The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence 1107027888, 9781107027886

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THE APPEALS CHAMBER OF THE INTERNATIONAL CRIMINAL COURT

This volume is a comprehensive source of the most authoritative statements of the International Criminal Court’s appellate jurisprudence. Its clear format includes commentaries followed by excerpts of the decisions and judgments, carefully selected by lawyers based on their relevance and grouped by topic. It provides a practical background to the International Criminal Court’s appellate jurisprudence from experienced current and former Appeals Counsel of the Office of the Prosecutor of the Court, highlighting pertinent issues. In doing so, readers are given the tools to discern the meaning of the case law themselves, while attention is drawn to the most important developments in the jurisprudence. This text presents an authoritative and comprehensive digest of the Appeals Chamber’s jurisprudence, bringing the relevant case extracts together for the first time with clear and informative commentary. fabricio guariglia is Director of the Prosecution Division, Office of the Prosecutor, International Criminal Court. ben batros is Legal Consultant and a former Appeals Counsel, Office of the Prosecutor, International Criminal Court. reinhold gallmetzer is Appeals Counsel, Office of the Prosecutor, International Criminal Court. george mugwanya is Appeals Counsel, Office of the Prosecutor, International Criminal Court and Advocate of the High Court of Uganda

THE APPEALS CHAMBER OF THE INTERNATIONAL CRIMINAL COURT Commentary and Digest of Jurisprudence

FABRICIO GUARIGLIA BEN BATROS REINHOLD GALLMETZER GEORGE MUGWANYA

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107027886 DOI: 10.1017/9781139227155 © Cambridge University Press 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Guariglia, Fabricio. | Batros, Ben. | Gallmetzer, Reinhold. | Mugwanya, George William. Title: The appeals chamber of the International Criminal Court : commentary and digest of jurisprudence / Fabricio Guariglia (International Criminal Court), Ben Batros (Open Society Justice Initiative, New York), Reinhold Gallmetzer, George Mugwanya. Description: Cambridge [UK] ; New York, NY : Cambridge University Press, 2018. Identifiers: LCCN 2018010372 | ISBN 9781107027886 Subjects: LCSH: International Criminal Court. | Criminal procedure (International law) | Appellate procedure. | International criminal law. | International Criminal Court – Digests. | LCGFT: Court decisions and opinions. Classification: LCC KZ7312 .A67 2018 | DDC 345/.0144–dc23 LC record available at https://lccn.loc.gov/2018010372 ISBN 978-1-107-02788-6 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To Håkan Friman, John R. W. D. Jones and Lorenzo Pugliatti In Memoriam

CONTENTS

List of Contributors page xx Foreword xxiii Foreword xxvii Preface xxix Acknowledgements xxxiv Disclaimer xxxv List of Abbreviations xxxvi Table of Cases xxxviii A Interpretation and Structural Issues Commentary

1

Jurisprudence

21

1

I Applicable Law, Interpretation of the Statute and Other Governing Texts 21 1 General Principles of Interpretation 21 2 Article 21(1)(c) of the Statute 25 3 Article 21(2) of the Statute: Binding Stare Decisis? 27 4 Article 21(3) of the Statute 27 5 Article 24(2) of the Statute 28 6 Role of the Travaux Préparatoires 28 7 Interpretation of “the Established Framework of International Law” (Customary and Conventional International Law) for Article 8(2)(b) and (2)(e) 28 8 Role of the Jurisprudence of Other International Criminal Tribunals 30 9 Scope and Interpretation of the Regulations of the Court 30 10 The Principle of In Dubio Pro Reo 31 II Exercise of Judicial Functions 32

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co ntents 1 Judicial Functions in General 32 2 Adjudication of Applications on a Case-by-Case Basis 33 3 Judicial Discretion 33 4 Obligation to Adjudicate Within the Context of the Respective Case 34 5 Judges Must Make Their Own Factual Findings on which the Decision will be Based 34 6 Duty to Give a Reasoned Decision 35 7 Res Judicata 37 8 Judicial Orders 38 9 Powers and Functions of the Trial Chamber under Article 64(2) 39 III Role of the Registrar and Relationship with Chambers 40 1 Authority of the Registrar 40 2 Obligations of the Registrar 41 3 Review of Decisions by the Registrar 42 IV Authority of the Prosecutor 43 1 Authority of the Prosecutor to Conduct Investigations 43 2 Prosecutor Enjoys High Margin of Discretion under Article 53 (Decision not to Investigate) 45 3 Duty of the Prosecutor to Act Impartially 45 4 Obligation to Investigate Objectively under Article 54(1)(a) 46 5 Continuation of Investigations after the Start of the Confirmation Hearing 47 6 Access by the Prosecution to Monitored Information 49 7 Grounds for Disqualification 50 V Defence Counsel, Duty Counsel and Other Forms of Representation 57 1 Defence Counsel: Role, Appointment and Conflict of Interests 57 2 The Role of the Duty Counsel 65 3 The Role of Ad Hoc Counsel: To Represent the Interests of the Defence 65 4 The Role of the OPCD 66

B Jurisdiction and Admissibility Commentary

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c o n te n t s

Jurisprudence

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I Jurisdiction of the Court 83 1 Four Facets of Jurisdiction of the Court 83 2 Barriers and Challenges to the Exercise of the Jurisdiction 84 II The Criteria for Admissibility of a Case 89 1 The Case is Being Investigated or Prosecuted by a State (Article 17(1)(a)) 89 2 The “Same Person”/“Substantially the Same Conduct” Test 91 3 “A Case is Being Investigated” if there are Investigative Steps Directed at Ascertaining the Criminal Responsibility of the Suspects 95 4 A State has Investigated the Case and Decided Not to Prosecute: Article 17(1)(b) 96 5 The Role of Unwillingness or Inability 98 6 The Case is Not of Sufficient Gravity: Article 17(1)(d) 101 7 Relationship with the Objectives of the Court 103 III The Procedures for Reviewing or Challenging Admissibility 106 1 The Factual Basis for a Determination of Admissibility 106 2 Review of Admissibility by a Chamber Proprio Motu 108 3 Challenges to Admissibility by a Person or State 111 4 Participation of Victims and the States in Admissibility Proceedings 117 5 Domestic Proceedings Pending the Determination of an Admissibility Challenge 117

C Cooperation and Judicial Assistance Commentary

118

Jurisprudence

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I The Court’s General Power to Request the Cooperation of States 120 II Specific Forms of Cooperation 120 1 The Court’s Power to Request the Freezing and Forfeiture of Assets 120 2 Required Attendance of Witnesses 123 3 Transfer Persons in Custody to Give Testimony 124

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contents III State Non-compliance and Referrals (Article 87(7)) 125 1 Decision to Refer Non-cooperation is Discretionary 125 2 Discretion in Determining what Factors are Relevant 127 3 (Non)-Compliance Proceedings not to be Conflated with Proceedings against the Accused 129

D Arrest and Detention Commentary

131

Jurisprudence

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131

I Arrest Warrants and Summons to Appear: Article 58 144 1 General Principles 144 2 Requirements for Issuing a Warrant 144 3 Additional Grounds of Detention 156 4 No Right to be Heard on Replacement of a Summons with Warrant of Arrest 157 5 Relationship between ICC Warrant and Domestic Procedures 157 6 Summons to Appear 158 II Pre-Trial Detention/Interim Release: Article 60 158 1 Applications for Interim Release: Article 60(2) 158 2 Conditional Release: Rule 119 162 3 Periodic Review of Ruling on Release or Detention: Article 60(3) 166 4 Protection against Unreasonable Detention: Article 60(4) 174 5 Release in Case of a Stay of Proceedings 176 6 Release in “Exceptional Humanitarian Circumstances” 178

E Charges and Confirmation Hearing Commentary

179

Jurisprudence

189

I The Nature of the Charges 189 1 Applicable Provisions 189 2 Specificity of the Charges 189 3 Confirmation Decision and Auxiliary Documents 191

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c o n te n t s II Amendments to the Charges 192 1 General Principles 192 2 The Relationship between Article 61(9) and Regulation 55 193 3 The Entire Process of Amending the Charges must be Completed Prior to the Start of Trial: Article 61(9) 194 4 The Prosecutor may Request Postponement of the Trial Pending the Outcome of a Request to Amend the Charges 194 III The Confirmation of Charges Hearing 196 1 General Principles Relating to the Confirmation of Charges Hearing 196 2 Evidentiary Rules at the Confirmation Hearing 199 3 Use of Summaries at the Confirmation Hearing under Article 61(5) 200 4 Power of the Pre-Trial Chamber to Review Weight of Evidence 201

F Disclosure and Redactions Commentary

205

Jurisprudence

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205

I Right of the Accused to Disclosure and Inspection 214 1 General Principles Governing Disclosure 214 2 Pre-trial Disclosure Relating to Prosecution Witnesses: Rule 76 216 3 Right to Disclosure of Exculpatory Material 219 4 Inspection of Information Material to the Preparation of the Defence: Rule 77 220 5 Disclosure in Relation to Applications for Interim Release 223 II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) 225 1 General Principles 225 2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(4) 228 3 Scope of Protection under Rule 81(4) 230 4 Summaries as a Protective Measure: Article 68(5) 232 III Redactions to Protect Investigations: Rule 81(2) 233 1 General Principles 233

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c o n te n ts 2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(2) 235 3 Specific Categories of Information which can be Protected under Rule 81(2) 236 IV Reliance upon Redacted Documents or Summaries 237 V Protection of Confidential Information Gathered under Article 54(3)(e) 239 1 General Scope and Purpose of Article 54(3)(e) 239 2 Relationship between Article 54(3)(e) and Disclosure Obligations 240 3 Resolving the Tension between Confidentiality under Article 54(3)(e) and Disclosure under Article 67(2) 241

G The Protection of Victims and Witnesses Commentary

243

Jurisprudence

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243

I General Principles 246 II The Distribution of Powers regarding Protection 247 1 The Prosecutor’s General Power regarding Protection 247 2 The Responsibilities of the Registry and the VWU 248 3 Particular Considerations regarding Relocation of Witnesses 249 4 Protection in Emergency Situations 250 5 The Powers and Role of the Chamber regarding Protection 251

H Fairness, Expeditiousness of the Proceedings, and Rights of the Accused 253 Commentary

253

Jurisprudence

279

I General Principles 279 1 Fairness 279 2 Expeditiousness 282 3 Proportionality between Fairness and Expeditiousness 283 II Right to be Informed of the Charges and to Adequate Time to Prepare Defence 284 III Right of the Accused to Silence 286 IV Right of the Accused in Relation to Languages 287

contents

V VI VII

VIII IX

1 Standard Required by the ICC 287 2 Relationship between the ICC Standard and the Standards of Other Courts 289 Right of the Accused to Trial without Undue Delay/Expeditious Proceedings 290 Right of the Accused to Legal Representation 291 Right of the Accused to Be Heard and Right to a Reasoned Decision 293 1 Denial of the Right to be Heard 293 2 Right to a Reasoned Decision 293 Defence Strategy or Discretion to Present its Case 295 Stay of Proceedings for Denial of Fairness or Abuse of Process 296 1 Legal Basis for a Stay of Proceedings: Article 21(3) 296 2 Principles Guiding a Stay of Proceedings 298 3 Circumstances in which a Stay of Proceedings has been Contemplated 299 4 Circumstances in which the Stay of Proceedings has not been Upheld by the Appeals Chamber 299 5 Permanent Stay versus Conditional Stay of Proceedings 301

I Offences against the Administration of Justice and Misconduct before the Court 303 Commentary

303

Jurisprudence

307

J Conduct of Trials

309

Commentary

309

Jurisprudence

319

I Admission of Evidence 320 1 The Principle of Orality and its Exceptions 320 II Records of Questioning: Rules 111 and 112 325 1 Purpose and Interaction of Rules 111 and 112 325 2 Specific Purpose of Rule 112 326 III Modifying the Legal Characterisation of Facts 326 1 Regulation 55 is Consistent with the Statute and does not Inherently Violate the Rights of the Accused 327

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c o n te n ts 2 Regulation 55 is Limited to the Facts and Circumstances Described in the Charges 330 3 Timing of the Application of Regulation 55 332 4 Whether Re-characterisation is Limited to “Lesser Included Offences” 336 5 Not Contingent on Whether Amendment of Charges was First Sought 336 IV Excusal from Trial 337 V “No Case to Answer” Motions 343 1 The Trial Chamber has Discretion to Determine Whether to Entertain a “No Case to Answer” Motion 343 2 Declining to Entertain a “No Case to Answer” Motion is Permitted 343

K Sentencing

346

Commentary

346

Jurisprudence

368

I Standard of Appellate Review 368 II Some Sentencing Guidelines and Principles 369 1 The Trial Chamber should Weigh and Balance all Relevant Factors 369 2 Sentence must Reflect the Culpability of the Convicted Person 369 3 Sentence should be Proportional to the Crime 369 4 Notwithstanding the Two Interpretative Approaches on the Relationship between Article 78 and Rule 145, the Chamber must Consider all Relevant Factors 370 5 Previous Sentencing Decisions are of Limited Guidance as Sentences are Individualised 371 6 Abuse of Authority, not Position of Authority per se, Justifies a Harsher Sentence 372 7 Rule against Double Counting 372 8 A Factor’s Weight Falls Within the Trial Chamber’s Discretion 373 9 Obligation to Deduct Time Spent in Detention 373

L Reparations

374

Commentary

374

Jurisprudence

393

I General Principles

393

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c o n te n t s 1 Parties to Reparation Appeals 393 2 Burden and Standard of Proof 393 3 Reparation Principles in Article 75 vis-à-vis Orders for Reparations 394 4 Reparation Principles for Individual and Collective Reparations 394 5 Protective Measures in Relation to Property and Assets to Secure Reparations 395 II Mandatory Elements of a Reparation Order 396 1 Directed against the Convicted Person 396 2 Address the Scope of the Convicted Person’s Liability 397 3 Specify the Type of Reparations: Individual or Collective 397 4 Define the Harm Caused to Victims and Modalities for Reparation 397 5 Identify Eligible Victims or Criteria of Eligibility 398

M Victim Participation in the Proceedings Commentary

399

Jurisprudence

411

399

I Issues Common to Victim Participation in all Phases 411 1 General Requirements and Procedure for Applying to Participate 411 2 Defining “Victim” in Rule 85 and Applying that Definition 413 3 Victims must Demonstrate How their “Personal Interests” are Affected 417 4 Cases Where the Interests of Victims are Affected 421 5 Victims Must Demonstrate that Their Participation is at an Appropriate Stage of the Proceedings 423 6 The Stages of Proceedings at Which Victims may Participate 424 7 Principles Governing the Modalities of the Participation of Victims and the Expression of “Views and Concerns” 425 8 Participation of Victims under other Provisions (including Articles 15, 19 and 75 and Rules 93, 94 and 143) 426 9 Legal Representation of Victims 428

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c o n te n ts II Victim Participation in the Situation 430 1 Absence of General Participatory Rights of Victims in an Investigation 430 2 Victim Participation in Judicial Proceedings in a Situation 431 III Victim Participation in the Case 431 1 Participation of Victims at Trial 431 IV Victim Participation in Appeals 443 1 Automatic Victim Participation in Interlocutory Appeals under Article 82(1)(b) and (d) 443 2 Victim Participation in Other Interlocutory Appeals 444 3 Modalities of Participation in Interlocutory Appeals 452 4 Participation of Victims in Final Appeals 455 V Victim Participation in Reparations Proceedings 456 1 Victims’ Right to Participate in Reparations Proceedings 456 2 Victim Status for the Purpose of Reparations Proceedings 457 3 Right of Victims to Appeal the Relevant Decision due to Participation in the Reparations Proceedings 457 4 Unidentified Victims Who Have Not Applied for Reparations may be Denied the Right to Appeal 458

N Substantive Law

459

Commentary

459

Jurisprudence

477

I Modes of Liability 477 1 Co-perpetration 477 2 Article 25(3)(d): Common Purpose Liability 481 II War Crimes 482 1 Interpretation of Article 8(2) 482 2 There are no Status Requirements that Distinguish War Crimes under the “Established Framework of International Law’’, that is, International Humanitarian Law 483

O Conduct of Appeals Commentary

487

Jurisprudence

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487

contents I Nature and Scope of the Appellate Jurisdiction 515 1 The Corrective and Confined Nature of Appeals 517 2 The Appeals Chamber Does Not have Original Jurisdiction or an Advisory Function 519 II Decisions Which May be Subject to Interlocutory Appeal 519 1 Interlocutory Appeals Strictly Limited to Those Prescribed in Article 82 520 2 Appeals under Article 82(1)(a): Jurisdiction and Admissibility 523 3 Appeals under Article 82(1)(b): Detention and Release 532 4 Appeals under Article 82(1)(d): Other Interlocutory Appeals with Leave of the Chamber 536 5 Appeals under Article 82(4): Reparations Order 541 III Grounds of Appeal, Variation of Grounds and Standards of Review 545 1 Grounds of Appeal 545 2 Variation of Grounds of Appeal before the Appeals Chamber: Regulation 61 550 3 Standards of Review 551 IV Procedure on Appeal 560 1 Parties to an Appeal 560 2 The Appeals Chamber may Consider Preliminary Issues Prior to the Merits 563 3 Replies and Additional Submissions in Interlocutory Appeals: Regulations 24 and 28 563 4 Discontinuance of an Interlocutory Appeal 567 5 Oral Hearings before the Appeals Chamber 568 6 Expeditiousness of Appeal Proceedings 570 7 Summary Decisions are Authoritative Decisions 570 V Replies and Responses in Appeal Proceedings 571 1 Responses: Regulation 59 571 2 Replies: Regulation 60 571 VI Remedies on Appeal 571 1 Scope of the Issues to be Adjudicated by the Appeals Chamber 571

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c o n t en t s 2 The Error Must have Materially Affected the Decision under Appeal 573 3 The Appellant Cannot Raise Errors in Assessments made in Prior Decisions 576 4 Available and Appropriate Remedies on Appeal 577 5 Powers that the Appeals Chamber may not Exercise on Appeal 579 VII Additional Evidence on Appeal: Regulation 62 580 1 General Principles 580 2 Considerations for the Admission of Additional Evidence on Appeal 580 3 Rebuttal Evidence 583 4 Additional Evidence and Revision Proceedings 583 VIII Suspensive Effect 583 1 General Principles on the Appeals Chamber’s Power to Order Suspensive Effect 583 2 Procedure to Apply for Suspensive Effect 586 3 Consideration of Requests for Suspensive Effect 587 4 Suspensive Effect is not the Same as the Power to Stay Proceedings 593 5 Suspensive Effect of an Order for Reparations 594

P Miscellaneous Procedural Issues Commentary

597

Jurisprudence

604

597

I Participation of Amicus Curiae 604 1 The Decision on Whether to Accept Amicus Curiae is Discretionary 604 2 Factors Relevant to Granting Leave to Participate as Amicus Curiae 605 3 Procedural Issues Relating to Amicus Applications 608 II Replies in Pre-Trial and Trial Proceedings: Regulation 24 610 III Chambers’ Clarification and Reconsideration of Decisions 611 1 Clarification of Decisions 611 2 Reconsideration of Decisions 611 IV Confidentiality of Documents and Information 612

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contents 1 Confidential Filings 612 2 Reclassification of Confidential Filings 615 3 Regime of “Ex Parte” Applications 616 V Formal Requirements of Filings 616 1 General Principles 616 2 Time Limits 618 3 Word Limits, Formatting, Footnotes and Inclusion of Legal Basis 621 4 Annexes 623 5 Corrigenda 623 6 Remedies or Sanctions for Non-Compliance 624 VI Applications for Extensions of Time 626 1 Procedural Factors 626 2 Factors Which May Show Good Cause for an Extension of Time 627 3 Factors That do not Show Good Cause for an Extension of Time 633 VII Applications for Extensions of Page Limits 635 1 Procedural Factors 635 2 Factors Which may Show Exceptional Circumstances Justifying the Extension of the Page Limit 637

Q Index of Digested Decisions General Index

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640

CONTRIBUTORS

Dr Fabricio Guariglia has been Director of the Prosecution Division in the Office of the Prosecutor (“OTP”) at the International Criminal Court since 2014, working for the OTP, principally as Senior Appeals Counsel and Head of the Appeals Section, since 2004. Prior to that, he worked as Appeals Counsel in the OTP of the ICTY. In addition, he was a Visiting Fellow at the London School of Economics, Adjunct Professor at the University of Buenos Aires and an external professor at the Di Tella University in Buenos Aires. He holds a law degree from the University of Buenos Aires and a PhD from the University of Münster. Fabricio has published extensively on international criminal law, comparative criminal law and human rights law. Ben Batros served as Appeals Counsel in the Office of the Prosecutor of the International Criminal Court from 2005 to 2010. Prior to this, he worked for the Australian Attorney-General’s Department from 2001 to 2004, including on Australia’s ratification of the Rome Statute, legislation to implement the Statute domestically, and obligations as a State Party. Since leaving the Court, Ben has worked with the Open Society Justice Initiative as Legal Officer and Acting Director of Programs, and is now a consultant on international law and accountability. Ben holds a BA and LLB (Hons) from the University of Western Australia and an LLM from the University of Cambridge. Reinhold Gallmetzer is an Appeals Counsel at the Office of the Prosecutor of the International Criminal Court. His previous positions include Associate Legal Officer, Chambers, ICC; Associate Legal Officer, Chambers, ICTY; Judicial Training Officer, Kosovo Judicial Institute, OSCE; and Legal Consultant to the authorities in South Sudan and to the Criminal Defence Section of the State Court in Bosnia and Herzegovina. Reinhold is the founder of the Center for Climate Crime Analysis, a non-profit organisation of prosecutors and law enforcement professionals who trigger and support prosecutions of criminal activities xx

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that are associated with the emission of significant amounts of greenhouse gases. He holds a law degree from the University of Innsbruck and Padova, and an honours degree from Glasgow University. Dr George Mugwanya is an Appeals Counsel at the Office of the Prosecutor, International Criminal Court. Previously, he practised law in several capacities at the trial and appellate levels at the UN International Criminal Tribunal for Rwanda. Formerly a Senior Lecturer at Makerere University, Uganda, he holds a Doctor of Juridical Sciences (summa cum laude) (Notre Dame Law School, Indiana, United States). He has authored extensively, including The Crime of Genocide in International Law (2008), Human Rights in Africa (2003), and over two dozen book chapters and articles in refereed journals around the world.

FOREWORD

As we celebrate the fifteenth anniversary of the establishment of the International Criminal Court (“ICC” or “the Court”), the Office of the Prosecutor is pleased to publish The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence, a compilation of legal developments arising from the Appeals Chamber of the Court, prepared with the insight of my learned and indefatigable colleagues from the Prosecution Division, namely its Appeals Section. This tool has been conceived with a view to taking stock of the important contributions the ICC has made to date to the evolution of international criminal law, as well as to serve as a guide to my Office and other interested end-users in advancing international criminal justice through the force of the law and overcoming the complex legal and operational challenges facing us. Mandated to be the first permanent court for trying atrocity crimes, the ICC plays an integral role in shaping the development of international criminal law. Indeed, the last fifteen years have witnessed significant legal developments in a number of areas. As the ICC breaks new ground, appellate decisions help to delineate the contours of the emerging jurisprudence under the distinct regime established by the Rome Statute, solidify key legal concepts and inform the way future cases should proceed. The Appeals Chamber has elaborated, in greater detail, on the ICC’s approach towards a wide range of issues. In entrenching the general principles of interpreting the Rome Statute and other seminal legal documents of the Court, the Chamber has provided guidance on the applicability of secondary sources of law, specifically, the supplementary role of the travaux préparatoires and the precedential value of decisions from other international criminal tribunals. In addition, it has shed light on the proper exercise of judicial functions and the role of the Registrar, which not only assists global justice partners in understanding the ICC’s mechanisms and legal processes, but also strengthens inter-organ cooperation by providing the requisite certainty and clarity respecting each organ’s functions and independence. xxiii

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Victims’ participation, a feature unique to the ICC in the international criminal law arena, was also the subject of extensive reflection and legal pondering by the Appeals Chamber, as for the first time in the history of international criminal law, individuals who have suffered from the commission of crimes within the jurisdiction of the Court are afforded the right to participate in proceedings through legal representation. Yet the procedural modalities and practical complexities of such participation raise important questions for both the efficiency of the judicial proceedings and the rights of suspects and accused persons, requiring the right balancing act. A series of important appellate decisions have hence helped to determine the scope of this right and the manner in which it could be exercised at pre-trial and trial stages, a crucial step forward in recognising the victims’ rights and experiences, and increasing their faith in the international criminal justice system. Importantly for the Office, appellate decisions further outlined the Prosecutor’s authority in the realm of investigations as well as the nature and scope of prosecutorial discretion. Additionally, various procedural and evidentiary issues, central to the Office’s work, were given judicial clarity. For instance, the nature, grounds, standard and procedure of appellate review were among the first issues on which the Appeals Chamber was asked to deliberate. The Appeals Chamber also solidified rules relating to, inter alia, admissibility, disclosure and confidentiality. The standards, thresholds and tests established by the generated jurisprudence have proved to be useful guidelines for the Office, including colleagues in the field, who look to them to carry out their daily work objectively and impartially. In this regard, the appellate jurisprudence is an invaluable reference for the Office to use to strengthen its institutional capacity to conduct effective preliminary examinations, investigations and prosecutions. The Office will continue to incorporate and be guided by this jurisprudence, including, where applicable, in Office policies, strategies and best practices, as part of our effort to achieve greater efficiency and transparency. Most notably, the recent Ntaganda decision unanimously affirmed the ICC’s jurisdiction over war crimes of rape and sexual slavery committed by members of an armed group against other members of the same armed group, a landmark development in international humanitarian and criminal law. In so doing, the Appeals Chamber reinforced the normative framework of the Rome Statute for the accountability of sexual and gender-based crimes and made a significant contribution to the protection of vulnerable persons in armed conflict. The Ntaganda decision is particularly encouraging for this Office as we have elevated the

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prosecution of sexual and gender-based crimes and crimes against and affecting children, and their prevention, as chief priorities. The comprehensive policies we have adopted in these areas are a testament to our resolve to address these heinous crimes through the vector of the law. The efficient and fair prosecution of crimes under the Rome Statute is facilitated on the strength of a clearly established legal framework. Legal developments at the appellate level, by adding to and strengthening the emerging body of jurisprudence, thus represent significant steps forward towards the aim of closing the impunity gap. Here, I also want to acknowledge the commendable contributions of the Office towards settling the law through its many well-reflected submissions before the Court’s Chambers. In accordance with the principle of complementarity, the Office will continue to encourage and support national efforts to hold persons accountable for atrocity crimes. I trust that this Digest will not only aid national jurisdictions and other actors in developing national legislation and best practices that address genocide, war crimes and crimes against humanity, but also add to academic discussions and promote meaningful cooperation with States, international and local organisations, and relevant entities. This Digest is a compilation of the ICC’s appellate jurisprudence – it is by no means the final word. As the ICC continues to clarify existing jurisprudence and adjudicate on novel issues in international criminal law, the Digest will be updated accordingly. I wish to express my earnest gratitude to my colleagues who have contributed to its development in one form or another. Without their expertise, dedication and hard work the Digest would not have been possible. It is my hope that this Digest will serve as a useful reference guide for all committed to the fight against impunity for the world’s most heinous crimes, and will provide a solid foundation upon which the ICC will build in the years ahead to advance its important mandate. It is an important and timely contribution, which through the depth and thoroughly reflected quality of its content offers real value. This impressive work will leave neither the academic nor the practitioner indifferent to its considerable insights. Dr Fatou Bensouda Prosecutor of the International Criminal Court

FOREWORD

The Appeals Chamber of the International Criminal Court: Commentary and Digest of Jurisprudence is a gift to the practitioners, scholars, judges and others who require an understanding of the appellate decisions and judgments of the Court. Its authors, themselves experienced practitionerscholars of international criminal law, have designed the Digest to serve as a reference tool summarising decisions on issues, respecting which the Appeals Chamber has authoritatively spoken. They have also identified key passages in those decisions. As the Appeals Chamber interprets the provisions of the Rome Statute, it breathes life into its text. It clarifies and develops the law on the Court’s operations, powers and responsibilities, even while doing justice in the individual case. Thus, a digest of the Court’s appellate jurisprudence is crucial to understanding the evolution of the Court’s practice and procedure, and how the law should apply in any particular situation. The experience of the Digest’s authors accords them a practitioner’s eye to utility and clarity. As seasoned appellate litigators, with experience before the ICC Appeals Chamber, they all know the true value of the reference tool they have created. Within a logical and progressive framework, elegant and thoughtful commentaries precede key extracts of decisions and judgments, providing a simple, user-friendly guide to the Court’s appellate jurisprudence. The Commentary appearing at the start of each chapter in the Digest presents a helpful overview and analysis of the legal issues discussed in the chapter, allowing the reader to gain a quick grasp of the legal concepts being treated and how the Appeals Chamber has interpreted and applied them. The reader is thus able to locate what is relevant for his or her research, and get on a fast track to the pertinent decisions and judgments. The extracts that follow the commentaries enhance the ability to identify decisions on point. The authors offer readers the sensible advice to consult the full decision or judgment before citing it, but the extracts xxvii

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they provide also whet one’s appetite to read the whole decision or judgment, to enhance one’s knowledge and feel for the law. Thus, the Digest, with its thoughtful analyses and helpful extracts, will equip practitioners, scholars, judges and all those many others who study the ICC and the development of international criminal law with a reference tool of inestimable value. It will deepen understanding, both scholarly and practical, of the Court’s appellate jurisprudence, enhancing the study of modern international criminal law. It should also reinforce our appreciation of the significance of the role the Court plays in delivering justice to victims of the crimes the ICC was created to address. James K. Stewart Deputy Prosecutor International Criminal Court

PREFACE

On 2 October 1995, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) Appeals Chamber issued a seminal decision in an interlocutory appeal challenging the jurisdiction of the Tribunal brought by its first defendant, Duško Tadić.1 The decision was revolutionary in many ways, including its assertion of the ICTY’s authority to scrutinise its own competence (KompetenzKompetenz), its definition of armed conflict (which became an “instant classic” and continues to guide international courts today), and its conclusions on the applicability of international customary law to situations of internal conflict. The ruling also triggered an era of international appellate practice and case law – the first of its kind, since appellate review was virtually non-existent in both the Nüremberg and Tokyo tribunals. Almost eleven years later, the ICC Appeals Chamber issued its first ruling. It was a much more modest decision, focused on a single question, namely, whether a Pre-Trial Chamber had erred in concluding that a case against a military commander from the Democratic Republic of the Congo was not grave enough to be admissible before the ICC, because the commander was not, in that Chamber’s view, one of the “most senior leaders” in the region.2 A number of distinctive features of the Appeals Chamber’s case law, as it emerged during the ICC’s first decade, are already present in this decision: in a concise document (25 pages), the Appeals Chamber carefully examined the issues before it, adopted a surgical approach to the remedial action required, and refused to go beyond the strict limits of its jurisdiction when analysing the appropriate

1

2

Prosecutor v. Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995. Situation in the DRC, Judgment on the Prosecutor’s appeal against the decision of PreTrial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, ICC-01/04-169, 13 July 2006.

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relief in the circumstances.3 This “cautious exercise of the Appeals Chamber’s powers”, as one veteran legal adviser to the Appeals Chamber describes it,4 or judicial restraint in the discharge of appellate functions,5 has been a trademark of the Appeals Chamber’s practice and case law to date. The contrast between these appellate bodies may be explained by multiple factors, starting with the obvious fact that the ICTY was the first international criminal tribunal since Nüremberg and Tokyo, and at the time of its inception, international criminal law was effectively terra incognita. In such a context, the ICTY Appeals Chamber may have properly concluded that, in addition to deciding on the legal and factual issues brought before it, it also had to perform an educational function and provide extensive guidance on the law, leading to an “almost textbook-like approach”6 in its early judgments.7 The ICC Appeals Chamber started its operations in very different circumstances: it had received from States Parties a lengthy and detailed Statute, supplemented by the Elements of Crimes and the Rules of Procedure and Evidence, and by the time it commenced its work, it had the benefit of more than ten years of ICTY and International Criminal Tribunal for Rwanda (“ICTR”) practice and jurisprudence, which continued to evolve and grow. In addition, the ICC Appeals Chamber seems to have preferred a “bottom-up”, as opposed to “top-down”, approach for the development of ICC practice and law, favouring a gradual process8 and confining its role to solving those specific matters which were squarely before it.

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The Appeals Chamber reversed the impugned decision for legal error, but refused to (a) identify the correct legal principle in the interpretation of article 17(1) of the Statute, and (b) determine that the case against Ntaganda was admissible (see ibid., paras. 86 et seq.). Judge Pikis dissented. Nehrlich, V., “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 978. Batros, B., “The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC”, Leiden Journal of International Law, Vol. 23, Issue 2 (2010), p. 343. Expression taken from Nehrlich, V., “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 979. The fact that the first president of the ICTY (and its Appeals Chamber) was a renowned academic, Antonio Cassese, may have also played a role. Nehrlich refers to the Appeals Chamber giving “room for growth and for a step-by-step development of the law”, in “The Role of the Appeals Chamber”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 980.

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Considering this cautious approach, and also the fact that for a significant part of its initial phase the Appeals Chamber had to deal primarily with interlocutory appeals emanating from a few cases, it should not be surprising that it took eleven years for the Chamber to issue a decision capable of producing a transformative effect in international law comparable to that of the ICTY Tadić appeal ruling on jurisdiction – and, curiously, also in the context of an appeal on jurisdiction. The decision, providing new protections to members of armed forces against certain international humanitarian law (IHL) violations, such as the crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (2)(e)(vi) of the Statute, was nonetheless written in the Appeals Chamber’s customary concise and economical style, without delving into considerations that were not strictly necessary for the thema decidendi.9 But the fact that the ICC Appeals Chamber may have been more conservative in its judicial approach than its ICTY or ICTR sisters does not mean that the Chamber has performed a lesser role in developing the Court’s practice to date. On the contrary, and as highlighted by Fatou Bensouda in her foreword, the Appeals Chamber, through an exercise of patient craftsmanship, has made critical contributions to shaping the Court’s case law and practice during its first fifteen years; providing clarity vis-à-vis obscure areas of the Statute and the Rules; delimiting the division of functions between different organs of the Court; and correcting practices from first instance Chambers that it considered incompatible with a proper and faithful reading of the Statute. In this sense, the Appeals Chamber provided essential guidance on matters as diverse and important as the proper ambit of jurisdictional challenges under the Statute, the test for admissibility of a case under article 17, the breadth and scope of victims’ participatory rights under article 68(3), the nature of the confirmation of charges process, the proper limits of a Trial Chamber’s authority to amend the legal characterisation of the charges, and the compatibility of the theory of indirect 9

I refer to the appeal brought by Ntaganda against a decision on jurisdiction, claiming that the Trial Chamber had erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the Geneva Conventions. See Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017. The decision is commented on in the commentary of Chapter N, Substantive Law, below.

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perpetration within article 25 of the Statute, to name only a few. It did this while embracing a narrow, corrective reading of its own jurisdiction, declining to follow a de novo review model.10 Obviously, the Appeals Chamber case law has focused initially on procedural matters arising from pre-confirmation, confirmation and trial procedures, as well as threshold issues of jurisdiction and admissibility, and not so much on matters of substantive law. This trend, however, is likely to change as the Court’s procedural regime becomes more settled (not only through case law, but also through the issuance of judicial manuals),11 and the number of final appeals grows. The Appeals Chamber has been somewhat less active in developing its own practice and procedures, in particular in relation to final appeals. To date, there remains a certain level of uncertainty as to how final appeals are managed, starting with the holding of hearings – which the Appeals Chamber in its first composition did not seem particularly enthusiastic about – but also in more routine matters such as scheduling, the monitoring of disclosure on appeal, the use of email communications in lieu of filings, and the holding of status conferences – all areas where the Appeals Chamber’s practice is arguably less developed than that of the Pre-Trial and Trial Chambers of the ICC. Recent amendments to the Regulations of the Court, introducing a new regime for appeals on detention or release,12 indicate a more enthusiastic approach to oral hearings and a more decisive approach to case management functions. It will be interesting to see whether this incipient trend is continued and developed by the next Appeals Chamber.13

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The discussion on the scope of appellate review is discussed below in Chapter O on Conduct of Appeals. See also Klamberg, M., “Article 81: Appeal Against Decision of Acquittal or Conviction or Against Sentence”, in Klamberg (ed.), Commentary on the Law of the International Criminal Court (Torkel Opsahl Academic EPublisher: Brussels, 2017), p. 606, fn. 652. In September 2015, the ICC judges delivered the Pre-Trial Practice Manual, which was later replaced by the more general Chambers Practice Manual in February 2016 and updated in May 2017, available at: www.icc-cpi.int/legalAidConsultations?name=pr1302, last accessed 15 October 2017. See regulation 64 of the RoC amended 12 July 2017. See also International Criminal Court, “ICC Judges amend the Regulations of the Court”, ICC-CPI-20170720-PR1326, available at: www.icc-cpi.int/legalAidConsultations?name=pr1326, last accessed 15 October 2017. In March 2018, three Judges of the Appeals Division finish their mandate. See International Criminal Court, “Who’s Who”, available at: www.icc-cpi.int/about/judi cial-divisions/biographies/Pages/default.aspx#, last accessed 15 October 2017.

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All issues highlighted above, as well as quite a few others, are discussed and illustrated in the following chapters of this book, which documents the work of the Appeals Chamber during the ICC’s first fifteen years of practical existence and seeks to offer a comprehensive description of the issues with which the Chamber had to grapple, and how the Appeals Chamber has contributed to the development and clarification of ICC law. Its genesis was an internal digest that we put in place in the Appeals Section of the Office of the Prosecutor (“OTP”) when we could no longer remember all the decisions of the Appeals Chamber by heart and realised that we needed a more structured system. One day a legal representative of a group of victims, with whom we had shared a few summarised decisions out of courtesy, asked whether there was any manner in which we could make the digest available to a wider audience, starting with those practising before the ICC. That day, the project of putting together this book was born. It would take many years and a lot of effort, however, for that idea to bear fruit. We are indebted to Cambridge University Press, in particular to Finola O’Sullivan, for their support for this project from its very inception and their incredible patience throughout the long and tortuous process of its completion. The book is dedicated to the memory of Judge Håkan Friman, barrister John R. W. D. Jones and OTP trial lawyer Lorenzo Pugliatti, bright and committed international lawyers who left us too soon. Apart from being dear friends and colleagues of the authors of this book, as well as of many other international criminal law scholars and practitioners, all three were passionate believers in international criminal justice, to which they made outstanding contributions. Each of them embodied the qualities of professionalism, integrity and collegiality. But there is another, perhaps deeper, aspect of these lawyers’ lives and achievements: as one of the authors of this book put it, they epitomised the fact that it takes many people working together and in good faith – judges, prosecution and defence, senior and junior – to make international criminal justice work. This book is for them, and for all who wish to embrace their message. Fabricio Guariglia

A Interpretation and Structural Issues

Commentary

fabricio guariglia I Applicable Law, Interpretation of the Statute and Other Governing Texts The Appeals Chamber has had the opportunity to provide guidance on a series of fundamental questions, including the interpretation and application of the law, the requirements of a judicial decision, the binding nature of court orders, and the authority of the Prosecution in the realm of investigations. While these decisions should be seen as the Chamber’s first steps in the process of establishing the fundamentals of the Court’s effective functioning, their importance is considerable and they have already produced a significant impact in the Court’s practice.

a General Principles of Interpretation The Appeals Chamber has clarified that the interpretation of the Statute, like any other treaty, is governed by the Vienna Convention on the Law of Treaties (“VCLT”),1 and in particular, articles 31 and 32.2 Interestingly, the Appeals Chamber has also affirmed the applicability of the principles of interpretation under the VCLT to the Rules, without providing any reasons for extending its application.3 In an earlier 1

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Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. See, inter alia, Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 55.

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Dissenting Opinion, Judge Pikis reasoned that the interpretation of the Rules was governed by the principles of interpretation derived from the VCLT, since the Rules supplement the Statute and are the product of an agreement between the States Parties to that particular treaty.4 The Statute must first 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” as per article 31(1) of the VCLT.5 By affirming the applicability of article 31, the Appeals Chamber has implicitly continued the jurisprudential path of the ICTY.6 In Katanga & Ngudjolo, the “object and purpose” of the Statute was held to encompass the aim “to put an end to impunity” and to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished”, quoting verbatim from the Statute’s preambular language.7 The important consequences of this finding were reaffirmed when the Appeals Chamber upheld the legality of the enactment of regulation 55 of the Regulations of the Court (RoC) by the plenary of ICC judges.8 Regulation 55 of the RoC empowers Trial Chambers of the Court to adopt a legal characterisation of the facts charged different to that chosen by the Prosecution in its judgment, under specific conditions. In Lubanga, the Appeals Chamber noted the detrimental consequences of the interpretation put forward by the Defence: if this provision was ultra vires the Statute, and consequently null and void, a Trial Chamber would be forced to acquit if it concluded that based on the evidence presented at trial, the legal qualification confirmed in the pre-trial phase turned out to be incorrect, and this would be detrimental to the Statute’s objective of putting an end to impunity.9 4

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Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/0401/07-521 OA5, 27 May 2008, para. 16. Diss. Op. For a discussion on the use of the principle in international law, see Shaw, M., International Law, 5th edn (Cambridge University Press: Cambridge, 2003), p. 838. See, inter alia, Prosecutor v. Tadić, IT-94-1-T, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, para. 18; Prosecutor v. Delalić et al., IT-96-21-T, Judgment, 16 November 1998, para. 1161: it is “well settled that an interpretation of the articles of the Statute and the provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 79. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009. Ibid., para. 77.

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However, ending impunity is not the only value covered by the object of the Statute. In an earlier ruling, the Appeals Chamber considered that the Statute also sought to guarantee “the assurance of the efficacy of the criminal process, and promotes its purpose that proceedings should be held expeditiously. Proceedings should be held without delay, a course consistent with the rights of the accused.”10 While the rules of interpretation under article 31 of the VCLT remain the starting point for interpreting the Statute11 (the role of article 32 of the VCLT will be addressed in greater detail below under subsection (c), Role of the travaux préparatoires), when there is variation between the texts of the Statute, article 33 of the VCLT will apply.12 The Appeals Chamber has concluded that while there is a presumption that every text shares the same meaning, if an attempt to find a common meaning fails, the supplementary means of interpretation under article 32 must then be utilised.13 If such recourse fails, then “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty” should be considered.14

b Applicable Law in Order of Applicability The applicable law is set out in its order of application by article 21(1)(a)– (c). When a matter is exhaustively dealt with by the text of the Statute or that of the Rules (article 21(1)(a)), “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” (articles 21(1)(b) and 21(1)(c)).15 Under this strict reading of the Statute, the Appeals Chamber rejected the possibility of using the “general principles of law derived [. . .] from national laws of legal systems of the world [. . .]” contemplated in article 21(1)(c) in order to trigger the Chamber’s jurisdiction to review a decision from a lower Chamber rejecting an application for leave to appeal.16 In that ruling, the Prosecution argued that there was a lacuna in the Statute pertaining to the ability of the Appeals Chamber to examine 10

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Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/0401/07-573 OA6, 9 June 2008, para. 8. Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 56. Ibid., para. 57. 13 Ibid., para. 57. 14 Ibid., para. 57. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 34; referring to Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, paras. 22–24, 33–42. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006.

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a first instance Chamber’s decision denying a party the possibility to bring a matter before the Appeals Chamber.17 The Appeals Chamber rejected the application in its totality; first, the Chamber considered that the Prosecution had failed to establish the existence of the general principle of law advanced, since the Prosecution could not show that there was a uniform and universally accepted standard applicable to the review of decisions by lower courts denying access to an appellate court.18 Second, the Appeals Chamber considered that the plain terms of the Statute and the Rules did not vest the Appeals Chamber with any authority to review decisions from lower Chambers denying leave to appeal. Accordingly, there was no such lacuna as invoked by the Prosecution; rather, the system was a deliberate choice of the legislator.19 Two salient aspects of this decision can be identified: first, it is curious that the Appeals Chamber decided to discuss the applicability of the third source of law under article 21(1) first, and then analyse whether there was in fact any gap or lacuna in the Statute and the Rules that had to be filled through resort to the general principles of law.20 However, subsequent jurisprudence from the Appeals Chamber has clarified the subsidiary nature of the general principles of national laws under the Statute.21 The second aspect relates to what appears to 17

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The Prosecution offered examples from fourteen national legal systems from the Civil Law tradition, five from the Common Law and three from jurisdictions applying Islamic law; see Situation in the DRC, Prosecutor’s Application for Extraordinary Review of PreTrial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-141, 24 April 2006, paras. 22–29. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 32: “[i]t emerges from the above that nothing in the nature of a general principle of law exists or is universally adopted entailing the review of decisions of hierarchically subordinate courts disallowing or not permitting an appeal”. Ibid., para. 35. One commentator considers that the Appeals Chamber’s discussion of the Prosecution’s arguments on the applicability of article 21(1)(c), and the ensuing findings, was unnecessary, since “declaring that no remedy lies unless conferred by statute would have been a sufficient explanation for dismissing the Prosecution’s submission”. See Raimondo, F., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff: Leiden/Boston, 2008), p. 155. In a decision issued only a few months later, the Appeals Chamber was categorical: when a matter is exhaustively dealt with by the text of the Statute or that of the Rules, then “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”: Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 34. This approach is consistent with the traditional conception of the general principles of international law, whereby the expression of a source of law functions as a tool to close

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be a restrictive approach to the concept of general principles of national laws. The Appeals Chamber’s ruling would appear to require the existence of a uniform rule in the main legal systems of the world, hence placing a heavy burden on the party seeking to demonstrate the existence of the principle.22 However, when a Chamber is satisfied that the absence of a specific procedural device is not the product of a lacuna but of a legislative choice, it may still import that device into the context of the Statute if interpreting the law in a manner consistent with internationally recognised human rights would require.23 This is precisely what the Appeals Chamber did in Lubanga in relation to the extra-statutory remedy of stay of proceedings due to an abuse of process: after concluding that “the Statute does not provide for stay of proceedings for abuse of process as such”,24 the Appeals Chamber examined the relevance of article 21(3) for the exercise of jurisdiction by the Court, and noted that, under the provision, such exercise of jurisdiction must be “in accordance with internationally recognized human rights norms”.25 It further stated that human rights “underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court”.26 As a result, where a 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.”27

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gaps and prevent a situation of non liquet. See Shaw, M., International Law, 5th edn (Cambridge University Press: Cambridge, 2003), p. 93. This aspect of the decision has also been criticised as being overly restrictive. See Raimondo, F., General Principles of Law in the Decisions of International Criminal Courts and Tribunals (Martinus Nijhoff: Leiden, 2008), p. 155. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 38. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 35. Ibid., para. 36. Ibid., para. 37. This is a much-quoted finding from the Appeals Chamber. See, for instance, Sluiter, G., “Human Rights Protection in the ICC Pre-trial Phase”, in Stahn and Sluiter (eds.), The Emerging Practice of the International Criminal Court (Martinus Nijhoff: Leiden/Boston, 2009), p. 464, and El Zeidy, M. M., The Principle of Complementarity in the International Criminal Law: Origin, Development, and Practice (Martinus Nijhoff: Leiden/Boston, 2008), p. 169. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 37.

