The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.

Offices
■ Cairo, Egypt
■ Kampala and Kitgum, Uganda
■ The Hague, the Netherlands

Dear Friends,

Welcome to a Special Issue of Legal Eye on the ICC, a regular eLetter 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 eight Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we also produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

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

This Special Issue is the second in a series of Special Issues reporting on the second trial Judgement handed down by Trial Chamber II in the case against Mathieu Ngudjolo Chui (Ngudjolo) on 18 December 2012. In this second Special Issue, we analyse the proceedings regarding Ngudjolo’s release following his acquittal as well as Judge Van den Wyngaert’s separate and concurring opinion on Article 25(3)(a). In the first Special Issue, we discussed the Chamber's judgement acquitting Ngudjolo of all charges brought by the Prosecution, focusing on the Chamber’s findings in relation to the Prosecution investigation, the credibility of witnesses and Ngudjolo’s alleged responsibility.

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DRC :: Ngudjolo's immediate release and request for protective measures and asylum

On 18 December 2012, in the ICC's second trial judgement, Trial Chamber II[1] acquitted Mathieu Ngudjolo Chui (Ngudjolo) of all crimes charged by the Prosecution in the case The Prosecutor v. Mathieu Ngudjolo Chui.[2] Ngudjolo was tried jointly with Germain Katanga (Katanga) in what was the Court's second trial, as well as the second case, after the Lubanga case, arising from the DRC Situation. It was also the first case in which crimes of sexual violence were charged.[3] The case centred on an attack on the village of Bogoro in the Ituri region by the Front de nationalistes et integrationnistes (FNI) and the Force de resistance patriotique en Ituri (FRPI) on 24 February 2003. Katanga and Ngudjolo were the alleged commanders of the FRPI and FNI, respectively. On 21 November 2012, Trial Chamber II severed the cases against Ngudjolo and Katanga.[4]

Ngudjolo was charged under Article 25(3)(a) of the Rome Statute with seven counts of war crimes: rape, sexual slavery, wilful killings, directing an attack against a civilian population, using children under the age of 15 to take active part in the hostilities, destruction of property, and pillaging.[5] He was also charged with three counts of crimes against humanity: rape, sexual slavery, and murder.[6] While the Chamber affirmed in the trial judgement that the events as alleged, including the crimes, had taken place,[7] it concluded that, in the absence of sufficient evidence, it could not find beyond a reasonable doubt that Ngudjolo was the lead commander of the Lendu combatants from Bedu-Ezekere at the time of the Bogoro attack.[8] Similarly, while finding the use of child soldiers to be a generalised phenomenon in Ituri, and more specifically that child soldiers from Bedu-Ezekere had participated in the attack on Bogoro, the Chamber concluded that it did not have enough evidence to link Ngudjolo to this crime beyond a reasonable doubt.[9] For a more detailed analysis of the Chamber’s findings acquitting Ngudjolo, see the first Special Issue of Legal Eye on the ICC.

At the conclusion of the trial judgement, the Chamber ordered the Registry to take the necessary measures for ensuring Ngudjolo's immediate release, and ordered the Victims and Witnesses Unit (VWU) to take any necessary measures to ensure the protection of witnesses. However, his actual release has been delayed by numerous procedural obstacles, described in greater detail below, and he currently remains at a detention centre for refugees at Schiphol airport in the Netherlands, pending a decision on his application for asylum and his request for release from detention in order to participate in the Prosecution appeal of his acquittal.

