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LEGAL UPDATE May 2009
Past issues of the Legal Update
ICC Victims’ Rights Legal Update
April - 31 May 2009
DRC situation
Developments in ongoing Lubanga Trial
- Victims request Chamber to requalify facts in Lubanga charges: to include inhuman treatment and sexual slavery
- Use of names problematic in DRC, experts are called to the Court
- Appointment of the OPCV as victim representative
- Annexes to the 15 December decision granting victim status now available online
- 7 new victims’ applications for participation are transmitted to the parties
- Witnesses questioning by victims’ representatives
- Victims’ representative filed an application for three 3 victims to appear in person
Katanga and Ngudjolo Case
- Trial will start on 24 September 2009, as decided by Trial Chamber II[1]
- Temporary appointment of Judge Hans-Peter Kaul to the Trial Division
- Observations requested by the Chamber on victim’s participation
- Public hearing will be hold on 1 June 2009 regarding the admissibility of the case
- Appointment of victims’ representatives
Uganda situation:
Joseph Kony, Vincent Otti, Okot Odhiambo & Dominic Ongwen Case
Sudan situation:
Abu Garda Case
DRC Situation
Developments in ongoing Lubanga Trial
Victims request Chamber to requalify facts in Lubanga charges: to include inhuman treatment and sexual slavery
On the 22 May 2009, a joint request made by victim’s representatives was submitted to Trial Chamber I, to change the characterization of the facts described in charges against Lubanga.[2] Under regulation 55 of the Regulation of the Court entitled “Authority of the Chamber to modify the legal characterization of facts”, victims’ lawyers want inhuman treatment and sexual slavery to be included.[3]
Use of names problematic in DRC, experts are called to the Court
On 20 March 2009, victim’s lawyers submitted an analysis on the use of names in DRC, proposing 2 experts.[4]
As requested by Trial Chamber I at the 19 May hearing, the defence, Prosecutor and victims’ representatives submitted questions for the experts before 25 May. The experts will take these into account in writing their reports to the Chamber.[5]
Appointment of OPCV as victim representative
On 15 May 2009, Trial Chamber I appointed OPCV to represent applicant a/0523/08, after consulting with the Registry and OPCV itself. It appeared that the applicant did not have representation, and will be represented by OPCV until his status is confirmed or until another representative is appointed[6].
Annexes to the 15 December decision now available online[7]
Since 8 May 2009, public redacted annexes to the decisions of 15 and 18 December 2008, granting victims standing to 91 applicants, were put online.[8] The French version of the decision is still not available.
7 new victims’ applications for participation are transmitted to the parties
On 12 May 2009, following the Chamber’s oral decision of 8 May 2009, VPRS frowarded 7 new victim applications in the Lubanga case (a/0523/08, a/0523/08, a/0609/08, a/0610/08, a/0611/08, a/0053/09, a/0060/09 and a/0249/09) to the Prosecutor and the defence.[9] Unlike the Katanga and Ngudjolo case, where a deadline was imposed for victims to apply, in the Lubanga case, the Chamber indicated that it would consider applications on an ongoing basis during Trial.
The Prosecutor submitted his observations on 15 May,[10] recommending that the applicants be granted victims status except for two.[11] On 18 May victim’s representatives already participating[12] they asked the Chamber to order VPRS to give them access to the 7 new applications, invoking that by notifying only the Prosecutor and the Defence, VPRS did not comply with the Chamber’s 8 May oral decision to supply documents to all parties.[13] Legal representatives recall at the same time that they need access to all documents pertaining to their clients’ interests, as set by the Chamber in its decision on victims’ participation on 18 January 2008.[14] They invoked principle 21 of the Basic principles on the role of lawyers[15] and European Court of Human rights’ decisions.[16]
Victims’ representatives question witnesses
On 18 May, victims’ lawyers submitted joint observations on interrogating witnesses[17] and asked the Chamber to confirm that they have the same rights and obligations as other parties, as indicated by the Chamber ‘s 8 May oral decision.[18]
This issue was brought to the Chamber because the defence objected to the victims’ representatives questioning witnesses at the 6 May hearing.[19] It appears from this hearing that victims’ representatives cannot ask leading questions.
Victims’ representative filed an application for three 3 victims to appear in person[20]
In an oral decision on 8 May, Judge Fulford asked a victims’ representative to provide supplementary information about a request for 3 victims to appear before the Chamber in person (filed confidentially). The Judge set 18 May as the deadline for providing this supplementary information and 22 May for the parties should they wish to file further responses.
The Katanga and Ngudjolo Case
Trial will start on 24 September 2009
Given that all the participants had agreed on the date, no postponements will be authorized except where good reasons can be offered.[21] The Chamber noted that it had taken several factors into consideration in setting the date, including observations by all participants on a variety of procedural issues including the time needed for disclosure of incriminating and exculpatory evidence by the Prosecutor, as well as the time needed by the Defence to adequately prepare its case.
