LEGAL UPDATE May 2009

ICC Victims’ Rights Legal Update

May - June 2009

(pdf version)

DRC Situation

Lubanga case

The Prosecutor comments on victims’ request to recharacterize facts contained in charges
OPCV is appointed as legal representative of victim a/0053/09
Trial Chamber I gives instructions to expert on names in DRC
Victims representatives submit questions for Garreton’ deposition before the Court
The defense submits its observations on the 7 new victims’ participation applications

Katanga case

Trial Chamber II dismisses Defense’s challenge to admissibility
Victims and the Prosecutor explain the need for Ngudjolo Chui to stay in detention
The Prosecutor presents its observations on 87 applications for participation in the proceedings
Trial Chamber II request the parties to submit interpretations of Regulation 42 on Protective measures for witness
The Prosecutor presents its observations on 86 applications for participation in the proceedings

Central African Republic situation

Bemba case

Pre-Trial Chamber II rejects an Amicus curiae for observations
Pre-Trial Chamber II confirms two counts of crimes against humanity and three counts of war crimes, sending Bemba to trial

Uganda Situation

Kony case

OPCV opposes the defence’s request to appeal the decision recognizing the admissibility of the case

Sudan Situation

Abu Garda case

Pre-Trial Chamber I rejects VPRS’ request on issues relating to victims applications

Al-Bashir case

Pre-Trial Chamber 1 partly granted the Prosecutor’s request for leave to appeal the Arrest Warrant decision of 4 March 2009 against President Al

DRC Situation Lubanga case

The Prosecutor comments on victims’ request to recharacterize facts contained in charges

On 22 May 2009, victims’ representatives and OPCV filed a Joint Application to recharacterize the facts contained in the charges against Lubanga pursuant to Regulation 55, to include sexual slavery and inhuman treatment.1 On 12 June, as requested by the Chamber, the Prosecutor submitted further observations regarding the motion.

He did not oppose the ability of the legal representatives to propose re-characterization and claimed that it was up to the Chamber to make a determination on this matter and thus trigger regulation 55’s procedure.2 He would submit his observations on the merits, if and when the Chamber decided to trigger a re-characterization.

The Prosecutor submitted that in the event that the Chamber rejects the motion, and if Lubanga were found guilty, the Prosecutor might consider evidence of sexual slavery and inhuman treatment when determining the appropriate sentence.

On 19 June, the defense opposed this motion considering the application inadmissible and unfounded based on the following reasons:3

Regulation 55 does not authorize adding additional charges not included in the confirmation of charges
Facts presented as likely to receive the qualifications of sexual slavery and inhuman/cruel or degrading treatment, exceed the "facts and circumstances” described in the charges
It is a breach of the rights of the

Having been allowed to respond to the defense’s observations, victims’ representatives filed observations on 26 June 2009,4 arguing that sexual slavery and inhuman or cruel treatment are not additional facts but are meant to add supplementary details to the charges already confirmed and so asked the Chamber to trigger regulation 55’s procedure.

A decision is still pending.

OPCV is appointed as legal representative of victim a/0053/09

On 29 May, Trial Chamber I assigned OPCV as legal representative of victim a/0053/09.5 As the applicant did not have representation he will be represented by OPCV until his status is confirmed or until another representative is appointed.

Trial Chamber I gives instructions to expert on names in DRC

On 5 June Trial Chamber I requested the expert on names to submit a report no later than 3 July 2009. Taking into account civil status and registration, names, family and date of birth.6

Victims’ representatives submit questions for Mr. Garreton’ deposition before the Court

Mr. Roberto Garreton, former UN special rapporteur for DRC, was called as an expert witness and on 28 January submitted a report providing the background to the conflict in Ituri.7 He testified before the Court in June. Victims’ representatives were asked by the Chamber to present questions and issues they want to ask him after his deposition,8 in accordance with the witnesses’ interrogation procedure. The representatives of victims were able to question him during his appearance at the court.

The defense submits its observations on the 7 new victim participation applications

As requested by the Chamber in its 8 May oral decision,9 the defense received redacted versions of the 7 new applications and presented its observations on 15 June 2009.10 The defense argued that the applications do not fulfill the requirements set by Rule 85 on victims’ participation before the Court and that redactions for some of them prevent the defense to have a good overview of those applications.11

Katanga and Ngudjolo case

Trial Chamber II dismisses Defense’s challenge to admissibility

On 12 June 2009, Trial Chamber II held a public hearing to deliver a decision on the Defence motion challenging the admissibility of his case on the basis that the DRC was able to prosecute it itself.12 The Chamber held that the challenge, which relied on article 17(1) of the Rome Statute and was filed after the confirmation of charges, was inadmissible because 1) the arrest warrant was by no way flawed and 2) the DRC was unwilling to prosecute the case.13

This is the first time that the ICC had an opportunity to consider such a challenge to admissibility based on the complementarity principle under which the ICC can only exercises its jurisdiction where the State Party of which the accused is a national, is unable or unwilling to prosecute, making the ICC a Court of last resort.

