in Kenya                         

Developments in the Ruto, Kosgey and Sang case

  • Defence submits observations on 59 applications for participation
  • Parties submit observations on confirmation of charges hearing in Kenya
  • VPRS received 1800 applications for participation

Developments in the Muthaura, Kenyatta and Ali case

  • Parties submit observations on 4 victims’ applications for participation
  • Parties submit observations on holding confirmation of charges hearing in Kenya while No Peace without Justice’s request to be heard as amicus is rejected
  • VPRS to submit complete applications by revised deadline

 

Situation in Libya

  • PTC I issues arrest warrants

 

Situation in Ivory Coast

  • Ivory Coast investigation is in the hands of PTC III

 

Situation in the Democratic Republic of Congo (DRC)

Developments in the Lubanga case

OPCV submits closing submissions

[Background] On 12 April 2011, Trial Chamber I (TC I) set out a timetable for closing submissions and held that Legal Representatives of Victims were to file their submissions no later than 1 June 2011.[1]

On 31 May 2011, the Office of the Public Counsel for Victims (OPCV), submitted its closing submission.[2] OPCV argued, inter alia, that the notion of “active participation of children under the age of 15 in hostilities” not only covers direct participation in the hostilities, but also in activities relating to the fighting (e.g.: espionage, sabotage, using children as messengers). OPCV also submitted that it should be sufficient to prove that girls under the age of 15 were recruited, in order to establish that they actively participated in the hostilities, given that the primary objective of their enrolment was to use them for sexual purposes.

Identities of four victims disclosed to the parties

[Background] On 6 April 2011, the Registry indicated that it had been unable to contact four individuals whose views were being sought regarding lifting their anonymity towards the parties in the case. [3] 

On 6 June 2011, TC I ordered the immediate disclosure of the identities of victims a/0236/06, a/0221/06, a/0230/06 and a/0224/06 to the parties.[4] The Chamber held that whilst the Registry had not been able to contact the relevant victims to obtain their views, disclosure remained necessary for the preparation of the Defence. In order to safeguard the security of the four individuals concerned, it ordered the parties not to disclose their names to anyone outside their teams without prior authorisation of the Chamber.

Developments in the Katanga and Ngudjolo case

TC II allows relatives to continue the action of deceased victims

[Background] On 15 February 2011, Maitre Nsita informed Trial Chamber II (TC II) that the families of 4 deceased victims had each appointed a relative to act on behalf of the deceased victims.[5]

On 14 June 2011, TC II authorized the persons appointed by the families of deceased victims a/0051/08 and a/0197/08 to represent their interests in the proceedings.[6] It ordered the registry to disclose their identities, as well as the victims’ identities to the parties only. [7] The Chamber however held that it had not received the death certificate of victim a/0311/09 and that the person appointed by the family of victim a/0025/08 had not received a clear mandate to continue the action.

TC II suspends the return of 3 detained witnesses pending a decision on their request for asylum

[Background].On 12 May 2011, three Defence witnesses who had been detained in DRC ahead of their testimony at the Court filed a request for asylum in The Netherlands, arguing that they risked being persecuted because of their testimony if returned to DRC.

On 9 June 2011, TC II  suspended the witnesses’ immediate return to DRC, awaiting the decision of the Dutch authorities on the request for asylum.[8] The Chamber argued that, although its obligations to protect witnesses do not extend to the risks arising from the alleged lack of human rights in the DRC, it could not interpret article 93(7) of the Statute in a manner that would be inconsistent with the right to claim asylum. On 15 June 2011, the Prosecutor, the Government of the Netherlands and the Government of the DRC requested leave to appeal the decision.[9]

Developments in the Mbarushimana case

Parties submit observations on 14 applications for participation

On 24 May 2011, Pre-Trial Chamber I (PTC I) invited the parties to present their observations on 14 applications for participation.[10] On 6 June 2011, the Defence opposed the applications arguing that they contained too many redactions and were too vague.[11] It also held that some applicants referred to facts which were not included in the arrest warrant. The Prosecutor, who had received unredacted copies of the applications, supported 13 of them but found that applicant a/2026/11 ought to provide further details.[12]  

PTC I rejects Defence’s request for a permanent stay of proceedings

On 24 May 2011, the Defence requested PTC I to permanently stay the proceedings on the ground of abuse of process.[13] The Defence argued that the Prosecution had deliberately or with gross negligence supplied misleading information regarding a German investigation against the suspect.  

