E-letter September 2009

In this issue

Democratic Republic
of the Congo
Update on Lubanga trial — Trial Chamber I notifies parties that legal characterisation of facts may change

Democratic Republic
of the Congo
Trial Chamber II rules the Katanga case is admissible

Democratic Republic
of the Congo
Trial Chamber II issues decision on legal representation of victims in the Katanga/Ngudjolo case; 288 more victim applicants approved to participate in the trial

Darfur
Prosecution files appeal on Pre-Trial Chamber I's decision on the arrest warrant for Al'Bashir

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Dear Friends,

Welcome to the Legal Eye on the ICC, a regular e-letter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has cases relating to the conflicts in Uganda, the Democratic Republic of the Congo (DRC), Darfur, Sudan and the Central African Republic (CAR).

In addition to the Legal Eye on the ICC we also produce Women's Voices, a regular e-letter providing updates and analysis on political developments, strategies for the pursuit of justice, the status of peace talks, and reconciliation efforts from the perspective of women's rights activists from the four conflict situations.

With both online e-letters we will also update you about the programmes, legal and political advocacy, campaigns, events, and publications of the Women's Initiatives.

More information about the work of Women's Initiatives for Gender Justice and previous issues of Women's Voices and the Legal Eye can be found on our website at www.iccwomen.org.

DRC :: Update on Lubanga trial — Trial Chamber I notifies parties that legal characterisation of facts may change

At the opening of the Trial and throughout the Prosecution's case, the Chamber has heard significant testimony on sexual violence from a number of witnesses, as discussed in the March [read] and May [read] 2009 issues of the Legal Eye. The evidence heard has included information regarding rape, sexual enslavement and other forms of gender-based crimes. Former child soldiers have testified that in addition to their duties as soldiers, girls were expected to cook for their commanders and to provide them with 'sexual services' or be killed if they refused.

These testimonies are consistent with information collected by the Women's Initiatives for Gender Justice in our documentation of 112 interviews with women victims/survivors of gender-based crimes committed by militia groups operating in Ituri. This documentation reports acts of rape, gang rapes, sexual enslavement and torture allegedly committed by the Union des patriots congolais (UPC) against women and girls, including girls abducted and enlisted by the militia group. Recent developments in the Lubanga case, as discussed below, underscore the importance of the Office of the Prosecutor conducting thorough and effective investigations, filing accurate and comprehensive charges at the earliest possible stage, and amending those charges, if needed, before the confirmation hearing, or at least before trial.

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Legal representatives of victims request Trial Chamber
to use Regulation 55 procedure

On 22 May 2009, Legal Representatives of Victims participating in the Lubanga trial requested that the Trial Chamber consider modifying the legal characterisation of facts presented by the Prosecution, adding inhuman and cruel treatment and sexual slavery to the existing characterisation. Lubanga currently faces only the limited charges of the war crime of enlistment and conscription of children under the age of 15 and use of them to participate actively in hostilities. The Legal Representatives' application requests the Chamber to use Regulation 55 of the Regulations of the Court, which provides that the Chamber may change the legal characterisation of the facts in its decision under Article 74 (its decision on the charges based on the evidence presented before it during the trial). The application followed a brief oral notice of plans for such a filing given in the open hearing on 8 April 2009 by the Legal Representatives to the Chamber, Prosecutor, and Defence.[1]

On 29 May 2009, the Prosecution filed an initial response[2] to the Legal Representatives' filing, and on 12 June filed further, more detailed observations[3] pursuant to a request from the Trial Chamber given on 3 June 2009, in the public hearing in the Lubanga trial. On 19 June the Defence filed its response to the Legal Representatives and Prosecution.[4] The Chamber set a deadline of 26 June for the Legal Representatives to respond to the Prosecutor and Defence.

