LEGAL UPDATE May-June 2010

Past issues of the Legal Update

ICC Victims’ Rights Legal Update

May-June 2010

(pdf version)

DRC situation

Developments in the ongoing Lubanga Trial

• Intermediaries’ identities to be disclosed to the Defence on a case-by-case basis
• 12 new reparations forms notified to the Defence
• 15 new victims apply for participation
• Victims request review into Prosecution’s decision not to investigate Bemba’s crimes in DRC

Developments in the ongoing Katanga and Ngudjolo Trial

• Victims allowed to participate in the Appeal against the Decision on the Modalities of Victim Participation at Trial
• Debate on the submission of additional information related to victims’ participation requests
• Defence request to review practice of closed session hearings
• Protocol on the modalities for contacting victims by another party

Situation in Central African Republic

Developments in the ongoing Bemba Case

• Victims’ Legal Representatives support Prosecution’s request regarding non-public material in Defence investigations  
• Modalities of victims’ participation are set and an additional 32 applicants granted victim status
• TCIII rejects admissibility and abuse of process challenges

Situation in Darfur, Sudan

Developments in the ongoing Harun and Kushayb Case

• Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan
• Six victims to participate in both the Bashir and Harun/Kushayb pre-trial proceedings

Developments in the ongoing Al Bashir Case

• Application to participate as amici curiae in genocide charges application
• Prosecution opposes 8 applications for victim participation

Commencement of the Banda and Jerbo Case

• Banda and Jerbo appear before the Court

DRC situation

Developments in the ongoing Lubanga Trial

Intermediaries’ identities to be disclosed to the Defence on a case-by-case basis:

[Background] On 19 March 2010 the Prosecution proposed a strategy to provide the Chamber with necessary information without exposing intermediaries’ identities or endangering the Office of the Prosecutor’s (OTP) activities.[1] This was opposed by the Defence.[2]

On 31 May 2010, Trial Chamber I (TCI) ruled against the Prosecution’s strategy as follows:[3]

-       Although ex parte hearings are permitted under the Rules, to exclude the Defence would be unfair to the accused;

-       The disclosure threshold to the Defence would be whether there were grounds to suspect that intermediaries had been in contact with witnesses who had given incriminating evidence;

-       The Chamber would deal with each intermediary on a case-by-case basis, and in the event of disclosure would ensure protective measures for intermediaries and their families.

Consequently, the Chamber required that two intermediaries against whom allegations of abuse of process had been made be called to testify order to investigate allegations; it also required that an appropriate representative from OTP testify on the way intermediaries were used. Finally, a schedule setting out information on the professional backgrounds of intermediaries and known contact networks between intermediaries and witnesses, including dates of meetings between them, was to be provided.[4]

The Prosecution made a private application to appeal the decision, on the grounds that the threshold test would affect the fairness and expeditiousness of proceedings. This was denied.[5] On 18 June 2010, the Prosecution confirmed it had provided information to Defence relating to the intermediaries accused of abuse of process and had identified three OTP representatives who would be able to testify.[6] 

12 new reparations forms notified to the Defence

In accordance with Rule 94(2) and pursuant to Trial Chamber I’s decision of 8 January 2010, in which the Chamber ordered that new applications for reparations should be automatically communicated to the Defence following redaction,[7] the Registry transmitted twelve new applications for reparations to the Defence on 11 June 2010.[8] The defence has now received 24 applications for reparations.

15 new victims apply for participation

On 29 June 2010, the Registry transmitted 15 new victim applications for participation to the parties following an oral decision from TC1.[9]

Victims request review into Prosecution’s decision not to investigate Bemba’s crimes in DRC

[Background] During the course of CAR proceedings, Mr Bemba’s crimes in the DRC were revealed and he was charged with three counts of war crimes and two counts of crimes against humanity as military commander of the MLC which committed atrocities in Ituri, DRC. Although the CAR Prosecution relied on this evidence, OTP has made no accusation against him regarding his involvement in DRC.

