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LEGAL UPDATE March-May 2010

ICC Victims’ Rights Legal Update

1 March - 15 May 2010

(pdf version)

 

DRC situation 

Developments in the ongoing Lubanga Trial

  • Trial Chamber I reaffirms right of victims’ representatives to question defence witnesses and reaffirms notion of personal interest
  • TCI gives its opinion on Judicial Questioning
  • Debate on the Prosecution’s Strategy relating to Intermediaries

Developments in the ongoing Katanga and Ngudjolo Trial

  • Replacement of Appeals Chamber judges
  • Further decision on victims’ applications
  • Prosecution’s opposes Katanga’s appeal on unlawful detention and stay of proceedings
  • Defence partially granted appeal on the decision on modalities of victims’ participation

 

Situation in Central African Republic

Bemba Case

  • Defence requests to reject 86 applications for victim participation rights
  • Parties and participants submit their views on admissibility
  • Chaber adopts a “Protocol on investigations in relation to witnesses benefiting from protective measures”
  • The Defence calls for an expert on the judicial system of the CAR

 

Situation in Darfur, Sudan

Al-Bashir Case 

  • Victims’ participation in the proceedings relating to the warrant of arrest for genocide at stake

Abu Garda Case 

  • 9 applicants granted the right to participate in the proceedings
  • Prosecution application to appeal the confirmation decision rejected

 

Situation in the Republic of Kenya

  • Clarification and additional information regarding the opening of an investigation
  • VPRS’ report on victims’ representations: voice given to victims before the opening of an investigation
  • OTP granted the authorisation to open an investigation in the Situation in Kenya    

 

DRC situation

Developments in the ongoing Lubanga Trial

Trial Chamber I reaffirms right of victims’ representatives to question defence witnesses and reaffirms notion of personal interest

On 11 March 2010, Trial Chamber I (TCI) rejected the Defence’s application regarding the right of victims’ legal representatives to question defence witnesses and on the Defence’s will to exclude certain victims’ representatives during non-public testimony of various defence witnesses.[1]

TCI stated that there was no justification for redefining the meaning of "personal interests" under Article 68(3) of the Statute for the purposes of the testimony of defence witnesses and did not welcome the Defence’s wish to apply a restricted definition of the concept. The Chamber will apply the principles already established for victims’ legal representatives’ questioning of witnesses. The Chamber also highlighted that the presence of victims’ representatives during closed session defence testimony was an essential part of their right to participate in the proceedings.

TCI establishes rules on Judicial Questioning

[Background] On 15 January 2010, Lubanga’s defence requested that TC I determine principles regarding the interrogation of witnesses by judges and clarification as to the Defence’s rights pursuant to Articles 64(2) and 64(3)(a).[2] Indeed, the Defence feared for the fairness of the proceedings if the Court was to apply to defence witnesses the standard of questioning it applied for prosecutor’s and court’s witnesses. On 18 March 2010, Trial Chamber I decided as follows:[3]

The subject-matter of the questions put by the judges:

- the Chamber may hear evidence, during the trial, which is relevant to a possible sentencing stage or to reparations;

- the general evidence in the case is not restricted to the facts and circumstances described in the charges and any amendments to the charges, and under Article 69(3) the Chamber is entitled to request the submission of all evidence that it considers necessary for the determination of the truth;

- the judges will ask questions whenever they consider it appropriate, ensuring that the Defence rights under Rule 140(2)(d) are respected, and that the parties generally have the opportunity to explore any new issues to the extent that is necessary.

The form of the questions: The Chamber ruled that judges can decide the appropriate manner of questioning and added that for the legal representatives of victims, there was a rebuttable presumption in favour of neutral questioning. 

The rights of the Defence to challenge questions put by the judges: there is no basis in the Rome Statute framework or national judicial systems generally for parties (or the participants) to challenge the form or content of judicial questions.