Victims and the Prosecutor explain the need for Ngudjolo Chui to stay in detention

On 5 June 2009 the Chamber asked victims’ representatives and the Prosecutor to submit observations about Ngudjolo Chui’s custody in The Hague. Pursuant to Article 60(3) of the Statute and Rule 118(2), the decision to keep him in detention must be reviewed at least every 120 days.14 On 12 June, the victims’ representatives and the Prosecutor submitted their observations to the Chamber on his continued detention.15

Both argued that he should remain in detention considering the support he has from a large number of networks in Ituri and Kinshasa and the powerful contacts he has in DRC and abroad which could enable him to escape justice. The extreme gravity of the crimes committed as well as victims’ safety in DRC were also mentioned.

On 29 June 2009, the same process occurred for Katanga’s detention. Trial Chamber II asked the parties to submit their observations on his continued detention, for the same reasons detailed below.16

The Prosecutor presents its observations on 87 applications for participation in the proceedings

On 2 June 2009, as requested by Trial Chamber II,17 the Prosecutor presented his observations on 87 victims’ applications for participation.18 The Prosecutor asked the Chamber to grant victim status to all of them except for applicant a/0157/09, as he allegedly did not satisfy the criteria set by Rule 85.

Trial Chamber II requests the parties to submit interpretations of Regulation 42 on Protective measures for witnesses

On 12 June 2009, Trial Chamber II asked all parties to render observations on their interpretations of Regulation 42 of the Regulations of the Court,19 as this was brought before it by OPCV regarding protective measures for one of their witnesses. The question was to know if protective measures ordered in any proceedings in respect of a victim or witness will continue to have full force and effect in relation to any other proceedings before the Court and will continue after proceedings have been concluded.

OPCV indicated that Regulation 42 should be read in light of the Rome Statute and the Rules of Procedure and Evidence providing a general duty to protect witnesses, victims and others at risk. OPCV also said that the first paragraph of the provision should be read in conjunction with the other ones, providing a clear procedure to follow in case of changes or modifications of protective measures.

Victims’ representatives, confirmed OPCV observations and added that once protective measures are granted they should continue to apply to any proceedings before the Court.20

As for the defence, they submitted their observations on 19 June.21 They argued that Regulation 42 is not meant to automatically order protective measures already taken in a different or earlier decision or to cancel the Chamber

power to order or refuse them while dealing with the case under review.

On 24 June, the Prosecutor submitted its observations,22 and argued that Reg. 42 must be interpreted to cover all protective measures envisaged by the Statute and Rules.

These measures must be applied in subsequent legal proceedings. Any variations must be justified, with the consent of the victim or witness subject to those measures where possible, and not diminishing protection where still required.

The Prosecutor presents its observations on 86 applications for participation in the proceedings

On 24 June 2009, the Prosecutor submitted his observations regarding 86 victims’ applications for participation in the case. He asks the Chamber to grant victim status to 85 of them, as they fulfill the criteria set out in Rule 85 and requests the Chamber to order the last one to submit more information in order to link his/her application to the crimes.23

Central African Republic situation Bemba case

Pre- Trial Chamber II rejects a request to present Amicus curiae observations

On 29 May 2009, Judge Ekaterina Trendafilova, acting as Single Judge on behalf of Pre-Trial Chamber II, refused the request of association “Aprodec asbl” for leave to submit Amicus Curiae observations24 under Rule 103. The Single judge indicated that “at this advanced stage, the submission is not desirable for the proper determination of the

Case”.25

Pre-Trial Chamber II confirms two counts of crimes against humanity and three counts of war crimes, sending Bemba to trial

On 15 June 2009, Pre-Trial Chamber II confirmed some of the charges brought by the Prosecutor against Jean-Pierre Bemba for crimes committed on the territory of the Central African Republic from on or about 26 October 2002 to 15 March 2003.26 It found that there is sufficient evidence to establish that Jean-Pierre Bemba is criminally responsible as a person effectively acting as military commander within the meaning of article 28(a) of the Statute for:

Murder constituting a crime against humanity;
Rape constituting a crime against humanity ;
Murder constituting a war crime;
Rape constituting a war crime ;
Pillaging constituting a war 27

It is the first time that a military commander is held personally responsible for sexual violence committed by its subordinates, simply because he knew or should have known.

However, Pre-Trial Chamber declined to confirm that Bemba was "criminally responsible" for torture and outrages upon personal dignity. Indeed, the Chamber argued that the Prosecutor used a cumulative charging approach by characterizing the same acts of rape under the count of rape and the count of torture and that cumulative charging is detrimental to the rights of the Defence since it places an undue burden on it.

