«Brussels, 24 June 2008 Information Package (As of 13 June 2008) Summary of activities since the twelfth Diplomatic Briefing 18 March 2008, The Hague ...»
Thirteenth Diplomatic Briefing of the International Criminal Court
Brussels, 24 June 2008
(As of 13 June 2008)
Summary of activities since the twelfth Diplomatic Briefing
18 March 2008, The Hague
Since the last diplomatic briefing in The Hague (on 18 March 2008), judicial proceedings, investigations and
outreach continued in the four situations before the International Criminal Court (Democratic Republic of
the Congo; Uganda; Darfur, Sudan and the Central African Republic). Between the four situations, twelve arrest warrants have been issued by the Court.
During the reporting period, one new arrest warrant was issued and an existing warrant was unsealed. In the situation in the Central African Republic, the Court issued a warrant of arrest for Mr. Jean-Pierre Bemba Gombo on 23 May 2008. He was subsequently arrested by Belgian authorities and is expected to be surrendered to the Court in due course. In the situation in the Democratic Republic of the Congo, a warrant of arrest for Mr. Bosco Ntaganda was unsealed on 29 April 2008. Mr. Ntaganda remains at large.
Pre-trial proceedings in preparation of a confirmation of charges hearing continued in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. On 13 June, Trial Chamber I imposed a stay in proceedings in the case of the Prosecutor v. Thomas Lubanga Dyilo following what it determined to be the Prosecution’s improper use of article 54(3)(e) of the Rome Statute and the Prosecution’s consequent inability to effect proper disclosure to the defence. The Chamber scheduled a hearing to consider the release of the accused for 24 June 2008.
In the different judicial proceedings, the Court provided assistance and support to counsel for defence and to legal representatives of victims, as well as facilitating the participation of victims. In connection with these proceedings and with investigations, the Court also undertook to protect the safety of victims, witnesses and others through a number of means.
A total of seven warrants of arrest have yet to be executed (one warrant being rendered without effect due to the death of the suspect). In the situation in Uganda, four warrants of arrest issued for Joseph Kony and other alleged leaders of the Lord’s Resistance Army in 2005 continued to be outstanding. In the situation in Darfur, Sudan, two warrants of arrest issued in 2007 continued to be outstanding. Responsibility to execute these warrants belongs to States.
SITUATIONS AND CASES – UPDATE ON JUDICIAL ACTIVITIESDuring the reporting period there were a number of important developments in the situations in the Democratic Republic of the Congo; Uganda; Darfur, Sudan and the Central African Republic. For each situation, the main developments in judicial proceedings, investigations and outreach activities are described below.
I. Situation in the Democratic Republic of the Congo The situation in the Democratic Republic of the Congo (“DRC”) was referred to the Court by that State Party in March 2004. The Prosecutor opened an investigation into the situation on 23 June 2004. So far, four arrest warrants have been issued and unsealed as a result of the investigation into this situation.
Three of these warrants have been executed and the respective individuals surrendered to the Court.
The fourth warrant is outstanding.
A. Judicial Developments Participation of victims in the situation and protection of witnesses Since the opening of the investigation, 425 victims have applied to participate in proceedings in relation to the situation as a whole (as distinct from particular cases). Of these, 87 have been authorised by one of the relevant chambers to participate in the situation. 17 of these victims have been declared indigent and granted legal aid by the Registrar. The Office of Public Counsel for Defence (OPCD) was appointed as ad hoc counsel and filed legal observations in relation to 28 victim applications to participate in the situation.
In relation to the situation, to date 133 persons benefit from the ICC Witness Protection Programme.
The Prosecutor v. Thomas Lubanga Dyilo Background A warrant of arrest for Mr. Thomas Lubanga Dyilo was issued, unsealed and executed in early 2006. On 29 January 2007, Pre-Trial Chamber I confirmed charges of war crimes against Mr. Lubanga, alleged leader of the Union des Patriotes Congolais pour la Reconciliation et la Paix (UPC) and Commander-in-Chief of its military wing, the Forces Patriotiques pour la Libération du Congo (FPLC). Mr. Lubanga is accused of the war crimes of enlisting, conscripting and using children under the age of fifteen years to participate actively in hostilities. Four victims are participating in proceedings through their legal representatives.