In their 22 May filing, the Legal Representatives outlined a number of instances of witness testimony that they argued showed widespread and/or systematic inhuman and/or cruel treatment of recruits, among them the testimony of witness OTP 0007, describing girls, including girls under the age of 15, who had become pregnant as a result of being raped.[5] With respect to sexual slavery, the Legal Representatives noted that the widespread and/or systematic practice of using girls, including girls under the age of 15, against their will, as wives or sexual slaves of commanders of the UPC/FPLC (Union des patriots congolais/Forces patriotiques pour la libération du Congo), had been confirmed to date by two former militia members, witnesses OTP 0299 and OTP 0017, and also by six former child soldiers, witnesses OTP 0038, OTP 0298, OTP 0010, OTP 0011, OTP 0007, and OTP 0294. They note that the widespread and/or systematic practice by which soldiers from the UPC/FPLC, including child soldiers under 15 years, were asked to find girls, including girls under the age of 15, for the 'sexual needs' of their commanders and for their own 'sexual needs' had been confirmed to date by three former child soldiers, witnesses OTP 0213, OTP 0008, and OTP 0294.[6]

The Legal Representatives argued that the facts described by the witnesses fall within the facts, circumstances and mode of liability described in the charges confirmed against Lubanga, that the incidents described took place between the beginning of September 2002 and 13 August 2003, and that they are attributable to the soldiers and commanders of the UPC/FPLC, for whom Lubanga is ultimately responsible as President of the UPC and commander-in-chief of the FPLC. According to the Legal Representatives, the alleged acts of sexual slavery and inhuman and/or cruel treatment were inflicted on the recruits as part of their military training, were directly related to their status as recruits, and therefore arose directly from their forced recruitment in the UPC/FPLC.

Thus, in their filing, the Legal Representatives requested that the legal characterisation of the facts put forward by the Prosecutor be supplemented by additional legal characterisations of inhuman and/or cruel treatment and sexual slavery. They requested that the Chamber take up these issues under Regulation 55, and that the Legal Representatives be given the opportunity to make further oral or written observations on these matters.

Regulation 55 authorises the Chamber to modify the legal characterisation of the facts. However, under the Regulation, it is for the Chamber alone to make the threshold determination that the facts it has heard may be subject to re-characterisation even though, as the Prosecutor notes in its 12 June response, the idea does not have to originate with the Chamber. For example, the Prosecution noted that in 2007 it suggested a Regulation 55 determination on the issue of the characterisation of the armed conflict as international or non-international. In its filing, the Prosecutor noted that under Regulation 55, any re-categorisation by the Chamber should not exceed the facts and circumstances described in the Charges or any amendments to the Charges. In this case, 'The Chamber must initially assess whether the new charges of sexual slavery, cruel treatment, and/or inhuman treatment fall within the facts and circumstances presented in the [document containing the charges].'[7] The Prosecutor stated that the Chamber must be satisfied that (i) there is congruence of time and place, (ii) the recited facts concerning the proposed new charges are present in the charging document and sufficient to establish a factual allegation of the crime, and (iii) the conduct appears to conform to the legal definition of that crime.

The Prosecutor noted that the Legal Representatives have requested that the additional charges be added to the existing charges, in the form of entering a conviction for additional charges. While Regulation 55 refers to changing the legal characterisation of the facts, 'the Prosecution does not completely discount adding supplementary legal characterisations to those chosen by the Prosecution, provided the Chamber does not exceed the facts and circumstances contained in the charges'.[8] The Prosecution noted that some domestic legal systems that incorporate the principle of iura novit curia (the court knows well the law) 'appear not to foreclose the possibility that, under specific conditions, a person may be convicted of another crime in addition to the one that is included in the charging document'.[9] The Prosecutor also noted that, even if the Chamber does not add these charges, if it convicts Lubanga on the existing charges, the Chamber should consider the evidence regarding sexual slavery, cruel treatment, or inhuman treatment when determining the appropriate sentence.

