The Annotated Digest of the International Criminal Court [annotated edition] 9004163115, 9789004163119, 9789047422624

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The Annotated Digest of the International Criminal Court

The Annotated Digest of the International Criminal Court Series Volume 1: 2004-2006

The Annotated Digest of the International Criminal Court Volume 1

2004-2006

CYRIL LAUCCI

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISSN 1874-7957 ISBN 978 90 04 16311 9 © 2007 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

CONTENTS

Foreword by Honourable Judge Claude Jorda ............................................ vii Introduction ................................................................................................... ix

PART I STATUTE OF THE INTERNATIONAL CRIMINAL COURT ........ 1

PART II RULES OF PROCEDURE AND EVIDENCE ................................ 317

PART III REGULATIONS OF THE COURT ................................................. 541

List of Reviewed Decisions ............................................................... 632 Index .................................................................................................. 650 Table of Contents .............................................................................. 657

FOREWORD BY HONORABLE JUDGE CLAUDE JORDA, PRESIDING JUDGE OF PRE-TRIAL CHAMBER I Hasard du calendrier ? Cet ouvrage paraît alors que nous venons tout juste de fêter les cinq ans de la Cour pénale internationale (CPI). Pour la première fois depuis la création d’une justice internationale, il est créé une juridiction pénale internationale, permanente, qui peut exercer sa compétence à l’égard des personnes pour les crimes les plus graves. Complémentaire des juridictions nationales et à vocation universelle, elle est à la fois le prolongement des tribunaux ad hoc tout en mettant en place une procédure différente, faisant une place toute particulière aux victimes. Aux termes de ces cinq années, il est peut être temps de s’arrêter un instant et d’apprécier le chemin parcouru depuis Rome. L’initiative de Cyril Laucci tombe ainsi à point nommé. En effet, quatre situations sont aujourd’hui inscrites au rôle de la Cour : les situations en Ouganda, en République démocratique du Congo, au Darfour (Soudan) ainsi qu’en République Centrafricaine, et huit mandats d’arrêt ont été à ce jour délivrés, ce qui se traduit par un véritable foisonnement de décisions. À titre d’exemple, la Chambre préliminaire I a rendu, à elle seule, plus de deux cents décisions dans l’affaire Le Procureur contre Thomas Lubanga Dyilo et ce en moins d’un an. Un travail de sélection et de citation des passages pertinents des décisions rendues par les différentes Chambres de la Cour s’imposait alors. En ce sens, le digest que nous propose Cyril Laucci répond à un véritable besoin juridique ; praticiens et académiciens y trouveront un outil indispensable, clair, concis et accessible de ce que nous pouvons désormais appeler la jurisprudence de la Cour. A cet égard, je souhaite saisir l’opportunité pour remercier l’auteur de son initiative. Juge Claude Jorda La Haye

INTRODUCTION

An Overview of the Work Accomplished by the International Criminal Court since its Creation Since the entry into force of the Rome Statute on 1st July 2002, the International Criminal Court (ICC) has started to work. Situations in four countries have been referred to the Prosecutor*. They concern three State Parties, namely Uganda, Democratic Republic of the Congo and Central African Republic, which have referred to the Court situations occurring on their own territories, pursuant to Article 13 (a) of the Rome Statute. Uganda referred the situation concerning the Lord’s Resistance Army (LRA) on 29 January 2004, the Democratic Republic of Congo on 19 April 2004 and the Central African Republic on 7 January 2005. The fourth situation, Darfur, is related to a non-State Party, Sudan, and was referred by the Security Council in its Resolution 1593 (2005) of 31 March 2005, pursuant to Article 13 (b) of the Rome Statute. After thorough analysis of the information made available to him, the Prosecutor decided, pursuant to Article 53 (1) of the Rome Statute, to open investigations in the situations in the Democratic Republic of Congo on 23 June 2004 (Situation No. ICC-01/04), in Northern Uganda on 29 July 2004 (Situation No. ICC-02/04), in Darfur, Sudan on 6 June 2005 (Situation No. ICC-02/05) and in the Central African Republic on 22 May 2007 (Situation No. ICC-01/05). Besides, the Prosecutor continues to monitor, in accordance with Article 15 (1) of the Rome Statute, situations in other countries. In particular, Côte d’Ivoire, though a non-State Party, has accepted the jurisdiction of the Court over crimes committed on its territory. On 8 July 2005, Pre-Trial Chamber II, , composed of Judge Mauro Politi (Italy)(Presiding), Judge Fatoumata Dembele Diarra (Mali) and Judge Ekaterina Trendafilova (Bulgaria), issued its first arrest warrants pursuant to Article 58 of the Rome Statute. They concern the situation in Uganda and target five alleged leaders of the Lord’s Resistance Army, Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen (Case No. ICC-02/04-01/05). The warrant of arrest against Joseph Kony was further amended on 27 September 2005. They are all five charged with Crimes against humanity (Article 7 of the Rome Statute) and War Crimes (Article 8). On 7 November 2006, the Prosecutor confirmed Raska *

Information in the present introduction are up-to-date on 31 July 2007.

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Lukwiya’s death in fire fights, which allegedly occurred on 12 August 2006. Consequently, proceedings against Raska Lukwiya were officially terminated on 11 July 2007. The warrants of arrest have not been executed yet and the four remaining persons are still at large. Another arrest warrant was delivered on 10 February 2006 in the situation in the Democratic Republic of Congo against Thomas Lubanga Dyilo (Case No. ICC-01/04-01/06), who allegedly founded and became a leader of the Forces Patriotiques pour la Libération du Congo (FPLC), an armed group involved in the conflict in Ituri, and is charged with enlisting or conscripting children under the age of fifteen and using them to participate actively in the hostilities (Article 8 (2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute). Thomas Lubanga Dyilo, who was already detained in Congo when his warrant of arrest was issued, was transferred to the Court on 17 March 2006. His initial appearance was held pursuant to Article 60 (1) of the Rome Statute on 20 March 2006 before Pre-Trial Chamber I, composed of Judge Claude Jorda (France)(Presiding), Judge Akua Kuenyehia (Ghana) and Judge Sylvia Steiner (Brazil). On 28 August 2006, the Prosecutor filed the document detailing charges together with the list of evidence he intended to present at the confirmation hearing. The confirmation hearing was held from 9 until 28 November 2006. On 29 January 2007, Pre-Trial Chamber I confirmed charges against Thomas Lubanga Dyilo pursuant to Article 61 of the Rome Statute and consequently committed him for trial. On 6 March 2007, the Presidency referred the case to Trial Chamber I, composed of Judge Elizabeth Odio Benito (Costa Rica), Judge René Blattmann (Bolivia) and Judge Adrian Fulford (United Kingdom). Trial Chamber I elected Judge Adrian Fulford as the Presiding Judge on 12 July 2007. No schedule has been announced yet with respect to the starting of the trial. Eventually, two last warrants of arrest were issued by Pre-Trial Chamber I in relation to the Situation in Darfur, Sudan on 27 April 2007 (Case No. 02/0501/07): the first warrant of arrest is against Ahmad Muhammad Harun (“Ahmad Harun”), former Sudan Minister of State for the Interior and current Sudan Minister of State for Humanitarian Affairs; the second against Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”), an alleged leader of the Janjaweed militia. Both are charged with Crimes against humanity (Article 7 of the Rome Statute) and War crimes (Article 8). Trial Chamber I further denied the Prosecutor’s application for summonses to appear, on the ground that it was not convinced that the charged persons would voluntarily appear before the Court. Throughout the proceedings in the above mentioned situations and cases, the International Criminal Court issued more than 240 public decisions between July 2004, time when the first decisions were issued, and 31 December 2006. These decisions are reviewed in the present volume.

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Presentation of the Annotated Digests Series The Annotated Digest of the International Criminal Court 2004-2006 is the first volume of a Series. The aim of the Series is to present a collection of the most relevant abstracts of decisions rendered by the International Criminal Court. The Series is first and foremost devised as a tool for legal practitioners before the International Criminal Court and other international courts, as well as academics. To achieve this purpose, all public decisions issued by the Court are reviewed in a systematic way and the relevant legal findings they contain are selected on the basis of the following criteria: 1/ findings which give an interpretation of the basic rules of the Court, namely the Rome Statute, the Rules of Procedure and Evidence and the Regulations of the Court; or 2/ findings which show how a specific basic rule is concretely implemented by the Court; or 3/ findings which clarify a point of law of general importance with respect to international criminal law, international humanitarian law, international law of human rights, etc; or 4/ findings which are otherwise meaningful with respect to international criminal justice. Once selected, these abstracts are either quoted in the Digest or have their full references mentioned in footnotes under quoted findings of previous decisions that have the same meaning. The full text of reviewed decisions is not reproduced, but is available on the ICC website: www.icc-cpi.int Selected abstracts are quoted together with their full references: Chamber, situation or case, title of the decision, date, paragraphs or pages. The format of the original decision (italics, bold, underlining, spelling, etc) is respected. Footnotes of the abstracts are fully reproduced as endnotes at the end of each abstract with their original numbering. They are distinct from actual footnotes of the present volume, which appear as normal footnotes. Selected abstracts are quoted in the working language of the original decision, English or French. Where available (in most cases), the official English translation of abstracts in French is also provided. The official French translation of abstracts in English is not provided. Selected abstracts are quoted under the relevant article of the Rome Statute, Rules of Procedure and Evidence or Regulations of the Court they are most directly related to.

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Each selected abstract, or group of abstracts, is introduced in a chapeau describing briefly, usually two to three lines, its content. Examples: x

Article 68(3): Participation of victims – Confirmation hearing (granted) - Modalities of victims’ participation – Consequences of anonymity on modalities of participation

This chapeau means that the abstract(s) quoted below is (are) related to the issue of participation of victims, as provided in Article 68 (3) of the Rome Statute, to a confirmation hearing and is (are) describing the concrete modalities of their participation, with the specific issue of their anonymity. x

Rule 89(3): Application by a person acting with the consent of the victims – The “acting” person can be a legal person – No requirement that the victim be a child or disabled

This chapeau means that the abstract(s) quoted below address(es) the issue of applications for participation of victims in the proceedings made by a person acting with the consent of the victim pursuant to Rule 89(3) of the Rules of Procedure and Evidence. The abstracts reveals that the “acting” person can be a legal person and that such applications by third persons are admissible, even where the victim is neither a child nor disabled. x

Regulation 86(1): Application standard forms – To be used “to the extent possible” – Use of alternative forms provided by NGOs admitted as long as the form contains the required information and is signed by the applicant

This chapeau means that the abstract(s) quoted below clarify(ies) the words “to the extent possible” in regulation 86(1) of the Regulations of the Court and affirms that alternative forms provided by non-governmental organizations are admissible under the condition that they contain the required information and are signed by the applicant. Each quoted abstract is attributed a Quick Reference Number (“QRN”). The QRN is made of four data: x

“S”, “R” or “r” for Statute (“S”), Rules of Procedure and Evidence (“R”) or Regulations of the Court (“r”). This first data informs the reader in relation to which basic text of the Court the abstract is quoted. Abstracts related to articles of the Statute are quoted in the first Section of the Digest, those in relation to Rules of Procedure

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and Evidence in the second Section and those in relation to Regulations of the Court in the third Section. x

“x”: The first data is immediately followed by a number: this number corresponds to the specific numbering of the article in the Statute, Rules of Procedure and Evidence or Regulations of the Court the abstract is related to.

x

“PT”, “T”, “A” or “P” for Pre-Trial Chambers (“PT”), Trial Chambers (“T”), Appeals Chamber (“A”) or Presidency (“P”). This third data indicates the authority that issued the quoted decision. For each article of the basic texts of the Court, abstracts of decisions rendered by Pre-Trial Chambers are quoted first. They are followed consecutively by, where available, abstracts of decisions rendered by Trial Chambers, the Appeals Chamber and the Presidency.

x

“y”: The last data of QRN is the numbering of the abstract in the relevant section of the Series. Since the current volume is the first of the Series, this number also corresponds to the numbering of the abstract in the volume. In volumes to come, the numbering in each section will continue the numbering of the previous issues. For instance, since the present volume goes up to 18 in the R81-PT Section, corresponding to abstracts of decisions rendered by PreTrial Chambers in relation to Rule 81 (“Restrictions on Disclosure”), the QRN of the first abstract of this section in Volume 2 will be R81-PT-19.

Examples: x S1-PT-1 is the QRN for the first abstract (last “1”) of a decision issued by a Pre-Trial Chamber (“PT”) quoted in the Digest in relation to Article 1 (first “1”) of the Statute (“S”); x R158-A-2 is the QRN for the second abstract (“2”) of a decision issued by the Appeals Chamber (“A”) quoted in the Digest in relation to Rule 158 (“158”) of the Rules of Procedure and Evidence (“R”); x r46-P-1 is the QRN for the first abstract (“1”) of a decision issued by the Presidency (“P”) quoted in the Digest with respect to Regulation 46 (“46”) of the Regulations of the Court (“r”). QRN are used in the List of Reviewed Decisions, the Thematic Index and the Table of Contents appended at the end of the Digest. The Series does not comment on the abstracts. Its aim is to lead the reader directly to the most relevant information he or she is seeking in the course of his or her legal practice: what did the Court say on such and such specific

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legal issue. This information is presented in the most objective way, without the opinion of the author on it. The current volume is the first of the Series of Annotated Digest of the International Criminal Court. It is covering the period starting from July 2004, time of the first decisions issued by the Court, until 31 December 2006. 242 public decisions have been reviewed for the preparation of the volume. Depending on the number of decisions issued by the Court in the years to come, new volumes will be published annually or biennially. Volumes in the Series will follow each other and refer to abstracts quoted in previous issues by way of QRN. How to use the Annotated Digest of the International Criminal Court? As a tool for legal practitioners before the International Criminal Court and other international courts and academics, the Annotated Digest is devised to answer as quickly and exhaustively the questions “what is this decision of the Court saying?”, “what are the relevant decisions of the Court on this basic rule/topic?” and “what does the Court say on that basic rule/topic?”. What is this decision of the Court saying? For readers who need to know quickly what is contained in a specific decision – already identified - without time for finding it on the ICC website and reading it from A to Z, the List of Reviewed Decisions appended at the end of the Digest refers to all the abstracts of each quoted decision, identified by their QRN. QRN in bold mean that the decision is quoted in the Digest; QRN in italics mean that the decision is not quoted, but is referred to in footnotes under abstracts of another decision reaching the same finding. The absence of entries means that the author did not find any relevant legal finding in the specific decision. The reader can directly refer to each abstract of the decision he or she is looking for quoted in the Digest and find the relevant findings selected by the author. The chapeau summarizing the content of the quoted abstract helps to immediately identify the topics addressed. He or she may that way identify one or more topics addressed in the decision he or she was looking for and see what the Court said with respect to these issues. What are the relevant decisions of the Court on this basic rule/topic? Readers who wish to identify relevant decisions of the Court on a specific basic rule may go straight to the relevant section of the Digest and look at

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the entries, which indicate the full reference of the quoted decisions and, in footnotes, those which are related. Basic rules without entry mean that the author did not identify any relevant abstract with respect to these rules in the decisions reviewed in the volume. Another way is to start with the Thematic Index appended at the end of the Digest, which refers to a list of topics. On each topic, the reader is referred to the QRN and pages of relevant abstracts quoted in the volume. Upon reaching the entry, the reader finds the full references of the quoted decision and, where applicable, may find references of other decisions on the same topic in footnotes. What does the Court say on that basic rule/topic? Once the relevant abstract(s) on a basic rule/topic are identified, the reader can refer to each entry and read the summary of the abstract in the chapeau. He or she can then read through the whole abstract, which accurately quotes the original decision, including its footnotes. For readers who do not read French, the official English translation of decisions rendered in French is, where available, provided. If it is not available, readers who do not understand French can still get a general idea of the content of the abstract through its chapeau (always in English) and, if the abstracts seems relevant, may check for the English translation of the decision on the ICC website.

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ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT Part 1 – Establishment of the Court Article 1 – The Court An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

PRE-TRIAL CHAMBERS x

Article 1: Jurisdiction of the Court – Assessment of the Court’s jurisdiction on a situation by the Pre-Trial Chamber

S1-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras.83-93:1

83. Au préalable, la Chambre note qu’en vertu de l’article 13 du Statut, la Cour peut exercer sa compétence à l’égard d’un des crimes visés à l’article 5 : a) Si une situation dans laquelle un ou plusieurs de ces crimes paraissent avoir été commis est déférée au Procureur par un État Partie, comme prévu à l'article 14 ; b) Si une situation dans laquelle un ou plusieurs de ces crimes paraissent avoir été commis est déférée au Procureur par le Conseil de 1

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning Pre-Trial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras. 24, 26-27; Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c/ Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of Congo) (PT), 28 July 2006, p. 13; Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c/ Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (Translation not available) (PT), 31 July 2006, p. 13.

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sécurité agissant en vertu du chapitre VII de la Charte des Nations Unies ; ou c) Si le Procureur a ouvert une enquête sur le crime en question en vertu de l'article 15. 84. La Chambre observe que la situation en cours sur le territoire de la RDC depuis le 1er juillet 2002 a été déférée au Procureur le 3 mars 2004 par le Président de la RDC, en application des articles 13-a et 14 du Statut(70). En effet, la lettre de renvoi le mentionne expressément, puisque le Président de la RDC y annonce déférer à la Cour « la situation qui se déroule dans [s]on pays »(71). À la suite de la réception de cette lettre, le Procureur a, le 16 juin 2004, décidé d’ouvrir une enquête sur le territoire de la RDC(72). Au surplus, aucune information du type visé au paragraphe 2 de l’article 18 n’a été reçue(73). 85. Pour relever de la compétence de la Cour, un crime doit répondre aux conditions suivantes : il doit relever des crimes exposés à l’article 5 du Statut, à savoir le crime de génocide, les crimes contre l’humanité et les crimes de guerre(74); ce crime doit avoir été commis dans la délimitation temporelle telle que prévue à l’article 11 du Statut; et enfin, ce crime doit répondre à l’une des deux conditions alternatives telles que décrites à l’article 12 du Statut. 86. Concernant la première condition, les crimes relevant de la compétence de Cour sont exposés en détail aux articles 6, 7 et 8 du Statut. Il reviendra à la Chambre d’analyser la déclaration de chacun des Demandeurs à la lumière de ces articles et de déterminer si les crimes décrits peuvent relever de la compétence de la Cour. 87. Concernant la deuxième condition, l’article 11 du Statut dispose que : 1. La Cour n’a compétence qu’à l’égard des crimes relevant de sa compétence commis après l’entrée en vigueur du présent Statut. 2. Si un État devient Partie au présent Statut après l’entrée en vigueur de celui-ci, la Cour ne peut exercer sa compétence qu’à l’égard des crimes commis après l’entrée en vigueur du Statut pour cet État, sauf si ledit État fait la déclaration prévue à l’article 12, paragraphe 3. 88. La Chambre observe que le Statut est entré en vigueur pour la RDC au 1 er juillet 2002, en application de l’article 126-1 du Statut, la RDC ayant ratifié le Statut le 11 avril 2002. 89. Afin de déterminer si les crimes allégués par les Demandeurs ont été commis après le 1er juillet 2002, la Cour prend note des dates de commission des crimes allégués par les Demandeurs : […] 90. La Chambre constate qu’à la lecture des déclarations des Demandeurs, les crimes ont été commis après le 1er juillet 2002 ; la deuxième condition est donc remplie. 91. Concernant la troisième condition, l’article 12-2 dispose que : [d]ans les cas visés à l’article 13, paragraphes a) ou c), la Cour peut exercer sa compétence si l’un des États suivants ou les deux sont Parties au présent Statut ou ont accepté la compétence de la Cour conformément au paragraphe 3 :

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a) L’État sur le territoire duquel le comportement en cause a eu lieu ou […]. b) l’Etat dont la personne accusée du crime est un ressortissant. 92. La Cour prend note des lieux où les crimes décrits par les Demandeurs auraient été commis : […] 93. La Chambre constate qu’au regard des déclarations des Demandeurs, les crimes ont été commis sur le territoire de la RDC. Dans la mesure où les critères de l’article 12-2 du Statut sont alternatifs, la Chambre considère que la Cour peut exercer sa compétence. Les crimes ayant été commis sur le territoire d’un Etat Partie, la détermination de la nationalité des personnes éventuellement accusées n’est pas nécessaire. La Chambre considère ainsi que la troisième condition est remplie. ————————— (70) Cf. Lettre de renvoi du 3 mars 2004, « Requête du Procureur aux fins de la prise de mesures en vertu de l’article 56 », 25 avril 2005, ICC-01/04-17-Conf., Annexe 1.

(71)

(72)

Ibid.

ICC-01/04-20-Conf-tFR, par. 4 ; ICC-01/04-18-Conf-tFR, p. 3. (73) ICC-01/04-18-Conf-tFR, p. 3. (74) Article 5-2 du Statut : La Cour exercera sa compétence à l’égard du crime d’agression quand une disposition aura été adoptée conformément aux articles 121 et 123 du Statut, qui définira ce crime et fixera les conditions de l’exercice de la compétence de la Cour à son égard.

——— Official Translation ——— 83. To begin with, the Chamber notes that, pursuant to article 13 of the Statute, the Court may exercise its jurisdiction with respect to a crime referred to in article 5 if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. 84. The Chamber notes that the situation under way in the territory of the DRC since 1 July 2002 was referred to the Prosecutor on 3 March 2004 by the President of the DRC, in accordance with articles 13 (a) and 14 of the Statute.(70) The referral letter is clear on this point, since the President of the RDC announces in it his referral to the Court of “the situation in [his] country”.(71) On receiving that letter, the Prosecutor decided, on 16 June 2004, to initiate an investigation in the territory of the DRC. (72) Moreover, no notification of the kind referred to in article 18, paragraph 2, of the Statute was received.(73) 85. To fall within the Court’s jurisdiction, a crime must meet the following conditions: it must be one of the crimes mentioned in article 5 of the Statute, that is to say, the crime of genocide, crimes against humanity and war crimes; (74) the crime must have been committed within the time period laid down in article 11 of the

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Statute; and the crime must meet one of the two alternative conditions described in article 12 of the Statute. 86. With regard to the first condition, crimes falling within the jurisdiction of the Court are set out in detail in articles 6, 7 and 8 of the Statute. It will be for the Chamber to analyse the statements of each Applicant in the light of these articles and to determine whether the crimes described can fall within the jurisdiction of the Court. 87. With regard to the second criterion, article 11 of the Statute stipulates that: 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3. 88. The Chamber notes that the Statute entered into force for the RDC on 1 July 2002, in conformity with article 126 (1) of the Statute, the RDC having ratified the Statute on 11 April 2002. 89. In order to determine whether the crimes alleged by the Applicants were committed after 1 July 2002, the Court takes note of the dates on which the crimes alleged by the Applicants were committed: […] 90. The Chamber notes from a reading of the Applicants’ statements that the crimes were committed after 1 July 2002; the second condition has therefore been met. 91. With regard to the third condition, article 12 (2) stipulates that: In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or […]; (b) The State of which the person accused of the crime is a national. 92. The Court takes note of the locations in which the crimes described by the Applicants were allegedly committed: […] 93. The Chamber notes that, in the light of the Applicants’ statements, the crimes were committed on the territory of the DRC. Given that the criteria laid down in article 12 (2) of the Statute are alternative, the Chamber finds that the Court may exercise its jurisdiction. As the crimes were committed on the territory of a State Party, it is unnecessary to determine the nationality of the persons who may be charged. The Chamber therefore finds that the third condition has been met. ————————— (70) Cf. letter of referral dated 3 March 2004. “Prosecutor’s Request for Measures under Article 56”, 25 April 2005, ICC-01/04-17-Conf., Annex 1.

(71)

(72)

Ibid. ICC-01/04-20-Conf-tFR, para.4; ICC-01/04-18-Conf-tFR, p. 3.

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ICC-01/04-20-Conf, para.4; ICC-01/04-18-Conf, p. 3.

Article 5 (2) of the Statute reads: “The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.”

Article 2 – Relationship of the Court with the United Nations The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.

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Article 2: Cooperation between the Court and the United Nations – Disclosure of materials which can be material for the Defence’s preparation of the confirmation hearing

S2-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp.5, 7:

CONSIDERING, however, that the Defence Request for Materials does not refer to "prior statements" within the meaning of rule 76 of the Rules because: (i) it refers to notes taken by certain journalists, non-govermental organisations and MONUC officials of their interviews with witnesses included in the Prosecution Amended List of Evidence as filed on 20 October 2006; and (ii) the relevant witnesses did not have an opportunity to re-read such notes and did not sign them; […] CONSIDERING that some of the notes referred to in the Defence Request for Materials concern interviews between MONUC officials and Prosecution witnesses whose identity has been revealed to the Defence; and that there is currently in place a specific cooperation regime between the United Nations and the Court comprised of article 2 of the Statute, the Cooperation Agreement between the United Nations and the Court and the Memorandum of Understanding between the MONUC and the Court; CONSIDERING that the Chamber, as the ultimate guarantor of the rights of the Defence provided for in the Statute and the Rules, can pursuant to articles 57 (3) (c), 67 (1) and 87 (6) of the Statute resort to the cooperation regime between the United Nations and the Court to obtain materials which, as in the present case, can be material for the Defence's preparation of the confirmation hearing even if they do not fall within the Prosecution's disclosure obligations pursuant to article 67 (2) of the Statute and rules 76 and 77 of the Rules; […] ORDER the Registrar to:

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(i) immediately send a cooperation request to the United Nations in order to obtain notes of those interviews of MONUC officials with witnesses DRC-OTP-WWWW0008 and DRC-OTP-WWWW-0011 referred to in pages 3 and 4 of the Defence Request; (ii) request to the United Nations that the said cooperation request be treated in a confidential manner and that an answer be provided as soon as practicable and no later than 23 November 2006; (iii) immediately transmit a copy of this decision to the Representative of the Secretary General of the United Nations that has been authorised to assist witness Kristine Peduto during her testimony;

Article 3 – Seat of the Court 1. The seat of the Court shall be established at The Hague in the Netherlands ("the host State"). 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf. 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.

Article 4 – Legal Status and Powers of the Court 1. The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

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S4-A-1

Article 4(1): Legal personality of the Court – Inherent powers are limited to indispensable powers of a court of law – The power to stay proceedings for abuse of process is not an inherent power of the Court o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006, para. 35:

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35. The next question to be answered is whether power inheres in or resides with the Court to stop proceedings for abuse of process as the doctrine is understood and applied under English common law. The Appeals Chamber shall not examine the implications of article 4 (1) of the Statute for under no circumstances can it be construed as providing power to stay proceedings for abuse of process. The power to stay proceedings for abuse of process, as indicated, is not generally recognised as an indispensable power of a court of law, an inseverable attribute of the judicial power. The conclusion to which the Appeals Chamber is driven is that the Statute does not provide for stay of proceedings for abuse of process as such.

Part 2 – Jurisdiction, Admissibility and Applicable Law Article 5 – Crimes within the Jurisdiction of the Court 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Article 6 – Genocide For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Article 7 – Crimes against Humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

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(a) (b) (c) (d) (e)

Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

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(g)

"Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time. 3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

Article 8 – War Crimes 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

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(ii) (iii)

(iv)

(v)

(vi)

(vii)

(viii)

(ix)

(x)

(xi) (xii) (xiii) (xiv) (xv)

Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; Killing or wounding treacherously individuals belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they

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(c)

11

were in the belligerent's service before the commencement of the war; (xvi) Pillaging a town or place, even when taken by assault; (xvii) Employing poison or poisoned weapons; (xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

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(iii) (iv)

(d)

(e)

Taking of hostages; The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) Pillaging a town or place, even when taken by assault; (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions; (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities; (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) Killing or wounding treacherously a combatant adversary; (x) Declaring that no quarter will be given; (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried

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out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict; (f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups. 3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.

Article 9 – Elements of Crime 1. Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. 3. The Elements of Crimes and amendments thereto shall be consistent with this Statute.

PRE-TRIAL CHAMBERS x

Article 9: Elements of Crimes – Contextual and Specific Elements

S9-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), para. 80:

80. The Chamber observes that according to the Statute and the Elements of Crimes, the definition of every crime within the jurisdiction of the Court includes both

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contextual and specific elements. Hence, the Chamber will first analyse whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court are present, and only then will it turn its attention to the question of whether the specific elements of any such crime also have taken place.

Article 10 Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.

Article 11 – Jurisdiction Ratione Temporis 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

Article 12 – Preconditions to the Exercise of Jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13 – Exercise of Jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;

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(b)

(c)

15

A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

PRE-TRIAL CHAMBERS x

Article 13: “Situation” – Difference between a “situation” and a “case”

S13-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, para. 65:2

65. La Chambre considère que le Statut, le Règlement de procédure et de preuve et le Règlement de la Cour envisagent la distinction entre situations et affaires comme faisant l’objet de procédures distinctes engagées par l’un quelconque des organes de la Cour(58). Les situations, généralement définies par des paramètres temporels, territoriaux et éventuellement personnels, telle que la situation sur le territoire de la République démocratique du Congo depuis le 1er juillet 2002, font l’objet de procédures prévues par le Statut afin de décider si une situation donnée doit faire l’objet d’une enquête pénale(59), et de l’enquête en tant que telle. Les affaires, comprenant des incidents spécifiques au cours desquels un ou plusieurs crimes de la compétence de la Cour semblent avoir été commis par un ou plusieurs suspects identifiés, font l’objet de procédures qui ont lieu après la délivrance d’un mandat d’arrêt ou d’une citation à comparaître(60). ————————— (58) L’expression « situation » se retrouve notamment aux articles 13-a, 13-b, 14-1, 15-5, 15-6, 18-1 et 19-3 du Statut. (59) NSERENKO, D., in Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft, Baden-Baden, 1999), article 18, p.398. (60) HALL, C.K., in Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft, Baden-Baden, 1999), article 19, p.407 et 408.

——— Official Translation ——— 65. The Chamber considers that the Statute, the Rules of Procedure and Evidence and the Regulations of the Court draw a distinction between situations and cases in 2

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning Pre-Trial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), para. 21.

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terms of the different kinds of proceedings, initiated by any organ of the Court, that they entail.(58) Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, such as the situation in the territory of the Democratic Republic of the Congo since 1 July 2002, entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation(59) as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.(60) ————————— (58) The term “situation” is used, inter alia, in articles 13 (a) and (b), 14 (1), 15 (5) and (6), 18 (1) and 19 (3) of the Statute. (59) NSERENKO, D., in Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft, Baden-Baden, 1999), article 18, p.398. (60) HALL, C.K., in Triffterer, O. (Ed.), Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft, Baden-Baden, 1999), article 19, p.407 et 408.

Article 14 – Referral of a Situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

Article 15 – Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent

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determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.

Article 16 – Deferral of Investigation or Prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Article 17 – Issues of Admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

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(c)

The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

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Article 17(1): Admissibility test – Cumulative criteria – (i) State’s inactiveness, unwillingness or inability to proceed in relation to a case – (ii) Gravity threshold – As to (i), State’s statement that it is unable to proceed is not binding for the Court – National proceedings shall encompass both the person and the conduct relevant to a case to prevent the Court to exercise its jurisdiction – As to (ii), only cases against “the most senior leaders suspected of being the most responsible” are admissible

S17-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras.29-63:

29. The Chamber considers that the admissibility test of a case arising from the investigation of a situation has two parts. The first part of the test relates to national investigations, prosecutions and trials concerning the case at hand insofar as such case would be admissible only if those States with jurisdiction over it have remained inactive in relation to that case(19) or are unwilling or unable, within the meaning of article 17(1)(a) to (c), 2 and 3 of the Statute. The second part of the test refers to the gravity threshold which any case must meet to be admissible before the Court. (20) Accordingly, the Chamber will treat them separately. II.2.1 Whether those States with jurisdiction over the case against Mr Thomas Lubanga Dyilo have remained inactive or are unwilling or unable to proceed in relation to such case. 30. Concerning the first part of the admissibility test, the Chamber notes that according to article 17(1)(a) to (c) the first requirement for a case arising from the investigation of a situation to be declared inadmissible is that at least one State with jurisdiction over the case is investigating, prosecuting or trying that case, or has done so.