On 1 July 2011, PTC I rejected the Defence’s request, arguing that the Defence’s allegations were of a speculative nature.[14] The Chamber also held that the behaviour complained about fails to reach the threshold of gravity to warrant a stay of the proceedings. 

PTC I dismisses proposal with regards to victim participation in the confirmation of charges hearing

On 6 June 2011, the Victims Participation and Reparation Section (VPRS) informed PTC I that it would not be in a position to transmit all complete victims’ applications for participation by the revised deadline set by the Chamber (30 June 2011).[15] It suggested that the Chamber “seek the views” of the applicants as “other victims” under rule 93 of the Rules, rather than limiting participation in the confirmation of charges hearing only to those victims granted status in the case.

On 10 June 2011, the Single Judge dismissed the proposal and ordered VPRS to transmit all complete applications for participations by the revised deadline.[16]

Situation in Central African Republic (CAR)

Developments in the situation of the CAR

Trust Fund for Victims launches programme in the CAR

On 1 June 2011, the Trust Fund for Victims (TFV) formally announced the launch of its activities in CAR.[17] As a first step, the action of TFV will benefit victims of sexual violence, as well as their families and communities. The budget of the programme in CAR is 600 000 Euros. It invited relevant organisations to propose project ideas relevant to the needs and expectations of victims of sexual violence classifiable as international crimes. Projects are scheduled to start early 2012.

Situation in Kenya                         

Developments in the Ruto, Kosgey and Sang case

Defence submits observations on 59 victims’ applications for participation

On 18 May 2011, the Registry transmitted 59 victims applications for participation in the case to the parties for observations.[18] On 3 June 2011, the Defence for Ruto and Sang requested Pre-Trial Chamber II (PTC II) to reject all applications, arguing that redactions prevented them from assessing whether the applicants met the requirements for participation.[19] Lastly, they requested the Court to adopt the same modalities for participation as set out in the Bemba Fourth Decision on Victim Participation, with the additional caveat that participating victims should not be permitted to tender evidence or question witnesses.

Parties submit observations on holding confirmation of charges hearing in Kenya while No Peace without Justice’s request to be heard as amicus is rejected

On 3 June 2011, PTC II announced that it considered holding the confirmation of charges hearings for the two Kenyan cases on the territory of the Republic of Kenya, and asked the parties and participants to submit observations.[20] 

On 13 June 2011, the Prosecution and OPCV, acting on behalf of the victim applicants, opposed in situ hearings.[21] They argued that the security situation and governmental apparatus in place were not conducive to a proper hearing. OPCV also claimed that there could be risks that witnesses’ identities be disclosed which could lead to intimidation.[22]  On the same day, the Defence held that it lacked sufficient information to be in a position to give meaningful observations.[23]

In parallel, on 13 June 2011, PTC II rejected a request by No Peace Without Justice to submit an amicus curiae brief regarding the interests of justice, victims’ participation and the “impact of the ICC’s work on victims and affected communities” in the context of in situ proceedings.[24]  A similar decision was adopted in the Muthaura et al. case.[25] On 29 June 2011, PTC II decided to hold the confirmation of charges hearings in The Hague.[26]

VPRS processing 1,800 victims’ applications for participation

On 30 March 2011 the Chamber set 8 July 2011 as the deadline for transmission of victims’ application for participation for the purposes of the confirmation of charges hearing.[27]

On 24 June 2011, VPRS informed PTC II that it had received “approximately 1,800 victims’ applications for participation and/or reparation in the case”. However, it added that it would only be in a position to “redact and provide individual reports on no more than 400 complete applications by the deadline of 8 July”. It requested the Chamber to give instruction as to whether to process all applications irrespective of completeness, or to prioritize applications assessed as complete’.

