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LEGAL UPDATE October 2006

ICC Victim’s Rights Legal Update

26 October 2006

(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 September 2006.

 

Situation in Darfur

  • Ad hoc counsel for the defence challenges the ICC’s jurisdiction in Darfur
  • Louise Arbour gives input on victims’ protection in Darfur
  • First applications are made on behalf of victims in Darfur

DRC – Lubanga Case

  • Women’s Initiative for Gender Justice are asked to re-file their amicus in the “DRC Situation case” instead of Lubanga’s case.
  • Chamber rejects Lubanga’s challenge against the Court’s jurisdiction
  • Lubanga’s demand for bail (provisional release) goes on appeal
  • Modalities of participation for victims a/001, a/002 and a/003 

_______________________________________________________________

 

SITUATION IN DARFUR

Maitre Shalluf, the “Ad hoc counsel for the Defence” challenges the ICC’s jurisdiction instead of responding to the Chamber’s request for observations on victims’ protection

On 25 August, the ICC appointed Maitre Haddi Shalluf, a Paris based lawyer to act as the ad hoc counsel for the Defence as there is no accused yet in the Darfur Situation to provide his observations on victim protection in Darfur. 

[Background: The Pre-Trial Chamber had made a request on 24 July 2006 inviting Louise Arbour, UN High Commissioner for Human Rights, as well as Prof. Antonio Cassese, former Chairman of the UN Commission of Inquiry on Darfur and also the Prosecutor and Defence to provide their observations on victim protection and preservation of evidence in Darfur.  ( ICC 02/05-10, 24 July 2006,http://www.icc-cpi.int/iccdocs/doc/doc252195.PDF)

The Chamber made this request in an interesting move to get expert information that might challenge the Prosecutor’s position that “the continuing insecurity in Darfur is prohibitive of effective investigations inside Darfur, particularly in light of the absence of a functioning and sustainable system for the protection of victims and witnesses”. Prosecutor’s 3rd Report to the Security Council (14 July 2006, http://www.icc-cpi.int/NR/rdonlyres/E61D7F34-7D21-44B9-8840-53B254172AF7/0/OTP_ReportUNSC_3Darfur_English.pdf)

Prof. Cassese was the first to submit his observations on 25 August: (ICC 02-05-14, 25 August 2006, http://www.icc-cpi.int/iccdocs/doc/doc259762.PDF)  He provided detailed and specific suggestions on how the Prosecutor might move investigations forward while also taking into account the challenging security situation, victims’ rights to physical and psychological protection and the need to preserve evidence. [See September 2006 Update for more detail]. The Prosecutor also responded to Cassese’s observations saying that his input was beyond the scope of the request put by the Chamber.

On 9 October 2006 Maitre Shalluf, having been appointed to provide observations on victim protection, instead challenged the Court’s jurisdiction in the Darfur situation (ICC 02/05-20, 9 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc259771.PDF (French))

Louise Arbour , High Commissioner for Human Rights,  gives her input on victims’ protection in Darfur

On 10 October, Louise Arbour filed her response to the Pre-Trial Chamber’s request for observations on victim protection and preservation of evidence in Darfur.

The response provides substantial detail about how the Office of the High Commissioner for Human Rights monitors and investigates serious violations of human rights violations in numerous conflict zones. Essentially Arbour is saying that more presence in the field the greater the protection for victims and deterrence of further atrocities. She analyses the risk of retaliation against those who interact with the international community, saying that in general retaliation has taken the form of arbitrary arrest and detention and to a lesser extent also certain forms of physicial ill-treatment but as yet it has not resulted in any loss of life. 

Louise Arbour has called for “an increased visible presence of the International Criminal Court in Sudan, as she believes that carefully tailored strategies can operate effectively to conduct investigations”  She also has said that “the Court’s presence on the ground would also importantly contribute, among other international deployments in the country, to a proactive presence increasing the level of protection perceived and enjoyed by the affected population”  (ICC 02/05-19, 10 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc259768.PDF)

 

Prosecutor responds to Louise Arbour’s observations on victims’ protection

On 19 October the Prosecutor responded to Louise Arbour’s observations. He essentially claimed that much of Louise Arbour’s submissions go beyond the scope of victims’ protection provided in article 68(1) of the Rome Statute. He claims that because the Prosecutor is not taking statements in Darfur, there are no witnesses for him to protect there.