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31. Having defined the concept of case as including “specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects,”(21) the Chamber considers that it is a condition sine qua non for a case arising from the investigation of a situation to be inadmissible that national proceedings encompass both the person and the conduct which is the subject of the case before the Court. 32. The Chamber also notes that when a State with jurisdiction over a case is investigating, prosecuting or trying it, or has done so, it is not sufficient to declare such a case inadmissible. The Chamber observes on the contrary that a declaration of inadmissibility is subject to a finding that the relevant State is not unwilling or unable to genuinely conduct its national proceedings in relation to that case within the meaning of article 17(1)(a) to (c), (2) and (3) of the Statute. 33. Turning to the particular circumstances of the case at hand, the Prosecution states that: On 19 March 2005, Thomas LUBANGA DYILO was arrested and detained by the DRC authorities together with other leaders of Ituribased military groups. The warrant of arrest, dated 19 March 2005, issued by the competent examining magistrate in the DRC, and the provisional detention of Thomas LUBANGA DYILO are legally based on charges of genocide pursuant to Article 164 of the DRC Military Criminal Code and crimes against humanity pursuant to Articles 166 to 169 of the same code. On 29 March 2005, the DRC authorities issued another arrest warrant against Thomas LUBANGA DYILO, alleging crimes of murder, illegal detention and torture. (22) Since 19 March 2005, Thomas LUBANGA DYILO is detained by the DRC authorities in Kinshasa in the Centre Pénitentiaire et de Rééducation de Kinshasa, From the information available to the Prosecutor, though his detention was renewed a number of times, it is unclear for how long the detention of Thomas LUBANGA DYILO will continue. Recent information provided to the OTP indicates that it cannot be excluded that Thomas LUBANGA DYILO will be released in near future, possibly within three to four weeks, thus prior to the commencement of his trial before this Court. (23) 34. The Chamber notes that despite the national proceedings conducted by DRC against Mr Thomas Lubanga Dyilo, the Prosecution alleges that the case against him is admissible because: In its letter of referral, the Government of the DRC has stated “… les autorités compétentes ne sont malheureusement pas en mesure de mener des enquêtes sur les crimes mentionnés ci-dessus ni d’engager les poursuites nécessaires sans la participation de la Cour Pénale Internationale.” Since then, the Government of the DRC, being well aware of the investigations of the OTP, has not informed the OTP otherwise. Accordingly none of the conditions of Article 17(1) of the Statute apply.(24) 35. In the Chamber’s view, when the President of the DRC sent the letter of referral (25) to the Office of the Prosecutor on 3 March 2004, it appears that the DRC

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was indeed unable to undertake the investigation and prosecution of the crimes falling within the jurisdiction of the Court committed in the situation in the territory of DRC since 1 July 2002. (26) In the Chamber’s view, this is why the self-referral of the DRC appears consistent with the ultimate purpose of the complementarity regime, according to which the Court by no means replaces national criminal jurisdictions, but it is complementary to them. (27) 36. However, for the purpose of the admissibility analysis of the case against Mr Thomas Lubanga Dyilo, the Chamber observes that since March 2004 the DRC national judicial system has undergone certain changes, particularly in the region of Ituri where a Tribunal de Grande Instance has been re-opened in Bunia.(28) This has resulted inter alia in the issuance of two warrants of arrest by the competent DRC authorities for Mr Thomas Lubanga Dyilo in March 2005 (29) for several crimes, some possibly within the jurisdiction of the Court, committed in connection with military attacks from May 2003 onwards and during the so-called Ndoki incident in February 2005.(25) Moreover, as a result of the DRC proceedings against Mr Thomas Lubanga Dyilo, he has been held in the Centre Pénitentiaire et de Rééducation de Kinshasa since 19 March 2005.(31) Therefore, in the chamber’s view, the Prosecution’s general statement that the DRC national judicial system continues to be unable in the sense of article 17(1)(a) to (c) and (3), of the Statute does not wholly correspond to the reality any longer.(32) 37. However, the Chamber recalls that for a case arising from the investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the Court. In this regard, the Prosecution submits that the DRC proceedings against Mr Thomas Lubanga Dyilo do not encompass the conduct that constitutes the basis of the Prosecution’s Application. (33) 38. The Chamber observes that warrants of arrest issued by the competent DRC authorities against Mr Thomas Lubanga Dyilo contain no reference to his alleged criminal responsibility for the alleged UPC/FPLC’s policy/practice of enlisting into the FPLC, conscripting into the FPLC and using to participate actively in hostilities children under the age of fifteen between July 2002 and December 2003. (34) 39. As a result, in the Chamber’s view, the DRC cannot be considered to be acting in relation to the specific case before the Court (which is limited to Mr Thomas Lubanga Dyilo’s alleged responsibility for the UPC/FPLC’s alleged policy/practice of enlisting into the FPLC, conscripting into the FPLC and using to participate actively in hostilities children under the age of fifteen between July 2002 and December 2003). Furthermore, the Chamber is not aware of any other State jurisdiction over the case against Mr Thomas Lubanga Dyilo investigating, prosecuting or trying him, or having done so. 40. Concerning the first part of the admissibility test, the Chamber therefore holds that, on the basis if the evidence and information provided by the Prosecution in the Prosecution’s Application, in the Prosecution’s Submission, in the Prosecution’s Further Submission and at the hearing of 2 February 2006, no State with jurisdiction over the case against Mr Thomas Lubanga Dyilo is acting, or has acted, in relation to such case. Accordingly, in the absence of any acting State, the Chamber need not make any analysis of unwillingness or inability.

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II.2.2 Whether the case against Mr Thomas Lubanga Dyilo meets the gravity threshold provided for in article 17(1)(d) of the Statute 41. Concerning the second part of the admissibility test, the Chamber notes that according to article 17(1) (d) of the Statute, any case not presenting sufficient gravity to justify further action by the Court shall be declared inadmissible. The Chamber also observes that this gravity threshold is in addition to the drafter’s careful selection of the crimes included in articles 6 to 8 of the Statute, a selection based on gravity and directed at confining the material jurisdiction of the Court to “the most serious crimes of international concern”. (35) Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court. II.2.2.1 The gravity threshold under article 17(1)(d) of the Statute 42. Considering that the Statute is an international treaty by nature, the Chamber will use the interpretative criteria provided in articles 31 and 32 of the Vienna Convention on the Law of Treaties (in particular the literal, the contextual and the teleological criteria)(36) in order to determine the content of the gravity threshold set out in article 17(1)(d) of the Statute. As provided for in article 21(1)(b) and (1)(c) of the Statute, the Chamber will also use, if necessary, the “applicable treaties and the principles and rules of international law” and “general principles of law derived by the Court from national laws of legal systems of the world”. Literal Interpretation 43. The Chamber notes that a literal interpretation makes the application of article 17(1)(d) of the Statute mandatory. The Chamber also notes that the use of term “shall” in the chapeau of article 17(1) of the Statute leaves the Chamber no discretion as to the declaration of inadmissibility of a case once it is satisfied that the case “is not of sufficient gravity to justify further action by the Court.” Contextual Interpretation 44. According to a contextual interpretation, the Chamber observes that the gravity threshold provided for in article 17(1)(d) of the Statute must be applied at two different stages: (i) at the stage of initiation of the investigation of a situation, the relevant situation must meet such a gravity threshold and (ii) once a case arises from the investigation of a situation, it must also meet the gravity threshold provided for in that provision. In this regard, the Chamber would emphasise that the scope of the present decision is limited to the determination of the content of the gravity threshold under article 17(1)(d) of the Statute when it must be applied to a case arising from the investigation of a situation. 45. Furthermore, in the Chamber’s view, the fact that the gravity threshold of article 17(1)(d) of the Statute is in addition to the gravity-driven selection of the crimes included within the material jurisdiction of the Court indicates that the relevant conduct must present particular features which render it especially grave. 46. The Chamber holds that the following two features must be considered. First, the conduct which is the subject of a case must be either systematic (pattern of incidents) or large-scale. If isolated instances of criminal activity were sufficient, there would be no need to establish an additional gravity threshold beyond the gravity-driven selection of the crimes (which are defined by both contextual and

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specific elements) included within the material jurisdiction of the Court. Second, in assessing the gravity of the relevant conduct, due consideration must be given to the social alarm such conduct may have caused in the international community. In the Chamber’s view, this factor is particularly relevant to the Prosecution’s Application due to the social alarm in the international community caused by the extent of the practice of enlisting into armed groups and using to participate actively in hostilities children under age of fifteen.(37) Teleological Interpretation 47. According to a teleological interpretation, the Chamber observes that the preamble of the Statute emphasises that the activities of the Court must seek “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”(38) The Chamber also notes that the preamble and article 1 of the Statute make clear that the Court can by no means replace national criminal jurisdictions, but it is complementary to them,(39) and that the drafters of the Statute emphasised “the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”(40) and affirmed the need to ensure their effective prosecution “by taking measures at the national level by enhancing international cooperation”. (41) 48. In the Chamber’s view, the analysis of the additional gravity threshold provided for in article 17(1)(d) of the Statute against the backdrop of the preamble of the Statute leads to the conclusion that such an additional gravity threshold is a key tool provided by the drafters to maximize the Court’s deterrent effect. As a result, the Chamber must conclude that any retributory effect of the activities of the Court must be subordinate to the higher purpose of prevention. 49. In the Chamber’s opinion, the teleological interpretation of the additional gravity threshold provided for in article 17(1)(d) of the Statute leads to the conclusion that other factors, in addition to the gravity of the relevant conduct, must be considered when determining whether a given case meets such a threshold. 50. In this regard, the Chamber considers that the additional gravity threshold provided for in article 17(1)(d) of the Statute is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being the most responsible for the crimes within the jurisdiction of the Court allegedly committed in any given situation under investigation. 51. In the Chamber’s view, this additional factor comprises three elements. First, the position of the persons against whom the Prosecution requests the initiation of a case through the issuance of a warrant of arrest or a summons to appear (the most senior leaders). 52. Second, the roles such persons play, through acts or omissions, when the State entities, organisations or armed groups to which they belong commit systematic or large-scale crimes within the jurisdiction of the Court. Third, the role played by such State entities, organisations or armed groups in the overall commission of crimes within the jurisdiction of the Court in the relevant situation (those suspected of being most responsible). 53. The Chamber considers that the application of these three elements results from the fact that those persons who, in addition to being at the top of the State entities,

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organisations or armed groups allegedly responsible for the systematic or large-scale commission of crimes within the jurisdiction of the Court, play a major role by acts or omissions in the commission of such crimes are the ones who can most effectively prevent or stop the commission of those crimes. 54. In the Chamber’s opinion, only by concentrating on this type of individual can the deterrent effects of the activities of the Court be maximized because other senior leaders in similar circumstances will know that solely by doing what they can to prevent the systematic or large-scale commission of crimes within the jurisdiction of the Court can they be sure that they will not be prosecuted by the Court. Applicable Principles and Rules of International Law 55. The application of these elements is also supported by the applicable principles and rules of international law. In this regard, although a number of low and midlevel perpetrators were indicted and prosecuted by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) during their early years, United Nations Security Council resolution 1534 of 26 March 2004 says inter alia: “4. Calls on the ICTY and ICTR Prosecutors to review the case load of the ICTY and ICTR respectively in particular with a view to determining which cases should be proceeded with and which should be transferred to competent national jurisdictions, as well as the measures which will need to be taken to meet the Completion Strategies referred to in resolution 1503 (2003) and urges them to carry out this review as soon as possible and to include a progress report in the assessments to be provided to the Council under paragraph 6 of this resolution; 5. Calls on each Tribunal, in reviewing and confirming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal as set out in resolution 1503 (2003).” 56. Accordingly, ICTY rule 28 (A) of the Rules of Procedure and Evidence provides that: “On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President. The President shall refer the matter to the Bureau which shall determine whether the indictment, prima facie, concentrates on one or more of the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Tribunal. If the Bureau determines that the indictment meets this standard, the President shall designate one of the permanent Trial Chamber Judges for the review under Rule 47. If the Bureau determines that the indictment does not meet this standard, the President shall return the Indictment to the Registrar to communicate this finding to the Prosecutor.” 57. Moreover, rule 11bis (C) of the ICTY Rules of Procedure and Evidence provides that:

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[i]n determining whether to refer the case in accordance with Paragraph (A), the Referral Bench shall, in accordance with Security Council resolution 1534 (2004), consider the gravity of the crimes charged and the level of responsibility of the accused.(42) 58. In addition, none of the indictments regarding any of the most senior leaders of the State entities, organisations or armed groups involved in the crisis situations in the former Yugoslavia or in Rwanda are confined to isolated instances of criminal activity. On the contrary, all include either systematic criminal activities which occurred in a number of areas during the period relevant to the indictment,(43) or large-scale criminality which may have taken place in one given area within a short time period (such as the execution of at least 7,000 Bosnian Muslims in Srebrenica between 11 and 18 July 1995)(44) or most frequently both.(45) 59. In this regard, the Chamber recalls that, unlike the ICTY (46) and ICTR(47) which since their establishment in 1993 and 1994 have been dealing with one crisis situation, the Court is “a permanent institution” (48), which as a result of its broad personal, temporal and territorial jurisdiction, (49) has already initiated the investigation of three different situations (that have taken place since 1 July 2002 in the territories of the Democratic Republic of the Congo, Northern Uganda and Darfur, Sudan)(50) and is currently undertaking the preliminary examination of the situation in the Central African Republic.(51) 60. In the Chamber’s view, it is in this context that one realizes the key role of the additional gravity threshold set out in article 17(1)(d) of the Statute in ensuring the effectiveness of the Court in carrying out its deterrent function and maximizing the deterrent effect of its activities. Conclusion 61. The Chamber observes that the Prosecution has already adopted some of the factors that the Chamber considers part of the core content of the gravity threshold provided for in Article 17(1)(d) of the Statute. In this regard, the Chamber notes that the Prosecution’s Policy Paper of September 2003 comes to the following conclusion: “The global character of the ICC, its statutory provisions and logistical constraints support a preliminary recommendation that, as a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organization allegedly responsible for those crimes.”(52) 62. The Chamber agrees with the Prosecution that these factors, together with the others referred to above, must direct the shaping of nay case before the Court arising from the investigation of a situation. However, in the Chamber’s view, the adoption of these factors is not discretionary for the Prosecution because they are a core component of the gravity threshold provided for in article 17(1)(d) of the Statute. 63. In conclusion, the Chamber considers that any case arising from an investigation before the Court will meet the gravity threshold provided for in article 17(1)(d) of the Statute if the following three questions can be answered affirmatively:

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i) Is the conduct which is the object of a case systematic or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)? ii) Considering the position of the relevant person in the State entity, organization or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation?; and iii) Does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the State entities, organizations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such State entities, organizations or armed groups in the overall commission of crimes within the jurisdiction of the Court in the relevant situation? ————————— (19) Interpretation a contrario of article 17, paras. 1(1) to (c) of the Statute. (20) Article 17(1)(d) of the Statute. (21) Decision on Application for Participation, para. 65. (22) Prosecution’s Application, para. 184. (23) Ibid., para. 187. (24) Ibid., para. 186. see also Prosecution’s Submissions, para. 21. (25) Prosecution’s Application, Annex 1. (26) Prosecution’s Application, para. 186 and Annex 1; and Prosecution’s Submission, paras. 20 and 21. see also MONUC, “Special Report on the events in Ituri, January 2002 – December 2003, S/2004/573”, 16 July 2004, report cited in the Prosecution’s Application at para. 35, footnote 9 and para. 41, footnote 11, available at: http://www.monuc.org/downloads/S_2004_573_2004_English.pdf, and see particularly paras. 31 and 159-161 of the report. In this regard, the Chamber notes that the self-referral or statement by the government of a State that it is unable to investigate or prosecute is not binding for the Court. (27) Holmes, J.T., “The Principle of Complementarity”, in Lee, R.S. (Ed.), “The International Criminal Court: The Making of the Rome Statute”, (Kluwer Law International, 1999), pp. 4178, pp. 73-74. (28) See Human Rights Watch Briefing Paper, Making Justice Work: Restoration of the Legal System in Ituri, DRC, report cited by the Prosecution’s Application at para. 197, footnote 35, and in particular see introduction of such briefing paper, available at: http://hrw.org/backgrounder/africa/drc0904/. See also the references made in the Prosecution’s Application (Paras. 196 and 197) to the trials of Prince Mugabo (UPC Senior Commander) and of Mr Rafiki Saba Aimable Musangaya (head of the UPC Security and Information Department at the relevant time). (29) Prosecution’s Submission, Annex 1, pp. 16 and 17, containing a copy of the DRC warrants of arrest issued against Mr Thomas Lubanga Dyilo on 19 March 2005 and on 29 March 2005. (30) Prosecution’s Submission, Annex 1 and Annex 3, pp. 6-9. (31) Prosecution’s Application, para. 187; and Prosecution’s Submission, Annex 1. (32) The Chamber notes the Prosecution’s allegations that the DRC authorities are not pursuing the investigations against Mr Thomas Lubanga Dyilo (Transcript of the Hearing of 2 February 2006, p. 6, lines 12 to 16 and p. 7, lines 19 to 22). (33) Prosecutor’s Submission, paras. 18 and 19. (34) Prosecutor’s Submission, Annex 1, pp. 16 and 17, and Annex 2. The Chamber also notes the Prosecution’s explanation in the sense that the crimes referred to in the Prosecution’s

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Application are also crimes under the national laws of the DRC (Transcripts of the Hearing of 2 February 2006, p. 9, lines 5 to 10). (35) Para. 4 of the preamble and articles 1 and 5 of the Statute. See also Von Hebel, H./Robinson, D., “Crimes within the jurisdiction of the Court”, in Lee, R.S., (Ed.), “The International Criminal Court: The Making of the Rome Statute”, (Kluwer Law International, 1999), pp. 79-126, p. 104. (36) Article 31(1) of the Vienna Convention on the Law of Treaties. (37) See inter alia “World Youth Report 2005, Report of the Secretary-General, Economic and Social Council, General Assembly”, United Nations A/60/61. E/2005/7, Annex, paras. 26-33. See also Special Court for Sierra Leone, The Prosecutor against Chalres Ghankay also known as Charles Ghankay Macarthur Dapkana Taylor, Indictment, 7 March 2003, No. SCSL-03-1I-001, para. 47; and Special Court for Sierra Leone, The Prosecutor against Sam Hinga Norman, Indictment, 7 March 2003, No. SCSL-03608-PT-002, para. 24. (38) Para. 5 of the preamble to the Statute. (39) Para. 10 of the preamble and article 1 of the Statute. (40) Para. 6 of the preamble to the Statute. (41) Para. 4 of the preamble to the Statute. (42) This rule has already been applied in a number of cases to refer cases back to national Courts. See inter alia ICTY, Prosecutor v. Radovan Stankovic, “Decision on referral of case under rule 11 bis”, 17 May 2005, Case No. IT-96-23/2-PT, para. 3, ICTY, Prosecutor v. Mitar Rasevic, Savo Todovic, “Decision on Referral of Case under rule 11 bis with confidential annexes I and II”, 8 July 2005, Case No. IT-97-25/1-PT, para.3, ICTY, Prosecutor v. Dragomir Milosevic, “Decision on referral of case pursuant to Rule 11 bis”, 8 July 2005, Case No. IT-98-29/1-PT, para. 3, ICTY, Prosecutor v. Zeljko Mejakic, Momcilo Gruban, Dusan Fustar, Dusko Knesevic, “Decision on Prosecutor’s motion for referral of case pursuant to rule 11 bis”, 20 July 2005, Case No. IT-02-65-PT, para. 3, ICTY, Prosecutor v. Gojko Jankovic, “Decision on referral of case under rule 11 bis with confidential annex”, 22 July 2005, Case No. IT-96-23/2-PT, para. 3, ICTY, Prosecutor v; Rahim Ademi and Mirko Norac, “Decision for referral to the authorities of the Republic of Croatia pursuant to Rule 11 bis”, 14 September 2005, Case No. IT-04-78-PT, para. 3. (43) See for instance, ICTR, Prosecutor v. Jean Kambanda, Amended Indictment, 17 October 1997, Case No. ICTR-97-23-DP, paras. 3.1-3.20, ICTY, Prosecutor v. Radovan Karadzic, Amended Indictment, 31 May 2000, Case No. IT-95-5/18-PT, paras. 18, 19, 22 and 28; and ICTY, Prosecutor v. Momcilo Krajisnik, Amended Consolidated Indictment, 7 March 2002, Case No. IT-00-39&40-PT, paras. 24 and 29. (44) ICTY, Prosecutor v; Radislav Krstic, Amended Indictment, 27 October 1999, Case No. IT-98-33-PT, para. 24. (45) See, for example ICTY, Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic, Vlajko Stojilkovic, Second Amended Indictment, 29 October 2001, Case No. IT-99-37-PT, para. 63. (46) The Chamber observes that, according to article 1 of the Statute of the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), the ICTY has been dealing with one crisis situation (although with several interlinked manifestations) since its establishment by the United Nations Security Council Resolution 827 of 25 May 1993. During the last thirteen years, it has initiated cases against a hundred and sixty one persons, of which to date it has completed the cases against forty-eight persons and thirty five persons have had their indictments withdrawn or have died (see http://www.un.org/icty/glance-e/index.htm). The ICTY is expected to end its activities by the end of 2010 (seventeen years after its establishment), which is why the Security Council has encouraged the ICTY to refer cases back to the national Courts under rule 11 bis of the ICTY Rules of Procedure and Evidence (United Nations Security Council Resolution 1534 of 26 March 2004). (47) The Chamber also notes that, according to article 1 of the Statute of the International Criminal Tribunal for Rwanda (“the ICTR”), the ICTR has dealt with one crisis situation since its establishment by United Nations Security Council Resolution 955 of 8 November 1994. During the last twelve years, it has initiated cases against eighty one persons, of which

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to date it has completed the cases against twenty seven persons and three persons have had their indictments withdrawn or have died (see http://65.18.216.88/default.htm). It is expected that the ICTR will finish its activities by the end of 2010 (sixteen years after its establishment), for which the Security Council has encouraged the ICTR to refer cases back to the national Courts under rule 11bis of the ICTR Rules of Procedure and Evidence (United Nations Security Council Resolution 1534 of 26 March 2004). (48) Article 1 of the Statute. (49) See supra, section II.1. (50) See http://www.icc-cpi.int/cases.html (51) See “Decisions Assigning the Situation in Central African Republic to Pre-Trial Chamber III”, 19 January 2005, No. ICC-01/05-1, pp. 1 and 4. (52) Paper on Some Policy Issue before the Office of the Prosecutor, p. 7, available at http://www.icc-cpi.int/library/organs/otp/030905_Policy_Paper.pdf.

Article 18 – Preliminary Rulings Regarding Admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. 2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.

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7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

Article 19 – Challenges to the Jurisdiction of the Court or the Admissibility of a Case 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6; (b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and

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(c)

In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.

PRE-TRIAL CHAMBERS x

Article 19(1): Proprio motu determination on the admissibility of a case in relation to an application for warrant of arrest

S19-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras.17-20:

17. Third, the Chamber notes that article 19(1) of the Statute provides that: The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 18. The Chamber recalls the practice of Pre-Trial Chamber II in its decisions on the Prosecution’s requests for warrants of arrest for Joseph Kony, Vincent Otti, Raska Lukwia, Okot Odhiambo and Dominic Ongwen, which grants the Prosecution’s requests only after finding that the cases fall within the jurisdiction of the Court and appear admissible.(7) In this regard, it is the Chamber’s view that an initial determination on whether the case against Mr Thomas Lubanga Dyilo falls within the jurisdiction of the Court and is admissible is a prerequisite to the issuance of a warrant of arrest for him. 19. As the Prosecution rightly points out, the Chamber notes that, in the present case, its review of the jurisdiction and admissibility of the case against Mr Thomas Lubanga Dyilo is ex officio insofar as the Prosecution raised no issue of jurisdiction

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or admissibility in the Prosecutor’s Application. (8) The Chamber also notes that rule 58(2) of the Rules establishes that, when the Chamber is acting on its own motion as provided for in article 19(1) of the Statute, it shall decide on the procedure to be followed, may take appropriate measures for the proper conduct of the proceedings and may hold a hearing. Furthermore, the Chamber recalls its decision of 20 January 2006 to receive and maintain the Prosecution’s Application under seal and to conduct proceedings in connection with the Prosecution’s Application ex parte and in closed session.(9) 20. In the present context, the Chamber holds that the ex officio initial determination on whether the case against Mr Thomas Lubanga Dyilo falls within the jurisdiction of the Court and is admissible must be made ex parte with the exclusive participation of the Prosecution and on the basis of the evidence and information provided by the Prosecution in the Prosecution’s Application, in the Prosecution’s Submission, in the Prosecution’s Further submission and at the hearing of 2 February 2006. Furthermore, such determination is without prejudice to subsequent determinations on jurisdiction or admissibility concerning such case pursuant to article 19(1), (2) and (3) of the Statute. ————————— (7) “Warrant of Arrest for Joseph Kony issued on 8 July 2005 as amended on 27 September 2005”, 13 October 2005, ICC-02/04-01/05-53, para. 38; “Warrant of Arrest for Vincent Otti”, 13 October 2005, ICC-02/04-01/05-54, para. 38; “Warrant of Arrest for Raska Lukwiya”, 13 October 2005, ICC-02/04-01/05-55, para. 26; “Warrant of Arrest for Okot Odhiambo”, 13 October 2005, ICC-02/04-01/05-57, para. 28; and “Warrant of Arrest for Dominic Ongwen”, 13 October 2005, ICC-02/04-01/05-57, para. 26. (8) Prosecution’s Submission, para. 3, footnote 5. (9) Decision Concerning Supporting Materials, p. 4.

x

Article 19(2)(a): Defence’s challenges to the jurisdiction of the Court or the admissibility of the case shall be made by an accused – Ad hoc Counsel for the Defence has no procedural standing under Article 19(2)

S19-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision Following the Consultation Held on 11 October 2005 and the Prosecution’s Submission on Jurisdictions and Admissibility Filed on 31st October 2005 (PT), 9 November 2005:

NOTING the Ad hoc Defence Counsel's Submission pursuant to the Decision of Pre-Trial Chamber I on the Prosecutor's Request for Measures under Article 56 of the Rome Statute of the International Criminal Court (the "Ad hoc Counsel for the Defence's Submission") filed on 22 August 2005, whereby he makes some preliminary remarks on issues of jurisdiction and admissibility,(1) challenges the existence of a unique investigative opportunity concerning the examinations conducted by the NFI,(2) requests the adoption of additional measures(3) and submits some additional questions to the NFI concerning the NFI Report; (4) NOTING the Prosecution's Observations on the NFI 28 July 2005 Forensic Report (the "Prosecution's Observations") filed on 23 August 2005, whereby the

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prosecution states that the observations of the Ad hoc Counsel for the Defence "exceed the scope of the submission as determined by the Pre-Trial Chamber's Decision"(5) and that the prosecution requests translation of the Dutch portions of the NFI Report(6); […] NOTING the Decision to Hold Consultation filed on 5 October 2005 and the said consultation held on 11 October 2005 (the "Consultation"), whereby the prosecution was requested to submit, within three weeks, comments on the questions of jurisdiction and admissibility raised by the Ad hoc Counsel for the Defence ; NOTING the Prosecution's Response to Defence Counsel Ad hoc's 22 August 2005 and 11 October 2005 Submissions on Jurisdiction and Admissibiliy (the "Prosecutor's Submissions") filed on 31 October 2005; […] CONSIDERING that challenges to the jurisdiction of the Court or the admissibility of a case pursuant to article 19 (2) (a) of the Statute may only be made by an accused person or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; that at this stage of the proceedings no warrant of arrest or summons to appear has been issued and thus no case has arisen; and that the Ad hoc Counsel for the Defence has no procedural standing to make a challenge under article 19 (2)(a) of the Statute; […] REJECTS (i) the preliminary remarks on the jurisdiction of the Court, the admissibility of a case and the challenge to the existence of a unique investigative opportunity concerning the examinations conducted by the NFI contained in paragraphs 8 to 20 (inclusive) of the Ad hoc Counsel for the Defence's Submission; ————————— (1) The Ad hoc Counsel for the Defence's Submission, No. ICC-01/04-86-Conf 22-08-2005, par. 8-13 (2) The Ad hoc Counsel for the Defence's Submission, No ICC-01/04-86-Conf 22-08-2005, par. 14-20. (3) The Ad hoc Counsel for the Defence's Submission, No. ICC-01/04-86-Conf 22-08-2005, par. 21. (4) The Ad hoc Counsel for the Defence's Submission, No. ICC-01/04-86-Conf 22-08-2005, par 22-32. (5) The Prosecution's Observations, No. ICC-01/04-87-Conf 23-08-2005, par. 1, footnote 2. (6) The Prosecution's Observations, No. ICC-01/04-87-Conf 23-08-2005, par. 3-6.

APPEALS CHAMBER x

Article 19: Challenges to the jurisdiction of the Court shall be brought pursuant to Article 19 – “Abuse of process” is not a ground for challenging the jurisdiction of the Court

S19-A-1

o Situation in the Democratic Republic of Congo, No. ICC-

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01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006, para. 24: 24. Abuse of process or gross violations of fundamental rights of the suspect or the accused are not identified as such as grounds for which the Court may refrain from embarking upon the exercise of its jurisdiction. Article 19 of the Statute regulates the context within which challenges to jurisdiction and admissibility may be raised by a party having an interest in the matter, including a person in the position of Mr. Lubanga Dyilo against whom a warrant of arrest had been issued. Jurisdiction under article 19 of the Statute denotes competence to deal with a criminal cause or matter under the Statute. Notwithstanding the label attached to it, the application of Mr. Lubanga Dyilo does not challenge the jurisdiction of the Court. As earlier noted, the conclusion to which the Appeals Chamber is driven is that the application of Mr. Lubanga Dyilo and the proceedings following do not raise a challenge to the jurisdiction of the Court within the compass of article 19 (2) of the Statute. What the appellant sought was that the Court should refrain from exercising its jurisdiction in the matter in hand. Its true characterization may be identified as a sui generis application, an atypical motion, seeking the stay of the proceedings, acceptance of which would entail the release of Mr. Lubanga Dyilo. The term "sui generis" in this context conveys the notion of a procedural step not envisaged by the Rules of Procedure and Evidence or the Regulations of the Court invoking a power possessed by the Court to remedy breaches of the process in the interest of justice. The application could only survive, if the Court was vested with jurisdiction under the Statute or endowed with inherent power to stop judicial proceedings where it is just to do so.

Article 20 – Ne bis in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

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Article 21 – Applicable Law 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of law as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

PRE-TRIAL CHAMBERS x

Article 21(1): Sources of applicable law – Rules and practice of other jurisdictions, whether national or international, are not “applicable law” before the Court

S21-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, para. 19:

19. As to the relevance of the case law of the ad hoc tribunals, the matter must be assessed against the provisions governing the law applicable before the Court. Article 21, paragraph 1, of the Statute mandates the Court to apply its Statute, Elements of Crimes and Rules of Procedure and Evidence "in the first place" and only "in the second place" and "where appropriate", "applicable treaties and the principles and rules of international law, including the established principles of the international law of aimed conflict". Accordingly, the rules and practice of other jurisdictions, whether national or international, are not as such "applicable law" before the Court beyond the scope of article 21 of the Statute. More specifically, the law and practice of the ad hoc tribunals, which the Prosecutor refers to, cannot per se form a sufficient basis for importing into the Court's procedural framework remedies other than those enshrined in the Statute.