On 28 June 2011, the Single Judge ruled that only complete applications should be transmitted to the Chamber.[28]

Developments in the Muthaura, Kenyatta and Ali case

Parties submit observations on 4 victims’ applications for participation

On 30 March 2011, PTC II requested the parties to submit their observations on 4 victims’ applications for participation.[29] On 13 June 2011, the Defence on behalf of M. Kenyatta requested the Chamber to dismiss all applications on the ground that redactions made it impossible to assess their content.[30] The Defence also requested the Chamber to transfer unredacted copies of the applications to the Prosecutor so that he could fulfil his obligations to disclose exculpatory evidence to the Defence.[31] On 15 June 2011, the Prosecution invited the Chamber to grant the 4 applications.[32] On 1 July 2011, Single Judge Ekaterina Trendafilova dismissed OPCV’s request for leave to respond to the Defence observations.[33]  

Parties submit observations on holding the confirmation of charges hearing in Kenya

As in the Ruto et al. case, PTC II requested observations on the possibility of holding of the confirmation of charges hearing in Kenya.[34] The Prosecution and OPCV, acting on behalf of the victims opposed the holding of the hearing in Kenya and submitted similar observations to the ones filed in the Ruto et al. case.[35] Defence on behalf of U. Kenyatta and M. Ali also opposed such a possibility.[36] However, the Defence on behalf of F. Muthaura argued that holding the hearings in Kenya would be in the interests of justice, witnesses, victims, as well as the public at large as it would “not only give Kenyans ownership of the process, but […] would also contribute immeasurably in the fight against impunity in Kenya”. [37] 

Deadline for submission of victims’ applications extended

On 28 June 2011, Single Judge Ekaterina Trendafilova, granted VPRS’ request and extended the deadline for transmition of complete victims’ applications for participation to 28 July 2011. [38] The Single Judge stressed that the substantial number of victims’ applications received in both kenyan cases, totalling 2,350, 550 of which in the Muthaura et al. case, and the consequent workload it created for VPRS , made it unrealistic to fulfil the original deadline (8 July 2011).

Situation in Libya

PTC I issues arrest warrants

[Background] On 16 May 2011, the Prosecutor requested the issuance of warrants of arrest for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi.[39]

On 27 June 2011, PTC I granted the request and issued arrest warrants for all three suspects.[40] The Chamber found that there are reasonable grounds to believe that Muammar Gaddafi and Saif Al-Islam Gaddafi are criminally responsible as indirect co-perpetrators, and that Abdullah Al-Senussi, is criminally responsible as indirect perpetrator for the commission of murder and persecution as crimes against humanity from 15 February 2011 throughout Libya in, inter alia, Tripoli, Benghazi, and Misrata. 

Situation in Ivory Coast

Victims have until 17 July to submit observations on the Prosecutor’s request to open an investigation into the Situation in Ivory Coast

On 23 June 2011, the Prosecutor formally requested PTC III, composed of Judges Odio Benito (Costa Rica), Adrian Fulford (UK), Fernández de Gurmendi (Argentina), to authorise the opening of an investigation into the situation in Côte d’Ivoire, pursuant to article 15 (3) of the Statute.[41] He argued that there is a reasonable basis to believe that during the post-election period,  crimes against humanity (including murder, rape, other forms of sexual violence, imprisonment and enforced disappearance) and war crimes (including murder, rape, attacking civilians and attacking personnel or objects involved in a humanitarian assistance or peacekeeping mission) have been committed.[42]

Victims have until 17 July 2011 to submit observations to PTC III regarding the opening of an investigation. [43]

 



[1] Order on the timetable for closing submissions, 12 April 2011, ICC-01/04-01/06-2722, http://www.icc-cpi.int/iccdocs/doc/doc1054586.pdf.