As for torture as a crime against humanity, other than acts of rape, the Chamber is of the view that in the amended Document Containing the Charges, the Prosecutor did not detail material facts of torture other than acts of rape. As a consequence Mr. Bemba would not be in a position to properly identify the facts underpinning the act(s) of torture and adequately prepare his defence. The same reasoning was advanced for torture as a war crime, where the Prosecutor did not discharge his duty to present evidence in relation to each legal requirement of the crime, in this case the particular intent required for torture as a war crime. The Chamber advanced that the Prosecutor did not specify the facts upon which he based the charge of outrages upon personal dignity as a war crime.

Background: The confirmation of charges hearing took place before Pre-Trial Chamber II, from 12 to 15 January 2009. Jean-Pierre Bemba Gombo, national of the DRC, President and Commander-in-Chief of the Mouvement de Libération du Congo (MLC), was arrested on 24 May 2008, by the Belgian authorities following the Court's arrest warrant. He was surrendered and transferred to the ICC on 3 July.

On 22 June 2009, the Prosecutor sought leave to appeal this decision on two grounds.28 On the first hand, he argues that the power of the PTC is either to confirm charges it found “sufficiently proven” or to decline to confirm those charges because there was not sufficient evidence. Consequently, nothing in the Statute authorized the Chamber to decline to confirm a charge because it considers the charge to be unnecessary or unduly burdensome to the Defence. On the second hand, he states that failure to confirm the charges would mean that serious charges would not go to trial and this will affect the fairness of the trial and the proceedings “vis-à-vis victims who suffered from heinous crimes and will be denied the chance to have the full range of their suffering and victimization reflected”.

On 26 June 2009, OPCV replied to the Prosecutor request to appeal the confirmation of charges hearing decision, and asks the Chamber to allow the application for appeal submitted by the Office of the Prosecutor. 29

OPCV emphasizes the impact that non recognition of some charges would have on victims, in particular the fact that rejecting cumulative charging at this stage would exclude a lot of victims from the proceedings.

Uganda situation

Joseph Kony, Vincent Otti, Okot Odhiambo & Dominic Ongwen Case

OPCV opposes the defence’s request to appeal the decision recognizing the admissibility of the case

On 28 May 2009, in compliance with the Chamber’s decision dated 8 April 2009,30 OPCV presented its observations31 on the defence’s re-filed application to challenge the admissibility of the case under article 19 of the Statute. OPCV argued that the appeal does not fulfill the requirements of article 82(1) (a) and as such should be dismissed in limine without any need to address the merits of the four grounds of appeal presented by the defence. 32 The same view was

supported by the Prosecutor.

Background: Following a challenge to the admissibility filed on 18 November 2008 and the submission of an amicus curiae by the Uganda Victims Foundation and REDRESS on 3 November 2008, on 10 March, Pre-Trial Chamber II decided that the case was admissible. The defence sought to appeal this decision on 16 March, submitting a

document in support of the said appeal on 30 March. The Prosecutor presented its observations on the appeal on 7 May 2009.33

Sudan situation Abu Garda case

Pre-Trial Chamber I rejects VPRS’ request on issues relating to victims applications

The Registry and its Victim Participation and Reparations Section (VPRS) made an exceptional request to be authorized to transmit the victims Applications to OPCV, with a view to having OPCV provide legal assistance to the applicants or, alternatively, to appoint the OPCV as legal representative of the applicants "until their status is determined or another legal representative is appointed”. Single Judge Cuno Tarfusser, (Pre-Trial Chamber I) rejected the request stating that “the steps envisaged by VPRS in respect of the applications fall squarely within the mandate of the Registry, in particular of VPRS" and recalls that OPCV is to give legal support and legal advice but not to

replace VPRS.34 He then orders VPRS to take all steps which might be necessary and appropriate for the applications to be completed and transmitted to the Chamber as soon as feasible.

Al Bashir case

Pre-Trial Chamber I partly grants the Prosecutor’s request for leave to appeal the Arrest Warrant decision of 4 March 2009 against President Al

On 10 March 2009, the Prosecutor had requested to be granted leave to appeal the arrest warrant decision, in relation to 3 issues.35 PTC 1 granted leave to appeal only in relation to the first issue, i.e.: "Whether the correct standard of proof in the context of Article 58 required that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court".36

In its 10 March application, the OTP had submitted that with respect to the three counts of genocide rejected by the majority of Pre-Trial Chamber in the Arrest Warrant decision, the majority of the judges applied the wrong legal test when assessing if there were reasonable grounds to believe that Bashir committed genocide. First of all, the Prosecutor argued that the judges imposed an evidentiary burden that was inappropriate for the early procedural stage and then that they erred in requiring that the only conclusion to draw from the evidence be that there are reasonable grounds to believe in the existence of genocidal intent based on the approach that ,when using inferred evidence to establish a suspect's specific intent to commit genocide, the evidence must show that the genocidal intent is the only reasonable inference that may be drawn from it.