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On this basis, the Appeals Chamber, in what has been characterised as a “rather dramatic consequence of article 21(3)”,28 effectively incorporated into the panoply of procedural tools at the disposal of the ICC judges the possibility of staying proceedings if they consider that an abuse of the Court’s process has taken place.

c Role of the Travaux Préparatoires In applying article 32 of the VCLT, the Appeals Chamber has stated that the travaux préparatoires constitute the “supplementary means of interpretation designed to provide a) confirmation of the meaning of a statutory provision resulting from the application of article 31 of the [VCLT] and b) the clarification of ambiguous or obscure provisions and c) the avoidance of manifestly absurd or unreasonable results”.29 The practical importance of the travaux préparatoires is reflected in an Appeals Chamber’s judgment concerning the standard to be applied in order to determine the level of language proficiency of an accused for the purposes of article 67(1)(a) and (f).30 In reversing the Pre-Trial Chamber’s determination that the Accused’s knowledge of French was sufficient for the purposes of following the proceedings, the Appeals Chamber noted that the former Chamber had erred as it “did not comprehensively consider the importance of the fact that the word ‘fully’ is included in the text and the article’s full legislative history”.31 “The fact that this standard is high”, the Appeals Chamber continued, “is confirmed and further clarified by the preparatory work of the Statute, to which the Appeals Chamber turns under article 32 of the Vienna Convention on the Law of Treaties.”32 The Appeals Chamber then embarked on a detailed analysis of the different texts discussed during the negotiations of the Statute, and, basing itself, inter alia, on a footnote attached to the draft version of article 67(1)(a), concluded that the Statute had effectively adopted a high standard, “higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR. To give effect to this higher standard must mean that an accused’s request for interpretation into a language other than the Court’s 28

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Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), p. 399. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 40. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/0401/07-522 OA3, 27 May 2008. Ibid., para. 37. 32 Ibid., para. 50.

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language must be granted as long as he or she is not abusing his or her rights under article 67 of the Statute.”33

d Role of the Jurisprudence of Other International Criminal Tribunals The approach to the jurisprudence of other international criminal tribunals is less straightforward, and will probably be the object of further developments. In an early decision, the Appeals Chamber approached the precedential value of decisions stemming from other international criminal tribunals with caution, stating that “the International Criminal Court is not in the same position [as the ICTY and ICTR] in that it is beginning, rather than ending, its activities. In addition, being a permanent institution, it may face a variety of different and unpredictable situations.”34 However, this statement must be read in light of the facts of that particular case, where a PreTrial Chamber had ex officio determined that a case against a Congolese military commander was inadmissible under article 17 of the Statute due to an alleged lack of sufficient seniority of the Accused, basing its decision on a resolution by the United Nations Security Council calling on each Tribunal to, within the framework of the so-called “completion strategy”, ensure that any new indictments concentrated “on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal”,35 which, in turn, led to an amendment of the ICTY Rules of Procedure and Evidence.36 In reversing the decision appealed, the Appeals Chamber considered that this reliance had been misplaced and that it was inappropriate to import a standard developed primarily for the purposes of ensuring the timely completion of the work of a different institution into the context of the ICC.37 33 34

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Ibid., para. 62. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169, 13 July 2006, para. 80. United Nations Security Council Resolution 1534, S/RES/1534 (2004), para. 5. See added language to rule 28 (Reviewing and Duty Judges), ICTY, Rules of Procedure and Evidence of the ICTY (as amended 6 April 2004), in force 14 March 1994, IT/32/ Rev. 30. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169, 13 July 2006, para. 80. The Chamber also noted that prior to the UNSC Resolution and the ensuing amendment to the Rules of Procedure and Evidence of the ICTY, the ICTY had conducted proceedings “against individuals of various ranks over a number of years without being restricted to the most senior leaders”: ibid.

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However, in a different appeal involving the scope of the regime created by the Rules for the Defence’s inspection of material in possession or control of the Prosecution, the Appeals Chamber itself resorted to the case law of the ICTY. According to the Chamber, “[g]iven that the wording of rule 77 of the Rules of Procedure and Evidence is based on the wording of rule 66(B) of the Rules of Procedure and Evidence of the ICTY, it is useful to consider the relevant jurisprudence of the ICTY and the ICTR on the corresponding provisions in the ICTY and ICTR Rules of Procedure and Evidence”.38 A review of two decisions on point from both ad hoc tribunals confirmed the Appeals Chamber’s conclusion that the ICC Trial Chamber had adopted an overly restrictive interpretation of rule 77.39 On the basis of these decisions a trend can be identified whereby the jurisprudence from other international criminal tribunals (chiefly the ICTY and the ICTR) is neither rejected nor accepted wholesale as an auxiliary means of interpretation. Notably, when rejecting the importation of ICTY standards into the Court’s legal context, the Appeals Chamber did so on the basis of clear and identifiable differences between both institutions, including their situation and their legal framework, which in the Chamber’s view rendered such importation inadequate, and not on the basis of a generic rejection of those standards or a blanket assertion that the institutions were “different”. Conversely, the Appeals Chamber had no difficulties in examining, and relying on ICTY and ICTR case law where it concluded that, in the light of the connections between the ICC legal provisions under analysis and certain ICTY and ICTR equivalents, such case law could be helpful for a proper determination of the issues. It will be interesting to follow further developments in this field, especially when the Appeals Chamber is faced with substantive legal issues concerning the elements of international crimes and modes of liability, and to see what weight, if any, the Chamber will give to the extensive existing jurisprudence on these topics. For instance, will the ICC Appeals Chamber endorse the “overall control” test developed by its ICTY counterpart in Tadić for the purposes of determining whether 38

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Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 78. Ibid.; see also paras. 77 and 79–82. See also the commentary in Chapter O, Conduct of Appeals, (VII) Additional Evidence on Appeal (Regulation 62), below, where the Appeals Chamber has also sought guidance from the case law of the ad hoc tribunals which also resulted in a restrictive standard in that context.

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a national armed conflict has become internationalised,40 thereby fostering the stability of international criminal law? Or will it decide, if it considers the Tadić test not to be suitable for the particular context of the ICC, to develop its own test or, going full circle, return to the ICJ’s “effective control” test in Nicaragua?41 Whereas, on the one hand, it is to be expected that the Appeals Chamber, and the Court as a whole, will take into account the risk of “fragmentation” of international criminal law posed by a drastic departure from existing, pre-ICC case law, on the other hand, it must be noted that with time the Court will constitute the main source of international criminal jurisprudence, a factor which, to the extent that the Court is capable of developing a coherent body of jurisprudence, could be seen to compensate any initial instability stemming from such departure.

e Scope and Interpretation of the Regulations of the Court Under article 52, ICC judges are vested with a limited legislative authority, and are mandated to “adopt, by absolute majority, the Regulations of the Court necessary for its routine functioning”. Regulations are subsidiary provisions that are intended to address matters related to the Court’s daily business, and as such are distinguishable from the more substantive Rules.42 However, the first set of RoC adopted by the ICC judges in plenary session included a number of provisions that could be characterised as substantive in nature. A particular example is regulation 40

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As expressly done by the Trial Chamber delivering the Court’s first trial judgment in the Lubanga case: see Prosecutor v. Lubanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012, para. 541. This issue was not addressed by the Appeals Chamber when the case went to appeal: see Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014. Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 14, paras. 75–125. See Behrens, H. and Staker, C., “Article 52: Regulations of the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), pp. 1053–1056; on the limited legislative functions of the ICC judges under the Statute, see Guariglia, F., “The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press: Oxford, 2002), pp. 1115–1123; see also Broomhall, B., “Article 51: Rules of Procedure and Evidence”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1049.

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55 of the RoC, a provision enabling Trial Chambers to depart from the legal characterisation of the conduct charged chosen by the Prosecution, albeit under certain conditions. In Lubanga, the majority of Trial Chamber I entered a controversial decision, concluding that regulation 55 of the RoC contained two distinct procedures, one applicable at the deliberations and delivery of the judgment stage (para. (1) of the provision) and another one applicable during trial (para. (2)). The “facts and circumstances described in the charges”, within the terms of article 74(2), would limit the first procedure, but not the second one. Consequently, in the second procedure, the Chamber would be allowed to modify the nomen iuris “based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial”.43 On appeal, the Defence raised fundamental objections to the very existence of the provision, arguing, inter alia, that the enactment of the regulation was in contravention of article 52, which only vests the ICC judges with the authority to adopt regulations which are necessary “for the routine functioning of the Court”.44 The Defence also considered that the provision failed to find any support in any general principle of international law and was inconsistent with the case law emanating from the ICTY. The Appeals Chamber was thus faced with a constitutional question: had the ICC judges gone beyond the proper scope of their legislative functions under article 52 when enacting regulation 55 of the RoC? Notably, this was the first time that the Appeals Chamber was asked to 43

44

Prosecutor v. Lubanga, Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court, ICC-01/04-01/06-2049, 14 July 2009, para. 27; Prosecutor v. Lubanga, Decision on the Prosecution and the Defence Applications for Leave to Appeal the “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/062107, 3 September 2009, para. 41. Judge Fulford, dissenting, considered that the provision “created an indivisible or singular process”. He further concluded that “a modification to the legal characterisation of the facts under Regulation 55 must not constitute an amendment to the charges, an additional charge, a substitute charge or a withdrawal of a charge, because these are each governed by Article 61(9)” (Prosecutor v. Lubanga, Minority Opinion on the “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/06-2054, 17 July 2009, paras. 4 and 17). Article 52(1).

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act as a reviewer not only of the correctness of a decision entered by a first instance Chamber, but also of the conformity of a lesser norm – a regulation of the Court – with the provisions and principles enshrined in the Statute. The Appeals Chamber used the opportunity to reaffirm the hierarchical relationship between the Statute and the RoC.45 However, the Appeals Chamber rejected the proposition that the object of regulation 55 went beyond the “routine functioning” of the Court, within the terms of article 52(1). The Chamber acknowledged that the question of modification of the legal characterisation of the facts charged was an important question with significant consequences for the trial, but noted that “routine functioning” has a broad meaning and also concerned matters of practice and procedure.46 After recalling the negotiating history of the Rules, the Appeals Chamber concluded that the issue of whether Trial Chambers of the Court could modify the legal characterisation of the facts brought by the Prosecution could not be solved and was left for determination by the judges of the Court.47 Instead of determining the matter through case law, however, the judges preferred to resort to the RoC; an avenue with significant advantages in terms of certainty and consistency.48 Finally, the Chamber also dismissed the remaining complaints by the Defence, stating that there was no requirement that the RoC ought to be limited to the codification of general principles of international law, or should reflect the approach adopted by the ICTY.49 The following conclusions can be drawn from this particular litigation: first, the Appeals Chamber did not shy away from a constitutional debate and further made clear that it will intervene if it perceives a conflict between a Regulation of the Court (the lesser norm) or its interpretation by a Chamber and a statutory provision (the higher norm). However, the Appeals Chamber also embraced a broad interpretation of the term “routine functioning of the Court” for the purposes of defining the proper scope of article 52, allowing for the adoption of substantive provisions by the ICC judges through the exercise of their legislative powers. The Chamber further established a principle whereby the judges enjoy discretion to deal with those matters that have been left for determination by the Court through the development of case law or to do so via the RoC. Whereas the advantages in terms of consistency that 45

46

Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. Ibid., para. 69. 47 Ibid., para. 70. 48 Ibid., paras. 69–71. 49 Ibid., para. 80.

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the latter course of action entails, and which the Appeals Chamber highlights, are apparent, there are also questions that can be raised on the desirability of having important legal questions being decided solely by the judges in plenary session without any external input.50

II Exercise of Judicial Functions The emerging jurisprudence of the Appeals Chamber has also tackled issues pertaining to the proper exercise of judicial functions by all Chambers of the Court, including the same Appeals Chamber. For example, in relation to the latter, the existing jurisprudence to date indicates that the Appeals Chamber will stay within the boundaries of the issue or case it has to decide upon and will not venture into abstract matters or enter findings on issues that fall outside the thema decidendi.51 The Appeals Chamber has affirmed the duty of all Chambers of the Court to give a reasoned decision on the matters before them: “the right to a reasoned decision”, the Appeals Chamber holds, “is an element of the right to a fair trial and [. . .] only on the basis of a reasoned decision will proper appellate review be possible”.52 In its judgment asserting His duty, 50

51

52

While obviously a courtroom is not a place for public debate, at least the legal findings included in a judicial decision are the result of the open discussion between parties and participants in the proceedings, in contrast to the internal and closed discussions between judges in the plenary. The Advisory Committee on Legal Texts, created by the RoC, provides a forum for wider discussion, including representatives of the Office of the Prosecutor, the Registry and counsel, in addition to the three judges representing the three judicial divisions of the Court (see regulation 4 of the RoC). However, the Advisory Committee on Legal Texts can only present recommendations and proposals to the plenary, which enjoys wide discretion in its legislative functions (see regulation 4 of the RoC). On the difficulties posed by the attribution of substantive legislative functions to judges, see Guariglia, F., “The Rules of Procedure and Evidence of the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. II (Oxford University Press: Oxford, 2002), p. 1111. See Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/ 06-1433 OA11, 11 July 2008, para. 52, and Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 110 (declining to consider issues where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”). See the commentary to Chapter O, Conduct of Appeals, below, for more specific jurisprudence on the scope of the Appeals Chamber’s judicial authority in the context of appellate proceedings. See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/ 06-774 OA6, 14 December 2006, para. 30.

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the Appeals Chamber took note of the findings made by its ICTY equivalent on the subject, but also of the relevant case law from the European Court of Human Rights, emphasising the importance of a reasoned decision for the proper exercise of appellate rights.53 The confidential and/or ex parte nature of the proceedings does not reduce but actually increases the need for adequate reasoning, since an aggrieved party “cannot rely on the context in which said decision was made to determine how the respective Chamber reached its decision”.54 The importance of the principle has been reaffirmed in a subsequent ruling by the Appeals Chamber in the Bemba case: the Appeals Chamber, reversing a decision from Trial Chamber III to admit prima facie into evidence all items contained in the Prosecution’s list of evidence, has recalled its earlier finding that a Chamber must identify the basis of its decision, that is, “which facts it found to be relevant in coming to its conclusion”.55 Another relevant aspect of the Appeals Chamber’s emerging jurisprudence on the exercise of judicial functions concerns the binding nature of judicial orders. In the Lubanga case, the Appeals Chamber was faced with a situation of non-compliance by the Prosecution to an instruction from the Trial Chamber to disclose the identity of an intermediary used by the Prosecution during its investigations to the Defence. The Trial Chamber had previously determined that disclosure of the intermediary’s identity would endanger the intermediary and his family and that, accordingly, protective measures were required. The Prosecution resisted the order on the basis that even limited disclosure would pose intolerable risks for the intermediary, invoking the Prosecution’s autonomous protection duties under the Statute. Instead, of complying the Prosecution filed an application for leave to appeal and when the Trial Chamber ordered disclosure pending a determination on whether leave to appeal ought to be granted or not, sought reconsideration of the decision. When reconsideration was rejected, the Prosecution sought a variation of the time limit to disclose pending the implementation of interim protective measures. The Trial Chamber then ordered a stay of proceedings.56 53

54

55

56

See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20 Ibid., para. 22. See also Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA05 OA06, 3 May 2011, para. 59. Prosecutor v. Lubanga, “Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”, ICC-01/04-01/06-2517-Red, 8 July 2010,

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On appeal, the Prosecution disputed the argument that it had refused to comply with any order by the Trial Chamber. Instead, the Prosecution claimed that it had resorted to available procedural avenues in order to reconcile compliance with those orders with its own statutory duties of protection.57 The Appeals Chamber disagreed and in firm terms underscored the mandatory nature of compliance with judicial orders issued by a Chamber of the Court: “[o]rders of a Trial Chamber”, the Appeals Chamber began, “are binding orders, to be implemented unless and until they are suspended, reversed or amended by the Appeals Chamber or their legal effects are otherwise modified by an appropriate decision of a relevant Chamber”.58 In this sense, the Appeals Chamber emphasised that the binding nature of a judicial order may be vacated, varied or suspended only by another judicial ruling: “[t]he filing of a request by a party does not, in itself, suspend the effect of an order; only a judicial decision may alter the legal effects of a judicial order”.59 Finally, the Chamber clarified that the judges’ authority over the parties does not negate any duties of the Prosecution, but does mean “that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail”.60 This principle also applies when it comes to issues of protection.61

III Role of the Registrar and Relationship with Chambers a Authority of the Registrar The key decision from the Appeals Chamber in this area clarifies that the role of the Registrar “is confined to the non-judicial aspects of the administration and servicing of the Court”.62 Another decision establishes that the Registry “is a neutral organ of the Court which is not a party to the proceedings”.63 Despite this clear language, the Appeals Chamber had to address the possibility of the Registrar making

57

58 62

63

para. 31. For a recitation of the procedural background, see Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC01/04-01/06-2582 OA18, 8 October 2010, paras. 4–17. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, paras. 32–33. Ibid., para. 48. 59 Ibid., para. 49. 60 Ibid., para. 48. 61 Ibid., para. 50. Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7. Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 94.

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representations before Chambers of the Court, and could not do so in a unanimous decision. The idea of the Registrar making representations in cases before the Court had been the subject of controversy in the very early days of the Court’s existence. During the investigation of the Kony case, there was a lengthy discussion on the Registry’s role and its ability to communicate with Chambers of the Court.64 Subsequently, a new provision regulating the interaction of the Registrar with Chambers of the Court was included in the RoC, after discussions in the Advisory Committee on Legal Texts and the Plenary.65 The provision allows the Registrar to make oral or written submissions to a Chamber with notification to the participants “when necessary for the proper discharge of his or her functions” (subregulation 1). The filing of ex parte documents is provided for if knowledge by the participants of the content of the document would defeat its purpose, in which case the Chamber must determine whether notice of the existence of the filing is to be provided to the other participants (subregulation 2). The Appeals Chamber has also reaffirmed that a joint reading of articles 43(6) and 68(4) and regulation 24bis (i) of the RoC led to the conclusion that the Registrar could make submissions before the Appeals Chamber, at least in relation to protection matters that were sub judice before it.66 The Appeals Chamber adopted a broad approach to regulation 24bis of the RoC, admitting a document filed by the Registrar that arguably went beyond the strict ambit of the discharge of the Registrar’s functions, and delved into the merits of the factual and legal arguments advanced by the Prosecution in its appeal. The Appeals Chamber, however, rejected a subsequent effort by the Registrar to use regulation 24bis to effectively seek appellate review of a decision made by a Trial Chamber. The Registrar, at the time, argued that she was entitled under regulation 24bis to engage the Appeals Chamber and seek a reversal of a Trial Chamber ruling on legal assistance 64

65

66

Situation in Uganda, Decision on the Prosecutor’s Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission Filed by the Registry on 5 December 2005, ICC-02/ 04-01/05-147, 9 March 2006. Regulation 24bis of the Regulations of the Court entitled “Submissions by the Registrar” was adopted on 14 November 2007 and in force on 18 December 2007, ICC-BD/03-0106-Rev.1. Prosecutor v. Katanga & Ngdudjolo, Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675, 11 July 2008, para. 4.

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issues.67 The Appeals Chamber noted that the Registrar’s submissions were made without any connection to proceedings pending before the Appeals Chamber. Rather, they sought to initiate what were, in effect, new appellate proceedings before the Appeals Chamber that went beyond the scope of regulation 24bis (1) of the RoC.68 Further, even if regulation 24bis (1) could be construed to permit the filing of submissions by the Registrar unconnected to any proceedings before the Appeals Chamber, what the Registrar was effectively seeking was appellate review of a Trial Chamber decision outside the framework of articles 81 and 82.69

b Review of Decisions by the Registrar The Appeals Chamber has clarified that it lacks any jurisdiction to review decisions pertaining to the administration and servicing of the Court made by the Registrar except where the Statute, the Rules or the RoC specify such an authority. In relation to legal aid matters, review of decisions made by the Registrar pertaining to the scope of legal assistance is assigned to the Chamber dealing with the case under regulation 83(4) of the RoC. In contrast, decisions refusing the assignment of counsel (rule 21(3)) and refusing legal aid (regulation 85(3) of the RoC) are subject to review by the Presidency.70 IV Authority of the Prosecutor Regarding Investigations a Authority of the Prosecutor to Conduct Investigations The scope of the Prosecutor’s authority to conduct investigations was a thorny issue during the early stages of the Court’s existence. The questions discussed included how to balance the Prosecution’s investigative powers with the supervisory authority of the Pre-Trial 67

68

69

70

The Trial Chamber had reversed a decision from the Registrar reducing the legal assistance to be paid to the Accused, Thomas Lubanga Dyilo, upon the completion of trial proceedings, and had ordered that such legal assistance be maintained at the same level as it was prior to final submissions until the Trial Chamber issued its judgment. Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 12. Ibid., para. 14, emphasising that “[t]he Appeals Chamber has consistently held that its jurisdiction is clearly and exhaustively defined in the Statute and Rules of Procedure and Evidence and has equally consistently rejected any attempts to bring appeals outside of this defined scope of jurisdiction”. See Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7.

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Chamber and the extent to which the statutory right of victims to participate in the proceedings could allow them to become involved in the Prosecution’s investigation.71 In relation to the latter question, the Appeals Chamber not only clarified the interplay between Prosecution and victims at the investigative stage, but also provided clarity as to the nature of an investigation under the Statute and the role of the Prosecutor in it. According to the Appeals Chamber, “[m]anifestly, authority for the conduct of investigations vests in the Prosecutor. Acknowledgement by the Pre-Trial Chamber of a right of victims to participate in the investigation would necessarily contravene the Statute by reading into it a power outside its ambit and remit”.72 Further, “an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible”.73 However, this authority has clear limits. First, the investigatory activities of the Prosecutor must be directed towards the identification of evidence capable of being presented in court, with a view to establishing the truth. Second, they must cover any exonerating circumstances, as laid down in article 54(1)(a). This means that the Prosecutor is expected to become aware during his or her investigation of material that may be of assistance to the Defence, thereby allowing for a proper subsequent disclosure of exculpatory evidence under article 67(2) in the ensuing criminal case.74

b Prosecutor Enjoys Discretion under Article 53: Decision Not to Investigate Article 53(a) authorises the Pre-Trial Chamber to request that the Prosecutor reconsiders a decision not to open an investigation. In Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, the Prosecutor appealed such a decision. The Appeals Chamber confirmed that under article 82(1) (a), it only has the capability to hear appeals on decisions relating to 71

72

73 74

An account of the conflicts of views during the Court’s initial phase can be found in Schiff, B. N., Building the International Criminal Court (Cambridge University Press: Cambridge, 2008), pp. 122–127. Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 52. Ibid., para. 45. See, inter alia, Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 41, and Prosecutor v. Lubanga, Judgment on Appeal Against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 36.

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the admissibility of cases and not when the admissibility of potential cases is considered at the situation stage.75 While article 53(a) allows the Pre-Trial Chamber to request that the Prosecutor reconsiders a decision not to open an investigation, the Appeals Chamber found that after reconsideration, the decision to open an investigation was ultimately up to the Prosecutor.76 It concluded that the Pre-Trial Chamber’s decision was not properly characterised as a decision on the admissibility of a case.77

c Continuation of Investigations after the Commencement of the Confirmation Hearing In the Lubanga case the Appeals Chamber decided that it is not necessary “that the Prosecutor’s investigation [. . .] must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation”.78 This applies regardless of whether the investigation in the case refers to the investigation of the Accused with respect to the specific charges that the Prosecutor intends to bring in the upcoming confirmation hearing, or whether it extends to the investigation of the Accused’s potential criminal responsibility for other conduct not encompassed by the charges.79 The Appeals Chamber based its conclusion chiefly on the fact that article 61(9), which regulates the system of amendment of charges with leave of the Pre-Trial Chamber, does not make reference to the investigation.80 This shows that the Prosecutor’s flexibility with respect to the investigation acknowledged by article 61(4) remains unaffected by the confirmation of the charges. In addition, since the Prosecution’s duty to establish the truth under article 54(1)(a) is not explicitly limited to the period of time before the confirmation hearing, the Prosecutor must be allowed to continue his or her investigation beyond the confirmation hearing if this is necessary in order to establish the truth.81 75

76 78

79

Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/ 13-51 OA, 6 November 2015, paras. 41–51, 64. Ibid., paras. 59, 64. 77 Ibid., paras. 50–51, 64. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81 (2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. Ibid., para. 50. 80 Ibid., para. 51. 81 Ibid., paras. 52, 53.

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V Defence Counsel, Duty Counsel and Other Forms of Representation There are two aspects of the existing appellate jurisprudence in this area that are particularly significant: the first concerns the distinction between the different types of defence representation that may exist in the context of the ICC proceedings. The Appeals Chamber has provided some clarity in this area, and has explained that under the Court’s basic texts, distinctions should be made between defence counsel, stricto sensu, duty counsel and ad hoc counsel. Defence counsel are appointed under article 67(1)(d). This counsel “represents the individual entitled to legal assistance” and “acts for and as agent of the client”.82 There are also duty counsel under regulation 73(2) of the RoC, a mechanism created to “address the situation where a person has not yet secured legal assistance and yet wishes such aid for his/her defence”.83 Finally, there is another form of counsel, namely, ad hoc counsel appointed to represent the interests of the Defence, for instance, in a situation (a “unique investigative opportunity”) regulated by article 56. The mandate of this specific counsel is of a sui generis nature and must be understood differently from the mandate of counsel who has been appointed to represent suspects as individuals. In circumstances where the suspects are at large and counsel is appointed to represent their interests generally in proceedings, such counsel cannot speak on their behalf. A client and counsel relationship does not exist between them, and counsel does not act for or as agent of the suspects. Counsel’s mandate is limited to merely assuming the Defence’s perspective, with a view to safeguarding the interests of the suspects insofar as counsel can, in the circumstances, identify them.84

The second relevant aspect of the existing appellate jurisprudence concerns whether a conflict of interests exists in the case of a former Prosecution lawyer who joins the Defence in a case before the same international jurisdiction, and if the possibility of conflict exists, what is 82

83

84

Prosecutor v. Kony et al., Judgment on the Admissibility Appeal by Ad-Hoc Defence, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. Prosecutor v. Lubanga, Reasons for the Appeals Chamber’s Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 6. Prosecutor v. Kony et al., Judgment on the Admissibility Appeal by Ad-Hoc Defence, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. In this case, counsel had generally been appointed to represent the interests of the Defence during admissibility proceedings triggered by the Pre-Trial Chamber proprio motu.

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the appropriate test to determine it in the instant case.85 The Appeals Chamber had two cases before it where different Chambers had ruled that there was no automatic conflict of interest invalidating the appointment of a former Prosecution officer as defence counsel in a case that was open and active at the time the lawyer was working for the OTP. Rather, according to the impugned decisions, the critical test is whether counsel was “privy to more than de minimis confidential information” pertaining to the case in question. The Appeals Chamber reversed this decision. It rejected the Prosecution’s plea for an automatic disqualification of any former Prosecution officer who wished to act as defence counsel in a case that was open at the time he worked for the Prosecution, noting that “prior association with the OTP does not, per se, disqualify a former OTP staff member from working for the defence”.86 It also rejected the position that the mere possibility of access to confidential information should suffice for the purposes of determining the existence of a conflict of interests.87 However, the Chamber also rejected the qualification imposed by the challenged decisions on the quality or nature of the confidential information, requiring that it be “of some significance”. The Appeals Chamber stated in conclusive terms that the phrase “privy to confidential information” in article 12(1)(b) of the Code of Professional Conduct for Counsel88 was “clear and unambiguous” and “need not and should not be qualified in any way”.89 Thus, access to any information related to the case of a confidential nature, including “internal assessments about the strengths and weaknesses of a particular case” are covered by the impediment established in the Code of Conduct.90 However, the Appeals Chamber did not establish a rigid rule whereby once verified that counsel was privy to confidential information, disqualification becomes unavoidable. Rather, according to the Appeals Chamber, Chambers of the Court retain the authority to authorise 85

86

87 88

89

90

See Prosecutor v. Hadžihasanović, Alagic & Kubura, IT-01-47-PT, Decision on the Prosecution’s Motion for Review of the Decision of the Registrar to Assign Mr Rodney Dixon as Co-counsel to the Accused Kubura, 26 March 2002. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 58. Ibid., para. 53. Code of Professional Conduct for Counsel, 2 December 2005, in force 1 January 2006, ICC-ASP/4/Res.1. Ibid., para. 65; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 34. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 67.

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continued representation despite the existence of knowledge of confidential information: while “ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established”, there are “circumstances in which there may not be any real conflict of interest or other impediment to representation. The second sentence of article 12(1)(b) of the Code expressly provides for this possibility in providing that the lifting of the impediment to representation under that article may be ordered by the Court ‘at counsel’s request’ and ‘if deemed justified in the interests of justice’.”91 The Appeals Chamber clarified that determining what is “in the interests of justice” will have to be determined in the specific circumstances of each case. The Chamber, however, provided some indicators that may be considered, starting with the nature and importance of the confidential information, the rights of the Accused, counsel’s position in the Defence team and concerns about the overall fairness or the appearance of impropriety of the proceedings.92

Jurisprudence I Applicable Law, Interpretation of the Statute and Other Governing Texts 1 General Principles of Interpretation “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), specifically the provisions of Articles 31 and 32.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/04-01/07-573 OA6, 9 June 2008, para. 5. “The rule governing the interpretation of a section of law is its wording read in context and light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of a law as a whole read in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 33; Prosecutor v. Katanga & Ngudjolo, Judgment 91

Ibid., para. 68.

92

Ibid., paras. 69–70.

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i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 39; Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 56; See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 40. “Article 33(3) of the VCLT contains a presumption that the terms of a treaty have the same meaning in each authentic text. The ILC has indicated that this ‘requires that every effort should be made to find a common meaning for the texts before preferring one to another’. If this attempt at harmonisation fails, the next recourse lies in the supplementary means of interpretation under article 32 of the VCLT, including the preparatory work of the treaty and the circumstances of its conclusion. If a common meaning cannot be derived from the different language versions of the treaty following this process, ‘the meaning which best reconciles the texts, having regard to the object and purpose of the treaty’ must be adopted.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 49–50. “The interpretation of the Statute is governed by the general principle of interpretation of treaties as set out in article 31(1) of the Vienna Convention on the Law of Treaties, according to which ‘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 light of its object and purpose.’ The same principle of interpretation applies to the Rules.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 55; See also Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 16. Diss. Op.

1.1

Interpretation of the Wording of the Statute Read in Context “The grammatical interpretation is the principal rule governing the construction of the Statute.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 12. Sep. Op. “Article 51(4) of the Statute expressly regulates the circumstances in which amendments to the Rules shall be applied. Its wording, in relevant part is clear: Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of

jurisprudence the person who is being investigated or prosecuted or who has been convicted.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 67. A Pre-Trial Chamber was held to have erred as it “did not comprehensively consider the importance of the fact that the word ‘fully’ is included in the text, and the article’s full legislative history”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 37. Individual provisions must be “read in light of the statutory scheme as a whole”. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 73. “To my mind, systematic interpretation denotes an interpretation of a word or phrase in a section of the law consistent with the prior interpretation of the same concept by previous decisions of the Court; an interpretation conforming to a system reflected in the jurisprudence on the subject.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 12. Diss. Op. “In no circumstances can the rule of systematic interpretation justify the restructure of a legislative provision or the introduction of exceptions to it.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 13. Diss. Op.

1.2 Interpretation of the Statute in the Light of its Object and Purpose “The aim of the Rome Statute is ‘to put an end to impunity’ and to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 79. See also Prosecutor v. Lubanga, Judgment on

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inte rpretation and s tr uctural issues the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 77. The object of the Statute includes “the assurance of the efficacy of the criminal process, and promotes its purpose that proceedings should be held expeditiously. Proceedings should be held without delay, a course consistent with the rights of the accused.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Joinder Appeal, ICC-01/04-01/07-573 OA6, 9 June 2008, para. 8. “A teleological or purposive interpretation of a legislative provision allows for the construction of a section of the law in a manner advancing the goals of an enactment or suppressing the mischief against which it is directed. It acknowledges no power and, far less, it allows no liberty to the Court to either refashion the terms of a legislative provision or add terms to its text that are not there.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 11. Diss. Op. “What the preamble and tenor of the Statute provide authority for is to interpret the text of the Statute as worded in a manner promoting the objects and purposes of the law. The remit of interpretation is to construe the law as laid down by the legislator. A purposive interpretation provides no warrant for the redrafting, the remoulding or the addition of new provisions to a section of the Statute. In short, no process of interpretation empowers the Court to remake the law.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 19. Diss. Op.

1.3

Interpretation in the Light of Other Instruments “[T]he Regulations of the Registry are in place ‘to govern the operation of the Registry’ (rule 14 of the Rules of Procedure and Evidence) and that they ‘shall be read subject to the Statute, the Rules and the Regulations of the Court’ (regulation 1(1) of the Regulations of the Registry). As such, regulation 96 cannot alter the scheme otherwise contained within the Statute and the Rules of Procedure and Evidence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 81. “The Regulations of the Court are, in accordance with article 52(1) of the Statute, designed to facilitate the routine functioning of the Court, in other

jurisprudence words to regulate the conduct of the judicial process. They cannot confer power to take part in judicial proceedings when none is given by the Statute or the Rules. As stated in regulation 1(1), the Regulations ‘shall be read subject to the Statute and the Rules’ that define the framework within which the Regulations must be interpreted and applied. Legitimisation for taking any step in the judicial process can only be derived from those sources.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in the Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 7. Diss. Op. “The Appeals Chamber notes that the Trial Chamber in referring to the Basic Principles of 2005 was ‘guided’ by the language set forth in Principle 8. However, as noted above, its decision was based on its analysis of rule 85 (a) and rule 85(b) of the Rules. The Appeals Chamber finds no error in the Trial Chamber’s reference to the Basic Principles of 2005 for the purpose of guidance.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 33.

2 Article 21(1)(c) of the Statute “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.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 24. Under article 21(1) of the Statute, when “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”. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34; referring to Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, paras. 22–24, 33–42. “This Court has its own legal framework governing the issues that arise in this appeal [. . .]. This cannot be replaced by the practice of other courts and tribunals in the present circumstances. In this context, the Appeals Chamber notes that the Prosecutor does not explain his reliance upon case law from just one domestic jurisdiction (the United States).”

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interpretation and s tr uctural issues Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 62. “Article 21(1) of the Statute provides that the Court shall, in the first place, apply the Statute, Rules of Procedure and Evidence and Elements of the Crimes [. . .], in the second place, applicable treaties and the principles and rules of international law [. . .], and, ‘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’ [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 11. “[A]rticle 21(1)(c) vests the Court with power to apply general principles of law, derived from national laws, but not to apply national laws directly; that general principles of law under article 21(c) of the Statute are a subsidiary source of law to which resort may be had if the sources of law listed in article 21(1)(a) and (b) do not regulate the issue at hand; and, finally, that, as expressed by the words ‘as appropriate’, article 21(1)(c) of the Statute vests the Court with discretion to derive such general principles also from the national laws of States that would normally exercise jurisdiction over the crime, but does not require the Court to do so.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 11. “The Appeals Chamber considers that exploring the import of the concepts of ‘implied powers’ or ‘customary international criminal procedure’ on the question of whether the Trial Chamber is empowered to compel a witness to appear before the Court would be incorrect in circumstances where the Court’s legal framework provides for a conclusive legal basis. This is because, as previously held by the Appeals Chamber, pursuant to article 21(1) of the Statute, recourse to other sources of law is possible only if there is a lacuna in the Statute or Rules of Procedure and Evidence. Accordingly, the Appeals Chamber will first consider the Statute and the Rules of Procedure and Evidence, interpreting its provisions in accordance with the rule applicable to the interpretation of treaties provided for in the Vienna Convention. As explained below, the Appeals Chamber is of the view that there is no lacuna in the interpretation of the issue under appeal. Thus, the Appeals Chamber will not address any further the question of ‘implied powers’ and ‘international criminal procedure’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 105.

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3 Article 21(2) of the Statute: Binding Stare Decisis? “Article 21(2) of the Statute provides that ‘[t]he Court may apply principles and rules of law as interpreted in its previous decisions’. Thus, the Appeals Chamber is not obliged to follow its previous interpretations of the principles and rules of law through binding stare decisis; rather, it is vested with discretion as to whether to do so. In this respect, the Appeals Chamber has previously stated that absent ‘convincing reasons’ it will not depart from its previous decisions. Thus, in principle, while the Appeals Chamber has discretion to depart from its previous jurisprudence, it will not readily do so, given the need to ensure predictability of the law and the fairness of adjudication to foster public reliance on its decisions.” Prosecutor v. Gbabgo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 14.

4 Article 21(3) of the Statute “Article 21(3) of the Statute ordains the application and interpretation of every provision of the Statute in a manner consistent with internationally recognised human rights.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 16. Sep. Op; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/073363 OA13, 27 March 2013, para. 86; Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 36–37; Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on His Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 11. Diss. Op. See also Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 38. “[T]his interpretation is in adherence with the requirement in article 21(3) of the Statute to apply and interpret the provisions of the Statute and the Rules consistently with internationally recognized human rights [. . . as there may exist] a situation in which the withholding of certain information from the Defence may be necessary so as to preserve the fundamental rights of an individual put at risk by the activities of the International Criminal Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 57–58.

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5 Article 24(2) of the Statute “[T]he Appeals Chamber finds that article 24(2) of the Statute is not applicable to amendments to the Rules, which are governed by the specific provisions of article 51(4) of the Statute.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 73.

6 Role of the Travaux Préparatoires The travaux préparatoires may be used to “establish as laid down in article 32 of the Vienna Convention on the Law of the Treaties supplementary means of interpretation designed to provide a) confirmation of the meaning of a statutory provision resulting from the application of article 31 of the Vienna Convention on the Law of Treaties, and b) the clarification of ambiguous or obscure provisions, and c) the avoidance of manifestly absurd or unreasonable results”. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 40. “[I]n interpreting the statutory scheme [regarding responsibility for witness protection], the Appeals Chamber has had recourse to the history of the drafting of article 43(6) of the Statute in determining the issue before it [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 82, see also paras. 84–90.

7 Interpretation of “the Established Framework of International Law” (Customary and Conventional International Law) for Article 8(2)(b) and (2)(e) “If customary or conventional international law stipulates, in respect of a given war crime, an additional element of that crime, the Court cannot be precluded from applying it to ensure consistency of the provision with international humanitarian law, irrespective of whether this requires ascribing to a term in the provision a particular interpretation or reading an additional element into it. This does not violate the principle of legality recognised in article 22 of the Statute, which protects accused persons against a broad interpretation of the elements of the crimes or their extension by analogy; therefore, it does not impede the identification of additional elements that need to be established before an accused person can be convicted.”

jurisprudence Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 1. “The Appeals Chamber recalls that article 21 of the Statute requires the Court to apply ‘in the first place’ its Statute, Elements of Crimes and Rules of Procedure and Evidence. Recourse to other sources of law is possible only if there is a lacuna in these constituent instruments [. . .]. However, the Appeals Chamber has also found that the expression ‘the established framework of international law’ in the chapeaux of article 8(2)(b) and (2) (e) as well as in the Introduction to the Elements of Crimes for article 8 of the Statute, when read together with article 21 of the Statute, requires the former to be interpreted in a manner that is ‘consistent with international law, and international humanitarian law in particular’ [. . .]. Thus, the specific reference to the ‘established framework of international law’ within article 8(2)(b) and (e) of the Statute permits recourse to customary and conventional international law regardless of whether any lacuna exists, to ensure an interpretation of article 8 of the Statute that is fully consistent with, in particular, international humanitarian law.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 53. “As to the Prosecutor’s argument that the ‘established framework of international law’ should ‘merely assist in the interpretation of the crimes and elements as prescribed by the Statute and the Elements’, without introducing additional elements, the Appeals Chamber considers that clearly distinguishing between interpreting the existing elements, on the one hand, and introducing additional elements, on the other, when examining the ‘established framework of international law’ may not always be possible. If customary or conventional international law stipulates in respect of a given war crime set out in article 8(2)(b) or (e) of the Statute an additional element of that crime, the Court cannot be precluded from applying it to ensure consistency of the provision with international humanitarian law, irrespective of whether this requires ascribing to a term in the provision a particular interpretation or reading an additional element into it. In the view of the Appeals Chamber, this does not violate the principle of legality recognised in article 22 of the Statute, which protects accused persons against a broad interpretation of the elements of the crimes or their extension by analogy; therefore, it does not impede the identification of additional elements that need to be established before an accused person can be convicted.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA6, 15 June 2017, para. 54.

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8 Role of the Jurisprudence of Other International Criminal Tribunals In general, “[t]he International Criminal Court is not in the same position [as the ICTY and ICTR] in that it is beginning, rather than ending, its activities. In addition, being a permanent institution, it may face a variety of different and unpredictable situations.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 80. However, in specific instances, “[g]iven that the wording of rule 77 of the Rules of Procedure and Evidence is based on the wording of rule 66 (B) of the Rules of Procedure and Evidence of the ICTY, it is useful to consider the relevant jurisprudence of the ICTY and the ICTR on the corresponding provisions in the ICTY and ICTR Rules of Procedure and Evidence”. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 78. “[I]n considering the issues at hand, the Appeals Chamber has had regard to the scope of jurisdictional challenges as interpreted by the [. . . ICTY, the ICTR and the ECCC]. While bearing in mind the different statutory provisions that apply to those tribunals, the non-binding nature of their jurisprudence upon this Court and the fact that the Statute sets out in detail the crimes over which this Court has jurisdiction, the Appeals Chamber nevertheless notes [. . .] the general approach taken in the ICTY and ICTR jurisprudence [. . . ].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 37; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 31.

9 Scope and Interpretation of the Regulations of the Court “Regulation 1(1) of the Regulations of the Court provides that the Regulations of the Court must be ‘read subject to the Statute and the Rules’. Thus, any interpretation of Regulation 55 that cannot be reconciled with article 74(2) of the Statute must be rejected as incorrect.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. “The Appeals Chamber notes that the term ‘routine functioning’ [in article 52(1)] is not defined any further in the Statute or the Rules of Procedure and Evidence. However, the term has been described as a ‘broad concept’ and it has been observed that ‘routine functioning’ also concerns matters of ‘practice and procedure’.”

jurisprudence Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69. “[T]he Regulations of the Court contain several important provisions that affect the rights of the accused person, inter alia, on detention and on the scope of legal assistance paid by the Court. Thus, while the Appeals Chamber acknowledges that the question of modification of the legal characterisation of facts is an important question that directly impacts on the trial, it is not persuaded that for that reason alone, it cannot be part of the routine functioning of the Court.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69. “[T]here is no general requirement that the provisions of the Regulations of the Court must be limited to the codification of general principles of international law.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 80. “[T]he Appeals Chamber does not consider that the Regulations of the Court must necessarily reflect the approach adopted by the ICTY.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 80. “In light of differences of views between common law countries and countries following the Romano-Germanic tradition, the matter [of whether a chamber could change the legal characterisation of facts] was left for determination by the judges of the Court. Two approaches would have been possible: the matter could have been determined through case law or through adoption of a provision on the issue in the Regulations of the Court. The latter approach has significant benefits, as it prevented, from the beginning, uncertainty as to the possibility of the modification of a legal characterisation. The adoption of a provision on the subject in the Regulations of the Court also prevented potentially inconsistent jurisprudence on the issue, which would have a considerable impact on the day-today conduct of the trials and the efficient use of judicial resources. Thus, the adoption of a provision on the modification of the legal characterisation was necessary for the Court’s routine functioning.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 70.