Debate on the Prosecution’s Strategy related to Intermediaries

[Background] During the trial hearings, the On 23 February 2010, the Prosecution filed a response to the Trial Chamber’s oral request of 10 February 2010 for information on the Prosecution’s proposed strategy as regards the issue of intermediaries. Indeed, the Ddefence raised arguments to suggest that intermediaries might have coached witnesses and fabricated evidence. They have sought disclosure of the identities of intermediaries and questioned the rationale for protecting the identity of an individual whose integrity is challenged and is directly impacting the credibility of the evidence. On 23 February 2010, the Prosecution filed a response to the Trial Chamber’s oral request of 10 February 2010 on its proposed strategy regarding intermediaries.

On 19 March 2010, the Prosecution suggested that there is no reason to disclose the identity of essential and active intermediaries or to call them as witnesses.[4] It proposed a three-stage strategy designed to provide the Chamber with the information it needs without exposing the intermediaries or endangering OTP’s investigative activities:

1. The Chamber may call an appropriate OTP representative to give evidence on the use of intermediaries in this case;

2. The Prosecution will take all steps possible to bring intermediaries whom the Chamber has deemed sufficiently tainted by specific allegations to The Hague to appear as witnesses, ex parte, without disclosing their identities to the defence;

3. The Chamber may evaluate again and eventually decide in favour of disclosure of the intermediaries’ identities to the Defence, after carefully considering the considerable burden and impact this will have on the intermediaries and on the work of the OTP.

On 24 March 2010, the Defence asked the Court to reject the Prosecution’s proposal.[5] The Defence asked that an officer in charge of investigations at OTP give testimony on the conduct of the investigation and on the role of intermediaries. A decision is still pending.

 

Ongoing Katanga & Ngudjolo Trial

Replacement of judges in the Appeals Chamber

On 8 March 2010, the Presidency decided to replace judges in the Appeals Chamber,[6] as follows: Judge Sang-Hyun Song, Judge Erkki Koumla, Judge Ekaterina Trendafilova, Judge Daniel David Ntanda Nsereko and Judge Joyce Aluoch. Currently pending are Katanga’s motion for a declaration on unlawful detention and stay of proceedings[7] and the appeal against the decision on the modalities of victims’ participation[8].

Victims’ participation

On 16 March 2010, TCII issued a decision giving the grounds for its decision granting victim status to 8 applicants.[9] The Chamber stated that it had examined the completed applications in accordance with rule 85(a) and (b), it had also verified the family link between one applicant and the deceased person on whose behalf he acts.

Prosecution opposes Katanga’s appeal on unlawful detention and stay of proceedings

[Background] On 11 February 2010, Katanga was granted leave to appeal the decision on unlawful detention and stay of proceedings, pursuant to article 82(1)(d) of the Statute.[10] On 25 February 2010 the Defence filed its appeal brief before the Appeals Chamber.[11]

On 11 March 2010, the Prosecution requested that the Appeals Chamber dismiss the appeal on the grounds that TCII’s decision was based on a correct interpretation of the governing law and was not vitiated by any error of fact or procedural error.[12]

Defence partially granted appeal on the decision on modalities of victims’ participation

[Background] On 22 January 2010, TCII issued a decision on the modalities of victim participation in the trial of Mr Katanga and Ngudjolo, noting that so far, 359 victims had been granted the right to participate in the case. [13] On 1 February 2010, Katanga’s Defence sought leave to appeal the decision on 5 grounds, namely that TCII erred in finding that the legal representatives of victims: [14]

-        may question witnesses, experts and the accused in a manner which can clarify or complete the elements of proof already provided by the witness;

-        may present evidence and call victims to testify on the crimes against the accused, in a manner which includes incriminating evidence and testimony;

-        might call witnesses on matters including the role of the accused in crimes charged against them;

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

-        may, with authorisation of the Chamber, give their observations on the relevance or admissibility of items of evidence, without distinguishing between the position where they are mounting a challenge to admissibility or relevance as opposed to supporting a prosecution application to admit evidence.

On 19 April 2010, TCII issued a decision on the Defence’s application and granted leave to appeal the second, third and fourth issues of appeal.[15]

 

Situation in Central African Republic

Bemba Case

Defence opposes 86 applications for participation from victims

On 17 March 2010, Bemba’s defence team filed observations on 86 applications for participation in the proceedings, requesting their rejection.[16] The Defence criticized the fact that the applications were not corroborated by relevant elements likely to establish the alleged facts. The Defence asked for the exclusion of applicants who did not vouch harm resulting from the crimes mentioned in the decision on the confirmation of charges; allegedly incomplete, imprecise or non-confirmed applications; applications which do not put forward an alleged prejudice.