One of these victims has been declared indigent and receives legal aid from the Court.
Judicial developments during the reporting period
3 During the reporting period, proceedings in the case against Mr. Lubanga pertained primarily to the final preparations for the planned trial. Issues before the Trial Chamber included: the practices to be used to prepare witnesses, the procedure to be followed for opening and closing statements, and the consolidated E-Court protocol, an electronic system designed to support the daily judicial proceedings.
On 20 March, the Chamber issued a decision requiring the Defence to inform the Chamber of any intent to raise an alibi, and to disclose the general lines of its Defence, any substantive factual or legal issues it intends to raise and the details of any challenges to admissibility or relevance of evidence three weeks prior to trial.
On 13 June, the Chamber imposed a stay on the proceedings in the case. The Chamber found that the Prosecution had incorrectly used Article 54 (3) (e) of the Rome Statute which allows the Prosecutor to agree not to disclose information obtained on the condition of confidentiality and solely for the purpose
of generating new evidence, unless the provider of said information consents. The Chamber concluded:
i) The disclosure of exculpatory evidence in the possession of the prosecution is a fundamental aspect of the accused’s right to a fair trial;
ii) The prosecution has incorrectly used article 54(3)(e) when entering into agreements with information-providers, with the consequence that a significant body of exculpatory evidence which would otherwise have been disclosed to the accused is to be withheld from him, thereby improperly inhibiting the opportunities for the accused to prepare his defence; and iii) The Chamber has been prevented from exercising its jurisdiction under article 64(2), article 64(3)(c) and article 67(2), in that it is unable to determine whether or not the non-disclosure of this potentially exculpatory material constitutes a breach of the accused’s right to a fair trial.
The Chamber further concluded that the consequence of these three factors has been that the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial. In these circumstances, the Chamber issued a stay of proceedings and scheduled a hearing on Tuesday 24 June 2008 in order to consider the release of the accused.
During the reporting period, two appeals were pending before the Appeals Chamber in the case of the Prosecutor v. Thomas Lubanga Dyilo, one relating to the modalities of victim participation and the other relating to disclosure of information to the Defence.
Three additional applications for leave to appeal were filed during the reporting period. The first application, filed by the Defence, challenged the decision of 20 March on the Defence’s disclosure obligations. The Trial Chamber rejected this application on 8 May. The second and third applications were lodged by the Prosecution on 2 May and by the Defence on 14 May and challenged a decision on disclosure issues, protective measures and other procedural matters. These latter applications are currently pending before the Trial Chamber.
Throughout proceedings, the Court provided assistance to the defence teams of Mr. Lubanga and technical administrative and logistical support, assistance and information to legal representatives of victims for the preparation of the trial. The Office of Public Counsel for Defence (OPCD) provided ongoing legal support and assistance to the defence team of Mr. Lubanga. The Office of Public Counsel for Victims (OPCV) provided substantial legal assistance to legal representatives of victims in the case.
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui
On 18 October 2007, Mr. Germain Katanga was surrendered to the Court. On 7 February 2008, Mr.
Mathieu Ngudjolo Chui was surrendered to the Court. The warrants of arrest pursuant to which these two suspects were arrested and surrendered each include six counts of war crimes and three counts of crimes against humanity, allegedly committed during an attack on the village of Bogoro on 23 February
2003. Pre-Trial Chamber I joined the two cases on 10 March 2008. A hearing to confirm the charges is set to begin before Pre-Trial Chamber I on 27 June 2008. 5 victims are participating in the case.