10

The Principle of In Dubio Pro Reo

“[T]he Appeals Chamber is also unpersuaded by Mr Blé Goudé’s argument that, as ‘[r]ule 68(3) concerns the potential admission of incriminatory evidence that has not been tested by the Defence, any ambiguity as to

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i n te r pr e tat i o n a nd st r u c t u r a l is s u e s the factors to be weighed when assessing rule 68(3) of the Rules should be construed in favour of the accused pursuant to the in dubio pro reo principle’. The Appeals Chamber notes that the principle in dubio pro reo is encapsulated in article 22(2) of the Statute as a general principle of criminal law to be employed, where ambiguity arises, in the interpretation of the definition of a crime. Leaving aside whether this principle applies to the circumstances at hand, the Appeals Chamber considers that Mr Blé Goudé has not demonstrated any ambiguity in the Trial Chamber’s assessment of the relevant factors when it introduced the prior recorded testimony under rule 68(3) of the Rules.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on the Gbago and Goudé Appeals against the Decision on Rules 68(2)(b) and 68(3), ICC-02/11-01/ 15-744 OA8, 1 November 2016, para. 83.

II Exercise of Judicial Functions 1 Judicial Functions in General “The aphorism ‘justice must not only be done but must appear to be done’ is deeply rooted in the norms of justice; in fact, it is a prerequisite for ministering justice. The absence of bias, real or apparent, is what legitimises a judicial body to administer justice.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 10. “It may be regarded as axiomatic that, if any power is conferred upon a court to make an order or issue a decision, the parties have an implicit right to move the Chamber to exercise it.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 20; Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07476 OA2, 13 May 2008, para. 17. “Under the Statute, the Trial Chamber, subject only to the powers of the Appeals Chamber, is the ultimate guardian of a fair and expeditious trial. Article 64(2) of the Statute provides that it is the Trial Chamber which shall ensure that the trial is conducted fairly, expeditiously and with full respect for the rights of the accused. As correctly noted in the Impugned Decision, the Appeals Chamber has previously confirmed that ‘[t]he ultimate responsibility for securing justice and ensuring fairness has been given to the Chamber (Article 64(2) of the Statute) and these responsibilities cannot be delegated by, or removed from, the judges’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 47. See fn. 112, which refers to Trial Chamber I’s Decision on the

jurisprudence Consequences of Non-disclosure, para. 88, confirmed in Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 76.

2 Adjudication of Applications on a Case-by-Case Basis Article 61(3) and rule 121(2)(b) “give the Pre-Trial Chamber important functions with respect to the regulation of the disclosure process prior to the confirmation hearing, which might involve, within the confines of the applicable law, the issuing of procedural directions to facilitate the disclosure process. These provisions, however, do not vest a Pre-Trial Chamber with the competence to pre-determine the merits of future applications for authorisation of non-disclosure pursuant to rule 81(4) of the Rules of Procedure and Evidence. It is fundamental to the exercise of judicial power that applications are adjudicated on a case-by-case basis.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 39.

3 Judicial Discretion In the context of proceedings leading up to confirmation of charges hearing, article 61(3) and rule 121(2) “accord the Pre-Trial Chamber broad discretion in regulating the disclosure process as borne by the use of the words ‘may issue orders regarding the disclosure of information of information’ in article 61(3) of the Statute and shall ‘take the necessary decisions regarding disclosure’ in rule 121(2) of the Rules of Procedure and Evidence. The Appeals Chamber is of the view that no express or implied limitation on the powers of the Pre-Trial Chamber to issue orders regarding disclosure may be derived from the ordinary meaning of these provisions [. . .].” Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15251 OA3, 17 June 2015, para. 32. “The Pre-Trial Chamber’s duty to ensure that the disclosure process takes place under satisfactory conditions requires that the full circumstances of each individual case must be considered in making orders and decisions regarding disclosure. To this end, rule 121(2)(b) of the Rules of Procedure and Evidence provides that the ‘Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions’. The Appeals Chamber considers that this rule highlights the importance of receiving the submissions of the parties, to the extent possible, on issues relevant to the disclosure process.”

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i n te r p r et a t i o n a n d str u c t u r a l is s u e s Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15251 OA3, 17 June 2015, para. 41.

4 Obligation to Adjudicate Within the Context of the Respective Case “[T]he Appeals Chamber notes that the matter arises only in the abstract and that it is therefore unable to make an absolute determination in the absence of a concrete factual situation. Thus, the comments of the Chamber should be viewed in this context and treated with appropriate caution.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 52. See also Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, para. 110 (declining to consider issues where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”). “It is no function of a court of law to establish general principles with a view to mapping out the outcome of future proceedings. The pronouncement of binding legal principles outside the parameters of the adjudicative process is beyond and more accurately outside the jurisdiction of a court.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 24. Diss. Op. See also Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, paras. 8–9. Diss. Op. “[N]o one can authorize judicial deliberation outside the context of a matter at issue.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 26. Diss. Op.

5 Judges Must Make their Own Factual Findings on which the Decision will be Based “[T]he Single Judge adopted the findings made by another Single Judge in other proceedings; this is impermissible. A judge, the Single Judge in this case, is duty-bound to appraise facts bearing on sub judice matters, determine their cogency and weight and come to his/her findings, as the Single Judge was bound to do in this case but failed to do.”

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Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 26.93

6 Duty to Give a Reasoned Decision 6.1 Required Reasoning of a Decision in General “The reasons for a decision must be comprehensible from the decision itself.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “The extent of the reasoning will depend on the circumstances of the case, but it is essential that it indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the respective Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30. “It is not sufficient for the Pre-Trial Chamber to identify simply which filings were before it. The decision must set out which of the relevant facts and legal arguments that were before the Pre-Trial Chamber were found to be persuasive for the determination it reached.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “The ex parte character of the proceedings did not reduce the need for the decision of the Pre-Trial Chamber to be properly reasoned, but made the provision of proper reasoning more necessary because the Appellant could not rely on the context in which the Impugned Decision was made to determine how the Pre-Trial Chamber reached its decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 22; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against 93

See also para. 27: “[t]he Single Judge was not relieved of that duty because another judge within the context of the proceedings made an appraisal of the facts, nor was any evaluation made in such proceedings binding on the Chamber charged with the determination of a sub judice issue. It was the responsibility of the judge in this case to assess the facts pertinent to her decision, and found her judgment thereupon.”

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i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33. “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 [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30.

6.2

Required Reasoning of a Decision Pursuant to Rule 81 “The reasoning must state how the Pre-Trial Chamber came to the conclusion that disclosure of witness statements and other documents with redactions pursuant to rule 81(2) of the Rules of Procedure could be authorised; the reasoning should also state which of the facts before it led the Pre-Trial Chamber to reach its conclusion.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 31. A decision applying rule 81(2) has to expressly set out “why the Chamber considered that the disclosure of sources of the Prosecutor and any other matters in relation to which the Chamber authorised redactions could prejudice further investigations”. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 32. A decision applying rule 81(4) has to address three crucial considerations “for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81(4) of the Rules of Procedure and Evidence: the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (article 68(1), last sentence, of the Statute)”. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. “[T]he Pre-Trial Chamber stated that it would ‘address the application of the criteria prescribed by the Appeals Chamber in its two 14 December

jurisprudence 2006 [Judgments] in relation to the three alleged victims of sexual offences’. The Pre-Trial Chamber then proceeded to examine each of the individual requests for redactions in Annex I to the Impugned Decision. The approach of the Pre-Trial Chamber appears prima facie to be consistent with the further guidance contained in the Judgment of 13 May 2008.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/ 07-521 OA5, 27 May 2008, para. 35. “The Appeals Chamber is not persuaded by the argument of the Prosecutor that the degree of specificity could be reduced because the Impugned Decision related to protective measures prior to the confirmation hearing and not to protective measures prior to the trial. The question raised under the first ground of appeal is not the legal threshold for the authorisation of non-disclosure of the identity of a witness but the adequacy of the reasoning that has to be provided.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 23.

7 Res Judicata “Res judicata is a principle of law generally acknowledged as an essential feature of judicial proceedings, interwoven with the finality of judicial determinations and ultimately the efficacy of the judicial process.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 16. Diss. Op. “Under English common law, res judicata in its simplest form denotes that a cause of action determined on its merits or an issue incidental to the cause cannot be re-litigated by the same parties before a court of law. The parties are estopped from making the same cause or issues incidental thereto the subject of fresh litigation. So, we have subject-matter estoppel in relation to the cause itself and issue estoppel with regard to interim determinations. A fortiori, the same applies to interlocutory decisions given in the process of litigation.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 17. Diss. Op. “Re-litigating an issue settled by a judicial decision would unreasonably protract the proceedings to the detriment of the principle that justice should be administered within a reasonable time.”

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i n te r pr et a t i o n a nd str u c t u r a l is s u e s Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 17. Diss. Op. “In either system [English common law or the Romano-Germanic system] re-litigation or re-determination of a matter decided upon is impermissible, unless, of course, jurisdiction is specifically conferred upon the court to revisit an issue under given circumstances.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 19. Diss. Op. The fact that “parts of the reasoning employed in the decision of 15 May 2006 were similar to or overlapped with the reasoning in the Impugned Decision in the present case does not preclude the Prosecutor from bringing this appeal because the two decisions disposed of different matters”. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 23.

8 Judicial Orders “Orders of a Trial Chamber are binding orders, to be implemented unless and until they are suspended, reversed or amended by the Appeals Chamber or their legal effects are otherwise modified by an appropriate decision of a relevant Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “The authority of the judges over the parties within the context of the trial does not negate any Statutory duties of the Prosecutor, but [. . .] it does mean that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair. The Appeals Chamber fully endorses the statement of the Trial Chamber that ‘[n]o criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “There is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection. Indeed, article 68(1) of the Statute specifically provides that, whatever measures the Prosecutor

jurisprudence may take with respect to the protection of victims and witnesses, ‘[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Reading this provision together with the responsibility of the Trial Chamber to ensure a fair trial, it is clear that the Prosecutor’s duties are subordinate to the authority of the Trial Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. “The filing of a request by a party does not, in itself, suspend the effect of an order; only a judicial decision may alter the legal effects of a judicial order.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 49.

9 Powers and Functions of the Trial Chamber under Article 64(2) “‘[T]he Trial Chamber’s power to determine the timeliness of a motion alleging unlawful pre-surrender arrest and detention and seeking a stay of the proceedings during the trial phase derives from article 64(2) of the Statute.’ From this perspective, the Trial Chamber is empowered to regulate its own proceedings under that provision. However, the exercise of its powers must be carried out in accordance with internationally recognised human rights standards.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 42. Diss. Op. “[I]f article 64(2) is the basis for the Impugned Decision, which we do not challenge, then clearly all the factors contained within that provision should have been considered. In this respect, a Trial Chamber ‘shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’. It is required to take into account the different considerations and competing interests contained within this provision. That this is mandatory is clear through use of the word ‘shall’. However, article 64(2) also imports an element of discretion in relation to its implementation. But, in taking a discretionary decision, the Trial Chamber must ensure that it carefully weighs all the enumerated factors. In addition, and as has been emphasised many times by the Appeals Chamber, the Trial Chamber must ensure that, as required by article 21(3), it both interprets and applies the law (exercise of its discretion in this context) consistently with internationally recognized human rights.”

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i n t e r p r e t a t i o n a n d st r u c t u r a l is s u e s Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 44. Diss. Op.

III Role of the Registrar and Relationship with Chambers 1

Authority of the Registrar

“The authority of the Registrar is confined to the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor, as provided in article 43(1) of the Statute.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7; Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12-159 A1, 11 February 2014, para. 22. “The Registry is a neutral organ of the Court which is not a party to the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 94.

1.1

Power of the Registrar to File Documents in Proceedings “Reading articles 43(6) and 68(4) of the Statute together with regulation 24bis (1) of the Regulations of the Court, and in light of the subject-matter of the instant appeal, the Appeals Chamber considered that the filing by the Registrar was legitimately made. In this regard, the Appeals Chamber considered it appropriate and of assistance to it in the circumstances of this appeal to hear from the Registrar.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 4. “[T]he Registrar’s submissions must normally relate to extant proceedings before a Chamber. Regulation 24bis (1) of the Regulations of the Court does not provide the Registrar with blanket authority to initiate what are effectively new proceedings before the Appeals Chamber.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 12.

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“The Registrar’s Submissions are made absent any connection to proceedings which have been or are pending before the Appeals Chamber. Rather, they seek to initiate what are in effect new appellate proceedings before the Appeals Chamber. As such, the Appeals Chamber finds that they go beyond the scope of regulation 24bis (1) of the Regulations of the Court.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 13. “The Registrar is not a party to or a participant in the proceedings [. . .]. Nowhere in the Statute is a right conferred upon the Registrar or the Registry to participate as of right in any proceedings before the Court.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 4. Diss. Op. “It is no coincidence that neither directly nor indirectly does the Statute confer or acknowledge a right to the administrative organ of the Court to participate in the proceedings as a litigant.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, para. 8. Diss. Op.

2 Obligations of the Registrar 2.1 Obligation to Release a Person from Custody Other than upon Completion of Sentence “The Appeals Chamber considers that the pending asylum application does not negate the Registrar’s obligation to give effect to Mr Ngudjolo’s acquittal pursuant to rule 185(1) of the Rules of Procedure and Evidence. Accordingly, the Registrar is instructed to make such arrangements as he considers appropriate for the transfer of Mr Ngudjolo in accordance with rule 185(1) of the Rules of Procedure and Evidence and article 48 of the Headquarters Agreement, and taking into account Mr Ngudjolo’s views, including as regards his security situation.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request to order the VWU and Host State to comply with Acquittal Judgment, ICC-01/04-02/ 12-74-Red OA, 27 May 2013, para. 13.

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3 Review of Decisions by the Registrar 3.1 No Review of the Registrar’s Decisions by the Appeals Chamber and Exceptions “[T]he Appeals Chamber is not cast as an advisory body with regard to the exercise of the functions and duties of the Registrar.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “No jurisdiction is vested in the Appeals Chamber to review decisions pertaining to the administration and servicing of the Court except where specific authority to do so is conferred by the Statute, Rules of Procedure and Evidence or the Regulations of the Court.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7. “Given that regulation 83(4) of the Regulations of the Court specifically confers authority on the Trial Chamber, as the Chamber dealing with this case for the purpose of the trial proceedings, to review the Registrar’s decision while not conferring any authority on the Appeals Chamber to review the Trial Chamber’s decision, the Appeals Chamber considers that such further review by it is impermissible, unless and only to the extent that such review may fall within the scope of an appeal properly brought under articles 81 or 82 of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15. “[A]ccording to article 43(1) of the Statute, the Registry is ‘responsible for the non-judicial aspects of the administration and servicing of the Court’ which includes the management of legal assistance. According to regulation 83(1) of the Regulations of the Court, ‘[l]egal assistance paid by the Court’ is determined by the Registrar. From the foregoing, it follows that the Registrar enjoys a relatively wide margin of discretion in the area of legal assistance, in particular in relation to the calculation and payment of fees. Given this discretion, the Appeals Chamber considers that it should interfere with decisions of the Registry in this area only if there are compelling reasons for doing so.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A1, 11 February 2014, para. 22.

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3.2 Review of the Registrar’s Decisions by the Presidency or First Instance Chamber “Under the Statute, the ‘Registrar shall exercise his or her functions under the authority of the President of the Court’, as laid down in article 43(2) of the Statute. The Registrar may therefore have recourse to the President of the Court for necessary advice and guidance.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “In connection with legal aid, only decisions of the Registrar on the scope of the payment of legal assistance are subject to review by the relevant Chamber, that is, the Chamber dealing with the case, on the application of a legally aided person (regulation 83(4) of the Regulations of the Court).” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 7; citing, Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15. “Another species of decisions of the Registrar liable to review by another body, the Presidency, are decisions of the Registrar refusing the assignment of counsel (see rule 21(3) of the Rules of Procedure and Evidence). The decision may be reviewed at the instance of the aggrieved party, while the decision of the Presidency on any such matter is final. The same applies with regard to decisions of the Registrar to refuse legal aid (see regulation 85(3) of the Regulations of the Court).” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 8.

IV Authority of the Prosecutor 1 Authority of the Prosecutor to Conduct Investigations “[A]n investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 45. “The domain and powers of the Prosecutor are outlined in article 42 of the Statute, paragraph 1 of which reads: [. . .] Manifestly, authority for the conduct of investigations vests in the Prosecutor. Acknowledgement by

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i nt er p r et at i o n an d st r uc tu ral issu es the Pre-Trial Chamber of a right to victims to participate in the investigation would necessarily contravene the Statute by reading into it a power outside its ambit and remit.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 52. “The Appeals Chamber observes that it is the Prosecutor who, pursuant to article 54(1) of the Statute, is tasked with the investigation of crimes under the jurisdiction of the Court and who, pursuant to article 61(1) and (3) of the Statute, proffers charges against suspects. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “It follows from article 54(1) of the Statute that the investigatory activities of the Prosecutor must be directed towards the identification of evidence that can eventually be presented in open court, in order to establish the truth and to assess whether there is criminal responsibility under the Statute.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 41. “The Prosecutor is duty-bound to assure that the evidence collected is free from the influence of any person. Moreover, he is duty-bound to respect and observe the rights of the person under investigation or the accused, as the case may be.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Pikis & Nsereko in the Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 18. Diss. Op. “[T]he Prosecutor undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 80. “While the VWU [Victims and Witnesses Unit] is responsible for specific aspects of witness protection, the Prosecutor has a more general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to

jurisprudence victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98.

2 Prosecutor Enjoys High Margin of Discretion under Article 53 (Decision not to Investigate) “In the Appeals Chamber’s assessment, the distinction between the powers of the Pre-Trial Chamber under article 53(3)(a) and (b) reflects a conscious decision on the part of the drafters to preserve a higher degree of prosecutorial discretion regarding decisions not to investigate based on the considerations set out in article 53(1)(a) and (b) of the Statute. Indeed, under article 53(3)(a) of the Statute, the Prosecutor is obliged to reconsider her decision not to investigate, but retains ultimate discretion over how to proceed.” Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 59. “What is clear from the above statutory scheme, as well as the drafting history of article 53(3)(a) of the Statute, is that the Pre-Trial Chamber’s review under this provision cannot lead to a determination of admissibility that would have the effect of obliging the Prosecutor to initiate an investigation, the final decision in this regard being reserved for the Prosecutor. [R]eviews and requests by the Pre-Trial Chamber under article 53(3)(a) of the Statute are not, by their nature, either final decisions on, or determinations of, admissibility – in the sense of being freestanding decisions on admissibility – at the time that they are issued. The Impugned Decision in the present case is a request to the Prosecutor to reconsider her decision not to initiate an investigation. That request remains to be acted upon by the Prosecutor in the present case.” Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 64.

3 Duty of the Prosecutor to Act Impartially “The Prosecutor is expected at all times to act impartially. Article 42(7) of the Statute provides specifically that ‘[n]either the Prosecutor nor

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i n t e r p r e t a t i o n a n d st r uc t u r a l is s u e s a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 18.

4 Obligation to Investigate Objectively under Article 54(1)(a) “[T]he Appeals Chamber notes that article 54(1)(a) of the Statute requires the Prosecutor to investigate exonerating and incriminating circumstances equally, which is essential to her truth-seeking function.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 47. “[T]he Prosecutor’s ordinarily unfettered duty to disclose must necessarily be based, inter alia, on the Prosecutor’s understanding of the case as a whole, including what is known or anticipated about possible defence(s). The fact that the Prosecutor is required ‘to investigate incriminating and exonerating circumstances equally’, pursuant to article 54(1)(a) of the Statute, means that the Prosecutor will be aware, during the course of his investigations, of material that may be of assistance to the defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 36. “The Prosecutor is bound to collect both incriminating and evidence exonerating the accused in investigating a case, as laid down in article 54(1)(a). The ambit of exculpatory evidence, as defined by the aforesaid provisions of article 67 of the Statute, is very wide.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 16. Diss. Op. “Article 54(1)(a) of the Statute binds the Prosecutor to collect not only inculpatory but exculpatory evidence too. The omission of the Prosecutor in this case to gather exculpatory evidence of which he was aware is another reason marking the failure of the Prosecutor to make disclosure of exculpatory evidence to the defence.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 41. Diss. Op.

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5 Continuation of Investigations after the Start of the Confirmation Hearing “[T]he Appeals Chamber determines [. . .] the Pre-Trial Chamber erred in finding that the Prosecutor’s investigation in respect to Mr Lubanga Dyilo must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. “The Pre-Trial Chamber’s finding that the ‘investigation in the current case must be brought to an end by the time the confirmation hearing starts’ [. . .] is ambiguous. It is unclear whether the phrase ‘investigation in the current case’ refers to the investigation of Mr Thomas Lubanga Dyilo with respect to the specific charges which the Prosecutor intends to bring in the upcoming confirmation hearing, or whether it extends to the investigation of Mr Thomas Lubanga Dyilo’s potential criminal responsibility for other conduct not encompassed by the charges [. . .]. [B]oth readings are incompatible with the Statute.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 50. “Article 61(4) of the Statute clarifies that the provision of the document containing the charges alone does not limit the Prosecutor’s flexibility with respect to the charges brought.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 53. “The fact that article 61(9) of the Statute does not make reference to the investigation indicates that the Prosecutor’s flexibility with respect to the investigation that is acknowledged by article 61(4) of the Statute remains unaffected by the confirmation of the charges; the Prosecutor does not need to seek permission from the Pre-Trial Chamber to continue his investigation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 53. As stipulated in article 54(1)(a) of the Statute, “the Prosecutor’s duty to establish the truth is not explicitly limited to the time before the confirmation hearing. Therefore, the Prosecutor must be allowed to continue his investigation beyond the confirmation hearing, if this is necessary in order to establish the truth. This is confirmed by article 61(9) of the Statute, which stipulates. inter alia, that the charges may be amended before the trial has begun”.

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interpretation and s tr uctural issues Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 52. “The document containing the charges [of the confirmation hearing pursuant to article 61] is an assertion by the Prosecutor that he intends to bring a person to trial for the specific crimes set out in the document; it is not an assertion that he will not seek to put the suspect on trial for other crimes in the future.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. Article 61(9) “provides, inter alia, for a possibility to add further charges until the trial has begun. Thus, it must be possible for the Prosecutor to continue his investigation in respect of crimes that are not covered by the document containing the charges.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. “[T]he rights of the defence to have adequate time and facilities for the preparation of the trial can be safeguarded [through article 64(3)(c) of the Statute] even if the investigation continues beyond the confirmation of the charges.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 55. “The Appeals Chamber is not persuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot properly evaluate the evidence because it lacks the full evidence. As previously indicated by the Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber. Where the Prosecutor requires more time to complete the investigation, rule 121(7) of the Rules of Procedure and Evidence permits him to seek a postponement of the confirmation of charges hearing. If the evidence is found to be insufficient, article 61(8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 44; citing, Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06568 OA3, 13 October 2006, para. 54: stating that the Prosecutor may continue his investigation beyond the confirmation hearing, but that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”.

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Access by the Prosecution to Monitored Information

“[T]he Trial Chamber’s exercise of discretion under regulation 92(3) of the Regulations of the Court, denying the Prosecutor access to all of the monitored information, was based on the Trial Chamber’s understanding that the information could not be used at trial for evidentiary purposes [. . .]. [T]he Appeals Chamber is of the view that this understanding was incorrect and amounted to an error of law, which vitiated the Trial Chamber’s determination that the Prosecutor should not be given full access to the monitored information.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 44. “The Appeals Chamber finds that in stating that the information could not be used for evidentiary purposes at trial, the Trial Chamber failed to take note of article 69(3), (4) and (7) of the Statute and rule 64(1) [. . .] [T] he Prosecutor was seeking access to the requested information rather than presenting evidence to the Trial Chamber. Thus, [. . .] this was not the correct stage of the proceedings to make a finding on admissibility, and the Trial Chamber’s decision was in error.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 45. “The Appeals Chamber further notes that [. . .] [t]he scheme established by article 69(4) and (7) of the Statute anticipates that a Chamber’s determination that evidence is inadmissible at trial will be made on a case-bycase basis [. . .]. [E]ven if the Trial Chamber found that the information was obtained by means of a violation of the Statute or of internationally recognized human rights, its admissibility would be subject to a case-bycase assessment because not every alleged violation leads to inadmissibility.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, para. 46. “In the present case, the Trial Chamber made no such case-by-case determination of inadmissibility. Thus, in this context, the Trial Chamber’s categorical statement that the monitored information would be inadmissible was in error [. . .]. Moreover [. . .] [i]n making its determination, the Trial Chamber could not have known at this point in the proceedings whether the information the Prosecutor requested would not be ‘necessary for the determination of the truth’ in the future. Thus, the Trial Chamber’s decision that the information was inadmissible at trial inhibited the Chamber’s own power to request the submission of future evidence under article 69(3) of the Statute.”

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i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, paras. 47–48. “The Appeals Chamber is also not persuaded by the Trial Chamber’s additional reasoning in support of its decision [. . .]. [The fact that the monitoring had been carried out by the Registrar under regulations 174–175 of the Regulations of The Registry] is not sufficient for the Trial Chamber to conclude that the information is per se inadmissible, particularly if the information is related to the case at hand or is of great significance to the parties. On the contrary, the parties may request access to such information, and access may be granted by the relevant Chamber. In this respect, the Chamber would decide to what extent the information would be disclosed to any of the parties, bearing in mind the specific circumstances and the fairness of the proceedings [. . .]. Finally, the Appeals Chamber notes that the Trial Chamber’s rejection of the Prosecutor’s Request hinders him from fulfilling his duty under article 54(1) of the Statute ‘to establish the truth’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Access to Monitored Information, ICC-01/04-01/07-1718 OA9, 9 December 2009, paras. 49–50.

7 Grounds for Disqualification “Article 42(7) of the Statute and rule 34(1) of the Rules of Procedure and Evidence provide a non-exhaustive list of grounds which require the disqualification of the Prosecutor. Of particular relevance to the present decision is rule 34(1)(d) of the Rules of Procedure and Evidence which provides that the grounds for disqualification ‘shall include [. . .] [e]xpression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 19.

7.1

Standing to Request Disqualification of the Prosecutor “[O]n its face, there is nothing to suggest that article 42(8)(a) of the Statute does not apply to investigations of offences under article 70 of the Statute. Rule 163 of the Rules of Procedure and Evidence provides that, subject to certain exceptions which do not apply to the present matter, the Statute and the Rules of Procedure and Evidence ‘shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70 [of the Statute]’. Accordingly, the Appeals Chamber finds that

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a person being investigated on suspicion of having committed offences under article 70 of the Statute may request the disqualification of the Prosecutor from that particular investigation [. . .].” Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 17.

7.2 Objective Test Applied for Disqualification of the Prosecutor for Partiality “The use of the term ‘objectively’ in rule 34 of the Rules of Procedure and Evidence and the phrase ‘might reasonably be doubted’ in article 42(7) of the Statute indicates that it is not necessary to establish an actual lack of impartiality on the part of the Prosecutor. Rather, the question before the Appeals Chamber is whether it reasonably appears that the Prosecutor lacks impartiality. In determining whether there is such an appearance of partiality, the Appeals Chamber considers that this determination should be based on the perspective of a reasonable observer, properly informed.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 20.

7.3 Failure to Respect the Presumption of Innocence and other Rights of the Defendant as Grounds for Judicial Measures against the Prosecutor “Article 54(1)(c) of the Statute obliges the prosecutor to ‘[f]ully respect the rights of persons arising under this Statute’, including the right to be presumed innocent as guaranteed by article 66 of the Statute and reflected, inter alia, in articles 55 and 67 of the Statute.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 23. “Pursuant to article 21(3) of the Statute, the interpretation of the Prosecutor’s duty to respect the presumption of innocence must be consistent with internationally recognized human rights. The presumption of innocence has two aspects [. . .], each of which must be respected.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 24. “The first aspect of the presumption of innocence provides that, within the context of court proceedings, the accused shall be presumed innocent until proven guilty beyond a reasonable doubt and shall not have imposed on

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i n te r pr e tat i o n a nd st r u c t u r a l is s u e s him or her any reversal of the burden of proof or any onus of rebuttal. In this sense, the presumption of innocence does not oblige the Prosecutor to refrain from expressing an opinion on the evidence in support of the guilt or innocence of a suspect or accused, at least within court proceedings. To the contrary, article 66 of the Statute, entitled ‘Presumption of innocence’, recognises explicitly that ‘[t]he onus is on the Prosecutor to prove the guilt of the accused’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. “At each stage of the proceedings, the Prosecutor should be, and is reasonably and objectively expected to be, convinced by the evidence in support of his claims and to seek to persuade the judges. The requirement of impartiality thus imposes different obligations on the Prosecutor and on the judges. The Prosecutor is not only expected but required to make statements within the context of court proceedings which would be inappropriate if made by a judge in an on-going trial.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. “The second aspect of the presumption of innocence extends beyond, and applies even independently of any pending court proceedings. As reflected consistently in the comments, decisions or judgments of, inter alia, the United Nations Human Rights Committee, the African Commission on Human and Peoples’ Rights and the European Court of Human Rights, relevant authorities, including prosecutors, must respect the presumption of innocence in their public statements and must ‘refrain from prejudging the outcome of a trial’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 26. “[T]he presumption of innocence does not necessarily require that a prosecutor remain silent and not comment on pending cases, but it imposes limitations on what he or she may say. As the European Court of Human Rights has explained, the presumption of innocence cannot ‘prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected’.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 27.

jurisprudence “[W]hile the Statute does not ascribe any public information role to the Prosecutor, such a role has been acknowledged by other international criminal courts and tribunals. Given his responsibility for carrying out investigations and collecting evidence, the Appeals Chamber considers that the Prosecutor may play an important role in informing affected communities and the public at large about on-going investigations and prosecutions. In doing so, however, he is constrained by his duty to respect the presumption of innocence.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 27. “[I]n distinguishing between acceptable statements by public authorities and those which violate the presumption of innocence, the European Court of Human Rights has distinguished between statements which describe allegations of suspicion and declarations of guilt. As an elected official of the Court and given his specific role under the Statute, which includes the duty to investigate incriminating and exonerating circumstances equally in order to establish the truth, the Prosecutor must take particular care to respect the presumption of innocence. With respect to the behaviour of prosecutors specifically, the Appeals Chamber notes that the codes of conduct or prosecution standards of other international jurisdictions indicate that a prosecutor should refrain from expressing any opinion on the guilt or innocence of the accused or the merits of issues which are sub judice, outside of court proceedings. Whether particular statements of the Prosecutor violate the presumption of innocence needs to be considered in light of all of the relevant circumstances.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 28. “The Appeals Chamber notes, however, that not every inappropriate statement or violation of this second aspect of the presumption of innocence by the Prosecutor necessarily provides a basis for his/her disqualification. The presumption of innocence and the impartiality of the Prosecutor, while related, protect different interests and are evaluated under different standards. It is only where his/her statements give rise to reasonable doubts as to the impartiality of the Prosecutor that disqualification is necessary and appropriate.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 29. “[T]he Appeals Chamber considers that the Prosecutor’s right to comment on such evidence is not without restriction and that he must respect the presumption of innocence. The Appeals Chamber considers that the

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i n te r p r et a t i o n a n d str u c t u r a l is s u e s high-profile nature of cases before the Court in general and of the case against Mr Gaddafi in particular, as well as the widespread or systematic nature of the crimes against humanity for which Mr Gaddafi is allegedly responsible, increase the importance of providing public information about the Court’s on-going activities. However, they also reinforce the need for caution as well as accuracy in any public comments. As the Prosecutor is the public face of the Court, there is a risk that public statements of the Prosecutor will be imputed to the Court as a whole. The Prosecutor must therefore exercise due caution in his statements and refrain from creating the appearance of prejudging issues which are sub judice.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 30. “[T]he Prosecutor did not exercise sufficient caution, either in the manner in which the interview was conducted or in the content of his statements. The Prosecutor discussed the case in depth and specific evidence against Mr Gaddafi. For nearly three hours, the Prosecutor and Mr Sands reviewed and analysed a 38-minute speech of Mr Gaddafi, with the Prosecutor frequently commenting on the veracity of Mr Gaddafi’s statements or on the evidence against him. The Appeals Chamber considers that this detailed discussion of evidence was inappropriate in the context of a media interview.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 31. “The Appeals Chamber finds that the Prosecutor’s statements on these sub judice matters were inappropriate in that they gave the impression that factual issues yet to be determined by the judges had been determined or could not be contested.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 31. “[T]he Prosecutor’s behaviour was clearly inappropriate in light of the presumption of innocence. Such behaviour not only reflects poorly on the Prosecutor but also, given that the Prosecutor is an elected official of the Court and that his statements are often imputed to the Court as whole, may lead observers to question the integrity of the Court as a whole.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 33.

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“[T]he Appeals Chamber finds that the Prosecutor’s statements do not amount to grounds for his disqualification. A reasonable observer, properly informed, is aware of the functions of the Prosecutor. Such observer would have understood that the Prosecutor’s statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence. That the Prosecutor manifested a certain conviction about the evidence is to be expected. A reasonable observer, properly informed, would not conclude that the Prosecutor’s conviction was not based on the evidence, was otherwise biased or would lead to the neglect of his duties under article 54(1)(a) and (c) of the Statute. As such, the Appeals Chamber finds that the Prosecutor’s statements do not lead to the conclusion that his impartiality might reasonably be doubted.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 34. “[I]t is the responsibility of the Pre-Trial and Trial Chambers to ensure fair and expeditious proceedings and that this responsibility empowers these Chambers to take measures where the Prosecutor’s conduct is inappropriate. Statements which may be inappropriate in light of the presumption of innocence but which do not cast doubt on the Prosecutor’s impartiality may be subject to, and may require the taking of other measures by the Pre-Trial or Trial Chamber responsible for the case. Such measures may include orders directing the Prosecutor to limit his/her public statements, various remedial measures to address any damage done by such statements, the issuing of a reminder to the Prosecutor of his/her obligations, a judicial reprimand or expression of discontent, or, where appropriate and subject to the provisions of the Statute and the Rules of Procedure and Evidence and the protections of due process guaranteed therein, the institution of proceedings for misconduct under articles 46, 47 or 71 of the Statute, including where the Prosecutor fails to comply with any directions or orders of the relevant Chamber in this regard.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 35.

7.4 Alleged Objective Appearance that the Prosecutor is Affiliated with the Relevant State’s Position on the Admissibility of a Case as a Ground for Disqualification “The preamble and articles 1 and 17(1)(a) and (b) of the Statute lay down that the Court is complementary to national criminal

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i n te r p r et a t i o n a n d s tr u c t u r a l is s u e s jurisdictions, that is, the Court only investigates and prosecutes if a State having jurisdiction does not investigate or prosecute a case, or, if it investigates or prosecutes a case, the State is or was ‘unwilling or unable genuinely to carry out the investigation or prosecution’. The Prosecutor’s statements that Libya has the right to prosecute Mr Gaddafi merely restate the principle of complementarity as contained in the Statute. The Appeals Chamber notes that, in discussing the possibility of prosecution by Libya, the Prosecutor repeatedly stated that the admissibility of the case is for the judges to decide.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 38. “The Appeals Chamber finds further that it is not inappropriate for the Prosecutor to discuss issues related to the admissibility of the case with the relevant State for two reasons. First, in order to ascertain whether a case is, at any given moment, admissible, the Prosecutor will have to inquire into the activities of States, including their intentions and their progress in investigating and prosecuting particular cases. This will require the Prosecutor to have contact with such States. Second, pursuant to article 93(10) of the Statute, the Court, including the Prosecutor, may cooperate with and provide assistance to States in their investigation or trial of crimes within the jurisdiction of the Court. Even if the Prosecutor’s cooperation or assistance would have the effect of rendering a case before the Court inadmissible, this would not render such action improper.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 39. “[T]he Prosecutor’s refusal to take a public position on the validity of Libya’s challenge to the admissibility of the case suggests that he is carrying out his duty to weigh the merits of the admissibility challenge before taking a position thereon. The fact that the Prosecutor ultimately may take a different position in this case from the positions he has taken in other cases does not necessarily cast doubt on his impartiality. Impartiality cannot mean that the Prosecutor must take the same position in each case. Rather, it means that each case must be viewed on its own merits.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 41.

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V Defence Counsel, Duty Counsel and Other Forms of Representation 1 Defence Counsel: Role, Appointment and Conflict of Interests 1.1 The Role of Defence Counsel “[T]he legal instruments of the Court provide for, at least, two types of Counsel for the Defence. Article 67(1)(d) of the Statute provides, inter alia, for the right of an accused person ‘to conduct the defence [. . .] through counsel of the accused’s choosing’. An important characteristic of defence counsel under article 67(1)(d) of the Statute is that counsel represents the individual entitled to legal assistance. Under this form of representation a client and counsel relationship exists, and counsel acts for and as agent of the client.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 53. “The right of the accused to legal representation by counsel as well as the corresponding right of a person against whom charges have been laid is safeguarded as his/her fundamental right under the provisions of article 67(1)(d) of the Statute and rule 121(1) of the Rules of Procedure and Evidence. Such a right is a universally recognized human right.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “Regulation 74(2) of the Regulations of the Court describes this relationship between defence counsel and the person entitled to legal assistance [. . .] Chapter 2 of the Code of Conduct, entitled ‘Representation by counsel’, also lays down rules and principles for such representation.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 53–54.

1.2 The Right to Choose Counsel “[T]he choice of counsel lies with the person and once appointed, counsel can conduct the defence of the individual.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “[I]t is in the interest of justice that the Appellant should be represented by a counsel of his choice in the present proceedings [. . .], and by counsel that will have the overall conduct of the Appellant’s case from the current stage of the proceedings and onwards [. . .].”

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i n te r pr et a t i o n a nd str u c t u r a l is s u e s Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “What cannot be denied to the accused or a person under charge is a reasonable opportunity to appoint counsel of their choice and affording them adequate time and facilities to prepare their defence.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “The right to choose counsel for the representation of a person in legal proceedings must, like every right of the accused or the person under charge, be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 15.

1.3

Role of Assistants to Counsel “Such help or support as assistants to counsel may render to the Appellant is no substitute for the services of counsel.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 14.

1.4

Procedure for Appointment of Counsel The filing of a document “in the nature of a power of attorney authorizing named counsel to act on his behalf [. . .] does not complete the process of appointment of counsel. What is needed is an indication from counsel that he/she is willing to represent the accused. In accordance with regulation 75(1) of the Regulations of the Court, counsel must express his/her readiness to represent the person to the Registrar who shall thereafter see that a power of attorney is duly filed.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 2.

1.5

Conflicts of Interests: Former OTP Staff Members as Defence Counsel

a Article 64(2) is the Correct Legal Basis for the Chambers to Rule on the Validity of the Appointment of Former OTP Staff as Defence Counsel “The Appeals Chamber considers that protecting the integrity of the proceedings [. . .] is a matter that is necessarily within the jurisdiction of the Pre-Trial Chamber and that its approach [in initiating

jurisprudence proceedings proprio motu94] was therefore appropriate. The Pre-Trial Chamber did not expressly mention article 64 of the Statute in coming to its decision [. . .]. However, the essence of its relevant underlying principles – ensuring ‘that a trial is fair and expeditious and is conducted with full respect for the rights of the accused’ and adopting ‘such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings’ – were clearly behind the Pre-Trial Chamber’s approach to this issue.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 46; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 30. “[A]rticle 64(2) of the Statute was the correct legal basis for the Trial Chamber to act upon the request of the Prosecutor to invalidate the appointment of counsel.” Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 30.

b Application of Article 12(1)(b) of the Code of Professional Conduct for Counsel on the Validity of the Appointment of Former OTP Staff “The Code is a part of the Court’s applicable law under article 21(1)(a) of the Statute, which requires the Court to apply, in the first place, its Statute, Elements of Crimes and Rules of Procedure and Evidence. Rule 8 of the Rules of Procedure and Evidence mandates the drawing up of a Code of Professional Conduct for Counsel.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 48. “Although the Pre-Trial Chamber was thus acting to protect the fairness and integrity of the proceedings, the Appeals Chamber considers that the Pre-Trial Chamber, in deciding this issue, was equally correct to have regard to the Code, and, in particular, the standard laid down in its article 12.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 47. “Given that the Code [article 12(1)(b)] directly regulates the situation under consideration in the current appeal [impediments to representation after having been privy to confidential information as a staff member of the Court in relation to the case in which they seek to appear], the Appeals 94

See, para. 14.

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i n t e r p r e t a ti o n a n d st r u c t ur a l is s u e s Chamber determines that it was therefore appropriate for the Pre-Trial Chamber to draw upon its provisions in adopting a standard to ensure that the proceedings were fair and that their integrity was protected.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, paras. 49–50; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 31. “Article 12(1)(b) of the Code prohibits counsel from appearing in a case in which he or she was involved or privy to confidential information as a staff member of the Court – the OTP being an organ of the Court. Preventing counsel from appearing in such circumstances, but permitting impediments to representation on this basis to be lifted if deemed to be justified in the interests of justice, is consistent with ensuring that a trial is fair and protecting the integrity of the proceedings.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 51. Note that article 12(1)(b) is equally applicable in cases where the former OTP staff is not the lead counsel of the Defence, but “is practising before the Court as counsel within the meaning of article 1 of the Code, and he is therefore, bound by its provisions”. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 48; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 31.

c

Standard under Article 12(1)(b): Knowledge of Confidential Information Relating to the Case in which Counsel Seeks to Appear “[F]or an impediment to representation to arise based upon the fact that counsel was ‘privy to confidential information’ as a staff member of the Court within the meaning of article 12(1)(b) of the Code, counsel has to have had knowledge of confidential information relating to the case in which counsel seeks to appear.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 64, see also para. 52; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 32. “The Appeals Chamber considers that, ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established, as one would usually follow from the other.”

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Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 68. “The threshold imposed by article 12(1)(b) of the Code for preventing counsel from representing a client is therefore not a high one.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 54. “[T]he Appeals Chamber rejects the argument of the Prosecutor that a socalled ‘objective standard’ should apply to the matters under consideration, resulting in all members of the OTP being deemed to be privy to confidential information relating to any case that was open at the time of their employment at the OTP [. . .]. There is nothing in the wording of article 12 of the Code, nor indeed in any other provision of the Court’s governing texts, that indicates that there should be a general bar [. . .] on former staff members of the OTP representing the defence [. . .]. [P]rior association with the OTP does not, per se, disqualify a former OTP staff member from working for the defence. The fact that a case was already open by the time that counsel left the employ of the OTP would not, without more, disqualify counsel from acting for the defence in that case. A conflict of interest must be established.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 58. “The Appeals Chamber recalls that the Pre-Trial Chamber added a further qualification to the requirement of being ‘privy to confidential information’, namely that the confidential information needed to be ‘of some significance’. The Appeals Chamber cannot agree with this interpretation. The phrase ‘privy to confidential information’ is clear and unambiguous. It need not and should not be qualified in any way. To require that the shared information be ‘more than de minimis’ or ‘of some significance’ alters the plain meaning of the phrase.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 65; Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 34.

d

Meaning of “Privy to Confidential Information [. . .] Relating to the Case” “[T]he Trial Chamber [. . .] was correct to interpret the words ‘privy to confidential information’ as meaning ‘being aware of’ or being in ‘possession’ of confidential information (there not being any material difference between those two phrases in the present context).”

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interpretation and s tr uctural issues Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09-252 OA, 11 November 2011, para. 32. “[T]he wording of article 12(1)(b) refers to a case in which counsel ‘was privy to confidential information’, not whether counsel ‘was or could have been’ privy to that information or had ‘the possibility to become aware of the relevant confidential information’.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 53. “[I]f the Prosecutor wishes to challenge the assignment of a particular person as counsel, it is not unreasonable for him to have to demonstrate knowledge of confidential information relating to the case [. . .]. [T]his does not need to be information which counsel presently ‘recalls’ – all that is required is to prove that counsel once had knowledge of the particular information.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 56. “[C]ounsel should be aware that the phrase [confidential information] extends in principle to internal assessments about the strengths and weaknesses of a particular case.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 67.

e How to Prove that Counsel was Privy to Confidential Information Relating to the Case “There are various methods by which the Prosecutor could prove relevant knowledge of one of his staff members in these circumstances, whether by use of methods attempted in the present case (evidence from other staff members, electronic records of materials accessed, records of meetings or e-mail distribution lists) or, indeed, by any other appropriate means by which the Prosecutor can substantiate his allegations.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 57.

f

Counsel’s Responsibility to Ensure that there is no Conflict of Interest “It is, in the first instance, counsel’s responsibility to ensure that an impediment to representation and/or a conflict of interest does not arise, in accordance with his or her professional obligations under the Code. First and foremost, counsel must not take on a case in relation to

jurisprudence which he or she was privy to any confidential information as a member of the OTP [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 54. “Given both the nature of the obligation and those potential consequences [being disqualified from the case, disciplinary proceedings and tarnishing the counsel’s professional reputation], the Appeals Chamber would expect counsel to err on the side of caution and either not agree to represent a client at all or, certainly, immediately bring the matter before the relevant Chamber pursuant to article 12(1)(b) of the Code prior to agreeing to represent a client if in any doubt at all about the application of the provisions to him or her.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 55.

g

The Appearance of Impropriety “[T]he Appeals Chamber does not regard there to be a risk of an appearance of impropriety in circumstances in which counsel has unequivocally concluded that he or she was neither involved in nor was privy to any confidential information relating to the case, nor that any conflict of interest arises; nor has it been established by the Prosecutor that counsel did have any such impediment to representation. In other words, without more, it cannot be said that there is an appearance of impropriety arising out of the mere fact of having previously worked for the OTP regardless of the circumstances.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 60.

h Exceptions to the “Knowledge of Confidential Information” Standard where Justified in the Interests of Justice “The Appeals Chamber considers that, ordinarily, a conflict of interest will be presumed once knowledge of confidential information has been established [. . .]. However, there are circumstances in which there may not be any real conflict of interest or other impediment to representation. The second sentence of article 12(1)(b) of the Code expressly provides for this possibility in providing that the lifting of the impediment to representation under that article may be ordered by the Court ‘at counsel’s request’ and ‘if deemed justified in the interests of justice’.”