Parties and participants submit their views on admissibility

[Background] On 25 February 2010, the defence team for Bemba sought to contest the admissibility of the case pursuant to articles 17 and 19(2)(a) of the Rome Statute[17] based on the principle of complementarity, the principle “non bis in idem” and on the absence of gravity. The Defence stated that domestic investigations have been carried out on the allegations against the accused, that the authorities in Central African Republic (CAR) launched a prosecution against him for the same allegations, that they always showed their goodwill to prosecute him and that their courts have the capacity to do so. The Defence added that the case does not satisfy the gravity criteria.

On 29 March 2010, the Prosecution requested the rejection of the Defence’s position and sought to have the the case against the accused declared admissible within the meaning of Article 17(1).[18] Based on the same grounds, Maitre Douzima, representating 34 victims, also asked the Chamber to reject the Defence’s request.[19]The Office of Public Counsel for Victims (OPCV) stated in its response[20]  that facts showed that the CAR criminal proceedings against the accused were abandoned before a judgment was rendered. OPCV recalled that victims had a right to truth and to justice, and that victims in the CAR, through local non-governmental organisations assisting them, had expressed support for the role of the ICC in addressing the most serious crimes.

On 14 April 2010, the Defence replied, again asking the Chamber to declare the case inadmissible and/or to order an adjournment of the proceedings for abuse of process.[21] OPCV filed a second response arguing inter alia that the Defence had not considered whether the filings made before the CAR courts were admissible or would lead to new proceedings (in OPCV’s view these were inadmissible and did not detract from the legality of the Chambre d’Accusation and Cour de Cassation decisions determining not to prosecute the accused for crimes allegedly committed in CAR).[22] On 23 April 2010[23]OTP stated that the filings made before the CAR national courts did not impact on the ICC’s determination of the present admissibility challenge.

At the same time, the Defence sought to introduce expert testimony of Mr Edouard Frank on the judicial system of the CAR.[24] This was opposed by the victims’ Legal Representative as late and superfluous[25] and by the Prosecution who stated that the opinion of the expert would not assist the Chamber in the determination of the issue, because it had already addressed part of the question to the CAR uthorities, who are in control of their national judicial process.[26]

The Chamber held a status conference to discuss the admissibility challenge on 27 April 2010, during which the CAR representative affirmed their will to see the ICC admitting the case.

Chamber adopts a “Protocol on investigations in relation to witnesses benefiting from protective measures”

On 26 April 2010, TCII adopted a “Protocol on investigations in relation to witnesses benefiting from protective measures”.[27] This protocol concerns the use of the names of protected witnesses in the course of investigations or inquiries[28] and must be implemented by parties and participants. The Chamber specified that the protocol should also be applied to victims granted anonymity by the Court.

 

Situation in Darfur, Sudan

Al-Bashir Case

Victims’ participation in the proceedings related to the arrest warrant for genocide at stake

[Background] On 3 February 2010, the Appeals Chamber directed Pre-Trial Chamber I “to decide anew, on the basis of the correct standard of proof, whether a warrant of arrest in respect of the crime of genocide should be issued”.[29]

In March 2010, two groups of victims sought to submit applications for participation in the proceedings.[30] They submitted that they fulfilled the criteria to participate, namely that they are victims in accordance with rule 85(a) and have a personal interest in the proceedings. They asked permission to participate in the anticipated proceedings to be conducted as a consequence of the judgment of the Appeals Chamber. On 5 and 13 April 2010, the Defence asked the Pre-Trial Chamber I to reject the requests, arguing that victims could not participate in arrest warrant issues and that allowing their request would be contrary to a fair trial and the rights of the accused.[31] The decision is pending.