The Defence's response[10] put forward a more restrictive interpretation of Regulation 55. The Defence sees Regulation 55 as existing for the sole purpose of allowing errors in the legal categorisation of the facts to be corrected. Even such corrections, the Defence argued, would be limited to the substitution of a lesser charge for a more serious charge. Any other form of re-characterisation would require the amendment of the indictment itself prior to trial, in order to preserve the rights of the accused. The Defence addressed the specific charges requested by the Legal Representatives, in particular the proposed charge of sexual slavery, and argued that the decision confirming the charges against Lubanga make no mention of facts and circumstances that would support charges of sexual slavery either as a crime against humanity or as a war crime. The Defence dismissed the testimony of witnesses on sexual slavery and sexual violence as irrelevant because these facts were not contained in the decision confirming the charges.

The Defence also addressed the argument of the Legal Representatives that the charges of enlistment and conscription of girl soldiers under the age of 15 implicitly includes the charges of sexual violence and in particular the charges of sexual slavery. Based on the ICC Elements of Crimes, on the jurisprudence of international tribunals which have taken up the crime of the recruitment of children under the age of 15, and on certain international conventions, the Defence argues that there is nothing to suggest that the definition in international law of the crime of enlistment and conscription of children under the age of 15 implicitly or necessarily includes the crime of sexual slavery or any other form of sexual violence. The Defence insisted the crimes of sexual violence, while they may form part of the reality of individual experiences, must be kept distinct and included as separate charges.

On 26 June 2009, the Legal Representatives responded to the Defence, reiterating their original observations and noting that the Defence had not addressed the ability of the Chamber to modify the legal qualification of the facts under Regulation 55, or the Legal Representatives' standing to trigger use of the procedure.[11]

Read the filings:
Legal Representatives for victims: http://www.icc-cpi.int/iccdocs/doc/doc692081.pdf
Prosecutor's response: http://www.icc-cpi.int/iccdocs/doc/doc698842.pdf
Defence's response: http://www.icc-cpi.int/iccdocs/doc/doc701039.PDF
Legal Representatives' response: http://www.icc-cpi.int/iccdocs/doc/doc703125.pdf

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Trial Chamber I's decision issuing notice of possible re-characterisation
of facts under Regulation 55(2)

On 14 July 2009, Trial Chamber I issued its 'Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court'.[12] The decision was joined by Judge Odio Benito and Judge Blattmann, and a separate dissent by Judge Fulford followed on 17 July (discussed below). The majority opinion held that Regulation 55(2) grants the Trial Chamber the power to change the legal characterisation of facts at any time during the trial, as long as it provides proper notice to the parties and ensures appropriate safeguards in accordance with the rights of the accused to a fair trial. The Chamber was persuaded, based upon the submission by the Legal Representatives and the evidence heard at trial, that the legal characterisation of the facts in the Lubanga case may change. If the Trial Chamber agrees with the suggestions of the Legal Representatives as outlined above, they may decide to include, among other things, charges of sexual violence.

The majority reached its decision by severing the provisions of Regulation 55(1) from 55(2) and (3), finding that the Regulation 'sets out the powers of the Chamber in relation to two distinct stages'.[13] In its view, Regulation 55(1) describes the requirements for the Chamber's final judgement, and this provision alone is subjected to the limitation that the power to change the legal characterisation of facts must be done 'without exceeding the facts and circumstances described in the charges and any amendments to the charges'.[14] In contrast, Regulation 55(2) 'applies "at any time during the trial"'.[15] Because the Regulation concerns two different stages of the proceedings, the latter provision is not subject to the limitation in 55(1).

Under the majority's interpretation, although the Chamber is free under Regulation 55(2) to modify the legal characterisation of facts, which may exceed the facts and circumstances described in the charges, it must ensure the safeguards enumerated by Regulation 55(2) and 55(3) are respected. These include provision of adequate time and resources for the preparation of the Defence and the opportunity to examine witnesses or present evidence in response to the new characterisation of facts. According to the majority, it is 'self-evident'[16] why 55(2) has different requirements from 55(1), because the need to call witnesses or present evidence is only necessary when a new factual basis is presented during the trial phase, not when the Trial Chamber applies 55(1) to modify the substantive law contained in the charging documents.