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x

Article 21(1): Sources of applicable law – Reference to other International Criminal Tribunals’ case-law as part of the drafting history of the Court’s Statute

S21-PT-2

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), paras.16-22:

16. Reference to the drafting history of article 82 is instructional as to the first principle. That history indicates that within the Court's system interlocutory appeals (ie, appeals against decisions other than final decisions) were meant to be admissible only under the limited and very specific circumstances stipulated in article 82, paragraph 1 (d), of the Statute. In particular, the Chamber notes from such drafting history that, during the preparatory process, a proposal according to which all "other" decisions (ie, other than final decisions) might be appealed(24), albeit with leave of the Chamber concerned, was defeated in favour of the current wording of article 82 of the Statute, which sets instead specific requirements for leave. Secondly, an almost identical provision governing interlocutory appeals appears in Rule 73 (B) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia ("ICTY") (25) and the International Criminal Tribunal for Rwanda ("ICTR")(26). Each of the ICTY and ICTR rules provides that the Trial Chamber "may" grant certification to appeal a motion "if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings".(27) While, in contrast to the ICC Statute, both the ICTY and the ICTR Rules of Procedure and Evidence vest discretion in the Trial Chamber (allowing the Trial Chamber to deny certification even when it is satisfied that the twofold requirement is met), article 82, paragraph l(d), of the Statute reflects a general trend to narrow the grounds for interlocutory appeals, and in particular to deviate from the concept that an issue is subject to interim appeal because of its "general importance to proceedings" or "in international law generally", as a previous formulation of the relevant rule in the ICTY Rules of Procedure and Evidence had allowed. (28) 17. The Chamber notes that a rather broad provision, similar to the earlier version of the ICTY rule, appears in the "Transitional Rules of Criminal Procedure" adopted by the United Nations Transitional Administration in East Timor in 2000. (29) However, the most recent international standard for interlocutory appeals, being that enacted for the Special Court for Sierra Leone ("SCSL"), reflects again the more restrictive approach. Rule 73 (B) of the Rules of Procedure and Evidence of the SCSL states that the Trial Chamber may give leave to interlocutory appeals only "in exceptional circumstances and to avoid irreparable prejudice to a party". (30)

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18. Moreover, the case-law of the ICTR and the SCSL, which is especially relevant given the similarity of provisions set forth in the Tribunal and SCSL rules and in article 82, paragraph 1 (d), of the Statute, reinforces the view that leave for interlocutory appeals should be granted under limited circumstances. In the jurisprudence of the ICTR, interlocutory appeals under Rule 73 (B) have been described as "exceptional".(31) It was pointed out that these appeals should be "granted only sparingly"(32) or under circumstances which are "exceptional indeed".(33) In one decision, the ICTR Chamber recalled that the exceptional character of interlocutory appeals is "consistent with some important national jurisdictions around the world in which interlocutory appeals are not allowed in criminal cases, or allowed only in very limited circumstances". (34) The ICTR has also highlighted that the use of the term "significantly" in the wording of the provision is meant to confirm that certification is only to be granted on an exceptional basis, upon assessment of the circumstances which are peculiar to each case.(35) The SCSL adopted a similar approach in its jurisprudence. The Trial Chamber, noting the terms of Rule 73 (B) of the SCSL Rules, found that "it must apply an entirely new and considerably more restrictive test than the one applied by the ICTR and the ICTY"(36), noting that "this restriction is in line with the trend ... to tighten the test for granting leave in respect of interlocutory appeals in the interests of expeditiousness".(37) 19. This case-law shows that in striking the balance between the convenience of deciding certain issues at an early stage of the proceedings, and the need to avoid possible delays and disruptions caused by recourse to interlocutory appeals, the provisions enshrined in the relevant rules of the ad hoc Tribunals, and in the ICC Statute, favour as a principle the deferral of appellate proceedings until final judgment, and limit interlocutory appeals to a few, strictly defined, exceptions. 20. Read against this background, it is also clear (see principle (ii) in paragraph 15 above) that article 82, paragraph 1 (d), of the Statute requires of the applicant for leave to appeal to establish and demonstrate that: a. the decision complained of involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and b. an immediate resolution of such issue by the Appeals Chamber may "materially advance the proceedings". 21. As elaborated in the case-law of the ad hoc Tribunals and the SCSL, this means that the party applying for leave to appeal needs to demonstrate the existence of both the above requirements(38); and that failure by the applicant to establish the first of such requirements will exempt the Chamber from considering whether the second has been met. (39) It is also to be noted that the first requirement consists of two conditions: the issue on which the appeal is sought must significantly affect either the proceedings both in terms of fairness and in terms of expeditiousness (the "first limb") or the outcome of the trial (the "second limb"). As a result, the mere fact that an issue is of general interest or that, given its overall importance, could be raised in, or affect, future pre-trial or trial proceedings before the Court is not sufficient to warrant the granting of leave to appeal. (40) What the party seeking leave needs to demonstrate is that the issue at stake affects, first and foremost, the fairness and expeditiousness of the proceedings currently before the Chamber or the outcome of

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the related trial, as well as the impact (in terms of material advancement) of an immediate resolution of the issue on such proceedings. Failing such demonstration, leave to appeal cannot be granted, unless article 82, paragraph 1 (d), of the Statute is interpreted as allowing interlocutory appeals against any decision of a Chamber that touches upon a question of general importance for the Court. But, in the opinion of this Chamber, such an interpretation would be contrary to the letter and spirit of article 82, paragraph 1 (d) (see paragraph 16 above). 22. With respect to principle (iii) (see paragraph 15 above), the Chamber considers that the existence of the requirements set forth in article 82, paragraph 1 (d), of the Statute is the sole factor of relevance in determining whether leave should be granted or not. Accordingly, it is the view of the Chamber that the arguments on the merits or the substance of the appeal are more appropriately for consideration and examination before the Appeals Chamber if and when leave to appeal has been granted. As the ICTR Trial Chambers have noted, submission of arguments on the merits or the substance at an early stage must be considered "irrelevant and premature"(41); and revising generally the thrust of previous arguments without demonstrating relevant conditions for leave is not sufficient for the party to satisfy the requirements set forth in the rule(42). Along the same lines of reasoning, the ICTR also stated that "it is not the substance of the appeal which guides the Chamber in determining whether or not certification should be allowed", but only the two criteria set out in ICTR Rule 73 (B) (ie, the issue at stake must significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and an immediate resolution of the issue by the Appeals Chamber would materially advance the proceedings).(43) ————————— (24) See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Working Group on Procedural Matters, Proposal submitted by Kenya (Article 81, Appeal against interlocutory decisions), 3 July 1998, Doc. A/CONF. 183/C. 1/WGPM/L.46. (25) See Rule 73 (B) of the Rules of Procedure and Evidence of the ICTY, adopted on 11 February 1994, as amended on 11 February 2005, IT/32/Rev.34. (26) See Rule 73 (B) of the Rules of Procedure and Evidence of the ICTR, adopted on 29 June 1995, as amended on 21 May 2005. (27) Rule 73 (B) of the Rules of Procedure and Evidence of the ICTY reads: "Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification, if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings." (28) Former Rule 73 (D) of the Rules of Procedure and Evidence of the ICTY read as follows: "Decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave (i) if the impugned decision would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposition of the trial including post-judgment appeal; (ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally" (emphasis added). See ICTY, Rules of Procedure and Evidence, IT/32/Rev.22. (29) See Sections 23 and 27 of UNTAET Regulation No. 2000/30 (On Transitional Rules of Criminal Procedure), 25 September 2000, UNTAETYREG/2000/30. (30) Rule 73 (B) of the Rules of Procedure and Evidence of the SCSL reads in full: "Decisions rendered on such motions are without interlocutory appeal. However, in exceptional

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circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders". See Rules of Procedure and Evidence of the Special Court for Sierra Leone, As Amended at Sixth Plenary, 14 May 2005. (31) See ICTR, Prosecutor v Théoneste Bagosora et al., ICTR-98-41-T, Certification of Appeal Concerning Prosecution Investigation of Protected Defence Witnesses, 21 July 2005, para. 6; ICTR, Prosecutor v Casimir Bizimungu et al, ICTR-99-50-T, Decision on Prosper Mugiranzea's Motion for Leave to Appeal from the Trial Chamber's Decision of 3 November 2004, 24 February 2005, para. 8 (referring to the "exceptional nature" of such appeals); ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-97-21-T, Decision on Ntahobali's and Nyiramasuhuko's Motions For Certification To Appeal the "Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible", 18 March 2004, para. 14 ("exceptional circumstances"). See also ICTR, Prosecutor v Edouard Karemera, ICTR-98-44-T, Decision on the Defence Request For Certification Appeal the Decision on Accused Nzirorera's Motion For Inspection of Materials, 26 February 2004, para. 26 ("exceptional cases"); ICTR, Prosecutor v Ndayambaje et al., ICTR-98-42-T, Decision on Prosecutor's Motion for Certification to Appeal the Decision of the Trial Chamber Dated 30 November 2004 on the Prosecution Motion For Disclosure of Evidence of the Defence, 4 February 2005, para. 11 ("very limited circumstances"). (32) See the submission of the Prosecution in ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision 24 February 2005, para. 4. (33) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 15. (34) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 14. (35) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 16. (36) See SCSL, Prosecutor v Alex Tamba Brima et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, SCSL-2004-16-PT, 13 February 2004, para. 15; SCSL, Prosecutor v Issa Hassan Sesay et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, SCSL-2004-15-PT, 13 February 2004, para. 12. (37) SCSL, Prosecutor v Issa Hassan Sesay et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, SCSL-2004-15-PT, 13 February 2004, para. 12. (38) See ICTY, Prosecutor v Slobodan Milosevic, IT-02-54-T, Decision on Prosecution Motion for Certification of Trial Chamber Decision on Prosecution Motion for Voir Dire Proceeding, 20 June 2005, para. 2 ("cumulative criteria"); ICTY, Prosecutor v Slobodan Milosevic, IT-0254-T, Decision on Prosecutor's Application for Certification Under Rule 73 (B) Concerning Rule 70, 29 August 2002 ("two cumulative criteria"). See also SCSL, Prosecutor v Alex Tamba Brima et al., SCSL-2004-16-PT, Decision 13 February 2004, para.13; SCSL, Prosecutor v Issa Hassan Sesay et al, SCSL-2004-15-PT, Decision 13 February 2004, para. 10. (39) See ICTR, Prosecutor v Bizimungu et al.,ICTR-00-56-T, Decision on Sagahutu's Request for Certification to Appeal the Decision Dated 13 May 2005 Dismissing Applicant's Request for Exclusion of Witnesses LMC, DX, BB, GS, CJ, and GFO, 9 June 2005, para. 18; ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-97-21-T, Decision 18 March 2004, paras. 23 and 24. (40) See with respect to Rule 73 (B) of the Rules of Procedure and Evidence also ICTY, Prosecutor v Slobodan, Contempt Proceedings Against Kosta Bulatovic, IT-02-54-T-R77.4, Order on Defence Motion Seeking Reconsideration of Order on Contempt Concerning Witness Kosta Bulatovic and Alternatively Motion Requesting Certification, 3 May 2005 ("[E]ven when an important point of law is raised, such as in this case, the effect of Rule 73

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(B) is to preclude certification unless the party seeking clarification establishes that both conditions are satisfied"). (41) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 20. (42) See ICTR, Prosecutor v Ndayambaje et al, ICTR-98-42-T, Decision 4 February 2005, para. 12. (43) See ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision on Prosper Mugiranza's Motion for Leave to Appeal, 24 February 2005, para. 9.

x

Article 21(1): Sources of applicable law – Guidance implicitly sought in the practice of other International Criminal Tribunals without further justification

S21-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute (PT), 3 October 2006:3

CONSIDERING that article 21 (3) of the Statute states that the "application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights"; and that, according to those standards, any violations of Thomas Lubanga Dyilo's rights in relation to his arrest and detention prior to 14 March 2006 will be examined by the Court only once it has been established that there has been concerted action between the Court and the DRC authorities (30); CONSIDERING however that whenever there is no concerted action between the Court and the authorities of the custodial State, the abuse of process doctrine constitutes an additional guarantee of the rights of the accused; (31) and that, to date, the application of this doctrine, which would require that the Court decline to exercise its jurisdiction in a particular case, (32) has been confined to instances of torture or serious mistreatment by national authorities of the custodial State in some way related to the process of arrest and transfer of the person to the relevant international criminal tribunal; (33) ————————— (30) See Stocké v Germany before the European Court of Human Rights, 11755/85 [1991] ECHR 25 (19 March 1991), para 51-54; ECHR, Klaus Altmann vs. France, Decision of 4 July 1984 on the admissibility of the application, application No. 10689, 1984, p. 234. Moreover, the International Criminal Tribunal for Rwanda has repeatedly stated that the Tribunal is not responsible for the illegal arrest and detention of the accused in the custodial State if the arrest and detention was not carried out at the behest of the Tribunal. See in particular the Semanza Case Appeals Chamber, 31 May 2000.,Case No. ICTR-97-20-A, para.79, where a distinction is made between the time Semanza was held at the request of the Rwandan authorities and the time he was held at the request of the ICTR. See also the Rwamakuba Case, Trial Chamber II, 12 December 2000, "Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused", Case No. ICTR-98-44-T, para.30 stating that, "[t]he Trial

3 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Motion by the Defence to Exclude Hearsay Testimony of the Prosecution Witness (PT), 9 November 2006, footnote 17.

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Chamber does therefore not consider that, from 2 August 1995 until 22 December 1995, when the Prosecutor notified the Namibian authorities of their knowledge that the accused was in their custody, the Tribunal was responsible for the accused's detention. The Tribunal having no jurisdiction over the conditions of that period of detention, any challenges in this respect are to be brought before the Namibian jurisdiction". (31) See Prosecutor v. Dragan Nikolic Case , "Decision on Interlocutory Appeal Concerning Legality of Arrest", 5 June 2003, Case No. IT-94-2-AR73, para. 30. See also Juvenal Kajelijeli vs. The Prosecutor, Case No. ICTR-98-44A-A, para. 206; and Prosecutor .vs. Slavko Dokmanovic, "Decision on the Motion for Release by the Accused", 22 October 1997, Case No IT-95-13a-PT, paras. 70-75. (32) See Jean Bosco Barayagwisa vs The Prosecutor, Appeals Chamber, 3 November 1999, Case No. ICTR-97-19-AR72, paras. 74 - 77. See also Juvenal Kajelijeli vs. The Prosecutor, 23 May 2005, Case No. ICTR-98-44AA, para 206. (33) See Prosecutor vs. Dragan Nikolic Case , "Decision on Interlocutory Appeal Concerning Legality of Arrest", 5 June 2003, Case No. IT-94-2-AR73, para. 30. See also Juvenal Kajelijeli vs. The Prosecutor, Case No. ICTR-98-44A-A, para. 206; and Prosecutor vs. Slavko Dokmanovic, "Decision on the Motion for Release by the Accused", 22 October 1997, Case No IT-95-13a-PT, paras. 70-75.

x

Article 21(2): Guidance from previous decisions of the Court – Decisions of other Pre-Trial Chambers

S21-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, para. 18:4

18. L'article 21-2 du Statut permet à la Cour d'appliquer les principes et règles de droit tels qu'elle les a interprétés dans ses décisions antérieures. La Chambre considère ainsi qu'il convient d'appliquer en l'espèce les principes posés par la Décision de la Chambre préliminaire II.

——— Official Translation ——— 18. Article 21 (2) of the Statute allows the Court to apply principles and rules of law as interpreted in its previous decisions. Accordingly, in the opinion of the Chamber, the principles set out in the Decision of Pre-Trial Chamber II should be applied here;

4

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration (PT), 23 May 2006.

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x

Article 21(3): Interpretation of the Rome Statute – Application of interpretative criteria of Articles 31-32 of the Vienna Convention on the Law of Treaties

S21-PT-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), para.42:5

42. Considering that the Statute is an international treaty by nature, the Chamber will use the interpretative criteria provided in articles 31 and 32 of the Vienna Convention on the Law of Treaties (in particular the literal, the contextual and the teleological criteria)(36) in order to determine the content of the gravity threshold set out in article 17(1)(d) of the Statute. As provided for in article 21(1)(b) and (1)(c) of the Statute, the Chamber will also use, if necessary, the “applicable treaties and the principles and rules of international law” and “general principles of law derived by the Court from national laws of legal systems of the world”. ————————— (36) Article 31(1) of the Vienna Convention on the Law of Treaties.

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Article 21(3): Interpretation of the Rome Statute – Need to safeguard the uniqueness of the criminal procedure of the Court

S21-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 4, 28:

4. Furthermore, the single judge considers that the need to safeguard the uniqueness of the criminal procedure of the International Criminal Court ("the Court") is one of the primary considerations in contextual interpretation of the relevant provisions. It can be met by addressing possible tensions among those provisions so as to ensure consistency, and full expression to the meaning of each.

5 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, para. 1; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, para. 7; Situation in the Democratic Republic of the Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (PT), 8 November 2006, para. 8..

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[…] 28. As pointed out in the introductory remarks of the single judge at the hearing on 24 April 2006, the uniqueness of the International Criminal Court's criminal procedure lies in the manner of bringing together two features with such different origins as the rules on disclosure and the rules on communication of certain evidence to the Pre-Trial Chamber.(63) ————————— (63)

ICC-01/04-01/06-T-4 EN, p. 3, lines 19 to 25 and p. 4, lines 1 to 4.

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Article 21(3): “Internationally recognised Human Rights” – Reference made to UN General Assembly Resolutions, jurisprudence of the Inter-American Court of Human Rights and European Court of Human Rights

S21-PT-7

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 81, 115-116:6

81. Le terme « préjudice » n’est défini ni dans le Statut ni dans le Règlement. En l’absence de toute définition, la Chambre doit procéder à une interprétation au cas par cas de ce terme, laquelle doit être effectuée en conformité avec l’article 21-3 du Statut, selon lequel « l’application et l’interprétation du droit prévues au présent article doivent être compatibles avec les droits de l’homme internationalement reconnus ». […] 115. Pour ce qui est de l’évaluation du préjudice, la Chambre note que la « Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d’abus de pouvoir », adoptée en 1985 par l’Assemblée générale des Nations Unies » (« la Déclaration de 1985 ») (84), et que les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international relatif aux droits de l’homme et de violations graves du droit international humanitaire » adoptés par la 6

See also para. 131, 145-146, 161, 172 and 182 of the same Decision; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, para. 2; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, para. 7; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.5-8.

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Commission des droits de l’homme (« les Principes de 2005 ») (85), reconnaissent la « souffrance morale » et la « perte matérielle » comme formes de préjudice (86). 116. Par ailleurs, la Chambre se réfère à la Cour interaméricaine et à la Cour européenne qui ont, à de nombreuses reprises dans leur jurisprudence, octroyé une réparation pour le dommage subi dû à une souffrance morale ou à des pertes matérielles(87). La Chambre note à cet égard que dans l’arrêt Ayder et autres c. Turquie du 8 janvier 2004(88), la Cour européenne a accordé une compensation au titre du dommage matériel du fait de la destruction d’habitation. En outre, dans l’arrêt Keenan c. Royaume-Uni du 3 avril 2001(89), la Cour européenne a octroyé une réparation à la victime au titre du dommage moral à cause de l’angoisse et de la détresse éprouvées en raison des conditions dans lesquelles son fils avait été détenu. La Chambre constate que conformément aux droits de l’homme internationalement reconnus, la souffrance morale et la perte matérielle constituent un préjudice au sens de la règle 85 du Règlement. ————————— (84) Assemblée générale, résolution 40/34, 29 novembre 1985, 40 e session, Document des Nations Unies A/RES/40/34. (85) Commission des droits de l’homme, résolution 2005/35, 19 avril 2005. Voir Commission des droits de l’homme, rapport sur la 61ème session : « Projets de résolution et de décision qu’il est recommandé au Conseil économique et social d’adopter et résolutions et décisions adoptées par la Commission à sa 61 ème session », 14 mars-22 avril 2005, Document des Nations Unies E/2005/23 (Part.I), E/CN.4/2005/134 (Part I), p.140 à 147. (86) Assemblée générale, résolution 40/34, voir supra, par. 1 ; Commission des droits de l’homme, résolution 2005/35, voir supra, Annexe, par. 8. (87) Concernant la souffrance morale, voir notamment : Cour européenne des droits de l’homme, Affaire Aksoy c. Turquie, « Arrêt », 18 décembre 1996, requête n° 21987/93, par. 113 ; Cour européenne des droits de l’homme, Affaire Selmouni c. France, « Arrêt », 28 juillet 1999, requête n° 25803/94, par. 123 ; Cour interaméricaine des droits de l’homme, Affaire Aloeboetoe et al. c. Suriname, « Jugement / Réparations (article 63-1) », 10 septembre 1993, Série C N° 15, par. 52 ; Cour interaméricaine des droits de l’homme, Affaire Neira Alegría et al. c. Pérou, « Jugement / Réparations (article 63-1) », 19 septembre 1996, Série C, N° 29, par. 57. Concernant les pertes matérielles, voir notamment : Cour européenne des droits de l’homme, Affaire Ayder et autres c. Turquie, « Arrêt », 8 janvier 2004, requête n° 23656/94, par. 141 et suiv. ; Cour interaméricaine des droits de l’homme, Affaire El Amparo c. Venezuela, « Jugement / Réparations (article 63-1) », 14 septembre 1996, Série C, N° 28, par. 28 à 63 inclus. (88) Cour européenne des droits de l’homme, Affaire Ayder et autres c. Turquie, « Arrêt », 8 janvier 2004, requête n° 23656/94, par. 10 et 141 et suiv. (89) Cour européenne des droits de l’homme, Affaire Keenan c. Royaume-Uni, « Arrêt », 3 avril 2001, Requête n° 27229/95, par. 138.

——— Official Translation ——— 81. The term “harm” is not defined either in the Statute or in the Rules. In the absence of a definition, the Chamber must interpret the term on a case-by-case basis in the light of article 21 (3) of the Statue, according to which “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights”. […] 115. For the purpose of assessing the harm suffered, the Chamber notes that the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

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Power”, adopted in 1985 by the United Nations General Assembly (the “1985 Declaration”)(84) and the “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law”, adopted by the Commission on Human Rights(85) (the “2005 Principles”), recognise “emotional suffering” and “economic loss” as forms of harm. (86) 116. Furthermore, the Chamber refers to the Inter-American Court of Human Rights and the European Court of Human Rights, which in their case law have repeatedly awarded reparations for harm due to emotional suffering or economic loss. (87) The Chamber notes in this connection that the European Court of Human Rights, in its judgment of 8 January 2004 in the Ayder and Others v. Turkey case,(88) awarded pecuniary damages in respect of the destruction of housing. Moreover, in its judgment in the Keenan v. the United Kingdom case of 3 April 2001,(89) the European Court awarded the victim non-pecuniary damages for the anguish and distress she had suffered on account of the conditions in which her son had been detained. The Chamber notes that, in accordance with internationally recognised human rights, emotional suffering and economic loss constitute harm within the meaning of rule 85 of the Rules. ————————— (84) General Assembly resolution 40/34, 29 November 1985, fortieth session, United Nations document A/RES/40/34. (85) Commission on Human Rights, resolution 2005/35, 19 April 2005. See Commission on Human Rights, report on the sixty-first session: “Draft resolution and draft decisions recommended for adoption by the Economic and Social Council, and the resolutions and decisions adopted by the Commission at its sixty-first session”, 14 March – 22 April 2005, United Nations document, E/2005/23 (Part I), E/CN.4/2005/134 (Part I), pp. 136-142. (86) General Assembly resolution 40/34, see above, para. 1 ; Commission on Human Rights, resolution 2005/35, see above, annex, para. 8. (87) With regard to emotional suffering, see in particular: European Court of Human Rights, Aksoy v. Turkey, “Judgment”, 18 December 1996, Application No. 21987/93, para. 113; European Court of Human Rights Selmouni v. France, “Judgment”, 28 July 1999, Application No. 25803/94, para. 123; Inter-American Court of Human Rights, Aloeboetoe et al. v. Suriname, “Judgment/Reparations (Art. 63(1))”, 10 September 1993, Series C No. 15, para. 52; Inter-American Court of Human Rights, Neira Alegría et al. v. Peru, “Judgment/Reparations (Art. 63(1)”, 19 September 1996, Series C No. 29, para. 57. With regard to economic loss, see in particular: European Court of Human Rights, Ayder and Others v. Turkey, “Judgment”, 8 January 2004, Application No. 23656/94, paras. 141ff; InterAmerican Court of Human Rights, El Amparo v. Venezuela, “Judgment/Reparations (Art. 63 (1))”, 14 September 1996, Series C No. 28, paras. 28 to 63. (88) European Court of Human Rights, Ayder and Others v. Turkey, “Judgment”, 8 January 2004, Application No. 23656/94, paras. 10 and 141ff. (89) European Court of Human Rights, Keenan v. the United Kingdom, “Judgment”, 3 April 2001, Application No. 27229/95, para. 138.

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APPEALS CHAMBER x

Article 21(1): Sources of applicable law – Guidance sought in the jurisprudence of the European Court of Human Rights and other International Criminal Tribunals

S21-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, para. 20:

20. […] The Appeals Chamber notes in this context the judgment in the case of Hadjianastassiou v. Greece (application number 12945/87) of 16 December 1992, where the European Court of Human Rights held in paragraph 32 of its judgment that as part of the fair trial guarantees of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 as amended by Protocol 11 (213 United Nations Treaty Series 221 et seq., registration no. 2889; hereinafter: "European Convention on Human Rights"), courts are required to "indicate with sufficient clarity the grounds on which they based their decision." The European Court of Human Rights went on to state that "[i]t is this, inter alia, which makes it possible for the accused to exercise usefully the rights of appeal available to him." The cases of the European Court of Human Rights cited by the Prosecutor in the footnotes to paragraphs 19 to 21 of the Response to the Document in Support of the Appeal, although not relating to criminal proceedings, also confirm the importance of a reasoned decision for the right to a fair trial. Similarly, the Appeals Chamber of the ICTY has held that the right to a reasoned decision is an element of the right to a fair trial and that only on the basis of a reasoned decision will proper appellate review be possible (see Prosecutor v. Momir Nikolic, "Judgement on Sentencing Appeal", 8 March 2006, Case No. IT-02-60/1-A, paragraph 96; Prosecutor v. Dragoljub Kunarac et al, "Judgement", 12 June 2002, Case No. IT-96-23 & 23/1-A, paragraph 41). In paragraph 11 of its "Decision on Interlocutory Appeal from Trial Chamber Decision Granting Nebojsa Pavkovic's Provisional Release" of 1 November 2005 in the case of Prosecutor v. Milutinovic et al (Case No. IT-05-87-AR65.1), the Appeals Chamber of the ICTY held that "as a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision". Although in the present case the right of the appellant to appeal the Impugned Decision was conditional on the granting of leave by the Pre-Trial Chamber pursuant to article 82 (1) (d) of the Statute and rule 155 (1) of the Rules of Procedure and Evidence, the analysis by the European Court of Human Rights and by the Appeals Chamber of the ICTY in the cases referred to above applies with similar force to the case at hand.

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Article 21(1): Sources of applicable law – “Abuse of process” doctrine is not applicable law before the Court

S21-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006, paras. 26-34:

26. Abuse of process is a principle associated with the administration of justice, referred to as a doctrine because of wide adherence to the principle involved. (59) It is a principle evolved by English case law constituting a feature of the common law adopted in many countries where this system of law finds application. 27. Authority is acknowledged to a court of law to stop a judicial proceeding, at the outset and less frequently in the process, by declining jurisdiction in a judicial cause, where to do otherwise would be odious to the administration of justice. The term "process" means the judicial process designed to do justice in the cause before the court. The term "abuse" signifies derogation from the judicial process evidenced by facts and circumstances, such as would render the invocation of the jurisdiction of a court a misuse of the purpose for which it is intended or its use for purposes other than those for which it was established. 28. The power to stay proceedings is par excellence a power assumed by the guardians of the judicial process, the judges, to see that the stream of justice flows unpolluted. As stressed, in the recent decision of the English(60) Court of Appeal R. v. S (SP) (61) it is a discretionary power involving "an exercise of judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence." 29. Instances of stay of proceedings on grounds of abuse of process are provided by cases involving a) delay in bringing the accused to justice, b) broken promises to the accused with regard to his prosecution, c) bringing the accused to justice by illegal or devious means.(62) The last example is instantiated by the English decision in Bennett v. Horseferry Road Magistrates' Court(63), R v Horseferry Road Magistrates' Court, ex p Bennett(64), where the presence of the accused in England and sequentially his arrest and appearance before the Court was the offspring of duplicitous action involving the English and South African authorities marring the judicial process. To quote from the judgment of Lord Bridge in Bennett v. Horseferry Road Magistrates ' Court (supra), "[w]hen it is shown that the law enforcement agency responsible for bringing a prosecution has only been enabled to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court takes cognisance of that circumstance." (65) In the same judgment reference is made to an earlier decision of the House of Lords Connelly v. DPP(66), where Lord Devlin speaks of the importance of the court accepting what is described as its "inescapable duty to secure fair treatment for those who come or are brought before them." The principle of abuse of process finds application in New Zealand in much the same way as in England

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exemplified by the decisions of R v. Hartley(67) and Moevao v. Dept. of Labour(68). In the latter decision, the jurisdiction to stay or dismiss a prosecution is said to inhere in the court to prevent abuse of its own process. The focus, as underlined, "is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice [...]" The exercise of such jurisdiction it was said "require[s] the Courts to tread with the utmost circumspection." Like principles apply in Canada where abuse of process provides a ground for staying or stopping a prosecution. Interestingly, in United States v. Shulman(69) the Supreme Court of Canada referred to the non-assumption of jurisdiction on grounds of abuse of process and for violation of the Charter guaranteeing the rights of persons in the same spell; acknowledging thereby similar jurisdiction to a court to stop prosecutions for either reason.(70) The decision of the South African Court of Appeal in S. v. Ebrahim(71) indicates that the fairness of the legal process and the abuse thereof justifies the non-exercise of jurisdiction in order to "promote the dignity and integrity of the judicial system". Australian courts also abide by the principle of abuse of process.(72) In Cyprus too power is acknowledged to the court to stop or suspend pending proceedings for abuse of process. In Director of Prisons v. Djenaro Perella(73) the Supreme Court adverted to the nature of the inherent powers of the court to stay proceedings involving abuse of process underlining that the judicial process cannot be employed in a manner oppressive to the rights of the counterparty or adversary. 30. Not every infraction of the law or breach of the rights of the accused in the process of bringing him/her to justice will justify stay of proceedings. The illegal conduct must be such as to make it otiose, repugnant to the rule of law to put the accused on trial. 31. The power to stay proceedings should be sparingly exercised, as repeatedly stressed by English courts and lastly noted in Jones v. Whalley(74). Room for its exercise is provided where either the foundation of the prosecution or the bringing of the accused to justice is tainted with illegal action or gross violation of the rights of the individual making it unacceptable for justice to embark on its course. 32. In the United States of America, the doctrine of abuse of process has had a mixed reception, recognising on the one hand its existence but confining its application within very narrow straits. (75) 33. The doctrine of abuse of process as known to English law finds no application in the Romano-Germanic systems of law. The principle encapsulated in the Latin maxim male captus bene detentus has received favourable reception in the French case of re Argoud(76) but not an enthusiastic one in the old case of re Jollis(77). The German Constitutional Court too appears to have endorsed like principles to those approved in re Argoud(78) But where serious violations of the fundamental rights of the accused or international law are involved, the rule is mitigated. (79) 34. Does the principle or doctrine of abuse of process find application under the Statute as part of the applicable law and in particular under the provisions of article 21 (1) (b) and (c)? In the first place the answer would depend on whether the Statute and Rules of Procedure and Evidence leave room for its application within the framework of the Court's process. Jurisdiction apart, admissibility is the only ground envisaged by the Statute for which the Court may validly refrain from assuming or

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exercising jurisdiction in any given cause. Abuse of process is not listed as a ground for relinquishing jurisdiction in article 17 of the Statute. The previous decision of the Appeals Chamber in Situation in the Democratic Republic of the Congo "Judgement on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal" (80) is instructive on the interpretation of article 21 (1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either subparagraphs (b) or (c) of paragraph 1 of article 21 of the Statute. ————————— (59) See definition of the term "doctrine" in Garner B.A (Editor in Chief), Blacks Law Dictionary, (2004 West, St. Paul), page 518. (60) The Judiciary of England and Wales. (61) 6 March 2006, [2006] 2 Cr App R. (Criminal Appeal Reports) 23, page 341, quotation at paragraph H7, (62) Cases narrated in Murphy, P. (Editor-in-Chief) Blackstone's Criminal Practice 2006 (Oxford University Press, 2005), D10.41. (63) House of Lords, 24 June 1993, [1993] 3 All ER (All England Law Reports), page 138. (64) Court of Appeal, 24 June 1993, [1994] 1 AC (Law Reports: Appeal Cases), page 42. (65) at page 155. (66) House of Lords, 21 April 1964, [1964] 2 All ER (All England Law Reports), page 401, quotation at page 422. (67) Court of Appeal, Wellington , 5 August 1977, [1978] 2 NZLR (New Zealand Law Reports), page 199. (68) Court of Appeal, Wellington, 6 August 1980, [1980] 1 NZLR (New Zealand Law Reports), page 464. (69) Supreme Court of Canada, Judgment, 24 March 2001,2001 SCC 21 available in Westlaw. (70) See also Glorian Keyowski v Her Majesty The Queen, Judgment, 28 April 1988, [1988] 1 SCR 657, at pages. 658-59 also available at http://scc.lexum.umontreal.ca/en/l 988/1988rcs 1 -657/1988rcs 1 -657.html. (71) 26 February 1991, [1991] (2) SA (South African Law Reports), page 553. (72) See Levinge v Director of Custodial Services 9 NSWR 546 (Ct App 1987) cited in Wilske S, Schiller T., Jurisdiction over persons abducted in violation of international law in the aftermath of the United States v. Alvarez-Machain in: University of Chicago Law School Roundtable 1998, available in: Westlaw. (5.U.Chi.L.Sch.Roundtable 205). (73) [1995] 1 C.L.R. (Cyprus Law Reports), page 217 (in Greek). (74) House of Lords, 26 July 2006, [2006] 4 All ER (All England Law Reports), page 113. (75) See United States Court of Appeals, Second Circuit, United States of America v. Francisco Toscanino, No. 746, Docket 73-2732, 15 May 1974, 500 F.2d 267, available in: Westlaw.; Supreme Court of the United States, United States v. Humberto Alvarez-Machain, 15 June 1992, 504 U.S. 655, available in Westlaw. (76) Cour de Cassation, 4 June 1964, 45 ILR (International Law Reports), page 90.. (77) Tribunal Correctionnel d'Avesnes, 22 July 1933, 7 Ann Dig (Annual Digest and Reports of Public International Law Cases) (1933-1934), page 191. (78) See Bundesverfassungsgericht, Decision of 17 July 1985, 2 BvR 1190/84 in: EuGRZ (Europäische Grundrechte Zeitschrift) 1986, page 18; Bundesgerichtshof, 30 May 1984, 4 StR 187/85, NStZ (Neue Zeitschrift für Strafsachen) 1985, page 464. (79) See Bundesverfassungsgericht, 5 November 2003 - 2 BvR 1506/03 and 2 BvR 1506/03 at: http://www.bverfg.de/entscheidungen/rs20031105^2bvrl24303.html. (80) 13 July 2006 (ICC-01/04-168).

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x

Article 21(1)(c): Sources of applicable law – General principles derived from national laws of legal systems of the world

S21-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006, paras. 23-24:

23. Article 21(1) of the statute provides that the Court must apply firstly the Statute, Rules of Procedure and Evidence and Elements of Crimes, secondly applicable treaties and the principles and rules of international law and thirdly “[f]ailing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of states that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.” 24. Sub-paragraph (c) of paragraph 1 of article 21 of the statute is a multipolar provision of the law involving in the same spell an amplitude of factors definitive of its subject-matter. Be that as it may, there is little doubt about its basic intent that lies in the incorporation of general principles of law derived from national laws of legal systems of the world as a source of law.

x

Article 21(3): Interpretation of the Rome Statute – Application of interpretative criteria of Articles 31-32 of the Vienna Convention on the Law of Treaties

S21-A-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006, para. 33:

33. The interpretation of treaties, and the Rome Statute is no exception, is governed by the Vienna Convention on the Law of Treaties (23 May 1969) (38), specifically the provisions of articles 31 and 32. The principal rule is set out in article 31(1) that reads: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The Appeals Chamber shall not advert to the definition of “good faith”,(39) save to mention that it is linked to what follows and that is the wording of the Statute. The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose.(40) The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety.(41) Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes

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from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty. ————————— (39) A subject discussed in many decisions of the International Court of Justice (see inter alia the Nuclear Tests Case (Australia v. France) 20 December 1974 (available at http://www.icjcij.org/icjwww/icases/iaf/iaf_ijudgment/iaf_jiudgment_19741220.pdf (last accessed on 9 July 2006)), paragraph 46; the Fisheries Jurisdiction Case (Spain v. Canada) 4 December 1998 (available at Westlaw), paragraph 37; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004 (available at Westlaw), paragraph 161. (40) See also International Court of Justice, Case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), 3 February 1994 (available at Westlaw), paragraph 41; International Court of Justice, Case concerning maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v. Bahrain)(available at Westlaw), paragraph 33. (41) See paragraph 2 of article 31 of the Vienna Convention on the Law of Treaties.