At a hearing on 18 December 2012, the same day the judgement was delivered, the Prosecution orally requested that the Chamber maintain Ngudjolo in detention based on Article 81(3)(c)(i) of the Statute.[10] The Prosecution argued in the alternative, that the Chamber stay his immediate release in light of the Prosecution's forthcoming appeal of the trial judgement. The Prosecution alleged a risk of flight, based on a 2009 decision issued by the Chamber,[11] and referred to the potential threat to witnesses.[12] In their submissions concerning Ngudjolo's continued detention, the Legal Representatives of Victims reiterated that Ngudjolo posed a risk of flight in light of the future Prosecution appeal, and that his release constituted a potential risk to victims and witnesses appearing in the context of the ongoing Katanga case, which they argued constituted an exceptional circumstance for the purpose of Article 81(3)(c)(i).[13] Legal Representative Luvengika specifically requested that if Ngudjolo were to be released, the Chamber apply one of the conditions of release set forth in Rule 119 of the Rules of Procedure and Evidence, without indicating any specific condition.[14] Both the Prosecution and Legal Representatives argued that the acquittal did not diminish the gravity of the crimes, which would be again considered on appeal.

In a third hearing that same day, the Trial Chamber issued an oral decision, finding no exceptional circumstances warranting Ngudjolo's continued detention pursuant to Article 81(3)(c)(i). The Chamber underscored that the Prosecution submission focused on the substantive issues to be determined on appeal, namely the credibility and probative value of witness testimony,[15] rather than on establishing exceptional circumstances necessitating Ngudjolo's continued detention, and stated that it could 'only observe that the Office of the Prosecutor has been unable to justify the existence of such circumstances'.[16] It noted in this regard that the Prosecution request could only be analysed as one for continued detention, and not as a request for a stay in the execution of the judgement. It further found it had no legal basis upon which to stay Ngudjolo's release. Noting the absence of any reference to any specific legal provision in the Victims' Legal Representatives' request that the Chamber apply conditions to Ngudjolo's release pursuant to Rule 119, the Chamber found that it could not rule on the issue.[17]

The following day, on 19 December, the Prosecution appealed the Trial Chamber's oral decision to release Ngudjolo, simultaneously requesting that the Appeals Chamber suspend implementation of the trial judgement.[18] It again argued that Ngudjolo's release should be suspended on an expedited basis, pending resolution of the appeal, essentially repeating the same arguments presented to the Trial Chamber on this issue, namely: risk of flight, potential threats to witnesses and that his release would render the Prosecution appeal of the judgement moot.

On 20 December, the Appeals Chamber rejected the Prosecution request for suspensive effect. It noted that pursuant to Article 82(3), granting suspensive effect was an issue falling within its discretion to be determined based on the particular circumstances of the case.[19] It reasoned that Article 81(3)(c) required that the acquitted be released immediately, and thus 'particularly strong reasons' for maintaining his detention must exist. It found that 'the Prosecutor has put forward no such reasons'.[20] The Prosecution subsequently withdrew its appeal of the Trial Chamber's decision to release Ngudjolo.[21]

On 21 December 2012, Ngudjolo was released from the Court's detention facilities and turned over to the Dutch police, which transferred him to Schiphol airport in order to deport him to the DRC.[22] In an attempt to avoid deportation, Ngudjolo requested asylum based on his testimony as a witness in his own case.[23] He was subsequently placed in the detention centre for refugees at the airport, where he remains to date.[24]

On the same day, the Defence filed a request with the Appeals Chamber, seeking the application of protective measures pursuant to Article 68 to enable Ngudjolo to relocate to a country within the Schengen zone, specifically Belgium, in order to apply for political asylum.[25] The Defence argued that as a witness in his own case, the protection afforded to witnesses pursuant to Article 68 should apply to Ngudjolo as it had applied to two detained Defence witnesses who had subsequently sought asylum in the Netherlands.[26] Specifically, the Defence argued that Ngudjolo's testimony before the Court implicated the Congolese authorities in the attack on Bogoro, giving rise to a well-founded fear of political persecution.[27] In support of its argument, the Defence noted that the military salary provided to Ngudjolo by the DRC was discontinued in October 2012. It thus requested that the Chamber suspend any repatriation measures to the DRC. On 24 December 2012, the Appeals Chamber confidentially ruled on the Defence request for relocation.[28] On that same day, the Registry filed a confidential 'Report on the developments relating to the release and asylum request made by Mathieu Ngudjolo Chui' with three confidential, ex parte annexes.[29]