 

Abu Garda Case

9 applicants granted the right to participate in the proceedings

On 19 March 2010, Pre-Trial Chamber I granted 9 applicants the right to participate in the proceedings at the Pre-Trial stage of the case and rejected 5 applicants.[32] The Chamber recalled the criteria to be satisfied for a person to be granted the right to participate:

(i)     whether that person has submitted a complete application for participation,

(ii)    whether he or she meets the criteria of a victim set out in rule 85 of the Rules, and

(iii)   whether his or her personal interests are affected by the proceedings in issue, as

Application to appeal the Confirmation Decision rejected

[Background] On 8 February 2010, Pre-Trial Chamber I (PTCI) decided not to confirm the charges against Abu Garda because there was insufficient evidence to establish substantial grounds to believe that Abu Garda was responsible for the crimes charged.[33]

The Prosecution’s attempt to appeal the decision,[34] was rejected on 23 April 2010.[35] However, the decision refusing leave to appeal does not preclude the Prosecution from filing additional evidence in support of unconfirmed charges.

 

Situation in the Republic of Kenya

OTP granted the authorisation to open an investigation in the Situation in Kenya

On 18 February 2010, Pre-Trial Chamber II requested[36] clarification and additional information from the Prosecutor in relation to his request to commence an investigation into the situation in the Republic of Kenya in relation to the post-election violence of 2007-8.

The Prosecutor provided clarifications and additional information with respect to 1) the State and/or organizational policy suggested under the definition of crimes against humanity in article 7(2) (a) and 2) on the issue of admissibility within the context of Kenya.[37]

1.    The Prosecution stated that senior political and business leaders associated with the main political parties, the PNU, which was in the government at the time of the violence, and the ODM which was the main opposition party at the time, organized, enticed and/or financed attacks against the civilian population on account of their perceived ethnic and/or political affiliation pursuant to or on furtherance of a State and/or organizational policy. Such senior leaders from both parties were guided by political objectives to retain or gain power. They utilized their personal, government, business and tribal networks to commit the crimes. They implemented the policy with the involvement of a number of State officers and public and private institutions, such as members of parliament, senior government officers, the police force and youth gangs.

2.    As regards admissibility, the Prosecutor noted that no investigations or prosecutions were initiated by the Kenyan authorities in respect of any incidents and against any individual identified in the annexes filed by the Prosecution.[38]

The Prosecution requested an expedited decision from the Chamber given that the crimes were committed two years ago and judicial proceedings have not been initiated. The Prosecution added that both victims and persons identified as potential suspects need clarity on the process ahead.

On 31 March 2010, PTCII issued a decision authorising the opening of an investigation in the Republic of Kenya.[39] The Chamber examined the criteria for the authorisation pursuant to Articles 15(3) and (4) and 53(1) of the Rome Statue and whether the requisite criteria had been met. It ascribed the scope of the investigation to crimes against humanity committed between 1 June 2005 and 26 November 2009[40] on the territory of the Republic of Kenya. The Chamber explained that the temporal scope could not be limited to the events which took place between December 2007 and February 2008 or it would be inconsistent with the investigation of an entire situation as opposed to subjectively selected crimes and with the Prosecutor's duty to establish the truth by extending the investigation to cover all facts and evidence pursuant to Article 54(1) of the Statute.

VPRS’ report on victims’ representations concerning the opening of an investigation

On 29 March 2010, VPRS, as requested by PTCII, filed a report which sets out information about 396 victims who made representations to the Chamber concerning the opening of the investigation. It provides a summary of their views and recommendations regarding confidentiality and protection. [41]

The overwhelming opinion of victims who made representations is that an investigation in Kenya should be authorised, for the following reasons:

- so that this sort of violence does not happen again;

- because the Kenyan authorities and/or justice system cannot be trusted;

- so that justice will be done;

- to know the truth about what happened and who the perpetrators are;

- to end the culture of impunity in Kenya;

- to punish the perpetrators;

- because the ICC is trustworthy;

- to help victims recover property or compensation;

- to address inter-ethnic conflict.

 

Many gave their views regarding the scope of investigation if authorised, including temporal, geographic, and the subject-matter jurisdiction. It was also indicated that victims expect the proceedings to be swift. They wish to obtain reparation, and raised the issue of security and protection. They hope that the proceedings will trigger institutional reforms, and expressed the need for reconciliation, peace building and/or civic education, and hope that the root causes of violence will be addressed.

