Victims' Rights Working GroupPromoting the rights and interests of victims
September 2017
MonTueWedThuFriSatSun
123
45678910
11121314151617
18192021222324
252627282930

LEGAL UPDATE March 2007

ICC Victim’s Right Legal Update

6 March 2007

(pdf version)

 

Lubanga case

  • The Prosecutor seeks leave to appeal decision confirming charges
  • The Defence provides further views on its grounds to appeal confirmation of charges
  • Victims granted the right to respond to appeal requests
  • Victims claim that requests to appeal affect their interest in justice being done
  • Appeals Chamber rejects request for bail and reviews victims’ rights to participate in appeals

Uganda Situation and cases

  • Prosecutor requests unredacted versions of victim applications
  • Prosecutor repeats that victim participation has no basis in situation phase
  • Prosecutor responds to victim applications in cases of Kony et al.
  • Defence responds to victim applications
  • OPCV gains access to confidential material including redacted arrest warrants

Darfur Situation

  • Court rejects the Defence’s attempt to get involved in the investigation
  • The Prosecutor presents evidence on Darfur crimes.

__________________________________________________________________

LUBANGA Case – DRC SITUATION

Pre-Trial Chamber confirms Lubanga charges and qualifies conflict as “international” for crimes before 6 June 2003, triggering Prosecution request to appeal

[Background] On 29 January 2007, the PTC I confirmed the charges against Thomas Lubanga of war crimes consisting in enlisting children under the age of fifteen; conscripting children under the age of fifteen; and using children under the age of fifteen to participate actively in hostilities.[1]

-        The Court allowed the submission of evidence collected during the search at Lubanga’ s house, explaining that while the legality of obtaining evidence could impair the admissibility of the evidence, only severe violations of Lubanga’s human rights could justify the exclusion of evidence and that such severe violations of human rights had not occurred.

-        As regards the determination of the age of alleged victims, the Chamber recognized that an act of the authorities was sufficient and a birth certificate was not mandatory; it quoted the jurisprudence of the Inter-American Court of Human Rights.

-        Following the Defence’s request to withdraw documents from their inventory, PTC I took the opportunity to restate that witnesses become witnesses of the Court (and not just of the parties) once their statements have been submitted. Consequently there is no right to withdraw evidence from the list of evidence submitted.

-        On the charges themselves, PTC I established a difference between the periods before and after 6 June 2003, arguing that before that date, the crimes took place in an international armed conflict due to the involvement of Uganda, while after that date the crimes took place in a non international armed conflict.

-        On 5 February 2007, the Prosecutor requested leave to appeal PTC I decision on the basis that the Court had substituted crimes under art 8(2)(e)(vii) to crimes under art 8(2)(b)(xxvii). Indeed, the Prosecutor argued that the qualification of the crimes committed before 6 June 2003 as committed in an international armed conflict placed an extra burden on the OTP. He added that it would affect the fairness of the Proceedings by disrespecting the Prosecutor’s procedural right to consider and decide whether amendments to the charges were warranted.[2]

-        The victims’ representative responded that the Prosecutor’s request would slow proceedings and would consequently impair victims’ right to justice. Whether the conflict was international or not, the crime was the same. Further determination on the nature of the conflict could be done at a later stage. Consequently, the victims’ representative requested the Appeals Chamber to deny the leave to appeal.

The defence provides further views on its grounds to appeal the confirmation of charges

 

[Background] On 30 January 2007, the Defence appealed the decision confirming the charges against Lubanga on the basis that it denied his release.[3]

On 7 February, following the Appeals Chamber’s request[4] of 1 February that the Defence provide further information on its grounds to appeal the confirmation of charges decision, Maitre Flamme submitted his views restating that the Statute gives the defence a right to appeal a decision which has the effect of denying the release of the accused person.

OTP indicated on 13 February that the Defence’ appeal on the confirmation of charges decision was an abuse of the appellate process, as the decision was not a decision denying or granting release. The Prosecutor called on the Chamber to reject the appeal in its entirety.