The Chamber found that the 'trigger' for providing notice to the parties under Regulation 55(2) is the 'Chamber's finding that the legal characterisation of the facts may be subject to change'.[17] It declined to establish a procedure for allowing oral or written submissions from the parties or participants, deferring this opportunity until 'an appropriate stage of the proceedings'.[18] Similarly, the Chamber will hold a hearing on possible modification 'in due course'.[19]

Read the majority opinion: http://www.icc-cpi.int/NR/exeres/C62EF245-F3BF-4986-B2A7-FACADAFA4226.htm

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Judge Fulford's dissent to majority opinion on Regulation 55(2)

On 17 July 2009, Judge Fulford issued a dissent to the majority's decision notifying the parties that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Court.[20]  

Judge Fulford's view, based on an examination of Regulation 55 within the 'overall context'[21] of the Rome Statute and the Rules, reflects an understanding of the provision as 'an indivisible or singular process'.[22] He concludes, based on a reading of articles 74(2) (the requirement that the decision of the Trial Chamber shall not exceed the facts and circumstances described in the charges or amendments thereto) and 61(9) (the powers of the Pre-Trial Chamber to amend charges before trial and the Trial Chamber to withdraw charges), that the powers to frame and change charges lie exclusively with the Pre-Trial Chamber. Consequently, 'a modification to the legal characterisation of the facts under Regulation 55 must not constitute an amendment to the charges, an additional charge, a substitute charge or withdrawal of a charge, because these are each governed by Article 61(9)'.[23] He questions whether a modification of the legal characterisation of the facts is really possible without also amending the charge that is based on them, and calls for an assessment on a case-by-case basis.

According to Judge Fulford, the consequence of severing 55(1) from 55(2) is the failure to provide sufficient safeguards to the accused when the 55(2) procedure is applied. Looking to the statutory provisions concerning the rights of the accused, he asserts that the majority's reading of Regulation 55 contradicts these core statutory protections, which 'tend towards finality and certainty as regards the charges, rather than to flexibility'.[24] In his view, safeguards set forth in Regulation 55(2) and (3) must also apply to sub-regulation (1) to ensure that the accused is informed promptly and in detail of the nature, cause and content of the charge as prescribed by Article 61(9).

The dissenting opinion concludes that the Legal Representatives did not seek a modification of the legal characterisation of the facts, but rather 'the five proposals involve changes to the Document containing the charges of such a wide-ranging and fundamental nature that they constitute additional charges',[25] some of which contain more serious offences and therefore threaten a longer criminal sentence. As such, notice should not be issued under Regulation 55. The Prosecutor should assess whether an amendment of the charges is appropriate, and if so, seek confirmation from the Pre-Trial Chamber. Judge Fulford disagrees with the majority's reading of 55(1) and 55(2) and (3) as separate provisions and states, 'it would be appropriate for the Appeals Chamber to consider an application for suspensive effect of the majority Decision to enable the trial to proceed on the basis of the current charges, as presently formulated, until any appeal is determined'.[26]

Read the dissenting opinion: http://www.icc-cpi.int/iccdocs/doc/doc712718.pdf

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DRC :: Trial Chamber II rules the Katanga case is admissible

In the June 2009 issue of the Legal Eye on the ICC [read], we reported on the motion filed on 11 March 2009 by Germain Katanga challenging the admissibility of his case on the grounds of complementarity.[27] On 16 June 2009, Trial Chamber II issued a written decision[28] containing the reasoning behind its oral decision on 12 June to deny the admissibility challenge filed by the Katanga Defence pursuant to Article 19 of the Rome Statute.