 


[1] Decision on the Defence observations regarding the right of the legal representatives of victims to question defence witnesses and on the notion of personal interest on the defence application to exclude certain representatives of victims from the Chamber during the non-public evidence of various defence witnesses, 11 March 2010, ICC-01/04-01/06-2340, http://www.icc-cpi.int/iccdocs/doc/doc841633.pdf

[2] Requête aux fins de détermination des principes applicables aux questions posées aux témoins par les juges, 15 janvier 2010,ICC-01/04-01/06-2252, http://www.icc-cpi.int/iccdocs/doc/doc805631.pdf

[3] Decision on judicial questioning, 18 March 2010, ICC-01/04-01/06-2360, http://www.icc-cpi.int/iccdocs/doc/doc847597.pdf

[4] Prosecution Proposed Procedure for Dealing with Intermediaries, 19 March 2010, ICC-01/04-01/06-2362, http://www.icc-cpi.int/iccdocs/doc/doc796154.pdf

[5] Reponse de la Defense a la “Prosecution’s proposal procedure for dealing with intermediaries”, 24 March 2010, ICC-01/04-01/06-2375, http://www.icc-cpi.int/iccdocs/doc/doc850008.pdf

[6] Decision replacing judges in the Appeals Chamber, 8 March 2010, ICC-01/04-01/07-1949, http://www.icc-cpi.int/iccdocs/doc/doc833826.pdf

[7] Decision on the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain Katanga en illégalité de la détention et en suspension de la procédure", 11 February 2010, ICC-01/04-01/07-1859, http://www.icc-cpi.int/iccdocs/doc/doc821369.pdf

[8] Decision on the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative aux modalités de participation des victimes au stade des débats sur le fond", 19 April 2010, ICC-01/04-01/07-2032, http://www.icc-cpi.int/iccdocs/doc/doc860978.pdf

[9] Motifs de la troisième décision relative à 8 demandes de participation de victimes à la procédure, 16 mars 2010, ICC-01/04-01/07-1967, http://www.icc-cpi.int/iccdocs/doc/doc845824.pdf

[10] Decision on the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain Katanga en illégalité de la détention et en suspension de la procédure", 11 February 2010, ICC-01/04-01/07-1859, http://www.icc-cpi.int/iccdocs/doc/doc821369.pdf

[11] Document in Support of the Defence Appeal of the Décision relative à la requête de la Défense de Germain Katanga en illégalité de détention et en suspension de la procédure, 25 February 2010, ICC-01/04-01/07-1916-Corr, http://www.icc-cpi.int/iccdocs/doc/doc828650.pdf

[12] Prosecution response to Katanga’s appeal against the “Decision on the Motion for the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, 11 March 2010, ICC-01/04-01/07-1957-Red, http://www.icc-cpi.int/iccdocs/doc/doc841481.pdf

[13] « Décision relative aux modalités de participation des victimes au stade des débats sur le fond », 22 January 2010, ICC-01/04-01/07, http://www.icc-cpi.int/iccdocs/doc/doc810967.pdf

[14] Defence Request for Leave to Appeal the Décision relative aux modalités de participation des victims au stade des débats sur le fond, 1 February 2010, ICC-01/04-01/07-1815, http://www2.icc-cpi.int/iccdocs/doc/doc816344.pdf

[15] Decision on the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative aux modalités de participation des victimes au stade des débats sur le fond", 19 April 2010, ICC-01/04-01/07-2032, http://www.icc-cpi.int/iccdocs/doc/doc860978.pdf

[16] Observations de la Défense sur les 86 demandes de participation à la procédure en qualité des victimes, 17 mars 2010, ICC-01/05-01/08-725, http://www.icc-cpi.int/iccdocs/doc/doc846660.pdf

[17] Requête en vue de contester la recevabilité de l’Affaire conformément aux articles 17 et 19 (2) (a) du Statut de Rome, 25 February 2010, ICC-01/05-01/08-704-Red3, http://www.icc-cpi.int/iccdocs/doc/doc857699.pdf. Public version 09 April 2010. See also: Deuxième Requête de la Défense aux fins d’informer la Chambre de Première Instance III d’un nouveau développement de procédure judiciaire intervenu en République Centrafricaine en date du 16 Avril 2010, 19 Avril 2010, ICC-01/05-01/08-757, http://www.icc-cpi.int/iccdocs/doc/doc860732.pdf