Victims are granted the right to respond to Appeal requests

[Background] The Defence application for appeal was submitted confidentially. On 2 February 2007, the Legal Representative for victims a/0001/06 to a/0003/06 and the Legal Representative for victim a/0105/06 jointly requested the Appeals Chamber to be authorised to submit a response to the submission of the Defence in the terms of the Appeals Chamber decision of 1 February 2007.

The Defence responded that there was no right for victims’ to make submissions on whether or not the subject matter of the decision was appealable. The Defence Counsel stressed that victims should not be allowed to present new factual elements and that their right to participation should be strictly limited to the evidence and submissions made during the confirmation hearing.

The Prosecutor also responded, indicating that there was no systematic right for victims to intervene in every interlocutory appeal. Moreover, he argued that in the present case, the issues at stake did not affect the victims’ personal interests. He requested the Chamber to deny the victims’ application for participation at this stage, without effect on their participation in the appeal should it be granted.

On 7 February 2007, the Appeals Chamber[5] recognized the victims’ right to respond to the Defence appeal application. The Appeals Chamber went further, ordering the Defence to file a redacted version of its original, confidential application, specifically to ensure that the victims could respond. The Appeals Chamber recalled that the victims are only entitled access to public documents.

Victims claim that requests to appeal affect victims’ interest that justice be done

On 26 February, the victims’ representatives responded to the Defence and Prosecutors’ requests to appeal the confirmation of charges decision. While recognizing that the issues raised by the Defence did not directly concern victims’ participation, they highlighted that both the Prosecution and Defence’s requests had slowed down proceedings and were prejudicing victims’ interest that justice be done. They argued that during trial, the Trial Chamber would be able put aside elements accepted by the Pre Trial Chamber and would be able to rectify potential violations of the rights of the accused or errors in law. Consequently they request that both requests for leave to appeal be denied.

Appeals Chamber rejects request for bail and reviews victims’ rights to participate in appeals 

[Background] : On 20 October 2006, the Defence  appealed the Pre Trial Chambers’ decision[6] denying Mr Lubanga immediate interim release or bail (with or without conditions), so as to ensure that he is not detained for an unreasonable time before trial. The Defence argued that PTC I violated its obligation to periodically review the detention of a suspect under the Rome Statute. It argued that PTC I had failed to apply principles of necessity and proportionality in ensuring Mr. Lubanga’s attendance at trial and protecting witnesses.

On 13 February, the Appeals Chamber dismissed Lubanga’s appeal, ruling that the time in detention was not unreasonable and that it did not violate principles of necessity and proportionality.

The Chamber also reviewed the conditions under which victims may participate in appeals proceedings.  Victims do not have automatic rights to participate in Appeal proceedings, and must file an application explaining how victims’ personal interests are affected. It is interesting to note the dissenting opinion of judge Sang Hyun Song, which affirms that victims should not need to file an application to participate in Appeals, as such a right is granted to all participants and therefore already includes victims. [7]

 

Uganda Situation and cases

Prosecutor requests unredacted versions of the victims’ applications

On 6 February, the Prosecutor requested the unredacted versions of the victims’ applications.[8] On 15 February, he stressed that the redactions prevented him from assessing whether the applicants should be granted victims status and prevented him from fulfilling his obligation to protect witnesses as some applicants may also be prosecution witnesses. It also prevented him from assessing if there were any potential witnesses for the prosecution among the applicants for victim status.[9] 

Pre Trial Chamber II ruled that OTP’s request lacked procedural basis and dismissed it on 20 February. OTP has sought to appeal this decision.

The Prosecutor repeats that victim participation has no basis in the situation phase

[Background]: Victims confidentially applied for participation in the proceedings on 19 June and 17 August 2006.  As of 1 February 2007, at least 49 applications in the situation and cases have been filed. 

-        On 28 February, the Prosecutor responded to the victim applications in the Uganda situation.[10] The Prosecutor repeated that victim participation in a situation had no basis under the Statute. He emphasized that while victim participation in ICC proceedings were welcome, participation of victims in the situation significantly affected the expeditious conduct of the proceedings and would impact upon the Court’s ability to protect victims and witnesses by increasing exponentially the number of people to protect and by opening the door to potential misleading or fabricated requests for participation.