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Article 21(1): Interpretation of the Rome Statute – “Internationally recognised human rights” - Right to a fair trial – Reference to the European Court of Human Rights and domestic jurisprudence

S21-A-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006, paras. 36-39:

36. The doctrine of abuse of process had ab initio a human rights dimension in that the causes for which the power of the Court to stay or discontinue proceedings were largely associated with breaches of the rights of the litigant, the accused in the criminal process, such as delay, illegal or deceitful conduct on the part of the prosecution and violations of the rights of the accused in the process of bringing him/her to justice. The Statute safeguards the rights of the accused as well as those of the individual under interrogation and of the person charged. Such rights are entrenched in articles 55 and 67 of the Statute. More importantly, article 21 (3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms. 37. Breach of the right to freedom by illegal arrest or detention confers a right to compensation to the victim (see article 85 (1) of the Statute). Does the victim have any other remedy for or protection against breaches of his/her basic rights? The answer depends on the interpretation of article 21 (3) of the Statute, its compass and ambit. Article 21 (3) of the Statute stipulates that the law applicable under the Statute must be interpreted as well as applied in accordance with internationally recognized human rights. Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court. Its provisions must be interpreted and more importantly applied in accordance with internationally recognized human rights; first and foremost, in the context of the Statute, (81) the right

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to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety. (82) The Statute itself makes evidence obtained in breach of internationally recognized human rights inadmissible in the circumstances specified by article 69 (7) of the Statute. Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped. 38. The decision of the European Court of Human Rights in the Case of Teixeira de Castro v. Portugal(83), a case of entrapment by undercover agents, provides an example of serious breaches of the rights of the accused by the investigating authorities, rendering the holding of a fair trial impossible. The following passage from the judgment puts the matter in perspective as to the implications that such conduct may have on the holding of a fair trial. Improper conduct by the investigating authorities and the use of evidence resulting therefrom "in the impugned criminal proceedings meant that, right from the outset, the applicant was definitively deprived of a fair trial." (84) In another passage the European Court of Human Rights recorded: "The general requirements of fairness embodied in Article 6 apply to proceedings concerning all types of criminal offences, from the most straightforward to the most complex." (85) 39. Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed. To borrow an expression from the decision of the English Court of Appeal in Huang v. Secretary of State(86), it is the duty of a court: "to see to the protection of individual fundamental rights which is the particular territory of the courts [...]" Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial. In those circumstances, the interest of the world community to put persons accused of the most heinous crimes against humanity on trial, great as it is, is outweighed by the need to sustain the efficacy of the judicial process as the potent agent of justice. ————————— (81) See articles 64 (2), 67 (1), 68 (1) and (5) of the Statute. (82) See Nowak M., U.N. Covenant on Civil and Political Rights, CCPR Commentary (N.P. England, Aldington, 19993), page 244. (83) Judgment, 9 June 1998, Application no. 44/1997/828/1034, available in HUDOC database at http://cmiskp.echr.coe.int/tkpl97/search.asp?skin=hudoc-en . (84) At paragraph 39. (85) At paragraph 36. (86) [2005] 3 All ER 435 (a civil action).

Part 3 – General Principles of Criminal Law Article 22 – Nullum Crimen Sine Lege 1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

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2. 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. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

Article 23 – Nulla Poena Sine Lege A person convicted by the Court may be punished only in accordance with this Statute.

Article 24 – Non-Retroactivity Ratione Personae 1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

Article 25 – Individual Criminal Responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

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(f)

Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose. 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

Article 26 – Exclusion of Jurisdiction over Persons under Eighteen The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.

Article 27 – Irrelevance of Official Capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 28 – Responsibility of Commanders and Others Superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her

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effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 29 – Non-Applicability of Statutory Limitations The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

Article 30 – Mental Element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

Article 31 – Grounds for Excluding Criminal Responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (a) The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; (b) The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

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(c)

The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph; (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. 2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it. 3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

Article 32 – Mistake of Fact or Mistake of Law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

Article 33 – Superior Orders and Prescription of Law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

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Part 4 – Composition and Administration of the Court Article 34 – Organs of the Court The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division; (c) The Office of the Prosecutor; (d) The Registry.

Article 35 – Service of Judges 1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office. 2. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected. 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40. 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49.

Article 36 – Qualifications, Nominations and Election of Judges 1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court. 2. (a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties. (b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties. (c) (i) Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2; (ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance

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with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached. 3. (a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. (b) Every candidate for election to the Court shall: (i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or (ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court; (c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. (a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either: (i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or (ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court. Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3. (b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party. (c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties. 5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists. 6. (a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who

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obtain the highest number of votes and a two-thirds majority of the States Parties present and voting. (b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled. 7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights. 8. (a) The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges. (b) States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children. 9. (a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election. (b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years. (c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term. 10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber.

Article 37 – Judicial Vacancies 1. In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy. 2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor's term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.

Article 38 – The Presidency 1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for reelection once.

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2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified. 3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for: (a) The proper administration of the Court, with the exception of the Office of the Prosecutor; and (b) The other functions conferred upon it in accordance with this Statute. 4. In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.

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Article 38(3) (a): Administration of the Court – Separating a Senior Legal Advisor from cases – Presidency has no jurisdiction on the matter

S38-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case (PT), 27 October 2006, Annex 1, paras. 2, 5:

2. On 9 January 2006, the OTP filed an Internal Memorandum entitled "Request for Presidency to Ensure Limitation of the Scope of Duties of Senior Legal Adviser to the Pre-Trial Division, to Prevent Future Challenges to the Appearance of Impartiality of the Judges of that Division" (hereinafter "Request'') with the Presidency (see Annex 1 ). In this document, the OTP requested the Presidency to take measures to ensure that the Senior Legal Adviser to the Pre-Trial Division be separated from the cases on which he had allegedly previously worked while a Legal Adviser in the OTP, namely the pending cases in the Uganda and DRC situation. It was suggested either that the Senior Legal Adviser isolate himself or that the Presidency address this issue at the administrative level on the basis of Article 38 (3)(a) of the Statute or refer the matter to the Plenary. […] 5. The Presidency, by Internal Memorandum of 26 January 2006 entitled "Decision of the Presidency on the Memorandum of the Prosecutor of 9 January 2006" (hereinafter "Decision"), declined to grant the Prosecutor's request for relief, by noting that it neither had the competence to deal with the matter itself, nor did it find any basis on which to refer the matter to the Plenary (see Annex 5). A copy of this "Decision" was communicated to the Judges of Pre-Trial Chamber I and Pre-Trial Chamber II, as well as to the President of the Pre-Trial Division, attaching the "Request" of the Prosecutor dated 9 January 2006.

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PRESIDENCY x

Article 38(3)(a): Administration of the Court – Assignment of a situation to a Pre-Trial Chamber – Decision signed by the President alone on behalf of the Presidency

S38-P-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I (P), 5 July 2004:7

THE PRESIDENCY of the International Criminal Court (the “Court”); […] HEREBY DECIDES that the situation in the Democratic Republic of Congo be assigned to Pre-Trial Chamber I, with immediate effect. […] Judge Philippe Kirsch, President

Article 39 – Chambers 1. As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience. 2. (a) The judicial functions of the Court shall be carried out in each division by Chambers. (b) (i) The Appeals Chamber shall be composed of all the judges of the Appeals Division; (ii) The functions of the Trial Chamber shall be carried out by three judges of the Trial Division; (iii) The functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge of that 7

See also Situation in Uganda, No. ICC-02-04, Decision Assigning the Situation in Uganda to Pre-Trial Chamber II (P), 5 July 2004; Situation in the Central African Republic, No. ICC01/05, Decision Assigning the Situation in the Central African Republic to Pre-Trial Chamber III (P), 19 January 2005; Situation in Darfur, Sudan, No. ICC-02/05, Decision Assigning the Situation in Darfur, Sudan to Pre-Trial Chamber I (P), 21 April 2005.

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division in accordance with this Statute and the Rules of Procedure and Evidence; (c) Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court's workload so requires. 3. (a) Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and thereafter until the completion of any case the hearing of which has already commenced in the division concerned. (b) Judges assigned to the Appeals Division shall serve in that division for their entire term of office. 4. Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court's workload so requires, provided that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case.

PRE-TRIAL CHAMBERS x

Article 39(2) (b) (iii): Pre-Trial Chamber – Single judge – Opportunity and criteria of designation

S39-PT-1

o Situation in Uganda, No. ICC-02/04, Designation of a Single Judge of Pre-Trial Chamber II (PT), 19 November 2004:8

NOTING article 39, paragraph 2 (b) (iii), pursuant to which the functions of the Pre-Trial Chamber shall be carried out either by three judges of the Pre-Trial Division or by a single judge in accordance with the Statute and the Rules of Procedure and Evidence; NOTING rule 7, sub-rule 1, pursuant to which a single judge shall be designated on the basis of objective pre-established criteria; NOTING regulation 47, sub-regulation 1, pursuant to which the designation of a single judge shall be based on criteria agreed upon by the Pre-Trial Chamber, including seniority of age and criminal trial experience; CONSIDERING the circumstances of the assigned situation and the need to ensure the proper and efficient functioning if the Chamber at all times; HEREBY designate Judge Tuiloma Neroni Slade as single Judge of Pre-Trial Chamber II. 8 See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision désignant un juge unique dans l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Decision Designing a Single Judge in the Case of the Prosecutor v. Thomas Lubanga Dyilo) (PT), 22 March 2006 ; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision désignant un juge unique (PT), 14 December 2006.

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Article 39(2) (b) (iii): Pre-Trial Chamber – Single judge – Designation for a short period of time

S39-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on the Designation of a Single Judge (PT), 14 July 2005:9

CONSIDERING that at this stage of the proceedings concerning the situation in the DRC the designation of a single judge will ensure the proper and efficient functioning of the Chamber; FOR THESE REASONS, DECIDES to designate Judge Sylvia Steiner as single judge of Pre-Trial Chamber I for the situation in the DRC; DECIDES that, subject to article 57, paragraph 2 (a) of the Statute, the functions of Pre-Trial Chamber I concerning the situation in the DRC shall be carried out by the single judge from 22 July 2005 through 18 August 2005.

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Article 39(2) (b) (iii): Pre-Trial Chamber – Single judge – Designation until the End of Pre-Trial Proceedings

S39-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Décision désignant un juge unique (Translation not available) (PT), 14 December 2006, p.3:

DÉCIDE de désigner le juge Claude Jorda comme juge unique de la Chambre préliminaire I chargée de l'affaire concernant M. Thomas Lubanga Dyilo dans la situation en RDC et ce, jusqu'à la fin de la procédure au stade préliminaire,

——— Official Translation Not Available ———

9 See also Situation in Darfur, Sudan, Case No. ICC-02/05, Decision on the Designation of a Single Judge (PT), 20 July 2005; Situation in the Democratic Republic of Congo, No. ICC01/04, Décision portant désignation d’un juge unique (Translation not available) (PT), 24 February 2006 ; Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision portant désignation d’un juge unique (Decision Designing a Single Judge) (PT), 14 March 2006 ; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06, Décision sous scellés portant désignation d’un juge unique (Decision Designing a Single Judge) (PT), 14 March 2006 (rendue publique le 21 mars 2006); Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision portant désignation d’un juge unique (Translation not available) (PT), 5 April 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision portant désignation d’un juge unique (Translation not available) (PT), 13 July 2006 ; Situation in Darfur, Sudan, No. ICC02/54, Decision on the Designation of a Single Judge (PT), 13 July 2006.

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Article 39(2) (b) (iii): Pre-Trial Chamber – Single judge – “Thematic” Judge in charge of unsealing documents

S39-PT-4

o Situation in Uganda, No. ICC-02/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Décision portant la désignation d’un juge unique pour la levée des scellés (Translation not available) (PT), 30 May 2006:

CONSIDÉRANT qu'à ce stade de la procédure dans la situation en Ouganda et dans l'affaire le Procureur c/ Joseph KONY, Vincent OTTI, Raska LUKWIYA, Okot ODHIAMBO et Dominic ONGWEN, la désignation d'un juge unique pour la question de levée des scellés permettra un traitement efficace de cette matière; PAR CES MOTIFS, DÉCIDE de désigner la juge Fatoumata Dembele Diarra comme juge unique, chargée de la matière de levée des scellés dans la situation en Ouganda et dans l'affaire concernant Joseph KONY, Vincent OTTI, Raska LUKWIYA, Okot ODHIAMBO et Dominic ONGWEN.

——— Official Translation Not Available ——— x

Article 39(2) (b) (iii): Pre-Trial Chamber – Single judge – Replacement of the single judge

S39-PT-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, No. ICC01/04-01/06, Decision on the Temporary Substitution of the Single Judge (PT), 11 August 2006:

CONSIDERING the necessity to proceed with the proceedings leading to the confirmation hearing in the case against Thomas Lubanga Dyilo; FOR THESE REASONS DECIDES to temporarily designate Judge Claude Jorda as single judge for the case against Thomas Lubanga Dyilo in the situation of the DRC, responsible, under article 57 (2) of the Statute, for exercising the functions of the Chamber in that case, including those functions provided for in rule 121 (2) (b) of the Rules. DECIDES to postpone the date of the status conference of 17 August 2006 to Thursday 24 August 2006 at 11h00.

Article 40 – Independence of Judges 1. The judges shall be independent in the performance of their functions. 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.

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3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature. 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision.

Article 41 – Excusing and Disqualification of Judges 1. The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence. 2. (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision.

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Article 41(2): Disqualification of Judges – Applications to separate a Senior Legal Advisor from rendering advice regarding cases may be tantamount to a request for disqualification of Judges

S41-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case (PT), 27 October 2006, pp.2-3 and Annex, paras. 17-24:

NOTING the Prosecutor's Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case" ("the Prosecutor's Application"),(1) filed by the Prosecution on 31 August 2006, in which the Prosecution requests that (i) because of his previous work at the Office of the Prosecutor, the Senior Legal Advisor of the Pre-Trial Division be prevented from rendering advice in the case of The Prosecutor vs. Thomas Lubanga Dyilo; and that

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(ii) he be separated from the case while the Prosecutor's Application remains pending before the Chamber; […] CONSIDERING article 41 (2) of the Rome Statute ("the Statute") and rule 4 (2) of the Rules of Procedure and Evidence; CONSIDERING that on 20 October 2006 all the judges of the Pre-Trial Division requested that the President of the Court convene a special plenary in order to deal with the matters raised in the Prosecutor's Application and in the Defence Response; and that the judges did so because they consider that the Prosecutor's Application and the Defence Response may be tantamount to a request for disqualification of the judges or might, at the very least, raise an issue regarding the disqualification of the judges which falls within the scope of article 41 (2) of the Statute; CONSIDERING further that, as a provisional measure pending determination of the matters raised in the Prosecutor's Application and the Defence Response by the appropriate organ of the Court, the President of the Pre-Trial Division has separated the Senior Legal Adviser to the Pre-Trial Division from, inter alia, the case of The Prosecutor vs. Thomas Lubanga Dyilo(3); CONSIDERING therefore that the Chamber considers that under article 41 (2) of the Statute, (i) it is not the appropriate organ of the Court to deal with the matters raised in the Prosecutor's Application and the Defence Response; and (ii) the plenary is the appropriate forum of the Court to deal with such matters; FOR THESE REASONS DECLARES that the Chamber lacks jurisdiction to entertain the Prosecutor's Application and the Defence Response; INFORMS the Prosecution and the Defence of (i) the request to the President of the Court dated 20 October 2006 from all the judges of the Pre-Trial Division; (ii) the provisional separation of the Senior Legal Adviser to the Pre-Trial Division from the case of The Prosecutor vs Thomas Lubanga Dyilo pending determination of the matters raised in the Prosecutor's Application and the Defence Response by the appropriate organ of the Court; and (iii) the fact that instructions have been given to the Registrar accordingly. […] Annex: 17. The Judges of Pre-Trial Chamber I and Pre-Trial Chamber II have discussed these issues during several formal Coordination Meetings of the Division and in numerous further informal consultations and have informed the President of the PreTrial Division, by letter(s) of the Presiding Judges dated 20 October 2006, that they [i.e. the Judges of Pre-Trial Chambers I and II] are agreed that the Senior Legal Adviser shall, ex abundanti cautela, be temporarily relieved from any functions he might have in relation to the Case of the Prosecutor vs. Thomas Lubanga Dyilo, respectively the Case of the Prosecutor vs. Joseph Kony et al., until further notice (see Annex 16). This measure should in no way be seen as prejudging the issues set out below.

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18. Therefore, the President of the Pre-Trial Division, by Decision of 20 October 2006, at the request of the Judges of Pre-Trial Chambers I and II, provisionally separated the Senior Legal Adviser from the above mentioned cases (Annex 17), pending the decision of the Plenary on the matter referred to below. 19. The Judges of Pre-Trial Chamber I and II consider that the elements set out above make it imperative to convene the Plenary as soon as possible, for the following reasons: 20. The Judges deem that the repeated and insistent references made by the Prosecutor to the issue of the impartiality of the Judges of the Pre-Trial Chambers I and II, linking the issue pertaining to the Senior Legal Adviser to an alleged appearance of bias of the Judges of Pre-Trial Chambers I and II - starting with the Prosecutor's "Request" of 9 January 2006 and culminating in the "Application[s]" of 31 August 2006 - can be interpreted as amounting to a request by the Prosecutor, supported by Defence Counsel Mtre Flamme on 5 October 2006, for the disqualification of the Judges of Pre-Trial Chamber I and Pre-Trial Chamber II, or at least to a "question as to the disqualification" of the Judges of Pre-Trial Chambers I and II under Article 41 (2) of the Statute. Various references in the documents of the Prosecutor to the Presidency and the President of the Pre-Trial Division call into question the appearance of impartiality of the judges concerned.(1) 21. Moreover, the Prosecutor's Public "Notice" of 10 January 2006 and the "Application(s)" of 31 August 2006, together with the public filing of Defence Counsel Flamme of 5 October 2006, may have raised doubts in public opinion. After all, the issue at hand is not only relevant for the current proceedings before the PreTrial Chambers but may also have an impact on the future work of the Court. 22. Furthermore, the Judges, in particular those of Pre-Trial Chamber I, would like to stress that there are serious time constraints, as the first hearing for the confirmation of charges before Pre-Trial Chamber I is scheduled to take place on 9 November 2006. 23. Thus, the gravity and urgency of the issue demand that a final decision be taken without further delay by the body competent to examine "any question as to the disqualification of a judge" according to Article 41 (2) of the Statute. 24. The President of the Pre-Trial Division, on behalf of the Judges of Pre-Trial Chambers I and II, therefore forwards the matter to the President of the International Criminal Court, in order for the latter to convene, on the basis of Rule 4 (2) of the Rules of Procedure and Evidence, a special plenary session to examine and, as appropriate, to determine Whether in light of the foregoing and the procedural history set out above, the "Application[s]" of the Prosecutor of 31 August 2006 and the "Réponse" by the Defence Counsel of 5 October 2006 amount to a request for disqualification of the Judges of Pre-Trial Chambers I and II under Article 41 (2) of the Statute, or to a "question as to the disqualification of a judge" within the meaning of Article 41 (2) of the Statute, and if so, to decide on the matter. ————————— (1) ICC-01/04-01/06-3 73. (3) See the annexes attached. Annex: (1) See e.g., Internal Memorandum of the Prosecutor to the Presidency dated 10 February 2006 (see Annex 6) para 4: "(...) it was the OTP's view that the affected Pre-Trial Chambers had a

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right to know that a situation of appearance of bias had arisen (...) " (emphasis added);

"Request" by the Prosecutor dated 9 January 2006 (Annex 1), page 2: "Unless a "wall" is erected between Mr. Bitti and the investigations and cases in which he rendered legal advice while at the OTP, each of the potential litigants before the Pre-Trial Chambers defence counsel, the OTP and victim's representatives - will have a compelling basis to move to disqualify Mr. Bitti and the judges of the Pre-Trial Chambers, based on the appearance of bias "(emphasis added); ibid, page 4 "For these reasons, the Presidency may view this request to exceed the mere administrative sphere and may prefer to rely upon the procedure set forth in the statute for considering a challenge to the appearance of impartiality of a judge." (emphasis added)"; ibid, page 17: "(…) if he is permitted to continue to give legal advice in these proceedings, all future litigants will have compelling grounds for applying to disqualify the judges of Pre-Trial Chambers I and II" (emphasis added); "Notice" of 10 January 2006 (see Annexes 2 and 3): "(...) [T]he request seeks imposition of a preventive measure (…) with the aim of preventing future challenges by any party to the appearance of impartiality of the judges of the Pre-Trial Division" (emphasis added)

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Article 41(2): Disqualification of Judges – Referral of a request that is tantamount to a request for disqualification of Judges before the Plenary – Chamber’s lack of jurisdiction to determine the matter

S41-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case (PT), 27 October 2006, pp.2-3:

CONSIDERING article 41 (2) of the Rome Statute ("the Statute") and rule 4 (2) of the Rules of Procedure and Evidence; CONSIDERING that on 20 October 2006 all the judges of the Pre-Trial Division requested that the President of the Court convene a special plenary in order to deal with the matters raised in the Prosecutor's Application and in the Defence Response; and that the judges did so because they consider that the Prosecutor's Application and the Defence Response may be tantamount to a request for disqualification of the judges or might, at the very least, raise an issue regarding the disqualification of the judges which falls within the scope of article 41 (2) of the Statute; […] CONSIDERING therefore that the Chamber considers that under article 41 (2) of the Statute, (i) it is not the appropriate organ of the Court to deal with the matters raised in the Prosecutor's Application and the Defence Response; and (ii) the plenary is the appropriate forum of the Court to deal with such matters; FOR THESE REASONS DECLARES that the Chamber lacks jurisdiction to entertain the Prosecutor's Application and the Defence Response;

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PRESIDENCY x

Article 41(2): Disqualification of Judges – Applications to separate a Senior Legal Advisor from rendering advice regarding cases may be tantamount to a request for disqualification of Judges

S41-P-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision of the President on the Request of the President of the Pre-Trial Division of 20 October 2006 (P), 7 November 2006 (made public by the Ordonnance demandant au Greffier d’enregistrer un document au dossier de l’affaire (PT), 7 November 2006), pp. 1-2:

The Request specified that the plenary be convened on an urgent basis due to the forthcoming confirmation of charges hearing before Pre-Trial Chamber I in the case against Thomas Lubanga Dyilo, scheduled for 9 November 2006. According to the Request, a plenary was requested in order to: - Determine whether the Prosecutor’s applications of 31 August 2006, to separate the Senior Legal Adviser from rendering legal advice in the cases before Pre-Trial Chambers I and II (“the Application(s)”), and the Response of the Defence of 4 October 2006 before Pre-Trial Chamber I, joining the Prosecutor’s application, amounted: - to a request for the disqualification of the judges of those Chambers; or - to a “question as to the the disqualification of a judge” within the meaning of article 41(2) of the Statute. - And, if so, decide on the matter. […] The remaining eleven judges, including myself, attended the meeting. We did not enter into the merits of the Request or touch upon the principles relevant to disqualification. The unanimous view of the judges attending the meeting was that the Applications and the Response did not amount to a request for the disqualification of any judge; rather, they were a request to separate the Senior Legal Adviser of the Pre-Trial Division from rendering legal advice regarding the cases before Pre-Trial Chambers I and II. The judges further opined that, absent any request for disqualification, there were no grounds to call a meeting of judges in accordance with the Statute, to address the issue of disqualification.

Article 42 – The Office of the Prosecutor 1. The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and

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for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source. 2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis. 3. The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election. 5. Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. 6. The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case. 7. Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. 8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber. (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter; 9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.

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Article 43 – The Registry 1. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42. 2. The Registry shall be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court. 3. The Registrar and the Deputy Registrar shall be persons of high moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court. 4. The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar. 5. The Registrar shall hold office for a term of five years, shall be eligible for reelection once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required. 6. The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

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Article 43(6): Victims and Witnesses Unit – Role: Providing objective and specialised advice on witness issues to the Chamber

S43-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Third Defence Motion for Leave to Appeal (PT), 4 October 2006, pp.7-8:

CONSIDERING that, in relation to the First Issue, the single judge considers that, according to article 43 of the Statute and rule 17 of the Rules, the Victims and Witnesses Unit is the specialised unit of the Registry on matters concerning the protection of victims and witnesses; CONSIDERING that, in the context of Prosecution or Defence motions for nondisclosure of identity of Prosecution or Defence witnesses, the Victims and Witnesses Unit provides the Chamber, regardless of the position of the parties on the matter, with objective and independent advice on (i) the security situation of the relevant witness, (ii) the range of available and feasible protective measures for the witness and (iii) the need, from the perspective of adequately safeguarding the

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security of the relevant witness, to rely on procedural measures such as granting the non-disclosure of the identity of Prosecution or Defence witnesses prior to the confirmation hearing; and that, for these reasons, the Victims and Witnesses Unit has not only filed on 21 July 2006 the Recommendations of the Registry but, at the request of the single judge, has also actively participated in all the ex parte hearings convened by the single judge on the Prosecution rule 81 (4) motions; CONSIDERING that, in the view of the single judge, the Victims and Witnesses Unit can properly discharge its support functions vis-à-vis the Chamber only by distancing itself from the specific positions of the parties in any given matter and by providing the Chamber with objective information regarding the factual circumstances of the relevant witnesses and also specialised advice in respect of their needs in terms of protection; and that the Victims and Witnesses Unit must do so and, to date, has done so, irrespective of whether its conclusions are different from those advanced by the parties; CONSIDERING that, in the opinion of the single judge, the information and recommendations given by the Victims and Witnesses Unit in the Recommendations of the Registry and during the ex parte hearings on the Prosecution rule 81 (4) motions were in no way ultra vires; that despite the significant weight given to the recommendations of the Registry and contrary to the claims of the Defence, the Decision does not follow several points of the recommendations; that the single judge agrees with the Prosecution in that the Defence's allegation that the Victims and Witnesses Unit "should not replace the role of the judge as the ultimate arbiter of fact and law"(29) is wholly unsupported; (30) and that, for this reason, the Decision does not involve the First Issue; ————————— (29) Defence Request, p. 6. (30) Prosecution Response, para. 19.

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Article 43(6): Victims and Witnesses Unit – Role: Ensuring witness familiarisation with the Court proceedings

S43-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (PT), 8 November 2006, paras. 14-15, 20-26:

14. […] On the one hand, the Prosecution explains that the practice of witnessproofing "allows assisting the witness testifying with the full comprehension of the Court proceedings, its participants and their respective roles, freely and without fear"(18). This goal is accomplished through the following measures which, according to the Prosecution, are part of the practice of witness proofing: i. "To provide the witness with an opportunity to acquaint him/herself with the Prosecution's Trial Lawyer and other whom may examine the witness in Court; ii. To familiarise the witness with the Courtroom, the Participants to the Court proceedings and the Court proceedings;

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iii. To reassure the witness about his/her role in the Court proceedings; iv. To discuss matters that are related to the security and safety of the witness, in order to determine the necessity of applications for protective measures before the Court; v. To reinforce to the witness that he/she is under a strict legal obligation to tell the truth when testifying; vi. To explain the process of examination-in-chief, cross-examination and reexamination;" (19) 15. In the view of the Chamber, this first component of the definition of the practice of witness proofing advanced by the Prosecution aims at preparing the witness to give oral evidence before the Court in order to prevent being taken by surprise or being placed at a disadvantage due to ignorance of the Court's proceedings. The Chamber observes that this first component consists basically of a series of arrangements to familiarise the witnesses with the layout of the Court, the sequence of events that is likely to take place when the witness is giving testimony, and the different responsibilities of the various participants at the hearing. […] 20. In the view of the Chamber, there are several provisions of the Statute and Rules which, without being referred to as "witness preparation", "witness familiarisation" or "witness proofing", encompass the measures contained in paragraphs 16 (i) to (vi) of the Prosecution Information in order to assist the witness in the experience of giving oral evidence before the Court so as to prevent the witness from finding himself or herself in a disadvantageous position, or from being taken by surprise as a result of his or her ignorance of the process of giving oral testimony before the Court. 21. In this regard, the Chamber is particularly mindful of: i. article 57 (3) (c) of the Statute, which imposes on the Chamber the duty to provide, where necessary, for the protection of victims and witnesses; ii. article 68 (1) of the Statute which imposes upon the different organs of the Court within the scope of their competency, including the Chamber, the duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses; iii. rules 87 and 88 of the Rules, which provide for a series of measures for the protection of the safety, physical and psychological well-being, dignity and privacy of the witnesses, including measures to facilitate their testimony; 22. Moreover, the Chamber observes that article 43 (6) of the Statute imposes upon the Registrar the duty to set up a Victims and Witnesses Unit (" the VWU") within the Registry, which in consultation with the Office of the Prosecution, shall provide protective measures and security arrangements, counselling and other appropriate assistance for witnesses. Furthermore, rules 16 (2) and 17 (2) (b) of the Rules, when elaborating on the functions of the VWU, expressly state that, in accordance with the

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Statute and the Rules, and in consultation when appropriate with the Chamber, the Prosecution and the Defence, the said unit shall perform inter alia the following functions in relation to witnesses: i. Assisting witnesses when they are called to testify before the Court;(23) ii. Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings; (24) iii. Informing witnesses of their rights under the Statute and the Rules;(25) iv. Advising witnesses where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (26) v. Assisting witnesses in obtaining medical, psychological and other appropriate assistance; (27) and vi. Providing witnesses with adequate protective and security measures and formulating long-term and short-term plans for their protection; (28) 23. Hence, the Chamber considers that those measures included in paragraph 16 (i) to (vi) of the Prosecution Information are not only admissible in light of the abovementioned provisions of the Statute and the Rules, but are mandatory according to such provisions. Moreover, it is the view of the Chamber that labelling this practice as "witness proofing" is not suitable for the content of this practice, and that the expression "witness familiarisation" is more appropriate in this context. 24. Moreover, the Chamber finds that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony. 25. The Chamber considers that this approach, in addition to being supported by the literal interpretation of the relevant provisions of the Statute and the Rules, is also warranted by the systematic and teleological interpretation of such provisions. 26. From a systematic perspective, the attribution of the practice of witness familiarisation to the VWU is consistent with the principle that witnesses to a crime are the property neither of the Prosecution nor of the Defence and that they should therefore not be considered as witnesses of either party, but as witnesses of the Court. In this regard, the Chamber recalls that this principle underpins several decisions taken by the Chamber in the proceedings leading to the confirmation hearing in the present case. (29) [...] FOR THESE REASONS ORDERS the Victims and Witnesses Unit to proceed with the practice of witness familiarisation for the only witness currently scheduled to testify at the confirmation hearing by adopting inter alia the following measures in the two days prior to her testimony before the Chamber:

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i. assisting the witness to fully understand the Court proceedings, its participants and their respective roles; ii. reassuring the witness about her role in proceedings before the Court; iii. ensuring that the witness clearly understands that she is under a strict legal obligation to tell the truth when testifying; iv. explaining to the witness the process of examination first by the Prosecution and subsequently by the Defence; v. discussing matters that are related to the security and safety of the witness in order to determine the necessity of applications for protective measures before the Court; and vi. making arrangements with the Prosecution in order to provide the witness with an opportunity to acquaint herself with the Prosecution's Trial Lawyer and others who may examine the witness in Court; ————————— (18) ICC-01/04-01/06-638-Conf, para. 17 (i). (19) ICC-01/04-01/06-638-Conf, para. 16 (i) to (vi). (23) Rule 17(2) (b) (ii) of the Rules. (24) Rule 17 (2) (b) (iii) of the Rules. (25) Rule 16 (2) (a) of the Rules. (26) Rule 17 (2) (b) (i) of the Rules. (27) Rule 17 (2) (a) (iii) of the Rules. (28) Rules 17 (2) (a) (i) of the Rules. (29) See, for instance, the system according to which the Prosecution and the Defence may contact, prior to the confirmation hearing, the witnesses on which the other party intends to rely at the hearing. This system was established in the "Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses", issued by the single judge on 19 September 2006 (ICC-01/04-01/06-447).

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Article 43(6): Victims and Witnesses Unit – Role – Contact with Protected Victims

S43-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Oral Decision on the Prosecution Request for an Extension of a Time Limit (PT), 1 September 2006:

At the hearing of 1 September 2006 the Single Judge decided on the "Prosecution's Request for an Extension of a time limit", ICC-01/04-01/06-33 3-Conf-Exp, filed on 16 August 2006 and established that, from today, Applicants a/0047/06 to a/0052/06 shall be contacted by Prosecution, the Victims Participation and Reparation Section or by any other organ of the Court only through the Victims and Witnesses Unit.

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Article 44 – Staff 1. The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators. 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8. 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties. 4. The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or nongovernmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.