On 28 June 2010, two alleged victims in Ituri sought to present their views and concerns regarding OTP’s decision not to investigate Bemba’s crimes in Ituri.[10] They submitted that the fact that Bemba is being investigated in the context of CAR cannot justify the Prosecutor’s refusal to proceed regarding the crimes he committed in Ituri and that terminating investigations would seriously affect the victims’ rights to justice and reparation. They claimed that under the Statute and international human rights law, the Chamber has a positive power and duty to examine the Prosecutor’s decision not to prosecute. They therefore requested the Pre Trial Chamber to review the decision, and for the Prosecution to remedy its failings.

Developments in the ongoing Katanga & Ngudjolo Trial

Victims allowed to participate in the Appeal against the Decision on the Modalities of Victim Participation at Trial

[Background] On 19 April 2010 TCII granted the Defence leave to appeal its decision of 22 January 2010 regarding the modalities of victim participation in the Trial.[11]

The victims’ application to participate in the Appeal having been granted,[12] their legal representatives opposed Defence’s submissions, emphasising the distinction between the roles of victims and parties regarding the necessity to act objectively and related disclosure obligations, and requesting that the Chamber dismiss the Appeal.[13] The Prosecution followed suit.[14] A judgment on the Appeal is pending.

Debate on the submission of additional information related to victims’ participation requests

On 26 May TC II ordered the Registry to transmit additional redacted documents concerning victim (applicant) a/0390/09 to the parties and requested additional information on three other applications.[15]  

While neither the Prosecution nor Defence for Mr Ngudjolo opposed a/0390/10’s application, the Defence for Mr Katanga requested its rejection on the grounds that the submission of a signed statement from the victim in response to Chamber’s request for additional information amounted to an incriminating and prejudicial statement.[16] Mr Hooper, acting for Mr Katanga, recalled that victims’ representatives should not be allowed to call victims as witnesses on incriminating matters unless they notify the Defence before Trial commences and suggested a three-month time limit for victims to provide additional information, after which applications should be dismissed. Accordingly, he requested that the application either be dismissed or that the victim’s counsel submit the information originally requested. A decision is pending.

Defence request to review practice of closed session hearings

On 1 June 2010 the Defence of Mr Katanga requested a review of the practice of intermittent closed session hearings, which it perceives as disruptive to the understanding of the case for third parties and detrimental to the right of the Defence to a public hearing and fair trial.[17] The Defence of Mr Ngudjolo, sharing these concerns, added that while precise information such as names and exact addresses should be protected, more general information which could relate to more than one individual should not necessitate closed sessions.[18]

Whilst agreeing with the principle of a public hearing, the victims’ legal representatives and the Prosecution noted that exceptions were sometimes necessary to protect victims and witnesses, and even defendants; indeed, although closed sessions on occasion extend for longer than necessary, they often occur at the request of the Defence.[19] They suggested alternative ways of dealing with the issue whilst recognising that closed sessions should ultimately be held at the Chamber’s discretion.

Protocol on the modalities for contacting victims by another party

[Background] On 18 December 2009 the Chamber ordered the legal representatives to submit a protocol outlining a standard procedure for parties wishing to contact participating victims.[20] This was submitted on 17 June 2010.[21]

Based on the Rules, the Code of Conduct and decisions in the Lubanga trial[22] and of the present Chamber,[23] the protocol proposes a standard procedure and highlights the represented victims’ rights to explanations relating to their defence and interests, as well as legal representatives’ entitlement to copies of interview-related material, and measures to deal with non-compliance.[24]

Situation in Central African Republic

Developments in the ongoing Bemba Case

Victims’ Legal Representatives support Prosecution’s request regarding non-public material in Defence investigations