The prosecutor differentiates the risk that ICC witesses might face as oppose to persons interacting with UN human rights monitors, and points out that Arbour herself has indicated that those who have interacted with the international community have sometimes been subjected to death threats, arbitrary arrest or extreme violence. He reiterates the volatile situation in Darfur making investigations impractical but also goes on to  agree with the High Commissioner in that increased presence may enhance a deterrent effect. However, he states that it is not the duty of the Prosecutor to provide this kind of protective effect in areas he has chosen not to investigate. (ICC 02/05-21, 19 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc259773.PDF)

 

First applications are made on behalf of victims in Darfur

On 15 October the first applications on behalf of victims from Darfur were filed before the ICC. http://darfurrehab.org/home.html

 

DRC – SITUATION

The number of applicants in the DRC “Situation” has reached 105. Applicant 105 is granted the right to participate in the confirmation hearing, others are rejected or will have to wait

On 29 September 2006 the Pre-Trial chamber invited the Prosecution and Defence to provide its observations on the requests to participate of victims a/0072 to a/0105. The Prosecution was provided with full copies of the applications, while the Defence was provided with redacted versions. (ICC 01/04-01/06-585, 18 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc247954.PDF)

On 18 October, the defence submitted that applicants a/0072 to 80 concern crimes other than the ones stipulated in the arrest warrant, and that application 105 concerns crimes of recruitment but by the UPDF and not the UPC, that Lubanga was in charge of. The defence requested that these applications be rejected. (ICC 01/04-01/06-585,18 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc247954.PDF)

On 19 October the Prosecution submitted that applicant a/0105, who has filed the application on behalf of her son, born in 1992 meets the criteria to participate as a victim, as the crimes suffered have a causal link with the charges against Lubanga. Applicant a/0078 was 15 at the time of the commission of the crimes, and further evidence is required about the date of birth. The prosecutor submits that a/0072 to 77 and 78 to 80 do not fall within the definition of victims linked to the charges against Lubanga and should be rejected.(ICC 01/04-01/06-589, 19 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc247998.PDF)

On 20 October the Pre-Trial Chamber granted the status of victim to applicant a/0105, who indeed had indicated an association with the UPC and not the UPDF as suggested by the defence.  The modalities of participation applicable to a/001-3 also apply to a/0105.  The chamber ordered that the Registry take all necessary measures to ensure that the legal representative of a/0105, Maitre Carine Bapita be present at the confirmation hearing.

Not granted at this stage: The chamber stated that applicants a/0047 to 52 cannot be granted the status of victims at this particular phase of the proceedings although their applications provided sufficient links to the Lubanga charges. They have nonetheless been granted protective measures.

Not granted: The Chamber could not grant victim status to applicants a/004 to a/007, a/0016 to a/0046, a/0054 to a/0061, a/0063, a0071 to a/0080 because they did not establish a sufficient link to Lubanga’s charges. The Chamber will subsequently consider their participation in the DRC situation.

In this decision, the Chamber also made an interesting statement about contact between legal representatives of victims. It said that repeated contact, while perhaps necessary for ensuring effective representation, and even if organised by the Victims and Witnesses Unit, may in fact increase risks for victims. (page 11)

Finally, in this decision, the Chamber stated that given the fast approaching confirmation hearing on 9 November, it will not be able to consider further applications until after the hearing.  (ICC 01/04-01/06-601, 20 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc247904.PDF)

 

DRC - LUBANGA CASE

The amicus filed by the Women’s Initiative for Gender Justice

On 26 September, the Women’s Initiative for Gender Justice were asked to re-file their request to file an amicus regarding Lubanga’s confirmation hearing in the “DRC situation case” instead of Lubanga’s case. The Chamber specified that the case against Lubanga was confined to recruitment and use of children under fifteen in armed conflict, and that as such, the amicus request had no link to the case as such. It stated that the subject matter of the amicus request concerned gender based crimes committed in the DRC. The Chamber was mindful of the rights of the accused, who has a right to defend himself in relation to the crimes for which he is charged. As such, new elements of fact, as suggested in the amicus request, and particularly in its letter submitted as Annex I, would according to this reasoning, need to be argued as part of the ongoing investigation in the DRC situation. (ICC 01/04-01/06-480, 26 September 2006, http://www.icc-cpi.int/iccdocs/doc/doc192882.PDF)