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Article 44(2): Duty of integrity – Prosecutor’s staff – Inadmissibility of witness proofing as unethical – Prosecution’s undertaking to comply with a domestic Code of Conduct

S44-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (PT), 8 November 2006, paras. 16-17, 28-42:

16. In the view of the Chamber, the second component of the definition of the practice of witness proofing advanced by the Prosecution aims at achieving the following goals, as highlighted in the Prosecution Information: i. "Proofing" allows assisting the process of human recollection. Differences in recollection and additional recollections can be identified and addressed prior to the witness' testimony; ii. "Proofing", by comparing the statements made by a witness during the proofing with the content of an earlier statement of the witness, allows detecting deficiencies and differences in recollection of the witness. As a consequence, in addressing such deficiencies and differences prior to witness' testimony, "proofing" is likely to allow the witness to present the evidence in a more accurate, complete, structured and efficient manner; iii. "Proofing" allows the Prosecution to disclose to the Defence both additional information and/or evidence of incriminatory or exculpatory nature in sufficient time prior to the witness' testimony,

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thereby reducing the prospect of the Defence being taken by surprise during the witness testimony;" (20) 17. These goals are accomplished through three remaining measures which, according to the Prosecution, are also encompassed by the definition of the practice of witness proofing: i. To allow a witness to read his/her statement and refresh his/her memory in respect of the evidence he/she will give; ii. Relying on the witness' statement, the Prosecution's Trial Lawyer puts to the witness the questions he/she intends to ask the witness during the witness' testimony, and in the order as anticipated; iii. To inquire about possible additional information of both, potentially incriminatory and potentially exculpatory nature;" (21) […] 28. Unlike the first component of the definition of the practice of witness proofing advanced by the Prosecution, the Chamber observes that the goals and measures encompassed by the second component of such a definition are not covered by any provision of the Statute, the Rules or the Regulations. Therefore, the Chamber, prior to undertaking any analysis under article 21 (3) of the Statute, shall first analyse whether this second component is embraced by any provision, rule or principle which could be considered as part of the applicable law of the Court pursuant to article 21 (1) (b) and (c) of the Statute. 29. The Prosecution asserts that the practice of witness proofing as defined by the Prosecution "is a widely accepted practice in international criminal law" (31) and therefore the Prosecution implies that it should be considered as part of the applicable law of the Court pursuant to article 21 (1) (b) of the Statute. 30. In support of this submission, the Prosecution cites (i) two Trial Chamber decisions of the International Criminal Tribunal for the former Yugoslavia ("the ICTY");(32) (ii) one Trial Chamber decision of the Sierra Leone Special Court ("the SLSC");(33) and (iii) the statement of Justice Hassan B. Jallow, Prosecutor of the International Criminal Tribunal for Rwanda ("the ICTR"), to the UN Security Council on 29 June 2004. (34) 31. Firstly, the Chamber observes that the Prosecution has not put forward any jurisprudence from the ICTR authorising the practice of witness proofing as defined by the Prosecution. The Chamber also observes that the precedent from the SLSC relied on by the Prosecution does not deal with the practice of witness proofing but addresses "the related legal issues of the exclusion of supplemental statements of prosecution witnesses on the grounds that they contain or introduce new allegations against the Accused persons, and whether, if the allegations are new, there has been a breach of Rule 66 of the Rules on the part of the Prosecution." (35) Moreover, the Chamber finds that out of the two ICTY Trial Chamber decisions cited by the Prosecution, the decision in the Jelisic case does not refer to the practice of witness proofing prior to the witness testimony because it is confined to the issue of contact with a witness once the witness has taken the stand and made the solemn undertaking. (36)

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32. Hence, the only decision identified by the Prosecution in which the practice of witness proofing is expressly authorised is the 10 December 2004 decision of PreTrial Chamber II of the ICTY in the Limaj case. (37) Moreover, such a decision, despite authorising the practice of witness proofing, does not regulate in detail the content of such a practice. 33. Under these circumstances the Chamber finds that the Prosecution assertion that the practice of witness proofing as defined by the Prosecution in the Prosecution Information "is a widely accepted practice in international criminal law", is unsupported. 34. Likewise, the Chamber considers that the Prosecution's submission that the practice of witness proofing as defined in the Prosecution Information is a special feature of proceedings carried out before international adjudicatory bodies due to the particular character of the crimes over which such bodies have jurisdiction is also unsupported.(38) Indeed, the Chamber is of the view that the following reasons advanced by the Defence to explain why the practice of witness proofing has been accepted at times, particularly before the ICTY, cannot be fully disregarded: "The position of the Defence is that the system of proofing a witness is peculiar to a limited number of common law countries in which the role of the Prosecution is markedly different than that which is attributed to the ICC prosecutor. In this connection, the prevalence of the practice of proofing should be more accurately attributed to the geographical makeup and hierarchy of the Prosecution sections of the ICTY (inter alia), than the assertion that it is a "widely accepted practice in international criminal law." (39) 35. With regard to the question of whether the second component of the definition of the practice of witness proofing advanced by the Prosecution can be encompassed, pursuant to article 21 (1) (c) of the Statute, by a general principle of law derived by the Court from national laws of the legal systems of the world including, as appropriate, the national laws of the Democratic Republic of the Congo ("the DRC"), the Chamber first observes that the Prosecution does not submit that such a practice is consistent with the DRC criminal procedure. 36. The Chamber also notices that the approach of different national jurisdictions to this second component varies widely. This variety of approaches became particularly clear when in 1994 the ICTY Office of the Prosecutor was in the process of establishing standard practices within its office. As it has been pointed out: "On the second day at the OTP, several colleagues were discussing the content of prospective witness statements and the ways in which they might be used on cross-examination to discredit witnesses, in the event of discrepancies with trial testimony. This author, saying that discrepancies were inevitable, and that witnesses could be prepared to explain them on cross-examination, described how witnesses are prepared for trial testimony in the United States. A colleague from Scotland responded that, in his jurisdiction, such preparation methods would constitute a crime, and one that definitively would be prosecuted, as witnesses are considered to 'belong' to the state and not to any party to the proceedings. A colleague from Australia responded

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that such preparation would not be unlawful, but it would be unethical, and he would not do it. This author replied that, in the United States, failure to conduct such preparation would constitute malpractice. To this author's best knowledge, this particular national difference has never been fully resolved by the OTP. Different trial Attorneys use different methods to prepare witnesses for trial {…}.”(40) 37. In this regard, the Chamber observes that the differences in approach by national jurisdictions with regard to the second component of the definition of the practice of witness proofing advanced by the Prosecution have nothing to do with their legal tradition. Indeed, the Chamber notices that this second component would be either unethical or unlawful in jurisdictions as different as Brazil, Spain, France, Belgium, Germany, Scotland, Ghana, England and Wales and Australia, to give just a few examples, (41) whereas in other national jurisdictions, particularly in the United States of America, the practice of witness proofing along the lines advanced by the Prosecution is well accepted, and at times even considered professional good practice.(42) 38. In this context, the Chamber considers that particular attention must be given to the treatment of the practice of witness proofing in England and Wales insofar as the Prosecution has expressly undertaken to comply with the principles provided for in article 705 of the Code of Conduct of the Bar Council of England and Wales, (43) which states the following in relation to contact between a barrister and a witness: "A barrister must not: (a) rehearse practise or coach a witness in relation to his evidence; (b) encourage a witness to give evidence which is untruthful or which is not the whole truth; and (c) except

with the consent of the representative for the opposing side or of the Court, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded." 39. As explained by the Bar Council of England and Wales in the most recent version of its "Guidance on witness preparation",(44) this provision cannot be read in isolation but must be read in light of the 2005 decision of the Court of Appeal in R v. Momodou, in which the Court of Appeal addressed at length the distinction between "witness coaching" and "witness familiarization". According to the Court of Appeal: "There is a dramatic distinction between witness training or coaching and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted [...] Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be improved [...].” (45)

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40. The Chamber recalls that, as seen above, the second component of the notion of witness proofing advanced by the Prosecution aims inter alia at detecting and addressing differences and deficiencies in the recollection of the witness prior to the testimony of the witness by inter alia (i) allowing the witness to read his or her statement, (ii) refreshing his or her memory in respect of the evidence that he or she will give at the confirmation hearing, and (iii) putting to the witness the very same questions and in the very same order as they will be asked during the testimony of the witness. In the view of the Chamber, this practice would be a direct breach of the very same standards, included in article 705 of the Code of Conduct of the Bar Council of England and Wales, that the Prosecution has expressly undertaken to be bound by. 41. As a result, the Chamber would like to emphasize that granting authorisation to proceed with the second component of the definition of the practice of witness proofing advanced by the Prosecution would amount to authorising a practice which is currently unethical or unlawful in numerous national jurisdictions, including the one - England and Wales - whose standards the Prosecution has expressly undertaken to comply with. 42. Hence, the Chamber finds that the second component of the definition of the practice of witness proofing advanced by the Prosecution is not embraced by any general principle of law that can be derived from the national laws of the legal systems of the world. On the contrary, if any general principle of law were to be derived from the national laws of the legal systems of the world on this particular matter, it would be the duty of the Prosecution to refrain from undertaking the practice of witness proofing as defined in paragraphs 16 (vii), (viii) and (ix) and 17 (ii), (iii) and (iv) of the Prosecution Information. FOR THESE REASONS […] ORDERS the Prosecution not to undertake the practice of witness proofing as defined in paragraphs 16 (vii), (viii) and (ix) and 17 (ii), (iii) and (iv) of the Prosecution Information. ORDERS the Prosecution to refrain from all contact with the witness outside the courtroom from the moment the witness takes the stand and makes the solemn undertaking provided for in rule 66 of the Rules. ————————— (20) ICC-01/04-01/06-638-Conf, para. 117. (21) ICC-01/04-01/06-638-Conf, para. 16 (vii), (viii) and (ix). (31) Prosecution Information, para. 14. (32) The Prosecutor vs Goran Jelisic, Case No. IT-95-10, Decision on Communication between Parties and Witnesses, 11 December 1998; The Prosecution vs Limaj et al. Case No IT-03-66-T, Decision on the Defence Motion on Prosecution Practice of 'Proofing Witnesses', 10 December 2004. (33) The Prosecutor vs Sesay, case No. SCSL-2004-15-T, Decision on the Defence Motion for the Exclusion of Certain Portions of Supplemental Statements of Witness TF1-117, 27 February 2006. (34) See footnote 15 of the Prosecution Information.

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The Prosecutor vs Sesay, case No. SCSL-2004-15-T, Decision on the Defence Motion for the Exclusion of Certain Portions of Supplemental Statements of Witness TF1-117, 27 February 2006, para. 3. (36) The Prosecutor vs Goran Jelisic, Case No. IT-95-10, Decision on Communication between Parties and Witnesses, 11 December 1998. In this regard, the Chamber observes that in foonote 19 of the Prosecution Information, the Prosecution undertakes not to contact the witness once the witness has made the solemn undertaking pursuant to rule 66 of the Rules. (37) The Prosecution vs Limaj et al, Case No. IT-03-66-T, Decision on the Defence Motion on Prosecution Practice of 'Proofing Witnesses', 10 December 2004 ( The Judgement of the Trial Chamber in this case, which was issued on 30 November 2006, summarizes the 10 December 2004 decision in para. 766). (38) According to the Prosecution, the alleged wide acceptance of the practice of witness proofing as defined in the Prosecution Information is "due to its significant added value to the proceedings in Courts that have jurisdiction over crimes such as, inter alia , war crimes and crimes against humanity" because such proceedings " typically cover a long period of time and witnesses may be called upon to testify about multiple events that took place years prior to their respective testimonies" (Prosecution Information, para. 15). In this regard, the Chamber recalls that the principle of complementarity, which is one of the cornerstones of the Statute, provides that the Court shall only exercise jurisdiction over the crimes provided for in the Statute if the States concerned are not taking, or have not taken, action with regard to the said crimes, or are unwilling or unable to carry out their own national proceedings. The principle of complementarity of the Court vis-à-vis national jurisdictions is based on the premise that the investigation and prosecution of the crimes provided for in the Statute lies primarily with national jurisdictions. As a result, since the approval of the Statute on 17 July 1998, a number of national implementing legislations have been passed in order to ensure that States Parties have jurisdiction over the crimes contained in the Statute. The Chamber observes that the approval of national implementing legislations with regard to the crimes provided for in the Statute has not brought about a change in the approach taken by national jurisdictions vis-à-vis the practice of witness proofing. Therefore, contrary to what the Prosecution submits, the alleged "significant added value to the proceedings in Court that have jurisdiction over crimes such as, inter alia , war crimes and crimes against humanity" has not justified a change of approach by national jurisdictions in the practice of witness proofing as defined in the Prosecution Information. As a result, in a number of national jurisdictions which have jurisdiction over crimes included in the Statute, which may very well cover a long period of time, and in relation to which witnesses may be called upon to testify about multiple events that took place years prior to their respective testimonies, the practice of witness proofing as defined in the Prosecution Information continues to be unethical or unlawful. This is also the case for national jurisdictions, such as inter alia Spain, Belgium or Germany, in which, as a result of initiating proceedings over crimes within the jurisdiction of the Court on the basis of the principle of universal jurisdiction, translation issues and problems related to the gathering of evidence in the territory of third States often arise. (39) Defence Response, para. 10. (40) Schräg, M. (Senior Trial Attorney at the ICTY Office of the Prosecution between 1994 and 1995), Lessons Learned from ICTY Experience, in 2 J. Int'l Cnm Just. 427, p. 432, footnote 9. The different approaches to the issue of witness proofing is also mentioned by other authors when explaining the phenomenon of cultural relativism m criminal procedure. See, for instance, Guariglia, F., El Proceso Acusatorio ante la Corte Penal International, in IberoAmerica y la Corte Penal International: Debates, Reflexions y Preguntas (2006), pp. 4450, p. 45. It is against this backdrop that the following submission in footnote 2 of the Defence Response must be read: "The Defence notes that this practice, whilst prevalent in the United States, is not practiced in many common law jurisdictions in order to avoid the appearances of 'coaching' a witness. Thus, the Limaj decision cited by the Prosecution arose from the fact that the predominantly English Defence counsel were contesting a practice utilised by the predominantly American Prosecution team."

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(41)

Among the reasons that have been put forward to justify the unethical or unlawful character of this second component of the definition of the practice of witness proofing advanced by the Prosecution are inter alia the following: (i) witnesses may realise that certain aspects of their evidence are not quite consistent, or are not required to be mentioned, and, as a result, they may alter the emphasis of their evidence; (ii) the evidence given by witnesses may deliberately or inadvertently be confused with information given during the proofing sessions, which will no longer serve the ultimate goal of ascertaining the truth; (in) witnesses typically perceive only parts of events, which leads to gaps that witnesses will unconsciously try to fill with logical inferences from the proofing sessions; (iv) witness proofing may inappropriately enhance the credibility of witnesses because the more the witnesses practice, the more confident and detailed their recollection becomes; and (v) witness proofing, and particularly providing witnesses with the questions that they will be asked during their testimony, creates the risk of depriving court-room testimony of all its spontaneity and of giving the impression of being 'canned'. (42) Among the reasons that have been put forward to justify the characterisation of this second component of the definition of the practice of witness proofing advanced by the Prosecution as good professional practice are inter alia the following, (i) witness proofing enables the identification of differences and deficiencies in recollection prior to the testimony of witnesses in the courtroom; (ii) witness proofing enables the differences and deficiencies in recollection identified in the proofing sessions to be addressed prior to the testimony of the witnesses in the courtroom; and (iii) witness proofing is likely to allow witnesses to present their evidence in a more accurate, structured and exhaustive manner. (43) Prosecution Informaton, para. 19. (44) http://www.barcouncil.org.uk/document.asp?languageid=l&documentid=3386#ParaLink, para. 1. (45) R v Momodou [2005] EWCA Cnm 177, para. 61.

Article 45 – Solemn Undertaking Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

Article 46 – Removal from Office 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute. 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties;

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(c)

In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor. 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges. 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter.

Article 47 – Disciplinary Measures A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.

Article 48 – Privileges and Immunities 1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes. 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity. 3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court. 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court. 5. The privileges and immunities of: (a) A judge or the Prosecutor may be waived by an absolute majority of the judges; (b) The Registrar may be waived by the Presidency; (c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor; (d) The Deputy Registrar and staff of the Registry may be waived by the Registrar.

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Article 49 – Salaries, Allowances and Expenses The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office.

Article 50 – Official and Working Languages 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph. 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages. 3. At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.

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Article 50(2): Working Languages – Right of the Defence counsel to be provided with documents in a working language he or she understands – Unavailability is good cause for extension of time

S50-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision relative à la Requête aux fins de prorogation du délai de réponse introduite par le Conseil ad hoc de la Défense (Translation not available) (PT), 16 June 2006:

VU la « Requête aux fins de prorogation du délai de réponse », versée au dossier de la situation en RDC le 13 juin 2006, dans laquelle le conseil ad hoc de la Défense soutient qu'il « lui est impossible d'apprécier au fond les observations de l'Accusation ni de les aborder dans la réponse à la demande des victimes » car il ne parle pas l'anglais(6) et qu'il « est nécessaire que le conseil traite des arguments avancés tant par les victimes que par l'Accusation(7) », et demande en conséquence à la Chambre de « i) modifier le délai fixé dans la décision rendue le 18 mai 2006 afin qu'il commence à courir à partir de la date à laquelle le conseil de la Défense reçoit les observations de l'Accusation dans sa langue de travail, et ii) d'ordonner que tous les délais à venir qui concernent la demande visée commencent à courir à partir de la date à laquelle le conseil de la Défense reçoit les documents pertinents dans sa langue de travail(8) »,

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VU les articles 50 et 68 du Statut de Rome et les normes 34 et 35 du Règlement de la Cour, ATTENDU qu'aux termes de la norme 35-2 du Règlement de la Cour, la Chambre n'accède à une demande de prorogation de délai qu'à la condition qu'un motif valable soit présenté, ATTENDU que la langue de travail du conseil ad hoc de la Défense est le français, ATTENDU que les intérêts généraux de la Défense doivent être protégés de manière effective au stade de l'enquête sur une situation, PAR CES MOTIFS, DÉCIDE, pour ce qui est du dépôt de ses observations concernant les Demandes de participation, d'accorder au conseil ad hoc de la Défense un délai de huit jours à compter de la date de notification de la présente décision, ORDONNE au Greffier, de prendre les mesures nécessaires pour fournir au conseil ad hoc de la Défense une traduction en langue française de tout document déposé en langue anglaise dans le cadre de la procédure relative aux Demandes de participation n° a/0001/06 à a/0003/06, les délais de dépôt d'observations sur ce document ne commençant à courir pour le conseil ad hoc de la Défense qu'à partir de la notification dudit document en langue française. ————————— (6) ICC-01/04-155, p. 2. (7) Ibid. (8) Ibid., p. 4 et 5.

——— Official Translation Not Available ——— x

Article 50(2): Working Languages - Order to prioritise documents in the language the accused understands

S50-PT-2

10

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Redacted Version of the Prosecution’s Application and the Prosecutor’s Submissions of Further Information and Materials (PT), 15 March 2006 (made public on 21 March 2006):10

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Transcripts of the In Camera Meeting Held on 17 March 2006 (PT), 19 April 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Transmission of the Transcript of the In Camera Meeting Held on 17 March 2006 (PT), 9 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision Correcting the Annex Regarding the Redactions of the Transcript of the In Camera Meeting Held on 17 March 2006 (PT), 17 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la requête de la Défense aux fins d’éclaircissements

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CONSIDERING that from the two official languages of the Court, French is also one of the official languages of the DRC; that it appears from the Prosecution's Application for a warrant of arrest against Mr. Thomas Lubanga Dyilo that French is a language that he fully understands and speaks(5); and that it would be preferable, where a French version exist, to have available first the redaction of the French versions of the documents; ————————— (5) ICC-01/04-01/06-13-US-Exp, para. 66; and ICC-01/04-01/06-32-US-Exp-AnxA, para. 55.

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Article 50(2): Working Languages – Difference between working languages and languages “which the accused fully understands and speaks” under Article 67(1)(a) – Disclosure of evidence in a language the accused speaks fulfils requirements under Article 67(1)(a), but not under Article 69(4) (admissibility of evidence)

S50-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence “Request to Exclude Video Evidence Which Has not Been Disclosed in one of the Working Languages” (PT), 7 November 2006, pp. 2-4:

NOTING articles 50 (2), 61, 67 and 69 (4) of the Rome Statute ("the Statute") and rule 121 of the Rules of procedure and evidence ("the Rules"); CONSIDERING that between 9 June and 23 August 2006, the Prosecution disclosed 18 video excerpts to the Defence; that, on 28 August 2006, the Prosecution included the said video excerpts in the Prosecution List of Evidence filed along with the Prosecution Charging Document; and that prior to the filing of the Defence Request on 2 November 2006, the Defence had not raised the issue of the lack of translation, nor it has requested a translation, of any of these video excerpts into one of the two working languages of the Court; CONSIDERING that the Defence now requests that the Chamber order that nine of the said 18 video excerpts be excluded from the list of evidence on which the Prosecution intends to rely at the confirmation hearing because these videos are partially or predominantly in Swahili; CONSIDERING that pursuant to article 61 (3) of the Statute, within a reasonable time before the hearing, Thomas Lubanga Dyilo must be provided with a copy of a document containing the charges on which the Prosecutor intends to bring him to trial and be informed of the evidence on which the Prosecutor intends to rely at the confirmation hearing; and that, pursuant to article 67 (1) of the Statute, in the determination of any charge, Thomas Lubanga Dyilo is inter alia entitled to be informed promptly and in detail of the nature, cause and content of the charge, in a language which he fully understands and speaks;

et d’augmentation du nombre de pages autorisé (Decision on the Defence Motion for Clarification and Request for an Extension of the Page Limit) (PT), 30 November 2006, p.2.

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CONSIDERING that the above-mentioned material was transmitted to the Defence between 9 June and 23 August 2006, and that Thomas Lubanga Dyilo fully understands and speaks Swahili; CONSIDERING, however, that under no circumstances may evidence not translated into one of the working languages of the Court at the time of commencement of the confirmation hearing be admitted into evidence insofar as the Chamber must be in a position to fully understand the evidence on which the parties intend to rely at the hearing; and considering, therefore, that pursuant to article 69(4) of the Statute, video excerpts (i) which are not translated into one of the working language of the Court by Thursday 9 November 2006 at 9h30 and (ii) whose translation is not made available to the Chamber and the Defence by that time must be declared inadmissible; CONSIDERING further that, in principle, in order for the Court to conduct its business effectively, the Prosecution must be prepared to provide the evidence on which it intends to rely at the confirmation hearing in one of the working languages of the Court by the time it is required to file the Prosecution List of Evidence and the Prosecution Amended List of Evidence in accordance with rule 121 (3), (4) and (5) of the Rules; FOR THESE REASONS DECIDE, pursuant to article 69 (4) of the Statute, to declare inadmissible for the purpose of the confirmation hearing those video excerpts: (i) which are not translated into one of the working languages of the Court by Thursday 9 November 2006 at 9h30; and (ii) whose translation into one of the working languages of the Court is not made available to the Chamber and the Defence by the said time-limit;

Article 51 – Rules of Procedure and Evidence 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 2. Amendments to the Rules of Procedure and Evidence may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; or (c) The Prosecutor. Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties. 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties.

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4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted. 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

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Article 51(5): Conflict between the Statute and the Rules – Statute’s prevalence over the Rules

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o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, para. 47:

47. Au sujet de l’argument du Procureur quant à la règle 92 du Règlement de procédure et de preuve, la Chambre se doit de rappeler qu’en vertu de l’article 51-5 du Statut, le Règlement de procédure et de preuve est un instrument subordonné au Statut. Il n’est dès lors pas possible d’interpréter une disposition du Règlement comme pouvant réduire le champ d’application d’un article du Statut (48). ————————— (48) La Chambre rappelle en outre que lors de l'adoption du Règlement de procédure et de preuve en septembre 2002, l’Assemblée des États parties a joint la note explicative suivante : « Le Règlement de procédure et de preuve est un instrument d’application du Statut de Rome de la Cour pénale internationale auquel il est subordonné dans tous les cas. […] » Assemblée des États parties au Statut de Rome de la Cour pénale internationale, première session, New York, 3-10 septembre 2002, ICC-SP/1/3, p. 11.

——— Official Translation ——— 47. With regard to the Prosecutor’s argument pertaining to rule 92 of the Rules of Procedure and Evidence, the Chamber must point out that, pursuant to article 51 (5) of the Statute, the Rules of Procedure and Evidence is an instrument that is subordinate to the Statute. It follows that a provision of the Rules cannot be interpreted in such a way as to narrow the scope of an article of the Statute. (48) ————————— (48) The Chamber further recalls that when adopting the Rules of Procedure and Evidence in September 2002, the Assembly of States Parties appended the following explanatory note: “The Rules of Procedure and Evidence are an instrument for the application of the Rome Statute of the International Criminal Court, to which they are subordinate in all cases. […]” Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3-10 September 2002, ICC-ASP/1/3, p. 10.

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Article 52 – Regulations of the Court 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.

Part 5 – Investigation and Prosecution Article 53 – Initiation of an Investigation 1. The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: (a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) The case is or would be admissible under article 17; and (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber. 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: (a) There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; (b) The case is inadmissible under article 17; or (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion. 3.(a) At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

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(b)

In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber. 4. The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.

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Article 53(3) (b): Prosecutor’s decision limiting the scope of investigation is subject to review by the Pre-Trial Chamber – Further information requested proprio motu by the Chamber in reaction to Prosecutor’s statement

S53-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53 (PT), 2 December 2005, paras. 4-5, 7-14, 17:

4. NOTING the letter of referral dated the 16th day of December 2003 by the Attorney General of Uganda, appended as Exhibit A to the Prosecutor's application for warrants of arrest, by which the "situation concerning the Lord's Resistance Army" in northern and western Uganda was submitted to the Court; 5. NOTING the Prosecutor's conclusion that "the scope of the referral encompasses all crimes committed in Northern Uganda in the context of the ongoing conflict involving the LRA" and that the Prosecutor notified the Government of Uganda of his conclusion as referred to in paragraph 1 of the Prosecutor's application for warrants of arrest; […] 7. NOTING the statement made by the Prosecutor's representative at the status conference held on the 3rd day of October 2005 that the Office of the Prosecutor (the "OTP") does not "plan [...] to continue investigating the past crimes" (1), but intends to investigate future crimes of the LRA, including allegations of harbouring and supporting the LRA; and that OTP investigations and assessments of allegations made against the military forces of the Government of Uganda are ongoing; 8. NOTING also the statement made by the Prosecutor at the Informal Meeting of Legal Advisors of Ministries of Foreign Affairs on the 24th day of October 2005 that the investigation in the situation in Uganda "is nearing completion" (2) and that "the interpretation of Article 53 ... involves the OTP and ultimately the judges"(3); 9. NOTING the Prosecutor's statement at the Fourth Session of the Assembly of States Parties that "[i]n Uganda, if new crimes are committed by other LRA commanders" the OTP may investigate those persons; that the OTP "will continue to

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evaluate information on all other groups" and that cases will be presented "if they reach the gravity standards of the Statute" (4); 10. RECALLING article 54, paragraph 1 (a), of the Statute of the Court (the "Statute"), pursuant to which the Prosecutor shall "[i]n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally"; 11. NOTING article 53, paragraphs 2 and 3, of the Statute and rule 106 of the Rules of Procedure and Evidence (the "Rules"); 12. RECALLING the Chamber's request as contained in its decision dated the 13th day of October 2005 for the Prosecutor, "in accordance with rule 106 of the Rules, to promptly inform the Chamber in writing of any decision concluding that 'there is not a sufficient basis for prosecution under article 53, paragraph 2' of the Statute, and the reasons for this conclusion, in view of the Chamber's powers under article 53, paragraph 3 (b), of the Statute"; 13. RECALLING further that, under article 53, paragraph 3 (b), "a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c) … shall be effective only if confirmed by the Pre-Trial Chamber"; 14. NOTING regulation 48, pursuant to which the "Pre-Trial Chamber may request the Prosecutor to provide specific or additional information ... that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in article 53, paragraph 3 (b)"; […] 17. DECIDES, pursuant to regulation 30 of the Regulations, to convene a status conference by way of a hearing in closed session to be held on the 14th day of December 2005 at 10 a.m. to be attended by the Prosecutor with a view to considering the status of the investigation in the situation in Uganda in relation to the application of Article 53. ————————— (1) See Hearing 3 October 2005, Transcript T-02/04-01/05-l-Conf-EN, p. 46-47. (2) See ICC-02/04-01/05-67, p.3. (3) Ibid., p. 11. (4) Ibid., p. 29.

Article 54 – Duties and Powers of the Prosecutor with Respect to Investigations 1. The Prosecutor shall: (a) In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally; (b) Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses,

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including age, gender as defined in article 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and (c) Fully respect the rights of persons arising under this Statute. 2. The Prosecutor may conduct investigations on the territory of a State: (a) In accordance with the provisions of Part 9; or (b) As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d). 3. The Prosecutor may: (a) Collect and examine evidence; (b) Request the presence of and question persons being investigated, victims and witnesses; (c) Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate; (d) Enter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person; (e) Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and (f) Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

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Article 54: Right to a fair trial – Guarantees of fair trial with respect to the Prosecutor at the investigative stage – Fair trial guarantees with respect to the Defence also apply in a situation, even though nobody is charged yet

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o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 mars 2006, paras. 33-39, 43, 53-54 :

33. Le chapitre V du Statut, intitulé « Enquête et poursuites », contient un certain nombre d'articles garantissant le déroulement équitable de la procédure. Si la disposition la plus notable à cet égard est probablement l'article 55 (« Droits des

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personnes dans le cadre d'une enquête »), il convient de noter que l'article 54 (« Devoirs et pouvoirs du Procureur en matière d'enquêtes »), l'article 56 (« Rôle de la Chambre préliminaire dans le cas où l'occasion d'obtenir des renseignements ne se présentera plus ») et l'article 57 (« Fonctions et pouvoirs de la chambre préliminaire ») contribuent également au déroulement équitable de la procédure. 34. De nombreux instruments internationaux garantissent le droit à un procès équitable. Peuvent à cet égard être cités l'article 10 de la Déclaration universelle des droits de l'homme(38), le paragraphe 1 de l'article 14 du Pacte international relatif aux droits civils et politiques(39), le paragraphe premier de l'article 6 de la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales (40), le paragraphe premier de l'article 8 de la Convention américaine relative aux droits de l'homme(41) ou encore le paragraphe premier de l'article 7 de la Charte africaine des droits de l'homme et des peuples(42). 35. Eu égard aux garanties prévues dans les textes ci-dessus mentionnés, la Chambre est d'avis que ces principes sont également applicables à la phase préliminaire de la procédure devant la Cour. À cet égard, la Chambre observe que la Convention américaine relative aux droits de l'homme, dont l'article 8 a pour objet de garantir un procès équitable, ne se désintéresse pas pour autant des phases préliminaires au procès pénal. Aussi la Cour interaméricaine des droits de l'homme a-t-elle considéré, dans l'arrêt Baena Ricardo et al. que malgré son intitulé anglais (Right to a fair trial), l'article 8 de la Convention s'applique à tous les stades de la procédure (43). De même, la Cour européenne des droits de l'homme (CEDH), se fondant sur l'article 6 de la Convention a considéré à plusieurs reprises que le paragraphe premier de l'article 6 était applicable dès le stade de l'enquête(44). 36. En l'espèce, la Chambre considère que la phase de la procédure pendant laquelle la Décision a été rendue est particulière. En effet, il s'agit du stade de l'enquête dans une situation, préalable à l'affaire, et pendant lequel il n'existe donc pas de défendeur proprement dit, puisque aucun individu n'a encore fait l'objet d'un mandat d'arrêt ou d'une citation à comparaître. Néanmoins, la Chambre considère que le principe d'équité de la procédure s'applique non seulement au stade de l'affaire lors de la délivrance d'un mandat d'arrêt ou d'une citation à comparaître, mais également antérieurement au stade de l'affaire(45). 37. Si le principe du procès équitable a fait l'objet de nombreuses jurisprudences, que ce soit au niveau interne(46), européen(47) ou international(48), il reste qu'en l'espèce, la Chambre doit déterminer ce que renferme l'expression « équité de la procédure » dans le cadre du Statut au stade de l'enquête dans une situation, stade antérieur à celui d'une affaire. 38. Le terme « équité », du latin « equus », signifie équilibre. En tant que notion juridique, l'équité « procède directement de l'idée de justice(49) ». L'équité de la procédure comprend l'équilibre entre les parties (50), qui suppose à la fois le respect du principe d'égalité(51) et celui du contradictoire(52). La Chambre considère que l'équité de la procédure inclut le respect pour le Procureur, la Défense et les victimes (dans les systèmes dans lesquels leur participation à la procédure pénale est prévue) de leurs droits procéduraux garantis par les dispositions statutaires. 39. La Chambre considère également que dans le contexte du Statut, le respect de l'équité de la procédure vis-à-vis du Procureur, au stade de l'enquête dans une

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situation, signifie que ce dernier doit avoir la possibilité d'exercer les pouvoirs et de remplir les devoirs énoncés à l'article 54. […] 43. La Chambre considère que son rôle est de garantir et de préserver les droits du Procureur, de la Défense et des victimes pendant toute la procédure au stade préliminaire et notamment de préserver l'impartialité et l'intégrité de l'enquête menée par le Procureur. Plus précisément, le rôle de la Chambre consiste notamment, au stade de l'enquête dans une situation, à garantir que le Procureur soit en mesure d'exercer les pouvoirs et de remplir les devoirs énoncés à l'article 54 du Statut. […] 53. Le Procureur avance en deuxième lieu que le système de participation des victimes mis en place dans la Décision porte préjudice aux droits de la Défense dans la mesure où il altère gravement l'équilibre entre les victimes et les accusés, affectant ainsi l'équité de la procédure(67). 54. La Chambre fait observer que la Décision a été rendue à un stade de la procédure où il n'y a aucun accusé, puisqu'il s'agit du stade de la situation. La Chambre considère que le Procureur n'apporte aucun élément concret démontrant que la Décision met en cause l'égalité des armes. En effet, les futurs accusés auront accès, sous réserve de mesures de protection en faveur des victimes et des témoins, à tous les éléments de preuve en vue de la préparation de leur défense (68).En outre, la Chambre a désigné un conseil ad hoc pour la Défense, chargé de traiter en faveur des droits de la Défense toute question qui pourrait avoir des conséquences directes sur l'équité de la procédure. ————————— (38) Selon l'article 10 de la Déclaration universelle des droits de l'homme, « [t]oute personne a droit, en pleine égalité, à ce que sa cause soit entendue équitablement et publiquement par un tribunal indépendant et impartial, qui décidera, soit de ses droits et obligations, soit du bienfondé de toute accusation en matière pénale dirigée contre elle », Assemblée générale des Nations Unies, Résolution 217 A (III), en date du 10 décembre 1948, IIIe session. (39) L'article 14, paragraphe 1 du Pacte international relatif aux droits civils et politiques, 16 décembre 1966, 999 Recueil des traités des Nations Unies 14668. (40) L'article 6, paragraphe premier de la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales, 4 novembre 1950, telle qu'amendée par le Protocole n°11, 213 Recueil des traités des Nations Unies 2889. (41) L'article 8, paragraphe premier de la Convention américaine relative aux droits de l'homme, « Pacte de San José de Costa Rica », 22 novembre 1969,1144 Recueil des traités des Nations Unies 17955. (42) L'article 7, paragraphe premier de la Charte africaine des droits de l'homme et des peuples, 27 juin 1981,1520 Recueil des traités des Nations Unies 26363. (43) La Cour interaméricaine des droits de l'homme a considéré que bien que l'article 8 de la Convention américaine soit intitulé en anglais Right to a fair trial (Droit à un procès équitable, en traduction littérale, mais « Garanties judiciaires » dans la traduction officielle), il ne s'applique pas seulement aux voies de recours judiciaires au sens strict mais également à toutes les conditions devant être respectées aux différentes phases procédurales, voir Cour interaméricaine des droits de l'homme, affaire Baena Ricardo et al, Arrêt du 2 février 2001, série C, n° 72, par. 124. (44) Voir, p. ex., CEDH, affaire Wloch c. Pologne, Arrêt du 19 octobre 2000, requête n°27785/95, par. 144 ; affaire Deweer c. Belgique, Arrêt du 27 février 1980, requête n°6903/75, par. 41.

