Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE May 2007

 

ICC Victim’s Rights Legal Update

4 June 2007

(pdf version)

 

Note: this is not a comprehensive summary; it only relates to key developments impacting on victims’ rights within the ICC’s jurisdiction since mid-April 2007.

 

Situation in Central African Republic

  • Prosecutor opens investigation in the CAR

Darfur Situation

  • Judge Akua Kuenyehia is designated single judge for the Pre-Trial Chamber I
  • ICC issues first Darfur arrest warrants
  • Call for observations on victims’ applications in the Darfur situation.

DRC-Lubanga Case

  • Judge Sylvia Steiner is designated Single Judge for Pre Trial Chamber I
  • Proceedings still halted due to impasse on defence : duty counsel is assigned for Lubanga
  • The defence opposes the Prosecutor’s request to appeal the confirmation of charges decision
  • Defence criticises victims’ request to participate in the Appeal of the Confirmation of charges decision
  • The Pre Trial Chamber rejects both the Prosecutor and the Defence’s applications for leave to appeal the confirmation of charges decision
  • Call for observations on victims' applications in the DRC situation.

Uganda Situation and Cases

  • The Court finds the OPCV’s observations to be without legal basis

________________________________________________________________________

 

SITUATION IN CAR

Prosecutor opens investigation in the Central African Republic[1]

[Background] The CAR Government referred the situation to the Office of the Prosecutor on 22 December 2004. The Cour de Cassation, the country’s highest judicial body, confirmed that the national justice system was unable to carry out the complex proceedings necessary to investigate and prosecute the alleged crimes fulfilling the complementarity criteria of the Rome Statute. (Art 1 and 17)

On 22 May 2007, Luis Moreno Ocampo announced his decision to open an investigation in the Central African Republic. He indicated that grave crimes falling within the jurisdiction of the Court had been committed.

The preliminary evidence shows a peak of violence and criminality in 2002 and 2003. Civilians were killed and raped; homes and stores were looted. The alleged crimes occurred in the context of an armed conflict between the government and rebel forces. A noteworthy aspect of this investigation is that allegations of sexual crimes far outnumber alleged killings. Indeed, victims described “being raped in public; being attacked by multiple perpetrators; being raped in the presence of family members; and being abused in other ways if they resisted their attackers.” The focus on gender crimes such as rape is an important recognition of sexual violence crimes, which have been said to be mostly ignored in the previous investigations started by the OTP.

 

Situation in Darfur

 Judge Akua Kuenyehia is designated single judge for the Pre-Trial Chamber I in the Darfur situation and related cases.

On 10 May 2007, Judge Akua Kuenyehia was designated single judge of Pre Trial Chamber I for the situation in Darfur and any related cases including the Case of Prosecutor v. Ahmad Muhammad Harun ("Ahmad Harun") and AU Muhammad Al Abd-Al-Rahman ("Ali Kushayb").

ICC issues first Darfur arrest warrants[2]

[Background] The Pre-Trial Chamber I was seized of the Prosecution's Application for summonses to appear against Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman on 27 February 2007 pursuant to article 58(7) of the Statute in the investigation of the Situation in Darfur.

On 1st May 2007, Pre-Trial Chamber I issued arrest warrants for crimes against humanity and war crimes against Ahmad Muhammad Harun, former Minister of State for the Interior of the Government of Sudan and currently Minister of Humanitarian Affairs, and Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb"), a leader of the Militia/Janjaweed.