Over one month later, on 30 January 2013, the Defence filed an addendum to its request with the Appeals Chamber.[30] It argued that neither the Registry nor the VWU were fulfilling their obligations in ensuring Ngudjolo’s protection as a witness as ordered in the trial judgement, or in implementing their obligations pursuant to Rule 185 of the Rules of Procedure and Evidence.[31] The Defence asserted that there was no legal basis for his detention by the Host State, as he was not illegally present in the Netherlands, and that he should be placed in liberty for the purpose of his participation in the appeal as well as to pursue his asylum application. Specifically, it requested that the Appeals Chamber order the Registry to provide a document to the Host State indicating that Ngudjolo's presence in the Netherlands was necessary for the purpose of the appeal.[32] It further requested that Ngudjolo be remitted back into the custody of the Court for the purpose of determining where to relocate him, pending the appeal of his case and his asylum application.[33]

In a response ordered by the Appeals Chamber,[34] the Registry noted that it had received no indication from the Appeals Chamber as to whether Ngudjolo's presence was necessary for the purpose of the appeals, or whether the procedures would be conducted through written submissions. However, it expressed its willingness to do whatever was necessary to ensure his presence if it was required.[35] It also asserted that the legality of Ngudjolo's presence in the Host State, and thus his detention by the Dutch authorities, did not fall within the Court's competence. The Registry further indicated that the Host State had informed it that the UN Security Council travel ban would not be lifted until a State had agreed to receive Ngudjolo within its territory.[36] Concerning the Defence request for protection, the Registry noted that the VWU had conducted an evaluation and determined that the request was without merit.[37] On 20 March 2013, the Appeals Chamber granted the Defence request to reply to the Registry's Report and observations,[38] and ordered that it be filed confidentially.[39]

On 8 February 2013, the same day that the Defence filed a second addendum to its request,[40] the Legal Representatives of Victims submitted a joint request to the Appeals Chamber for access to the confidential, ex parte annexes to the Defence filings.[41] In the request, they noted the victims' continued interest in the appellate proceedings, particularly concerning Ngudjolo's release and relocation.[42] On 6 March, the Appeals Chamber subsequently ordered the Registry to reclassify the filings and to contact the Host State to seek permission to reclassify its submissions.[43] The Netherlands did not oppose reclassifying the three annexes to the Registry report as public.[44]

On 27 March 2013, the Defence filed another urgent request to the Appeals Chamber, indicating that the conditions of detention at Schiphol airport impeded Ngudjolo from exercising his right to adequate time and facilities to prepare his defence.[45] The Defence noted its inability to communicate freely and confidentiality with its client, Ngudjolo's inability to access his case file, and a negative health and psychological impact from sharing his cell with another national of the DRC. It requested guidance and a time limit extension in order to be able to submit a response to the Prosecution document in support of the appeal of the trial judgement.[46]

The appeals proceedings remain ongoing at the time of writing.

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DRC :: Judge Van den Wyngaert's concurrence to the Ngudjolo trial judgement

In its final judgement, Trial Chamber II based the acquittal of Ngudjolo on its factual findings concerning his role and functions within the Lendu militia from Bedu-Ezekere, and declined to enter into any legal analysis of Ngudjolo's criminal responsibility. The Trial Chamber concluded that the Prosecution had not demonstrated beyond a reasonable doubt that Ngudjolo had committed the alleged crimes pursuant to Article 25(3)(a)[47] with respect to his role within the Bedu-Ezekere militia.[48] Significantly, it stated, 'an examination of the evidence does not permit retaining, nor even envisaging, the form of indirect perpetration adopted by the Pre-Trial Chamber, whatever its interpretation of Article 25(3)(a) of the Statute'.[49] Consequently, the Chamber did not find it necessary to analyse the objective elements of co-perpetration retained by the Pre-Trial Chamber, namely: the 'common plan' and Ngudjolo's 'essential contribution' to the objective elements of the crime.[50] While the Chamber did not enter into this issue in depth, Judge Van den Wyngaert issued a concurring opinion, addressing Pre-Trial Chamber I's interpretation of Article 25(3)(a) in its decision confirming charges against Ngudjolo based on indirect co-perpetration.[51]