[18] Prosecution’s Response to Motion Challenging the Admissibility of the Case by the Defence for Jean-Pierre Bemba Gombo pursuant to Articles 17 and 19(2)(a) of the Rome Statute, 29 March 2010, ICC-01/05-01/08-739, http://www.icc-cpi.int/iccdocs/doc/doc853543.pdf

[19] Observations de 18 Représentante légale des victimes a la requête de la Défense en vue de contester la recevabilité de I'affaire conformément aux articles 17 et 19(2) (a) du Statut de Rome, 29 March 2010, ICC-01/05-01/08-740, http://www.icc-cpi.int/iccdocs/doc/doc853624.pdf

[20] Response by the Legal Representative of Victims to the Defence's Challenge on Admissibility of the Case pursuant to articles 17 et 19 (2) (a) of the Rome Statute with 102 Annexes Confidential ex parte OPCV only and same Annexes Public Redacted, 1 April 2010, ICC-01/05-01/08-742, http://www.icc-cpi.int/iccdocs/doc/doc855172.pdf. See the Corrigendum to the “Response by the Legal Representative of Victims to the Defence's Challenge on Admissibility of the Case pursuant to articles 17 et 19 (2)(a) of the Rome Statute with 102 Annexes Confidential ex parte OPCV only and same Annexes Public Redacted”, 16 April 2010, ICC-01/05-01/08-756, http://www.icc-cpi.int/iccdocs/doc/doc860362.pdf

[21] Réplique de la Défense aux observations du Procureur et de Représentants légaux des victimes sur la requête en contestation de la recevabilité de l’Affaire, 14 Avril 2010, ICC-01/05-01/08-752, http://www.icc-cpi.int/iccdocs/doc/doc859498.pdf

[22] Response by the Legal Representative to the Defence’s First and Second Requests in order to inform the Chamber of new developments in the judicial proceedings in the Central African Republic, 23 April 2010, ICC-01/05-01/08-759, http://www.icc-cpi.int/iccdocs/doc/doc862864.pdf

[23] Prosecution’s Consolidated Response to the Defence Applications of 13 and 19 April 2010 Informing the Chamber of New Procedural Developments in the Central African Republic, 23 April 2010, ICC-01/05-01/08-761, http://www.icc-cpi.int/iccdocs/doc/doc863102.pdf

[24] Requête de la Défense aux fins de faire intervenir un témoin-Expert en droit de Procédure Pénale de la République Centrafricaine, 23 April 2010, ICC-01/05-01/08-760,

[25] Response by the Legal Representative to the “Requête de la Défense aux fins de faire intervenir un témoin-expert en Droit de Procédure Pénale de la République Centrafricaine”, 26 April 2010, ICC-01/05-01/08-762, http://www.icc-cpi.int/iccdocs/doc/doc863778.pdf

[26] Prosecution’s Response to the “Requête de la Défense aux fins de faire intervenir un témoinexpert en Droit de Procédure Pénale de la République Centrafricaine”, 26 April 2010, ICC-01/05-01/08-763, http://www.icc-cpi.int/iccdocs/doc/doc863779.pdf

[27] Décision sur le « Protocole régissant les enquêtes concernant les témoins bénéficiant de mesures de protection », 26 April 2010, ICC-01/04-01/07-2047, http://www.icc-cpi.int/iccdocs/doc/doc863668.pdf

[28] Protocol on investigations in relation to witnesses benefiting from protective measures, Pursuant to Decision ICC-01/04-01/07-2047 of Trial Chamber II, dated 26-04-2010, this document is reclassified as "Public", http://www.icc-cpi.int/iccdocs/doc/doc851489.pdf

[29] Appeals Chamber, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 3 February 2010, ICC-02/05-01/09-73, http://www.icc-cpi.int/iccdocs/doc/doc817795.pdf