The admissibility of the Defence's motion

As a threshold matter, the Trial Chamber first considered whether the Defence motion is itself admissible. Article 19(4) of the Statute provides that admissibility can be raised once either prior to or at the commencement of the trial. Under 'exceptional circumstances, the Court may grant leave for a challenge to be brought … later', and based only on Article 17(1)(c), the provision of the Statute that holds a case inadmissible if 'the person concerned has already been tried for conduct which is the subject of the complaint'. Under Article 17(1)(c), the proceedings must also not have been for the purpose of shielding the person from ICC jurisdiction, and must have been conducted independently, impartially, and in a manner consistent with an intent to bring the person to justice. The Chamber found that, for the purposes of such an admissibility challenge, 'the commencement of the trial' is at the time of the preliminary statements, before the appearance of witnesses.

According to the Chamber, there are three windows in which the Defence can challenge the case's admissibility. The first period runs until the charges are confirmed, at the close of the pre-trial phase. During this first window admissibility can be challenged on all four grounds set forth in Article 17(1)(a)-(d). During the second, brief period, between the confirmation of charges and the establishment of the Trial Chamber, admissibility can be raised only on the basis of Article 17(1)(c), ne bis in idem (one shall not be charged twice for the same offence, as described above). Finally, once the Chamber is constituted, admissibility can be challenged on the same basis, ne bis in idem, but only under exceptional circumstances and upon the Chamber's authorisation.

Consequently, the Chamber found that the Defence inadmissibility motion was filed out of time. The Chamber rejected the Defence's justification for the delay, that it was waiting for the State to provide relevant documents, and that it lacked sufficient time and resources to develop a clear strategy concerning the admissibility motion due to the joinder with the Ngudjolo case. However, the Chamber also found that in this instance it was reasonable for the Defence to believe that the motion was timely, or did not intend to file an untimely motion, given the Pre-Trial Chamber's position on the matter over the course of the ex parte hearings. For that reason, the Pre-Trial Chamber addressed the motion on the merits.

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Procedural defect in the arrest warrant

The Defence based its claim that the case is inadmissible in part on the Prosecution's failure to communicate to the Pre-Trial Chamber information within the Prosecution's possession, namely that Katanga was subject to an investigation by State authorities at the time the Prosecution requested a warrant for Katanga's arrest. The Defence maintained that the Pre-Trial Chamber would have found the Prosecution's request inadmissible if the Chamber had had knowledge of such information. The Chamber divides the issue into three parts: (1) whether the Prosecution is required to communicate to the Pre-Trial Chamber information at its disposal concerning a case's admissibility at the time that it applies for an arrest warrant; (2) if so, whether the specific information mentioned by the Defence was decisive at that point in time; and (3) if so, whether such information required the Pre-Trial Chamber to exercise its discretionary powers to consider the issue of admissibility of its own accord.

As to the first issue, the Chamber found that the information required to apply for an arrest warrant under Article 58(2) of the Statute does not require the Prosecutor to furnish information to the Pre-Trial Chamber concerning admissibility when requesting an arrest warrant. In this case the Prosecution asserted, based on the documents in question that were provided by the State, that the national authorities did not conduct an investigation into this case, and the Prosecution informed the Pre-Trial Chamber as such in its request for the arrest warrant. The Chamber acknowledged that while the documents in question contain information indicating that Katanga was the subject of an investigation for crimes against humanity between 2002 and 2005, they contain neither specific dates nor specific acts that can be attributed to Katanga. Further, none of the documents in question prove that the DRC conducted an investigation. The Chamber thus concluded that the information at the Prosecution's disposal was not decisive and therefore did not require the Prosecution to inform the Pre-Trial Chamber of its existence. Having responded to the first two questions in the negative, the Chamber declined to address the third.

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The DRC's willingness to investigate/prosecute the Katanga case

The Chamber found that a State's 'unwillingness' to carry out an investigation or prosecution for the purposes of Article 17(2), although not explicitly foreseen by the Statute, includes the situation in which a State is willing to cooperate with the ICC in conformance with the aims of the Statute, but is unable to carry out an investigation or prosecution for various reasons, and as a consequence defers the case to the Court. At the same time, the Chamber noted that the State's unwillingness to investigate or prosecute does not automatically render the case admissible.