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i n t e r p r e t a t i o n a n d st r uc t u r a l is s u e s Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 68. “[T]he Pre-Trial Chamber should have adopted a legal standard that addressed (i) whether counsel was aware of any confidential information relating to the case and (ii) if so, whether it was nevertheless in the interests of justice for counsel to be permitted to represent the accused.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 66. “It is not possible, in the abstract, to define exhaustively what might be ‘in the interests of justice’: this will depend upon all relevant factors and circumstances of a particular case. However [. . .] one of the factors that may be considered is likely to be the nature of the confidential information itself. If it is of a ‘de minimis’ nature [. . .] being ‘so insignificant that a court may overlook it in deciding an issue or case’ – this might well be a factor that convinces the Chamber that it is in the interests of justice to permit this particular counsel to represent the accused.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 69. “Other factors that might be considered [. . .] could include the rights of the accused, counsel’s position within the defence team, and concerns about the overall fairness or the appearance of impropriety in relation to the proceedings arising, in the specific circumstances, out of the fact that counsel possessed confidential information relating to the case.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 70. “This broad discretion [to lift the impediment to representation] afforded to the Chamber under article 12(1)(b) of the Code is again consistent with its primary duty to ensure that the proceedings as a whole are fair.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 69. “The Appeals Chamber notes the argument of the Prosecutor that the employment contracts of his staff and the Staff Rules oblige members of the OTP to recognise that everything is confidential within the OTP and to maintain that confidentiality [. . .]. The third sentence of article 12(1) (b) of the Code makes clear that counsel shall ‘still be bound by the duties of confidentiality stemming from his or her former position as a staff

jurisprudence member of the Court’, even if the impediment to representation is lifted by the Court.” Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 63.

2 The Role of the Duty Counsel “Regulation 73(2) aims to harmonize the ends of a fair and expeditious trial with the rights of the accused or a person under charge. It is specifically designed to address the situation where a person has not yet secured legal assistance and yet wishes such aid for his/her defence. Regulation 73(2) is applicable in cases ‘where the person requires urgent legal assistance’.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 6. “The wishes of the person in need of representation are according to regulation 73(2) of the Regulations of the Court a specific factor to which regard must be had before appointing duty counsel.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13; Prosecutor v. Lubanga, Appeals Chamber’s Decision to Extend the Time Limits for Defence Documents, ICC-01/04-01/06-857 OA8, 3 April 2007, para. 3. “In the necessitous circumstances envisioned by regulations 73 and 75 of the Regulations of the Court, duty counsel can represent the accused or the person under charge.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “[T]he appointment of duty counsel is made neither in lieu of the appointment of counsel of the Appellant’s choice nor is it meant to supplant counsel if one is appointed in the meantime. The authority of duty counsel will be confined to representing the Appellant in the submission of the two documents under consideration.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 8.

3 The Role of Ad Hoc Counsel: To Represent the Interests of the Defence “The legal instruments of the Court [notably article 56(1)(b) and article 56(2)(d)] also provide for another form of Counsel for the Defence. [. . .]

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i nt er p r et at i o n an d st r u c tu ral i ssu es The mandate of ‘counsel to attend and represent the interests of the defence’ is of a sui generis nature and must be understood differently from the mandate of counsel who has been appointed to represent suspects as individuals.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 55–56. “In circumstances where the suspects are at large and counsel is appointed to represent their interests generally in proceedings, such counsel cannot speak on their behalf. A client and counsel relationship does not exist between them, and counsel does not act for or as agent of the suspects. Counsel’s mandate is limited to merely assuming the defence perspective, with a view to safeguarding the interests of the suspects insofar as counsel can, in the circumstances, identify them. The provisions of the Code of Conduct regarding representation are therefore not directly applicable to such counsel.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 56.

4 The Role of the OPCD “Regulation 77(4) of the Regulations of the Court envisages that the Office of Public Counsel for the Defence can represent and protect ‘the rights of the defence during the initial stages of the investigation’, which is not the case with the proceedings pending before the Appeals Chamber. In addition, the Office of Public Counsel may, in virtue of the provisions of regulation 77(5) of the Regulations of the Court, provide support and assistance to defence counsel and to the person entitled to legal assistance.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “Neither provision [regulation 77(4) nor regulation 77(5)] can be validly invoked to sidestep the right of the person to appoint counsel of his/her choice to represent him/her in proceedings before the Court.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13.

B Jurisdiction and Admissibility

Commentary

ben batros Together, the concepts of jurisdiction and admissibility govern which cases the Court may hear. The issues that fall within their ambit – the scope of the Court’s jurisdiction, how that jurisdiction may be triggered, and the Court’s relationship with national proceedings once it is triggered – are foundational to the operation of the Court and were amongst the most controversial during the negotiation of the Statute.1 Yet, since the entry into force of the Statute, these issues have taken different paths. The provisions on jurisdiction and triggering have been considered to be fairly straightforward and uncontroversial, and have generated relatively little academic discussion.2 In contrast, the admissibility provisions were the subject of extensive debate. This imbalance is mirrored in the trajectory of these two issues before the Court, in particular the Appeals Chamber, in its early years. Appeals 1

2

E.g., Wilmshurst, E., “Jurisdiction of the Court”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International: The Hague, 1999), p. 127; Williams, S. A. and Schabas, W. A., “Article 12: Preconditions to the Exercise of Jurisdiction”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 547, para. 1; Holmes, J. T., “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law International: The Hague, 1999), p. 41 at p. 43. One exception is the discussion over the propriety of “self-referrals”: e.g., Arsanjani, M. and Reismann, M., “Developments at the International Criminal Court: The Law-in-Action of the ICC”, American Journal of International Law, Vol. 99, Issue 2 (2005), p. 394; Akhavan, P., “Developments at the ICC: The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the ICC”, American Journal of International Law, Vol. 99, Issue 2 (2005), p. 411; Stegmiller, I., The Pre-Investigation Stage of the ICC: Criteria for Situation Selection (Duncker & Humblot: Berlin, 2011), pp. 131–134; Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), pp. 309–312.

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on jurisdiction have been largely absent and the decisions have tended to focus on what can (and cannot) be appealed as a “decision with respect to jurisdiction” (article 82(1)(b)). In contrast, the admissibility of cases has been raised repeatedly, appealed in almost every instance, and has resulted in some of the most influential judgments issued by the Appeals Chamber to date. In addressing these questions, the Appeals Chamber has taken a restrained approach, basing its judgments first and foremost on the text of article 17, in line with its general principles of interpretation.3 Some of the debates over the principle of complementarity extend beyond the judicial determination of admissibility called for in article 17, as the Appeals Chamber itself has recognised. It has thus been careful in delineating the scope of judicial responsibility for complementarity through admissibility, declining to take an activist approach and extend its responsibilities based on policy arguments. However, it has also been conscious of those broader debates, and in its judgments has explained how it sees its interpretation as being consistent with the policy objectives of the Statute and the principle of complementarity.4 With both issues, this approach also reflects the nature of the situations before the Court. The early dominance of self-referrals both reduced the scope for judicial consideration of jurisdiction and had a significant impact on the aspects of admissibility which the Court examined. Questions of how to resolve the potential tension between sovereignty and the operations of the Court, or how to assess whether national proceedings are genuine or are being conducted to shield a person from the Court’s jurisdiction, simply did not arise in those early situations where the State in question had invited the Court’s involvement.

I Jurisdiction of the Court Given the strong focus on admissibility and the principle of complementarity by both academics and commentators since the entry into force of 3

4

See the commentary and digested cases under Chapter A, Interpretation and Structural Issues, section I(1), General Principles of Interpretation, above. E.g., Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 85–86. For an examination of the restraint showed by the Appeals Chamber in the first major inter partes appeal on admissibility, see Batros, B., “The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC”, Leiden Journal of International Law, Vol. 32, Issue 2 (2010), p. 343.

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the Statute, it is easy to forget how contentious the provisions regarding the jurisdiction of the Court and the mechanisms for triggering it were during the negotiation of the Statute. The Court has now initiated multiple investigations under each means of triggering jurisdiction: State referral (Uganda, Democratic Republic of Congo (DRC), Central African Republic (CAR) and Mali); UN Security Council referral (Darfur, Sudan and Libya); and proprio motu request by the Prosecutor (Kenya, Côte d’Ivoire and Georgia).5 Yet controversies have been few and far between. The fact that these provisions have attracted so little attention is a reflection of the consensus that developed around the balance struck during the negotiations and the relative clarity, of those provisions, with no novel standards such as “unwilling or unable” to debate. It also reflects the fact that the Prosecutor chose not to push the limits of the temporal or territorial jurisdiction of the Court, presenting cases that fell squarely within the basic parameters of the Court’s jurisdiction. Even the notion of what constitutes a “situation” within the jurisdiction of the Court, probably the richest source of academic discussion,6 has not been subject to litigation in the context of jurisdiction.7 The Appeals Chamber has taken a similarly conservative approach, setting out the basic components of jurisdiction and clarifying what does and does not go to the jurisdiction of the Court. It has reiterated that the jurisdiction of the Court has four aspects: • subject matter jurisdiction (ratione materiae), that is, the acts or crimes over which the Court can exercise jurisdiction (set out in articles 5–8); 5

6

7

Information current as at December 2016. As noted above, all State referrals have been from the territorial State – the so-called “self-referrals”. There have been no referrals of situations in one State from another State, the scenario that was primarily contemplated during the drafting of the Statute. However, this lack of contentious referrals should not be entirely surprising, given the traditional reluctance of States to refer violations of this nature committed by other States to adjudicatory mechanisms, e.g., the limited number of inter-state cases in regional human rights tribunals. E.g., Rastan, R., “Situation and Case: Defining the Parameters”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 421. The biggest potential for litigation over the scope of jurisdiction arose in the very earliest days of the Court’s operation when President Museveni of Uganda purported to refer to the Court the situation of the Lord’s Resistance Army (LRA). However, the Prosecutor made it clear that he accepted the referral of the entire situation in northern Uganda, not just the situation of crimes committed by the LRA. See the procedural history set out in Prosecutor v. Ongwen, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, ICC-02/04-01/15-44, 2 December 2005, in particular paras. 4–5.

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• personal jurisdiction (ratione personae), that is, those persons over whom the Court can exercise jurisdiction, which includes questions of both nationality (article 12(2)(b) and 12(3)) and age (article 26); • territorial jurisdiction (ratione loci) (article 12(2)(a), 12(3) and 13 (b)); and • temporal jurisdiction (ratione temporis), namely, that the Court cannot exercise its jurisdiction over conduct prior to its entry into force in respect of the person or territory in question (article 11, along with articles 24 and 126).8 The Appeals Chamber has not had cause to examine the content of these elements in detail, or to define their margins. It has had no opportunity to consider and clarify, for example, questions such as how article 12(1)(a) on territorial jurisdiction applies to crimes where the acts and results take place across multiple States; or how article 12(1)(b) on personal jurisdiction applies in the case of a suspect who holds dual nationality. Such questions simply have not yet arisen in the context of the Court’s operations.9 The only substantive issue of jurisdiction that the Appeals Chamber has addressed is to clarify that a declaration by a non-State Party accepting the jurisdiction of the Court is not assumed to be limited to past crimes, and that it will generally extend to crimes committed after the declaration has been lodged, unless the declaration stipulates otherwise.10 Instead, the limited discussion by the Appeals Chamber has primarily been directed towards what constitutes a “decision with respect to jurisdiction”, in most instances resisting attempts to enlarge the concept of “jurisdiction”. There are a handful of key issues – jurisdiction, admissibility, and detention or release – which are given special status in the Statute, with dedicated procedures for challenges and the ability to appeal as of right. The Appeals Chamber has consistently resisted attempts to expand these categories or use these procedures to 8

9

10

Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, paras. 21–22; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 32. The only case in which such a question could have been raised is Prosecutor v. Bemba, which involves a politician and alleged militia leader who held multiple nationalities and spent the bulk of his time in one country but was charged with crimes committed in a second country. However, these factors were not central to the case charged and, in any event, all countries concerned (the DRC and CAR) were States Parties to the Statute. Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, paras. 80–84.

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substantively challenge other issues.11 In the context of jurisdiction, it has ruled that whether the Prosecution had proved or could prove an element of a crime charged goes to the substantive merits of the case, and not to whether the Court has jurisdiction to consider that case.12 However, it subsequently clarified that the definition of an element of a crime charged, independent of the facts underpinning it, may dictate whether entire categories of conduct fall within the jurisdiction of the Court and may therefore properly be part of jurisdiction ratione materiae.13 It has also ruled that although the abuse of the procedural rights of a suspect or accused person is a matter that the Court must consider in the light of the obligation to interpret and apply the Statute consistent with internationally recognised human rights, as enshrined in article 21(3),14 it is not formally speaking a barrier to the exercise of jurisdiction.15 The only barriers to the exercise of jurisdiction established under the Statute are the criteria for the admissibility of cases set out in article 17.16

II The Criteria for Admissibility of a Case The changing composition of the situations before the Court has significantly influenced how the Appeals Chamber has dealt with 11

12

13

14

15

16

As the Appeals Chamber has noted, an “indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility” is not sufficient; rather, the decision must be based on a ruling that the case was or was not admissible or within the jurisdiction of the Court: see Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 15; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012, para. 13. See also the digested cases under Chapter D, Arrest and Detention, section I(5), Relationship between ICC Warrant and Domestic Procedures, below. Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11-414 OA3 OA4, 24 May 2012, para. 30; Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1225 OA2, 22 March 2016, paras. 36–38. Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/06-1225 OA2, 22 March 2016, paras. 36–41. See the digested cases under Chapter H, Fairness, Expeditiousness of the Proceedings and Rights of the Accused, Section IX, Stay of Proceedings for Denial of Fairness or Abuse of Process, below. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06772 OA4, 14 December 2006, para. 34. Ibid.

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admissibility, effectively leading to three generations of litigation and resulting jurisprudence. Admissibility was originally conceived as being, first and foremost, protective of the interests of States.17 A challenge to admissibility was premised on the fact that a State had asserted its primary right to exercise jurisdiction.18 However, it was not until the third generation of admissibility litigation that we saw this dynamic explored before the Court.

a Early Decisions: Process and Structure The first generation of admissibility litigation (up until September 2009) did not involve any challenge to admissibility, but was conducted at the initiative of the Pre-Trial Chamber. In these decisions, the Appeals Chamber gave little guidance on substantive law, although the jurisprudence contains the Appeals Chamber’s only examination of the requirement that a case be of “sufficient gravity” under article 17(1)(d), in which the Chamber expressed concern over the imposition of additional elements or requirements that are not in the Statute.19 Rather, in these decisions the Appeals Chamber focused on procedure, in particular the 17

18

19

E.g., Holmes, J. T., “The Principle of Complementarity”, in Lee (ed.), The International Criminal Court: The Making of the Rome Statute (Kluwer Law: The Hague, 1999), pp. 41–42, 74; Williams, S. A. and Schabas, W. A., “Article 17: Issues of Admissibility”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/ Baden-Baden, 2008), p. 606, para. 1; Holmes J. T., “Complementarity: National Courts vs the ICC”, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002), p. 668; Stahn, C., “Complementarity: A Tale of Two Notions”, Criminal Law Forum, Vol. 19, Issue 1 (2008), p. 87 at pp. 88 (referring to the classical vision of complementarity), 96. This same point has also been recognised by the Court, both the Appeals Chamber (Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 83, 85) and Trial Chamber (Prosecutor v. Katanga & Ngudjolo, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC01/04-01/07-1213-tENG, 16 June 2009, para. 78). This applies to challenges under article 17(1)(a)–(c), based on the principle of complementarity. Different considerations apply to challenges based on the gravity of the case, under article 17(1)(d): see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 594–596. E.g., clarifying that “large scale or systematic basis” cannot be made a requirement for the Court to exercise jurisdiction over war crimes, nor could its jurisdiction be formally limited to the “most senior leaders”: see Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–71, 77–79.

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circumstances in which a Pre-Trial Chamber ought to assess the admissibility of a case on its own motion.20 The second generation of admissibility litigation (from September 2009 through 2010) did involve challenges to admissibility, but they were initiated by a suspect or an accused rather than an aggrieved State. While it was always recognised that a suspect may challenge the admissibility of a case, in particular on the basis of ne bis in idem,21 the challenges in question were brought in the context of selfreferrals, where the territorial State (which would typically be expected to exercise jurisdiction) had invited the ICC to intervene and therefore opposed the admissibility challenge. These decisions clarified the basic architecture of the admissibility regime, in particular that any decision of inadmissibility requires the existence of a domestic investigation or prosecution, current or past.22 A case could not be inadmissible if the State was not investigating or prosecuting the case (and had not done so). Therefore, the Court would only look at whether the State is unwilling or unable to genuinely investigate or prosecute a case once it had found that there is (or was) such an investigation or prosecution. In the Appeals Chamber’s words, “[t]o do otherwise would be to put the cart before the horse”.23 While the language of article 17 may seem clear about the order of questions facing the Court when it states that “a case is inadmissible where: (a) [t]he case is being investigated or prosecuted by a State [. . .] unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”,24 the discussion of complementarity since the Statute 20

21

22

23

24

The decisions in this first generation of admissibility litigation address, in particular, the exercise of such discretion in cases where a suspect has not yet appeared before the Court: see Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04169 OA, 13 July 2006; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009. Such a right is expressly provided in article 19(2)(a), and article 17(1)(c) closely mirrors the protections in article 20(3): see further Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 592–594. With the exception of decisions declaring a case inadmissible for lack of gravity, under article 17(1)(d). Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 107. Robinson, D., “The Mysterious Mysteriousness of Complementarity”, Criminal Law Forum, Vol. 19, Issue 1 (2010), p. 67; Robinson, D.,“The Inaction Controversy:

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entered into force had focused so intently on what it meant to be “unwilling or unable” that a number of early challenges ignored this predicate question. The key challenges during this stage had essentially asserted that even though a State was not investigating a case, if this was for a reason other than unwillingness or inability, the case was therefore inadmissible and a State could not waive its obligation to investigate in favour of the ICC.25 This was rejected by the Chamber: if a State is not investigating and has not investigated the case, the reasons for this are irrelevant. Complementarity and admissibility are a way to resolve a conflict between competing jurisdictions,26 and thus cannot come into play where there is no such conflict, nor can the Court force a State to investigate and thus create the conflict of jurisdiction.27

b When is “the Case . . . Being Investigated or Prosecuted by a State”: Article 17(1)(a)? It was only with the third generation of admissibility litigation, beginning in March 2011 with the challenges to admissibility by Kenya,28 that one

25

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27

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Neglected Words and New Opportunities”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 460. E.g., Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 63, 100. Or, to put it more positively, to regulate how the Court and States work together in pursuit of their shared goals of the Statute, namely, putting an end to impunity: see Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 85–86, 11. See also Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 37, 44; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 36, 43; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 58. For a more detailed discussion of the evolution of the Court’s jurisprudence on admissibility through the first two generations, see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011; Prosecutor v. Muthaura, Kenyatta &

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saw States engaging with the Court to oppose its jurisdiction in contentious proceedings, asserting their primary right to exercise jurisdiction and bringing the type of challenges that had initially been foreseen by the drafters of the Statute. This finally led to important discussion of what a State must do to successfully assert primacy over the ICC and displace its jurisdiction. However, even at this stage, the jurisprudence has not evolved in the way one might have predicted at the Court’s inception. The basic structural clarification of the second generation of jurisprudence raised the questions of what it means for a State to be investigating a case, and what case a State must be investigating for the purposes of an admissibility challenge. Much of the third generation of admissibility litigation has continued to focus on what it means for a State to be investigating or prosecuting “the case”, with comparatively limited discussion of the aspect that had been the subject of so much academic discussion: “unwilling and unable”. From the outset, the Appeals Chamber has made it clear that for a State to claim that the case “is being investigated” requires that the case is under current and active investigation.29 Plans by the State to investigate a case, or assurances that it will investigate in due course, are not sufficient: they do not create a conflict of jurisdictions between the Court and the State which an admissibility determination is required to resolve. Rather, the Court requires that a State show that it has taken, and is taking, “concrete progressive investigative steps” such as interviewing witnesses, collecting documentary evidence, or conducting forensic analyses.30 In practice, the State would be expected to commence the investigation and then file a properly substantiated challenge once it is underway. However, this does not require that the domestic investigation

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Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 40; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 28. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 41, 62, 83; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 40, 61, 81; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 28–29.

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needs to be as advanced as the ICC case which the State is challenging, or to have collected the same (or the same amount of) evidence.31 In addition, it is not any investigation that will render an ICC case inadmissible. The Court has held, and the Appeals Chamber has confirmed, that it must be an investigation into “the same case”; that is, an investigation into whether the same individuals are criminally responsible for substantially the same conduct as alleged in the ICC case.32 Assessing whether the individuals are the same should be a simple matter, at least once a case has been initiated by the ICC.33 On the other hand, whether the conduct is “substantially the same” requires a degree of judgement. It will require looking at all of the circumstances of the cases, including the context of the crimes and the allegations against the suspects as a whole, to assess whether the domestic case “sufficiently mirrors” that before the ICC.34 Obviously, this does not 31

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Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 43; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 42. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 40; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 39. In those decisions, the Appeals Chamber referred to the individuals under investigation and the alleged conduct that they are being investigated for as the “defining elements” of the case. However, in the context of cases alleging that superiors are responsible for crimes physically committed by their subordinates, this means the same core conduct of the suspect and the same underlying incidents; it does not require that the same direct (subordinate) perpetrators be identified: Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 70. Although, in the light of the Appeals Chamber’s insistence on a current and active investigation, it would be expected that the investigation must be actively taking steps to assess the criminal responsibility of the individuals in the ICC case – formally adding them to an investigation which is in substance pursuing others is unlikely to suffice. On the other hand, the assessment would necessarily be broader if the admissibility of a situation is challenged before a case is formed. In that scenario, the investigation of people at the same hierarchical level as the ICC investigation is examining might suffice, but once an ICC “case” has been defined, then investigation of others will not render that case inadmissible, even if they are at the same level of responsibility: see Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 41–42; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, paras. 40–41. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 71–73. See also Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 99–100, 119.

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require that the cases be formally identical – the domestic case may cover a greater range of incidents or conduct than the ICC. Where the ICC case includes incidents or conduct that are not part of the domestic investigation, the Court must make a holistic assessment, inquiring why a particular incident was excluded, and its impact on the overall case. The absence of one or two incidents will not necessarily be fatal to an admissibility challenge, especially if they are broadly similar or less serious than others which are included in a large case. The Court must be realistic about the need for all judicial systems to present manageable cases, and will also consider any explanations for why a given incident is not included in its case. But if the domestic authorities are only investigating a few discrete aspects of a more substantial or systemic case before the ICC, it is unlikely that this would be considered “the same case”.35 In principle, the specific legal charges being pursued at the domestic level are not part of this analysis; rather, the focus is on the conduct of the suspect or accused.36 This is consistent with the Statute’s focus on whether a person “has already been tried for the conduct” (not the crimes) that is the subject of the case in determining whether the case is inadmissible under article 17(1)(c).37 Nevertheless, the Appeals Chamber has stated that the Court may consider the legal characterisation of the charges as “an additional indicator of the actual subject matter of the domestic proceedings”.38 One could thus imagine a situation in which the international dimension of the crimes (e.g., the systemic dimension of crimes against humanity) was omitted to minimise the seriousness of the conduct. In such a case, the legal characterisation may well matter as it does shed light on the true nature of the domestic case, consistent with the Appeals Chamber’s insistence that an admissibility 35

36

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38

Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 71–77; Prosecutor v. Gaddafi & Al-Senussi, Judgment on the Admissibility Appeal, ICC01/11-01/11-565 OA6, 24 July 2014, paras. 100–110. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 119. Article 20(3) similarly protects a person from being tried before the Court “with respect to the same conduct” as he or she had already been tried for in domestic courts. On the relationship between article 17(1)(c) and article 20, see Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 592–594. Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/1275-Red OA, 27 May 2015, para. 71.

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determination requires “an analysis of all the circumstances of a case, including the context of the crimes”.39

c When is “the State Unwilling or Unable”? As noted above, although the question of whether a State is “unwilling or unable genuinely to carry out the investigation or prosecution” was the focus of the scholarly debate over complementarity and admissibility following the finalisation of the Statute, this has not been reflected in the litigation of admissibility before the Court. Even once States began asserting their primary jurisdiction and challenging admissibility themselves, it has rarely been the basis for the Court’s rulings. Indeed, other than repeated reaffirmations of the structural point that unwillingness or inability are to be considered only once it has been established that there is an investigation or prosecution of the same case (or that an investigation was conducted and a decision taken to not prosecute), only one appeal has addressed the substance of this crucial component of the admissibility regime.40 The suspect claimed that although domestic proceedings were ongoing against him, the case should still be admissible before the ICC because his due process rights were being violated and the State should therefore be considered unwilling to genuinely investigate and prosecute.41 This forced the Appeals Chamber to confront the fact that the definition of “unwillingness” in article 17(2) directs the Court to “hav[e] regard to the principles of due process”, and that article 17(2) (c) refers to proceedings which “are not being conducted independently or impartially”.42 However, the Appeals Chamber rejected this argument. It did so by looking at the other requirements of article 17(2), including the need for deficiencies in domestic proceedings to be “inconsistent with an intent to bring the person concerned to justice” or “for the purpose of 39

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Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 99 (emphasis added). Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014. In some respects, this case is an outlier amongst the third generation of admissibility litigation otherwise dominated by State challenges: although the initial admissibility challenge was brought by a State, the Pre-Trial Chamber upheld that challenge and the suspect appealed that ruling, arguing that the case against him was admissible before the ICC. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 205–206. Ibid., para. 213.

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shielding the person concerned from criminal responsibility”, and at the purpose of the Statute (namely, to put an end to impunity).43 The concepts of unwillingness and inability are exceptions to be applied where a State appears to be actively pursuing a case, but the Court nevertheless claims jurisdiction, and are thus directed towards situations in which those apparent national proceedings are not genuine but are rather an attempt to “enable the suspect to evade justice”.44 The reference to “due process” was not designed to transform the admissibility regime into a mechanism for guaranteeing the fair trial rights of suspects generally before domestic courts, nor did it make the ICC a human rights court with the mandate to ensure that national legal systems complied with human rights standards.45 While there might be proceedings where lack of respect for the rights of the Accused were so egregious that the proceedings and outcome were contrary to any meaningful notion of justice, this was a “high threshold”.46

d Other Grounds for Inadmissibility The bulk of the challenges to admissibility and Appeals judgments have concerned whether the State is investigating the case, making it inadmissible under article 17(1)(a). There has been comparatively little consideration of, and guidance on, the other grounds for inadmissibility set out in article 17(1)(b), (c) and (d): • Article 17(1)(b) is structurally and substantively similar to article 17(1)(a) except that the investigation is no longer being actively pursued but has been concluded, with a determination that the individual in question should not be prosecuted. As a result, much of the analysis above will apply, including the need for there to have been a proper investigation of the responsibility of the individual for substantially the same conduct. The one aspect clarified by the Appeals Chamber in relation to this provision is related to its purpose, and thus what constitutes a decision “not to prosecute the person concerned”. This provision requires a decision that the individual should not be prosecuted, based on the merits of the investigation, and therefore does not cover decisions by a State to close an investigation without prosecuting the individual itself in order to 43 45

Ibid., paras. 214–217. 44 Ibid., para. 221. Ibid., paras. 218–219, see also para. 190. 46 Ibid., paras. 191, 230.

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transfer them to a different jurisdiction (including the ICC) for prosecution there.47 • Article 17(1)(c), which together with article 20 prohibits the re-trial of a person who has already been tried domestically for the same conduct, except in limited circumstances, has not yet been considered by the Court. • And article 17(1)(d), which provides that a case shall be inadmissible where it is “not of sufficient gravity”, has been addressed only briefly in one judgment. The Appeals Chamber emphasised that gravity must be assessed based on the circumstances of the case rather than rigid and abstract standards, for example, by declaring that no case could be admissible if it did not target the “most senior leaders”.48

III The Procedures for Reviewing or Challenging Admissibility Article 19 provides the procedural framework for challenging or reviewing admissibility. While article 19 is quite prescriptive about the rights of participants to challenge admissibility (article 19(2)–(5), (10)) and the impact of a challenge on on-going investigations (article 19(7)–(9), (11)), it provides significant discretion to a Chamber – both on whether to review the admissibility of a case on its own motion (article 19(1)),49 and how to conduct proceedings once a review or challenge has been initiated (rule 58(2)).50 Despite this broad discretion, the Appeals Chamber has cautioned PreTrial or Trial Chambers against making a review and finding of 47

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Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, paras. 75, 82–83. See also Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 574–577. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–79. See also Batros, B., “The Evolution of the ICC Jurisprudence on Admissibility”, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity, From Theory to Practice, Vol. I (Cambridge University Press: Cambridge, 2011), p. 558 at pp. 560–562, 577–578. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 48, 52; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 78 Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 88–89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 86–87.

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admissibility an obligatory and extra-statutory precondition for any stage, such as commencing a case by issuing a warrant of arrest.51 And in exercising its discretion whether to initiate a review of the admissibility of the case, a Chamber must consider the impact on the rights of the suspect or suspects. The nature of that impact will be influenced by a number of factors: whether the proceedings will be public or confidential; ex parte or inter partes; whether the suspect has been surrendered to or appeared before the Court (and therefore has a right to present submissions) or not; and, if not, whether any other provisions are made, on a discretionary basis, for ad hoc counsel to present observations from the perspective of the Defence.52 The impact of an admissibility determination on the rights of the Defence will also depend on the grounds on which admissibility is being determined. An ex parte determination that a case is admissible because it is of sufficient gravity, under article 17(1)(d), is likely to be more prejudicial to the absent suspects than one based on the state of current investigations because of the permanence of the underlying facts on which the determination is made: the gravity of crimes, at least past crimes, is unlikely to change over time; and it would be difficult for an absent suspect to subsequently challenge a finding that the case is of sufficient gravity.53 On the other hand, the admissibility (or inadmissibility) of a case based on the state of domestic investigations or prosecutions must be assessed on the facts as they stand at the time of each challenge or review. A State must show that it is currently investigating the case, and not that it was investigating it in the past or that it is planning to do so in the future. Put another way, the Court must determine whether the case is admissible or inadmissible, not that it was inadmissible or that it could or should be inadmissible if the State was to act differently in the future.54 The simple 51

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Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 42–43. See also the digested cases under Chapter D, Arrest and Detention, section I(2), Requirements for Issuing a Warrant, below. Contrast Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC01/04-169 OA, 13 July 2006, paras. 48–52 with Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 84–85. The Appeals Chamber has recognised that arguably the gravity of a case will be determined only once during proceedings: Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56, see also paras. 80, 111; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility

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reality is that the underlying facts regarding the status and scope of a State’s investigation are much more likely to change over time, in ways that may render a case either admissible or inadmissible, than are the facts governing the gravity of the crimes charged. As discussed above, a finding that the case is inadmissible requires the Court to find that the State is taking concrete and progressive steps to assess the criminal responsibility of the suspects for substantially the same case as is before the ICC. If the challenge to admissibility is lodged by a State, then the State has the burden of proving those facts: not only that it is investigating, but that the parameters of the case under investigation are indeed substantially the same as the ICC case. And to do so, the State must provide more than mere assertions of the status and nature of the investigation; the State must provide evidence “of a sufficient degree of specificity and probative value” to demonstrate the nature of the case and the investigation.55 Indeed, if a State cannot demonstrate what case it is investigating, then the Court may well not accept that a proper investigation is underway.56 That said, if the suspect makes certain assertions, for example, regarding the (un)willingness or (in)ability of the State or the genuineness of the investigation, then they may be required to provide evidence to substantiate these.57 The obligation on States to provide substantive evidence that demonstrates the nature of the investigation and its progress might at times be in tension with the obligation on States in article 19(5) to

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of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 62–63; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 61–62; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/ 09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 32. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 2, 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, paras. 2, 61; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 128. Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/1275-Red OA, 27 May 2015, para. 88; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11547-Red OA4, 21 May 2014, para. 83. Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 166–167.

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submit a challenge to admissibility “at the earliest opportunity”. States cannot use this statutory guidance as an excuse for bringing a challenge prematurely, and finding themselves unable to provide the necessary evidence that an investigation that sufficiently addresses the same case is actually underway. Nor, given the Chamber’s discretion in the conduct of proceedings, can they be assured of an opportunity to amend their challenge or submit additional evidence just because they lodged a challenge prematurely. Rather, the obligation to challenge “at the earliest opportunity” means as soon as a State is able to actually assert (and substantiate) the necessary conflict of jurisdictions.58

Jurisprudence I Jurisdiction of the Court 1 Four Facets of Jurisdiction of the Court “The notion of jurisdiction has four different facets: subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction – jurisdiction ratione loci – and lastly jurisdiction ratione temporis.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04–01/06-772 OA4, 14 December 2006, para. 21; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 32. “The jurisdiction of the Court is laid down in the Statute. Article 5 specifies the subject-matter of the jurisdiction of the Court, namely, the crimes over which the Court has jurisdiction, sequentially defined in articles 6, 7 and 8. Jurisdiction over persons is dealt with in articles 12 and 26, while territorial jurisdiction is specified by articles 12 and 13(b), depending on the origin of the proceedings. Lastly, jurisdiction ratione temporis is defined by article 11.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04–01/06-772 OA4, 14 December 2006, para. 22.

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Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 46, 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 45, 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35.

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2 Barriers and Challenges to the Exercise of the Jurisdiction “The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article 17, referable in the first place to complementarity (article 17(1)(a)–(b)) in the second to ne bis in idem (articles 17(1)(c), 20) and thirdly to the gravity of the offence (article 17(1) (d)). The presence of anyone of the aforesaid impediments enumerated in article 17 renders the case inadmissible and as such non-justiciable.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 23. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 24; see also para. 34. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 24. “Jurisdiction apart, admissibility is the only ground envisaged by the Statute for which the Court may validly refrain from assuming or exercising jurisdiction in any given cause.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34. “The right to apply for asylum and the principle of non-refoulement, as well as the right to an effective remedy are internationally recognised human rights. The Court, however, has no jurisdiction over the Detained Witnesses’ asylum claims as they fall within the sole purview of the Netherlands [. . .]. [T]he right to an effective remedy is also solely an obligation of the Netherlands vis-à-vis the Detained Witnesses, not of this Court.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 OA, 20 January 2014, para. 24. “[T]he Appeals Chamber must take note of the specific circumstances of this situation, particularly that the Detained Witnesses are in the physical custody of the Court in the Netherlands, which, in the Appeals Chamber’s view, could impact upon the Detained Witnesses’ internationally recognised human right to an effective remedy from the Netherlands in respect of their asylum claims. Thus, the Appeals Chamber considers that, in this

jurisprudence specific situation, the Court should not frustrate the Netherlands’ ability to give effect to the Detained Witnesses’ human right to an effective remedy in respect of their asylum claims.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 OA, 20 January 2014, para. 24.

2.1 Challenges to Jurisdiction Ratione Materiae “[T]he interpretation and existence of an ‘organizational policy’ relate to the substantive merits of this case as opposed to the issue of whether the Court has subject-matter jurisdiction to consider such questions.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 30. “As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which Mr Muthaura and Mr Kenyatta have been charged [. . .]. Even if the Trial Chamber were not to find, in law or on the evidence, that there was an ‘organisational policy’, this would not mean that the Court did not have jurisdiction over the case but rather that crimes against humanity were not committed.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 30. “The Appeals Chamber underlines that, in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, it did not address, nor was it faced with the question of whether resolving a legal issue alone could have resulted in the crimes charged falling outside the jurisdiction of the Court. As stated above, the challenges under examination in those appeals required the resolution of the question of whether an organizational policy existed both in law and in fact.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 36. “The Appeals Chamber finds the issue in the present case to be distinguishable from those raised in the Kenya cases. Mr Ntaganda’s Challenge requires an exclusively legal determination as to whether the factual

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j ur i s di ct i o n a n d admissib ility allegations correspond to the crime under international humanitarian law. If his arguments were to be accepted, the result would be a finding that the Statute restricts the applicability of war crimes in a way that fully excludes the set of facts as charged. The Appeals Chamber notes that, in contrast to the challenges considered in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, no additional factual or evidentiary determinations are required in the present case in order to resolve the legal issue raised by Mr Ntaganda. In this regard, the scope of the group intended by the Prosecutor to fall within the description ‘child soldiers’ is clearly specified to be ‘children under the age of fifteen years who were members of the UPC/FPLC’ and this allegation is undisputed for the purposes of the present appeal.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 37. “The Appeals Chamber acknowledges that references to the jurisprudence of the ad hoc tribunals and the Extraordinary Chambers in the Courts of Cambodia and certain findings in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision may suggest that the question of subject-matter jurisdiction is limited to whether the Prosecutor has alleged crimes that are listed in the Statute, and that any other legal or factual issues related to the exercise of this jurisdiction must be determined on the merits. However, these findings must be read in light of the context in which they appear, namely, in rejecting the argument that a finding that the contextual elements of crimes against humanity exist in law and in fact is per se a jurisdictional matter and that any challenge to these findings, legal or factual, is necessarily jurisdictional in nature.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 38. “[T]he question of whether the Court has subject-matter jurisdiction cannot be confined exclusively to an examination of whether the Prosecutor has successfully recited the elements of a crime listed under article 5 of the Statute. In certain circumstances, the question of whether the facts alleged correspond to the crime charged may also acquire a jurisdictional dimension. This is so, for example, where a particular legal interpretation could result in the allegations being characterised either as an ordinary crime as opposed to one of the crimes over which the Court has jurisdiction or simply as non-criminal in nature. The Appeals Chamber finds that challenges, which would, if successful, eliminate the legal basis for a charge on the facts alleged by the Prosecutor may be considered to be jurisdictional challenges. Accordingly, some verification as to whether the facts alleged correspond in law to the crimes

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charged may be necessary, depending on the circumstances, in order to determine whether the Court has jurisdiction over such crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 39. “In the context of the present case, the Appeals Chamber finds that the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature. If the Trial Chamber were to determine that the war crimes of rape and sexual slavery under article 8(2) (e)(vi) of the Statute cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator, the necessary implication would be that article 8(2)(e)(vi) of the Statute per se excludes from its ambit the acts of rape and sexual slavery against child soldiers as charged in this case. Accordingly, the Trial Chamber would not need to address whether, on the basis of the evidence submitted and discussed before it, the Prosecutor had succeeded in proving the relevant allegations. The Appeals Chamber considers that the appropriate result of such a legal finding would be that the Court lacks jurisdiction ratione materiae to prosecute the alleged acts as war crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 40.

2.2 Matters Related to the Acceptance of Jurisdiction by Declaration (Article 12(3)) “Unless stipulated in the declaration under article 12(3) of the Statute, acceptance of jurisdiction is not limited to specific events or a specific ‘situation’ within the meaning of article 13 of the Statute. It may also cover crimes under article 5 of the Statute committed after the declaration has been lodged.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 1. “The effects of such a declaration [under article 12(3)] are that the Court may exercise its jurisdiction and that the State in question is obliged to cooperate with the Court in accordance with Part 9 of the Statute. Nevertheless, a State making a declaration under article 12(3) of the Statute does not, as a result, have all the rights or obligations of a State Party.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 74.

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j ur i s di ct i o n a n d admissib ility “The use of the words ‘crimes referred to in article 5’ indicates that the term ‘crime in question’ in article 12(3) of the Statute refers to the categories of crimes in article 5 of the Statute, that is, genocide, crimes against humanity, war crimes and the crime of aggression, and not to specific events in the past, in the course of which such crimes were committed.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 80. “[I]n the absence of a stipulation in the declaration under article 12(3) of the Statute, the acceptance of jurisdiction is not limited to a given ‘situation’ in terms of article 13 of the Statute, as appears to have been the view of the Pre-Trial Chamber.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 81. “[S]ubject to any stipulations made in the declaration of acceptance, if a State accepts the jurisdiction of the Court under article 12(3) of the Statute, the acceptance is general and the question of whether a ‘situation’ exists becomes relevant only once the Court considers whether it may exercise its jurisdiction pursuant to article 13 of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 82. “[T]he Appeals Chamber notes that the Statute also serves the purpose of deterring the commission of crimes in the future, and not only of addressing crimes committed in the past. This supports the interpretation that article 12(3) of the Statute does not prevent a State from accepting the jurisdiction of the Court prospectively, with the consequence that the Court has jurisdiction in respect of any future events that may fall within one or more of the categories of crimes in article 5 of the Statute, as applicable.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 83. “[T]he phrase ‘crime in question’ in article 12(3) of the Statute neither limits the scope of a declaration to crimes that occurred in the past nor to crimes committed in a specific ‘situation’. A State may accept the jurisdiction of the Court generally. This is not to suggest that a State, when accepting the jurisdiction of the Court, may not further limit the acceptance of jurisdiction within the parameters of the Court’s legal framework. However, unless such a stipulation is made, the acceptance of jurisdiction

jurisprudence is neither restricted to crimes that pre-date the declaration nor to specific ‘situations’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 84. “[A]n amnesty law necessarily refers to past crimes and is a mechanism distinct from, and not related to, a declaration under article 12(3) of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 86.

II The Criteria for Admissibility of a Case “The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article 17, referable in the first place to complementarity (article 17(1)(a)–(b)), in the second to ne bis in idem (articles 17(1)(c), 20), and thirdly to the gravity of the offence (article 17(1)(d)). The presence of anyone of the aforesaid impediments enumerated in article 17 renders the case inadmissible and as such nonjusticiable.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 23. “[A]rticle 17 applies not only to the determination of the admissibility of a concrete case (article 19 of the Statute), but also to preliminary admissibility rulings (article 18 of the Statute).” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 38; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 37.

1 The Case is Being Investigated or Prosecuted by a State (Article 17(1)(a)) “Article 17(1)(a) of the Statute covers a scenario where, at the time of the Court’s determination of the admissibility of the case, investigation or prosecution is taking place in a State having jurisdiction.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75.

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j u r i s d i c t i o n an d a d m i s s i b i l i t y “[I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions [. . .]. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 27. “If, at the time of the admissibility challenge, the State is investigating or prosecuting a case, or has investigated a case and decided not to prosecute, the case will be inadmissible before the Court, subject to the exceptions provided for in article 17(1)(a) and (b).” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “In determining whether a State is indeed investigating or prosecuting a case, the Chamber will need to be made aware of and be provided with documentation on the national criminal justice system of the State in question. Any standard and evaluation of evidence in this respect will need to be based upon the principle that States should be treated according to equal or similar standards.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 27. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 27. Diss. Op. “The meaning of the words ‘case is being investigated’ in article 17(1)(a) of the Statute must [. . .] be understood in the context to which it is applied. For the purpose of proceedings relating to the initiation of an investigation into a situation (articles 15 and 53(1) of the Statute), the contours of the likely cases will often be relatively vague because the investigations of the Prosecutor are at their initial stages. The same is true for preliminary admissibility challenges under article 18 of the Statute. Often, no individual suspects will have been identified at this stage, nor will the exact conduct nor its legal classification be clear.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 39; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s

jurisprudence Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 38. “[U]nder article 17(1)(a), first alternative, the question is not merely a question of ‘investigation’ in the abstract, but is whether the same case is being investigated by both the Court and a national jurisdiction.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 37; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 36. “The parameters of a ‘case’ are defined by the suspect under investigation and the conduct that gives rise to the criminal liability under the Statute [. . .]. The ‘conduct’ that defines the ‘case’ is both that of the suspect [. . .] and that described in the incidents under investigation which is imputed to the suspect. ‘Incident’ is understood as referring to a historical event, defined in time and place, in the course of which crimes within the jurisdiction of the Court were allegedly committed by one or more direct perpetrators. The exact scope of an incident cannot be determined in the abstract. What is required is an analysis of all the circumstances of a case, including the context of the crimes and the overall allegations against the suspect.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 62; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC01/11-01/11-565 OA6, 24 July 2014, para. 99.

2 The “Same Person”/“Substantially the Same Conduct” Test “[A]rticle 19 of the Statute relates to the admissibility of concrete cases. The cases are defined by the warrant of arrest or summons to appear issued under article 58, or the charges brought by the Prosecutor and confirmed by the Pre-Trial Chamber under article 61 [. . .]. Thus, the defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(1)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 40; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 39.