The arrest warrant for Ahmad Muhammad Harun lists 42 counts on the basis of his individual criminal responsibility (Articles 25(3)(b) and 25(3)(d) of the Rome Statute) including:

  • Twenty counts of crimes against humanity (murder – articles 7(1)(a) and 25(3)(d); persecution – articles 7(1)(h) and 25(3)(d); forcible transfer of population – articles 7(1)(d) and 25(3)(d); rape – articles 7(1)(g) and 25(3)(d); inhumane acts – articles 7(1)(k) and 25(3)(d); imprisonment or severe deprivation of liberty – articles 7(1)(e) and 25(3)(d); and torture – articles 7(1)(f)) and 25(3)(d); and
  • Twenty-two counts of war crimes (murder – articles 8(2)(c)(i) and 25(3)(d); attacks against the civilian population – articles 8(2)(e)(i) and 25(3)(d); destruction of property – articles 8(2)(e)(xii) and 25(3)(d); rape – articles 8(2)(e)(vi) and 25(3)(d); pillaging (articles 8(2)(e)(v) and 25(3)(d); and outrage upon personal dignity – articles 8(2)(c)(ii) and 25(3)(d)). 

The arrest warrant for Ali Kushayb lists 50 counts on the basis of his individual criminal responsibility (article 25(3)(a) and 25 (3)(d) of the Rome Statute) including:

  • Twenty-two counts of crimes against humanity (murder-article 7(1)(a); deportation or forcible transfer of population-article 7(1)(d); imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law-article 7(1)(e); tortures-article 7(1)(f); persecution-article 7(1)(h); inhumane acts of inflicting serious bodily injury and suffering - article 7(1)(k))
  • Twenty-eight counts of war crimes (violence to life and person - article 8(2)(c)(i); outrage upon personal dignity in particular humiliating and degrading treatment-article 8(2)(c)(ii); intentionally directing an attack against a civilian population – article 8(2)(e)(i); pillaging - article 8(2)(e)(v); rape-article 8(2)(e)(vi); destroying or seizing the property –article 8(2)(e)(xii)).

The Chamber also called on the Prosecution to transmit to the Chamber and Registry any information related to the potential risks that the transmission of the cooperation requests for the arrest and surrender of Harun and Kushayb might cause to victims and witnesses.

Call for observations on victims’ applications in the Darfur situation.[3]

On 23 May, the Court authorized the filling of observations regarding victims’ request to participate in the Darfur Situation. This follows the applications for participation in the proceedings of a/0011/06, a/0012/06,a/0013/06, a/0014/06 and a/0015/06, filed confidentially, ex parte on 27 June 2006.

As in the proceedings in Uganda and DRC, the Prosecutor and the Defence will now be able to submit their observations as to whether the applicants should be granted victims status. Both the Prosecutor and the Defence will be provided with copies of the applications. In the meantime no direct contact should occur between the organs of the Court and the victims in order to protect them. If necessary contact should only be made through their legal representative, the Victims Participation and Reparation Section (VPRS) or the Victims and Witnesses Unit (VWU).

 

Lubanga case/ DRC Situation

Judge Sylvia Steiner designated Single Judge of Pre Trial Chamber I

On 10 May 2007, Judge Sylvia Steiner was designated single judge of Pre Trial Chamber I in the DRC situation and any related cases including the Lubanga Case.

While main proceedings are still halted, a duty counsel was assigned for the appeals against the confirmation of charges[4] 

While Lubanga’s chosen counsel has still not accepted to take on the case, the court ruled that proceedings could not remain at a standstill owing to the non-appointment of counsel. It consequently appointed a duty counsel, Emmanuel Altit, with the specific mandate to respond to the OTP’s request to appeal the decision on the confirmation of charges.  Also, Annick Mongo was appointed as duty counsel with the specific mandate to respond to the Appeal Chamber’s directions (5 February 2007) and to the documentation supporting the “Defence submission on the scope of the right to appeal within the meaning of article 82 (1) (b) of the Statute » (7 February 2007).

On 21 May 2007, Maitre Mongo reiterated the Defence’s right to appeal a confirmation of charges decision on the basis that it effectively denied Lubanga’s release.

The defence opposes the Prosecutor’s request to appeal the confirmation of charges decision[5]

[Background] On 5 February 2007, the Prosecutor requested leave to appeal the PTC I decision on the basis that the Court had substituted “internal armed conflict” war crimes under art 8(2)(e)(vii) with “international armed conflict” war crimes under art 8(2)(b)(xxvii). The Prosecutor argued that qualifying the crimes committed before 6 June 2003 as committed in international armed conflict would affect the fairness of the Proceedings.