Judge Van den Wyngaert's concurring opinion addressing the mode of responsibility adopted by Pre-Trial Chamber I in the confirmation decision echoed Judge Fulford's concurrence to the trial judgement in the Lubanga case, which also called into question the interpretation of Article 25(3)(a) by Pre-Trial Chamber I. In the confirmation of charges decisions in both the Lubanga and Katanga & Ngudjolo cases, Pre-Trial Chamber I applied the 'control over the crime' theory in its interpretation of Article 25(3)(a), finding that it was the best means of distinguishing between principals and accessories and in ensuring the liability of principals who might be removed from the scene of the crime.[52]

The ‘control of the crime’ theory was described by the Pre-Trial Chamber in the Lubanga and Katanga & Ngudjolo confirmation of charges decisions as follows:

Principals to a crime are not limited to those who physically carry out the objective elements of the offence, but also include those who, in spite of being removed from the scene of the crimes, control or mastermind its commission, because they decide whether and how the offence will be committed.[53]

The Pre-Trial Chamber added that under Article 25(3)(a), a principal ‘is one who (i) physically carries out all elements of the offence (commission of the crime as an individual); (ii) has, together with others, control over the offence by reason of the essential tasks assigned to him (commission of the crime jointly with others); or (iii) has control over the will of those who carry out the objective elements of the offence (commission of the crime through another person)’.[54]

Pre-Trial Chamber I explained that applying the ‘control over the crime’ theory to co-perpetration involved 'the division of essential tasks between two or more persons, acting in a concerted manner, for the purposes of committing that crime[…] The fulfilment of the essential task(s) can be carried out by the co-perpetrators physically or they may be executed through another person'.[55] It thus required the Prosecution to prove two objective elements to establish co-perpetration: the existence of a common plan and a coordinated essential contribution to it.[56] Judge Fulford (Trial Chamber I) and Judge Van den Wyngaert (Trial Chamber II) both departed from the 'control over the crime' approach adopted by the Pre-Trial Chamber, as well as from the requirement that the Prosecution demonstrate two objective elements to co-perpetration: the common plan and the accused's essential contribution.[57]

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Judge Fulford's separate concurring opinion in the Lubanga trial judgement

Favouring a plain-text reading of Article 25(3)(a), in his separate, concurring opinion to the Lubanga trial judgement, Judge Fulford argued that the two reasons put forward by the Pre-Trial Chamber for adopting the ‘control over the crime’ principle were unnecessary and imposed an unfair burden on the Prosecution.[58] While noting that the Pre-Trial Chamber had found this approach necessary to distinguish between principals and accessories, as well as to extend to individuals ‘notwithstanding their absence from the scene of the crime’,[59] Judge Fulford had rejected the concept of a ‘hierarchy of seriousness’ distinguishing between principals and accessories. He underscored that the ‘control over the crime’ approach derived from the German domestic legal system where sentencing depended upon the mode of liability, which was not the case within the Court's statutory framework.[60] He had also opined that the ‘control over the crime’ approach to establish liability over principals was rendered unnecessary based on his reading of the provision in which individuals with indirect involvement, or ‘notwithstanding their absence from the scene’, could be ‘prosecuted as co-perpetrators without relying on this principle’.[61]

Concerning the objective requirements to co-perpetration, Judge Fulford found that the Statute required only an ‘operative link between the individual’s contribution and the commission of the crime’, not that the accused’s involvement was essential.[62] He further contended that rather than requiring the establishment of a 'common plan', co-perpetration could be demonstrated by showing 'coordination between those who commit the offence, which may take the form of an agreement, common plan or joint understanding, express or implied, to commit a crime or to undertake action that, in the ordinary course of events, will lead to the commission of the crime'.[63] However, Judge Fulford acknowledged that to preserve the rights of the accused, the Trial Chamber could not change the test to a lesser one of 'contribution', as opposed to 'essential contribution', at this stage of the proceedings and without prior notice. Therefore, he concurred with the majority on this issue. For further analysis of Judge Fulford’s separate concurring opinion, see the second Special Issue of Legal Eye on the ICC on the Lubanga judgement, and the Gender Report Card 2012.