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(45)

Pour une définition des termes « situation » et « affaire » au sens du Statut, voir la Décision, par. 65. (46) Voir les exemples de jurisprudence énoncés dans GUINCHARD S., BANDRAC M., DELICOSTOPOULOS C., DELICOSTOPOULOS I., DOUCHY-OUDOT M., FERRAND F., LAGARDE X., MAGNIER V., RUIZ FABRI H., SINOPOLI L., SOREL J.-M., Droit processuel, droit commun et droit comparé du procès, Précis Dalloz, 3e édition, 2005, p. 770 à 843. (47) La CEDH a considéré que le droit à un « procès équitable » implique entre autres le caractère contradictoire de la procédure et l'égalité des armes. Voir notamment affaire Lobo Machado c Portugal, Arrêt du 20 février 1996, requête n°15764/89, p. 206, par. 31 ; affaire Vermeulen c Belgique, Arrêt du 20 février 1996, requête n°19075/91, p. 234 par. 33. (48) Affaire du Plateau continental (Tunisie c. Jamahariya arabe libyenne), Arrêt, CIJ Recueil 1982, p. 60, par. 71 ; affaires du Plateau continental de la Mer du Nord (République fédérale d'Allemagne c. Danemark, République fédérale d'Allemagne c. Pays-Bas), Arrêt CIJ Recueil 1969, p. 47, par. 85 et p. 49 à 50, par. 91 ; affaire du Différend frontalier (Burkina Faso c. République du Mali), Arrêt, 1986, CIJ Recueil 1986, p. 6, par. 50. (49) Affaire du Plateau continental (Tunisie c. Jamahariya arabe libyenne), Arrêt, ClJ Recueil 1982, p. 60, par. 71. (50) Toute partie à une action doit avoir une possibilité raisonnable d'exposer sa cause au tribunal dans des conditions qui ne la désavantagent pas d'une manière appréciable par rapport à la partie adverse : voir Commission européenne des droits de l'homme, affaire Szwabowicz c. Suède, avis du 30 juin 1959, requête n°434/58, Annuaire II, p. 535. Dans sa décision, la Chambre préliminaire II définit la notion d'équité comme étant notamment «[...] étroitement liée au concept de "l'égalité des armes" ou de l'équilibre entre les parties au cours de la procédure. Dans son sens généralement admis, l'équité touche à la capacité qu'à une partie à la procédure de présenter sa cause de manière adéquate, en vue d'influer en sa propre faveur sur l'issue de la procédure », voir Décision de la Chambre préliminaire II, par. 30. À cet égard, la Chambre préliminaire II se réfère à la jurisprudence Tadic du Tribunal pénal international pour l'ex-Yougoslavie (TPIY), selon laquelle : « [Inégalité des armes oblige l'organe judiciaire à s'assurer qu'aucune partie n'est placée dans une situation désavantageuse lorsqu'elle présente sa cause », voir Le Procureur c/ Dusko Tadic, Arrêt du 15 juillet 1999, affaire n° IT-94-1-A, par. 48. Voir également Le Procureur c. Clément Kayishema et Obed Ruzindana, Arrêt du 1er juin 2001, affaire n° ICTR-95-1-A, par. 69. (51) GUINCHARD S., BANDRAC M., DELICOSTOPOULOS C., DELICOSTOPOULOS L, DOUCHYOUDOT M., FERRAND F., LAGARDE X., MAGNIER V., RUIZ FABRI H., SINOPOLI L., SOREL J.-M., Droit processuel, droit commun et droit comparé du procès, Précis Dalloz, 3e édition, 2005, p. 770. Voir également le paragraphe premier de l'article 14 du Pacte international relatif aux droits civils et politiques, 16 décembre 1966,999 Recueil des traités des Nations Unies 14668. (52) Selon la jurisprudence bien établie de la CEDH, le principe du contradictoire « implique en principe la faculté pour les parties à un procès, pénal ou civil, de prendre connaissance de toute pièce ou observation présentée au juge, même par un magistrat indépendant, en vue d'influencer sa décision, et de la discuter », affaire Morel c. France, Arrêt du 6 juin 2000, requête n°34130/96, par. 27. Voir également affaire APEH Ùldozotteinek Szövetsege et autres c Hongrie, Arrêt du 5 octobre 2000, requête n°32367/96, par. 39 à 42. (67) Requête du Procureur, par. 13, et 20 à 22. (68) En vertu du droit à une procédure contradictoire, les parties à un procès ont la faculté de prendre connaissance de toute pièce ou observation présentée au juge. Voir CEDH, affaire Vermeulen c. Belgique, Arrêt du 20 février 1996, requête n°19075/91, par. 33.

——— Official Translation ——— 33. Part V of the Statute, headed “Investigation and prosecution” contains a number of articles which guarantee fair conduct of the proceedings. Although the most prominent provision in this respect is probably article 55 (“Rights of persons during

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an investigation”), it should Prosecutor with respect to Chamber in relation to a (“Functions and powers of conduct of the proceedings.

be noted that article 54 (“Duties and powers of the investigations”), article 56 (“Role of the Pre-Trial unique investigative opportunity”) and article 57 the Pre-Trial Chamber”) also contribute to the fair

34. Many international instruments guarantee the right to a fair trial. In this respect one could cite article 10 of the Universal Declaration of Human Rights, (38) article 14 (1) of the International Covenant on Civil and Political Rights,(39) article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms,(40) article 8 (1) of the American Convention on Human Rights, (41) or indeed article 7 (1) of the African Charter on Human and Peoples’ Rights. (42) 35. Considering the safeguards enshrined in the above-mentioned texts, the Chamber is of the opinion that these principles are also applicable to the preliminary phase of the proceedings before the Court. Accordingly, the Chamber observes that the American Convention on Human Rights, article 8 of which is intended to guarantee a fair trial, is not uninterested in the preliminary phases of criminal proceedings. For this reason, in the Baena Ricardo et al. judgment, the Inter-American Court on Human Rights ruled that, despite its English heading, Right to a fair trial, article 8 of the Convention is applicable to all stages of the proceedings. (43) On the basis of article 6 of the Convention, the European Court of Human Rights (ECHR) also issued several rulings to the effect that article 6 (1) was applicable as of the investigation stage.(44) 36. In the case at hand the Chamber views the phase of the proceedings during which the Decision was issued as unique: at issue is the investigation phase of a situation, prior to the case itself, for which there is no defendant as such, given that no individual has been issued with a warrant of arrest or a summons to appear. It is the Chamber’s view nonetheless that the principle of a fair trial applies not only to the case phase – on issuance of a warrant of arrest or a summons to appear – but also prior to the case phase.(45) 37. The principle of a fair trial has been the subject of much case-law at domestic,(46) European(47) and international level.(48) However the Chamber must in fact decide on what is meant by the term “fairness of the proceedings” in the context of the Statute at the investigation stage of a situation, the stage prior to a case. 38. The term “fairness” (équité), from the Latin “equus”, means equilibrium, or balance. As a legal concept, equity, or fairness, “is a direct emanation of the idea of justice”.(49) Equity of the proceedings entails equilibrium between the two parties, (50) which assumes both respect for the principle of equality(51) and the principle of adversarial proceedings(52). In the view of the Chamber, fairness of the proceedings includes respect for the procedural rights of the Prosecutor, the Defence, and the Victims as guaranteed by the relevant statutes (in systems which provide for victim participation in criminal proceedings). 39. The Chamber also holds that within the context of the Statute, respect for the fairness of the proceedings with regard to the Prosecutor, at the investigation phase of a situation, means that the Prosecutor must be able to exercise the powers and fulfil the duties listed in article 54. […]

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43. The Chamber is of the view that its role is to guarantee and preserve the rights of the Prosecutor, Defence and Victims throughout the entire pre-trial proceedings and in particular to preserve the impartiality and integrity of the Prosecutor’s investigation. More specifically, the role of the Chamber, at the investigation stage of a situation, is to ensure that the Prosecutor is able to exercise the powers and fulfil the functions stipulated in article 54 of the Statute. […] 53. The Prosecutor contends, secondly, that the system of victim participation established by the Decision prejudices the rights of the Defence insofar as it seriously affects the balance between Victims and accused persons and is therefore detrimental to the fairness of the proceedings. (67) 54. The Chamber observes that the Decision was issued at a stage of the proceedings where no accused are involved, that is to say, at the situation stage. The Chamber holds that the Prosecutor adduces no actual evidence showing that the Decision places the equality of arms at risk. Indeed, subject to victim and witness protective measures, future accused will be afforded access to all evidence for the purposes ofpreparing their defence.(68) Furthermore, the Chamber has appointed an ad hoc Counsel for the Defence whose responsibility it is to promote the rights of the Defence when any issue having direct repercussions on the fairness of the proceedings arises. ————————— (38) Pursuant to article 10 of the Universal Declaration of Human Rights, “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”, United Nations General Assembly resolution 217 A (III) of 10 December 1948, third session. (39) Article 14, paragraph 1 of the International Covenant on Civil and Political Rights, 16 December 1966, 999 United Nations Treaties Series 14668. (40) Article 6, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, as revised by Protocol No. 11, 213 United Nations Treaties Series 2889. (41) Article 8, paragraph 1 of the American Convention on Human Rights, “Pact of San Jose, Costa Rica”, 22 November 1969, 1144 United Nations Treaties Series 17955. (42) Article 7, paragraph 1 of the African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 United Nations Treaties Series 26363. (43) The Inter-American Court of Human Rights decided that although Article 8 of the American Convention is called “Right to a Fair Trial” (meaning literally, in French, “Droit à un procès équitable”, but officially translated into French as “Garanties judiciaires”), its application is not limited to judicial remedies in a strict sense, but extends to all the requirements that must be observed at the various stages of the proceedings, see InterAmerican Court of Human Rights, case of Baena-Ricardo et al. v. Panamá, Judgment of February 2, 2001, para. 124. (44) See, e.g., ECHR, case of Wloch v. Poland, Judgment of 19 October 2000, Application no. 27785/95, para. 144; case Deweer v. Belgium, Judgment of 27 February 1980, Application no. 6903/75, para. 41. (45) For a definition of the terms “situation” and “case” under the Statute, see the Decision, para. 65. (46) See the examples of case-law given in GUINCHARD S., BANDRAC M., DELICOSTOPOULOS C., DELICOSTOPOULOS I., DOUCHY-OUDOT M., FERRAND F., LAGARDE X., MAGNIER V., RUIZ FABRI H., SINOPOLI L., SOREL J.-M., Droit processuel, droit commun et droit comparé du procès, Précis Dalloz, 3rd edition, 2005, pp. 770-843.

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(47)

The ECHR judged that the right to a “fair trial” entails, inter alia, the right to adversarial proceedings and the principle of equality of arms. See in particular the case of Lobo Machado v. Portugal, Judgment of 20 February 1996, Application no. 15764/89, p. 206, para. 31; the case of Vermeulen v. Belgium, Judgment of 20 February 1996, Application no. 19075/91, p. 234, para. 33. (48) Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 60, para. 71; North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark, Federal Republic of Germany v. The Netherlands), Judgment, I.C.J. Reports 1969, p. 47, par. 85 and pp. 49-50, para. 91; Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment, I.C.J. Reports 1986, p. 6, para. 50. (49) Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 60, para. 71. (50) All parties to proceedings must have the opportunity to present their case to the court in circumstances which do not place them at a substantial disadvantage vis-à-vis the opposing party: see European Commission of Human Rights, case of Szwabowicz v. Sweden, Opinion of 30 June 1959, Application no. 434/58, Yearbook II, p. 535. In its Decision, Pre-trial Chamber II defines the concept of fairness as being, inter alia, “[…] closely linked to the concept of ‘equality of arms’, or of balance, between the parties during the proceedings. As commonly understood, it concerns the ability of a party to a proceeding to adequately make its case, with a view to influencing the outcome of the proceedings in its favour”, see Decision of Pre-Trial Chamber II, para. 30. In this respect, Pre-Trial Chamber II relies upon the Tadic decision rendered by the International Criminal Tribunal for the former Yugoslavia, in which it was said that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case, see The Prosecutor v. Dusko Tadic, Judgment of 15 July 1999, case no. IT-94-1-A, para. 48. See also The Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment of 1 June 2001, case no. ICTR-95-1-A, para. 69. (51) GUINCHARD S., BANDRAC M., DELICOSTOPOULOS C., DELICOSTOPOULOS I., DOUCHY-OUDOT M., FERRAND F., LAGARDE X., MAGNIER V., RUIZ FABRI H., SINOPOLI L., SOREL J.-M., Droit processuel, droit commun et droit comparé du procès, Précis Dalloz, 3rd edition, 2005, p. 770. See also article 14 (1) of the International Covenant on Civil and Political Rights, 16 December 1966, 999 United Nations Treaties Series 14668. (52) According to the well-established case-law of the ECHR, the right to adversarial proceedings “means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court's decision”, case of Morel v. France, judgment of 6 June 2000, Application no. 34130/96, para. 27. See also case of Apeh Üldözötteinek Szövetsége and others v. Hungary, judgment of 5 October 2000, application no. 32367/96, para. 39 to 42. (67) Prosecutor’s Application, paras. 13 and 20 to 22. (68) In keeping with the right to adversarial proceedings, the parties to a trial are afforded the opportunity to have knowledge of all evidence adduced or observations filed. See ECHR, Vermeulen v. Belgium, Judgment of 20 February 1996, application no. 19075/91, para. 33.

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Article 54(1) (b): “Within the jurisdiction of the Court” – Prima facie assessment of the jurisdiction of the Court and admissibility of a situation by the Pre-Trial Chamber

S54-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision to Hold Consultation Under Rule 114 (PT), 21 April 2005:

NOTING the copy of the letter of referral from the President of the Democratic Republic of Congo (the "DRC"), dated 3 March 2004, appended to the Prosecutor's

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Request as Annex I, whereby the situation in the DRC since 1 July 2002 is referred to the Prosecutor pursuant to articles 13 (a) and 14 (1) of the Statute; NOTING that the Prosecutor has determined, pursuant to article 53 (1), that there is a reasonable basis to initiate an investigation into the situation in the DRC (1); NOTING that the Prosecutor affirms that, in accordance with article 18 (1) of the Statute, on the 22 and 23 June 2004, he sent letters of notification to the States Parties to the Rome Statute as well as to other States which within the terms of such provision could exercise jurisdiction over the crimes concerned(2); NOTING that the Prosecutor affirms that no information pursuant to article 18 (2) has been received(3); NOTING that the Prosecutor affirms that the "REDACTED incident" took place in the territory of the DRC after 1 July 2002(4); […] CONSIDERING that the REDACTED which allegedly occurred in the "REDACTED incident", as described by the Prosecutor, appear prima facie to fall under articles 8 (2) (b) REDACTED and 8 (2) (e) REDACTED of the Statute; CONSIDERING that Pre-Trial Chamber I has prima facie jurisdiction to entertain the Prosecutor's Request insofar as it is made in relation to the Prosecutor's investigation of the situation in the DRC after 1 July 2002; ————————— (1) Prosecutor's Request, paragraph 4. See also the Prosecutor's letter to the President of the Court dated 17 June 2004 appended to the Presidency's Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I (ICC-01/04-1). (2) Prosecutor's Request, paragraph 4. (3) Prosecutor's Request, paragraph 4. (4) Prosecutor's Request, paragraph 1.

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Article 54(3) (e): Evidence obtained on the condition of confidentiality – Ex officio redaction by the Prosecutor – Order to seek the consent of the provider to disclose in unredacted form

S54-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Information in respect of the Second Decision on Rule 81 Motions (PT), 28 September 2006:11

CONSIDERING that at the status conference on 26 September 2006, the Prosecution stated that, in addition to the documents attached to the Prosecution Request, it has, pursuant to article 67(2) of the Statute, disclosed other documents 11

Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision suite aux informations fournies par le Procureur le 25 octobre 2006 (Decision Further to the Information Provided by the Prosecutor on 25 October 2006) (PT), 30 October 2006.

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with certain redactions required by the provider of the documents under article 54(3)(e) of the Statute and without prior authorization of the Chamber; CONSIDERING that at the status conference on 26 September 2006, the Prosecution stated that it had not yet obtained the consent of the provider to disclose to the Defence some article 54(3)(e) documents which the Prosecution had identified as falling within article 67(2) of the Statute or rule 77 of the Rules; FOR THESE REASONS AUTHORISE the Prosecution to disclose immediately to the Defence the documents […] with the redactions proposed by the Prosecution in those annexes; ORDER the Prosecution to do its utmost prior to the confirmation hearing to: (i) obtain the consent of the providers to disclose to the Defence in an unredacted form those article 54(3)(e) documents already identified by the Prosecution as falling within the scope of article 67(2) of the Statute or rule 77 of the Rules; (ii) obtain the agreement of the providers on the transmission to the Defence of the unredacted versions of those documents already disclosed to the Defence in a redacted form at the request of the providers and without the prior authorization of the Chamber; ORDER the Prosecution to file no later than 15 days before the confirmation hearing: (i) a detailed report indicating all article 54(3)(e) documents disclosed in an unredacted and/or redacted form to the Defence under article 67(2) of the Statute or rule 77 of the Rules; (ii) a detailed report indicating how many article 54(3)(e) documents have not been disclosed to the Defence because the Prosecution has been unable to secure the consent of the providers despite having been identified by the Prosecution as falling under article 67(2) of the Statute or rule 77 of the Rules; ORDER the Prosecution to file no later than 15 days before the confirmation hearing in the same format in which they have been disclosed to the Defence all article 54(3)(e) documents which meet the following two conditions: a. the documents have been disclosed to the Defence pursuant to article 67(2) of the Statute or rule 77 of the Rules; and b. such disclosure has taken place in a redacted form at the request of the providers and without the prior authorization of the Chamber;

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99

Article 54(3) (e): Evidence obtained on the condition of confidentiality – Witness’ denial to answer questions on grounds of confidentiality pursuant to Rule 82(3) – Consequence on the admissibility of evidence and/or the assessment of its probative value

S54-PT-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Motion by the Defence to Exclude Hearsay Testimony of the Prosecution Witness (PT), 9 November 2006, pp. 2, 5-10:

NOTING the ex parte hearing of 25th August 2006 during which the Prosecution intimated its intention to call a witness (“the Witness”) to testify at the confirmation hearing;(1) NOTING further that at the aforesaid ex parte hearing the Prosecution stated that the statement of the Witness was obtained on condition of confidentiality pursuant to article 54(3) of the Rome Statute (“the Statute”) and updated the Chamber on the status of its negotiations with the United Nations (“the UN”) on the extent to which these restrictions could be lifted; (2) […] CONSIDERING that rule 82(3) of the Rules states that if the Prosecutor calls a witness to introduce into evidence any material or information which has been protected under article 54, paragraph 3(e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on “grounds of confidentiality”; CONSIDERING that the statement of the Witness and a number of other documents given by the same provider were originally covered by article 54(3)(e) of the Statute, that is to say given to the Prosecution on the condition of confidentiality and solely for the purpose of generating new evidence; that subsequently the provider of the information has consented to disclose with certain redactions of the statement of the Witness and some other documents and has authorized the Witness to testify before the Court; and that the Chamber has authorized (i) the redactions requested by the Prosecution at the behest of the provider and (ii) the presence of a representative of the UN Secretary General during the testimony of the Witness to assist her; CONSIDERING, therefore, that the conditions of rule 82(3) of the Rule are met, that is to say that the Prosecution has called a witness to introduce into evidence information which has been protected under article 54, paragraph 3 (e); and that, for that reason, the Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness objects to answer on grounds of confidentiality; CONSIDERING further that the portion of the UN letter requesting that certain restrictions be imposed on the testimony of REDACTED as reiterated by the Prosecution in its submission in “Further Information on the UN position in respect of the Examination of the Witness REDACTED” reads as follows:

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“the Prosecutor, when examining REDACTED in her capacity as a witness before the Pre-Trial Chamber, shall not ask any questions the answering of which would require that she divulge: - the identity of persons, groups or organizations that provided information either to her or to the United Nations on the condition that their identities remain confidential and not disclosed; - information provided either to her or the United Nations in confidence by a third party the disclosure of which would place the personal safety of that third party or of his or her family members at risk; - information the disclosure of which would place the personal safety of any current or former member of MONUC or any member of the personnel of the United Nations at risk.”; CONSIDERING that, while the UN letter expressly prevents the Prosecution from posing questions to the Witness that fall within one of the three above-mentioned grounds, the Defence and the Chamber are not in principle precluded from posing any question to the Witness; CONSIDERING, however, that, in the view of the Chamber, the three grounds contained in the UN letter fall within the scope of the notion of “grounds of confidentiality” in rule 82(3) of the Rules; and that therefore if the Witness objects to answer a question on any of the said grounds, “the Chamber may not compel that witness to answer”; CONSIDERING, further, that, in application of article 69(4) of the Statute(16), “the Chamber may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness”; and that, according to rule 63(1) and (3), the Chamber shall have the authority to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69 of the Statute; CONSIDERING hence that if in application of rule 82(3) of the Rules, the Witness does not answer some of the questions posed to her, and in particular those concerning the sources of her information about events that she did not directly witness, the Chamber shall subsequently either (i) decide to declare inadmissible in whole or in part the testimony of the Witness or (ii) assess the weight given to her evidence in light of such a factor; (17) CONSIDERING that the Defence Request for an order to prohibit the Prosecution from eliciting any evidence that the Witness herself has not witnessed is only based on a Defence assumption, that is to say the Defence belief that in application of rule 82(3) of the Rules the Witness will not answer any question concerning her sources of information about those events that she did not directly witness; […] REJECTS the request of the Defence for an order of the Chamber prior to the testimony of the Witness to prohibit the Prosecution from eliciting any evidence that the Witness herself has not witnessed;

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DECIDE that, while the UN letter expressly prevents the Prosecution from posing questions to the Witness that fall within one of the three grounds included in the UN letter, the Defence and the Chamber are not in principle precluded from posing any such questions to the Witness; DECIDE that all three grounds invoked in the UN letter fall within the scope of the expression “grounds of confidentiality” under rule 82(3) of the Rules; and that therefore if they are invoked by the Witness or by representative of the Secretary General in order not to answer any of the questions posed by the Defence and the Chamber pursuant to the “Décision sur la requête du Procureur du 9 octobre 2006”(18), the Witness shall be entitled not to answer those questions; INFORM that if as a result of invoking rule 82(3) of the Rules, the Witness does not answer some of the questions posed by the Chamber or by the Defence, the Chamber shall subsequently either (i) decide to declare inadmissible in whole or in part the testimony of the Witness or (ii) assess the weight given to her evidence in light of such a factor. ————————— (1) ICC-01-04-01-06-T-29-CONF-EN at p 12 lines 9-14. (2) ICC-01-04-01-06-T-17-CONF-EN at p 15 line 14 – pg. 18 line 8. (16) This is reinforced by 64(9) and rule 63(2) of the Rules. (17) This approach is consistent with International human rights and criminal law jurisprudence. See Prosecutor v Mladen Naletilic & Vinko Martinovic, Case No. IT-98-34-T, Judgment of the Trial Chamber of 31 March 2003 para. 11, “The Chamber has accepted hearsay evidence as being generally admissible under the Rules. It has however taken into account that the weight or probative value to be afforded to hearsay evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined”; see also Prosecutor v. Aleksovski, Case No.:IT-95-14/1-AR, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para 15, “… the probative value of hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence”; See also Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Decision on Defence Motion on Hearsay, 5 August 1996 and Tadic Trial Judgement, para. 555; Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T, Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, 26 January 1998; Prosecutor v Akayesu, Case No. ICTR-96-4-T-2, 2 September 1998; The Prosecutor v. Alfred Musema, ICTR Case No. 96-13-T, Judgement and Sentence, 27 January 2000 para. 56. (18) ICC-01/04-01/06-602-Conf.

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Article 54(3) (f): Necessary measures to ensure confidentiality of information – Disclosure of confidential information to the press – Court’s internal auditor – Disclosure of information to Court’s internal auditor - Denied on ground of risk of further disclosure – Warning to the staff of the Court

S54-PT-5

o Situation in Uganda, No. ICC-02/04, Under Seal – Ex Parte - Decision on the “Prosecutor’s Application to

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Disclose to Internal Auditor Certain Information Relating to the Amended Application for Warrants” Dated 13 June 2005 (PT), 17 June 2005 (made public on 23 March 2006): NOTING that the Application dated the 13th day of June 2005 is made as a result of an article published in the French newspaper Le Monde on the 11th day of June 2005, which reported that the Prosecutor has sought warrants of arrest against members of the Lord's Resistance Army (the "Le Monde incident"), as well as other similar press reports, including reports in the Ugandan press; NOTING that in its Application dated the 13th day of June 2005 the Prosecutor requests that Pre-Trial Chamber II approve the disclosure to the Court's Internal Auditor of certain information relating to the Prosecutor's application, "for the limited purpose of enabling the Internal Auditor to investigate independently who, if anyone, on the staff of any of the organs of the Court disclosed to the French newspaper Le Monde that the OTP has requested warrants of arrest naming members of the Lord's Resistance Army"; NOTING the references in the Application dated the 13th day of June 2005 to the "extremely damaging case-related consequences" of the dissemination of information about the Prosecutor's application, including the "increased danger" for "victims, witnesses" and persons "investigated by the OTP" or "believed to have provided information to OTP", and the concern that persons who have cooperated in the investigation will "be at risk of retaliation ... because the implementation of increased security measures has not yet been completed"; CONSIDERING that any disclosure, albeit limited in its scope, would result in the very existence of the Prosecutor's application, as well as possibly details of it, being made available and thereby becoming known to a wider circle of persons; CONSIDERING, in particular, that the Internal Auditor would need to establish contacts with an indeterminate and potentially significant number of persons for him or her properly to carry out any investigation; CONSIDERING that there is potential that any internal audit at this stage may entail an increased risk that further incidents of the same kind as the Le Monde incident might occur and that the above mentioned dangers for victims and witnesses will further escalate; NOTING that the Prosecutor has taken steps to respond to the Le Monde incident through his message to the staff of the Court dated the 13th day of June, reminding staff members of their confidentiality obligations and other duties vis-à-vis the Court and highlighting the security risks for victims and witnesses which might be entailed by unauthorized disclosure of information to external sources; CONSIDERING that the staff of the Court will therefore have been put on alert as to their obligation to prevent other incidents such as the Le Monde incident from occurring;

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Article 55 – Rights of Persons during an Investigation 1. In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute. 2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b) To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 56 – Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity 1.

(a) Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. (b) In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence. (c) Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation

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referred to in subparagraph (a), in order that he or she may be heard on the matter. 2. The measures referred to in paragraph 1 (b) may include: (a) Making recommendations or orders regarding procedures to be followed; (b) Directing that a record be made of the proceedings; (c) Appointing an expert to assist; (d) Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence; (e) Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons; (f) Taking such other action as may be necessary to collect or preserve evidence. 3. (a) Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the PreTrial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative. (b) A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis. 4. The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber.

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Article 56(1) (a): “Unique investigative opportunity” – Situations where such opportunity is admitted – Documents placed at Prosecutor’s disposal for a limited period of time

S56-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision to Hold Consultation Under Rule 114 (PT), 21 April 2005:

NOTING that the Prosecutor affirms that the items referred to in paragraph 7 of the Prosecutor's Request were handed over REDACTED to the Prosecutor on the condition that they would be returned to it within six months or at the latest once the forensic processing was completed(5); […]

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CONSIDERING that the items referred to in paragraph 7 of the Prosecutor's Request may not subsequently be available for the purposes of a trial; CONSIDERING that there is a unique investigative opportunity within the terms of article 56 (1) (a) of the Statute; ————————— (5) Prosecutor's Request, paragraph 11.

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Article 56(1) (b): “Protect the rights of the Defence” – Appointment of an ad hoc Counsel for the Defence upon Prosecutor’s motion under Article 56 – Right of the newly appointed ad hoc Counsel to submit questions and observations

S56-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Prosecutor’s Request for Measures Under Article 56 (PT), 26 April 2005:12

NOTING the discussion, including that related to the appropriateness of the appointment of counsel for the defence, between the Prosecutor and Pre-Trial Chamber I at the consultation held on 21 April 2005 (the "Consultation"); […] CONSIDERING the need to protect the general interests of the defence through the appointment of ad hoc counsel for the defence, given the likelihood that the items submitted for the forensic examinations referred to in the "Prosecutor's Request" will not be available at subsequent stages of the proceedings; […] DECIDES that the following measures shall be taken: […] (iii) The NFI shall respond in writing, as soon as practicable, to any additional questions and observations submitted by the Prosecutor and/or the ad hoc counsel for the defence ; […] Therefore, ORDERS the Registrar: […] (b) To appoint an ad hoc counsel to represent the general interests of the defence for the purpose of the forensic examinations as soon as the Registrar is in receipt of the documents referred to under (ii);

12

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision Establishing a Deadline for Final Submissions on the NFI’s Additional Report (PT), 8 February 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision on Prosecutor’s Request for Measures under Article 56 (PT), 26 April 2006.

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(c) To notify the Prosecutor and the ad hoc counsel for the defence, as soon as the latter is appointed, that they may submit any written questions and observations concerning the documents referred to under (ii) within a period of fifteen days; (d) To make available to the ad hoc counsel for the defence, the "Prosecutor's Request", the "Decision to Hold a Consultation under Rule 114", the transcripts of the Consultation, and any other documents related to the forensic examinations.

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Article 56(2) (a): Measures ordered under Article 56 – Authorizing the Prosecutor to appoint an expert

S56-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Prosecutor’s Request for Measures Under Article 56 (PT), 26 April 2005:13

CONSIDERING that the Prosecutor has given assurances that the Netherlands Forensic Institute (the "NFI"), insofar as it is an independent expert body within the Dutch Ministry of Justice with no connection to the Prosecutor, is in a position to perform an objective, independent and impartial examination in accordance with well-established scientific criteria; CONSIDERING that the Prosecutor has assured Pre-Trial Chamber I that the NFI is in a position to make an accurate record of the forensic examinations and that it has the authority to give full faith and credit to such examinations; CONSIDERING that the Prosecutor has assured Pre-Trial Chamber I that his office will not be involved in the forensic examinations performed by the NFI; 14 […] DECIDES to authorise the Prosecutor to request the NFI to perform the forensic examinations as detailed in Annex 4 to the "Prosecutor's Request"; DECIDES that the following measures shall be taken: […] (v) The items subject to forensic examination shall be retained by the NFI in its possession until a copy of any additional report produced has been provided to the Registrar as required under (iv);

13

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision as to the Content of the NFI Report (PT), 28 November 2005. 14 See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision on the Prosecutor’s Communication to the Pre-Trial Chamber (PT), 1st June 2005; Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision to Hold Consultation (PT), 5 October 2005; Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision Following the Consultation Held on 11 October 2005 and the Prosecution’s Submission on Jurisdictions and Admissibility Filed on 31 st October 2005 (PT), 9 November 2005; Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision on Prosecutor’s Request for Measures under Article 56 (PT), 26 April 2006.