On 22 May, Lubanga opposed the Prosecution’s request for leave to appeal the confirmation of charges decision, claiming that it would delay the proceedings. 

On May 23, Maitre Altit (duty counsel for the Defence) filled his observations on the same matter.. He indicated that while the Chamber should have adjourned the session and asked the Prosecutor to modify the charges, the Prosecutor had been aware of  the Chamber’s position regarding the qualification of the conflict in DRC. Indeed, at an ex parte hearing the Chamber had expressly requested the Prosecutor to address the question of the nature of the armed conflict taking into account activities from Rwanda, Uganda and the decision from ICJ. Moreover, the Chamber also stated that it did not consider itself bound by the facts presented by the Prosecution and that there was reasonable ground to believe that the conflict in Ituri was international in nature.

Finally, the Defence argued that the Prosecutor had other possibilities to change the charges, and that the Trial Chamber, while bound by the facts and circumstances described in the charges, was not bound by their qualification by the Pre trial Chamber.

Lubanga’s new defence counsel challenges victims’ ability to participate in each phase of the proceedings[6]

In its response to victims’ applications to participate in the appeal  against the confirmation of charges, Maitre Mongo expressed concerns over the generalised nature of victims’ requests to participate in all stages. She warned the chambers against an attempt from victims to intervene as third parties in the proceedings, a status she indicated, which is not granted under the Rome Statute.  She went on to explain that victims’ interest could only mean reparations and as reparations only occur at the trial stage, no “victim interest” could justify victims’ participation at the Pre Trial stage even less in an Appeal at the Pre Trial stage.  She also argued that victims’ participation at that stage delayed procedures and put an additional burden on an already understaffed defence team.

The Pre Trial Chamber rejects both the Prosecutor and Defence’s requests to appeal the confirmation of charges. [7]

On 24 May, Pre Trial Chamber I rejected both the Prosecutor and Defence’s requests to appeal the confirmation of charges. The Court indicated that the statute intentionally excluded a direct right to appeal decisions confirming charges. The Chamber also reiterated that authorizing the appeal would cause avoidable delay affecting the rights of the accused. The Chamber recalled the Defence’s argument that the characterization of the conflict as international had been mentioned earlier in the procedure giving all participants time to present observations.

Call for observations on victims' applications in the DRC situation.[8]

On 23 May, the Court authorized the Parties to file observations regarding victims’ applications to participate in the DRC Situation. This follows the applications for victim status in the proceedings of a/0106/06 on 7 December 2006; of a/0107/06, a/0108/06, a/0109/06, a/0110/06 on 16 October 2006; of a/0188/06 on 21 March 2007; of a/0128/06 to a/0162/06, a/0199/06, a/0203/06, a/0209/06 and a/0214/06 on 11 April 2007; of a/0220/06 to a/0222/06, a/0224/06, a/0227/06 to a/0230/06, a/0234/06 to a/0236/06 and a/0240/06 on 23 April 2007; and of a/0225/06, a/0226/06, a/0231/06 a a/0233/06, a/0237/06 a a/0239/06 et a/0241/06 to a/0250/06 on 25 April 2007. 

Both the Prosecutor and the Office for Public Counsel to the Defence will be provided with copies of the applications. In the meantime no direct contact should occur between the organs of the Court and the victims in order to protect them. If contact was necessary, it should only be made through their legal representative, the Victims Participation and Reparation Section (VPRS) or the Victims and Witnesses Unit (WVU).

 

Uganda Situation/cases

The Court found that OPCV’s observations had no legal basis.[9]

[Background] On 26 March, the OPCV submitted observations on victims’ applications (See April legal update). On 29 March, it also indicated that victims should have a right to be heard regarding the OTP’s request to vary protective measures. Both the OTP and the Defence made submissions arguing that by presenting its observations the OPCV had exceeded its mandate.