The second and third issues were not admitted for appeal, respectively that the majority of the judges considered extraneous factors when assessing the existence of reasonable grounds to establish genocidal intent and failed to properly consider critical evidence adduced by the Prosecution when assessing the existence of reasonable grounds to establish genocidal intent.

1 http://www.icc-cpi.int/iccdocs/doc/doc692081.pdf

2 http://www.icc-cpi.int/iccdocs/doc/doc698842.pdf

3 http://www.icc-cpi.int/iccdocs/doc/doc701039.PDF

4 http://www2.icc-cpi.int/iccdocs/doc/doc703125.pdf

5 http://www.icc-cpi.int/iccdocs/doc/doc694509.PDF

6 http://www.icc-cpi.int/iccdocs/doc/doc696428.pdf (French version available)

7 http://www.icc-cpi.int/iccdocs/doc/doc634688.pdf

8 Respectively http://www.icc-cpi.int/iccdocs/doc/doc697000.pdf and http://www.icc-cpi.int/iccdocs/doc/doc697638.pdf

9 See the transcript of the hearing held on 8 May 2009, No. lCC-Ol/04-0l/06-T-I71-ENG RT, p. 44. http://www2.icc- cpi.int/iccdocs/doc/doc691873.pdf

10 http://www.icc-cpi.int/iccdocs/doc/doc699925.pdf

11 For more details about Rule 85: http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3C-B9A7- B3E8B115E886/140164/Rules_of_procedure_and_Evidence_English.pdf

12 For more details about the motion, see the previous legal update for May 2009.

http://www.vrwg.org/Publications/01/2009%20May%20Legal%20Update.pdf It had been submitted on 10 February 2009, and a redacted version was made public on 11 March 2009 (see http://www.icc-cpi.int/iccdocs/doc/doc642392.pdf)

13 The full transcript of the hearing : http://www.icc-cpi.int/iccdocs/doc/doc698727.pdf and a substantive summary of reasons for the decision is now available online but only in French : http://www.icc-cpi.int/iccdocs/doc/doc700134.pdf

14 http://www.icc-cpi.int/iccdocs/doc/doc696389.pdf

15 Respectively http://www.icc-cpi.int/iccdocs/doc/doc698745.pdf and http://www.icc-cpi.int/iccdocs/doc/doc698853.pdf

16 http://www.icc-cpi.int/iccdocs/doc/doc703741.pdf

17 On 19 May 2009, ICC-01/04-01/07-1151, p. 6.

18 The request for leave to file the amicus was filed on 25 May 2005: http://www.icc-cpi.int/iccdocs/doc/doc695484.pdf

19 Respectively the decision: http://www.icc-cpi.int/iccdocs/doc/doc698864.pdf and the Regulation 42 http://www.icc- cpi.int/NR/rdonlyres/B920AD62-DF49-4010-8907-E0D8CC61EBA4/277527/Regulations_of_the_Court_170604EN.pdf

20 Respectively OPCV observations: http://www.icc-cpi.int/iccdocs/doc/doc701081.PDF and Victims’ representatives observations: http://www.icc- cpi.int/iccdocs/doc/doc701051.pdf

21 http://www.icc-cpi.int/iccdocs/doc/doc700962.pdf

22 http://www.icc-cpi.int/iccdocs/doc/doc702301.pdf

23 http://www.icc-cpi.int/iccdocs/doc/doc702339.pdf

24 http://www2.icc-cpi.int/iccdocs/doc/doc696053.pdf

25 http://www.icc-cpi.int/iccdocs/doc/doc693288.pdf

26 http://www.icc-cpi.int/iccdocs/doc/doc699541.pdf

27 Respectively article 7(1)(a), article 7(1)(g), article 8(2)(c)(i), article 8(2)(e)(vi)

28 http://www.icc-cpi.int/iccdocs/doc/doc701573.pdf 29http://www.icc-cpi.int/iccdocs/doc/doc703270.pdf

30 http://www.icc-cpi.int/iccdocs/doc/doc663604.PDF

31 OPCV’s observations: http://www.icc-cpi.int/iccdocs/doc/doc694067.pdf.

32 For more details on the four grounds of appeal: http://www.icc-cpi.int/iccdocs/doc/doc652384.pdf

33 Respectively http://www.icc-cpi.int/iccdocs/doc/doc641259.pdf , http://www2.icc-cpi.int/iccdocs/doc/doc657157.PDF and http://www.icc- cpi.int/iccdocs/doc/doc677092.pdf