With regard to this case, the Chamber observed that the DRC has clearly expressed its intention not to investigate and prosecute Katanga, having referred the case to the ICC; that the Military High Court in Kinshasa confirmed that no investigation was conducted into the facts concerning Katanga's participation in the attack on Bogoro on 24 February 2003; and the State requested that the Defence admissibility motion be denied.

In response to the Defence claims that Katanga suffered violations to his fundamental rights as a result of having been transferred to the jurisdiction of the ICC, including, inter alia, his right to family life, the restricted ability to call witnesses, the length of the proceedings and cultural and linguistic difficulties, the Chamber found that any such alleged violations are not linked to the issue of the case's admissibility. Therefore, they must be raised separately.

On 22 June 2009, the Katanga Defence filed an appeal of this decision with the Appeals Chamber, pursuant to Article 82(1)(a) and Rule 154(1), which provide that either party may appeal a decision with respect to jurisdiction admissibility without leave of the court. The Defence requests (1) a ruling that the Trial Chamber’s finding on when admissibility may be challenged is erroneous in law, and an amendment of the decision on that issue; and (2) a ruling that the Trial Chamber's findings on the substance were erroneous in law and in fact, and that the decision be reversed and the case be found inadmissible.

Read the Trial Chamber’s decision on admissibility: http://www.icc-cpi.int/iccdocs/doc/doc711214.pdf

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DRC :: Trial Chamber II issues decision on legal representation of victims in the Katanga/Ngudjolo case; 288 more victim applicants approved to participate in the trial

On 22 July 2009, in the case of Prosecutor v. Katanga and Ngudjolo, Trial Chamber II ('Chamber') issued an 'Order on the organisation of common legal representatives of victims' ('Order').[29] In this Order, the Chamber approved a plan for both the organisation of victims and their legal representation of victims who have been accepted to participate in the trial proceedings. Specifically, it ordered the Registry to: (1) group victims into two categories, one group of former child soldiers and one group of all other victims, and (2) assist the victims in choosing a common legal representative for each group.[30]

The Order followed the submission of proposals, upon request of the Chamber,[31] by the Registry and Legal Representatives for different groups of victims, to resolve questions about the grouping of victims and the organisation of common legal representation pursuant to Regulation 79(1). The Registry had requested early guidance from the Chamber on these matters in its submission of 24 November 2008 following the status conference of 6 November 2008, where the Chamber had asked the Prosecution, Defence, Legal Representatives, and Registry to raise any issue they deemed important.[32] In its submission, the Registry informed the Chamber it would work with the Legal Representatives to ensure that questions surrounding common legal representation would be resolved once the Chamber decided on victim applications.[33] At the status conference of 28 November 2008, the Registry proposed that the Chamber instruct the Legal Representatives to submit proposals on the organisation of common legal representation, with the Registry's assistance, and proposed asking 'victims or particular groups of victims to choose one or two common legal representatives'.[34] The Legal Representatives argued, in response, that each of their mandates was 'intuitu personae' (non-transferable from one to another). Apparently, all parties accepted that groups of victims needed to be formed based on the large number of victim applicants, but views differed on the criteria used to group them. The Chamber ordered the Legal Representatives and Registry to work together to develop a plan for organising the victims into groups and to provide for their common legal representation.[35]

The Legal Representatives submitted a joint proposal on 6 February 2009 in which they proposed grouping the victims into three 'teams' in order to avoid potential conflicts of interest, particularly between the group of former child soldiers who could be seen as perpetrators and the other victims. However, the Registry considered that there was no potential conflict between the second and third groups of victims, and therefore proposed grouping the victims into two categories — the former child soldiers and all other victims. The Legal Representatives also proposed putting a rotation system in place so each team would have only one representative for the duration of the trial. The Registry endorsed the plan to have a rotating representative except in exceptional circumstances, where all counsel would address the Chamber jointly. Since the time these proposals were submitted, a large number of victims have applied, and been accepted, to participate in the proceedings, as discussed below.