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Judge Van den Wyngaert's concurrence to the Ngudjolo trial judgement

Like Judge Fulford's concurring opinion to the trial judgement in the Lubanga case, Judge Van den Wyngaert distanced herself from the 'control over the crime' theory, as derived from German law and used by Pre-Trial Chamber I in the interpretation of Article 25(3)(a). She found it inappropriate to directly import national legal principles into the ICC statutory framework and concurred with Judge Fulford's preference for a plain meaning approach to interpreting the Statute.[64] She further underscored the importance of strictly construing the definition of crimes as required by Article 22(2),[65] which she argued extended to forms of criminal responsibility as well.[66] She stated, 'treaty interpretation cannot be used to fill perceived gaps in the available arsenal of forms of criminal responsibility'.[67] Similar to Judge Fulford, Judge Van den Wyngaert disagreed with the underlying premise of the 'control over the crime' theory, namely, an implicit hierarchy according to which principals are more blameworthy than accessories. She stated: 'Like Judge Fulford, I see no proper basis for concluding that acting under Article 25(3)(b) of the Statute is less serious than acting under Article 25(3)(a).'[68]

Judge Van den Wyngaert further noted that, as in the Lubanga case, Pre-Trial Chamber I in the Katanga & Ngudjolo case had grounded its interpretation of 'commission through another person' based on German law to find that the ‘control over the crime’ approach was 'predicated on a notion of a principal's control over the organisation'.[69] In contrast, finding that Article 25(3)(a) spoke only of commission 'through another person', Judge Van den Wyngaert contended that 'elevating the concept of "control over an organisation" to a constitutive element of criminal responsibility under Article 25(3)(a) [was] misguided'.[70] First, she found that substituting 'organisation' for 'person' violated strict construction.[71] Second, she found that 'by dehumanising the relationship between the indirect perpetrator and the physical perpetrator, the control over an organisation concept dilute[d] the level of personal influence that the indirect perpetrator must exercise over the person through whom he or she commits a crime'.[72] For Judge Van den Wyngaert, the level of influence of the former over the latter should involve 'subjugation, the domination of the individual will of the physical perpetrator'.[73]

Like Judge Fulford, Judge Van den Wyngaert took issue with the objective elements of co-perpetration, namely the existence of a common plan and the accused's essential contribution to it. Observing that a common plan constituted a 'crucial' objective element in the Pre-Trial Chamber's interpretation of 'joint perpetration', Judge Van den Wyngaert noted that the term 'common plan' appeared nowhere in the Statute, nor in the travaux préparatoires.[74] She found the common plan requirement to be overly rigid as an objective element as it did not cover instances where two or more people 'spontaneously commit a crime together on an ad hoc basis'.[75] She explained that as an objective element, the common plan turned the focus 'away from how the conduct of the accused [was] related to the commission of a crime to what role he/she played in the execution of the common plan'.[76]

Judge Van den Wyngaert also observed that the 'essential contribution' requirement was premised on the idea that the perpetrator should control the commission of the crime, and thus flowed from the ‘control over the crime’ theory. Judge Van den Wyngaert agreed with Judge Fulford that there was no statutory support for the essential contribution requirement.[77] She found that it compelled 'Chambers to engage in artificial, speculative exercises about whether a crime would still have been committed if one of the accused had not made exactly the same contribution'.[78] However, while Judge Fulford had suggested that the required level of contribution be a 'causal link between the individual's contribution and the crime', Judge Van den Wyngaert found causality to be too 'elastic'.[79] Rather, she suggested that for joint perpetration, there must be 'a direct contribution to the realisation of the material elements of the crime' to be determined in the specific circumstances of each case.[80]