-        The Prosecutor repeated that art 68(3) of the Statute did not grant victims a right to participate in the investigation of a situation and that participation in the “proceedings” should commence : (a) once the Prosecutor informs the Pre-Trial Chamber of a decision not to proceed with an investigation under 53(1) or the conclusion that there is no basis for a prosecution in a situation under Article 53(2); (b) upon the issuing of an arrest warrant or a summons to appear under Article 58, including the holding of a confirmation hearing under Article 61. Finally he argued that the definition of ‘personal interest’ must be more than the general interest of any victim in the progression and outcome of the investigation.

The Prosecutor responds to victim applications in the cases of KONY, OTTI, et AL 

On 28 February, the Prosecutor stated that he was in no position to file an informed response to the victim applications due to the significant redaction of the versions provided to the OTP. The prosecution restated the criteria to determine victim status. The Prosecution indicated that on the basis of the information he had, 12 of the applicants did not seem to qualify as victims. Their claims referred to events with no link to those identified in the warrants or referred to time periods not included in the warrants. Consequently the Prosecutor sought to have applications a/0064/06; a/0067/06; a/0068/06; a/0069/06; a/0088/06;  a/0089/06; a/0092/06; a/0097/06; a/0101/06; a/0102/06; a/0114/06; a/0126/06 rejected.[11]

The Defence responds to victim applications in the Uganda situation[12] and cases

The Defence recognised that, on the face of it, all the applicants were physical persons who had suffered harm as a result of crimes within the Court’s jurisdiction. However, with regard to victim a/0089/06, the events seemed to have taken place outside the Court’s jurisdictional timeframe. Then with regards victims a/0067/06 to a/0069/06, and a/0101/06 the absence of a specific month when the harm occurred made it impossible for the Defence to determine if they could have victim status. Moreover, the Defence explained that as dates and places had been redacted, it reserved a right to revise its observations at a later stage. As for applicants a/0098/06, a/0103/06 and a/0124/06, these did not fulfil the connexion link required.

Finally, the Defence claimed that the applicants were acting as third parties, offending the presumption of innocence and the right to fair trial.  The Defence indicated that the Court’s document PIDS-011-2005F mentioned victims’ right to play a role when their interests were concerned and to present their views and concerns at all stages of the proceedings”. However,the Court’s direction did not allow the defence to present its views against victims’ participation. As a result, while recognizing victims’ right to participate at this stage of the proceedings, the Defence called on the Court to deny victim status to: a/0010/06, a/0064/06, a/0067/06, a/0068/06, a/0069/06, a/0081/06, a/0082/06, a/0084/06, a/0087/06, a/0089/06, a/0097/06, a/0098/06, a/00100/06, a/00101/06, a/0103/06, a/104/06, a/00111/06, a/0113/06, a/00116/06, a/00121/06, a/0124/06, and a/0127/06. 

OPCV gains access to confidential material including unredacted arrest warrants

The Office of Public Council for Victims (OPCV) asked Judge Mauro Politi to be provided with an unredacted version of the arrest warrants and access to other related material (including the index of the record of the situation and the case). Judge Mauro Politi decided to provide the OPCV with the unredacted arrest warrants but not the index of the record of the situation and the case.[13] 

Judge Politi also scheduled an ex parte closed hearing on 12th February to discuss how and to what extent OPCV should have access to confidential material in fulfilling the tasks entrusted to OPCV by the single judge. The Prosecutor requested to attend the hearing but, OPCV’s claimed that victims’ safety was at stake and the Judge denied OTP’s request to attend the hearing.

 

DARFUR Situation

Court rejects Defence’s attempt to participate in investigation and recalls its limited role at this stage 

[Background] Counsel for the defence had requested to be informed of and to attend interrogations by the Prosecution while in Sudan.

On 2 February, the Court put an end tothe ad hoc Counsel for the Defence’s attempts to engage with the Prosecutor on the possibility of attending investigation proceedings in Sudan.[14]

Maître Shalluff sought to appeal this decision arguing that it violated the rights of the Defence and the fairness of the trial. Following the Prosecutor’s plea that the Appeals Chamber deny the appeal, Maitre Shalluf had sought to respond to the Prosecutor. Both the appeal and the request to respond the Prosecutor were denied on 21 February.