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o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Prosecutor’s Request for Measures Under Article 56 (PT), 26 April 2005:

DECIDES that the following measures shall be taken: (i) A comprehensive record of all the forensic examinations performed and a report on the conclusions of those examinations shall be produced by the NFI; the latter shall be responsible for maintaining the confidentiality of the procedure as a whole; (ii) A copy of the record and the report referred to under (i) shall be provided by the NFI to the Registrar; (iii) The NFI shall respond in writing, as soon as practicable, to any additional questions and observations submitted by the Prosecutor and/or the ad hoc counsel for the defence ; (iv) A copy of any additional report responding to the questions and observations referred to under (iii) shall be provided by the NFI to the Registrar; (v) The items subject to forensic examination shall be retained by the NFI in its possession until a copy of any additional report produced has been provided to the Registrar as required under (iv); Therefore, ORDERS the Registrar: (a) To incorporate any document received from the NFI in the record of the situation of the Democratic Republic of Congo on a confidential basis, and to notify Pre-Trial Chamber I accordingly;

Article 57 – Functions and Powers of the Pre-Trial Chamber 1. Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article. 2.(a) Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges. (b) In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber. 3. In addition to its other functions under this Statute, the Pre-Trial Chamber may: (a) At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation;

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(b)

(c)

(d)

(e)

Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence; Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information; Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part 9 if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part 9; Where a warrant of arrest or a summons has been issued under article 58, and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.

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Article 57(3) (e): Protective measures for the purpose of forfeiture – Guaranteeing interests of victims is a key feature of the Court - Cooperation requests to all States Parties to identify, trace and freeze or seize property and assets should be issued together with requests for arrest and surrender

S57-PT-1

15

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras. 132-139:15

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Demande adressée aux États Parties au Statut de Rome en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo (Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo) (PT), 31 March 2006.

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132. The Chamber notes that, although a first reading of article 57(3)(e) of the Statute might lead to the conclusion that cooperation requests for the taking of protective measures under such a provision can be aimed only at guaranteeing the enforcement of a future penalty of forfeiture under article 77(2) of the Statute, the literal interpretation if the scope if such provision is not clear, because of the reference to the “ultimate benefit of the victims”. 133. The Chamber also observes that rule 99(1) of the Rules, in the subsection dealing with reparations to victims, states that: The Pre-Trial Chamber, pursuant to article 57(3)(e), […] may on its own motion […] determine whether measures should be requested.(137) 134. The Chamber considers that, in light of rule 99 of the Rules, the contextual interpretation of article 57(3)(e) of the Statute makes clear that the Chamber may, pursuant to article 57(3)(e) of the Statute, seek the cooperation of State Parties to take protective measures for the purpose of securing the enforcement of reparation award. 135. The teleological interpretation of article 57(3)(e) of the Statute reinforces the conclusion arising from a contextual interpretation. Indeed, since forfeiture is a residual penalty pursuant to article 77(2)(a) of the Statute, it will be contrary to the “ultimate benefit of victims” to limit to guaranteeing the future enforcement of such a residual penalty the possibility of seeking the cooperation of the State Parties to take protective measures under article 57(3)(e) of the Statute. As the power conferred on the Court to grant reparations to victims is one of the distinctive features of the Court, intended to alleviate, as much as possible, the negative consequences of their victimisation, it will be in the “ultimate interest of victims” if, pursuant to article 57(3)(e), the cooperation of State Parties can be sought in order to take protective measures for the purpose of securing the enforcement of a future reparation award. (138) 136. In the Chamber’s view, the reparation scheme provided for in the Statute is not only one of the Statute’s unique features. It is also a key feature. (139) In the Chamber’s opinion, the success of the Court is, to some extent, linked to the success of its reparation system.(140) In this context, the Chamber considers that early tracing, identification and freezing or seizure of the property and assets of the person against whom a case is launched through the issuance of a warrant of arrest or a summons to appear is a necessary tool to ensure that, if that person is finally convicted, individual or collective reparation awards ordered in favor of victims will be enforced. Should this not happen, the Chamber finds that by the time an accused person is convicted and a reparation award ordered, there will be no property or assets available to enforce the award. 137. In the Chamber’s view, existing technology makes it possible for a person to place most of his assets and moveable property beyond the Court’s reach in only a few days. Therefore, if assets and property are not seized or frozen at the time of the execution of a cooperation request for arrest and surrender, or very soon thereafter, it is likely that the subsequent efforts of the Pre-Trial Chamber, the Prosecution or the victims participating in the case will be fruitless. 138. In the Chamber’s view, this will also occur in the case of Mr Thomas Lubanga Dyilo against whom the Chamber has already found the existence of reasonable

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grounds to believe that he is criminally responsible for the alleged UPC/FPLC’s policy/practice of enlisting into the FPLC, conscripting into the FPLC and using to participate actively in hostilities children under the age of fifteen between July 2002 and December 2003 (fumus boni iuris). In the Chamber’s view, although he has been in detention in the Centre Pénitentiaire et de Rééducation de Kinshasa since 19 March 2005,(141) it appears that Mr Thomas Lubanga Dyilo is in a position to have unmonitored satellite phone communications with persons outside the Centre and that he can receive external phone calls (142) Furthermore, as shown by his concern about the Court’s investigation of the DRC situation and the network of national and international contacts he has built up since becoming President of the UPC, the Court finds that Mr Thomas Lubanga Dyilo has the incentive and means to place his property and assets beyond the Court’s reach soon as he becomes aware of the issuance of a warrant of arrest for him (periculum in mora). 139. In the Chamber’s view, cooperation requests pursuant to articles 57(3)(e) and 93(1)(k) of the Statute for the taking of protective measures to secure the enforcement of future reparation awards should be transmitted simultaneously with cooperation requests for arrest and surrender if the warrants of arrest are not issued under seal. ————————— (137) Rule 99(1) of the Rules. (138) The Chamber notes that orders for the identification and freezing of the assets of a person against whom a warrant of arrest has been issued is not a new feature of the Court, but it is a measure that has already been issued in the context of the ICTY, although given the lack of a reparation scheme as the one embraced by the Rome Statute, the ultimate purpose of such measure has been to assure that the accused not use such assets to evade arrest (see “Decision on Review of Indictment and Application for Consequential Orders”, issued by Judge David Hunt, in the case of Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojilkjovic, Cqse No. IT-02-54, 24 May 1999, para. 26). The Chamber notes that in this last decision, Judge Hunt ordered: “[…] that each of the States Members of the United Nations […] make inquiries to discover whether any of the accused have assets located in their territory, and [if so], adopt provisional measures to freeze those assets, without prejudice to the rights of third parties, until the accused are taken to custody.” (139) Donat-Cattin, D., “Article 75. Reparations to Victims” in Triffterer, O. (Ed.), “Commentary on the Rome Statute of the International Criminal Court”, (Nomos, BadenBaden, 1999), pp. 965-978, p. 966. (140) Reparations to victims of gross violations of human rights in the context of State responsibility has since long been a key component of human rights bodies. As the InterAmerican Court of Human Rights has put it in the case of Trujillo Oroza v. Bolivia [2002] IACHR 92, Judgment of 27 February 2002, para. 60: “As the Court has indicated, Article 63(1) of the American Convention codifies a rule of common law that is one of the fundamental principles of contemporary international law on State responsibility. Thus, when an unlawful act occurs that can be attributed to a State, the latter’s international responsibility is immediately engaged for the violation of an international norm, with the resulting obligation to make reparation and to ensure that the consequences of the violation case.” See also inter alia the judgments of the Inter-American Court of Human Rights in the IACHR, Case of Cantoral-Benavides v. Perú, “Judgment”, 3 December 2001, Series C No. 88, para. 40; IACHR, Case of Cesti-Hurtado v. Perú, “Judgment”, 31 May 2001, Series C No.

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77, para. 35; and IACHR, Case of Villagrán Morales, “Judgment”, 26 May 2001, Series C No. 77, para. 39. Concerning the European Court of Human Rights, see for instance ECHR, Case of Papamichalopoulos and Others v. Greece, Judgment, 31 October 1995, Application No. 14556/89, para. 36. The importance of the role of reparations to victims of gross violations of human rights is also stressed in the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, adopted by United Nations General Assembly Resolution 40/34, 29 November 1985, fortieth session, United Nations document A/RES/40/34. (141) Prosecution’s Application, para. 187; and Prosecution’s Submission, paras. 3, 13 and 14, and Annex 1 containing the two warrants of arrest issued by the DRC against Mr Thomas Lubanga Dyilo and the 16 decisions of prorogation of its provisional detention. (142) Prosecution’s Application, para. 198. See also Transcript of the Hearing of 2 February 2006, p. 16, lines 15-25 and p. 17, lines 1-11.

S57-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Demande adressée aux États Parties au Statut de Rome en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo (Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo) (PT), 31 March 2006:

VU les articles 57-3-e, 75, 87, 93-1-k, 96 et 97 du Statut et la règle 99-1 du Règlement de procédure et de preuve, ATTENDU que l'identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo est nécessaire dans l'intérêt supérieur des victimes pour garantir que, dans l'hypothèse où M. Thomas Lubanga Dyilo serait déclaré coupable des crimes qui lui sont reprochés, lesdites victimes puissent, en application de l'article 75 du Statut, obtenir réparation des préjudices qui peuvent leur avoir été causés, ATTENDU que le paragraphe 15 de la résolution 1596 du Conseil de sécurité de l'Organisation des Nations Unies (3) indique que « [...] tous les États devront [...] geler immédiatement les fonds, autres avoirs financiers et ressources économiques se trouvant sur leur territoire à compter de l'adoption de la présente résolution, qui sont en la possession ou sous le contrôle direct ou indirect des personnes que le Comité [des sanctions] aura identifiées conformément à l'article 13 ci-dessus, ou qui sont détenus par des entités ou contrôlés directement ou indirectement par toute personne agissant pour le compte ou sur les ordres de celles-ci [...]», ATTENDU que dans la « Liste des personnes et entités auxquelles s'appliquent les mesures visées aux paragraphes 13 et 15 de la résolution 1596 (2005) », le Comité des sanctions identifie M. Thomas Lubanga Dyilo comme une des personnes visées par ladite résolution (4), PAR CES MOTIFS, DEMANDE aux États parties au Statut (« les États requis ») de prendre, conformément aux procédures prévues par leur législation nationale, toutes les

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mesures nécessaires afin d'identifier, localiser, geler et saisir les biens et avoirs de M. Thomas Lubanga Dyilo qui se trouvent sur leur territoire, y compris ses biens meubles ou immeubles, ses comptes bancaires ou ses parts sociales, sous réserve des droits des tiers de bonne foi, DEMANDE aux États requis, conformément à l'article 96-3 du Statut, d'informer le cas échéant la Cour de toute exigence particulière prévue par leur législation nationale, DEMANDE aux États requis de communiquer le cas échéant à la Chambre les nom et adresse de tout administrateur provisoire éventuellement désigné conformément à leur loi nationale pour gérer, pendant le déroulement de la procédure devant la Cour, les biens et avoirs de M. Thomas Lubanga Dyilo qui auraient été gelés ou saisis, DEMANDE aux États requis d'informer la Cour, conformément à l'article 97 du Statut, de toute difficulté qui pourrait gêner ou empêcher l'exécution de la présente demande, ORDONNE au Greffier de la Cour de transmettre la présente demande aux Etats requis dans la langue choisie par ceux-ci en application de l'article 87 du Statut lors de leur ratification du Statut, ORDONNE au Greffier de la Cour de joindre à la présente demande le mandat d'arrêt à l'encontre de M. Thomas Lubanga Dyilo ainsi que la Décision prise par la Chambre le 10 février 2006. ————————— (3) Document ONU S/RES/1596 (2005). (4) Comité des sanctions du Conseil de sécurité établi par la résolution 1533 (2004) concernant la République démocratique du Congo, Liste des personnes et entités auxquelles s'appliquent les mesures visées aux paragraphes 13 et 15 de la résolution 1596 (2005). Cette liste peut être consultée sur le site Internet de l'Organisation des Nations Unies à l'adresse suivante: http://www.un.org/french/docs/sc/committees/DRCTemplateFr.htm

——— Official Translation ——— PURSUANT TO articles 57 (3) (e), 75, 87, 93 (1) (k), 96 and 97 of the Statute and rule 99 (1) of the Rules of Procedure and Evidence; CONSIDERING that the identification, tracing, freezing and seizure of the property and assets of Mr Thomas Lubanga Dyilo is necessary in the best interest of the victims in order to guarantee that, should Mr Thomas Lubanga Dyilo be found guilty of the crimes of which he is accused, the said victims, by virtue of article 75 of the Statute, will obtain reparations for the harm they may have suffered; CONSIDERING that paragraph 15 of United Nations Security Council resolution 1596,(3) states that “ […] all States shall, […] immediately freeze the funds, other financial assets and economic resources which are on their territories from the date of adoption of this resolution, which are owned or controlled, directly or indirectly, by persons designated by the [Sanctions] Committee pursuant to paragraph 13 above, or that are held by entities owned or controlled, directly or indirectly, by any persons acting on their behalf or at their direction […]”; CONSIDERING that in the “List of individuals and entities subject to the measures imposed by paragraphs 13 and 15 of Security Council resolution 1596 (2005)”, the

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Sanctions Committee identifies Mr Thomas Lubanga Dyilo as one of the persons concerned by the said resolution; (4) FOR THESE REASONS REQUESTS the States Parties to the Statute (“the requested States”) to take all necessary measures, in accordance with the procedures provided in their national law, in order to identify, trace, freeze and seize the property and assets of Mr Thomas Lubanga Dyilo on their territory, including his movable and immovable property, bank accounts or shares, without prejudice to the rights of bona fide third parties; REQUESTS the requested States, in accordance with article 96 (3) of the Statute, to advise the Court as appropriate of any specific requirements of their national law; REQUESTS the requested States to inform the Chamber if appropriate of the name and address of any interim administrator appointed in accordance with their national law to administer, during proceedings before the Court, the property and assets of Mr Thomas Lubanga Dyilo which may have been frozen or seized; REQUESTS the requested States to inform the Court of any problem which may impede or prevent the execution of this request in accordance with article 97 of the Statute; ORDERS the Registrar of the Court to transmit this request to the requested States in accordance with the language of their choice upon ratification of the Statute pursuant to article 87 of the Statute; ORDERS the Registrar of the Court to attach to this request the warrant of arrest for Mr Thomas Lubanga Dyilo and the Decision of the Chamber of 10 February 2006. ————————— (3) UN document S/RES/1596 (2005) (4) Security Council Sanctions Committee established under resolution 1533 (2004) concerning the Democratic Republic of the Congo, List of individuals and entities subject to the measures imposed by paragraphs 13 and 15 of Security Council resolution 1596 (2005). This list may be consulted at the following address on the internet site of the United Nations: http://www.un.org/Docs/sc/committees/DRC/1533_list.htm

Article 58 – Issuance by the Pre-Trial Chamber of a Warrant of Arrest or a Summons to Appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or

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(iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes; (d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. 3. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes. 4. The warrant of arrest shall remain in effect until otherwise ordered by the Court. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. 6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime. The summons shall be served on the person.

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PRE-TRIAL CHAMBERS x

Article 58(1): Decision to issue a warrant of arrest – Chamber “satisfied” that the criteria are fulfilled (no reasoning)

S58-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Under Seal Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 8 July 2005 (Unsealed on 13 October 2005):

NOTING the Prosecutor's request that the Prosecutor's application and all the proceedings relating thereto be treated as under seal and be kept under seal; NOTING that the Prosecutor's application seeks warrants of arrest for Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, for some or all of the crimes listed under Counts 1 to 33 as set out in the Prosecutor's application; BEING SATISFIED that, based upon the application, the evidence and other information submitted by the Prosecutor, and without prejudice to subsequent determination, the case against Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen falls within the jurisdiction of the Court and appears to be admissible; BEING SATISFIED that, based upon the application, the evidence and other information submitted by the Prosecutor, there are reasonable grounds to believe that Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen committed crimes within the jurisdiction of the Court and that their arrests appear to be necessary under article 58, paragraph l(b), of the Statute of the Court (the "Statute"); HAVING DECIDED to grant the Prosecutor's application for the issuance of warrants of arrest for Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen (the "Warrants");

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Article 58(1) (a): Decision to issue a warrant of arrest – “Reasonable ground to believe” standard – Intimate conviction of the Pre-Trial Chamber – Chamber’s discretion on the legal characterisation of the crimes – Determination on jurisdiction and admissibility

S58-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February

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2006), paras.14-20: 14. First, in discussing whether the Chamber as an intimate conviction that the “reasonable grounds to believe” standard and the appearance standard required by article 58(1) of the Statute have been met, the Chamber, although under no obligation to do so, will often refer to the evidence and information provided in the Prosecution’s Application, the Prosecution’s Submission and the Prosecution’s Further Submission. However, the Chamber wishes to emphasise that the intimate conviction of the Chamber in relation to any given finding is not reached only on the basis of the specific evidence and information expressly discussed. 15. Second, in the Chamber’s view, when deciding on Application, the Chamber is bound, pursuant to article 58(1) of factual basis and the evidence and information provided by the Prosecution’s Application, the Prosecution’s Submission and Further Submission.

the Prosecution’s the Statute, by the Prosecution in the the Prosecution’s

16. However, the Chamber considers that it is not bound by the Prosecution’s legal characterisation of the conduct referred to in the Prosecution’s Application. Indeed, a literal interpretation of article 58(1) of the Statute would require that the Chamber issue a warrant of arrest if, in addition to the apparent need for the arrest of the relevant person, “there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court”. Hence, in the Chamber’s view, the reference to “a crime”, as opposed to any of the specific crimes referred to in the Prosecution’s Application, leads to the conclusion that a warrant of arrest must be issued even if the Chamber disagrees with the Prosecution’s legal characterisation of the relevant conduct. […]16

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Article 58(1) (a): Decision to issue a warrant of arrest – Applicable criteria – “Committed” encompasses all forms of liability provided for in the Statute

S58-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras.77-79:

77. In the Chamber’s view, the term “committed”, as used in article 58(1) of the Statute, cannot be construed as encompassing only what, within the meaning of article 25(3)(a) of the Statute, constitutes the commission stricto sensu of a crime by a person “as an individual, jointly with another or through another person, regardless 16

See S19-PT-1 for Paras. 17-20 of the Decision.

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of whether that other person is criminally responsible”. Were that the case, the Chamber could issue warrants of arrest or summons to appear only for individuals alleged to be principals to the crime as a result of having committed individually, jointly with another person or other persons or through another person or other persons, one or more crimes within the jurisdiction of the Court. In practice, that interpretation would render any of the other modes of liability provided for in the Statute inapplicable. 78. Accordingly, in the Chamber’s view, the term “committed” in article 58(1) of the Statute includes: (i) the commission stricto sensu of a crime by a person “as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible”; (ii) any other forms of accessory, as opposed to principal, liability provided for in article 25(3)(b) to (d) of the Statute; (iii) an attempt to commit any of the crimes provided for in articles 6 to 8 of the Statute;(73) (iv) direct and public incitement to commit genocide (the only preparatory act punishable under the Statute);(74) and (v) the responsibility of commanders and other superiors under article 28 of the Statute. 79. Accordingly, the Chamber considers that the Prosecution’s Application for the issuance of a warrant of arrest for Mr Thomas Lubanga Dyilo can be granted only if the three following questions are answered affirmatively: (i) Are there reasonable grounds to believe that at least one crime within the jurisdiction of the Court has been committed? (ii) Are there reasonable grounds to believe that Mr Thomas Lubanga Dyilo has incurred criminal liability for such crimes under any of the modes of liability provided for in the Statute? (iii) Does the arrest of Mr Thomas Lubanga Dyilo appear to be necessary under article 58(1) of the Statute? ————————— (73) Article 25(3)(f) of the Statute. (74) Article 25(3)(e) of the Statute.

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Article 58(1) (a): Decision to issue a warrant of arrest – Applicable criteria – “a crime within the jurisdiction of the Court”

S58-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the

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Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), para.80: 80. The Chamber observes that according to the Statute and the Elements of Crimes, the definition of every crime within the jurisdiction of the Court includes both contextual and specific elements. Hence, the Chamber will first analyse whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court are present, and only then will it turn its attention to the question of whether the specific elements of any such crime also have taken place.

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Article 58(1) (b): Decision to issue a warrant of arrest – Necessity of the arrest – Applicable criteria: ensure appearance at trial; prevent person from obstructing or endangering the investigation; prevent person from continuing with the commission of crime; risks of retaliation

S58-PT-5

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, paras. 31-33:17

31. NOTING the reasons advanced by the Prosecutor as to the necessity for arrest, namely, to ensure RASKA LUKWIYA’s appearance at trial; to ensure that he does not obstruct or endanger the investigation, either individually or on a collective basis; and to prevent him from continuing to commit crimes within the jurisdiction of the Court; 32. BEING SATISFIED that the issuance of a warrant of arrest appears necessary based on the facts and circumstances referred to in the Prosecutor’s application, namely that the LRA has been in existence for the past 18 years; and that the LRA’s commanders are allegedly inclined to launch retaliatory strikes, thus creating a risk for victims and witnesses who have spoken with or provided evidence to the Office of the Prosecutor; 33. NOTING the statements made by the Prosecutor at the hearings on the 16 th day of June 2005 and the 21st day of June 2005 to the effect that attacks by the LRA are 17

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, para. 33-35; Situation in Uganda, No. ICC01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, para. 31-33 Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, para. 43-45; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, para. 43-45.

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still occurring and that there is therefore a likelihood that failure to arrest RASKA LUKWIYA will result in the continuation of crimes of the kind described in the Prosecutor’s application;

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Article 58(1) (b): Decision to issue a warrant of arrest – Necessity of the arrest – Applicable criteria: likeliness of release by national authorities; incentive and means to attempt to evade; protection of witnesses

S58-PT-6

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras.97, 99-102:

97. Under article 58(1) of the Statute, the Chamber may issue a warrant of arrest for Mr Thomas Lubanga Dyilo only if it is satisfied that his “arrest […] appears necessary: (i) to ensure the person’s appearance at trial; (ii) to ensure that the person does not obstruct or endanger the investigation or the court proceedings, or (iii) where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.” […] 99. In the Chamber’s view, it appears that Mr Thomas Lubanga Dyilo may be released within the coming weeks. First, according to DRC law, in addition to the required monthly extension of his provisional detention, (116) after twelve consecutive months of provisional detention a military judge of the competent court must confirm that detention.(117) Second, the Chamber notes the recent criticism of some of the DRC proceedings by Human Rights Watch, including in particular the criticism of the DRC proceedings against Mr Thomas Lubanga Dyilo for his alleged involvement in the killing of nine peacekeepers in February 2005. (118) 100. In the Chamber’s opinion, if Mr Thomas Lubanga Dyilo is released he appears to have incentive and means to attempt to evade an appearance before the Court for trial. First, Mr Thomas Lubanga Dyilo appears to have expressed publicly concerns about the investigation of the DRC situation and the prospect of being prosecuted at the Court.(119) Second, Mr Thomas Lubanga Dyilo, as the only President of the UPC since its foundation in 2000, appears to have a variety of national and international contacts that could allow him to at least attempt to evade an appearance before the Court for trial. 101. The Chamber notes that, according to the Prosecution, the six victims-witnesses of the specific cases referred to in the Prosecution’s Application are currently settled REDACTED.(120) The Chamber considers that it appears that some witnesses in trials held before the Tribunal de Grande Instance in Bunia against mid or high

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ranking UPC members have been killed or threatened, (121) and that Mr Thomas Lubanga Dyilo, although currently under provisional detention, may be in a position to hold unmonitored external communications. (122) 102. Hence, the Chamber considers that, on the basis of the evidence and information provided by the Prosecution in the Prosecution’s Application, in the Prosecution’s Submission, in the Prosecution’s Further Submission and at the hearing of 2 February 2006, and without prejudice to subsequent determination under article 60 of the Statute and rule 119 of the Rules, the arrest of Mr Thomas Lubanga Dyilo appears at this stage necessary pursuant to article 58(1)(b) of the Statute both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation or the court proceedings. ————————— (116) Prosecution’s Submission, Annex 1. (117) Article 209 of the DRC Law Num. 023/2002 of 18 November 2002 on the Code of Military Justice. (118) See Human Rights Watch, Democratic Republic of Congo – Elections in sight: Don’t Rock the Boat?, December 2005, cited by the Prosecution at para. 11 of the Prosecution’s Submission, see in particular pp. 15 and 16. (119) Prosecution’s Application, para. 188. (120) Prosecution’s Further Submission, para. 4. (121) “Observations on the Prosecution of Victims and Human Rights Organizations in Eastern Democratic Republic of Congo”, filed by Human Rights Watch and Redress on 30 June 2005, pp. 10 and 15. (122) Transcript of the Hearing of 2 February 2006, p. 17, lines 5-11.

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Article 58(2) (d): Application for warrant of arrest – Contents – “Summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes” – Supporting Materials - Satisfaction of the Chamber under Article 58(1)

S58-PT-7

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras. 7-12:

7. On 20 January 2006, the Chamber filed its Decision concerning Supporting Materials, in which the Chamber invited the Prosecution to provide supporting materials relating to the Prosecution’s Application. The Chamber notes that in the Prosecution’s Further Submission the Prosecution made the following statements: In no case, however, are the respective addresses of such “invitations” required to act upon them. Accordingly, the Prosecution interprets the “invitation” by the Pre-Trial chamber by its literal meaning. (1)

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In addition, in support of the Prosecution’s terminological interpretation of the notion of “summary of evidence and any other information”, article 58 of the Rome Statute does not provide for submission of “supporting materials” or any other materials in addition to the summary. Whilst the notion of “supporting materials”, “supporting documentation”, or “supporting documents” is known as a concept in both the Rome Statute and the Rules of Procedure and Evidence, it is not used in the context of the procedures following [an application by the Prosecution for arrest warrant]. The silence of the law allows for the only conclusion that the legislator has deliberately chosen, at the stage of the arrest warrant application, to require the Pre-Trial Chambers to trust the Prosecution’s summary. (2) The analysis confirms the Prosecutor’s submission that it falls entirely within the discretion of the Prosecutor to decide what he believes necessary to be submitted to the Pre-Trial Chamber. Accordingly, the Prosecutor has a choice in what to present to the Pre-Trial Chamber.(3) 8. The Chamber notes that according to article 58(1) of the Statute the Chamber must decide whether to grant or reject the Prosecution’s Application for the issuance of a warrant of arrest on the basis of (i) “the Application” and (ii) “the evidence or other information submitted by the Prosecutor”. Hence, in the Chamber’s view, the materials which might be submitted by the Prosecution in support of a request for warrant of arrest are not confined to the Prosecution’s Application. The Chamber also notes that, according to article 58(2) of the Statute, the Prosecution’s Application itself shall contain, inter alia, “[a] summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes”. 9. The Chamber agrees with the Prosecution that the Chamber’s invitation to submit further materials did not impose any procedural obligation on the Prosecution and thus it falls within the discretion of the Prosecution to decide what to present to the Chamber in order to convince it (i) that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court and (ii) that the arrest of the person appears necessary. However, the Chamber would emphasise that unless it is intimately convinced that the two above-mentioned conditions have been met, it will decline to issue any warrant of arrest. 10. The Prosecution claims that at this stage the legislator has chosen to require the Chamber “to trust the Prosecution’s summary”. (4) In the chamber’s view, however, the legislator has chosen at this stage to require under article 58(1) the Chamber to review not only the Prosecution’s Application but also “the evidence or other information submitted by the Prosecutor” in order to satisfy itself that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court and that his arrest appears necessary. 11. In the Chamber’s view, the review which article 58(1) of the Statute requires that the Chamber undertake is consistent with the fact that, apart from other collateral consequences of being subject of a case before the Court, the fundamental right of the relevant person to his liberty is at stake. Accordingly, the Chamber emphasises that it will not take any decision limiting such a right on the basis of applications where key factual allegations are fully unsupported.

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12. As required by article 21(3) of the Statute, the Chamber considers this to be the only interpretation consistent with the “reasonable suspicion” standard provided for in article 5(1)(c) of the European Convention on Human Rights (5) and the interpretation of the Inter-American Court of Human Rights in respect of the fundamental right of any person to liberty under article 7 of the American Convention on Human Rights. (6) ————————— (1) Prosecution’s Further Submission, para. 13. (2) Ibid., para. 19. (3) Ibid., para. 23. (4) Prosecution’s Further Submission, para. 19. (5) According to the European Court of Human Rights, the reasonableness of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary deprivation of liberty. See ECHR, Case of Fox Campbell and Hartley v. United Kingdom, “Judgment”, 30 August 1990, Application No. 12244/86;12245/86;12383/86, paras. 31-36, ECHR, Case of K.-F. v. Germany, “Judgment”, 27 November 1997, Application No. 144/1996/765/962, para. 57; ECHR, Case of Labita v. Italy, “Judgment”, 6 April 2000, Application No. 26772/95, paras. 155-161; ECHR, Case of Berktay v. Turkey (available in French only), “Judgment”, 1 March 2001, Application No. 22493/93, para. 199; ECHR, Case of O’Hara v. United Kingdom, “Judgment”, 16 October 2001, Application No. 37555/97, paras. 34-44. (6) See for instance, IACHR, Case of Bamaca Velasquez v. Guatemala, “Judgment”, 25 November 2000, Series C No. 70, paras. 138-144, IACHR, Case of Loayza-Tamayo v, Perú, “Judgment”, 17 September 1997, Series C No. 33, paras. 49-55; and IACHR, Case of Gangaram Panday v. Suriname, “Judgment”, 21 January 1994, Series C No. 16, paras. 46-51.

S58-PT-8

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Redacted Version of the Decision Concerning Supporting Materials in Connection with the Prosecution’s Application REDACTED pursuant to article 58 (PT), 9 March 2006 (made public on 20 March 2006):

CONSIDERING that, pursuant to article 58 (1) and (7) of the Statute, the issuance of a warrant of arrest or a summons to appear is subject to the Pre-Trial Chamber's being satisfied that there are reasonable grounds to believe that the person has committed a crime falling within the jurisdiction of the Court; CONSIDERING the absence of supporting materials relating to several factual allegations in the Prosecution's Application; CONSIDERING the difficulty of following some of the Prosecution's factual allegations, including some in the section on "individual cases", in light of the video transcript included in Annex VI of the Prosecution's Application; […] INVITES the Prosecution, as soon as possible and at the latest by Wednesday 25 January 2006:

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(i) to provide further information and supporting materials concerningthe ongoing proceedings in the DRC against Mr Thomas Lubanga Dyilo REDACTED; (ii) to provide any information in the possession of the Prosecution which might indicate that Mr Thomas Lubanga Dyilo could be released in the near future, possibly within three or four weeks; (iii) to transmit to the Chamber a copy of the warrants of arrest issued in the DRC against Mr Thomas Lubanga Dyilo REDACTED; and (iv) to elaborate on the Prosecution's submission in paragraph 186 of the Prosecution's Application. INVITES the Prosecution, as soon as possible and at the latest by Monday 30 January 2006: (i) to provide: a. the full statements of REDACTED; b. supporting materials, such as birth certificates, ID cards, DRC registration forms, demobilisation registration forms or the like, in respect of their date of birth; and c. information about their current whereabouts and security situation and any protective measures which the Prosecution may have taken under article 54(3) (f) of the Statute in order to ensure their security; (ii) to provide information on how and by whom the video included in Annex VI of the Prosecution's Application was recorded, how it came into the possession of the Prosecution, and the chain of custody since that time; (iii)to provide supporting materials for the alleged UPC/FPLC policy/practice of enlisting, recruiting and using children in military operations, specifying the camps and/or areas, and times concerning each camp and/or area where the Prosecution alleges such policy/practice was implemented by the UPC/FPLC between July 2002 and December 2003; (iv)to provide supporting materials for the following matters, specifying which supporting materials are related to each: a. the objectives of the UPC and the FPLC and their involvement in the armed conflict in Ituri between mid-2002 and the end of 2003; b. the level of organization and organizational charts of the UPC and FPLC; c. the relationship between the UPC and the FPLC; d. armed groups, aside from the UPC/FPLC, involved in the conflict in Ituri between July 2002 and December 2003 and their level of organization (at least with regard to one of them);

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e. the de jure and de facto authority of Mr Thomas Lubanga Dyilo within the UPC and the FPLC; f. REDACTED; g. the hierarchical relationship between Mr Thomas Lubanga Dyilo REDACTED; h. the Prosecution's factual statements in paragraphs 46, 73, 80, 82 and 94 of the Prosecution's Application;

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Article 58(3): Warrant of arrest – Contents – Prima facie assessment on jurisdiction and admissibility

S58-PT-9

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, paras. 17-26:18

17. NOTING article 58 and article 19 of the Statute of the Court (the “Statute”); 18. NOTING the letter of referral dated the 16th day of December 2003 from the Attorney General of the Republic of Uganda, appended as Exhibit A to the Prosecutor’s application, by which the “situation concerning the Lord’s Resistance Army” in northern and western Uganda was submitted to the Court; 19. NOTING the Prosecutor’s conclusion that “the scope of the referral encompassed all crimes committed in Northern Uganda in the context of the ongoing conflict involving the LRA” and that the Prosecutor notified the Government of Uganda of his conclusion as referred to in paragraph 1 of the Prosecutor’s application; 20. NOTING the “Declaration on Temporal Jurisdiction”, dated the 27th day of February 2004, appended as Exhibit B to the Prosecutor’s application, whereby the Republic of Uganda accepted the exercise of the Court’s jurisdiction for crimes committed following the entry into force of the Statute on the 1st day of July 2002; 21. NOTING the “Letter on Jurisdiction” dated the 28th day of May 2004 from the Solicitor-General of the Republic Uganda to the Prosecutor, appended as Exhibit C to the Prosecutor’s application; 18

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, para. 19-28; Situation in Uganda, No. ICC01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, para. 17-26 Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, para. 29-38; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, para. 29-38.