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j ur i s di ct i o n a n d admissib ility “[F]or a successful challenge of the admissibility of a case under articles 17(1)(a), first alternative, and 19 of the Statute, the same case as that before the Court must be under investigation by a State, that is, the State must take steps directed at ascertaining whether the suspects are responsible for substantially the same conduct as that alleged in the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 61. “The Admissibility Challenge that gave rise to the present appeal was brought under article 19(2)(b) of the Statute in relation to a case in which a summons to appear has been issued against specific suspects for specific conduct. Accordingly, as regards the present appeal, the ‘case’ in terms of article 17(1)(a) is the case as defined in the summons. This case is only inadmissible before the Court if the same suspects are being investigated by Kenya for substantially the same conduct.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “At this stage of the proceedings, where summonses to appear have been issued, the question is no longer whether suspects at the same hierarchical level are being investigated by Kenya, but whether the same suspects are the subject of investigation by both jurisdictions for substantially the same conduct.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 42; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 41. “In respect of the conduct giving rise to criminal liability [where the suspect] is not alleged to have committed crimes with his own hand [but where, for instance, he is alleged to be] responsible for the crimes [. . .] as an indirect co-perpetrator; the underlying criminal conduct is alleged to have been carried out by presumably a large number of direct perpetrators in the course of various incidents. For the purposes of defining a ‘case’ in article 17(1)(a) of the Statute, in situations such as the present, the Appeals Chamber considers that the conduct described in the incidents under investigation which is imputed to the suspect is a necessary component of the case. Such conduct forms the core of any

jurisprudence criminal case because without it, there would be no case. At the same time, it is the conduct of the suspect him or herself that is the basis for the case against him or her [. . .].” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 62, 70. “[W]hat constitutes the same case, as referred to in article 17(1)(a) of the Statute, and in particular the extent to which there must be overlap, or sameness, in the investigation of the conduct described in the incidents under investigation which is imputed to the suspect, will depend upon the facts of the specific case. It is not possible to set down a hard and fast rule to regulate this issue [. . .]. [However, if] the underlying incidents that the Prosecutor and the State are investigating are identical, the case will be inadmissible before the Court (subject to any finding of unwillingness or inability). At the other end of the scale, the Appeals Chamber finds it hard to envisage a situation in which the Prosecutor and a State can be said to be investigating the same case in circumstances in which they are not investigating any of the same underlying incidents. The real issue is, therefore, the degree of overlap required as between the incidents being investigated by the Prosecutor and those being investigated by a State – with the focus being upon whether the conduct is substantially the same [. . .]. If there is a large overlap between the incidents under investigation, it may be clear that the State is investigating substantially the same conduct; if the overlap is smaller, depending upon the precise facts, it may be that the State is still investigating substantially the same conduct or that it is investigating only a very small part of the Prosecutor’s case. For example, the incidents that it is investigating may, in fact, form the crux of the Prosecutor’s case and/or represent the most serious aspects of the case. Alternatively, they may be very minor when compared with the case as a whole [. . .]. What is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating. The Appeals Chamber considers that to carry out this assessment, it is necessary to use, as a comparator, the underlying incidents under investigation both by the Prosecutor and the State, alongside the conduct of the suspect under investigation that gives rise to his or her criminal responsibility for the conduct described in those incidents.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, paras. 71–73; see also Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 100.

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jurisdiction a nd admissibility “In carrying out this assessment, a Chamber should consider any information provided by the State concerned as to why it is not investigating incidents that are being investigated by the Prosecutor and should take this into account in deciding whether the State in question is investigating substantially the same conduct. In addition, this judicial assessment should include a consideration of the interests of victims and the impact on them of any decision that a case is inadmissible at the Court despite not all of the incidents being investigated domestically.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on the Admissibility Appeal, ICC-01/11-/01-547-Red OA4, 21 May 2014, paras. 73–74; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 101–110. “[T]here was no need for Libya to charge Mr Al-Senussi with the international crime of ‘persecution’ per se [. . .]. [T]here is no requirement in the Statute for a crime to be prosecuted as an international crime domestically. This is because, in line with the previous jurisprudence of the Appeals Chamber in relation to what constitutes the same case, what is required is that the crimes prosecuted at the domestic level cover ‘substantially the same conduct’ as those charged by the Court. In determining whether they do, the Pre-Trial Chamber is required to assess whether the domestic case sufficiently mirrors the case before the Court. As argued by the both Libya and the Prosecutor, it is the alleged conduct, as opposed to its legal characterisation, that matters.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 119. “[I]f it has only been established that ‘discrete aspects’ of the case before the Court are being investigated domestically, it will most likely not be possible for a Chamber to conclude that the same case is under investigation.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 77. “The Appeals Chamber does not consider it to be inherent in an ongoing investigation that its contours are unclear. As noted by the Prosecutor, any investigation – irrespective of its stage – will have certain defining parameters, and it is an indication that there is no concrete case under investigation if those parameters are unclear. In this sense, in relation to what must be submitted by a State in its challenge to admissibility, it must be possible for a Chamber to compare what is being investigated domestically against what is being

jurisprudence investigated by the Prosecutor in order for it to assess whether the same case (substantially the same conduct) is being investigated. To make this assessment, the contours of the case being investigated domestically (and indeed by the Prosecutor) must be clear.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 83.

3 “A Case is Being Investigated” if there are Investigative Steps Directed at Ascertaining the Criminal Responsibility of the Suspects “The words ‘is being investigated’, in this context, signify the taking of steps directed at ascertaining whether those suspects [for whom summonses to appear or arrest warrants have been issued] are responsible for that conduct, for instance, by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “[T]he expression ‘the case is being investigated’ appearing in article 17(1) (a) of the Statute must be understood as requiring the ‘taking of steps’ directed at ascertaining whether the person is responsible for the alleged conduct. The investigative steps undertaken by the domestic authorities ‘may include interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses’.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 28. “The mere preparedness to take such steps or the investigation of other suspects is not sufficient. This is because unless investigative steps are actually taken in relation to the suspects who are the subject of the proceedings before the Court, it cannot be said that the same case is (currently) under investigation by the Court and by a national jurisdiction, and there is therefore no conflict of jurisdictions.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40.

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juri sdiction a nd admissibility “[W]hat is relevant for the admissibility of a concrete case under articles 17(1)(a) and 19 of the Statute is not whether the same evidence in the Prosecutor’s possession is available to a State, but whether the State is carrying out steps directed at ascertaining whether these suspects are responsible for substantially the same conduct as is the subject of the proceedings before the Court.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 43; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 42. “[C]oncrete progressive investigative steps [must have been] taken and demonstrated at the time when an admissibility challenge is raised.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 83; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 81. “[T]he contours of the case being investigated domestically [. . .] must be clear irrespective of the stage of the investigation [. . .]. If a State is unable to present such parameters to the Court, no assessment of whether the same case is being investigated can be meaningfully made. In such circumstances, it would be unreasonable to suggest that the Court should accept that an investigation, capable of rendering the case inadmissible before the Court, is underway.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 88.

4 A State has Investigated the Case and Decided Not to Prosecute: Article 17(1)(b) “Article 17(1)(b) of the Statute covers a similar scenario [to article 17(1) (a)] where a State having jurisdiction has investigated a case, but ‘has decided not to prosecute the person concerned’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75 (emphasis added). “This provision [article 17(1)(b)] comprises two cumulative elements that have to be fulfilled for a case to be inadmissible: the case must have been investigated, and the State having jurisdiction must have ‘decided not to prosecute’.”

jurisprudence Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 82. “The purpose of article 17(1)(b) of the Statute is to ensure that the Court respects genuine decisions of a State not to prosecute a given case, thereby protecting the State’s sovereignty. However, the provision must also be applied and interpreted in light of the Statute’s overall purpose, as reflected in the fifth paragraph of the Preamble, namely, ‘to put an end to impunity’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “[A] ‘decision not to prosecute’ in terms of article 17(1)(b) of the Statute does not cover decisions of a State to close judicial proceedings against a suspect because of his or her surrender to the ICC.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “The thrust of this decision [to surrender the Appellant to the Court and to close domestic investigations against him as a result of that surrender] was not that the Appellant should not be prosecuted, but that he should be prosecuted, albeit before the International Criminal Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 82. “If the decision of a State to close an investigation because of the suspect’s surrender to the Court were considered to be a ‘decision not to prosecute’, the peculiar, if not absurd, result would be that because of the surrender of a suspect to the Court, the case would become inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 83. “It was not the role of the Trial Chamber to review the decisions of the CAR courts to decide whether those courts applied CAR law correctly. In the view of the Appeals Chamber, when a Trial Chamber must determine the status of domestic judicial proceedings, it should accept prima facie the validity and effect of the decisions of domestic courts, unless presented with compelling evidence indicating otherwise.”

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j ur i s di ct i o n a n d adm issib ility Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 66.

5 The Role of Unwillingness or Inability 5.1 General Principles “[I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 107; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 68; Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC01/11-01/11-547-Red OA4, 21 May 2014, para. 213. “[D]etermining the existence of an investigation must be distinguished from assessing whether the State is ‘unwilling or unable genuinely to carry out the investigation or prosecution’, which is the second question to consider when determining the admissibility of a case. For assessing whether the State is indeed investigating, the genuineness of the investigation is not at issue; what is at issue is whether there are investigative steps.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 41; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 40. “[A]ccording to the clear wording of article 17(1)(a) and (b) of the Statute, the question of unwillingness or inability of a State having jurisdiction over the case becomes relevant only where, due to on-going or past investigations or prosecutions in that State, the case appears to be inadmissible.”

j ur i s p r uden ce Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 75, see also para. 97. “[I]n case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (i.e., the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to article 17(1)(d) of the Statute.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 78. “As the Appeals Chamber has previously held, it is only once it has been established that there was a decision not to prosecute within the meaning of article 17(1)(b) of the Statute that the question arises whether the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 107. “In both article 17(1)(a) and (b) of the Statute, the question of unwillingness or inability is linked to the activities of the State having jurisdiction [. . .]. The use of the definite article ‘the’ instead of the indefinite ‘a’ emphasises that reference is made to an investigation or prosecution that is actually on-going.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 76.

5.2 Relationship with Rights of the Accused “The concept of being ‘unwilling’ genuinely to investigate or prosecute is [. . .] primarily concerned with a situation in which the proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute. This is provided for most specifically in article 17(2)(a), which expressly states that in order to determine unwillingness, the Court shall consider whether ‘[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility’. The fact that the other two sub-paragraphs of article 17(2) do not expressly refer to shielding or protecting the person concerned cannot detract from the fact that they are sub-paragraphs of a provision defining unwillingness. The primary reason for their inclusion is therefore likewise not for the purpose of guaranteeing the fair trial rights of the suspect generally.”

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jurisdiction and admi ssibility Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 218 (emphasis added). “Indeed, the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights. However, if the interpretation proposed by the Defence were adopted, the Court would come close to becoming an international court of human rights. A case could be admissible merely because domestic proceedings do not fully respect the due process rights of a suspect. This would necessarily involve the Court passing judgment generally on the internal functioning of the domestic legal systems of States in relation to individual guarantees of due process. Had this been the intention behind article 17, the Appeals Chamber would have expected this to have been included expressly in the text of the provision.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 219. “Article 17(2)(c) therefore cannot be understood to mean that violations of rights of the suspect per se are sufficient to amount to ‘unwillingness’ within the meaning of article 17(2) of the Statute. That is not to say that concepts of due process are irrelevant to the Court’s consideration of unwillingness. It is clear that regard has to be had to ‘principles of due process recognized by international law’ for all three limbs of article 17(2) and it is also noted that whether proceedings were or are ‘conducted independently or impartially’ is one of the considerations under article 17(2)(c). The concept of independence and impartiality is one familiar in the area of human rights law. Rule 51 of the Rules of Procedure and Evidence specifically permits States to bring to the attention of the Court, in considering article 17(2), information ‘showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct’. As such, human rights standards may assist the Court in its assessment of whether the proceedings are or were conducted ‘independently or impartially’ within the meaning of article l7(2)(c).” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 220. “At its most extreme, the Appeals Chamber would not envisage proceedings that are, in reality, little more than a predetermined prelude to an execution, and which are therefore contrary to even the most basic understanding of justice, as being sufficient to render a case inadmissible. Other less extreme instances may arise when the violations of the rights of the

jurisprudence suspect are so egregious that it is clear that the international community would not accept that the accused was being brought to any genuine form of justice. In such circumstances, it is even arguable that a State is not genuinely investigating or prosecuting at all. Whether a case will ultimately be admissible in such circumstances will necessarily depend upon its precise facts. However, in light of those matters considered above, the Appeals Chamber concludes that: (1) For a case to be admissible under article 17(2)(c) it must be shown that the proceedings were not or are not being conducted independently or impartially and that the proceedings were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. (2) Taking into account the text, context, object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings ‘being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’ should generally be understood as referring to proceedings which will lead to an suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person’s protection. (3) However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be ‘inconsistent with an intent to bring that person to justice’.” Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 230.

6 The Case is Not of Sufficient Gravity: Article 17(1)(d) “In requiring conduct [for gravity under article 17(1)(d)] that is either systematic or large scale, the Pre-Trial Chamber introduces at the admissibility stage of proceedings criteria that effectively blur the distinction between the jurisdictional requirements for war crimes and crimes against humanity [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 70. “[I]mposing a legal requirement of ‘large scale or systematic’ within article 17(1)(d) of the Statute would not only render inutile article 8(1) of the

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j u r i s d i c t i o n an d a d m i s s i b i l i t y Statute contrary to the principles of interpretation but would further contradict the express intent of the drafters in rejecting any such fixed requirement therein [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 71. “First, with respect to war crimes, the requirement of large-scale commission under the Statute is alternative to the requirement of commission as part of a policy. Second, the statutory requirement of either large-scale commission as part of a policy is not absolute but qualified by the expression ‘in particular’ [. . .]. [I]t would be inconsistent with article 8(1) of the Statute if a war crime that was not part of a plan or policy or part of a large-scale commission could not, under any circumstances, be brought before the International Criminal Court because of the gravity requirement of article 17(1)(d) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 70–71. “[T]he criterion of ‘social alarm’ depends upon subjective and contingent reactions to crimes rather than upon their objective gravity. The crimes listed in articles 5–8 of the Statute have been carefully selected. As is apparent from the Preamble and articles 1 and 5 of the Statute, these crimes are considered the most serious crimes of international concern. The subjective criterion of social alarm therefore is not a consideration that is necessarily appropriate for the determination of the admissibility of a case pursuant to article 17(1)(d) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 72. “Criteria considered by the Pre-Trial Chamber such as the national or regional scope of activities of a group or organization, the exclusively military character of a group, the capacity to negotiate agreements, the absence of an position, the capacity to change or prevent a policy, are not necessarily directly related to gravity as set out in article 17(1)(d). They ignore the highly variable constitutions and operations of different organizations [. . .].” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 77. “The particular role of a person or, for that matter, an organization, may vary considerably depending on the circumstances of the case and should not be exclusively assessed or predetermined on excessively formalistic grounds.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 76.

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“[I]ndividuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 77. “In addition, the Preamble to the Rome Statute mentions ‘most serious crimes’ but not ‘most serious perpetrators’ [. . .]. Had the drafters of the Statute intended to limit its application to only the most senior leaders suspected of being most responsible they could have done so expressly.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 79.

7 Relationship with the Objectives of the Court 7.1 Admissibility, Complementarity, and the Object of the Statute “[T]he complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court, on the one hand, and the goal of the Rome Statute to ‘put an end to impunity’, on the other hand. If States do not or cannot investigate and, where necessary, prosecute, the International Criminal Court must be able to step in.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. “[T]here may be merit in the argument that the sovereign decision of a State to relinquish its jurisdiction in favour of the Court may well be seen as complying with the ‘duty to exercise [its] criminal jurisdiction’.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. However, “the Appeals Chamber is mindful that the Court, acting under the relevant provisions of the Statute and depending on the circumstances of each case, may decide not to act upon a State’s relinquishment of jurisdiction in favour of the Court”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 85. “Article 17 stipulates the substantive conditions under which a case is inadmissible before the Court. It gives effect to the principle of complementarity [. . .], according to which the Court ‘shall be complementary to national jurisdictions’. Accordingly, States have the primary responsibility

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jurisdi ction and admissibility to exercise criminal jurisdiction and the Court does not replace, but complements them in that respect. Article 17(1)(a)–(c) sets out how to resolve a conflict of jurisdictions between the Court on the one hand and a national jurisdiction on the other.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 37; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 36. “[T]he purpose of the admissibility proceedings under article 19 of the Statute is to determine whether the case brought by the Prosecutor is inadmissible because of a jurisdictional conflict. Unless there is such a conflict, the case is admissible. The suggestion that there should be a presumption in favour of domestic jurisdictions does not contradict this conclusion. Although article 17(1)(a)–(c) of the Statute does indeed favour national jurisdictions, it does so only to the extent that there actually are, or have been, investigations and/or prosecutions at the national level. If the suspect or conduct have not been investigated by the national jurisdiction, there is no legal basis for the Court to find the case inadmissible.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 44; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 43; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 58. “With respect to Côte d’Ivoire’s argument that the criteria for establishing the existence of investigations and/or prosecutions at the national level should be similar to those applicable for determination of a State’s unwillingness or inability genuinely to carry out the investigation or prosecution, the Appeals Chamber notes that Côte d’Ivoire bases its argument on two premises: (i) the alleged violation of the principle of complementarity [. . .], and (ii) the Pre-Trial Chamber’s finding in the Al-Senussi Admissibility Decision that ‘the two limbs of the admissibility test are intimately and inextricably linked’. The Appeals Chamber notes, however, that this finding was made in a different context. The finding concerned the possibility of relying on the same considerations with respect to both limbs of the admissibility test, rather than comparing the criteria for establishing each of the limbs of the test. Therefore, the Pre-Trial Chamber’s finding does not support the proposition made by Côte d’Ivoire.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 60.

j u r i s p r ud e n c e “That complementarity is a core guiding principle for the relationship between States and the Court is confirmed by its prominent place in the Statute (article 1 and Preamble) as well as by the drafting history of the Rome Statute: the ‘criminal jurisdiction’ of the Court and that of States are ‘complementary’ to each other. This means that both the Court and States strive to achieve the goals of the Statute, as reflected in its Preamble, especially that of putting an ‘end to impunity for the perpetrators’ of ‘the most serious crimes of concern to the international community as a whole’.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op. “This [the Court’s and the States’ effort to achieve the goals of the Statute] also means that there must be, to the extent possible, close cooperation and communication between the Court, especially the Office of the Prosecutor, and the State in question [. . .]. While dialogue between the State and the Court is therefore required and desired, it is the Court, and not a third authority, that is the arbiter in case of conflict.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 19. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 19. Diss. Op.

7.2 Gravity and Deterrence “It may indeed have a deterrent effect if high-ranking leaders who are suspected of being responsible for having committed crimes within the jurisdiction of the Court are brought before the International Criminal Court. But that the deterrent effect is highest if all other categories of perpetrators cannot be brought before the Court is difficult to understand. It seems more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 73. “The imposition of rigid standards primarily based on top seniority may result in neither retribution, nor prevention being achieved.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 74.

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jurisdiction and admissibility “The predictable exclusion of many perpetrators on the grounds proposed by the Pre-Trial Chamber could severely hamper the preventive, or deterrent, role of the Court which is a cornerstone of the creation of the International Criminal Court, by announcing that any perpetrators other than those at the very top are automatically excluded from the exercise of the jurisdiction of the Court.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 75. “[T]he capacity of individuals to prevent crimes in the field should not be implicitly or inadvertently assimilated to the preventive role of the Court more generally. Whether prevention is interpreted as long-term objective, that is, the overall result of the Court’s activities generally, or as a factor in a specific situation, the preventive role of the Court may depend on many factors, much broader than the capacity of an individual to prevent crimes.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 74.

III The Procedures for Reviewing or Challenging Admissibility 1 The Factual Basis for a Determination of Admissibility “Whether or not a case is admissible is determined by the Court, which assesses the relevant facts against the criteria of article 17 of the Statute.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “Generally speaking, the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge. This is because the admissibility of a case under article 17(1)(a), (b) and (c) of the Statute depends primarily on the investigative and prosecutorial activities of States having jurisdiction. These activities may change over time. Thus, a case that was originally admissible may be rendered inadmissible by a change of circumstances in the concerned States and vice versa.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56, see also para. 80; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 32.

jurisprudence “The expression ‘time of the proceedings’ used by the Appeals Chamber should be interpreted to refer to ‘the time of the proceedings on the admissibility challenge before the Pre-Trial Chamber and not to the subsequent proceedings on appeal’.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 32. “‘[T]he admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge’. However, contrary to Kenya’s submissions, the expression ‘time of the proceedings’ used by the Appeals Chamber in that judgment [Judgment on the Admissibility Appeal, para. 56] clearly referred to the time of the proceedings on the admissibility challenge before the Pre-Trial Chamber and not to the subsequent proceedings on appeal.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 9; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 10. “[T]he Statute assumes that the factual situation on the basis of which the admissibility of a case [under article 17(1)(a) or (b)] is established is not necessarily static, but ambulatory. Furthermore, the chapeau of article 17(1) of the Statute indicates that the admissibility of a case must be determined on the basis of the facts at the time of the proceedings on the admissibility challenge. The chapeau requires the Court to determine whether or not the case is inadmissible, and not whether it was inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56. In contrast, “[a]rguably, a Chamber determines the gravity of a case only once in the course of the proceedings because the facts underlying the assessment of gravity are unlikely to change and a party may therefore be unable to raise the same issue again in future admissibility challenges”. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. In a situation where the state authorities “confirmed that there were no investigations to establish the alleged criminal responsibility of the Appellant. For that reason alone, and irrespective of the willingness of the DRC to investigate or to prosecute the Appellant, the Appeals

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j u r i s d ic t i o n an d a d m i s s i b i l i t y Chamber considers that article 17(1)(a) does not present a bar to his prosecution before the International Criminal Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 80. “If, at the time of the admissibility challenge, the State is investigating or prosecuting a case, or has investigated a case and decided not to prosecute, the case will be inadmissible before the Court, subject to the exceptions provided for in article 17(1)(a) and (b).” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “[A]n accused person does not have a ‘right’ under the Statute to insist that States or organs of the Court behave in a manner that would render a case inadmissible. The admissibility of the case must be determined on the basis of the facts as they are, not on the basis of how they, in the view of the Appellant, should be. While he has the right to challenge admissibility, he has to accept that the Court will determine the admissibility on the basis of facts as they present themselves.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 111. “A challenge to admissibility under article 19(2)(a) of the Statute is not the mechanism under which to raise alleged violations of the rights of the accused in the course of the prosecutorial process. It is a limited procedure that triggers the relevant Chamber’s powers to determine the admissibility of the case under article 17 of the Statute. Unless alleged prejudices and violations are relevant to the criteria of article 17 of the Statute, they cannot render a case inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 113.

2 Review of Admissibility by a Chamber Proprio Motu 2.1 Review in the Context of Issuing an Arrest Warrant “The use of the word ‘may’ [in article 19(1)] indicates that a Chamber is vested with discretion as to whether the Chamber makes a determination of the admissibility of a case.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 48, see also para. 52. See also

jurisprudence Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 78. “An initial determination of the admissibility of a case cannot be made an integral part of the decision on an application for a warrant of arrest for the reason that article 58(1) of the Statute lists the substantive prerequisites for the issuance of a warrant of arrest exhaustively. Article 19(1), second sentence, of the Statute cannot be invoked to make the admissibility of the case an additional substantive prerequisite for the issuance of a warrant of arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 42. “[T]he exercise of Pre-Trial Chamber I’s discretion under article 19(1), second sentence, of the Statute [to review admissibility] in the Impugned Decision was erroneous, because by deciding that it had to make an initial determination of the admissibility of the case before it could issue a warrant of arrest, the Pre-Trial Chamber did not give sufficient weight to the interests of Mr Bosco Ntaganda.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 48. “This assertion [that an initial determination of admissibility is without prejudice to subsequent reviews] protects the interests of the suspect insufficiently: if the Pre-Trial Chamber makes a determination that the case against a suspect is admissible without the suspect participating in the proceedings, and the suspect at a later stage seeks to challenge the admissibility of a case pursuant to article 19(2)(a) of the Statute, he or she comes before a Pre-Trial Chamber that has already decided the very same issue to his or her detriment. A degree of predetermination is inevitable.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 50; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 84. “The Appeals Chamber accepts that the Pre-Trial Chamber may on its own motion address admissibility. However, in the Appeals Chamber’s view, when deciding on an application for a warrant of arrest in ex parte Prosecutor only proceedings the Pre-Trial Chamber should exercise its discretion only when it is appropriate in the circumstances of the case, bearing in mind the interests of the suspect. Such circumstances may include instances where a case is based on the established jurisprudence of the Court, uncontested facts that

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j ur i s di ct i o n a n d adm issib ility render a case clearly inadmissible or an ostensible cause impelling the exercise of proprio motu review. In these circumstances it is also imperative that the exercise of this discretion take place bearing in mind the rights of other participants.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 52.

2.2

Review of Admissibility Proprio Motu at a Later Stage in Proceedings “The prejudice to the suspect that the Appeals Chamber identified in the Judgment in DRC OA [Judgment on the Ntaganda Arrest Warrant Appeal] as likely to result does not arise in the instant case. The Judgment in DRC OA concerned a decision on admissibility that the Pre-Trial Chamber had rendered in the context of proceedings that were held in camera and in which only the Prosecutor participated. This is not the case here. The proceedings that led to the Impugned Decision were public. Not only the Prosecutor, but also the Government of Uganda and victims participated in the proceedings. The Pre-Trial Chamber also appointed Counsel for the Defence in order to facilitate submissions to the Chamber on the defence perspective.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85. “Furthermore, the Pre-Trial Chamber’s decision [leading to the Judgment on the Ntaganda Arrest Warrant Appeal] was based, in the main, on the gravity of the case under article 17(1) of the Statute. Arguably, a Chamber determines the gravity of a case only once in the course of the proceedings because the facts underlying the assessment of gravity are unlikely to change and a party may therefore be unable to raise the same issue again in future admissibility challenges. Again, this is not the case in the instant case. Gravity was not an issue. The issue was whether there were on-going domestic proceedings which rendered the case inadmissible pursuant to article 17(1)(a) of the Statute. Thus, the Pre-Trial Chamber’s decision to hold admissibility proceedings at the time that it did, did not, as in the DRC OA case, impair the right of the four suspects to challenge subsequently the admissibility of the case.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 85.

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3 Challenges to Admissibility by a Person or State 3.1 General Considerations “[T]he purpose of an admissibility challenge and, by extension, an appeal under article 82(1)(a) of the Statute, is to determine whether or not a case is admissible [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 56. “Pursuant to article 19(2) of the Statute, a person against whom a warrant of arrest has been issued under article 58 of the Statute has the right to challenge the admissibility of his or her case. Such a challenge may be brought before the person concerned has been surrendered to the Court and even before the person’s arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 51; Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 146. “The legal framework of the Court expressly provides for two participatory rights of the suspect in proceedings in relation to admissibility. First, pursuant to article 19(2)(a) of the Statute, ‘[a]n accused person or a person for whom a warrant of arrest or summons to appear has been issued’ is entitled to challenge the admissibility of the case. Thus, the suspect himself or herself may trigger admissibility proceedings. Second, rule 58(3) [. . .] provides that ‘[t]he Court shall transmit a request or application received under sub-rule 2 to the Prosecutor and the person referred to in article 19, paragraph 2 who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons, and shall allow them to submit written observations to the request or application within a period of time determined by the Chamber’. Thus, under this provision, the suspect is entitled to participate in admissibility proceedings triggered by others, including States, by making written submissions. The right to participate under rule 58(3) [. . .], however, does not extend to any person in respect of whom a warrant of arrest or summons to appear has been issued; it only applies to suspects who have been either surrendered to the Court or who have appeared before it.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 146. “Notwithstanding the above, the Appeals Chamber recalls that rule 58(2) of the Rules of Procedure and Evidence provides, in respect of admissibility proceedings, that the Pre-Trial Chamber ‘shall decide on the procedure to be followed and may take appropriate measures for the proper

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j u r i s d i c t i o n an d a d m i s s i b i l i t y conduct of the proceedings’ [. . .]. This includes the possibility to grant the suspect participatory rights that go beyond those provided for in rule 58(3) of the Rules of Procedure and Evidence [. . .]. Nevertheless, the Appeals Chamber underlines that the granting of participatory rights to the suspect that go beyond those stipulated in rule 58(3) of the Rules of Procedure and Evidence lies within the discretion of the Pre-Trial Chamber.” Prosecutor v. Gaddafi & Abdullah Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 149.

3.2

The Burden of Proof in Admissibility Challenges “[A] State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible. To discharge that burden, the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are on-going.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 2, 62; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 2, 61; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, paras. 29, 128. “[A] state needs to prove that it is conducting a genuine investigation or prosecution [. . .].” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 29. “‘[A] statement by a Government that it is actively investigating is not [. . .] determinative. In such a case the Government must support its statement with tangible proof to demonstrate that it is actually carrying out relevant investigations’. In other words, there must be evidence with probative value.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 63; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 62. “[T]o discharge its burden of proof, the State must provide the Court with ‘evidence of a sufficient degree of specificity and probative value’ that demonstrates that it is indeed investigating the case. It is not sufficient merely to assert that investigations are on-going.”

jurisprudence Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 29. “‘[A] State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible.’ The Appeals Chamber considers that this means in respect of article 17(1)(a) of the Statute that what a State challenging admissibility needs to prove is that it is conducting a genuine investigation or prosecution – which requires proof of both limbs of the provision.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 166. “Nevertheless, even though the State bears the burden of proof in general, the Appeals Chamber considers that the Pre-Trial Chamber was reasonable in placing an ‘evidential’ burden on the Defence sufficiently to substantiate the factual allegations it was making.” Prosecutor v. Gaddafi & Al-Senussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 167.

3.3 Procedural Considerations “The Court’s legal instruments do not set out in detail the procedure to be followed upon an admissibility challenge under article 19 of the Statute [. . .] [R]ule 58 of the Rules of Procedure and Evidence stipulates the procedure to be followed when filing a request or application under article 19 of the Statute. It requires that this request be transmitted to the Prosecutor and the person concerned, who shall be given an opportunity to make written submissions. Save for these express stipulations, the Pre-Trial Chamber enjoys broad discretion in determining how to conduct the proceedings relating to challenges to the admissibility of a case [. . .].” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, paras. 88–89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 86–87. “[U]nder this provision [rule 58(2)] the Pre-Trial Chamber may hold a hearing, but it is not obliged to do so. The Pre-Trial Chamber’s decision not to convene an oral hearing was thus an exercise of its discretion.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 110; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s

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j ur i s di ct i o n an d admissib ility Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 108.

a Dissenting Opinion of Judge Ušacka in the Kenya Admissibility Appeals “[A]rticle 19(3) of the Statute read with rule 59 of the Rules of Procedure and Evidence, and rule 58(1) and (3) of the Rules of Procedure and Evidence stipulate some minimum requirements relevant to the procedure to be followed. Notably, according to article 19(3) of the Statute and rules 59(3) and 58(3) of the Rules of Procedure and Evidence, those who have referred the situation to the Court, victims, the Prosecutor and the person ‘who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons’ have a right to submit ‘observations’ within a period of time determined by the Chamber. Apart from these minimum requirements, rule 58(2) of the Rules of Procedure and Evidence vests broad discretion in the Chamber to regulate the procedure to be followed.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 14. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 14. Diss. Op. “The broad discretion given to the Chamber under rule 58(2) of the Rules of Procedure and Evidence provides the Chamber with the power to adapt the procedure to the needs of the proceedings at hand by balancing all interests at stake, including the sovereign rights of the State [. . .]. This procedure must take into account the specific circumstances put forward by the State, including the State’s clearly evinced intentions [. . .]. The Chamber may seek guidance from procedural rules applicable at the Court as well as from other courts where States are applicants in proceedings and sovereignty of States is at issue.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 22. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 22. Diss. Op. “[C]omplementarity implies that during the admissibility proceedings Kenya could start with taking investigative steps or prosecuting a case and that the Pre-Trial Chamber has the power to adapt the admissibility proceedings to such changing circumstances.”

jurisprudence Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 28. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 28. Diss. Op.

3.4 The Timing of the Challenge and Submission of Additional Evidence “[A]rticle 19(5) of the Statute requires a State to challenge admissibility as soon as possible once it is in a position to actually assert a conflict of jurisdictions. The provision does not require a State to challenge admissibility just because the Court has issued a summons to appear.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 46; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 45. “[A]rticle 19(5) of the Statute requires States to challenge the admissibility of a case ‘at the earliest opportunity’. This provision must be seen in the context of the other provisions on admissibility, in particular article 17(1) of the Statute [. . .] [T]he ‘earliest opportunity’ in article 19(5) of the Statute refers to the earliest point in time after the conflict of jurisdictions has actually arisen.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35. “[T]he State cannot expect to be allowed to amend an admissibility challenge or to submit additional supporting evidence just because the State made the challenge prematurely.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 100; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 98; Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35. “Indeed, a State should, as a general rule, not challenge the admissibility of a case until it is in position to substantiate that challenge. The Appeals

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j ur i s di ct i o n a n d adm issib ility Chamber has emphasized that admissibility proceedings should not be used as a mechanism or process through which a State may gradually inform the Court, over time and as its investigation progresses, as to the steps it is taking to investigate a case. Admissibility proceedings should rather only be triggered when a State is ready and able, in its view, to fully demonstrate a conflict of jurisdiction on the basis that the requirements set out in article 17 are met.” Prosecutor v. Simone Gbagbo, Judgment on the Admissibility Appeal, ICC-02/11-01/12-75-Red OA, 27 May 2015, para. 35; Prosecutor v. Gaddafi & Al-Senussi, Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi, ICC-01/11-01/11-547-Red OA4, 21 May 2014, para. 164. “[N]evertheless, if a State has the right to start an investigation and prosecution and to bring an admissibility challenge at any time before the start of the trial before the Court, then it stands to reason that the State may also start its investigation and prosecution when the admissibility challenge has already been made.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 21. Diss. Op. Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11342 OA, 20 September 2011, para. 21. Diss. Op. “[I]n this context, [if a State’s investigation/prosecution starts after the admissibility challenge has been made] one may note that article 19(5) of the Statute provides: ‘A State [. . .] shall make a challenge at the earliest opportunity.’ This is in the interest of the Court and the proper administration of justice because it will avoid potentially lengthy and expensive proceedings before the Court that may have to be stopped at a later stage because the case has become inadmissible. This also supports that a State, acting in good faith, may use the mechanism of a State challenge as early as possible, even though the State has not yet reached the stage of fully investigating or prosecuting a given case and intends to start to do so in the course of the proceedings on the admissibility challenge.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 21. Diss. Op; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 21. Diss. Op.

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4 Participation of Victims and the States in Admissibility Proceedings “[E]ven if this right [of victims and States to submit observations on admissibility proceedings under article 19(3)] is applicable [on appeal] it must of necessity be restricted in its enforcement due to the under seal and ex parte, Prosecutor only, nature of the proceedings.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 30.

5 Domestic Proceedings Pending the Determination of an Admissibility Challenge “[W]hile the Prosecutor is, pursuant to article 19(7) and subject to article 19(8) of the Statute, required to suspend her investigation pending the determination of an admissibility challenge brought by a State, there is nothing in the Statute that suggests that the domestic investigation also has to be suspended during that period. Thus, subject to a State’s obligations to cooperate with the Court, domestic proceedings may continue while an admissibility challenge is pending and they are unaffected by a determination that the case is inadmissible before the Court.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 16.

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C Cooperation and Judicial Assistance

Commentary

ben batros The International Criminal Court has not been provided with its own police force or direct powers of compulsion over individuals or entities that may have evidence required for its investigations and cases, at least not until they are before the Court itself. Instead, it is reliant on the cooperation of States and their national law enforcement authorities. This cooperation is of paramount importance to the operation of the Court1 at all stages of its work. Without cooperation, the Court would be unable to conduct investigations, arrest suspects, release detainees if there are no grounds to continue holding them, properly adjudicate crucial pre-trial questions such as admissibility, or effectively conduct trials. Despite the importance of cooperation to the practical operation of the Court and the delicate balance struck between the broad cooperation necessary for an effective international court and considerations of State sovereignty and individual rights, the Appeals Chamber has had limited cause to examine this issue. Although the Statute, and article 93 in particular, enumerate a wide range of forms of cooperation, the 1

See, e.g., Mochochoko, P., “International Cooperation and Judicial Assistance”, in Lee (ed.), The International Criminal Court, The Making of the Rome Statute: Issues, Negotiations, Results (Kluwer: The Hague, 1999), p. 305; Kress, C., Prost, K. and Wilkitzki, P., “Part 9, International Cooperation and Judicial Assistance”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden , 2008), at p. 1504, [1] and authorities cited therein; Cryer R., et al., An Introduction to International Criminal Law and Procedure, 3rd edn (Cambridge University Press: Cambridge, 2014), pp. 517–518.

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Chamber has only considered a handful of appeals, concerning requests relating to the attendance or questioning of witnesses2 and the freezing of assets.3 One theme that runs through these early decisions is that the Appeals Chamber has supported readings of the Statute that provide the Court and Chambers with the powers that they need to conduct proceedings as effectively as possible,4 without imposing any obligations on States that go beyond those expressly set out in the Statute. For example, the Statute prescribes certain forms of cooperation that States are obliged to provide.5 However, the Appeals Chamber has held that this does not limit the orders that the Court may make and that the Court may request that States provide cooperation in the enforcement of such additional orders, as States have discretion to provide cooperation beyond the obligatory minimum established by the Statute, subject to their domestic laws.6 As with all international tribunals that lack independent enforcement authorities, compliance by States with its orders and judgments is a constant concern. The Statute recognises the reality that there may be circumstances in which States are reluctant to cooperate and establishes a process for referral of non-cooperation to either the political body responsible for the integrity of the functioning of the Court as a whole, the Assembly of States Parties or, if the non-compliance is in a situation referred by the UN Security Council, to the Security Council (in effect, the body with political responsibility for that situation).7 However, such a referral is not obligatory in every case of non-cooperation as a referral is intended to be a means of obtaining cooperation, not a punishment for 2

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5 6

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Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014; Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014. Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016. This is largely consistent with the characterisation of the cooperation regime by commentators as being “designed to allow for a broad range of assistance of flexible application”: Kress, C. and Prost, K., “Article 93: Other Forms of Cooperation”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), at p. 72, [1]. See articles 89, 92, 93(1) and 93(7). Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014, para. 112. Article 87(7).

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failure to cooperate. The Chamber, therefore, has discretion as to whether it will refer a case of non-cooperation, contingent on whether it considers that engaging those external actors will be the most effective way of obtaining cooperation – in that instance or in future proceedings.8 This will be based on a range of considerations in addition to the simple fact of the failure of the State to cooperate.9 However, a referral for noncooperation requires that there has been a sufficiently serious or grave failure to cooperate, such that it prevents the Court from exercising its powers and functions under the Statute.10

Jurisprudence I The Court’s General Power to Request the Cooperation of States “Part 9 of the Statute generally and article 93(1) of the Statute in particular, establish primarily minimum obligations of cooperation that States Parties have vis-à-vis the Court. However, States Parties are at liberty to cooperate more extensively with the Court, if they so wish (so-called ‘enhanced cooperation’). It follows that, even if States Parties were not obliged to provide cooperation in relation to orders compelling a witness to appear before the Court, this does not necessarily mean that the Court does not have the power to make such an order, as some States may decide to cooperate with the Court, even in the absence of an obligation to do so. Thus, even if the Appeals Chamber were to find that States Parties are not obliged to provide assistance in compelling witnesses to appear before the Court in the manner contemplated in the Impugned Decision, this would not mean, by implication, that the Trial Chamber lacks the power to compel witnesses to appear before it, in the sense of creating a legal obligation for the individual concerned.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 112.

II Specific Forms of Cooperation 1 The Court’s Power to Request the Freezing and Forfeiture of Assets “There is no requirement that property and assets subject to a Chamber’s order and request for cooperation under articles 57(3)(e) and 93(1)(k) of 8

9

Prosecutor v. Kenyatta, Judgment on Appeal for a Finding of Non-compliance under Article 87(7) of the Statute, ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 51, 77. Ibid., paras. 52–53, 55. 10 Ibid., para. 81.

jurisprudence the Statute be derived from or otherwise linked to alleged crimes within the jurisdiction of the Court.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 1, 63. “The protective measures referred to in article 57(3)(e) of the Statute are, pursuant to article 93(1)(k), ‘the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes, without prejudice to the rights of bona fide third parties’. The Appeals Chamber considers that it is clear from the use of the word ‘instrumentalities’ that this object must be linked with crimes. The word ‘proceeds’ may be capable of an independent meaning equivalent to ‘revenues’, ‘income’ or ‘profits’, nonetheless, in context, the Appeals Chamber considers its use in article 93(1)(k) to be most readily associated with crimes. However, the Appeals Chamber does not find any express or otherwise apparent reference to such link with respect to the phrase ‘property and assets’ [. . .]. In this regard, the Appeals Chamber notes the difference in wording between articles 93(1)(k) and 77(2)(b) of the Statute. The ‘property and assets’ which are the subject of the penalty of forfeiture under article 77(2)(b) of the Statute, must be ‘derived directly or indirectly from [a] crime [referred to in article 5 of the Statute of which the person has been convicted]’. By contrast, a requirement that ‘property and assets’ be derived from a crime is not clearly expressed in article 93(1)(k) of the Statute.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 41–42. “The Appeals Chamber further notes that the punctuation of the phrase in article 93(1)(k) of the Statute differs from that of article 77(2)(b) of the Statute [. . .]. [T]he Appeals Chamber finds that the words ‘of crimes’ in article 93(1)(k) of the Statute thus refer to ‘instrumentalities’ and not to ‘property and assets’.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 43. “[T]he Appeals Chamber is of the view that ‘the purpose of forfeiture’ referred to in article 57(3)(e) of the Statute does not refer only to the penalty of forfeiture under article 77(2)(b) of the Statute, but incorporates other types of forfeiture envisaged by the Statute and the Rules of Procedure and Evidence [. . .]. Thus, the Appeals Chamber considers that rule 99 of the Rules of Procedure and Evidence clarifies that the purpose of the protective measures set out in article 57(3)(e) of the Statute is not only the penalty of forfeiture under article 77(2)(b) of the Statute; such protective measures may also be taken in relation to a potential reparations order.”

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c o o p e r a t i o n an d j u d i c i a l a s s i s t a n c e Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 45–46. “The Appeals Chamber also notes that protective measures under article 57(3)(e) of the Statute may be requested ‘[w]here a warrant of arrest or a summons has been issued under article 58’. At that stage of proceedings, it may be difficult to determine which property and assets were ‘derived directly or indirectly from [the] crime’ for the purpose of giving effect to a future penalty of forfeiture that may be imposed. Accordingly, the Appeals Chamber considers that an interpretation of articles 57(3)(e) and 93(1)(k) of the Statute whereby the property and assets need not be derived from crime is consistent with the limitations inherent at this stage of the proceedings.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 47. “The Appeals Chamber [. . .] notes that protective measures under article 57(3)(e) of the Statute must be taken ‘in particular for the ultimate benefit of victims’ and considers that this indication is consistent with the view that such measures may be taken in relation to a potential reparations order [. . .]. If the narrow interpretation of articles 57(3)(e) and 93(1)(k) of the Statute were to be adopted, whereby protective measures could only be taken for the purpose of forfeiture as a penalty under article 77(2)(b) of the Statute, victims would be unable to obtain protective measures for potential reparations at early stages of the proceedings. The position of victims of crimes prosecuted by the Court would thus significantly differ from that of victims of crimes adjudicated domestically. In the view of the Appeals Chamber, such an interpretation of the Statute would produce an unreasonable result.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, paras. 49–50. “The Appeals Chamber [. . .] notes that if ‘property and assets’ under article 93(1)(k) of the Statute were interpreted as limited to property derived from crime, the Court would be unable to rely on this provision to request the States’ cooperation to implement protective measures for the purpose of reparations after conviction. Therefore, when seeking cooperation in respect of property other than that derived from crime, the Court would have to rely on article 93(1)(l) of the Statute, pursuant to which the Court may request ‘[a]ny other type of assistance’. The Appeals Chamber, however, finds this provision to be too general for the purpose. The absence of a provision providing specifically for cooperation with respect to ‘the identification, tracing and freezing or seizure’ of property and assets not derived from crime post-conviction lends further support to the view that article 93(1)(k) of the Statute must be interpreted broadly. Only a broad interpretation would allow the Court to rely on article

jurisprudence 93(1)(k) of the Statute in relation to reparations after the person has been convicted.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 52. “The Appeals Chamber is of the view that efficient protective measures taken at early stages of proceedings increase the likelihood that property and assets will be available for the purpose of reparations at the time any such award is made pursuant to article 75 of the Statute.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 53.

2 Required Attendance of Witnesses “[T]he plain wording of article 64(6)(b) of the Statute indicates that the Trial Chambers have the power to compel the appearance of witnesses before the Court, in the sense of creating a legal obligation for the individual concerned. The Appeals Chamber finds that the term ‘require’ [in article 64(6)(b)] denotes something more than a voluntary action expected from someone else. The Oxford Dictionary defines ‘require’ as: ‘(of someone in authority) instruct or expect (someone) to do something’ and ‘regard an action, ability, or quality as due from (someone) by virtue of their position’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 107. “The Appeals Chamber considers that [article 93(1)(b)] not only requests that a State Party itself take evidence, but also the taking of evidence on a State Party’s territory, either by the Court sitting in situ or by video-link. In this regard, the Appeals Chamber notes that the wording of the provision does not limit the taking of evidence to domestic authorities. Accordingly, Kenya’s argument that article 93(1)(b) of the Statute refers to the taking of testimony by Kenya domestic courts only is not supported by the plain wording of the provision itself. Furthermore [. . .] the drafting history of article 93 of the Statute reflects that during the negotiations, alternative ways to receive the testimony of witnesses who did not wish to travel to the Court were considered and discussed. This included the taking of evidence in the requested State.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 130. “[T]his interpretation of article 93(1)(b) of the Statute finds support in legal writings. One commentator has argued that: ‘[a]lthough a witness may not be brought against his will before the [Court], this holds not true

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c o o p e r a t i o n an d j u d i c i a l as s i s t a n c e for his forced appearance in the requested State with a view to testimony by video-conference’. He concludes that ‘[o]bligations to offer this particular form of assistance follow from the broader duty to assist the Court in the taking of evidence, pursuant to article 93(1)(b) of the [. . .] Statute’. Similarly, another commentator argues that ‘if a witness, whose attendance and testimony is required by the Trial Chamber, does not want to travel to the Seat of the Court one solution could be for the Trial Chamber to obtain the assistance of the State Party for the testimony to be given before the national authority or by means of video-conference’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 131.