Chamber rejects Lubanga’s challenge against the Court’s jurisdiction

On 3 October 2006: The Pre-Trial Chamber rejected Lubanga’s application of 23 May 2006, for his release on the basis of lack of jurisdiction and abuse of power - a doctrine borrowed from domestic law under Article 21(3).  The Decision was handed down after some confusion as to the legal basis upon which the defence was arguing lack of jurisdiction. The Court had ordered the defence on two occasions to clarify its arguments (29 May and 13 July) before the Defence re-characterised the challenge under Article 19(2)(b), namely that the DRC had jurisdiction over Lubanga and was investigating or prosecuting the case already. However it also claimed to be making the challenge on the basis of abuse of power alleging arbitrary arrest and irregularities of detention. (ICC 01/04-01/06-512, 3 October 2006, http://www.icc-cpi.int/iccdocs/doc/doc192939.PDF)

On 25 August Victims a/0001, 2 and 3, who are participating in the Lubanga case, submitted their views on Lubanga’s challenge, claiming that the Court had jurisdiction.  On the same day the DRC also submitted its observations (filed by the Auditor General of the Armed Forces) asserting that the Court had jurisdiction. The Chamber ruled that it did not need to review the lawfulness of arrest and detention prior to 14 March, and that the execution of the arrest warrant, set in motion on 14 March had been done in accordance with the Statute and Rules. (ICC 01/04-01/06-349, 24 August 2006, http://www.icc-cpi.int/iccdocs/doc/doc192716.PDF)

Lubanga’s demand for bail (provisional release) goes on appeal

On 20 October 2006, Lubanga appealed against the Pre-Trial Chambers’ decision of 18 October that refused him interim release. Lubanga had requested interim release (bail) on 20 September 2006, at a time when the date for the confirmation of his charges was uncertain and he had already been in custody for six months. (ICC 01/04-01/06-585,  18 Octobre 2006, http://www.icc-cpi.int/iccdocs/doc/doc247954.PDF)

On 9 October victims filed their observations, saying inter alia, that he could not be realised into the Netherlands or any other country without the DRC’s consent, given that he was detained by the DRC beforehand. Furthermore, that his release would be dangerous as he could continue to direct the UPC which still exists on the ground, notably in Bunia District, where victims are located.  (ICC 01/04-01/06-530, 9 October 2006,  http://www.icc-cpi.int/iccdocs/doc/doc293353.PDF)

Modalities of participation for victims a/001, a/002 and a/003  

On 22 September 2006 the Pre Trial Chamber defined the modalities for victim participation in the Lubanga case that were “compatible with anonymity”. Here the Chamber tries to balance the interest of victims in remaining anonymous from Lubanga, with his right to a fair trial. The Chamber assessed the implications of the worsened security situation in certain regions on available (or potentially available) protective measures for victims.

The chamber admitted that for now, the non-communication of victims’ identity to the defence constituted the only protective measure available to protect victims as required. The chamber has noted the importance of participation but warned against anonymous accusations. Thus, victims a/0001 to a/0003 may participate without adding any elements of fact to the case.

Anonymous participation at this stage of the proceedings is limited to:

i)    Access to public documents in the case file only, and

ii)    Presence at public hearings only (starting with the status conference of 26 Sept);

However, the Chamber reserves the right to make exceptions to this basic principle in exceptional circumstances, given that victims under rule 89(1) are able to make declarations at the beginning and end of hearings to which they are invited, and that victims’ legal representatives may request permission to intervene in public sessions of the confirmation of charges. The Chamber added that it would decide each case individually on the basis of the principles established in this decision.

French: ICC 01/04-01/06-462, 22 September 2006, http://www.icc-cpi.int/iccdocs/doc/doc192855.PDF

English : ICC 01/04-01/06-462, 22 September 2006, http://www.icc-cpi.int/iccdocs/doc/doc192992.PDF