Judicial developments before Pre-Trial Chamber I during the reporting period
On 18 April, the Chamber issued a decision on the evidentiary scope of the confirmation hearing, preventive relocation and disclosure under article 67(2) and rule 77, in which it held as unlawful the Prosecution’s practice of preventatively relocating witnesses, whether done prior to a decision by the Registrar on the inclusion of the relevant witness in the Courtʹs Witness Protection Programme or done after a decision by the Registrar rejecting such inclusion. The Chamber further found that, at the confirmation hearing, the Prosecution could not rely on the testimony of witnesses the Chamber considered to have been unlawfully relocated by the Prosecution. Following this decision, the Prosecution notified the Chamber and both Defence teams that it would not allege the count of sexual slavery due to its inability to introduce the testimony of these witnesses and would seek leave to appeal the exclusion of evidence in support of the charge and the Chamber’s interpretation of the system of witness protection, in particular the authority of the Office of the Prosecutor to assess and determine needs for witness protection and to provide alternative measures. On 28 April, the Prosecution sought leave to appeal the decision. The Chamber granted leave to appeal on 20 May. This appeal is pending.
In the meantime, following information from the Registry that the witnesses at issue had since been accepted into the Court’s Witness Protection Programme, the Pre-Trial Chamber noted that the security concerns that led it to exclude the evidence of witnesses as a result of their unlawful preventive relocation by the Prosecution no longer existed and that the Prosecution, if it wished to do so, could file an Amended Charging Document by 12 June 2008. Accordingly on 12 June the Prosecution reintroduced the charge of sexual slavery and added charges of rape and outrages upon personal dignity. On 3 June 2008, the Defence for Mr Katanga filed an application for leave to appeal the decision of the Pre-Trial Chamber.
In preparing for the confirmation of charges hearing, the Chamber also addressed a variety of other matters. On 13 May, the Chamber issued a decision outlining the set of procedural rights attached to the procedural status of different categories of victims at the pre-trial stage of the case. The Chamber also rejected an application for interim release from Mr. Ngudjolo Chui. Two further applications for leave to appeal decisions of the Pre-Trial Chamber were granted during the reporting period. One challenged the Chamber’s decision on joinder, while the other pertained to one of the Chamber’s decisions on redactions.
Judicial developments before the Appeals Chamber during the reporting period
During the reporting period, the Appeals Chamber rendered several decisions in the Katanga and Ngudjolo Chui case. The first two appeals were interrelated. In these appeals, the Appeals Chamber held: (i) that the protections of Rule 81(4), which allows the Prosecutor to request redactions to protect the safety of witnesses, victims, and members of their families prior to trial also extend to “persons at 5 risk on account of the activities of the Court”; (ii) that the Single Judge improperly refused a request by the Prosecution to redact the location of interviews of witnesses, as well as the identifying information of Court staff members; and (iii) that the redaction of potential prosecution witnesses may be authorised under Rule 81(2), which allows the Prosecutor to request redactions so as not to prejudice further or ongoing investigations, so long as such authorisation is accompanied by a careful case-by-case analysis.
In the third decision, the Appeals Chamber held that the redaction of the identities of alleged victims of sexual offences that were nevertheless unconnected to the charges could be still be authorised under the rubric of Rule 81(4), as such persons could be classified as “persons at risk on account of the activities of the Court.” The Appeals Chamber also considered the issue of the Single Judge’s evaluation of Mr. Katanga’s competency in French in light of articles 67(1)(a) and (f) of the Statute. The Chamber determined that the phrase “fully understands and speaks” used in the Statute imparts a higher standard than that applied by the Single Judge initially and remitted the matter to the Pre-Trial Chamber for subsequent analysis.
Other issues pending before the Appeals Chamber in the Katanga and Ngudjolo Chui case included an appeal of the Pre-Trial Chamber’s decision to continue to detain Mr. Ngudjolo Chui as well as the appeals for which leave was granted during the reporting period.
Support to Defence Counsel and Legal Representatives of Victims The Court provided assistance to the defence teams of Messrs. Katanga and Ngudjolo Chui and technical administrative and logistical support, assistance and information to legal representatives of victims for the preparation of the confirmation of charges hearing. The Office of Public Counsel for Defence (OPCD) provided ongoing legal support and assistance to both defence teams.