As noted above, with the exception of the crimes related to the use of child soldiers, the Pre-Trial Chamber confirmed the charges against Ngudjolo based on 'indirect co-perpetration'. Judge Van den Wyngaert observed that in doing so, the Pre-Trial Chamber combined 'joint perpetration' with 'perpetration through another person' to introduce the concept of 'indirect co-perpetration', and that it had found no legal obstacle in doing so.[81] Judge Van den Wyngaert thus identified 'indirect co-perpetration' as a fourth alternative to the existing three provided in Article 25(3)(a), namely perpetration, joint perpetration, and perpetration through another person. She found this interpretation of the Statute 'unconvincing' as it led to 'a radical expansion of Article 25(3)' and 'a totally new mode of liability'[82]

Judge Van den Wyngaert described this mode of liability as the creation of a 'new diagonal axis', with ‘joint perpetration’ constituting a horizontal axis and ‘perpetration through another’ constituting a vertical axis.[83] She thus found that according to Pre-Trial Chamber I's interpretation, it was possible to confirm charges based on this newly created mode of liability, 'indirect co-perpetration', without being able to confirm either joint perpetration, or indirect perpetration, both explicitly included in the Statute. She stated: 'One needs to look no further than the (now largely discredited) facts confirmed by the Pre-Trial Chamber in the current case for an example of how this could be so.'[84]

■ Read the trial judgement acquitting Ngudjolo

■ Read the separate and concurring opinion by Judge Van Den Wyngaert

■ Read the first Special Issue of Legal Eye on the ICC on the Ngudjolo judgement

■ For more background about the case against Ngudjolo see the Gender Report Card 2012, 2011, 2010, 2009 and 2008

■ See also the series of Special Issues of Legal Eye on the ICC on the Lubanga judgement