[30] Application of Legal Representatives of Victims a/0011/06, a/0012/06, a/0013/06 and a/0015/06 to Participate in and Submit Observations on the Proceedings on Remand In Connection with the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir, 10 March 2010, ICC-02/05-01/09-75, http://www.icc-cpi.int/iccdocs/doc/doc841857.pdf and Victims’ Application for Participation in the Proceedings arising out of the Appeal Judgment of 3 February 2010, 24 March 2010, ICC-02/05-01/09-77, http://www.icc-cpi.int/iccdocs/doc/doc850166.pdf

[31] Réponse de la Défense à la procédure intitulée : « Application of Legal Representatives of Victims a/0011/06, a//0012/06, a/0013/06 and a/0015/06 to Participate in and Submit Observations on the Proceedings on Remand In Connection with the Application for a Warrant for the Arrest of Omar Hassan Ahmad al-Bashir », 5 April 2010, ICC-02/05-01/09-79, http://www.icc-cpi.int/iccdocs/doc/doc855769.pdf and Réponse de la Défense à la procédure intitulée : « Victims’ Application for Participation in the Proceedings arising out of the Appeal Judgment of 3 February 2010 (ICC-02/05-01/09-73 », 13 April 2010, ICC-02/05-01/09-80, http://www.icc-cpi.int/iccdocs/doc/doc859074.pdf

[32] Decision on Applications a/0655/09, a/0656/09, a/0736/09 to a/0747/09, and a/0750/09 to a/0755/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case, 19 March 2010, ICC-02/05-02/09-255, http://www.icc-cpi.int/iccdocs/doc/doc848521.pdf

[33] Decision on the Confirmation of Charges, 8 February 2010, ICC-02/05-02/09-243-Red, http://www.icc-cpi.int/iccdocs/doc/doc819602.pdf. The Chamber decided that “the five-day period for the parties to present an application for leave to appeal in accordance with rule 155(1) of the Rules shall start to run with effect from the date of notification of the Arabic translation of this Decision”. See ICC-02/05-02/09-248

[34] Prosecution’s Application for Leave to Appeal the “Decision on the Confirmation of Charges”, 15 March 2010, ICC-02/05-02/09-252-Red, http://www.icc-cpi.int/iccdocs/doc/doc844136.pdf The Legal Representative of Victims requested an extension of the time limit for filing his response to the Prosecutor’s application, which was rejected by PTCI, Decision on the legal representative of victims’ application for extension of time limit, 8 April 2010, ICC-02/05-02/09-266, http://www.icc-cpi.int/iccdocs/doc/doc856665.pdf

[35] Decision on the Prosecution's Application for Leave to Appeal the 'Decision on the Confirmation of Charges', 23 April 2010, ICC-02/05-02/09-267, http://www.icc-cpi.int/iccdocs/doc/doc863095.pdf

[36] On 18 February 2010, Pre-Trial Chamber II requested clarification and additional information in relation to the request for authorization to commence an investigation into the situation in the Republic of Kenya. Situation in the Republic of Kenya, Pre-Trial Chamber II, Decision Requesting Clarification and Additional Information, 18 February 2010, ICC-01/09-15, http://www.icc-cpi.int/iccdocs/doc/doc825223.pdf

[37] Prosecution’s Response to Decision Requesting Clarification and Additional Information, 3 March 2010, ICC-01/09-16, http://www.icc-cpi.int/iccdocs/doc/doc831129.pdf

[38] The Prosecution filed annexes 4 and 5 as public and annexes 1, 2 and 3 confidential, ex parte, Prosecution only, as they reference information on persons who appear to bear the greatest responsibility as well as information on the most serious incidents according to the information contained in the twelve reports provided in support of its Application.

[39] Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ICC-01/09-19, http://www.icc-cpi.int/iccdocs/doc/doc854287.pdf

[40] The 1st June 2005 is the date of the Statute's entry into force for the Republic of Kenya, the 26 November 2009 is the date of the filing of the Prosecutor's Request

[41] Report on Victims' Representations, 29 March 2010, ICC-01/09-17-Corr-Red, http://www.icc-cpi.int/iccdocs/doc/doc853218.pdf, see annex 1 http://www.icc-cpi.int/iccdocs/doc/doc853220.pdf, annex 2 http://www.icc-cpi.int/iccdocs/doc/doc853222.pdf