3 Transfer Persons in Custody to Give Testimony “[T]he Standard Operating Procedure Agreement was entered into in order to obtain the testimony of the Detained Witnesses, which is a purpose explicitly permitted under article 93(7)(a) of the Statute. Once the Detained Witnesses concluded their testimony in May 2011, the statutory ‘purpose’ of maintaining their custody ceased to exist. Pursuant to the Court’s obligations under article 93(7)(b) of the Statute, rule 192(4) of the Rules of Procedure and Evidence and section 7(a) of the Standard Operating Procedure Agreement, the Detained Witnesses, in the normal course of events, would have been transferred to the DRC upon the conclusion of their testimony before the Trial Chamber.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 22. “[T]he Appeals Chamber does not consider that the current situation, that is, the non-implementation of the second sentence of article 93(7) (b) of the Statute and the continued detention of the Detained Witnesses in the Court’s detention centre is an appropriate solution [. . .]. First, article 21(3) of the Statute requires that article 93(7) of the Statute be applied and interpreted in conformity with internationally recognized human rights; it does not require the Court to violate its obligations pursuant to article 93(7)(b) of the Statute [. . .]. Second, [. . .] the Court’s authority to detain individuals is limited to situations where the detention is related to judicial proceedings before the Court [. . .]. The Appeals Chamber does not consider that article 21(3) of the Statute requires, or even permits, the Court to detain individuals beyond what is provided in the Statute.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, paras. 25–27.

jurisprudence “[R]ule 192 of the Rules of Procedure and Evidence, as well as article 44 of the Headquarters Agreement [. . .] regulate the transport of individuals in the custody of the Court. Under these provisions and in the course of the implementation of article 93(7)(b) of the Statute, the Detained Witnesses will be under the control and in the physical custody of the Netherlands. Accordingly, the Appeals Chamber considers that it is for the Netherlands to determine whether the Detained Witnesses’ asylum claims make it necessary for it to intervene in order to take control of the Detained Witnesses until their respective claims have been finally adjudicated.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 29. “[A]rticle 21(3) of the Statute does not require the Court to interpret its legal texts so as to avoid situations where the Netherlands may consider it necessary to take independent steps in order to fulfil its own legal obligations in relation to the Detained Witnesses.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 29. “[T]he Appeals Chamber considers that the second sentence of article 93(7)(b) of the Statute can be implemented in conformity with article 21(3) of the Statute, specifically, in respect of the Detained Witnesses’ right to an effective remedy in respect of their asylum claims. Therefore, the Appeals Chamber orders the Registrar to implement, without delay, the second sentence of article 93(7)(b) of the Statute in respect of the Standard Operating Procedure Agreement entered into between the Court and the DRC regarding the Detained Witnesses.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/04-02/12-158 A, 20 January 2014, para. 30.

III State Non-compliance and Referrals (Article 87(7)) 1 Decision to Refer Non-cooperation is Discretionary “[T]he scope of a Chamber’s discretion under article 87(7) of the Statute comprises: (i) whether to make a finding of a failure to comply with a request for cooperation by a State, which prevents the Court from exercising its powers and functions under the Statute; and (ii) a determination of whether it is appropriate to refer the matter to the ASP or the UNSC in order to seek external assistance to obtain cooperation with the request at issue or to otherwise address the lack of cooperation by the requested State.”

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c o o p e r a t i o n an d j u d i c i a l as s i s t a n c e Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 55. “Pre-Trial Chambers consistently consider the appropriateness of a referral to the ASP or UNSC when deciding upon an application for a finding of non-compliance and referral pursuant to article 87(7) of the Statute, even when it had already confirmed a failure to comply with a cooperation request. As indicated above, the Appeals Chamber is of the view that these interpretations are supported by the wording of article 87 of the Statute and holds therefore that an automatic referral to external actors is not required as a matter of law. Furthermore, the Appeals Chamber is not persuaded that such automatic referral would be beneficial as a matter of policy as contended by the Prosecutor.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 49. “[I]t is important to take into account the object and purpose of paragraph 7 of article 87 of the Statute. This paragraph is a part of the system embodied in article 87, which contains the general provisions that govern requests for cooperation and the powers of the Court in this regard. This supports the view of the Trial Chamber that this final provision aims at enhancing the effectiveness of the cooperation regime under Part IX of the Statute, by providing the Court with the possibility of engaging certain external actors to remedy cases of non-cooperation. Since the object and purpose of the provision is to foster cooperation, the Appeals Chamber believes that a referral to those particular actors was not intended to be the standard response to each instance of non-compliance, but only one that may be sought when the Chamber concludes that it is the most effective way of obtaining cooperation in the concrete circumstances at hand.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 51. “The Appeals Chamber is therefore not persuaded by the Prosecutor’s arguments that the Trial Chamber’s approach, that is, that it had discretion to determine whether to refer Kenya’s non-cooperation, undermines the Court’s cooperation regime or damages the Court’s ability to fulfil its mandate. A refusal to refer a matter of non-cooperation to the ASP or the UNSC does not necessarily imply acceptance of non-cooperation, but may be based on the Chamber’s conclusion that such a referral may not be an effective means to address the lack of cooperation in the specific context of the case.”

j ur i s p r uden ce Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 52.

2 Discretion in Determining what Factors are Relevant “Taking the above into account, the Appeals Chamber considers that a Chamber, when deciding whether to refer a matter of noncooperation to the ASP or UNSC, should consider whether a referral of a State’s failure to comply with a request for cooperation is an appropriate measure to either seek assistance from external actors to obtain the requested cooperation or otherwise address the lack of cooperation from the requested State. In this regard, it is important to note that a referral may be value-neutral and not necessarily intended to cast a negative light on the conduct of a State. Since the ultimate goal is to obtain cooperation, a Chamber has discretion to consider all factors that may be relevant in the circumstances of the case, including whether external actors could indeed provide concrete assistance to obtain the cooperation requested taking into account the form and content of the cooperation; whether the referral would provide an incentive for cooperation by the requested State; whether it would instead be beneficial to engage in further consultations with the requested State; and whether more effective external actions may be taken by actors other than the ASP or the UNSC, such as third States or international or regional organisations. In conclusion, the Appeals Chamber considers that it is clear that, in determining whether a referral is appropriate, a Chamber will often need to take into account considerations that are distinct from the factual assessment of whether the State has failed to comply with a request to cooperate. The Appeals Chamber therefore considers that a referral is not an automatic consequence of a finding of a failure to comply with a request for cooperation, but rather this determination falls within the discretion of the Chamber seized of the article 87(7) application.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 53. “It is within a Chamber’s discretion to consider whether a particular factor is relevant for its determination on either a failure to cooperate or whether it is appropriate to refer the matter of non-cooperation, or both. The same factor may be relevant for both aspects and may be taken into account more than once, provided that the factor is assessed in a consistent, noncontradictory manner.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 2, 79.

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c o o p e r a t i o n an d j u d i c i a l a s s i s t a n c e “The Appeals Chamber is of the view that it is within a Chamber’s discretion to consider whether a particular factor affects the determination of a failure to comply with a cooperation request or to refer the matter of non-cooperation, or both. However, the factor must be assessed consistently throughout the decision. In the Appeals Chamber’s view, the Trial Chamber’s assessment that the ‘possibility of obtaining the necessary evidence, even if the Revised Request was to be fully executed, is still nothing more tha[n] speculative’ is clearly contradictory with the Trial Chamber’s finding that Kenya’s non-cooperation with the Revised Request ‘ultimately impinged upon the Chamber´s ability to fulfil is mandate under [a]rticle 64, and in particular, its truth-seeking function in accordance with [a]rticle 69(3)’. Such a patent contradiction makes the first assertion unreasonable and calls into question the second one.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 79–80 (emphasis added). “Indeed, such contradiction raises the question as to whether the Trial Chamber made a proper determination of a failure to cooperate of a certain gravity, as required by the first clause of article 87(7) of the Statute. As indicated above [. . .] this first clause includes an essential factual prerequisite for any referral, namely, a failure to cooperate which prevents the Court from exercising its functions and powers under the Statute. If the Trial Chamber was uncertain about the importance of the evidence, it is unclear why the Trial Chamber concluded that the lack of the requested evidence prevented the Chamber from exercising its functions, as required in that clause. The Appeals Chamber also notes in this regard that the conflation of the trial proceedings against Mr Kenyatta and the non-compliance proceedings appears to have affected the Trial Chamber’s consideration of whether judicial remedies had been exhausted, or whether there was still a possibility that Kenya would cooperate. In the view of the Appeals Chamber, the conclusion that a deadlock is reached with regard to a cooperation request is a key factor to determine the existence of a failure to comply with such request. Thus, and contrary to the Prosecutor’s arguments [. . .] the Appeals Chamber considers that the Trial Chamber did not make a clear finding as to whether such remedies had been exhausted. The Trial Chamber explicitly acknowledged in the Impugned Decision that it considered it appropriate to decide on the Prosecutor’s Article 87(7) Application at this stage because ‘allowing a further adjournment would be contrary to the interests of justice under the circumstances, rather than because the Chamber finds there to be no possibility of further cooperation’ .” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 81 (emphasis added).

jurisprudence “With regard to the conduct of parties in the proceedings, the Appeals Chamber recalls that the primary obligation to cooperate lies with the requested State and not with the party requesting cooperation. However, the Appeals Chamber is of the view that the conduct of the requesting party, in this case the Prosecutor, may also be a relevant factor if the actions of the requesting party have negatively impacted the requested State’s ability to cooperate.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, paras. 86–87.

3 (Non)-Compliance Proceedings not to be Conflated with Proceedings against the Accused “In determining whether there was a failure to cooperate within the terms of the first clause of article 87(7), the Trial Chamber should take into account all relevant factors, including the evidence that was required in the cooperation request and the conduct of the parties to the proceedings. The Trial Chamber should avoid conflating the criminal proceedings against Mr Kenyatta with the proceedings under article 87(7) and determine whether, at the time of the Impugned Decision, judicial measures to obtain the cooperation had been exhausted and consultations had reached a deadlock.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 95. “[T]he Appeals Chamber notes that non-compliance proceedings and proceedings against an accused before the Court are distinct proceedings that involve different parties (States versus an individual) and have different purposes under the Statute (State cooperation versus individual criminal responsibility). Even where non-compliance proceedings originate in the context of a case against an accused, the interests and rights at stake are not interchangeable between these two.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 73. “The Appeals Chamber considers that a referral could have an impact on future cooperation considered more broadly, including for on-going investigations, even if it were to be considered inappropriate for continuing the trial at hand. In this regard, the Appeals Chamber considers that future cooperation by the requested State is indeed a factor to be taken into account when deciding on the appropriateness of a referral. However, contrary to the Trial Chamber’s finding, the Appeals Chamber is of the

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co o p er at i on an d j udi cial a ssistanc e view that it is for the Trial Chamber and not another Chamber to decide on the matter. Regardless of the Adjournment Decision and the withdrawal of the charges, the Trial Chamber was and remains competent to decide on whether it would be appropriate to refer Kenya’s noncompliance to the ASP either to seek a concrete remedy for the lack of cooperation in the case at hand or to foster cooperation more broadly for the sake of any proceedings arising out of investigations in the situation.” Prosecutor v. Kenyatta, Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7), ICC-01/09-02/11-1032 OA5, 19 August 2015, para. 77.

D Arrest and Detention

Commentary

ben batros In the ICC, decisions on arrest (under article 58) and on detention or release (under article 60) are closely related. In practical terms, they typically draw on the same criteria; and in systemic terms, the two provisions work together to ensure that the Court’s exercise of its detention powers respects basic human rights principles. The decision on the Prosecution’s application for a warrant of arrest or summons to appear marks the beginning of a case.1 There are two essential findings required by the Chamber at this stage: that “there are reasonable grounds to believe that the person has committed a crime” under the Statute (article 58(1)(a)); and that the person’s detention “appears necessary” for one of the prescribed reasons (article 58(1)(b)). Article 60, on interim release or detention, refers back to these same criteria, asking the Chamber to consider whether “the conditions set forth in article 58, paragraph 1, are met” in deciding on an initial application for release, or whether those circumstances have changed in subsequent reviews. As a result, while the majority of the appeals have been brought against decisions under article 60(2) and (3) – for reasons discussed below – many of those judgments have examined the criteria in article 58, and the guidance provided by the Appeals Chamber will apply 1

The Regulations of the Registry, in force 6 March 2006, ICC-BD/03-03-13, provide that the Registry “shall open a case record upon receipt of an application requesting the issuance of a warrant of arrest or a summons to appear pursuant to article 58” (regulation 20(2)). In practice, the Prosecution’s application for a warrant of arrest or summons to appear has generally been filed in the situation, and the case record has commenced with the decision issuing that warrant or summons (see, e.g., Situation in Darfur, Prosecutor’s Application under Article 58(7) of the Statute, ICC-02/05-56, 27 February 2007; Prosecutor v. Harun and Kushayb, Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1-Corr, 27 April 2007).

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equally to determinations on whether to issue a warrant of arrest in the first place. The right to liberty, and to be free from arbitrary detention, is one that is given great importance in human rights law, which, in turn, informs the interpretation of the Statute.2 Read in conjunction, articles 58 and 60 ensure that detention by the ICC complies with fundamental human rights principles, namely: detention must at all times be necessary (articles 58(1) and 60(2)); it must be based on a judicial order (article 58), and kept under judicial supervision (article 60(3)); the suspect must be informed of the basis for their detention (article 60(1)) and has the right to apply for release (article 60(2)); and detention must not extend for an unreasonable period (article 60(4)).3 This close correlation of the statutory provisions and the fundamental requirements of human rights law has been repeatedly recognised by the Appeals Chamber, which has referred to the jurisprudence of human rights bodies in interpreting these standards, and has explicitly reiterated that those provisions must be interpreted and applied “consistent with internationally recognized human rights” under article 21(3).4 An additional safeguard, and a reflection of the importance of decisions on the liberty or detention of a person, is that decisions under article 60 are one of the few key decisions which may be appealed as of right, without any requirement for a grant of leave (article 82(1)(b)).5 As a result, appeals on questions of detention and release have been fairly common in the early years of the Court’s operation: at the time of writing, 2

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Under article 21(3), the application and interpretation of law by the Court “must be consistent with internationally recognized human rights”; the Appeals Chamber has stated in this respect that “Human rights underpin the Statute; every aspect of it.” The provisions of the Statute “must be interpreted and more importantly applied in accordance with internationally recognized human rights; first and foremost, in the context of the Statute (see articles 64(2), 67(1), 68(1) and (5) of the Statute), the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety” (Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37). See the digested cases under Chapter A, Interpretation and Structural Issues, section I(4), Article 21(3) of the Statute, above. See generally Croquet, N., “The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights’ Jurisprudence?” Human Rights Law Review, Vol. 11 (2011). See below and, e.g., Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22. In addition, given the immediacy and extent of the impact, these appeals have particularly short time limits for filings (regulation 64(5)).

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a total of twenty-four judgments have been issued in appeals against decisions on detention and release under article 60, covering almost every case in which a suspect has been arrested and appeared before the Court.

I Arrest Warrants and Summons to Appear: Article 58 In contrast to the inter partes nature of a decision on release, which may be appealed as of right, decisions on warrants of arrest are usually issued ex parte, and if the Prosecution wishes to appeal, it must seek leave to do so under article 82(1)(d). As a result, far fewer appeals have considered this stage of the proceedings – only two to date. Nevertheless, in each appeal the Appeals Chamber provided guidance or clarification on important issues. In terms of the procedure for issuing an arrest warrant, article 58(1) states that if the prescribed criteria are met, the Pre-Trial Chamber “shall [. . .] issue a warrant of arrest”. The Appeals Chamber has confirmed that this does not give the Pre-Trial Chamber a discretion in issuing a warrant, and that it therefore may not impose additional requirements (e.g., convincing the Chamber that the case is of sufficient gravity to be admissible).6 The Appeals Chamber has also provided a degree of guidance on the standard against which the material presented by the Prosecution is to be assessed, at least in respect of the requirement under article 58(1)(a) that there be reasonable grounds to believe that a person committed a crime.7 Prior to the commencement of a case, there may have been proceedings in connection with the Prosecution’s investigation of a situation, but the application and decision on an arrest warrant (or a summons to appear) provides the first opportunity for the parameters of a case – a specific suspect(s), incident(s), and charge(s)8 – to be identified and adjudicated. Because this is the first decision on the 6

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Prosecutor v. Banda, Judgment on Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/ 09-632-Red OA5, 3 March 2015, paras. 25, 42. The Chamber has had less cause to consider the criteria set out in article 58(1)(b) – the reasons for which “arrest of the person appears necessary” – in the context of arrest warrant applications per se. However, it has provided substantial guidance on the factors relevant to these criteria in the context of release appeals (see section II, Pre-Trial Detention/Interim Release (Article 60), subsection (a) Application for Release (Article 60(2))). Situation in the DRC, Decision on the Application for Participation in the Proceedings of VPRS-1, VPRS-2, VPRS-3, VPRS-4, VPRS-5 and VPRS-6, ICC-01/04-101-tEN-Corr, 18 January 2006, para. 65.

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substance of a case, and especially because it is a decision made by the same Pre-Trial Chamber that will subsequently rule on the confirmation of charges, the standard of proof to be applied is important.9 The Appeals Chamber has explicitly linked “reasonable grounds to believe” that the person has committed a crime under article 58(1)(a) with the standard of “reasonable suspicion” required to justify detention in the European Convention on Human Rights.10 Thus, while there must be a basis for the belief to be reasonable, the “reasonable suspicion” standard only requires the adjudicator to be satisfied that the person “may” have committed the crime, and the Appeals Chamber has cautioned the Pre-Trial Chamber against effectively requiring certainty or demanding that the Prosecution exclude other possibilities at this early stage in the proceedings.11 Finally, while the Appeals Chamber has clarified that the initial arrest warrant remains the basis for detention throughout the proceedings, it has resisted attempts to use subsequent appeals by the suspect against decisions on release or detention under article 60 to reopen the original decision to issue a warrant.12 As discussed below, an application for release or review of detention must assess whether detention is justified at that time, not whether the initial decision to issue the arrest warrant was correct. The Appeals Chamber has similarly resisted attempts by suspects or accused persons to have the ICC review the process of enforcing the warrant by national authorities, including their previous detention by national authorities and their 9

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The standard of “reasonable grounds to believe” in article 58(1)(a) is the lowest in a series of three escalating standards of proof at different stages, the other two being “substantial grounds to believe” for the confirmation of charges, in article 61(7); and “beyond reasonable doubt” for a conviction at trial, in article 66(3). Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221, article 5(1)(c): “[e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: [. . .] the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/0973 OA, 3 February 2010, paras. 30–33. See, e.g., Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47.

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surrender to the Court outside the strict requirements of articles 89 and 91.13

II Pre-Trial Detention/Interim Release: Article 60 a Application for Interim Release: Article 60(2) Any suspect who has been detained has the right to apply for release. This is considered so crucial that the Statute expressly requires the Pre-Trial Chamber to satisfy itself that the suspect has been informed of that right during the initial appearance (which must itself take place “promptly upon [the suspect] arriving at the Court”; see article 60(1) and rule 121(1)). When the suspect does apply for release, article 60(2) directs the Pre-Trial Chamber to examine whether the conditions that justify detention under article 58 are (still) met, and if so then the person shall continue to be detained. As noted above, the Appeals Chamber has resisted attempts by suspects to use an application for release to challenge the initial decision to issue an arrest warrant. However, because this is the first time that the suspect has been in a position to make submissions on whether the conditions justifying their detention exist, the Appeals Chamber has stressed that the Pre-Trial Chamber cannot simply rely on its previous determinations made in the context of issuing the arrest warrant. Rather, it must make a de novo assessment of whether those criteria are met at that time, taking into consideration the submissions and the evidence presented by both the Prosecution and the suspect.14 This approach functions simply enough for the requirement under article 58(1)(b) on whether the detention of the suspect appears necessary for one of the prescribed reasons: the suspect is in a solid position to present arguments and rebut those put forward by the Prosecution on whether their detention is required to ensure their appearance at trial, prevent obstruction of the proceedings or prevent commission of crimes; 13

14

See, e.g., Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/0401/06-772 OA4, 14 December 2006; Prosecutor v. Katanga, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 23; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 111.

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and the Pre-Trial Chamber must come to a fresh determination having heard both sides. However, a de novo determination that there be reasonable grounds to believe that the suspect committed a crime, under article 58(1)(a), has proven to be more challenging to apply in practice. Just as the Appeals Chamber has prevented suspects using the process of applying for release to challenge the initial issuance of the warrant, it has also prevented them from using this process to pre-empt the more detailed assessment of the strength of the Prosecution’s case, which is the function of the confirmation hearing. The proper focus of a decision on release and detention is the conditions justifying the suspects’ detention, not the technical admissibility of evidence against the suspect. The Appeals Chamber has therefore set a high bar for suspects to challenge evidence relating to their alleged commission of crimes in the context of detention decisions, indicating that “obvious mala fides” would be required,15 although in one instance it did consider whether the nature of the evidence was sufficiently detailed to allow the suspect to investigate and challenge the contents.16 Given that (a) the Prosecution is likely to put substantially the same evidence before the Pre-Trial Chamber as was presented for the purposes of the Arrest Warrant;17 (b) the suspect’s ability to challenge that evidence is limited at this stage; and (c) even if the suspect presents their own evidence, weighing it against the Prosecution’s evidence would likely also fall within the proper function of the confirmation hearing, Pre-Trial Chambers seem highly likely to come to the conclusion that there are reasonable grounds to believe that the suspect committed a crime. The Appeals Chamber has nevertheless maintained that this system does not reverse the burden of proof,18 nor does it infringe the 15

16

17

18

Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 73. This examination took place in the context of discussing the methodology employed by bodies such as UN working groups to develop reports that the Prosecution relied on: Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/ 06-271-Red OA, 5 March 2014, paras. 37–43. The Appeals Chamber has affirmed that referring to that same evidence is proper – provided that a de novo assessment is conducted. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, paras. 2, 23; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, paras. 59–60. Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 69.

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presumption of innocence,19 although at least one Pre-Trial Chamber questioned the value of conducting a de novo review of whether such reasonable grounds to believe still exist.20

b Factors Justifying Detention In contrast to decisions on warrants of arrest, which to the extent that they have discussed the criteria in article 58(1) have focused on whether there were reasonable grounds to believe the person committed a crime under article 58(1)(a), applications for release or review of detention have tended to focus on whether the detention of the person appears necessary for one of the reasons in article 58(1)(b). While the question of whether the Pre-Trial Chamber considered the correct factors, and considered those factors correctly, has been raised in almost every appeal regarding detention, the Appeals Chamber has given less detailed guidance on these substantive questions than it has on the procedural aspects of the review of detention. The Appeals Chamber has granted lower Chambers a broad remit to consider a wide range of factors in determining whether detention appears necessary: it has actively avoided prescribing the factors which should or should not be examined in any given case,21 or the method for assessing and balancing those factors. To the contrary, it has emphasised that decisions on detention will be factually intensive and case specific, requiring consideration of the circumstances of each suspect individually,22 and will often result from the combination of a range of factors. The guidance from the Appeals Chamber has often been limited to observing, in effect, that a particular factor which an Appellant challenged was not irrelevant, including the gravity of the 19

20

21

22

Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 70. See also Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 58–61; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 67; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 66. See Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 56. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 45. Ibid. See also Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 27.

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crimes charged,23 the suspect’s ties to a foreign country, his political position or network of high-level contacts, his access to assets that could facilitate fleeing, and his behaviour since being arrested. There are very few factors that Chambers have been instructed to ignore: only the prejudice caused by the detention (which was considered to be inherent in the detention itself, and which is not a factor to consider in the review but rather what necessitates the review itself);24 and any threats to the investigation and the proceedings which arise from sources other than the suspect him- or herself.25 The reluctance of the Appeals Chamber to tightly prescribe the relevant factors and how they should be considered may be, at least in part, a consequence of the deferential standard of review that it applies: as noted above, the Appeals Chamber considers that the “appraisal of evidence relevant to continued detention lies, in the first place, with the Pre-Trial Chamber”, and mere disagreement with the factors that the Chamber considered or the weight it accorded them is not sufficient to overturn a decision.26 It is also not surprising given the necessarily broad, forward-looking nature of the determinations – many factors are likely to be relevant to determinations that the Appeals Chamber has explained look at “the possibility [. . .] of a future occurrence”, “a prediction as to the likelihood of future events” and “necessarily involves an element of

23

24

25

26

Usually given the gravity of the crimes charged, this militates in favour of detention given the considerable sentence that the suspect faces in the event of a conviction (see, e.g., Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/ 06-824 OA7, 13 February 2007, para. 136. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 21, 24; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 55). However, in certain instances, such as offences against the administration of justice under article 70, the potential sentence may be limited and this factor may therefore militate in favour of release (see, e.g., Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 45). Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 126. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081937-Red2 OA9, 23 November 2011, para 67. See, e.g., Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC01/04-02/06-271-Red OA, 5 March 2014, para. 36; for more detailed discussion, see the digested cases under Chapter O, Conduct of Appeals, section III(3), Standards of Review, and the corresponding commentary, below.

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prediction”.27 The breadth of discretion granted to the Chambers in considering factors and the contingent nature of the determination is highlighted by the fact that the Appeals Chamber upheld as a relevant factor the possibility that the suspects had assets which would enable him to abscond.28

c Subsequent Review of Detention: Article 60(3) The question of the detention of a suspect does not end with the Chamber’s decision on their initial application for release. Reflecting the principle that detention be kept under supervision by a judicial authority, article 60(3) requires periodical review as to whether that detention is still justified. The Rules specify that the Chamber must do so every 120 days on its own initiative (rule 118(2)), though this period runs only from the first decision on an application for release, not from the issuance of the warrant or initial detention of the person by the Court.29 The suspect or the Prosecution may also request a review. As proceedings before the Court often extend for some time, given the complexity of the cases and other challenges, there may be numerous such reviews and the Statute recognises that multiple de novo determinations are neither necessary nor reasonable. Rather, the Appeals Chamber has highlighted that when conducting a review of its earlier decision on detention, article 60(3) directs the Chamber to examine whether there are “changed circumstances” which would require it to modify that earlier decision.30 This recognises that circumstances may indeed change – whether personal to the suspect or more broadly regarding the 27

28

29

30

Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 56. Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/ 06-824 OA7, 13 February 2007, paras. 3, 94; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, paras. 45–46. Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/081019 OA4, 19 November 2010, para. 51; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 51.

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investigation or the social and political environment – although, as noted above, this is more likely to relate to the risk of absconding, interfering with the proceedings or commission of future crimes (and not the reasonable suspicion that the suspect had previously committed crimes). In conducting its review under article 60(3), the Chamber should begin with its most recent decision on detention and examine whether there has been any change in the circumstances that justified the detention, or whether those circumstances continue to exist.31 Such “changed circumstances” could be either a change in one of the facts that previously justified the detention, or a new fact that is relevant to the basis of the detention.32 If there has been a change, the Chamber must go on to examine whether the new circumstances warrant release33 (as not every change in circumstances necessarily will). However, in the absence of any indication that the circumstances have changed, there is no need for the Chamber to re-consider the factors which previously justified the detention:34 unlike the initial determination under article 60(2), a review under article 60(3) is not de novo. While the Appeals Chamber does not consider the mere passage of time to constitute a changed circumstance requiring the Pre-Trial or Trial Chamber to revisit its decision,35 the purpose of keeping detention under judicial scrutiny is to ensure that it at all times remains reasonable. Human rights principles require that even if the suspects do pose a risk, 31

32

33

34

35

Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/081019 OA4, 19 November 2010, para. 52. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, para. 71; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1722 OA8, 9 September 2011, para. 30. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/082151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40; Prosecutor v. Bemba et al., Judgment on Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 48. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/082151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, para. 56. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 44.

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the Chamber must balance that risk against the reasonableness of the period of detention.36

d Conditional Release From the language of the release provisions, it appears that, like in decisions on issuing warrants of arrest, the Pre-Trial Chamber has little discretion once it has found that the requirements of article 58(1) are met: article 60(2) states that in such a case “the person shall continue to be detained” and if not the “Chamber shall release the person”. One caveat to this, however, is the potential for release subject to conditions. The Pre-Trial Chamber has a discretion whether to order conditions,37 and there are two scenarios under which they may arise: where a risk that would usually justify detention exists (e.g., of the suspect absconding or interfering with the investigation), but this risk can be managed by imposing conditions on release rather than solely by continuing the person’s detention; or where detention is not justified and the person shall be released, but the Chamber nevertheless considers that conditions are appropriate on that release. The Appeals Chamber has indicated that conditions may be imposed in either case,38 although the imposition of conditions under the latter has met with some criticism that if no risk exists, the imposition of conditions cannot be justified.39 In addition to the discretion whether to order conditions at all, the responsibility for setting those conditions also lies with the Chamber, although if a State has offered to accept a person and to enforce certain conditions, then the Chamber should examine that offer and consider the proposed conditions.40 To order release subject to conditions, the 36

37

38

39

40

Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, paras. 45, 48. This balancing is required in reviews under article 60(3) even where the Prosecutor cannot be faulted for that duration in which case it would be addressed separately under article 60(4); see section IV, Protection against Unreasonable Detention (article 60(4)), below. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 1, 55. Ibid., paras. 47, 55; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 76–77. Khan, K., “Article 60: Initial Proceedings before the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C .H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1164, [9]–[10]. Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, paras. 1, 79.

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Chamber must have identified specific and enforceable conditions – it cannot defer the details of the conditions and the State that will enforce them to a later time.41 This in turn requires that it seek the views of the State to which the person may be released.42

e Protection against Unreasonable Detention: Article 60(4) Even if detention formally remains justified under the criteria in article 58(1), the Statute provides an additional safeguard against unreasonable periods of detention. The Chamber has an independent discretion to order release if the suspect is “detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor” (article 60(4)). This obligation to keep the reasonableness of the detention under review is distinct from assessing whether the detention is necessary for one of the reasons set out in article 58(1)(b). Although, as with the necessity of detention, the reasonableness (or not) of the period of detention must be based on the circumstances of the case, and as most cases before the Court are complex in terms of law, evidence and logistics, a finding that the period of detention has become unreasonable will not be made lightly.43 Moreover, article 60(4) serves to protect the person from unreasonable detention as a result of delays by the Prosecutor, and only such delays; if the period of detention becomes unreasonable due to some other cause, it must be addressed as part of the balancing exercise under article 60(3), above.44 This also means that only those periods of 41

42

43

44

Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/0501/08-631-Red OA2, 2 December 2009, paras. 104–105, 108–109; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 47; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/ 11-01/11-278-Red OA, 26 October 2012, para. 76. Rule 119(3), which also requires that the Chamber seek views from the parties and any victims who may be at risk before ordering the imposition of conditions on release. The Appeals Chamber has clarified that if a State offers to accept a person without discussing conditions, the Pre-Trial Chamber should nevertheless seek information on the ability of that State to enforce specific conditions being considered or set by the Chamber: see Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 106; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 48. Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 122–123. Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, paras. 42–43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, paras. 22–23.

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detention that are part of the process of bringing the person before the Court are to be considered in the application of article 60(4). If a person is detained by domestic authorities on unrelated bases prior to an arrest warrant being issued by the Court and them being surrendered, this cannot be said to be a result of delay by the Prosecutor even if he or she was aware of their detention.45

f Other Requests for Release In addition to the various explicit grounds for detention and release under article 60, the Court has also been faced with various requests on other grounds. Generally, the Appeals Chamber has clarified that there are no separate grounds under the Statute for release (e.g., based on “exceptional humanitarian circumstances”46), and that such requests must be examined in the context of the existing statutory provisions. For example, if a suspect requested release on medical grounds, then the underlying medical condition could be considered as a factor in assessing whether the suspect was likely to abscond and therefore whether to grant release with conditions, but they do not constitute an independent basis for release.47 The Appeals Chamber took the same approach in considering the impact of a stay of proceedings on the detention of the person, which poses the question: if a person is primarily detained in order to ensure their appearance at trial, and that trial has been stayed, then is their detention still necessary? To address this question, the Appeals Chamber distinguished between situations in which the stay is temporary or conditional (and may be lifted), and situations in which the stay is permanent. In the latter case, there is no longer any trial at which to ensure the person’s future attendance as the basis for detention, and he or she must be released.48 However, in the former case, while this would certainly 45

46

47

48

Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 121. See also Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 42. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 84–85. It has been argued that a change in the health of a person itself constitutes “changed circumstances” for the purpose of reviewing detention (see Khan, K., “Article 60: Initial Proceedings before the Court”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C .H. Beck/ Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1165, [12]), but the impact of this must still be linked with the reasons which justified the detention under article 58(1). Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 36.

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constitute a changed circumstance, the Chamber would have to consider all of the circumstances (including whether there was a prospect of the stay being lifted in the near future) to determine whether the continued detention appears necessary (for the purposes of article 60(3));49 and if detention is still strictly speaking necessary, as the trial may resume in the foreseeable future, the Chamber must still keep the continued detention under close scrutiny in such circumstances to ensure that it does not become unreasonable (for the purposes of article 60(4)).50

Jurisprudence I Arrest Warrants and Summons to Appear: Article 58 1 General Principles “The suggestion that the remit of a warrant of arrest, as authority for detention, is limited to the surrender of the person, can find no justification in the Statute. The warrant of arrest provides authority for the confinement of the person arrested up to his trial.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 11.

2 Requirements for Issuing a Warrant “Article 58(1) of the Statute stipulates only two substantive prerequisites for the issuance of a warrant of arrest: firstly, the Pre-Trial Chamber must be satisfied that there ‘are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’ (see article 58(1)(a) of the Statute); secondly, the arrest of the person must appear necessary for at least one of the three reasons enumerated in article 58(1) (b) of the Statute.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 43. “[A]rticle 58 of the Statute [. . .] foresees that the Pre-Trial Chamber takes its decision on the application for a warrant of arrest on the basis of the information and evidence provided by the Prosecutor.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 45.

49 50

Ibid., para. 37, see also paras. 1 and 42. Ibid., paras. 37, 39, 42 and 45; Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 25.

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2.1 There are Reasonable Grounds to Believe that the Person has Committed a Crime within the Jurisdiction of the Court: Article 58(1)(a) “[A] pre-requisite for the issuance of a warrant of arrest is that the Chamber must be satisfied that there are reasonable grounds to believe that the person committed the crimes in question [. . .]. The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact. The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 18. “[T]he evidentiary threshold of ‘reasonable grounds to believe’ for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges (‘substantial grounds to believe’, article 61(7) of the Statute) and the threshold for a conviction (‘beyond reasonable doubt’, article 66(3) of the Statute). It is evident from the wording of the provisions that the standards of ‘substantial grounds to believe’ and ‘beyond reasonable doubt’ are higher standards of proof than ‘reasonable grounds to believe’. Accordingly, when disposing of an application for a warrant of arrest under article 58(1) of the Statute, a Pre-Trial Chamber should not require a level of proof that would be required for the confirmation of charges or for conviction.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 30. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 55; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, paras. 57, 58; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 76. “[I]t is instructive to recall that the European Court of Human Rights has interpreted ‘reasonable suspicion’ under article 5(1)(c) of the European Convention on Human Rights as ‘presuppos[ing] the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence’. Thus, at this preliminary stage, it does not have to be certain that that person committed the alleged offence. Certainty as to the commission of the crime is required only at the trial stage of the proceedings (see article 66(3) of the Statute), when the Prosecutor has had a chance to submit more evidence.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 31.

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a rr es t a n d de te n tio n “[R]equiring that the existence of genocidal intent must be the only reasonable conclusion amounts to requiring the Prosecutor to disprove any other reasonable conclusions and to eliminate any reasonable doubt. If the only reasonable conclusion based on the evidence is the existence of genocidal intent, then it cannot be said that such a finding establishes merely ‘reasonable grounds to believe’. Rather, it establishes genocidal intent ‘beyond reasonable doubt’.” Prosecutor v. Al Bashir, Judgment on Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-73 OA, 3 February 2010, para. 33. “[T]he Appeals Chamber is cognisant of the requirement, at this stage of proceedings, to be satisfied of ‘reasonable grounds to believe’ that a suspect committed the crimes alleged, in order to maintain detention. However, the Appeals Chamber does not consider that substantive considerations around admissibility of evidence can be appropriately addressed in the context of a decision taken on interim release, in the absence of obvious male fides. Conducting such an assessment would overload article 58(1)(a) of the Statute with the burdensome requirement to adjudicate issues relating to article 69(7) of the Statute at a very early stage of proceedings, in which the proper focus ought to be confined to be reviewing a suspect’s detention and the conditions underpinning the same. Therefore, in the present circumstances, the Appeals Chamber does not consider that it was unreasonable for the Pre-Trial Chamber to defer admissibility issues to be adjudicated ‘in the context of determinations to be made for the purposes of deciding whether the charges will have to be confirmed’.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 73.

2.2

The Arrest of the Person Appears Necessary: Article 58(1)(b) “What may justify arrest (and, in this context, continued detention) under article 58(1)(b) of the Statute is that it must ‘appear’ to be necessary. The question revolves around the possibility, not the inevitability, of a future occurrence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, paras. 107, 117; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on

j u r i s p r ud e n c e Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 123. “[T]he determination of whether the conditions of article 58(1)(b) of the Statute are fulfilled is established on a case-by-case basis, and therefore comparisons with other cases will not be determinative of the risk assessment under article 58(1)(b)(ii) of the Statute in the case at hand.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 92. “[T]his provision [article 58(2)] stipulates the minimum content of the Prosecutor’s application for a warrant of arrest. Article 58(2) of the Statute does not impose an obligation on the Prosecutor to furnish evidence or information in relation to the admissibility of the case.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 45. “[I]f the two prerequisites listed in article 58(1) of the Statute are met, the opening sentence of article 58(1) of the Statute gives the Pre-Trial Chamber clear and unambiguous instructions as to what the Chamber should do: ‘the Pre-Trial Chamber shall [. . .] issue a warrant of arrest’. The use of the word ‘shall’ indicates that the Pre-Trial Chamber is under an obligation to issue a warrant of arrest, provided that the prerequisites listed in article 58(1) of the Statute are met.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 44. “[A]rticle 58(1) of the Statute sets forth the conditions for the issuance of a warrant of arrest ‘on the application of the Prosecutor’. The Appeals Chamber notes that the word ‘shall’ in article 58(1) of the Statute denotes that the issuance of a warrant of arrest is mandatory if the criterion under article 58(1)(a) and at least one of the criteria under article 58(1)(b) of the Statute are met. Most noteworthy in this respect is the criterion under article 58(1)(b)(i) of the Statute, which stipulates that a warrant shall be issued if the arrest of the person appears necessary ‘[t]o ensure the person’s presence at trial’.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 25. “An initial determination of the admissibility of a case cannot be made an integral part of the decision on an application for a warrant of arrest for the reason that article 58(1) of the Statute lists the substantive prerequisites for the issuance of a warrant of arrest exhaustively. Article 19(1), second sentence, of the Statute cannot be invoked to make the

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a rr es t a n d d e te n t i o n admissibility of the case an additional substantive prerequisite for the issuance of a warrant of arrest.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 42.

2.3

The Threshold for Demonstration “What may justify arrest (and, in this context, continued detention) under article 58(1)(b) of the Statute is that it must ‘appear’ to be necessary. The question revolves around the possibility, not the inevitability, of a future occurrence.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, paras. 55, 67; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Interim Release Appeal, ICC-02/11-01/11-278Red OA, 26 October 2012, para. 56; Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271-Red OA, 5 March 2014, para. 35. “[I]t is precisely the task of the Pre-Trial Chamber, on the basis of the available evidence, to weigh such evidence and, on that basis, to make a prediction as to the likelihood of future events.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 60, see also para. 52. “[W]hile citations to relevant evidence may have further demonstrated the support underlying the Pre-Trial Chamber’s conclusions, the lack of such evidence does not vitiate the Pre-Trial Chamber’s conclusions on these points.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 46, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. “In addressing the question of what evidence may be used to establish that the continued detention of a person appears necessary, the Appeals Chamber has previously dismissed arguments that the Pre-Trial Chamber erred in relying on a report of a non-governmental organization, finding that ‘appraisal of the evidence relevant to continued detention lies, in the first place, with the Pre-Trial Chamber’. In the context of an appeal of a decision under article 60(3) of the Statute, the Appeals Chamber has also found that the Pre-Trial Chamber did not err ‘in

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holding that it could rely upon the Final Report [of the Group of Experts on Côte d’Ivoire pursuant to paragraph 16 of Security Council resolution 2045 (2012)] to provide “sufficiently detailed information”’.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271-Red OA, 5 March 2014, para. 36 (upholding the reliance on a UN Group of Experts’ report after finding that its methodology was rigorous and it adhered to established evidentiary standards, paras. 39–43).