In its order of 22 July, the Chamber considered several factors in deciding the most appropriate way to organise legal representatives.[36] The first factor of 'greatest importance' was how to ensure that victim participation be 'as meaningful as possible as opposed to being purely symbolic'.[37] The second concern was for preserving the efficiency of the proceedings, and to therefore 'guard against any unnecessary repetition or multiplication of similar arguments and submissions'.[38] Thirdly, the Chamber considered the potential burden on the Defence of responding to victims. The Chamber noted that while victims have the freedom to choose a personal legal representative, that right is qualified by rule 90(2), which allows the Court to appoint a common legal representative in cases where there are a large number of victims. Victims' right to choose a representative is 'subject to the inherent and express powers of the Chamber to take all measures necessary if the interests of justice so require'.[39]

Considering the large number of victim applicants (including 57 victims already authorised to participate and 345 applications pending at the time the Order was issued), the Chamber found 'it would be entirely unfeasible for each of them to be represented individually'.[40] Moreover, aside from the small number of former child soldier victims, no other tensions appear to exist among victims of the Bogoro attack. These factors convinced the Chamber that it was 'both necessary and appropriate' to accept the Registry's proposal and, with the exception of the former child soldiers, group all other victims 'into one group represented by one common legal representative'.[41] Each representative would be responsible for representing the common interests of his or her group of victims and for acting on behalf of specific victims when their individual interests are at stake.[42] In case a conflict arises between the victims and their representative, the victims may petition the Registry, who may in turn inform the Chamber if the issue cannot be resolved.

The Chamber established criteria for the common legal representative in order to ensure high quality representation, including that this person be 'fully available' to the victims throughout the proceedings and be present at the Court for the duration of proceedings. Strong local connections to the region affected are also desirable. The Chamber also addressed how to resolve potential conflicts of interest among victims who are commonly represented. In case instructions conflict to the point that views are irreconcilable, the legal representative may inform the Chamber, who may take measures such as appointing the OPCV to represent one of the groups. The Chamber further ordered the Registry to devise, in collaboration with the common legal representative, a support structure 'in order to provide the common legal representative with the necessary legal and administration support, both at the seat of the Court and in the field'.[43] It then set out criteria for that support structure and instructed the Registry to rely on resources available to it at the Court or in the conflict situations.[44]

On 5 August 2009, Trial Chamber II in the case of Prosecutor v. Katanga and Ngudjolo issued a decision to admit 288 victims out of the 345 further applicants that had applied to participate in the case.[45] Invoking Rule 85 as well as the Trial Chamber's criteria for admittance of victim applicants, the Chamber found that 287 applicants qualified as victims. In addition, the Chamber consolidated four applications submitted by one applicant based on harm he suffered from the death of his relatives, bringing the number admitted by this decision to 288. The Chamber refused five applications and requested more information from 39 applicants by 24 August before making a determination on their status. The Chamber consolidated another four applications with four previously admitted victim participants. Six further applications were deferred to a later date.

Together with the previously admitted 57 victim participants, this decision brings the total number of victims approved to participate in the trial phase of the case to 345.

Read the Trial Chamber's decision on legal representation: http://www.icc-cpi.int/iccdocs/doc/doc715762.pdf

Read the Trial Chamber's decision on the victims' applications: http://www.icc-cpi.int/iccdocs/doc/doc721143.PDF

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Darfur :: Prosecution files appeal on Pre-Trial Chamber I's decision on the arrest warrant for Al'Bashir