Temporary appointment of Judge Hans-Peter Kaul to the Trial Division[22]
On 29 April, following the passingof Judge Fumiko Saiga on 24 April 2009,[23] the Presidency decided to attach Judge Hans-Peter Kaul (currently assigned to the Pre-trial division) to Trial Chamber II. Judge Kaul will replace Judge Saiga in with immediate effect and Trial Chamber II shall therefore be composed as follows: Judge Fatoumata Dembele Diarra (Mali), Judge Hans-Peter Kaul (Germany) and Judge Bruno Cotte (France).
Observations requested by the Chamber on victim’s participation
On 4 May, the Chamber asked the defence and the Prosecutor to submit their observations on 97 victims’ applications for participations as victims in the case.[24] The Prosecution submitted its observations on 15 May,[25] asking the Chamber to grant victim status to 89 applicants at Trial. The Prosecutor suggested that one applicant needed to submit more information; as for the other seven, they submitted applications on behalf of their deceased relatives, an issue which has not been ruled upon yet.[26] The defence has until 2 June to submit its observations. The victims’ representatives have to present additional information for their applications to be complete before 29 May.[27]
Public hearing will be held on 1 June 2009 regarding the admissibility of the case
On 22 may 2009, Trial Chamber II scheduled a public hearing[28] to discuss the challenge of admissibility brought by the defence on the 10 February 2009 and subsequent observations received from the Prosecutor on 19 March and from victims’ representatives on 16 April.[29] The defence challenged the admissibility of the case before the Court, arguing that it does not have jurisdiction under articles 17 and 19(2) of the Rome Statute due to alleged pending proceedings in DRC.[30] The chamber ordered this hearing and asked DRC authorities to be present, which they accepted through an email to the Registry.
Appointment of victims’ representatives
On 7 May, OPCV was appointed to represent applicants a/0158/09, a/0163/09 to a/0169/09, a/0202/09, a/0203/09, a/0205/09, a/0206/09, a/0207/09, a/0233/09, a/0250/09 to a/0253/09 and a/0255/09 to a/0257/09.[31] This follows the 26 February 2009 decision[32] whereby the Chamber ordered OPCV to represent applicants until they appoint a representative for themselves.
OPCV will also represent applicants a/0279/09 to a/0286/09, a/0288/09, a/0290/09, a/0291/09, 0/0297/09, 0/0305/09, a/0308/09, a/0309/09, as per their appointment on 15 May.[33]
On 7 May Maitre Diakese and Maitre Malumba were set to represent the interests of applicants a/0140/08, a/0142/08, a/0145/08, a/0155/08, a/0210/08, a/0212/08 to a/0214/08, a/0216/08, a/0281/08, a/0282/08, a/0527/08, a/0067/09, a/0068/09 to a/0081/09, a/0083/09 to a/0086/09, a/0113/09, a/0115/09, a/0116/09, a/0118/09, a/0119/09, a/0122/09, a/0123/09, a/0124/09, a/0125/09 to a/0128/09, following consent given by applicants. [34]
Uganda Situation:
Joseph Kony, Vincent Otti, Okot Odhiambo & Dominic Ongwen Case
On 29 April, noting the passing of Judge Fumiko Saiga on 24 April 2009, the Presidency decided to re constitute Pre-trial Chamber II,[35] as follows, with immediate effect: Judge Hans-Peter Kaul (Germany), Judge Ekaterina Trendafilova (Bulgaria),[36] and Judge Cuno Tarfusser (Italy).
Darfur Situation:
Abu Garda Case
The Pre-Trial Chamber I issued a summons to appear for Bahr Idriss Abu Garda suspected of having committed war crimes in Darfur, Sudan. The Chamber’s decision was issued under seal on 7 May 2009; the seal was lifted on Monday 18 May 2009.[37] Judge Cuno Tarfusser set the date for the beginning of the confirmation of charges hearing for Monday, 12 October 2009.
Abu Garda arrived voluntarily in The Netherlands. The Judges were satisfied that Abu Garda would appear before the Court in October without the need to remand him in custody.
Abu Garda is a member of the Zaghawa tribe, he is charged with three war crimes allegedly committed during an attack carried out on 29 September 2007 against the African Union peace-keeping mission in Sudan (AMIS), stationed at the Military Group Site Haskanita, Umm Kadada locality, North Darfur. During this attack twelve AMIS soldiers were allegedly killed and eight others were severely wounded.
Pre-Trial Chamber I composed of presiding Judge Sylvia Steiner (Brazil), Judge Sanji Mmasenono Monageng (Botswana), and Judge Cuno Tarfusser (Italy) considered that there are reasonable grounds to believe that Abu Garda is criminally responsible for the following war crimes:
- Violence to life in the form of murder, intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission, an pillaging within the meaning of article 8(2) (e) (v) of the Statute.
This case is the third in the Darfur situation after the cases of The Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), and The Prosecutor v. Omar Hassan Ahmad Al Bashir. The three suspects (Al Bashir, Harun and Kushayb) remain at large.
Further summonses or arrest warrants planned
Pre-Trial Chamber I is also examining the Prosecutor’s Application, submitted on 20 November 2008, for the issuance of further Warrants of Arrest or, alternatively, summonses to appear for two other individuals who allegedly participated in the attack at MGS Haskanita.[38]