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Footnotes

1   Trial Chamber II was composed of Presiding Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium).
2   ICC-01/04-02/12-3.
3   Both Katanga and Ngudjolo were charged with rape and sexual slavery as both war crimes and crimes against humanity.
4   ICC-01/04-01/07-3319. The cases were joined on 10 March 2008. ICC-01/04-01/07-257. Ngudjolo was arrested in the DRC and transferred into the custody of the Court in February 2008.
5   Articles 8(2)(b)(xxii); 8(2)(a)(i); 8(2)(b)(i); 8(2)(b)(xxvi); 8(2)(b)(xii); and 8(2)(b)(xvi).
6   Articles 7(1)(g) and 7(1)(a).
7   Specifically concerning the sexual violence charges, the Chamber found, as a factual matter, that there was extensive evidence attesting to the commission of rape and sexual enslavement. ICC-01/04-02/12-3, para 338. See Gender Report Card 2010, p 162-163. See also 'Statement by the Women's Initiatives for Gender Justice on the Opening of the ICC trial of Germain Katanga and Mathieu Ngudjolo Chui', CICC Press Conference, 23 November 2009, available at: <http://www.iccwomen.org/news/docs/Katanga-Statement.pdf>.
8   Although the Prosecution had initially argued that Ngudjolo was the Commander-in-Chief of the FNI, the evidence presented during trial revealed that the FNI was officially created at a later date. Consequently, the judgement reflected the Prosecution closing arguments, which referred to the Lendu combatants from Bedu-Ezekere. ICC-01/04-02/12-3, paras 347-351.
9   ICC-01/04-02/12-3, para 516.
10   Article 81(3)(c)(i) reads: 'In the case of acquittal, the accused person is immediately released pursuant to the following conditions: Under exceptional circumstances, and particularly in relation to the risk of fleeing, the severity of the offence, and the Trial Chamber may, at the request of the Prosecution, order that the accused person remain in detention during the appeal.'
11   IThe Prosecution referred to ICC-01/04-01/07-1593, 4 November 2009.
12   ICC-01/04-02/12-T-2-ENG, p 5-9.
13   ICC-01/04-02/12-T-2-ENG, p 11.
14   Rule 119 sets forth the options for conditional release, including, inter alia, territorial limitations, restrictions on contacting witnesses, residing at a particular address.
15   Trial Chamber II had found that the three key witnesses for the Prosecution case were not credible, which led to Ngudjolo's acquittal. See further, first Special Issue of Legal Eye on the ICC on the Ngudjolo judgement.
16   ICC-01/04-02/12-T-3-ENG, p 5 lines 18-19.
17   ICC-01/04-02/12-T-3-ENG, p 5 lines 10-11. The Trial Chamber further questioned its ability to set conditions for release upon acquittal.
18   ICC-01/04-02/12-5.
19   ICC-01/04-02/12-12, para 20.
20   ICC-01/04-02/12-12, para 24. The Appeals Chamber declined to consider Prosecution arguments concerning risk of flight and threats to witnesses, which would be considered with the merits of the appeal.
21   ICC-01/04-02/12-18.
22   ICC-01/04-02/12-22, paras 4-5; ICC-01/04-02/12-26, paras 3, 22, 23.
23   Ngudjolo testified under oath as a witness in November 2011, and made a closing statement at the conclusion of the trial. ICC-01/04-01/07-T-340-ENG, p 54 lines 16-24.
24   ICC-01/04-02/12-20, paras 4-7; ICC-01/04-02/12-22, paras 4-5; ICC-01/04-02/12-26, paras 3, 22, 23.
25   ICC-01/04-02/12-15.
26   Three detained Defence witnesses who testified in the Katanga & Ngudjolo case have remained in the custody of the Court for approximately two years, pending their asylum claims before the Dutch authorities. As reported within the framework of the Katanga case, on 31 October and 28 November 2012, the Dutch Immigration and Naturalisation Service rejected the witnesses' applications for asylum. Those decisions have been appealed. ICC-01/04-01/07- 3351, para 19. For further background on the detained Defence witnesses' applications for asylum, see Gender Report Card 2011, p 230, 327-332.
27  ICC-01/04-02/12-15, paras 21-23.
28  ICC-01/04-02/12-17-Conf, cited in ICC-01/04-02/12-40, para 5.
29   ICC-01/04-02/12-16-Conf-Exp, cited in ICC-01/04-02/12-43, para 3.
30   ICC-01/04-02/12-20; ICC-01/04-02/12-21.
31  Rule 185 addresses the release of persons, including in the case of acquittal, requiring the Court to make 'appropriate' arrangements to transfer the person, taking into account his or her views, 'to a State which is obliged to receive him or her, or to another State which agrees to receive him or her'.
32   The Registry had responded to an initial direct request by the Defence, informing that the Appeals Chamber had not indicated the necessity of Ngudjolo's presence for the purpose of any upcoming hearing in the Prosecution appeal. ICC-01/04-02/12-20, paras 12-13.
33   The Defence subsequently filed two addendums to its request. ICC-01/04-02/12-21; ICC-01/04-02/12-22.