[2] Conclusions finales du Représentant legal des victims a/0047/06, a/0048/06, a/0050/06 et a/0052/06, 31 May 2011, ICC-01/04-01/06-2744-Red, http://www.icc-cpi.int/iccdocs/doc/doc1082357.pdf.

[3] Transmission to the parties and Mr Joseph Keta Orwinyo of a lesser redacted version of applications (a/0225/06, a/0229/06 and a/0270/07) in accordance with Decision ICC-01/04-01/06-2586-Conf-Exp, 6 April 2011, ICC-01/04-01/06-2721, http://www.icc-cpi.int/iccdocs/doc/doc1053158.pdf.

[4] Order on the implementation of decision ICC-01/04-01/06-2586-Conf-Exp, 6 June 2011, ICC-01/04-01/06-2750, http://www.icc-cpi.int/iccdocs/doc/doc1084679.pdf.

[5] Cinquième soumission du représentant légal relative à la notification du décès de cinq victimes, à la reprise des dossiers de certaines victimes décédées et à la divulgation de l’identité de victimes et/ou de repreneurs d’action de certaines victimes, 15 February 2011, 2011-01/04-01/07-2706, http://www.icc-cpi.int/iccdocs/doc/doc1022038.pdf.

[6] Décision relative aux demandes de reprise d’instance formées par les proches des victimes décédées a/0025/08, a/0051/08, a/0197/08 et a/0311/09, 14 June 2011, ICC-01/04-01/07-3018, http://212.159.242.180/iccdocs/doc/doc1078962.pdf.

[7] On 16 June 2011, the Registry complied with the order. See : 16 June 2011, ICC-01/04-01/07-3025, http://www.icc-cpi.int/iccdocs/doc/doc1094011.pdf.

[8] Décision sur une requête en amicus curiae et sur la “requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins d’asile » (articles 68 et 93-7 du Statut), 9 June 2011, IC-01/04-01/07-3003, http://www.icc-cpi.int/iccdocs/doc/doc1086912.pdf.

[9] Prosecution’s Application for Leave to Appeal Trial Chamber II’s Décision, 15 June 2011, ICC-01/04-01/07-3021, http://www.icc-cpi.int/iccdocs/doc/doc1092933.pdf; Application  of the Dutch Government for Leave to Appeal the Trial Chamber’s Decision ICC-01/04-01/07-3003 dated 9 June 2011, 15 June 2011, ICC-01/04-01/07-3020, http://www.icc-cpi.int/iccdocs/doc/doc1092094.pdf; Demande de la République Démocratique du Congo d’autorisation d’interjeter appel de la Décision, 15 June 2011, ICC-01/04-01/07-3023, http://www.icc-cpi.int/iccdocs/doc/doc1093697.pdf.

[10] Decision requesting the Parties to submit observations on 14 applications for victims’ participation in the proceedings, 24 may 2011, ICC-01/04-01/10-181, http://www.icc-cpi.int/iccdocs/doc/doc1079386.pdf.

[11] Observations générales de la Défense sur le premier envoi de demandes de participation à la procédure en qualité de victimes, 6 June 2011, ICC-01/04-01/10-212, http://www.icc-cpi.int/iccdocs/doc/doc1084153.pdf.

[12] Prosecution’s Observations on 14 Applications for Victims’ Participation in the Proceedings, 6 June 2011, ICC-01/04-01/10-216, http://www.icc-cpi.int/iccdocs/doc/doc1084655.pdf.

[13] Defence request for a permanent stay of proceedings, 24 May 2011, ICC-01/04-01/10-177, http://www.icc-cpi.int/iccdocs/doc/doc1078476.pdf.