On 16 April 2007, the Court specified that the role of the OPCV was to "provide support and assistance to the legal representative of victims and to victims, including, where appropriate: a) legal research and advice; and b) appearing before a Chamber in respect of specific issues." The Chamber reiterated that the 1 February decision tasked OPCV with "(i) providing the applicants with any legal advice related to their applications", and to provide "any advice to supplement, if need be, their request" and(ii) "explaining to the applicants the procedure before a decision on the application is taken by the relevant Chamber; and, more in general... explaining their general rights as potential victims in a proceeding before the Court."

However, the Court highlighted that the decision explicitly excluded the Office from acting as the legal representative of the applicant victims and that OPCV was to refrain from taking any initiatives vis-à-vis the Chamber without seeking authorisation first. The Court dismissed the OPCV’s observations.

 
 

The Victims' Rights Working Group (VRWG) is a network of over 200 civil society groups and individual experts created in 1997 under the auspices of the NGO Coalition for an International Criminal Court. Affiliated organisations include NGOs from Uganda, DRC and Sudan as well as international NGOs. The VRWG works to ensure that victims’ rights are effectively protected and respected, and that their needs and concerns are met throughout the judicial process of the ICC. Particular attention is paid to the need to ensure that the Court will render not only retributive, but also restorative justice, that will aim, inter alia, to prevent re-victimization, to break cycles of violence and war, and to provide reparations and rehabilitation for victims. The VRWG advocates for fair and effective structures and procedures at the Court to facilitate victims' full and active participation. For a list of affiliated organisations see our website See http://www.vrwg.org

 


 

 

 

 

 

 

 

 

 

[1] ICC Press Release, Prosecutor opens investigation in the Central African Republic,  ICC-OTP-PR-20070522-220, 22 May 2007, http://www.icc-cpi.int/menus/icc/press%20and%20media/press%20releases/2007/prosecutor%20opens%20investigation%20in%20the%20central%20african%20republic

[3] Decision authorising the filing of observations on applications for  participation in the proceedings a/0011/06 to a/0015/06 ICC-02/05-74, 23 May 2007, http://www.icc-cpi.int/NR/exeres/4CA91FDC-19CE-4374-B87B-B8CDE6F5AEFE.htm

[4] Appointment of Duty Counsel ICC-01/04-01/06-870, 19 April 2007, http://www.icc-cpi.int/iccdocs/doc/doc259593.PDF

[5] Réponse à la Requête du Procureur du 5 février 2007 en autorisation  d'interjeter appel de la Décision de la Chambre préliminaire Idu 29 janvier 2007 ICC-01/04-01/06-913 (French), 22 May 2007, http://www.icc-cpi.int/NR/exeres/D340E22C-4504-4A28-9C04-FBC13E29344D.htm

[6] Réponse à la demande des victimes a/0001/06, a/0002/06, a/0003/06 et a/0105/06 d'autorisation de participation à la procédure en appel dela décision de confirmation des charges ICC-01/04-01/06-901 (French), 11 May 2007, http://www.icc-cpi.int/NR/exeres/18623331-4A19-4B0D-B55E-E8C1F279A938.htm

[7] Decision on the Prosecution and Defence applications for leave to appeal the Decision on the confirmation of charges ICC-01/04-01/06-915, 24 May 2007, http://www.icc-cpi.int/NR/exeres/2D84F4E2-8281-4E16-97E9-6607104460EB.htm

[8] Décision autorisant le dépôt d'observations sur les demandes de  participation à la procedure ICC-01/04-329, 23 May 2007, http://www.icc-cpi.int/iccdocs/doc/doc281271.PDF

[9] Decision on the OPCV's observations on victims' applications and onthe Prosecution's objection thereto ICC-02/04-01/05-243,  16 April 2007, http://www.icc-cpi.int/NR/exeres/ 9068F571-5793-4868-AA74-E7CD3AF1E486.htm