34   ICC-01/04-02/12-24.
35   ICC-01/04-02/12-25, para 4.
36   ICC-01/04-02/12-25, para 4.
37   ICC-01/04-02/12-25, para 10.
38   ICC-01/04-02/12-26.
39   ICC-01/04-02/12-43.
40   ICC-01/04-02/12-22. In the second addendum, the Defence elaborated on its arguments concerning the obligation of the Host State to cooperate with the Court in ensuring the protection and relocation of witnesses.
41   ICC-01/04-02/12-23.
42   ICC-01/04-02/12-23, para 24.
43   ICC-01/04-02/12-26.
44   ICC-01/04-02/12-38. The public annexes, however, are not available on the ICC’s website.
45   ICC-01/04-02/12-40.
46   ICC-01/04-02/12-40, paras 27-32.
47   Article 25(3)(a) provides that 'a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: commits such a crime, whether as an individual, jointly with another person, or through another person, regardless of whether that other person is criminally responsible'.
48   For a more detailed description of the Ngudjolo trial judgement, see first Special Issue of Legal Eye.
49   ICC-01/04-02/12-3, para 110.
50   ICC-01/04-02/12-3, para 110.
51   ICC-01/04-02/12-3, para 107. Pre-Trial Chamber I had confirmed the charges against Ngudjolo based on indirect co-perpetration for all crimes except those related to using child soldiers, for which he was charged as a direct co-perpetrator. ICC-01/04-02/12-3, para 107; ICC-01/04-01/07-717, para 489.
52   ICC-01/04-01/06-803-tEN, paras 326-338; ICC-01/04-01/07-717, paras 480-486, referring to its reasoning in the confirmation of charges decision in the Lubanga case.
53   Emphasis in original. ICC-01/04-01/07-717, para 485; See also ICC-01/04-01/06-803-tEN, para 330.
54   ICC-01/04-01/07-717, para 488; See also ICC-01/04-01/06-803-tEN, para 332.
55   ICC-01/04-01/07-717, para 521.
56   See ICC-01/04-01/06-80-tEN, paras 343, 346; ICC-01/04-01/07-717, paras 522-526.
57   However, Judge Fulford concurred with the application of the legal framework as adopted by the Pre-Trial Chamber, as to do otherwise would be unfair to the Defence. ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 2.
58   ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 3.
59   ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, paras 5-6.
60   Specifically, Judge Fulford noted that pursuant to Rule 145(1)(c), the degree of participation was only one of a number of relevant factors for sentencing. ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, paras 9-11.
61   ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 12.
62   ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 15.
63   ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 16. For a more detailed description of Judge Fulford's concurrence, see Gender Report Card 2012, p 155-156.
64   ICC-01/04-02/12-4, paras 5, 8, 30.
65   Article 22(2) provides: 'The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.'
66   ICC-01/04-02/12-4, para 17.
67   ICC-01/04-02/12-4, para 16.
68   ICC-01/04-02/12-4, para 23. Rather, Judge Van den Wyngaert found that 'the blameworthiness of the accused is dependent on the factual circumstances of the case rather than on abstract legal categories'. ICC-01/04-02/12-4, para 24.
69   ICC-01/04-02/12-4, para 50, citing ICC-01/04-01/7-717, para 500 (internal quotations omitted). The Pre-Trial Chamber had found that 'the cases most relevant to international criminal law are those in which the perpetrator behind the perpetrator commits the crime through another by means of "control over the organisation" (Organisationsherrschaft)', that this concept had been incorporated into the Statute and applied by Pre-Trial Chamber III in the Bemba case. ICC-01/04-01/7-717 paras 498, 501, 509.
70   ICC-01/04-02/12-4, para 52, (emphasis in original).
71   ICC-01/04-02/12-4, para 52.
72   ICC-01/04-02/12-4, para 53.
73   ICC-01/04-02/12-4, para 54.
74   ICC-01/04-02/12-4, para 31, noting that mention was made of a 'collective criminal purpose' in Article 25(3)(d).
75   ICC-01/04-02/12-4, para 33.
76   ICC-01/04-02/12-4, para 34 (emphasis in original).
77   ICC-01/04-02/12-4, para 41.
78   ICC-01/04-02/12-4, para 42.
79   ICC-01/04-02/12-4, para 43. Judge Fulford specifically suggested that the required contribution could be 'direct or indirect, provided either way there is a causal link between the individual’s contribution and the crime'. ICC-01/04-01/06-2842, Separate Opinion of Judge Adrian Fulford, para 16.
80   ICC-01/04-02/12-4, paras 44, 46, 47 (emphasis in original). Notably, Judge Fulford's interpretation would lessen the Prosecution's burden of proof, while Judge Van den Wyngaert's could increase it.
81   ICC-01/04-02/12-4, para 58.
82   ICC-01/04-02/12-4, paras 60, 61.
83   ICC-01/04-02/12-4, para 59.
84   ICC-01/04-02/12-4, para 63.

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