[14] Decision on the “Defence request for a permanent stay of proceedings”, 1 July 2011, ICC-01/04-01/10-264, http://www.icc-cpi.int/iccdocs/doc/doc.ICC-01.04-01.10-264.pdf.

[15] Proposal on victim participation in the confirmation hearing, 6 June 2011, ICC-01/04-01/10-213, http://www.icc-cpi.int/iccdocs/doc/doc1084420.pdf.

[16] Decision on the “Proposal on victim participation in the confirmation hearing”, 10 June 2011, ICC-01/04-01/10-229, http://www.icc-cpi.int/iccdocs/doc/doc1087444.pdf.

[17] Trust Fund for Victims Launches Programme in the Central African Republic, 1 June 2011, ICC-TFV-20110616-PR685, http://www.icc-cpi.int/NR/exeres/82C5A557-5B17-432C-8F43-CC5C68FEC4A9.htm.

[18] First transmission to the parties and legal representatives of redacted applications to participate in the proceedings, 18 May 2011, ICC-01/09-01/11-92, http://www.icc-cpi.int/iccdocs/doc/doc1057170.pdf

[19] Response on behalf of Mr. Ruto and Mr. Sang to the First transmission of redacted applications to participate in the proceedings, 3 June 2011, ICC-01/09-01/11-102, http://www.icc-cpi.int/iccdocs/doc/doc1083743.pdf.

[20] Decision Requesting Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, 3 June 2011, ICC-01/09-01/11-106, http://www.icc-cpi.int/iccdocs/doc/doc1083960.pdf.

[21] Prosecution’s Submissions Regarding Proposal to Conduct the confirmation Hearing in Kenya, 13 June 2011, ICC-01/09-01/11-127, http://www.icc-cpi.int/iccdocs/doc/doc1090119.pdf; Observations of Victim Applicants on the Place of the Proceedings, 13 June 2011, ICC-01/09-01/11-126,  http://www.icc-cpi.int/iccdocs/doc/doc1090133.pdf.

[22] It also echoed the concern of some local organisations that ‘[t]here is a great danger that the hearings will be used to generate a negative public mood and to divide the nation’. Annex 1 to the OPCV’s observations, 13 June 2011, ICC-01/09-01/11-126-Anx1-Red, http://www.icc-cpi.int/iccdocs/doc/doc1090139.pdf. See also: Annex 2 to the OPCV’s observations, ‘, 13 June 2011, ICC-01/09-01/11-126-Anx2, http://www.icc-cpi.int/iccdocs/doc/doc1090135.pdf

[23] Defence Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, 13 June 2011, ICC-01/09-01/11-122, http://www.icc-cpi.int/iccdocs/doc/doc1089569.pdf.

[24] Decision on the “Request for leave to submit Amicus Curiae observations pursuant to Rule 103 of the Rules of Procedure and Evidence”, 13 June 2011, ICC-01/09-01/11-124, http://www.icc-cpi.int/iccdocs/doc/doc1090087.pdf.

[25] Decision on the “Request for leave to submit Amicus Curiae”, 13 June 2011, ICC-01/09-02/11-118, http://www.icc-cpi.int/iccdocs/doc/doc1090099.pdf.

[26] Decision Requesting the Parties to Submit Information for the Preparation of the Confirmation of Charges Hearing, 29 June 2011, ICC-01/09-01/11-153, http://www2.icc-cpi.int/iccdocs/doc/doc1100527.pdf.

[27] First Decision on Victims’ Participation in the Case, 30 March 2011, ICC-01/09-01/11-17, http://www.icc-cpi.int/iccdocs/doc/doc1049619.pdf.

[28] Decision on the Registrar’s “Request for instructions on the processing of victims’ applications”, 28 June 2011, ICC-01/09-01/11-147, http://www.icc-cpi.int/iccdocs/doc/doc1099914.pdf.

[29] First Decision on Victims’ participation in the Case, 30 March 2011, ICC-01/09-02/11-23, http://www.icc-cpi.int/iccdocs/doc/doc1049652.pdf.