2.4 Detention is Necessary to Ensure Appearance at Trial: Article 58(1)(b)(i) “The first question for the Appeals Chamber to determine is whether the Trial Chamber erred in law in finding that the condition under article 58(1)(b)(i) of the Statute – that detention appears necessary to ensure the person’s appearance at trial – continues to apply during the period of deliberations.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red OA11, 20 May 2015, paras. 36–37. “[A] reading of article 58(1)(b)(i) of the Statute in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red OA11, 20 May 2015, para. 40. “[A]ny determination by a Pre-Trial Chamber of whether or not a suspect is likely to abscond necessarily involves an element of prediction.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. “[T]he apparent necessity of continued detention in order to ensure the detainee’s appearance at trial does not necessarily have to be established on the basis of one factor taken in isolation. It may also be established on the basis of an analysis of all relevant factors taken together.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55. “The Appeals Chamber considers that any decision on whether a person is detained pending his or her trial at this Court ought to be made based on the specific circumstances of the case, as relevant to an assessment of whether or not a suspect is likely to appear before the Court. Personal circumstances of the suspect such as the suspect’s education, professional

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arrest and d etention or social status may be relevant to assessing under article 58(1)(b)(i) of the Statute whether or not a suspect will appear before the Court.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 2, see also paras. 111–113; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, paras. 2, 119. “[T]he Appeals Chamber is not persuaded by the argument of the Appellant that the Pre-Trial Chamber should not have taken into account the gravity of the crimes allegedly committed by the Appellant. As the Prosecutor correctly notes, the Pre-Trial Chamber did not take into account the gravity of the crimes in isolation but as part of its consideration that the Appellant might abscond. If a person is charged with grave crimes, the person might face a lengthy prison sentence, which may make the person more likely to abscond.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 21, 24; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 55; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, paras. 67–68; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 21; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Interim Release Appeal, ICC-02/11-01/11-278Red OA, 26 October 2012, para. 54. “[E]vading justice in fear of the consequences that may befall the person becomes a distinct possibility; a possibility rising in proportion to the consequences that conviction may entail.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 21, see also para. 24. “[T]he Appeals Chamber is not persuaded by the argument that the Pre-Trial Chamber should not have taken into account that the main ties of the Appellant still are in the Democratic Republic of the Congo because the Appellant sought release not to that country but to the United Kingdom or to Belgium. The Request for Interim Release lacked any concrete information by the Appellant as to the modalities of his interim release. Against that background, there is no reason why the Pre-Trial Chamber should not have taken into account the main ties of the Appellant are in the Democratic Republic of the Congo

jurisprudence because it is not inconceivable that he may wish to abscond to that country.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 136. “[T]he Appeals Chamber finds that the Trial Chamber did not err in law in relying on the fact that charges had been confirmed against Mr Bemba in the article 70 proceedings, for the purposes of its analysis as to whether Mr Bemba’s detention appeared necessary under article 58(1)(b)(ii) of the Statute in the main case.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, paras. 1, 71. “[O]ffences under article 70 of the Statute, while certainly serious in nature, are by no means considered to be as grave as the core crimes under article 5 of the Statute, being genocide, crimes against humanity, war crimes, and the crime of aggression, which are described in that provision to be ‘the most serious crimes of concern to the international community as a whole’. The language used by the Pre-Trial Chamber in describing the offences for which Mr Kilolo was charged to be ‘of the utmost gravity’ is therefore problematic, as it may give rise to a perception that the Pre-Trial Chamber accorded too much weight to the seriousness of the alleged offences in assessing the risk under article 58(1)(b)(i) of the Statute.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 64; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/ 13-559 OA3, 11 July 2014, paras. 1, 88; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 113. “Notwithstanding, the Appeals Chamber notes that the Pre-Trial Chamber’s observation in relation to the gravity of the offences allegedly committed by Mr Kilolo is supported by three reasons: (i) that offences against the administration of justice ‘threaten or disrupt the overall fair and efficient functioning of the justice in the specific case to which they refer’; (ii) that such offences ‘ultimately undermine the public trust in the administration of justice and the judiciary’; and (iii) that ‘[s]uch seriousness is only enhanced’ when committed by those whose ‘professional mission is to serve, rather than disrupt, justice’. These reasons support the logic that the commission of offences against the administration of justice, as a discrete category, may have specific and serious ramifications (that is, on the case at hand and on the administration of justice more broadly).” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2,

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arrest and d etention 11 July 2014, para. 65; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/0501/13-560 OA4, 11 July 2014, para. 114. “[T]he Appeals Chamber sees no merit in the argument of the Appellant that the Pre-Trial Chamber should have taken into account that the Appellant would have surrendered voluntarily to the Court, if only he had had the opportunity to do so. The Appeals Chamber agrees with the Prosecutor that there was no reason for the Pre-Trial Chamber do so because his voluntary surrender is merely hypothetical. The Appeals Chamber notes in this context that in the Stanišić decision to which the Appellant refers, the ICTY Trial Chamber took into account the hypothetical voluntary surrender of the detainee on the basis of concrete evidence of an intention to surrender voluntarily. The Appellant in the present case has not presented any such evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 138. See also Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 56; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, para. 75. “[I]n assessing the circumstances surrounding Mr Ntaganda’s surrender, the Pre-Trial Chamber considered a number of other factors, such as the split in the M23 at the end of February 2013, that Mr Ntaganda’s faction had run low in ammunition, prompting him to flee towards the Rwandan border and that Mr Ntaganda feared that he would be killed, in addition to the fact that he ‘had been at large for many years since the issuance of the first warrant of arrest in August 2006 until he apparently sought refuge in the United States Embassy in Kigali on 18 March 2013’ [. . .]. The Appeals Chamber considers that the conclusion of the Pre-Trial Chamber that its findings reduce the weight to be given to Mr Ntaganda’s claim that he voluntarily surrendered was adequately supported by reference to this latter set of circumstances.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Interim Release Appeal, ICC-01/04-02/06-271 OA, 5 March 2014, paras. 46–47. “The Pre-Trial Chamber based its finding on a number of factors put forward by the Prosecutor, namely, the Appellant’s ‘past and present political position, international contacts, financial and professional background and availability of the necessary network and financial resources’, repeating findings already made in the Decision of 10 June 2008 and concluding that these findings were ‘still valid’ at the time it rendered the Impugned Decision. The Appeals Chamber considers that it would have been preferable for the Pre-Trial Chamber to state in more detail in the Impugned Decision the reasons for which it concluded that the

jurisprudence conditions of article 58(1)(b)(i) of the Statute continued to be fulfilled. The Appeals Chamber is nevertheless satisfied that the Pre-Trial Chamber’s omission to provide more detailed reasoning did not detract from the correctness and adequacy of its finding on this point.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 53. “[A]ccess to international contacts could provide the means to enable a suspect to abscond, whether or not there was evidence that the suspect would actually utilise such contacts.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 25, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 137. “[W]hether all other suspects [before the ICC] are likely to possess financial support networks has no bearing on the question of whether Mr Mbarushimana had potential access to such a network.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 24. “[W]hether or not Mr Mbarushimana had accessed such resources in the past was not relevant to the Pre-Trial Chamber’s narrow determination that the FDLR could provide such funds in the future.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 26. “[M]r Mbarushimana had access to sufficient means to abscond. Taken together with a motivation to abscond, these factors would, in accordance with the Appeals Chamber jurisprudence, justify continued detention unless they are outweighed by other factors.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 28. “[T]he financial status of Mr Bemba to be a relevant factor in determining whether he would have the means to abscond or even to interfere with the investigation or the safety of witnesses. In the view of the Appeals Chamber, the Pre-Trial Chamber in omitting to make a finding on Mr Bemba’s financial situation disregarded a relevant factor that it previously considered to be important and thus the Pre-Trial Chamber erred.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 74. “[T]he existence of Mr Bemba’s network of international contacts had already been considered in previous decisions. The Trial Chamber did not

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arrest and d etention have to re-evaluate this factor in the absence of a suggestion that it had changed or no longer existed.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 60. “[T]he behaviour of detainees awaiting trial is indeed a relevant factor when considering applications for interim release. However the weight to be attached to this factor must be assessed on a case-by-case basis.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 80. “[W]hilst compliance with the orders of the Court is a relevant factor that may be taken into consideration in assessing applications for interim release, once again such determinations must be assessed on a case by case basis in light of all the circumstances.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 82. “As to Mr Gbagbo’s argument that the Pre-Trial Chamber did not establish that there actually were other assets that had not been frozen, but only that there may be such assets, the Appeals Chamber considers that it was sufficient for the Pre-Trial Chamber to establish that it was possible that Mr Gbagbo had the necessary assets to abscond.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 56. “[T]he existence of a political party that supports the detained person is a factor that is relevant to the determination of whether the continued detention appears necessary under article 58(1)(b)(i) of the Statute, because such support could indeed facilitate absconding.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 59. “[T]he Appeals Chamber considers that the intent to abscond and the intent to obstruct or endanger the investigation have the same ultimate objective because both are directed towards preventing the trial from taking place or at the very least from being based upon all of the relevant evidence.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 64. “[Regarding] the arguments raised by Mr Kilolo as to his personal circumstances from the perspective of whether the prejudice caused by the detention, in particular to his family life, could be a factor in deciding to grant interim release [. . .]. [T]he finding that such prejudice could not be a factor is unassailable. Any detention of a suspect pending investigation

jurisprudence and trial is likely to cause prejudice to the person concerned and those close to him. It is for that reason that under the Statute, the detention of a suspect is possible only under strict conditions, as set out in article 58(1) of the Statute. Nevertheless, the prejudice caused is in and of itself not a relevant consideration for a determination on interim release.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 108. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 126.

2.5 Obstruction or Endangerment of the Investigation or Court Proceedings: Article 58(1)(b)(ii) “[T]he Appeals Chamber would like to highlight that article 58(1)(b)(ii) of the Statute stipulates that detention must be necessary ‘to ensure that the person does not obstruct or endanger the investigation or the court proceedings’. This indicates that there must be a link between the detained person and the risk of witness interference.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1937-Red2 OA9, 23 November 2011, para 67 (emphasis added). “[T]he Pre-Trial Chamber considered that the witnesses and victims are easily identifiable and that the Appellant continues to have the means to influence witnesses. The Chamber also noted the previous behaviour of the Appellant, which indicated to the Chamber that the Appellant may indeed use these means to do so. These factors support the conclusion that the conditions of article 58(1)(b)(ii) of the Statute exist and they are therefore relevant factors in deciding the question on appeal.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 67. “[I]t is not unreasonable to assume that a support network that may assist in the absconding of the detained person may also assist in obstructing or endangering the investigation or the court proceedings.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 63.

2.6 Commission of Crimes within the Jurisdiction of the Court: Article 58(1)(b)(iii) “[U]nder article 66(1) of the Statute, Mr Gbagbo enjoys the presumption of innocence in the determination of the charges against him; in relation to article 58(1)(b)(iii) of the Statute, however, the Pre-Trial Chamber was

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arrest and d etention entitled to take into account that is he suspected of having committed crimes against humanity and that, in the specific circumstances and in light of the information before the Chamber, there is a risk that he may commit further crimes if released.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 70. See also Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 58–61 (where the Appeals Chamber simply upheld the Pre-Trial Chamber’s findings).

3 Additional Grounds of Detention “If a Chamber wishes to enter an additional ground of detention based on incidents post-dating the application for interim release, it must seek further observations from the parties on this issue prior to rendering its decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 2. “[I]n light of the purpose of the third sentence of rule 118(3) of the Rules of Procedure and Evidence, the Trial Chamber therefore should have sought submissions from Mr Bemba concerning the allegations of witness intimidation before deciding on this issue as an additional ground of detention under article 58(1)(b)(ii) of the Statute.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 66.

3.1

Medical Conditions and Interim Release “[T]here is no provision in the Court’s legal texts that specifically provides for the interim release or conditional release of a detained person on health grounds. Regulation 103 of the Regulations of the Court assumes that medical problems of detained persons are treated within the detention centre and that, in case of hospitalisation, the detained person should remain continuously detained. Rule 135 of the Rules of Procedure and Evidence provides for the medical examination of the accused to determine his or her fitness to stand trial. Articles 60 and 58 of the Statute and rule 119 of the Rules of Procedure and Evidence do not refer to the medical condition of the detained person when dealing with interim or conditional release.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 86. “[M]edical reasons can play a role in decisions on interim release in at least two ways. First, the medical condition of a detained person may have

jurisprudence an effect on the risks under article 58(1)(b) of the Statute, for instance on his or her ability to abscond, potentially negating those risks. Second, the medical condition of the detained person may be a reason for a Pre-Trial Chamber to grant interim release with conditions. As stated above, the Pre-Trial Chamber enjoys discretion when deciding on conditional release; the ill health of a detained person may be a factor in the exercise of its discretion.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 2, 87.

4 No Right to be Heard on Replacement of a Summons with Warrant of Arrest “Mr Banda appears to argue that he was entitled to file further submissions in the present case on whether or not it was appropriate for the Trial Chamber to resort to its powers under rule 119(4) of the Rules of Procedure and Evidence. However, other than a general reference to the audi alteram partem principle, Mr Banda does not put forth any legal argument in support of the contention that the procedural step of inviting further submissions was required as a matter of law. In any event, the Appeals Chamber is not persuaded that, in circumstances such as the present, an internationally recognised human right to file further submissions exists. In the present case, the decision of whether to request further submissions falls squarely within the Trial Chamber’s discretion. Accordingly, the Trial Chamber’s decision was not based on an erroneous interpretation of the law.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 31.

5 Relationship between ICC Warrant and Domestic Procedures “The enforcement of a warrant of arrest is designed to ensure, as article 59(2) of the Statute specifically directs, that there is identity between the person against whom the warrant is directed and the arrested person, secondly, that the process followed is the one envisaged by national law, and, thirdly, that the person’s rights have been respected. The Court does not sit in the process, as the Prosecutor rightly observes, on judgment as a court of appeal on the identificatory decision of the Congolese judicial authority. Its task is to see that the process envisaged by Congolese law was duly followed and that the rights of the arrestee were properly respected.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 41.

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arrest and d etention “Mere knowledge on the part of the Prosecutor of the investigations carried out by the Congolese authorities is no proof of involvement on his part in the way they were conducted or the means including detention used for the purpose.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 42.

6 Summons to Appear “A summons to appear is an alternative only when the Prosecutor seeks to secure the attendance of the person before the Court through that process. A summons to appear can only be issued on the application of the Prosecutor before the Pre-Trial Chamber [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 13. “Article 58(7) of the Statute describes the procedure for issuing a summons to appear as ‘[a]n alternative to seeking a warrant of arrest’. Pursuant to that provision, the Pre-Trial Chamber shall issue a summons if it ‘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’. Furthermore, a summons to appear may be issued ‘with or without conditions restricting liberty (other than detention) if provided by national law, for the person to appear’. In this context, the Appeals Chamber observes that rule 119(5), third sentence, of the Rules of Procedure and Evidence directs the competent Chamber to apply the procedure as laid down in rule 119(4) of the Rules of Procedure and Evidence, which makes clear that, in case the person concerned has failed to comply with one or more of the obligations imposed, the competent Chamber may issue a warrant of arrest. In that case, article 58 of the Statute applies.” Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC-02/05-03/09-632-Red OA5, 3 March 2015, para. 26.

II Pre-Trial Detention/Interim Release: Article 60 1

Applications for Interim Release: Article 60(2)

“The human right of a person to have recourse to judicial review of a decision affecting his liberty is entrenched in article 60 of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-

j ur i s p r uden ce 01/07-572 OA4, 9 June 2008, para. 17; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47. “Accordingly, in circumstances where a suspect has already been surrendered to the Court, the Appeals Chamber does not consider that the remedy of release is available except as provided for in article 60 of the Statute. This means that the principal consideration is not whether a warrant of arrest has been illegally issued, but whether the conditions for detention under article 58(1) of the Statute are presently met (article 60(2) of the Statute), whether there has been a change in the circumstances (article 60(3) of the Statute), or whether the person has been detained for an unreasonably long period prior to trial, due to an inexcusable delay by the Prosecutor (article 60(4) of the Statute). The Appeals Chamber further notes that, in addition to article 60 of the Statute, article 85 of the Statute provides for the remedy of compensation in the case that an arrest is found to have been unlawful.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 47.

1.1 Nature of the Decision to Continue Interim Detention “The object of detention is first and foremost to ensure the appearance of the person before the Court regarded as necessary under the Statute for the due conduct of the judicial proceedings [. . .]. The arrest of a person is not intended as an aid to the investigation of a case, but as a means of securing his/her appearance before the Court in proceedings sequential thereto.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 2–3. Sep. Op. “The Pre-Trial Chamber must inquire anew into the existence of facts justifying detention. The person participates in the proceedings and is at liberty to put before the Chamber facts bearing on the legitimacy of his detention [. . .]. Thereupon, the Chamber must address anew the issue of detention in light of the material placed before it.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, paras. 10, 12. See also Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 58. “The criteria set down in article 60(2) of the Statute for determining the need for the continued detention of the arrestee are the same as those laid down in article 58(1) of the Statute. The difference between the two

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a rre st a nd det e n tion provisions [. . .] lies in the change of the time perspective from which justification and necessity of the detention are to be judged. The Pre-Trial Chamber must decide whether the conditions set down in article 58(1) of the Statute essential for the justification of the detention of the person exist at the time of consideration of an application for interim release.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 10. Sep. Op. “[T]he decision on continued detention or release pursuant to article 60(2) read with article 58(1) of the Statute is not of a discretionary nature. Depending upon whether or not the conditions of article 58(1) of the Statute continue to be met, the detained person shall be continued to be detained or shall be released.”51 Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 134; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC01/05-01/08-631-Red OA2, 2 December 2009, para. 59. “The Appeals Chamber considers that the third sentence of rule 118(3) of the Rules of Procedure and Evidence stipulates an important rule regarding the procedure to be followed when deciding on interim release or continued detention of a person: the parties must be given an opportunity to submit their observations before the Chamber makes a decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 64. “[U]nder article 60(2) of the Statute, ‘the person shall continue to be detained’ if ‘the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met’. According to the Appeals Chamber, in reaching a decision under article 60(2) of the Statute, the Pre-Trial Chamber has to ‘inquire anew into the existence of facts justifying detention’; the Pre-Trial Chamber’s power is ‘not conditioned by its previous decision to direct the issuance of a warrant of arrest’. The Pre-Trial Chamber’s decision must be taken ‘in light of the material placed before it’. Thus the decision under article 60(2) of the Statute is a decision de novo, in the course of which the Pre-Trial Chamber has to determine whether the conditions of article 58(1) are met. It is imperative that the Pre-Trial Chamber is deciding de novo because it is hearing the submissions of the defence for the first time.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 23. See also Prosecutor v. Bemba,

51

See, para. 140, where it was found that as a consequence, “there was no reason for the PreTrial Chamber to make the principle of necessity and proportionality an independent consideration in its decision”.

jurisprudence Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 111. “[I]n a decision under article 60(2) of the Statute, a Pre-Trial Chamber may refer to the decision on the warrant of arrest, without this affecting the de novo character of the Pre-Trial Chamber’s decision.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 27. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 60; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, paras. 46, 59. “[T]he Appeals Chamber recalls that it has previously recognised that ‘[t]he provisions of the Statute relevant to detention, like every other provision of it, must be interpreted and applied in accordance with “internationally recognised human rights”’. The exceptionality of detention and the presumption of innocence, as ‘internationally recognised human rights’ under article 21(3) of the Statute, are therefore relevant to the interpretation of articles 58(1) and 60(2) of the Statute. However, the thrust of decisions on interim release is the concrete assessment of whether ‘reasonable grounds to believe’ the suspect committed the alleged crimes continue to exist and that the conditions under article 58(1)(b) are met. Therefore, if the conditions underpinning article 58(1) are satisfied, detention of a suspect will be justifiable and consonant with internationally recognised human rights principles. The Appeals Chamber also notes that article 60(4) of the Statute provides that ‘[t]he Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions’.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 67; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/ 13-559 OA3, 11 July 2014, para. 66.

1.2 Reasonable Grounds to Believe that the Person Committed a Crime: Article 58(1)(a) “A pre-requisite for the issuance of a warrant of arrest is that the Chamber must be satisfied that there are reasonable grounds to believe that the person committed the crimes in question. The same applies in proceedings for interim release under article 60(2) of the Statute.

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a rr es t a n d d e te n t i o n The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact. The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 18. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Kilolo’s Appeal for Interim Release, ICC-01/05-01/13-558 OA2, 11 July 2014, para. 55. “The founding of a valid cause for the detention of the person does not rest on reasonable suspicion, but on ‘grounds’ founded on evidential material giving rise to a reasonable belief that a crime has been committed by the Appellant (article 58(2) of the Statute). Belief denotes mental acceptance of a statement, fact, doctrine, thing, etc., as true or existing, whereas suspicion denotes a faint belief that something is the case. In either case, the belief or suspicion must be reasonable, that is, it must have an objective foundation. Belief imports a higher standard of acceptability of something compared to suspicion. What elevates further the test of acceptability of an application for an arrest warrant under the Statute is that such belief must be founded on concrete facts cogent to the extent of creating a reasonable belief that the person committed the crimes for which his/her arrest is sought.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 5. Sep. Op.

2 Conditional Release: Rule 119 2.1 General Considerations: Mandatory versus Discretionary Conditional Release “[I]f the Pre-Trial Chamber is satisfied that the conditions set forth in article 58(1) of the Statute are not met, it shall release the person, with or without conditions. If, however, the release would lead to any of the risks described in article 58(1)(b) of the Statute, the Chamber may, pursuant to rule 119 of the Rules of Procedure and Evidence, examine appropriate conditions with a view to mitigating or negating the risk. As the list of conditions in rule 119(1) of the Rules of Procedure and Evidence indicates, the Chamber may also, in appropriate circumstances, impose conditions that do not, per se, mitigate the risks described in article 58(1)(b) of the Statute. The result of this two-tiered examination is a single unseverable decision that grants conditional release on the basis of specific and

jurisprudence enforceable conditions. Put differently, in such circumstances, release is only possible if specific conditions are imposed.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 105; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 47; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 76. “In relation to conditional release, the Appeals Chamber recalls that the examination of conditions of release is discretionary and that conditional release is possible in two situations: (1) where a Chamber, although satisfied that the conditions under article 58(1)(b) are not met, nevertheless considers it appropriate to release the person subject to conditions; and (2) where risks enumerated in article 58(1)(b) exist, but the Chamber considers that these can be mitigated by the imposition of certain conditions of release.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 55; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 77. “[I]n a situation [. . .] where the Trial Chamber has found that detention is necessary to ensure the person’s appearance at trial, the Chamber has the discretion to consider whether the risk of flight can be mitigated by the imposition of conditions and to order conditional release.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 1, 55. “[I]n circumstances where a State has offered to accept a detained person and to enforce conditions, it is incumbent upon the Pre-Trial Chamber to consider conditional release. On the other hand, where no such proposals for conditional release are presented and none are self-evident the PreTrial Chamber’s discretion to consider conditional release is unfettered.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, paras. 1, 79; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 116, see also para. 115; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal for Interim Release, ICC-01/05-01/13-560 OA4, 11 July 2014, para. 128.

2.2 Conditions outside Rule 119 Conditions for release “may include, but are not limited to, those enumerated under rule 119(1) of the Rules of Procedure and Evidence”.

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a rr es t a n d de te n tio n Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 53. See also Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081937-Red2 OA9, 23 November 2011, para. 35.

2.3

The Chamber has to Specify Appropriate Conditions for Release and Identify a State Able and Willing to Enforce these Conditions “Under rule 119(1) of the Rules of Procedure and Evidence, it is for the Chamber, and not for the receiving State, to impose conditions.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 53. “[T]he Pre-Trial Chamber erred in deciding that Mr Bemba should be released with conditions without also specifying the appropriate conditions [that make the conditional release of Mr Bemba feasible] or identifying a State willing to accept Mr Bemba and enforce the conditions.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 104, see also paras. 108–109. See also Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 54, which listed the two requirements as cumulative: “a Chamber must impose specific conditions and that a State willing and able to enforce those conditions must be identified”. “[T]he Appeals Chamber considers that in order to grant conditional release the identification of a State willing to accept the person concerned as well as enforce related conditions is necessary. Rule 119(3) of the Rules of Procedure and Evidence obliges the Court to seek, inter alia, the views of the relevant States before imposing or amending any conditions restricting liberty. It follows that a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 106; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 48. “It is only once a State willing and able to enforce conditions upon release has been identified that the Trial Chamber must examine the appropriateness of such conditions [for release pursuant to article 60(3) of the Statute].” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 39.

jurisprudence “[T]he International Criminal Court exercises its functions and powers on the territories of States Parties and as such is dependent on State cooperation in relation to accepting a person who has been conditionally released as well as ensuring that the conditions imposed by the Court are enforced. Without such cooperation, any decision of the Court granting conditional release would be ineffective.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 107.

2.4 Obligation to Seek Observations from the Receiving State “A Chamber’s obligations to specify conditions and, if necessary, seek additional information regarding conditions of release is only triggered when: (a) the Chamber is considering conditional release; (b) a State has indicated its general willingness and ability to accept a detained person into its territory; and (c) the Chamber does not have sufficient information before it regarding the conditions of release to enable it to make an informed decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, paras. 1, 35; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 78. “If a Chamber is considering conditional release and a State has indicated its general willingness and ability to accept a detained person and enforce conditions, the Chamber must seek observations from that State as to its ability to enforce specific conditions identified by the Chamber.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 1, 55. “Depending on the circumstances, the Chamber may have to seek further information from the State if it finds that the State’s observations are insufficient to enable the Chamber to make an informed decision. That is not to say that the Chamber upon receiving observations from the State is obliged to grant conditional release. It only means that the Chamber must seek information that would enable it to make an informed decision on the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 2, 55. “The Appeals Chamber notes that rule 119(3) of the Rules of Procedure and Evidence mandates that a Chamber seeks the view of any relevant state ‘[b]efore imposing or amending any conditions restricting liberty’. Thus, rule 119(3) does not apply to requests for interim release generally, but to a situation where a Chamber is considering the conditional release

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a rr es t a nd de te n tio n of detained person or the amendment of conditions already imposed [. . .]. Since conditions of release were not being considered, the Chamber was not obliged to seek views under rule 119(3) of the Rules of Procedure and Evidence.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 82. “[T]he Letter of 22 August was sufficiently clear as to its meaning that the Trial Chamber committed no error in not requiring any further submissions [. . .]. In that case [the OA7 Bemba Appeals Judgment], it was unclear only what specific conditions the State was willing or able to impose. That judgment in no way indicated a general obligation on the Trial Chamber to seek observations in the case of doubt as to submissions by a State in relation to interim release, let alone in a situation such as the present where the State has not indicated its willingness or ability to receive the said person.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 38.

2.5

State Guarantees have to be Read Together with Defence Correspondence with that State “As to the finding that [REDACTED] Letter and [REDACTED] Observations did not specify the conditions [REDACTED] would be able to implement, the Appeals Chamber finds that the Trial Chamber misappreciated these documents because it did not read them in context with Mr Bemba’s Letter addressed to [REDACTED] [. . .]. [I]t is at least clear that [REDACTED] considered that it could impose the four specific conditions identified in Mr Bemba’s letter and further that it could impose any of the conditions listed in rule 119(1) of the Rules of Procedure and Evidence if release were ordered.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, paras. 51–52.

3 Periodic Review of Ruling on Release or Detention: Article 60(3) 3.1 General Principles “Article 60(3) adds an additional safeguard to the armoury of the law for the protection of a right of a person not to be exposed to unjustified prolongation of his/her detention. The Pre-Trial Chamber is required [. . .], to assume on its own motion the task of reviewing an earlier ruling denying the release of a person.”

jurisprudence Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 17. Sep. Op. “[T]his provision [article 60(3)] is one of the ‘safeguards against the undue prolongation of the period of detention’. It takes account of the fact that the circumstances that justified detention for the ruling under article 60(2) of the Statute may change over time. It is the purpose of the periodic review under article 60(3) to ensure that detention that was ordered in accordance with the Statute does not become unwarranted because of a change of circumstances [. . .]. This procedural safeguard must also be seen in the context of the detained person’s right to be presumed innocent.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 49. “[T]he detention regime of article 60(3) of the Statute is a ‘procedural safeguard against detention that is not in accord with the Statute and internationally recognised human rights’, and that it must be considered in the context of ‘the detained person’s right to be presumed innocent’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, para. 40, citing Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/ 08-1019 OA4, 19 November 2010, para. 49. “[I]t is necessary to construe the ‘ruling on detention’ as being the initial decision made under article 60(2) of the Statute as well as any potential subsequent modifications made to that decision under article 60(3) of the Statute.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 46. “A periodic review by the Pre-Trial Chamber of its ruling on the detention of a person subject to a warrant of arrest under article 60(3) of the Statute follows from, and is dependent upon, a ruling on a previous application by the detained person for interim release.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 3, 94. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 080631-Red OA2, 2 December 2009, para. 58; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, paras. 45–46.

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a rr es t a n d d e te n t i o n “The word ’review’ to which the provisions of article 60(3) of the Statute are anchored signifies the revisitation of a subject previously visited [. . .]. The word ‘ruling’ in a judicial context has a settled meaning. It denotes ‘the outcome of a court’s decision either on some point of law or on the case as a whole’. It is synonymous with a judicial decision.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 15. Sep. Op.

3.2

Procedure to “Review” Rulings on Detention

a General Principles “The review of any ruling on the release or detention of a person may be undertaken at any time at the request of the Prosecutor or the person (article 60(3) of the Statute).” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13. “Article 60(3) of the Statute binds the Pre-Trial Chamber to review periodically (at the latest within 120 days) any previous ruling on the release or detention of a person in order to ascertain whether the circumstances bearing on the subject have changed, and, if so, whether they warrant the termination of detention.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 14. “[T]he review pursuant to article 60(3) of the Statute makes it incumbent upon the Pre-Trial Chamber to address anew its prior ruling on the issue of detention or release in light of the requirements under article 58(1) of the Statute.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 58. “[W]hile it is correct that the Prosecutor does not have to re-establish circumstances that have already been established, he must show that there has been no change in those circumstances. The Appeals Chamber recalls that the ‘requirement of “changed circumstances” [in article 60(3) of the Statute] imports either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. Thus, the Prosecutor must, for each periodic review of detention, make submissions as to whether there has been any change in the circumstances that previously justified detention and he must bring to the attention of the Chamber any other

jurisprudence relevant information of which he is aware that relates to the question of detention or release.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 51 (on what ‘changed circumstances’ means, see Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, paras. 1, 60.) “In the Gbagbo OA Judgment the Appeals Chamber recalled that there is ‘a clear difference between the standard of a decision under article 60(2) of the Statute, and under article 60(3) of the Statute’. While review of detention pursuant to article 60(2) entails a decision de novo in which the Pre-Trial Chamber must decide whether the conditions of article 58(1) are met, the Pre-Trial Chamber may modify its ruling on release or detention under article 60(3) if ‘it is satisfied that changed circumstances so require’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 51.

b The Prior Ruling on Detention as a Starting Point “[A] Chamber carrying out a periodic review of a ruling on detention under article 60(3) of the Statute must satisfy itself that the conditions under article 58(1) of the Statute, as required by article 60(2) of the Statute, continue to be met. In doing so, the Chamber must revert to the ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling and whether there are any new circumstances that have a bearing on the conditions under article 58(1) of the Statute. For this reason, the Chamber should not restrict itself to only considering the arguments raised by the detained person. The Chamber must weigh the Prosecutor’s submissions against the submissions, if any, of the detained person. The Chamber must also consider any other information which has a bearing on the subject. Finally, in its decision on review, the Chamber must clearly set out reasons for its findings.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 52. “A de novo review of detention places an obligation upon the Pre-Trial Chamber to comprehensively assess the currency and integrity of each of the factors underpinning detention. The rights of the detained person ought to be at the forefront of this process. Accordingly, the Pre-Trial Chamber must look at the factors underpinning detention in a detailed manner, and make a sufficiently reasoned ruling on whether it continues

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a rr es t a n d d e te n t i o n to find detention necessary under article 58(1) of the Statute, or whether, in fact, the detained person ought to be released [. . .].” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 21. Diss. Op. “In the Bemba OA 4 Judgment, the Appeals Chamber laid out the following procedure for reviewing decisions on detention or release under article 60(3) of the Statute. First, the Pre-Trial or Trial Chamber must identify the ‘ruling on release or detentionʹ that needs to be reviewed, that is, the initial decision made under article 60(2) of the Statute as well as any potential subsequent modifications made to that decision under article 60(3) of the Statute. Second, the Pre-Trial or Trial Chamber needs to consider whether there are ‘changed circumstances’, that is, whether there is a ‘change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. If there are changed circumstances, the Pre-Trial or Trial Chamber will need to consider their impact on the factors that form the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to further review the ruling on release or detention.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, para. 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40.

c

Changed Circumstances “In reviewing a ‘ruling on release or detention’ under article 60(3) of the Statute, the Pre-Trial or Trial Chamber needs to consider whether there are ‘changed circumstances’. If there are changed circumstances, the PreTrial or Trial Chamber will need to consider their impact on the factors that formed the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to further review the ruling on release or detention.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, paras. 1, 31; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 40, 51, see also the Dissenting Opinion of Judge Ušacka, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 17. Diss. Op;

jurisprudence Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 23. “[C]hanged circumstances means a ‘change in some or all the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary’. Thus, a Chamber reviewing a person’s detention under article 60(3) must ‘revert to the ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling and whether there are any new circumstances that have a bearing on the conditions under article 58(1) of the Statute’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 71; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081722 OA8, 9 September 2011, para. 30. “The Pre-Trial Chamber in assessing whether the conditions under article 58(1) continue to be met may pursuant to article 60(3) of the Statute, second sentence, modify its ruling if it is satisfied that changed circumstances so require. The requirement of ‘changed circumstances’ imports either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior ruling is necessary.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, paras. 1, 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-01/11-01/11-548-Red OA4, 29 October 2013, para. 40. “[T]he periodic review of a ruling on detention under article 60(3) of the Statute does not require the Chamber to make a decision on detention ab initio. The Chamber does not have to enter findings on the circumstances already decided upon in the ruling on detention. It must, however, look at those circumstances, in the manner described in the preceding paragraph, and determine whether they still exist. Nor does the Chamber have to entertain submissions by the detained person that merely repeat arguments that the Chamber has already addressed in previous decisions.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 53; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 60; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 52, 94. See also Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 51.

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arrest and d etention “In considering whether changed circumstances require a modification of its previous ruling on detention under article 60(3) of the Statute, the first consideration for the Pre-Trial Chamber is whether the alternative risks under article 58(1)(b) of the Statute remain present so as to justify the continued detention of the person concerned. If they do not, the person must be released, with or without conditions, pursuant to article 60(3) of the Statute. Once this is established, there is no need for any further inquiry into other factors that may justify release.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 48. The Appeals Chamber found an error where “the suspects were not assessed as individuals, but were dealt with as a group. There was no individual consideration of their specific circumstances or whether those circumstances had changed from the previous decision(s).” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 49. See also Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/0501/13-970 OA10, 29 May 2015, para. 27. “The Appeals Chamber is, however, not persuaded by Mr Bemba’s additional argument that the Trial Chamber had to make a decision ‘de novo’ as to whether Mr Bemba should continue to be detained because the composition of the Trial Chamber had changed since the last review of detention. In the Appeals Chamber’s view, the Trial Chamber was competent to carry out the review of the ruling on detention despite changes in its composition.” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC01/05-01/08-1019 OA4, 19 November 2010, para. 56. “[W]hilst the confirmation of charges in itself constitutes a ‘changed circumstance’, the finding by the Pre-Trial Chamber that there were substantial grounds to believe that Mr Bemba committed the crimes charged increased the likelihood that he might abscond. In addition, the length of sentence that Mr Bemba is likely to serve if convicted on these charges is a further incentive for him to abscond. In the view of the Appeals Chamber, the Pre-Trial Chamber misappreciated the weight to be attached to this factor to which it had previously attached much importance.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 70, see also paras. 67–69.

jurisprudence “The Appeals Chamber finds that, without more, the mere raising of new arguments does not amount to ‘changed circumstances’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 68. “[T]he lapse of time in detention cannot be considered on its own to be a changed circumstance within the meaning of article 60(3) of the Statute.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 44. “It is first for the Pre-Trial Chamber to determine whether changed circumstances exist to warrant the disturbing of a previous ruling on detention, rather than addressing each factor underpinning detention in a de novo manner to determine whether any of these have changed.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, paras. 1, 53. “In that [the Impugned] Decision, the basis for Mr Bemba’s detention was found to be article 58(1)(b)(i) of the Statute, that is, the possibility that he would abscond if released. Thus, in order for the Trial Chamber to have found that Mr Bemba’s continued detention was now necessary also under article 58(1)(b)(ii) of the Statute, it would have had to demonstrate a new fact or a change in the circumstances founding the [Impugned] Decision of 17 December 2010. However, although the Impugned Decision identified certain factors as the basis for the finding that there was the possibility that Mr Bemba would interfere with witnesses if released, the Trial Chamber did not explain why those factors constituted a change in the circumstances since the Decision of 17 December 2010. Thus, the Trial Chamber did not revert to the previous ruling on detention to determine whether there has been a change in the circumstances underpinning the ruling, as it was obliged to do under article 60(3).” Prosecutor v. Bemba, Judgment on Provisional Release, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 72–73. “[W]here a Decision pursuant to article 61(7)(c)(i) of the Statute leads to an adjournment of the confirmation hearing in respect of all charges, the PreTrial Chamber ought to recognize this as ‘changed circumstances’ in reviewing the detention of the accused, and advert specifically to the factors underpinning the detention of the detained person in a de novo manner.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 20. Diss. Op.

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4 Protection against Unreasonable Detention: Article 60(4) 4.1 Nature of the Obligation under Article 60(4) “[T]here is a distinct and independent obligation imposed upon the PreTrial Chamber to ensure that a person is not detained for an unreasonable period prior to trial under article 60(4) of the Statute. While the review under article 60(3) ensures that any ruling upon an application for interim release is specifically reconsidered at least every 120 days, there is, in addition, an obligation upon the Pre-Trial Chamber to review the overall period of the detention of the suspect under article 60(4).” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 98. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 13. “Article 60(4) is independent of article 60(2) in the sense that even if a detainee is appropriately detained pursuant to article 60(2) of the Statute, the Pre-Trial Chamber shall consider releasing the detainee under article 60(4) if the detainee is detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor.”52 Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 120. “This [article 60(4) of the Statute] is a free-standing provision, designed to ensure that the judicial process is not protracted and sequentially detention of the person is not extended because of unjustified delays on the part of the Prosecutor.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, Separate Opinion of Judge Pikis, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 19. Sep. Op. “[T]he wording of article 60(4) of the Statute is unequivocal. It addresses situations in which detention prior to trial has been for an unreasonable period of time ‘due to inexcusable delay by the Prosecutor’. As such, the Pre-Trial Chamber erred in concluding that article 60(4) of the Statute was applicable where the period of pre-trial detention was not due to inexcusable delay by the Prosecutor.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 42; Prosecutor v. Bemba

52

In the underlying decision, however, the Appeals Chamber found that the Impugned Decision contained two separate decisions, namely, one on the basis of article 60(2) and one on the basis of article 60(4).

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et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22.

4.2 Relationship between Article 60(4) and 60(3) “Notwithstanding [that article 60(4) is limited to delays from prosecutor’s inexcusable delay], the Appeals Chamber finds that a Chamber may determine that a detained person has been in detention for an unreasonable period, even in the absence of inexcusable delay by the Prosecutor, pursuant to article 60(3) of the Statute. This provision, which governs the review of detention [. . .] must be interpreted and applied consistently with ‘internationally recognized human rights’ pursuant to article 21(3) of the Statute. Therefore, this provision is also a proper legal avenue to protect the right to liberty of a person, as well as the right to be tried within a reasonable period of time or to be released pending trial.” Prosecutor v. Bemba et al., Judgment on the Interim Release Appeals in relation to Kilolo, Mangenda, Babala and Arido, ICC-01/05-01/13-969 OA5, OA6, OA7, OA8, OA9, 29 May 2015, para. 43; Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 22. “Accordingly, a Chamber may also determine that a detained person has been in detention for an unreasonable period, even in the absence of inexcusable delay by the Prosecutor, in its decision pursuant to article 60(2) of the Statute. This determination requires finding that the condition under article 58(1)(a) is met and balancing the risks under article 58(1)(b) of the Statute that are found to be met against the duration of detention, ‘taking into account relevant factors that may have delayed the proceedings and the circumstances of the case as a whole’.” Prosecutor v. Bemba et al., Judgment on the Provisional Release Appeal, ICC-01/05-01/13-970 OA10, 29 May 2015, para. 23.

4.3 Determination of the Reasonableness of the Pre-Trial Detention Period “The Appeals Chamber does not agree with the Appellant that his detention on the basis of the Warrant of Arrest since 16 March 2006 to the date of the Impugned Decision (seven months and three days) amounts to a period of detention prior to trial that is per se unreasonably long. The Appeals Chamber agrees with the finding of the Pre-Trial Chamber that the unreasonableness of any period of detention prior to trial cannot be determined in the abstract, but has to be determined on the basis of the circumstances of each case.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 122.

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arres t and d etention “While it is likely that most of the cases that will come before the Court will tend to be complex, this alone does not mean that the complexity of the case, and in particular the amount and location of the evidence, cannot be taken into account when assessing the reasonableness of the period of detention pursuant to article 60(4) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 123. “[T]he swiftness of action of the judicial authorities is a factor for determining the reasonableness of pre-trial detention.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 124.

4.4

Relevance of Periods Spent in Detention in Third Countries “[I]ssues regarding prior detention are relevant where they are part of the ‘process of bringing the Appellant to justice for the crimes that form the subject-matter of the proceedings before the Court’. As the Appellant’s prior detention was not part of that process and was thus not part of the detention pursuant to the Warrant of Arrest issued by the Pre-Trial Chamber, there is no reason to take that period into account for the purpose of article 60(4) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 121. “[M]ere knowledge on the part of the Prosecutor of the investigations carried out by the Congolese authorities is no proof of involvement on his part in the way they were conducted or the means including detention used for the purpose.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 42.

5 Release in Case of a Stay of Proceedings “[D]etention under articles 60 and 58(1) of the Statute must be related to the exercise of criminal jurisdiction over persons suspected of having committed crimes under the jurisdiction of the Court. Therefore, in the ordinary course of events, if a permanent and irreversible stay of the proceedings is imposed the accused person will have to be released because continued detention would not be in connection with the exercise of criminal jurisdiction by the Court.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 36.

jurisprudence “The matter is different, however, when the proceedings have only been stayed conditionally, as in the present case. A conditional stay is neither an acquittal nor a final termination of the proceedings, but may be lifted in appropriate circumstances [. . .]. Therefore, the Court is not necessarily permanently barred from exercising jurisdiction in respect of the person concerned [. . .]. For that reason, once a Chamber has ordered a conditional stay of the proceedings, the unconditional release of the person concerned is not the inevitable consequence.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 1, 42. “[T]he stay of proceedings was the essential element underpinning the decision to release Mr Lubanga Dyilo. If not for the stay of proceedings, the Trial Chamber would not have ordered the release of Mr Lubanga Dyilo. The reversal of the Decision to Stay Proceedings by the Appeals Chamber vitiates the very basis of the Impugned Decision and, therefore, requires that the Impugned Decision be reversed.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 24. “[I]nstead, [in the case of a conditional stay of proceedings] the Chamber will have to consider all relevant circumstances and base its decision on release or detention on the criteria in articles 60 and 58(1) of the Statute. In particular, the necessity of the continued detention (see article 58(1)(b) of the Statute) will have to be assessed carefully. With specific reference to article 58(1)(b)(i) of the Statute, the Chamber should take into account that the trial has been conditionally stayed, not permanently terminated. If the conditions for continued detention are not met, the Chamber will have to determine whether, in the particular circumstances of the case, release should be with or without conditions (see article 60(2), third sentence, of the Statute).” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 1, 42. “[T]he Appeals Chamber observes that the Trial Chamber made no finding either that the continued detention of Mr Lubanga Dyilo was no longer necessary for trial under articles 58 and 60(2) and (3) of the Statute or that Mr Lubanga Dyilo was detained for an unreasonable period due to the inexcusable delay of the Prosecutor under article 60(4) of the Statute. It would be inappropriate for the Appeals Chamber to enter findings for the Trial Chamber on these points.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 25.

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arrest and d etention “[W]hen deciding on detention or release (with or without conditions), the Chamber will have to consider whether further developments since the imposition of the conditional stay make it likely that the stay might be lifted in the not-too-distant future.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37, see also paras. 39, 42, 45. “[T]he Chamber must be vigilant that any continued detention would not be for an unreasonably long period of time, in breach of internationally recognised human rights [. . .]. If a Chamber concludes that the continued detention, or the release only with conditions, is justified, it will have to review such a decision at short intervals.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 37.

6 Release in “Exceptional Humanitarian Circumstances” ”[T]he Appeals Chamber finds that Trial Chamber was right to apply article 60(3) to the Third Request. Article 60 of the Statute describes the circumstances under which a person subject to a warrant of arrest may be detained or released. Under article 60(3), a Chamber considering a request for review of detention must consider, in light of article 58(1) (b) of the Statute, whether there are changed circumstances justifying a person’s release. In the present appeal, the Appeals Chamber does not consider it necessary to determine whether a Trial Chamber actually has the power to order release for ‘humanitarian reasons’ outside the framework of article 60(3) of the Statute. As stated above, having found that there is a risk that Mr Bemba may abscond and having balanced that against Mr Bemba’s desire to participate in the elections, the Chamber did not err when declining to consider his conditional release to the DRC.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 85.

E Charges and Confirmation Hearing

Commentary

reinhold gallmetzer I The Nature of the Charges The Appeals Chamber has noted that the right of the accused person to be informed of the charges against them is firmly grounded in the Statute and other legal instruments of the Court. Article 67(1)(a) and (b) provides that an accused is entitled “[t]o be informed promptly and in detail of the nature, cause and content of the charge” and “to have adequate time and facilities for the preparation of the defence”.1 However, the regulatory framework of the Court does not provide much detail as to what constitutes the “nature” of the charges. Regulation 52 of the RoC provides that [t]he document containing the charges referred to in article 61 shall include: (a) the full name of the person and any other relevant identifying information; (b) a statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the Court; (c) a legal characterisation of the facts to accord both with the crimes under articles 6, 7 or 8 and the precise form of participation under Articles 25 and 28.

The charges in the early cases brought by the Prosecution included detailed narratives of the relevant facts, together with background information.2 At the same time, in their respective Confirmation Decisions 1

2

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red A5, 1 December 2014, para. 118. See Prosecutor v. Lubanga, Amended Document Containing the Charges, ICC-01/04-01/061573-Anx1, 23 December 2008; Prosecutor v. Katanga & Ngudjolo, Amended Document Containing the Charges, ICC-01/04-01/07-649 and Annexes 1A and 2A, 26 June 2008;

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the Pre-Trial Chambers often elaborated on the facts charged by the Prosecution, developing the factual narrative to better reflect their understanding of the evidence before them.3 This raised the question of whether the Prosecution’s charging document, as confirmed by the Pre-Trial Chamber, or the Confirmation Decision constitute the authoritative document setting out the charges for the trial. While, for instance, in the Bemba case, the Prosecution filed an amended document containing the charges that reflected the facts confirmed by the Pre-Trial Chamber,4 Trial Chamber II in the Katanga & Ngudjolo case found that the Pre-Trial Chamber’s decision on the confirmation of charges “crystallises the facts and circumstances accepted in that decision in support of the charges it has confirmed”,5 and that it is “the point of reference for the trial proceedings”.6 This demonstrates that there was an emerging need for judicial intervention to clarify the nature of the charges on which a person is brought to trial. This clarification came from Pre-Trial Chamber I in the Banda & Jerbo and Gbagbo cases. In particular, in the Gbagbo case, Pre-Trial Chamber I found as follows: one of the core purposes of confirmation of charges is to fix and delimit the factual scope of trial. In this regard, article 74 of the Statute states that “the decision at trial shall not exceed the facts and circumstances described in the charges and any amendment to the charges”. Accordingly, in the event that any charges are confirmed, the factual parameters of the case at trial are determined by the charges as presented by the Prosecutor, to the extent confirmed by the Pre-Trial Chamber. Such delimiting effect can only be ascribed to those facts and circumstances which underlie the charges and must be described therein (“material facts”). Conversely, no constraining power is attributed to those factual allegations presented by the Prosecutor in the DCC, or at the confirmation of charges hearing, with a view to demonstrating or supporting the existence of material facts (“subsidiary facts”). Such subsidiary

3

4

5

6

Prosecutor v. Bemba, Amended Document Containing the Charges, ICC-01/05-01/08-395Anx3, 30 March 2009. See Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06803-tEN, 29 January 2007; Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008; Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009. Prosecutor v. Bemba, Corrected Revised Second Amended Document Containing the Charges, ICC-01/05-01/08-950-Red-AnxA, 13 October 2010. Prosecutor v. Katanga & Ngudjolo, Decision on the Filing of a Summary of the Charges by the Prosecutor, ICC-01/04-01/07-1547, 21 October 2009, para. 22. Ibid., para. 14.