In the March and May 2009 issues of the Legal Eye, we reported on the 4 March 2009 decision by Pre-Trial Chamber I ('the Chamber') to issue a Warrant of Arrest for the President of Sudan, Omar Hassan Ahmad Al'Bashir. The Pre-Trial Chamber found, as required by Rome Statute Article 58, that there were 'reasonable grounds to believe' that Al'Bashir has committed crimes within the jurisdiction of the court, namely five counts of crimes against humanity, including rape, and two counts of war crimes. However, the two-judge majority declined to include the crime of genocide in the Arrest Warrant, despite the Prosecution's assertion that there were reasonable grounds to believe Al'Bashir bears criminal responsibility for three counts of genocide as a result of: killing of members of the Fur, Masalit and Zaghawa ethnic groups through direct killings or 'slow deaths' due to the conditions imposed during displacement; causing serious bodily or mental harm to members of these groups including through displacement, torture, rape and other forms of sexual violence; and deliberately inflicting on these groups conditions of life calculated to bring about the group's physical destruction. Judge Ušacka, writing in dissent, drew different conclusions from the evidence presented. She was satisfied there were reasonable grounds to believe that Al'Bashir possessed genocidal intent and was criminally responsible for genocide. On 6 July 2009, the Prosecution filed an appeal against the decision.[46]

In its appeal, the Prosecution submitted that the majority applied the wrong legal test in relation to inferences for determining 'reasonable grounds' under Article 58(1) (issuance by Pre-Trial Chamber of warrant to arrest or a summons to appear). Despite recognising the applicable standard is one of 'reasonable grounds to believe', the majority applied a standard requiring the higher burden of 'beyond reasonable doubt'. Further, despite finding that the inference of genocidal intent could be one reasonable conclusion drawn from the evidence, the majority concluded the Prosecution failed to meet its evidentiary burden because genocidal intent 'is not the only reasonable conclusion to be drawn'.[47]

The Prosecution argued that the Chamber's requirement that specific genocidal intent be the only reasonable inference to be drawn from the evidence exceeds the evidentiary burden the Prosecution is required to meet at the Article 58 stage. In contrast to the trial stage, the burden of proof is not as high at the warrant and confirmation stage.[48] The Prosecution found support for its arguments in Judge Ušacka's dissent, which argues that the Statute proscribes progressively higher evidentiary thresholds. As a result, the Prosecution maintains that '[n]othing in Article 58 requires that a conclusion be the only reasonable conclusion. Nor is this a generic requirement for proof by inference at all stages. The requirement that there be no other reasonable conclusion available is solely a function of the standard "beyond reasonable doubt".'[49] At the warrant stage an inference of genocidal intent need only be a reasonable one, and where several inferences are possible, the Prosecution need [only] establish reasonable grounds to believe a particular allegation is true.[50] 'The Prosecution is not required to present its case in full and to exclude all other reasonable inferences.'[51]

Thus the Prosecution asserts that by stating that genocidal intent is not the only reasonable inference, the majority implicitly accepted it was in fact a reasonable inference. However, the majority dismissed the factors presented by the Prosecutor on the basis that there were a variety of inferences that could also be drawn from Al'Bashir's strategy of concealing crimes other than the desire to destroy the group.[52]

The Prosecution argues that in prior ICC jurisprudence and that of the ad hoc tribunals, as well as decisions by the European Court of Human Rights and national courts, warrants have been issued based on an inference that the Accused acted with the requisite mens rea without requiring that this be the only reasonable inference. To require more evidence would not only place an impossible burden on the Prosecution at this early stage of the proceedings, but also force the Prosecution to disclose evidence that might impede the investigation while the person is still at large, or worse, 'endanger the lives of prospective witnesses'.[53] The Prosecution submits that an application of the correct standard 'would have resulted in the issuance of a warrant for the genocide counts'.[54]

The Prosecution seeks the Appeal Chamber's determination that 'it is in the interests of justice that the Appeals Chamber exercise its discretionary power and find that there are reasonable grounds to believe that President Omar Al'Bashir is criminally responsible for the three counts of genocide included in the Prosecution Application'. In the alternative, the Appeals Chamber should reverse the decision, set out the proper standard for an inference of genocidal intent under Article 58, and remand the case to the Pre-Trial Chamber with instructions to decide whether reasonable grounds exist for issuing a warrant alleging genocide.

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Footnotes

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