[30] Response on Behalf of Uhuru Muigai Kenyatta to the First Transmission of Redacted Applications to Participate in the Proceedings, with Confidential Annex, 13 June 2011, ICC-01/09-02/11-117, http://www.icc-cpi.int/iccdocs/doc/doc1089603.pdf.

[31] Article 54 and article 67(2) of the Rome Statute.

[32] Prosecution’s Observations on Four Applications for Victims’ Participation in the Proceedings, 15 June 2011, ICC-01/09-02/11-126, http://www.icc-cpi.int/iccdocs/doc/doc1091368.pdf.

[33] Decision on the “OPCV’s Request for leave to Respond to ‘Defence Observations on 4 Applications for Victim Participation in the Proceedings’”, 1 July 2011, ICC-01/09-02/11-147, http://www2.icc-cpi.int/iccdocs/doc/doc1101810.pdf.

[34] Decision Requesting Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, 3 June 2011, ICC-01/09-02/11-102, http://www.icc-cpi.int/iccdocs/doc/doc1083962.pdf.

[35] Prosecution’s Submissions Regarding Proposal to Conduct the confirmation Hearing in Kenya, 13 June 2011, ICC-01/09-02/11-122, http://www.icc-cpi.int/iccdocs/doc/doc1090148.pdf; Observations of Victim-Applicants on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, 13 June 2011, ICC-01/09-02/11-123, http://www.icc-cpi.int/iccdocs/doc/doc1090166.pdf.

[36] Defence Observations on the Place of Proceedings for the Purposes of the Confirmation of Charges Hearing, 13 June 2011, ICC-01/09-02/11-121, http://www.icc-cpi.int/iccdocs/doc/doc1090145.pdf; Observations on behalf of Mohammed Hussein Ali s on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing”, 13 June 2011, ICC-01/09-02/11-119, http://www.icc-cpi.int/iccdocs/doc/doc1078951.pdf.

[37] Observations of the Defence Team of Ambasador Francis K. Muthaura on the Place of the Proceedings for the Purpose of the Confirmation of Charges Hearing, 13 June 2011, ICC-01/09-02/11-120, http://www.icc-cpi.int/iccdocs/doc/doc1090120.pdf.

[38] Decision on the Registrar’s “Request for instructions on the processing of victims’ applications”, 28 June 2011, ICC-01/09-02/11-137, http://www.icc-cpi.int/iccdocs/doc/doc1099912.pdf.

[39] Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 16 May, ICC-01/11-4-Red, http://www.icc-cpi.int/iccdocs/doc/doc1073503.pdf.

[40] Decision on the “Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senuss’, 27 June 2011, ICC-01/11-12, http://www.icc-cpi.int/iccdocs/doc/doc1099314.pdf.

[41] Request for authorisation of an investigation pursuant to article 15, 23 June 2011, ICC-02/11-3, http://www.icc-cpi.int/iccdocs/doc/doc1097345.pdf; On 22 June 2011, the Presidency decided to constitute Pre-Trial Chamber III (PTC III) and re-assign the situation in the Republic of Côte d’Ivoire to it, Decision Constituting Pre-Trial Chamber III and Re-assigning the Situation in the Republic of Côte d’Ivoire, 22 June 2011, ICC-02/11-2, http://www.icc-cpi.int/iccdocs/doc/doc1095732.pdf

[42] The Prosecutor proposed to limit his investigation to crimes committed after 28 November 2010, given (i) that the crimes reached unprecedented level after that date, and (ii) that the wealth of evidence available for the crimes committed after that date.

[43] OTP Public Notice: Victims of violence committed since the 2010 Presidential Elections in Côte d’Ivoire have 30 days to make representations to ICC in The Hague on the opening of an investigation by the Prosecutor, 17 June 2011, http://www.icc-cpi.int/NR/exeres/EBF86FD2-CF42-400E-B47A-71FFA771AA04.htm.