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22. NOTING that all of the crimes alleged against RASKA LUKWIYA fall within the provisions of articles 5, 7 and 8 of the Statute, and that such crimes are alleged to have taken place after the 1st day of July 2002 and within the context of the situation in Uganda as referred to the Court; 23. NOTING the Prosecutor’s determination that the requirements of article 53, paragraph 1, of the Statute were satisfied; 24. NOTING that the Prosecutor affirms in paragraph 3 of the application that letters of notification were distributed to “all States parties under article 18, paragraph 1, of the Statute, as well as to other States that would normally exercise jurisdiction”; and that the Prosecutor had not received from any State information pursuant to article 18, paragraph 2, of the Statute; 25. NOTING the statements in the “Letter of Jurisdiction” dated the 28th day of May 2004, that “the Government of Uganda has been unable to arrest … persons who may bear the greatest responsibility” for the crimes within the referred situation; that “the ICC is the most appropriate and effective forum for the investigation and prosecution of those bearing the greatest responsibility” for those crimes; and that the Government of Uganda “has not conducted and does not intend to conduct national proceedings in relation to the persons most responsible”; 26. BEING SATISFIED that, on the basis of the application, the evidence and other information submitted by the Prosecutor, and without prejudice to subsequent determination, the case against RASKA LUKWIYA falls within the jurisdiction of the Court and appears to be admissible;

S58-PT-10

o Situation en République Démocratique du Congo, No. ICC-01/04, Procureur c/ Thomas Lubanga Dyilo, Case No. 01/04-01/06, Mandat d’arrêt (Warrant of Arrest) (PT), 10 Février 2006 (made public on 17 March 2006):

VU le paragraphe premier de l'article 19 et le paragraphe premier de l'article 58 du Statut de Rome ; ATTENDU que, sur la foi des éléments de preuve et renseignements fournis par l'Accusation, l'affaire concernant M. Thomas Lubanga Dyilo relève de la compétence de la Cour et est recevable ;

——— Official Translation ——— NOTING articles 19(1) and 58(1) of the Rome Statute; HAVING FOUND that, on the basis of the evidence and information provided by the Prosecution, the case against Mr Thomas Lubanga Dyilo falls within the jurisdiction of the Court ans is admissible;

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Article 58(3) (a): Warrant of arrest – Contents – “Name of the person and any other relevant identifying information”

S58-PT-11

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot

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Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, para. 36:19 36. A WARRANT OF ARREST (the “Warrant”) for the SEARCH, ARREST, DETENTION AND SURRENDER to the Court of RASKA LUKWIYA, a male whose photograph is annexed; who is believed to have served in the LRA successively as Brigade General, Deputy Army Commander and Army Commander, the latter being the third highest position within the LRA; and who is believed to be a national of Uganda from the Gulu District, Uganda;

S58-PT-12

o Situation en République Démocratique du Congo, No. ICC-01/04, Procureur c/ Thomas Lubanga Dyilo, Case No. 01/04-01/06, Mandat d’arrêt (Warrant of Arrest) (PT), 10 Février 2006 (made public on 17 March 2006):

DELIVRE UN MANDAT D'ARRÊT contre M.THOMAS LUBANGA DYILO, dont les photographies sont jointes en annexe, supposé être un ressortissant de la République démocratique du Congo, né le 29 décembre 1960 à Jiba, dans le secteur d'Utcha du territoire de Djugu situé dans le district d'Ituri de la Province orientale (République démocratique du Congo), fils de M. Mathias Njabu et de Mme Rosalie Nyango, marié à une certaine Mme Matckosi et père de six enfants, présumé être le fondateur de l'UPC et des FPLC, présumé avoir été commandant en chef des FPLC, présumé être le Président actuel de l'UPC, et qui, selon les dernières informations disponibles, est détenu au Centre pénitentiaire et de rééducation de Kinshasa.

——— Official Translation ——— HEREBY ISSUES : A WARRANT OF ARREST for Mr THOMAS LUBANGA DYILO; a male whose photographs are annexed; who is believed to be a national of the Democratic Republic of the Congo; born on 29 December 1960 in Djiba, Utcha Sector, Djugu Territory, Ituri District, Orientale Province, Democratic Republic of the Congo; son of Mr Mathias Njabu and Ms Rosalie Nyango; married to a Ms Matckosi and father of six children; who is the alleged founder of the UPC and the FPLC, the alleged former Commander-in-Chief of the FPLC and the alleged current President of the 19

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, para. 38; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, para. 36; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, para. 48; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, para. 48.

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UPC; and who was last known to be detained in the Centre Pénitentiaire et de Rééducation de Kinshasa.

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Article 58(3) (b): Warrant of arrest – Contents – “Specific reference to the crimes within the jurisdiction of the Court for which the arrest is sought” – Nature of the crimes and grounds of liability (“ordering” under 25(3) (b))

S58-PT-13

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, para. 27-30:20

27. NOTING articles 5, 7 and 8 of the Statute setting out crimes against humanity and war crimes; and noting also the Elements of Crimes; 28. NOTING the evidence submitted by the Prosecutor in support of the existence of the contextual elements of the alleged crimes; 29. NOTING that the Prosecutor relies on several categories of evidence to support the allegations made in his application; 30. BEING SATISFIED, on the basis of the application, the evidence and other information submitted by the Prosecutor, that there are reasonable grounds to believe that RASKA LUKWIYA, together with other persons whose arrests are sought by the Prosecutor, ordered the commission of crimes within the jurisdiction of the Court, namely, a crime against humanity and war crimes, particulars of which are set out in the following counts as numbered in the Prosecutor’s application: Count Six (Enslavement at REDACTED IDP Camp Constituting Crimes Against Humanity) On REDACTED 2003, ordering the commission of crimes against humanity which in fact occurred, namely, the enslavement of REDACTED civilian residents of REDACTED IDP Camp, in REDACTED District, Uganda (articles 7(1)(c) and 25(3)(b) of the Statute);

20

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, paras. 29-32; Situation in Uganda, No. ICC01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, paras. 27-30; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, paras. 39-42; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, paras. 39-42.

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Count Seven (Cruel Treatment at REDACTED IDP Camp Constituting War Crimes) On REDACTED 2003, ordering the commission of war crimes which in fact occurred, namely, the cruel treatment of civilian residents of REDACTED IDP Camp, by abducting them, tying or otherwise restraining them, and forcing them, under threat of death, to carry plundered property, in REDACTED District, Uganda (articles 8(2)(c)(i) and 25(3)(b) of the Statute); Count Eight (Attack Against the Civilian Population at REDACTED IDP Camp Constituting War Crime) On REDACTED 2003, ordering the commission of a war crime which in fact occurred, namely, the intentional directing of attacks against the civilian population of REDACTED IDP Camp, in REDACTED District, Uganda, and against individual civilians not taking direct part in hostilities (articles 8(2)(e)(i) and 25(3)(b) of the Statute); Count Nine (Pillaging at REDACTED IDP Camp Constituting War Crimes) On REDACTED 2003, ordering the commission of war crimes which in fact occurred, namely, the pillaging of REDACTED IDP Camp, in REDACTED District, Uganda (articles 8(2)(e)(v) and 25(3)(b) of the Statute);

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Article 58(3) (b): Warrant of arrest – Contents – “Specific reference to the crimes within the jurisdiction of the Court for which the arrest is sought – Nature of the crimes - No details on grounds of accountability (generic reference to Article 25(3))

S58-PT-14

o Situation en République Démocratique du Congo, No. ICC-01/04, Procureur c/ Thomas Lubanga Dyilo, Case No. 01/04-01/06, Mandat d’arrêt (Warrant of Arrest) (PT), 10 Février 2006 (made public on 17 March 2006):

ATTENDU que pour les raisons susmentionnées, il y a des motifs raisonnables de croire que M. Thomas Lubanga Dyilo est pénalement responsable en vertu de l'alinéa a) du paragraphe 3 de l'article 25 du Statut : i) du crime de guerre consistant à procéder à l'enrôlement d'enfants de moins de quinze ans, sanctionné par le point xxvi) de l'alinéa b) du paragraphe 2 de l'article 8 ou par le point vii) de l'alinéa e) du paragraphe 2 de l'article 8 du Statut ; ii) du crime de guerre consistant à procéder à la conscription d'enfants de moins de quinze ans, sanctionné par le point xxvi) de l'alinéa b) du

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paragraphe 2 de l'article 8 ou par le point vii) de l'alinéa e) du paragraphe 2 de l'article 8 du Statut ; et iii) du crime de guerre consistant à faire participer activement des enfants de moins de quinze ans à des hostilités, sanctionné par le point xxvi) de l'alinéa b) du paragraphe 2 de l'article 8 ou par le point vii) de l'alinéa e) du paragraphe 2 de l'article 8 du Statut ;

——— Official Translation ——— HAVING FOUND that for the above reasons there are reasonable grounds to believe that Mr Thomas Lubanga Dyilo is criminally responsible under article 25(3)(a) of the Statute for : (i) the war crime of enlisting children under the age of fifteen punishable under article 8(2)(b)(xxvi) or article 8(2)(e)(vii) of the Statute; (ii) the war crime of conscription of children under the age of fifteen punishable under article 8(2)(b)(xxvi) or article 8(2)(e)(vii) of the Statute; and (iii) the war crime of using children under the age of fifteen to participate actively in hostilities punishable under article 8(2)(b)(xxvi) or article 8(2)(e)(vii) of the Statute;

x

Article 58(3) (c): Warrant of arrest – Contents – “Concise statement of the facts which are alleged to constitute those crimes”

S58-PT-15

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, paras. 5-16: 21

5. CONSIDERING the general allegations presented in the Prosecutor’s application that the LRA is an armed group carrying out an insurgency against the Government of Uganda and the Ugandan Army (also known as the Uganda People’s Defence Force (“UPDF”)) and local defence units (“LDUs”) since at least 1987; that over this 21

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, paras. 5-18; Situation in Uganda, No. ICC01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, paras. 5-16; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, paras. 5-28; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, paras. 5-28.

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time, including the period from 1 July 2002, the LRA has been directing attacks against both the UPDF and LDUs and against civilian populations; that, in pursuing its goals, the LRA has engaged in a cycle of violence and established a pattern of “brutalization of civilians” by acts including murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements; that abducted civilians, including children, are said to have been forcibly “recruited” as fighters, porters and sex slaves to serve the LRA and to contribute to attacks against the Ugandan army and civilian communities; 6. CONSIDERING that the existence and acts of the LRA, as well as their impact on Uganda’s armed forces and civilian communities, have been reported by the Government of Uganda and its agencies and by several independent sources, including the United Nations, foreign governmental agencies, non-governmental organisations and world media; 7. CONSIDERING the allegations that the LRA was founded and is led by Joseph Kony, the Chairman and Commander-in-Chief, and that the LRA is organised in a military-type hierarchy and operates as an army; 8. CONSIDERING the allegations that LRA forces are divided into four brigades named Stockree, Sinia, Trinkle and Gilva, and that since July 2002 the LRA’s hierarchy of posts under Joseph Kony’s overall leadership has included Vincent Otti, the Vice-Chairman and Second-in-Command; RASKA LUKWIYA, the Army Commander who formerly occupied the posts of Brigade General and Deputy Army Commander; the Division Commander and four Commanders of equal rank, each of whom leads one of the four LRA brigades; 9. CONSIDERING the specific allegations that Joseph Kony, Vincent Otti and other senior LRA commanders, including RASKA LUKWIYA, are the key members of “Control Altar”, the section representing the core LRA leadership responsible for devising and implementing LRA strategy, including standing orders to attack and brutalise civilian populations; 10. HAVING EXAMINED the Prosecutor’s submission that, in his capacity as the former Deputy Army Commander of the LRA, and together with other persons whose arrests are sought by the Prosecutor, RASKA LUKWIYA ordered the commission of several crimes within the jurisdiction of the Court during REDACTED 2003; 11. CONSIDERING that sources indicated by the Prosecutor as confirming RASKA LUKWIYA’s role within the LRA’s leadership include recordings of intercepted radio communications, accounts from former members of the LRA and accounts from witnesses and victims; 12. CONSIDERING the Prosecutor’s allegations that, in or around the middle of the year 2002, Joseph Kony ordered LRA forces to begin a campaign of attacks against civilians in the regions of REDACTED and REDACTED; that, in REDACTED 2003, Joseph Kony ordered LRA fighters, known also as rebels, to move into the REDACTED region, attack the UPDF forces and civilian settlements and abduct civilians for the purpose of recruitment to the ranks of the LRA (the “REDACTED campaign”); that, in response to Joseph Kony’s orders, senior LRA commanders, including Vincent Otti and RASKA LUKWIYA, moved into the REDACTED region to conduct LRA operations; that LRA operations also continued

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to be conducted in the REDACTED region; that REDACTED 2003, Joseph Kony issued broad orders to target and kill civilian populations, including those living in camps for internally displaced persons (“IDP”); that, during the REDACTED campaign and other LRA operations, there existed standing orders, given by Joseph Kony, to loot and to abduct civilians; that RASKA LUKWIYA’s direct involvement with the objectives and strategies of the campaign as a whole is shown by recordings of intercepted radio communications, accounts from former members of the LRA and accounts from witnesses and victims; 13. NOTING that the Prosecutor’s application charges RASKA LUKWIYA with criminal responsibility for the attack on the REDACTED IDP Camp REDACTED mentioned hereafter forming part of the REDACTED campaign and having occurred in REDACTED 2003; 14. NOTING that the Prosecutor charges RASKA LUKWIYA with a crime against humanity and war crimes, as specified in Counts 6 to 9 of his application, in connection with the attack on the REDACTED IDP Camp; Attack on REDACTED IDP Camp 15. NOTING that the Prosecutor alleges that, on REDACTED 2003, “REDACTED fighters” attacked the REDACTED IDP Camp REDACTED, in the REDACTED District, abducted civilians and forced them to carry looted items; that, according to Ugandan authorities, the attack resulted in the death of REDACTED civilians and in the abduction of REDACTED civilians, REDACTED; 16. NOTING that the evidence submitted, including accounts from REDACTED and intercepted radio communications, suggests that RASKA LUKWIYA was the most senior LRA commander to receive orders from Vincent Otti before the attack on the REDACTED IDP Camp; that RASKA LUKWIYA proceeded to the scene of the attack and commanded the LRA forces that were present; and that accounts from REDACTED confirm RASKA LUKWIYA’s presence during the attack;

S58-PT-16

o Situation en République Démocratique du Congo, No. ICC-01/04, Procureur c/ Thomas Lubanga Dyilo, Case No. 01/04-01/06, Mandat d’arrêt (Warrant of Arrest) (PT), 10 Février 2006 (made public on 17 March 2006):

ATTENDU qu'il y a des motifs raisonnables de croire qu'un conflit armé prolongé a eu lieu en Ituri de juillet 2002 à la fin de 2003, au moins ; ATTENDU qu'il y a des motifs raisonnables de croire que de juillet 2002 à décembre 2003, des membres des FPLC ont commis des actes répétés d'enrôlement dans les FPLC d'enfants de moins de quinze ans qui ont été formés dans les camps d'entraînement des FPLC de Bule, Centrale, Mandro, Rwampara, Bogoro, Sota et Irumu ; ATTENDU qu'il y a des motifs raisonnables de croire que de juillet 2002 à décembre 2003, des membres des FPLC ont commis des actes répétés de conscription dans les FPLC d'enfants de moins de quinze ans qui ont été formés dans les camps d'entraînement des FPLC de Bule, Centrale, Mandro, Rwampara, Bogoro, Sota et Irumu ;

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ATTENDU qu'il y a des motifs raisonnables de croire que durant la période en cause, des membres des FPLC ont, de manière répétée, fait participer activement des enfants de moins de quinze ans à des hostilités survenues à Libi et Mbau en octobre 2002, à Largu au début de 2003, à Lipri et Bogoro en février et mars 2003, à Bunia en mai 2003 et à Djugu et Mongwalu en juin 2003 ; ATTENDU qu'il y a des motifs raisonnables de croire que la politique/pratique présumée de l'UPC/FPLC consistant à procéder à l'enrôlement ou à la conscription dans les FPLC d'enfants de moins de quinze ans et à les faire participer activement à des hostilités était mise en oeuvre dans le contexte du conflit en Ituri et en association avec celui-ci ; ATTENDU qu'il y a également des motifs raisonnables de croire que M. Thomas Lubanga Dyilo est Président de l'UPC depuis sa fondation le 15 septembre 2000, qu'au début ou à la mi-septembre 2002, M. Thomas Lubanga Dyilo a fondé les FPLC en tant qu'aile militaire de l'UPC et qu'il en est aussitôt devenu le commandant en chef, poste qu'il a occupé jusqu'à la fin de 2003 au moins ; ATTENDU qu'il y a aussi des motifs raisonnables de croire que M. Thomas Lubanga Dyilo i) exerçait une autorité de facto, correspondant à ses fonctions de Président de l'UPC et de commandant en chef des FPLC, ii) qu'entre juillet 2002 et décembre 2003, il avait le contrôle ultime de l'adoption et de la mise en oeuvre des politiques/pratiques de l'UPC/FPLC (groupe armé organisé hiérarchiquement), lesquelles consistaient notamment à enrôler et à procéder à la conscription dans les FPLC d'enfants de moins de quinze ans et à les faire participer activement à des hostilités, et iii) qu'il avait conscience du rôle unique qui était le sien dans l'UPC/FPLC et en a fait un usage actif ;

——— Official Translation ——— HAVING FOUND that there are reasonable grounds to believe that a protracted armed conflict took place in Ituri from July 2002 until the end of 2003 at least ; HAVING FOUND that there are reasonable grounds to believe that from July 2002 to December 2003 members of the FPLC carried out repeated acts of enlistment into the FPLC of children under the age of fifteen who were trained in the FPLC training camps of Bule, Centrale, Mandro, Rwampara, Bogoro, Sota and Irumu; HAVING FOUND that there are reasonable grounds to believe that from July 2002 to December 2003 members of the FPLC carried out repeated acts of conscription into the FPLC of children under the age of fifteen who were trained in the FPLC training camps of Bule, Centrale, Mandro, Rwampara, Bogoro, Sota and Irumu; HAVING FOUND that there are reasonable grounds to believe that, during the relevant period, members of the FPLC repeatedly used children under the age of fifteen to participate actively in hostilities in Libi and Mbau in October 2002, in Largu at the beginning of 2003, in Lipri and Bogoro in February and March 2003, in Bunia in May 2003 and in Djugu and Mongwalu in June 2003; HAVING FOUND that there are reasonable grounds to believe that the alleged UPC/FPLC’s policy/practice of enlisting into the FPLC, conscripting into the FPLC and using to participate actively in hostilities children under the age of fifteen was implemented in the context and in association with the ongoing conflict in Ituri;

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HAVING FOUND that there are also reasonable grounds to believe that Mr Thomas Lubanga Dyilo has been President of the UPC since its foundation on 15 September 2000, that in early or mid-September 2002 Mr Thomas Lubanga Dyilo founded the FPLC as the military wing of the UPC and that he immediately became its Commander-in-Chief and remained in that position until the end of 2003 at least; HAVING FOUND that there are reasonable grounds to believe that Mr Thomas Lubanga Dyilo (i) exercised de facto authority which corresponded to his positions as President of the UPC and Commander-in-Chief of the FPLC, (ii) that he had ultimate control over the adoption and implementation of the policies/practices of the UPC/FPLC – a hierarchically organized armed group – between July 2002 and December 2003, including the enlistment into the FPLC, the conscription into the FPLC and the use to participate actively in hostilities of children under the age of fifteen, and (iii) that he was aware of his unique role within the UPC/FPLC and actively used that role;

x

Article 58(4): Non-execution of warrants of arrest – Update to the Pre-Trial Chamber on the status of execution of warrants in order to exercise powers under Chapter 9 – Responsibilities of the Registrar and of the Prosecutor

S58-PT-17

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Order to the Registrar and the Prosecutor for the Submission of Information on the Status of Execution of the Warrants of Arrest in the Situation in Uganda (PT), 15 September 2006:

RECALLING the Chamber's "Decision on the Prosecutor's application for warrants of arrest under article 58" dated 8 July 2005 (10), as well as the Chamber's "Decision on the Prosecutor's urgent application dated 26 September 2005" dated 27 September 2005(11), deciding that the Warrants and the Requests for Arrest and Surrender shall be transmitted by the Registrar to the relevant States; NOTING the recent media reports on the situation in Uganda, referring, inter alia, to contacts between representatives of the Government of Uganda and of Sudan and some of the persons whose arrest is sought by the Court and referring also to their presumed current location; NOTING article 89 (1) of the Statute of the Court ("the Statute"), setting forth the obligation of States Parties to comply with the Court's requests for arrest and surrender; NOTING article 87 (7) of the Statute, according to which, when a State Party fails to comply with a request to cooperate, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties; NOTING article 87 (5) (b), of the Statute, according to which, when a State not party to the Statute which has entered into an ad hoc arrangement or agreement with

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the Court fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties; NOTING regulation 46 (2) of the Regulations of the Court ("the Regulations"), according to which the Pre-Trial Chamber "shall be responsible for any matter, request or information arising out of the situation assigned to it"; NOTING rule 176 (2) of the Rules of Procedure and Evidence of the Court ("the Rules"), according to which the Registrar "shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States"; NOTING rule 184 of the Rules, providing that the surrender of the person(s) sought by the Court shall be a matter of arrangements between the requested State and the Registrar; NOTING regulation 76 (c) of the Regulations of the Registry, pursuant to which the Registrar shall request national authorities to inform him without delay "of any problem that may impede or prevent the execution of the request for arrest and surrender"; NOTING articles 42 (1) and 54 (1) (b) of the Statute, respectively setting forth the general mandate of the Prosecutor and mandating him to take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court; NOTING further article 54 (3) (c) of the Statute, which vests the Prosecutor with the power to seek cooperation from States; CONSIDERING the importance of the execution of the Warrants for the effective investigation and prosecution as well as for the prevention of the commission of further crimes; CONSIDERING that there is a need for the Chamber to receive a complete update on the status of the execution of the Warrants and of the Requests and of the ongoing cooperation with the relevant States, with a view to exercising its powers and fulfilling its duties, in particular under part 9 of the Statute; HAVING REGARD THERETO AND FOR THESE REASONS, THE CHAMBER HEREBY REQUESTS the Registrar to submit to the Chamber, on or before Friday 6 October 2006, a written report with information and comments on the status of the execution of the Warrants and of the Requests for Arrest and Surrender, in particular as regards the cooperation with the relevant States and between the Registry and the Office of the Prosecutor; REQUESTS the Prosecutor to submit to the Chamber, on or before Friday 6 October 2006, without prejudice to his powers and functions under the Statute, information and comments in writing on the status of cooperation with the relevant States and with the Registry as regards the execution of the Warrants. ————————— (10) ICC-02/04-01/05-l-US-Exp. (11) ICC -02/04-01/05-27-US-Exp.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

S58-PT-18

135

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Order Granting a New Deadline to the Registrar for the Submission of Additional Information and Comments on the Status of Cooperation in the Situation in Uganda (PT), 13 October 2006:

RECALLING the Chamber's "Order to the Registrar and the Prosecutor for the submission of information on the status of the execution of the warrants of arrest in the situation in Uganda", dated 15 September 2006 (1) ("the Order"), whereby the Chamber requested the Registrar and the Prosecutor to submit information and comments on the status of the execution of the Warrants(2) and the Requests for Arrest and Surrender(3) issued in the situation in Uganda, in particular as regards the cooperation with the relevant States and between the Registry and the Office of the Prosecutor; NOTING the "Rapport du Greffier sur l'état d'exécution des mandats d'arrêt dans la situation en Ouganda" submitted on 6 October 2006(4), whereby the Registrar informed the Chamber that on 26 September 2006 he had transmitted the Order to the Governments of Uganda, the Democratic Republic of the Congo and the Republic of Sudan, accompanied by a letter specifically requesting "an update on the execution of the Warrants of arrest and Requests for arrest and surrender" (5); that only the Government of Uganda had replied, while the Government of the Democratic Republic of the Congo and of the Republic of Sudan had maintained not being able to reply within the relevant time-limit; NOTING that, accordingly, the Registrar requested an extension of the deadline with a view to being able to submit to the Chamber the information to be provided by the Governments of the Democratic Republic of the Congo and of the Republic of Sudan, without however providing any indication as to the expected duration of such extension; CONSIDERING that the specific purpose of the Order was to allow the Chamber to gather any relevant information relating to the status of cooperation which may be available to the Registrar and the Prosecutor at this stage based on their own assessment of the situation and on their own contacts with the relevant States, rather than to gather information from the authorities of such States; CONSIDERING that, accordingly, the Registrar should be in a position to provide such information prior to and irrespective of any of the relevant States responding to his request dated the 26 September 2006, without prejudice to his duty to submit to the Chamber any additional information which may be provided by such States at a later stage; ————————— (1) ICC-02/04-01/05-111. (2) Warrants of arrests for Joseph KONY (ICC-02/04-01/05-28-US-Exp); Vincent OTTI (ICC02/04-01/05-4-US-Exp); Raska LUKWIYA (ICC-02/04-01/05-6-US-Exp); Okot ODHIAMBO (ICC-02/04-01/05-8-USExp); and Dominic ONGWEN (ICC-02/04-01/05-10US-Exp). (3) Requests to Uganda for arrest and surrender of: Joseph Kony (ICC-02/04-01/05-12-US-Exp and ICC-02/04-01/05-29-US-Exp); Vincent Otti (ICC-02/04-01/05-13-US-Exp); Raska

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Lukwiya (ICC-02/04-01/05-14-US-Exp); Okot Odhiambo (ICC-02/04-01/05-15-Exp); Dominic Ongwen (ICC-02/04-01/05-16-USExp); Requests to the Democratic Republic of the Congo for arrest and surrender of: Joseph Kony (ICC-02/04-01/05-30-US-Exp); Vincent Otti (ICC-02/04-01/05-31-US-Exp); Okot Odhiambo (ICC-02/04-01/05-32-US-Exp); Dominic Ongwen (ICC-02/04-01/05-33-US-Exp); Raska Lukwiya (ICC-02/04-01/05-34-US-Exp); Requests to the Republic of Sudan for arrest and surrender of: Joseph Kony (ICC-02/0401/05-35-US-Exp); Vincent Otti (ICC-02/04-01/05-36-US-Exp); Okot Odhiambo (ICC02/04-01/05-37-USExp); Dominic Ongwen (ICC-02/04-01/05-38-US-Exp); Raska Lukwiya (ICC-02/04-01/05-39-US-Exp). (4) ICC-02/04-01/05-118. (5) Letters by the Registrar to Lucien Tibaruha, Solicitor General of the Republic of Uganda and to the Ambassador to the Netherlands of the Democratic Republic of the Congo and of the Republic of Sudan (ICC-02/04-01/05-118-Anx 1).

x

Article 58: Issuance of warrants of arrest under seal – Request found “proper and justified” (no reasoning)

S58-PT-19

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Under Seal Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 8 July 2005 (Unsealed on 13 October 2005):

NOTING the Prosecutor's request that the Prosecutor's application and all the proceedings relating thereto be treated as under seal and be kept under seal; CONSIDERING the Prosecutor's request as to confidentiality to be proper and justified in the circumstances described in the Prosecutor's application; […] ORDERS that the Prosecutor's application, the Warrants and the Requests be treated as under seal and be kept under seal, in accordance with this decision of the Chamber and until further order by the Chamber; DECIDES that this decision be kept under seal until further order by the Chamber.

x

Article 58: Confidential warrants of arrest – Authorisation to partially disclose confidential warrants of arrest in order to facilitate their implementation (granted)

S58-PT-20

22

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Under Seal – Ex Parte – Decision on the Prosecutor’s Urgent Application Dated 26 September 2005 (PT), 27 September 2005 (made public on 23 March 2006):22

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Raska Lukwiya

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RECALLING the Chamber's "Decision on the Prosecutor's Application for Warrants of Arrest under Article 58" dated the 8th day of July 2005, in which the Chamber ordered that the Prosecutor's application for warrants of arrest and the proceedings relating thereto, including the warrants of arrest issued and the requests for arrest and surrender, be treated as under seal and be kept under seal until further order of the Chamber; […] NOTING the reasons submitted in support of the Prosecutor's urgent application for authorisation, in particular those relating to recent developments and to the existence of "a potentially unique prospect for arresting" certain persons for whom arrest is sought and "for improving security in Northern Uganda and elsewhere"; […] AUTHORISES the Prosecutor, on a confidential basis and in situations where the Prosecutor deems it necessary to disclose the information set out under subparagraphs (i) and (ii) below to ensure the successful execution of the warrants of arrest, to notify the appropriate governmental authorities of those States whose cooperation is essential to the successful execution of the warrants of arrest, as well as relevant inter-governmental organisations, of: (i) the existence of the warrants of arrest issued by the Chamber on the 8th day of July 2005; and (ii) the names and any other relevant identifying information of the five persons named in the warrants of arrest; INVITES the Prosecutor to inform the Chamber of the governmental authorities or inter-governmental organisations notified as authorised herein;

x

Article 58: Confidential warrants of arrest – Authorisation to partially disclose confidential warrants of arrest in order to facilitate their implementation (denied)

S58-PT-21

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10

(Public Redacted Version) (PT), 8 July 2005, paras. 39-40; Situation in Uganda, No. ICC01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, paras. 41-42; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, paras. 39-40; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, paras. 51-52; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, paras. 51-52.

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February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras.126-129: 126. […] As a result, the Chamber has decided that the present decision and the warrant of arrest for Mr Thomas Lubanga Dyilo, as with previous decisions taken in connection with the Prosecution’s Application, shall be issued under seal and shall remain under seal until otherwise provided for by the Chamber. 127. The Chamber has already found that, assisted by the Registry in accordance with rule 176(2) and rule 184 of the Rules, it must be regarded as the only organ of the Court competent to make and transmit a cooperation request for arrest and surrender,(135) and that in the present case Mr Thomas Lubanga Dyilo is currently in provisional detention in the Centre Pénitentiaire et de Rééducation de Kinshasa. (136) 128. In the Chamber’s view, the procedure set out above for making and transmitting the cooperation request for arrest and surrender of Mr Thomas Lubanga Dyilo requires that the Registrar be authorised to inform, if necessary prior to the transmittal of such cooperation request, the following of the existence of a warrant of arrest for Mr Thomas Lubanga Dyilo: (1) those DRC authorities who are competent to receive a cooperation request for arrest and surrender from the Court in order to ensure the successful execution of the warrant of arrest; (2) the persons involved in the transfer of Mr Thomas Lubanga Dyilo to the premises of the Court in The Hague; and (3) the Under-Secretary-General of the United Nations for Peacekeeping Operations and the Special Representative of the Secretary-General of the United Nations for the Democratic Republic of the Congo for protection purposes. 129. The Chamber considers that granting authorisation to the Prosecution to disclose information about the existence of the warrant of arrest to the competent representatives of any other undetermined entity would defeat the purpose of issuing the warrant of arrest under seal. In the Chamber’s view, should the Prosecution consider that it would further the execution of the Court’s cooperation request for arrest and surrender to give notice of that cooperation request to a specific person, other than those referred to in paragraph 128, the Prosecution can request the Chamber to authorise giving notice to such person(s). ————————— (135) See supra, section IV. (136) Idem.

x

Article 58: Confidential warrants of arrest – Decision to Unseal Warrants of Arrest – Strategic Considerations – Protection of Victims and Witnesses

S58-PT-22

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision on the Prosecutor’s Application for Unsealing

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

139

of the Warrants of Arrest (PT), 13 October 2005, paras. 14-27: 14. NOTING that the Prosecutor affirmed in the Application for unsealing that the Office of the Prosecutor (the “OTP”) and the WVU had nearly completed implementation of the overall plan for the security of witnesses and victims in the field; and that, in the opinion of the Prosecutor, unsealing of the Warrants would become “a feasible and powerful means of garnering international attention and support for arrest efforts, thus further ensuring the protection of victims, potential witnesses and their families”; 15. NOTING the additional information received from the Prosecutor, in particular at the status conferences held on the 3r4 and the 6th day of October 2005, on measures implemented for the protection of victims and witnesses; and the Prosecutor's continuing assurance that unsealing of the Warrants would not affect the security of victims and witnesses in light of the measures implemented; 16. NOTING further the Prosecutor's submission that keeping the Warrants under seal is impairing the arrest efforts; 17. NOTING also the statements made by the VWU, in particular at the status conferences held on the 3rd and the 6th day of October 2005, as to the implementation of the overall plan for the security of witnesses and victims in the field and the trials and testing of the protective measures put in place; and its assessment that unsealing of the Warrants would have no significant impact on the overall plan for protective measures; 18. NOTING the statements made by the Prosecutor at the status conference of the 6th day of October regarding the publicity given to the issuance of arrest warrants for top leaders of the LRA; 19. NOTING the detailed attention required to ensure that all relevant documents of the proceedings are given the correct and appropriate treatment following the unsealing of the Warrants and other related documents; 20. BEING satisfied on the basis of the information provided by the OTP and the VWU that the overall plan in respect of the situation in Uganda for the security of witnesses and victims in the field has been completed and implemented; and that by the assessment and advice of the Prosecutor and the VWU this overall plan provides the necessary and adequate protective measures for all concerned at this stage; 21. BEING satisfied that unsealing the Warrants and other decisions, hearings and documents in accordance with this Decision would have no significant impact on the implementation of the overall plan for the security of victims and witnesses; 22. BEING concerned, however, about me unpredictability of the security environment in Uganda and the necessity to ensure to the fullest extent possible the safety and protection of victims and witnesses,) in particular through the redaction of relevant documents; 23. BEING convinced of the necessity to redact the warrants of arrest in the manner as attached to this Decision, and noting the Chamber's power to make such redaction pursuant to article 57, paragraph 3 (