Prosecutor presents evidence on Darfur crimes[15]

[Background]: On 31 March 2005, the Security Council, acting under Chapter VII of the UN Charter, referred the situation in Darfur to the Prosecutor. The opened his investigation in Darfur on 1 June 2005.

On 27 February, the Prosecutor presented evidence showing that Ahmad Muhammad Harun, former Minister of State for the Interior, and Ali Kushayb, a leader of the Militia/Janjaweed, jointly committed crimes against the civilian population in Darfur. The Prosecutor applied to Pre-Trial Chamber I for the issuance of summonses to appear against the two individuals. Based on evidence collected during the last 20 months, the Prosecution concluded there were reasonable grounds to believe that Ahmad Harun and Ali Kushayb, (also known as Ali Muhammad Ali Abd-Al-Rahman) bore criminal responsibility in relation to 51 counts of alleged crimes against humanity and war crimes. The crimes were allegedly committed during attacks on the villages and towns of Kodoom, Bindisi, Mukjar, and Arawala in West Darfur between August 2003 and March 2004.

The prosecutor also indicated his particular attention to the protection of victims and the fact that interviews had been conducted outside Sudan for security reasons. He also highlighted in fulfilling his statutory responsibilities, he has continuously monitored the security of victims and witnesses and implemented protective measures.

 
   

 


 
 
[1] Pre-Trial Chamber I commits Thomas Lubanga Dyilo for trial, ICC 01/04-01/06-803, 29 January 2007,  http://www.icc-cpi.int/iccdocs/doc/doc266175.PDF
 

[2] Application for Leave to Appeal Pre-Trial Chamber I’s "Décision sur la confirmation des charges" , ICC-01/04-01/06-806, 29 January 2007, http://www.icc-cpi.int/iccdocs/doc/doc266175.PDF

[3] Defence Appeal Against the Pre-Trial Chamber’s ‘Décision sur la confirmation des charges’, ICC-01/04-01/06-797, 30 January 2007, http://www.icc-cpi.int/iccdocs/doc/doc232824.PDF

[4] ICC 01/04-01/06-800, 1 February 2007, http://icc-cpi.int/iccdocs/doc/doc243702.PDF

[5] ICC 01/04-01/06-802, 2 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc248044.PDF

[6] Defence Appeal Against 'Décision sur la demande de mise en liberté  provisoire de Thomas Lubanga Dyilo' ICC-01/04-01/06-594, 20 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc248044.PDF

[7] Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo" ICC 01/04-01/06-824, 13 February 2007, http://icc-cpi.int/iccdocs/doc/doc248155.PDF

 [8] Application to Lift Redactions From Applications for Victims’ Participation to be Provided to the OTP ICC-02/04-01/05-150,  6 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc272782.PDF

[9] Prosecution’s further submissions supplementing its “Application to Lift Redactions From Applications for Victims’ Participation to be Provided to the OTP”, dated 6 February 2007, and request for extension of time ICC-02/04-01/05-208, 15 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc297227.PDF

[10] Prosecution’s Reply under Rule 89(1) to the Applications for Participation of Applicants a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 in the Uganda Situation, ICC-02/04-85,28 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc349116.PDF

[11] 28.02.2007 - Prosecution’s Reply under Rule 89(1) to Applications for participation of Applicants a/0010/06 and a/0064/06 to a/0070/06 and a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 in the Case of The Prosecutor vs.  Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen ICC-02/04-01/05-214 -: http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-214_English.pdf

[12] Observations de la Défense sur les demandes de participation à la  procédure a/0010/06, a/0064/06 à a/0070/06, a/0081/06 à a/0104/06 et a/0111/06 à a/0127/06 ICC-02/04-01/05-216 : http://www.icc-cpi.int/library/cases/ICC-02-04-01-05-216_French.pdf

[14] Decision on the Ad hoc Counsel for Defence Request of 18 December 2006 ICC-02/05-47 - Original: http://www.icc-cpi.int/library/cases/ICC-02-05-47_English.pdf

[15] Prosecutor's Application under Article 58 (7) ICC-02/05-56, 27 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc259838.PDF