[Background] On 1 June 2010 OTP requested that the Chamber impose restrictions on the Defence’s use of non-public[25] information relating to witnesses during its investigations.[26] Indeed, in order to assess the credibility of a witness or corroborate a story, it may be necessary for investigators to disclose confidential information to third parties. The Prosecution based its request on principles established in Lubanga[27] and Katanga,[28] namely that disclosure of non-public information by the Defence must fulfil the requirements of necessity for the preparation of the case and the Court’s duty to protect witnesses. However, OTP proposed more stringent procedures both prior to and in the event of disclosure.[29]

The victims’ legal representatives supported these submissions and recommended that the same guidelines be extended to participating victims and applicants.[30] 

Modalities of victims’ participation are set and 32 additional applicants are granted victim status

On 30 June 2010, TCIII issued a decision on the modalities of victim participation and on 86 applications to participate.[31] In doing so, it examined whether previous jurisprudence from TCs I and II should be applied. Findings were largely in accord with TCs I and II as regards ascertaining the status of applicants as victims, victims’ right to present and challenge the admissibility of evidence and the manner in which they may be permitted to question evidence at trial. However, it also highlighted that:

-       Participating victims should have access to confidential information relevant to their views and concerns and receive timely notification of public and confidential filings whenever their interests are engaged, and parties should inform the Chamber whenever filings may engage their interests;

-       Parties wishing to contact dual-status victims must provide notice to the victims’ legal representative (if victims have one) or provide notice through the Victims and Witnesses Unit (VWU). Dual-status victims wishing to contact parties or participants must also do so confidentially through VWU;

-       Non-redacted applications of dual-status victims should be considered in the same way as witness statements and it is for the Prosecution to determine whether they should be disclosed;

-       Anonymous victims should not be precluded from participation, although participation should be measured against potential prejudice to other parties/participants and the Registry should remind victims of the availability of protective measures rather than complete anonymity.

Finally, TCIII ruled that out of the 86 applications, 32 satisfied the desired criteria, including applications made on behalf of deceased victims. It rejected applications from victims of shelling and those whose houses had been destroyed by fire.[32] TCIII confirmed that the threshold criteria was whether there was enough prima facie evidence to establish that applicant victims suffered harm due to crimes committed by the accused.

TCIII rejects admissibility and abuse of process challenges

[Background] On 25 February 2010, the Defence initiated proceedings to contest the admissibility of the Bemba case.[33] It then requested the Chamber to adjourn proceedings for abuse of process[34] and informed the Chamber of new procedural developments in CAR to support its challenges.[35]

On 24 June 2010, the Chamber delivered its decision on both admissibility and abuse of process.[36] As regards admissibility, it rejected the Defence’s suggestions that the Prosecution had failed to discharge its disclosure obligations on the subject of complementarity and admissibility, due to lack of evidence. A potted history of the CAR proceedings showed that the case was not currently being investigated or prosecuted in CAR. The fact that CAR had referred the case to the ICC did not negate the Court’s requirement to ground its jurisdiction under Article 17(1)(b). In this regard, the Chamber ruled that CAR was unable to conduct a trial due to poor judicial and financial resources and confirmed there was sufficient evidence to satisfy the gravity criteria.  

As regards abuse of process, the arguments suggesting incomplete disclosure relating to Bemba’s arrest were also rejected due to lack of evidence. The Defence had moreover failed to comply with the necessary procedural requirements for relying on any evidence. The Defence is seeking to appeal the decision and the anticipated trial start date on 14 July 2010 has therefore been postponed.

Situation in Darfur, SudanDevelopments in the ongoing Harun and Kushayb Case

Decision informing the United Nations Security Council about the lack of cooperation by the Republic of the Sudan

[Background] Pre-Trial Chamber I sought to serve warrants of arrest against Ahmad Harun and Ali Kurshayb on the Republic of Sudan through its embassy in the Netherlands. The warrants were refused as instructed by the Sudanese government.[37] Further attempts by the Registry were similarly refused.

Consequently, on 25 May 2010 the Chamber recalled that although Sudan is not a State Party to the Statute it is a member of the UN, and as such, has an obligation to co-operate with the Court emanating from the UN Security Council.[38] Having failed to comply with its co-operation obligations, the Chamber ordered the Registry to transmit its decision to the Security Council for it to take appropriate action.[39]

Six victims to participate in both the Bashir and the Harun/Kushayb pre-trial proceedings

[Background] On 10 December 2009, six applicants obtained leave to participate as victims in the pre-trial stage of the Bashir case.[40] They then also requested to be recognised as victims in the Harun and Kushayb proceedings.[41] Both Prosecution and Defence agreed that the applicants prima facie met the criteria for participation, although Defence requested that their status as victims should be provisional until the suspects obtained counsel of their choice.[42]

On 17 June 2010 the Single Judge authorised the applicants to participate in the pre-trial proceedings of the Kushayb and Harun cases.[43] She granted the applicants victim status and participatory rights for the pre-trial stage only, without limiting their right to participation in the future.  

Developments in the Al Bashir Case

Application to participate as amici curiae in genocide charges application

[Background] On 4 March 2009, Pre-Trial Chamber I (PTCI) issued a decision refusing to include genocide as one of the charges against Mr Al Bashir,[44] which was appealed by the Prosecution. The Sudan Workers Trade Unions Federation (SWTUF) and the Sudan International Defence Group (SIDG) were granted leave to participate as amici curiae in the Appeal which directed PTC1 to decide anew on the charge of genocide applying the correct standard of proof.[45]

Although they had previously been denied leave to participate as amici curiae by PTC1,[46] they applied again on 15 June 2010 requesting leave to file observations on the legal requirements of genocide and their application to materials relied on by the Prosecution.[47] They also requested permission to add materials to the court file, in particular a report commissioned from Professor William Schabas on the genocide issue, and to make oral submissionsonthese matters. A decision is awaited. 

Prosecution opposes eight applications for victim participation

On 18 June 2010, the Prosecution opposed eight victim applications for participation as well as legalrepresentation of the applicants by Messrs Geoffrey Nice and Rodney Dixon.[48] It argued that none of the applicants had suffered harm as a result of the alleged crimes and that the intermediary assisting the applicants is the Citizens Organisation for the Sudan, which comprises two organisations currently applying to participate as amici curiae disputing the charges, which could lead to a conflict of interest.

Ad hoc counsel for the Defence noted that the victims’ applications seemed to suggest that crimes were committed by rebel groups rather than state bodies and therefore Mr Al Bashir was not the instigator.[49] 

On 22 June 2010 the applicants requested permission to submit additional information regarding the alleged conflict of interest and the requirement that applicants identify the suspect as responsible for their harm.[50] They maintained that the crimes and particulars described matched those in the charges and applicants should not have to identify Al Bashir as perpetrator in order to be allowed to participate. 

Commencement of the Banda and Jerbo Case

Banda and Jerbo appear before the Court

On 15 June 2010, the Chamber confirmed that there were reasonable grounds to believe that Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus were responsible for crimes under Article 25(3)(a) of the Statute and issued summonses for them to appear.[51] Both appeared before the Court on 23 June 2010. The confirmation of charges hearing was set for 22 November 2010.

Crimes were allegedly committed in the context of an attack carried out on 29 September 2007 against the African Union Mission in Sudan (AMIS) by splinter forces of the Justice and Equality Movement (JEM) under the command of Banda and Abu Garda jointly with splinter forces of the Sudanese Liberation Movement/Army (SLM/A) led by Jerbo. Accordingly, the Chamber decided that there were reasonable grounds to believe that they were both responsible for violence to life in the form of murder whether committed or attempted; intentionally directing attacks against personnel, installations, materials, units and vehicles involved in peace-keeping operations, and pillaging.