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facts may be analysed by the Pre-Trial Chamber insofar as relevant to determine the existence of material facts, but are not themselves part of the charges and are not subject to confirmation by the Pre-Trial Chamber under article 61(7) of the Statute.7

Accordingly, Pre-Trial Chamber I instructed the Prosecutor in its document containing the charges to “clearly and comprehensively identif[y] and distinguish [. . .] [the material facts underlying the charges] from those facts of a mere subsidiary nature”.8 In developing this approach, Pre-Trial Chamber I relied, among others, on a ruling of the Appeals Chamber in the Lubanga case,9 where it was found that the term “facts” refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61(5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the Confirmation Decision, does not support the legal elements of the crime charged.10

As a result of the above, charging documents recently filed by the Prosecution separate the material facts that lay out the factual basis for each of the elements of the relevant crimes and the modes of liability from subsidiary facts which refer to evidence and describe how the Prosecution intends to establish each of the material facts.11 The decision on the confirmation of charges in the Gbagbo case is the first that also separates the material facts that are confirmed from other 7

8

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Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, para. 27. In this decision, Pre-Trial Chamber I relied on its prior decision in Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09-121Red-Corr, 7 March 2011, paras. 36–38. Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, paras. 27–28. Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09-121-Red-Corr, 7 March 2011, para. 37. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. See Prosecutor v. Gbagbo, Amended Document Containing the Charges, ICC-02/11-01/ 11-592-Anx2-Corr2-Red, 13 January 2014; Prosecutor v. Ntaganda, Document Containing the Charges, ICC-01/04-02/06-203-AnxA, 10 January 2014; Prosecutor v. Blé Goudé, Document Containing the Charges, ICC-02/11-02/11-124-Anx1-Corr, 22 August 2014.

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subsidiary findings discussing the evidence.12 This decision marks a clear evolution in defining the nature of the charges that constitute the basis of the trial. Regarding the required specificity of the charges, the Appeals Chamber quoted with approval relevant jurisprudence from the Blaškić Appeal Judgment of the ICTY,13 on the basis of which it held that in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution; (ii) the related mental element; and (iii) the identities of any alleged co-perpetrators. With respect to the underlying criminal acts and the victims thereof, [. . .] the Prosecutor must provide details as to the date and location of the underlying acts and identify the alleged victims to the greatest degree of specificity possible in the circumstances [. . .]. [T]he underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.14

The detailed information regarding the charges is to be provided primarily in the decision on the confirmation of the charges, which defines the parameters of the charges at trial. However, according to the Appeals Chamber, this does not exclude that “further details about the charges, as confirmed by the Pre-Trial Chamber, may, depending on the circumstances, also be contained in other auxiliary documents”.15 All such additional information must be made available “before the start of the trial hearing”.16 To the extent that further information is provided in the course of the trial, this can only go towards assessing whether prejudice caused by the lack of detail of the charges may have been cured. In addition, where submissions by the Prosecutor made in advance of the trial hearings related to the factual allegations provide additional detail, this can be taken into account when determining whether the Accused’s right to be informed in detail of the charges has been violated.17 12

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Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656, 12 June 2014. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 122. Ibid., para. 123. 15 Ibid., para. 124. 16 Ibid., para. 129. 17 Ibid., paras. 129–130.

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II Amendments to the Charges While the Prosecution has broad discretion to amend the charges prior to the confirmation hearing,18 any amendments to the charges after they have been confirmed are strictly regulated by article 61(9). Accordingly, at that start of the proceedings the Prosecutor may amend the charges only with the permission of the Pre-Trial Chamber and after notice to the Accused. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held.19 Once the trial has commenced, the Prosecutor may, with the permission of the Trial Chamber, withdraw charges,20 but contrary to the rules of the ICTY and the ICTR,21 the Prosecutor may not add charges or amend the charges. The Appeals Chamber left it open as to whether the start of the trial – for the purposes of any amendment to the charges – is the time when the parties make their opening statements or when the evidentiary phase of the trial commences.22 It also emphasised that for any amendments under article 61(9), the entire process must be completed before the commencement of the trial. It is not sufficient for the Prosecutor to merely seek permission for an amendment of the charges prior to the commencement of the trial.23 However, the Prosecutor may ask for a postponement of the commencement of the trial if that is necessary to proceed with the actual amendment of the charges.24 In an appeal against Trial Chamber I’s decision in the Lubanga case where the Trial Chamber extend the factual basis of the charges to crimes of sexual violence after hearing evidence to that effect, the Appeals Chamber emphasised that “[n]ew facts and circumstances not described in the charges may only be added under the procedure of article 61(9) of 18 21

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Article 61(4). 19 Article 61(9). 20 Ibid. ICTY, Rules of Procedure and Evidence (as amended 8 July 2015), in force 14 March 1994, UN Doc. IT/32/Rev.50, rule 50; ICTR, Rules of Procedure and Evidence (as amended 13 May 2015), in force 29 June 1995, UN Doc. ITR/3/REV.1, rule 50. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 27. Trial Chamber I defined the moment of the opening statement as the time of the commencement of the trial: see Prosecutor v. Lubanga, Reasons for Oral Decision Lifting the Stay of Proceedings, ICC01/04-01/06-1644, 23 January 2009, para. 36. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 29. Ibid., para. 31.

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the Statute”.25 It also stated that “[t]o give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute”.26 At the same time, the Appeals Chamber found that the terms of article 61(9) “do not exclude the possibility that a Trial Chamber modifies the legal characterisation of the facts on its own motion once the trial has commenced”.27 According to the Appeals Chamber, “regulation 55 of the Regulations of the Court was introduced precisely to mitigate the fact that after the commencement of the trial the charges cannot be amended (including by the addition of more serious charges)”.28

III The Confirmation of Charges Hearing a General Principles Relating to the Confirmation of Charges Hearing The Appeals Chamber clearly distinguished the scope of the confirmation of charges hearing from that of a trial. It found that the confirmation of charges hearing “is not a trial to establish guilt or innocence. It is a phase of the proceedings designed to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’.”29 According to the Appeals Chamber, “[o]ne of the purposes of this procedure is to prepare the case for trial and to filter out cases that should not go to trial”.30 It also held that “the threshold for the confirmation of charges (‘substantial grounds’, article 61(7) of the Statute) is lower than for conviction (‘beyond reasonable doubt’, article 66(3) of the Statute) and may be satisfied before the end of the investigation”.31 In addition, while stating that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing”, the Appeals Chamber determined 25

26 28

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Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. Ibid. 27 Ibid., para. 77. Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 56.

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that “this is not a requirement of the Statute”.32 To the contrary, it held that “the Pre-Trial Chamber [in the Lubanga case] erred in finding that the Prosecutor’s investigation [. . .] must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation”.33 These directions are very important at this early stage of development of the Court, especially bearing in mind that the pre-trial phase takes around one year on average,34 that Confirmation Decisions are often over 100 pages long,35 and, in some cases, the standard of proof applied by Pre-Trial Chambers may be close to that at trial. For instance, in its “Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute” rendered in the Gbagbo case,36 the majority of Pre-Trial Chamber I37 required that in order for the Prosecutor to meet the evidentiary threshold under article 61(7) she must “largely complete her investigation”,38 “present all her evidence”39 and “her strongest possible case”.40 This would also be contrary to the consistent affirmation of the Pre-Trial Chambers of this Court that pretrial proceedings are not a “mini trial”, but have a mere gatekeeper

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Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 54. Prosecutor v. Lubanga, Judgment on Disclosure Restriction pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 49. The shortest period between the initial appearance of a suspect before the Court and the decision on confirmation or non-confirmation of charges was 8 months and 19 days (in the case Prosecutor v. Banda & Jerbo). The longest period was 2 years, 6 months and 14 days (in the case Prosecutor v. Gbagbo). In most cases it was slightly below 12 months. Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803tEN, 29 January 2007 (157 pages); Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04–01/07–717, 26 September 2008 (226 pages); Prosecutor v. Bemba, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/ 05-01/08-424, 15 June 2009 (186 pages); Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/01-656, 12 June 2014 (132 pages); Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/ 05-02/09-243-Red, 8 February 2010 (103 pages). Prosecutor v. Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013. Judge Silvia Fernandez de Gurmendi appended a dissenting opinion: see ICC-02/11-01/ 11-432-Anx-Corr-Anx, 3 June 2013. Prosecutor v. Gbagbo, Decision Adjourning the Hearing on the Confirmation of Charges pursuant to Article 61(7)(c)(i) of the Rome Statute, ICC-02/11-01/11-432, 3 June 2013, paras. 25, 37. Ibid., para. 37 (emphasis added). 40 Ibid., para. 25.

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function.41 The jurisprudence of the Appeals Chamber referred to above points the Court’s practice in the right direction to ensure that pre-trial proceedings are efficient, while at the same time fulfil its main purpose; that is, “to filter out cases that should not go to trial”.42

b Evidentiary Rules at the Confirmation of Charges Hearing The evidentiary rules at the confirmation of charges hearing are different from those at trial. While trials are governed by the principle of orality of witness testimony pursuant to article 69(2), article 61(5) provides that for the purposes of confirmation of charges, “[t]he Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial”.43 In addition, where the security of witnesses is at issue, the Prosecutor may, pursuant to article 68(5), withhold evidence at the confirmation stage, and instead submit a summary thereof. The Appeals Chamber has held that the use of summaries by the Prosecutor at the confirmation hearing pursuant to article 61(5) [. . .] is not subject to any explicit condition. Neither the Statute nor the Rules of Procedure and Evidence foresee that such summaries must be approved by the Pre-Trial Chamber prior to their presentation at the confirmation hearing. The use of summaries pursuant to article 61(5) of the Statute leaves the disclosure obligations of the Prosecutor pursuant to article 61(3)(b) of the Statute and rules 76 et seq. of the Rules of Procedure and Evidence unaffected.44

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Prosecutor v. Gbagbo, Decision on the Date of the Confirmation of Charges Hearing and Proceedings Leading Thereto, ICC-02/11-01/11-325, 14 December 2012, para. 22; Prosecutor v. Ruto et al., Order to the Defence to Reduce the Number of Witnesses to be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, ICC-01/09-01/11-221, 25 July 2011, para. 9; Prosecutor v. Katanga & Ngudjolo, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 26 September 2008, para. 64; Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para. 37; Prosecutor v. Banda & Jerbo, Corrigendum of the “Decision on the Confirmation of Charges”, ICC-02/05-03/09121-Red-Corr, 7 March 2011, para. 31; Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 39. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. Witness statements at trial may be introduced under rule 68 only if the strict conditions of that rule are met: Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 43.

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Because the use by the Prosecution of summaries of evidence may affect the ability of the Defence to challenge that evidence at the confirmation hearing pursuant to article 61(6)(b),45 the Pre-Trial Chamber must take “sufficient steps to ensure that summaries of evidence [. . .] are used in a manner that is not prejudicial to or inconsistent with the rights of the Accused and with a fair and impartial trial”.46 In a Dissenting Opinion, Judge Pikis specified that “a summary [pursuant article 61(5)] must invariably reveal the essence and substance of the evidence. The summary must no doubt include reference to the provenance of a witness’ statement, that is, the identity of the person making it and in the case of documentary evidence wherefrom it originates.”47 To ensure expeditious confirmation proceedings, the Prosecutor in practice extensively relied on article 61(5) to present its evidence at that stage. With the exception of a few cases where the Prosecutor called one witness, the entirety of the Prosecutor’s witness evidence was submitted in written form. The Defence has mostly followed the same approach. In addition, because Pre-Trial Chambers tend to give very limited weight to statements of witnesses whose identity has not been disclosed to the Defence,48 the Prosecutor has sought to put in place all necessary protective measures prior to the confirmation of charges hearing, so that the identity of the witnesses can be disclosed to the Defence.

c The Pre-Trial Chamber’s Power to Evaluate Evidence Confirmation of charges proceedings are adversarial in nature. According to article 61(6), the Defence may challenge the evidence presented by the Prosecutor and present its own evidence. The PreTrial Chamber will then decide on the basis of all the evidence before it whether there are substantial grounds to believe that the person committed each of the crimes charged.49 45 47

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Ibid., para. 50. 46 Ibid., para. 51. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 7, Sep. Op. See Prosecutor v. Mbarushimana, Decision on the Confirmation of Charges, ICC-01/0401/10-465-Red, 16 December 2011, paras. 49, 78; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Confirmation of Charges pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-02/11-382-Red, 23 January 2012, para. 90; Prosecutor v. Lubanga, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para. 106. Article 61(7).

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In the Mbarushimana case, the Prosecution appealed the decision of Pre-Trial Chamber I not to confirm the charges, among others, on the basis that the Pre-Trial Chamber had erred by conducting an in-depth analysis of the evidence which was inappropriate at the confirmation stage. In particular, according to the Prosecution, it was not the task of the Pre-Trial Chamber to resolve inferences, credibility doubts and perceived inconsistencies against the Prosecution. It should also not have evaluated the credibility and consistency of witness interviews, summaries and statements without having an opportunity to examine the witnesses.50 The Appeals Chamber rejected this appeal. It found that in determining whether to confirm charges under article 61 of the Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses. Any other interpretation would carry the risk of cases proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish substantial grounds to believe the person committed the crimes charged.51

According to the Appeals Chamber this interpretation is necessary to ensure that “the confirmation of charges hearing exists to separate those cases and charges which should go to trial and those which should not [. . .] and to protect the rights of the persons [. . .] to challenge the evidence presented by the Prosecutor and to present his/her own evidence”.52 However, the Appeals Chamber also acknowledged that “the Pre-Trial Chamber’s ability to evaluate the evidence is [not] unlimited [and that] its function in evaluating the evidence is [not] identical to that of the Trial Chamber”.53 According to the Appeals Chamber, the Prosecutor’s reliance on documentary or summary evidence in lieu of inperson testimony will limit the Pre-Trial Chamber’s ability to evaluate the credibility of witnesses. Whilst it may evaluate their credibility, the Pre-Trial Chamber’s determinations will necessarily be presumptive, and it should take great care in finding that a witness is or is not credible. The Prosecutor’s reliance on summary evidence may also mean that the Pre-Trial Chamber 50

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Prosecutor v. Mbarushimana, Corrigendum to the “Prosecution’s Document in Support of Appeal against the ‘Decision on the Confirmation of Charges’ (ICC-01/04-01/10-465Red)”, ICC-01/04-01/10-499-Corr, 13 March 2012. Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, 30 May 2012, paras. 1, 46. Ibid., paras. 39–40. 53 Ibid., para. 47.

jurisprudence will not be presented with all details of the evidence in the possession of the Prosecutor. Where the evidence is insufficient in this regard, the Appeals Chamber recalls that the Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.54

Jurisprudence I The Nature of the Charges 1

Applicable Provisions

“Regulation 52 of the Regulations of the Court thus stipulates that the document containing the charges shall contain three distinct elements: information identifying the accused person, a statement of the facts, and the legal characterisation of these facts. The distinction between facts and their legal characterisation should be respected for the interpretation of Regulation 55 as well.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 97. “The Appeals Chamber notes that the right of the accused person to be informed of the charges is firmly grounded in the Statute and other legal instruments of the Court and has been the subject of several decisions of various Chambers. Article 67(1)(a) and (b) of the Statute provides that an accused is entitled ‘[t]o be informed promptly and in detail of the nature, cause and content of the charge’ and ‘to have adequate time and facilities for the preparation of the defence’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, A5, 1 December 2014, para. 118.

2 Specificity of the Charges “The Appeals Chamber notes that Mr Lubanga was charged and convicted based on the notion of co-perpetration based on a common plan, which resulted, in the ordinary course of events, in the enlistment and conscription of individuals under the age of fifteen years and in their use to participate actively in hostilities. The jurisprudence of the ad hoc tribunals establishes different levels of specificity required of the charges depending on the form of individual criminal responsibility charged. This is addressed in the Blaškić Appeal Judgment in the following terms: ‘210. [. . .] A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case 54

Ibid., para. 48.

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charges and confirmation hearing in an indictment is the nature of the alleged criminal conduct charged. The materiality of such facts as the identity of the victim, the place and date of the events for which the accused is alleged to be responsible, and the description of the events themselves, necessarily depends upon the alleged proximity of the accused to those events, that is, upon the type of responsibility alleged by the Prosecution. [. . .] 211. A distinction has been drawn in the International Tribunal’s jurisprudence between the level of specificity required when pleading: (i) individual responsibility under Article 7(1) in a case where it is not alleged that the accused personally carried out the acts underlying the crimes charged; (ii) individual responsibility under Article 7(1) in a case where it is alleged that the accused personally carried out the acts in question; and (iii) superior responsibility under Article 7(3). [. . .] 213. When alleging that the accused personally carried out the acts underlying the crime in question, it is necessary for the Prosecution to set out the identity of the victim, the place and approximate date of the alleged criminal acts, and the means by which they were committed “with the greatest precision”. However, where it is alleged that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation or execution of the alleged crimes, then the Prosecution is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused which forms the basis for the charges in question.’ [footnotes omitted].’” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 122. “In light of the foregoing, the Appeals Chamber finds that, in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution; (ii) the related mental element; and (iii) the identities of any alleged co-perpetrators. With respect to the underlying criminal acts and the victims thereof, the Appeals Chamber considers that the Prosecutor must provide details as to the date and location of the underlying acts and identify the alleged victims to the greatest degree of specificity possible in the circumstances. In the view of the Appeals Chamber, the underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 123.

jurisprudence “In the view of the Appeals Chamber, the term ‘facts’ refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61(5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the Confirmation Decision, does not support the legal elements of the crime charged.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. “The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90). “[A]part from specifying the political affiliations of the alleged perpetrators and victims, the paragraphs in question do not contain any factual allegation relative to the attack against the civilian population. As such, it cannot be said that the statement in relation to the attack in paragraphs 97 and 105 in itself provided a ‘sufficient [. . .] factual basis to bring the person [. . .] to trial’ within the meaning of regulation 52(b) of the Regulations of the Court or to inform the suspect in detail of the nature, cause and content of the charges against him within the meaning of article 67(1)(a) of the Statute.” Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 42.

3 Confirmation Decision and Auxiliary Documents “As to where and how the detailed information about the charges is to be provided to the accused, the Appeals Chamber underlines [. . .] that, given the Court’s statutory framework and the respective roles of the Prosecutor and the Pre-Trial Chamber in the confirmation process, there can be no doubt that the decision on the confirmation of the charges defines the parameters of the charges at trial [. . .]. If it were otherwise, a person could be tried on charges that have not been confirmed by the Pre-Trial Chamber, or in relation to which confirmation was even declined. However, this does not necessarily exclude that further details about the charges, as confirmed by the Pre-Trial Chamber, may, depending on the circumstances, also be contained in other auxiliary documents.”

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c h a r g es an d c o n f i r m a t i o n h e a r i ng Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 124. “First, given the strong link between the right to be informed in detail of the nature, cause and content of the charges and the right to prepare one’s defence, only information made available before the start of the trial hearings may be taken into account. This is because a trial must commence based on a set of clearly defined charges. This is evidenced by the fact that, once the trial has commenced, no amendment to the charges is permitted, as provided by article 61(9) of the Statute [. . .]. Charges may only be withdrawn with the permission of the Trial Chamber. To the extent that further information is provided in the course of the trial, this can only go towards assessing whether prejudice caused by the lack of detail of the charges may have been cured. Second, in line with the jurisprudence of the Court’s Pre-Trial and Trial Chambers, where submissions by the Prosecutor made in advance of the trial hearings related to the factual allegations provide additional detail, this can be taken into account when determining whether the accused’s right to be informed in detail of the charges has been violated.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 129–130.

II Amendments to the Charges 1 General Principles “[N]ew facts and circumstances not described in the charges may only be added under the procedure of article 61(9) of the Statute [. . .]. As the Prosecutor notes, the incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial [. . .]. To give the Trial Chamber the power to extend proprio motu the scope of a trial to facts and circumstances not alleged by the Prosecutor would be contrary to the distribution of powers under the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “The wording of this provision [article 61(9)] prescribes that an amendment of the charges is no longer possible after the trial has begun. In that regard, the Appeals Chamber notes that opening statements in the present case were made on 10 September 2013 and the first witness was heard on 17 September 2013. Accordingly, irrespective of the precise moment at which the trial begins within the meaning of article 61(9) of the Statute, in the instant case, the trial has commenced.”

j ur i s p r uden ce Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 27.

2 The Relationship between Article 61(9) and Regulation 55 “[A]rticle 61(9) addresses primarily the powers of the Prosecutor to seek an amendment, addition or substitution of the charges, at his or her own initiative and prior to the commencement of the trial; the terms of the provision do not exclude the possibility that a Trial Chamber modifies the legal characterisation of the facts on its own motion once the trial has commenced. Regulation 55 fits within the procedural framework because at the confirmation hearing, the Prosecutor needs only to ‘support each charge with sufficient evidence to establish substantial grounds to believe’, whereas during the trial, the onus is on the Prosecutor to prove ‘guilt beyond a reasonable doubt’. Thus, in the Appeals Chamber’s view, article 61(9) of the Statute and regulation 55 address different powers of different entities at different stages of the procedure, and the two provisions are therefore not inherently incompatible.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. “[R]egulation 55 of the Regulations of the Court was introduced precisely to mitigate the fact that after the commencement of the trial the charges cannot be amended (including by the addition of more serious charges).” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 30. “[R]egulation 55 of the Regulations of the Court was apparently adopted on the understanding that the Prosecutor could no longer seek an amendment of the charges after the commencement of the trial. Therefore, the main purpose of regulation 55 of the Regulations of the Court was to avoid impunity gaps and to promote judicial economy. In accepting this, in my view, article 61(9) of the Statute should also be interpreted as to allow the Prosecutor to close impunity gaps as long as she still has the right to seek an amendment of the charges. In that case, the amendment process would, at times, only conclude after the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, paras. 21–22. Diss. Op.

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3 The Entire Process of Amending the Charges must be Completed Prior to the Start of Trial: Article 61(9) “[T]he Prosecutor’s Request to Amend the Charges was filed before the Pre-Trial Chamber on 22 July 2013, that is, before the commencement of the trial. Nevertheless, the Appeals Chamber finds that the wording of article 61(9) of the Statute (‘the Prosecutor may, with the permission of the Pre-Trial Chamber [. . .] amend the charges’) indicates that not only the request to amend the charges has to be filed before the commencement of the trial, but also that the entire process of amending the charges must be completed by that time, including the granting of permission for the amendment by the Pre-Trial Chamber.” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 29.

4 The Prosecutor may Request Postponement of the Trial Pending the Outcome of a Request to Amend the Charges “[T]he Appeals Chamber finds that, once the trial has commenced, it is no longer possible to amend or to add to the charges, irrespective of when the Prosecutor filed her request to amend the charges. The Appeals Chamber does not consider that this unduly prejudices the Prosecutor: if she identifies a need to seek an amendment of the charges shortly before the scheduled start of a trial, she may ask for a postponement of the trial until the amendment process, including any potential appeal in that regard, is concluded.” Prosecutor v. Ruto & Sang, Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/09-01/11-1123 OA6, 13 December 2013, para. 31. “[T]here is no legal provision requiring the Trial Chamber to postpone the commencement date of the trial to account for proceedings relevant to the Prosecutor’s request to amend the charges. Rather, this is a matter solely within the discretion of the Trial Chamber. While the Prosecutor may seek a postponement of the trial date, such a request does not automatically lead to a Trial Chamber postponing the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 19. Diss. Op.

4.1

Dissenting Opinion of Judge Ušacka in the Amendment of the Charges Appeal “[I]t is recalled that the Document in Support of the Appeal was filed on 19 September 2013, that is, nine days after the commencement of the trial. If it were clear that the amendment process needed to have been fully

j ur i s p r uden ce concluded before the commencement of the trial and that the Prosecutor’s relief could no longer be granted, the Appeals Chamber would have had to immediately dismiss the appeal in limine for a number of reasons, primarily for reasons of expeditiousness and judicial economy.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 14. Diss. Op. “[T]here are least two possible options as to the correct interpretation of the word ‘amend’ in this [article 61(9)] context. First, it can be read as requiring a request from the Prosecutor to the Pre-Trial Chamber for permission to amend the charges. Second, it can be read as requiring the Pre-Trial Chamber to grant permission to amend the charges before the commencement of the trial. Possibly, it could even mean that the Prosecutor is required to file an amended document containing the charges before the commencement of the trial.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 16. Diss. Op. “In support of the first option, it is important to note that the phrase ‘permission of the Pre-Trial Chamber’ is connected by the word ‘and’ with the phrase ‘after notice to the accused’. Evidently, the accused is notified at the time the Prosecutor seeks an amendment. Therefore, the act of seeking an amendment, as opposed to having been granted an amendment (or filing an amended document containing the charges) could be considered sufficient in order to fall within the timeframe required by article 61(9) of the Statute.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 17. Diss. Op. “[I] note that the first sentence of article 61(9) of the Statute suggests that the Prosecutor has a right to amend the charges during the entirety of this period, that is, up until the moment the trial begins. If the first sentence of article 61(9) of the Statute is read as requiring the amendment process to be fully concluded, the Prosecutor would be required to foresee how long the amendment process would take, which could include, for example, the length of a confirmation hearing if a more fundamental amendment is requested, and/or of appeal proceedings, if leave to appeal a decision denying an amendment is granted.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 18. Diss. Op.

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charges and confirmation hearing “[I]mposing a requirement that the amendment proceedings must be concluded before the commencement of the trial, in my view, limits considerably the scope of application of the Prosecutor’s right to amend the charges and appears to be contrary to the overall purpose of article 61(9) of the Statute.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka in the Decision on the Prosecutor’s Appeal to Amend the Charges, ICC-01/0901/11-1123-Anx OA6, 13 December 2013, para. 23. Diss. Op.

III The Confirmation of Charges Hearing 1 General Principles Relating to the Confirmation of Charges Hearing “[A] hearing to confirm the charges is not a trial to establish guilt or innocence. It is a phase of the proceedings designed to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’ prior to confirming any charges and committing the person to a Trial Chamber to be tried on the charges as confirmed. As such, it may be permissible to withhold the disclosure of certain information from the Defence prior to the hearing to confirm the charges that could not be withheld prior to trial.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68. “[T]he right to challenge the evidence [. . .] must be understood in the context of the confirmation hearing, which does not amount to a determination of the guilt or innocence of the suspect. Pursuant to article 61(7)(a) of the Statute, the Pre-Trial Chamber shall confirm those charges in relation to which it has determined that there is sufficient evidence to establish substantial grounds to believe that the suspect committed the crime charged. As the threshold for the confirmation of the charges is lower than for a conviction, the Prosecutor may be able to convince the Pre-Trial Chamber that the threshold for the confirmation of the charges has been reached even if the reliability of the witnesses and other evidence was not fully tested.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 47. “[T]he threshold for the confirmation of charges (‘substantial grounds’, article 61(7) of the Statute) is lower than for conviction (‘beyond reasonable doubt’, article 66(3) of the Statute) and may be satisfied before the end of the investigation. If further investigations lead the Prosecutor to

j u r i s p r ud e n c e reassess his theory about the suspect’s liability for the crimes charged, he may seek, within the limits of article 61(9) of the Statute, an amendment or withdrawal of the charges, as necessary.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 56. “[A] confirmation pursuant to article 61 of the Statute is limited to the specific charges as provided in the document containing the charges. The document containing the charges is an assertion by the Prosecutor that he intends to bring a person to trial for the specific crimes set out in the document; it is not an assertion that he will not seek to put the suspect on trial for other crimes in the future.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 51. “[T]he Appeals Chamber emphasises that in the confirmation process, the facts, as defined above [factual allegations which support each of the legal elements of the crime charged], must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163 (to para. 90). “[T]he prerequisites for the issue of a warrant of arrest and the confirmation of charges are different. Whereas the test for the issuance of a warrant of arrest under article 58(1)(a) and (b) of the Statute is the presence of ‘reasonable grounds to believe that a person has committed a crime within the jurisdiction of the Court’ coupled with the existence of grounds warranting detention, the denominator for the confirmation of charges is the existence of ‘sufficient evidence to establish substantial grounds to believe that the person committed the crimes charged’ (article 61(7) of the Statute).” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 14. “[O]ne of the purposes of this [the confirmation] procedure is to prepare the case for trial and to filter out cases that should not go to trial. A case will only be referred to a Trial Chamber if there are ‘substantial grounds to believe’ that the person in question has committed the crimes charged. In addition, the Pre-Trial Chamber has the primary responsibility of ensuring the protection of the rights of suspects during the investigation stage of the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. See also Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third

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c h a r g es an d c o n f i r m a tio n h e a r i ng Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 16. Diss. Op. “[P]ursuant to article 61(6) of the Statute, at the confirmation hearing a suspect may contest both matters of statutory interpretation and evidential aspects of the Prosecutor’s case.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 33; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 27. “[C]hallenges to jurisdiction may be joined to a confirmation proceeding, in which case the jurisdictional challenge shall be decided first [. . .]. It would make little sense to consider and determine, for the purposes of ‘jurisdiction’, the interpretation of ‘organizational policy’ and whether the Prosecutor had submitted sufficient evidence to establish substantial grounds to believe that the crimes were committed in furtherance of such a policy prior to holding a confirmation hearing designed to resolve precisely the same issues.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 34; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 28. “[I]n the context of this case, treating the interpretation and existence of ‘organisational policy’ as jurisdictional matters conflates the separate concepts of jurisdiction and the confirmation process; yet it is the latter that is designed to consider the matters raised on these appeals and filter unmeritorious cases from progressing to trial.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 35; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 29. “This is not to say that the Pre-Trial Chamber’s ability to evaluate the evidence is unlimited or that its function in evaluating the evidence is identical to that of the Trial Chamber. The Appeals Chamber recalls that the confirmation of charges hearing is not an end in itself, but rather serves the purpose of filtering out those cases and charges for which the evidence is insufficient to justify a trial. This limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The Pre-Trial Chamber need not be

jurisprudence convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 47. “[U]nder article 61(7) of the Statute, the Pre-Trial Chamber has three options in determining ‘whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’. It may elect to confirm the charges for which there is sufficient evidence and commit the accused to trial (article 61(7)(a)), decline to confirm the charges for which there is insufficient evidence (article 61(7)(b)), or adjourn the hearing to request the Prosecutor to provide further evidence or conduct further investigation in relation to a particular charge (article 61(7)(c)(i)), or amend the charge where the evidence submitted appears to establish a different crime within the jurisdiction of the Court (article 61(7)(c)(ii)).” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 3. Diss. Op. “I note that the Court’s legal texts, more specifically article 61 of the Statute, do not directly address the consequences on the detention of the charged person of a decision to adjourn the confirmation hearing with respect to all of the charges. In my view, when the Pre-Trial Chamber elects to adjourn the confirmation of charges hearing in relation to ‘all charges’, as in the instant case, it must, at the very least, examine the concomitant impact that such an adjournment has upon the rights of the detained person.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx2, 29 October 2013, para. 9. Diss. Op.

2 Evidentiary Rules at the Confirmation Hearing “[T]he Trial Chamber’s argumentation as to the link between the pre-trial and trial phases is unpersuasive. While it is true that there is, and must be, a strong link between the two phases of the proceedings, this does not mean that the same evidentiary rules apply. On the contrary, the rules regarding orality in the pre-trial phase are more relaxed than at trial. Pursuant to article 61(5) of the Statute, for the purposes of the confirmation hearing, the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial’.

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c h a r g e s an d c o n f i r m a t i o n h e a r i n g At the trial, however, the Trial Chamber must respect article 69(2). Witness statements may only be introduced under rule 68 of the Rules of Procedure and Evidence if the strict conditions of that rule are met.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80. “[P]ursuant to article 61(5) of the Statute, for the purposes of the confirmation hearing, the Prosecutor ‘may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial’. At the trial, however, the Trial Chamber must respect article 69(2).” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 80.

3

Use of Summaries at the Confirmation Hearing under Article 61(5)

“[T]he use of summaries of witness statements and other documents at the confirmation hearing in relation to witnesses of the Prosecutor whose identities have not been disclosed to the Defence prior to the confirmation hearing is, in principle, permissible under the Statute and the Rules of Procedure and Evidence, provided that such summaries are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 40, see also para. 50. “The use of summaries by the Prosecutor at the confirmation hearing pursuant to article 61(5), second sentence, of the Statute is not subject to any explicit condition. Neither the Statute nor the Rules of Procedure and Evidence foresee that such summaries must be approved by the Pre-Trial Chamber prior to their presentation at the confirmation hearing. The use of summaries pursuant to article 61(5) of the Statute leaves the disclosure obligations of the Prosecutor pursuant to article 61(3)(b) of the Statute and rules 76 et seq. of the Rules of Procedure and Evidence unaffected.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 43. See also Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 7. Sep. Op. “[T]he use of summaries [. . .] may affect the ability of the suspect pursuant to article 61(6)(b) to challenge the evidence presented by the

jurisprudence Prosecutor at the confirmation hearing in two respects: first, the Prosecutor is authorised to rely on witnesses whose identities are unknown to the Defence (anonymous witnesses); second, the ability of the defence to evaluate the correctness of the summaries is restricted because the Defence does not receive prior to the confirmation hearing the witness statements and other documents that form the basis of the summaries. However, this does not mean that the use of such summaries at the confirmation hearing is necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 50. “[W]here the Pre-Trial Chamber takes sufficient steps to ensure that summaries of evidence in the circumstances described above are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial, the use of such summaries is permissible. This will have to be determined on a case-by-case basis, also bearing in mind the character of the confirmation hearing.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 51. “[A] summary [pursuant article 61(5)] must invariably reveal the essence and substance of the evidence. The summary must no doubt include reference to the provenance of a witness’ statement, that is, the identity of the person making it and in the case of documentary evidence wherefrom it originates. Authority to substitute a summary for the statement itself or a document does not absolve the Prosecutor of the duty to disclose the evidence (a witness’ statement or a document) untrammelled to the person charged, who would be free to make use of it in any challenge of the evidence of the witness under article 61(6)(b) of the Statute.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, para. 7. Sep. Op.

4 Power of the Pre-Trial Chamber to Review Weight of Evidence 4.1 The Pre-Trial Chamber is Not Precluded from Entering into Matters of Credibility “In determining whether to confirm charges under article 61 of the Statute, the Pre-Trial Chamber may evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses. Any other interpretation would carry the risk of cases

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charges a nd confirmation hearing proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish substantial grounds to believe the person committed the crimes charged.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, paras. 1, 46. “This provision [article 61] clearly shows that the confirmation of charges hearing exists to separate those cases and charges which should go to trial and those which should not, a fact supported by the drafting history. It serves to ensure the efficiency of judicial proceedings and to protect the rights of persons by ensuring that cases and charges go to trial only when justified by sufficient evidence. It is by its nature an evidentiary hearing, with the Pre-Trial Chamber required to evaluate whether the evidence is sufficient to establish substantial grounds to believe the person committed each of the crimes charged. In order to make this determination as to the sufficiency of the evidence, the Pre-Trial Chamber must necessarily draw conclusions from the evidence where there are ambiguities, contradictions, inconsistencies or doubts as to credibility arising from the evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 39. “The Appeals Chamber attaches considerable significance to the fact that article 61(6) of the Statute enshrines the right of the person charged to challenge the evidence presented by the Prosecutor and to present his/her own evidence. If these rights are availed of, the evidence inevitably will be contested. For these rights to have any meaning, the Pre-Trial Chamber must therefore evaluate the contested evidence and resolve any ambiguities, contradictions, inconsistencies or doubts as to credibility introduced by the contestation of the evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 40. The Statute and Rules do not preclude the Pre-Trial Chamber “from evaluating the evidence as is required by article 61(7) of the Statute or otherwise limit the Chamber’s authority to freely assess evidence”. Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 42. “[T]he confirmation of charges hearing [. . .] was deliberately established as a hearing before a Pre-Trial Chamber of three judges at which the

juri sprudence person charged has the right to be present and to contest the evidence and following which the Pre-Trial Chamber must assess the evidence. Such a process clearly requires the Pre-Trial Chamber to go beyond looking at the Prosecutor’s allegations ‘on their face’ as is done in confirming an indictment at the ICTY or ICTR.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514, OA4, 30 May 2012, para. 43. “The Appeals Chamber is not persuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot properly evaluate the evidence because it lacks the full evidence. As previously indicated by the Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber. Where the Prosecutor requires more time to complete the investigation, rule 121(7) of the Rules of Procedure and Evidence permits him to seek a postponement of the confirmation of charges hearing. If the evidence is found to be insufficient, article 61(8) of the Statute provides that the Prosecutor is not precluded from subsequently requesting the confirmation of charges on the basis of additional evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 44. See also Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06568 OA3, 13 October 2006, para. 54. “The Appeals Chamber is equally unpersuaded by the Prosecutor’s argument that the Pre-Trial Chamber cannot evaluate the credibility of witnesses without their in-person testimony. It is true that the Appeals Chamber has indicated that a Chamber’s ability to assess the credibility of witnesses is limited when such witnesses do not testify in person. However, the Appeals Chamber recognised in that same decision that Trial Chambers may nevertheless receive testimony other than in-person and that ‘rules regarding orality in the pre-trial phase are more relaxed than at trial’.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 45, citing Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/0501/08-1386 OA5 OA6, 3 May 2011, para. 80. “[I]t is for the Prosecutor to plead the facts relevant to establishing the legal elements and for the Pre-Trial Chamber to determine whether those facts, if proven to the requisite threshold, establish the legal elements of

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char ges and confir mation hear ing the attack [under article 7]. The question of how many of the incidents pleaded by the Prosecutor would suffice to prove an ‘attack’ in the present case is a matter for the Pre-Trial Chamber to determine. It is not a question that can be determined in the abstract.” Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 47.

4.2

The Pre-Trial Chamber’s Power to Evaluate Evidence is Not Unlimited “This is not to say that the Pre-Trial Chamber’s ability to evaluate the evidence is unlimited or that its function in evaluating the evidence is identical to that of the Trial Chamber. The Appeals Chamber recalls that the confirmation of charges hearing is not an end in itself, but rather serves the purpose of filtering out those cases and charges for which the evidence is insufficient to justify a trial. This limited purpose of the confirmation of charges proceedings is reflected in the fact that the Prosecutor must only produce sufficient evidence to establish substantial grounds to believe the person committed the crimes charged. The Pre-Trial Chamber need not be convinced beyond a reasonable doubt, and the Prosecutor need not submit more evidence than is necessary to meet the threshold of substantial grounds to believe. This limited purpose is also reflected in the fact that the Prosecutor may rely on documentary and summary evidence and need not call the witnesses who will testify at trial.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 47. “[T]he Prosecutor’s reliance on documentary or summary evidence in lieu of in-person testimony will limit the Pre-Trial Chamber’s ability to evaluate the credibility of witnesses. Whilst it may evaluate their credibility, the Pre-Trial Chamber’s determinations will necessarily be presumptive, and it should take great care in finding that a witness is or is not credible. The Prosecutor’s reliance on summary evidence may also mean that the Pre-Trial Chamber will not be presented with all details of the evidence in the possession of the Prosecutor. Where the evidence is insufficient in this regard, the Appeals Chamber recalls that the Pre-Trial Chamber need not reject the charges but may adjourn the hearing and request the Prosecutor to provide further evidence.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 48.

F Disclosure and Redactions

Commentary

reinhold gallmetzer The Statute and the Rules impose a duty on the Prosecution to disclose to the Defence the following categories of information: (a) the names of witnesses whom the Prosecution intends to call to testify and copies of any prior statements made by those witnesses;1 (b) a list of all the evidence that the Prosecution intends to present during the proceeding;2 and (c) evidence in the Prosecution’s possession or control that the Prosecution believes shows or tends to show the innocence of the Accused, or to mitigate the guilt of the Accused, or which may affect the credibility of the prosecution evidence.3 In addition, the Prosecution must permit the Defence to (d) inspect any information in its possession that is material to the preparation of the defence or was obtained from, or belonged, to the Accused.4 The Prosecution’s disclosure and inspection duties are a key pillar in the ICC’s procedural scheme, and are critical in order to fully respect the Accused’s rights under article 67(1) and to ensure the fairness of the proceedings. Disclosure and inspection are particularly important because of the Prosecution’s duty “to investigate incriminating and exonerating circumstances equally”, pursuant to article 54(1)(a). This means 1 2

3

4

Rule 76(1). Rule 121(3). This provision specifically refers to proceedings before the confirmation of charges hearing. However, the same duty is routinely extended also to trial proceedings. See Prosecutor v. Ruto & Sang, Decision on the Schedule Leading up to Trial, ICC-01/0901/11-440, 9 July 2012, para. 11. In addition, rule 77 refers to the Prosecution’s obligation to allow the Defence to inspect information in its possession that is intended for use by the Prosecution as evidence for the purposes of the confirmation hearing or at trial. Article 67(2). This information is also referred to as “potentially exonerating information” or “PEXO”. Rule 77. This information is also referred to as “Rule 77 material”.

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that during its investigations the Prosecution will actively seek exonerating information that must then be disclosed. As a general principle, the Prosecution’s disclosure and inspection obligations apply to information in the Prosecution’s possession or control, “even if it is publicly available”.5 The Appeals Chamber has held that “the tenor of the disclosure regime established by the Statute and the Rules of Procedure and Evidence is that the Prosecutor is ordinarily obliged to make full disclosure, save for where specific provision is made for restrictions on disclosure to be permitted”.6 Accordingly, an assessment of whether something must be disclosed must be conducted in two stages. First, the Prosecutor must determine whether information within its possession or control falls within any of its disclosure obligations. Second, the Prosecution may request a Chamber to apply any “restrictions on disclosure as provided for in the Statute and in rules 81 and 82 [. . .]. Such restrictions include where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93 of the Statute and the protection of the safety of individuals in accordance with article 68 of the Statute”.7 This process also applies to information collected by the Prosecution pursuant to a confidentiality agreement under article 54(3)(e).8

I Right of the Accused to Disclosure and Inspection a Pre-trial Disclosure of Prosecution Witness Statements: Rule 76 According to the Appeals Chamber, disclosure under rule 76 serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence.9 Importantly, the ordinary meaning of the term “statement” is broad and requires the 5

6

7

8

9

Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 34. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 45. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 1, 35. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 43–44. Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 27; Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26.

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Prosecution to disclose copies of any prior statements made by witnesses that it intends to call irrespective of the form in which such statements are recorded.10 However, rule 76 only requires the Prosecution to disclose statements made by witnesses “when questioned about their knowledge of the case”.11 Conversely, statements provided by witnesses that relate solely to matters other than the facts and circumstances described in the charges, for instance, statements that relate to the credibility of witnesses or to the mitigation of the guilt of the Accused, are more appropriately disclosed in accordance with rule 77 or article 67(2) if they meet the criteria set out in those provisions.12 The main difference between disclosure of witness statements pursuant to rule 76 and the Prosecution’s disclosure and inspection obligations under article 67(2) and rule 77 is the “nature of the Prosecutor’s assessment of material subject to disclosure”.13 While all prior statements of Prosecution witnesses must be disclosed, article 67(2) and rule 77 require disclosure or inspection of information that the Prosecutor believes meets the criteria set out in those provisions. This includes an assessment of whether the information is potentially exonerating or whether it is “material to the preparation of the defence”.14

b

Disclosure of Potentially Exonerating Information: Article 67(2) The Prosecution’s disclosure duties under article 67(2) are not linked to any requirement that the Defence reveals defence(s) in advance,15 but are based, inter alia, on the Prosecutor’s understanding of the case as a whole. The fact that the Prosecutor is required to investigate incriminating and exonerating circumstances equally means that the Prosecution may be aware, during the course of its investigations, of material that may be of assistance to the Defence.16 The Prosecution’s duty to disclose potentially exonerating information does not only apply to trial proceedings, but extends to proceedings on 10

11

12 15

16

Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 27. Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 1, 16, 38. Ibid., paras. 23, 38. 13 Ibid., para. 23. 14 Ibid. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 46. Ibid., para. 36.

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the confirmation of charges.17 In case of doubt as to the application of article 67(2), the Court shall decide whether it applies. Notably, “[t]his indicates that the final assessment as to whether material in the possession or control of the Prosecutor has to be disclosed under that provision will have to be carried out by the Trial Chamber and that therefore the Chamber should receive the material”.18 Withholding exculpatory information could result in “a manifest inequality of arms, with little, if any, prospect for fair proceedings”.19 Any such failure by the Prosecution to disclose information “would cloud the proceedings with doubt, rendering them a priori inconclusive”.20

c Inspection of Information Material to the Preparation of the Defence: Rule 77 The Appeals Chamber has repeatedly held that “the term ‘material to the preparation of the defence’ must be interpreted broadly”, and “should be understood as referring to all objects that are relevant for the preparation of the defence”.21 Any assessment to that effect “should be made on a prima facie basis”.22 However, “the right to [inspection] is not unlimited and which objects are ‘material to the preparation of the defence’ will depend upon the specific circumstances of the case”.23 In deciding whether information is material to the preparation of the defence, whether the Defence has already received relevant documents from the Prosecutor may be taken into account. However, caution should be exercised in taking such an approach as it must not undermine the 17

18

19

20

21

22

23

Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 43, 46. Diss. Op. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 72(c) (on the importance of the relevance of the information to the balancing exercise); Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Diss. Op. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, paras. 77–78, 80–81; Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 10. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 2, 42. Ibid., para. 39.

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paramount right of the Defence to disclosure of all information material to the preparation of the defence.24 Like Pre-Trial and Trial Chambers of the ICC, the Appeals Chamber has also equated the Prosecution’s duty to allow for the inspection of material under rule 77 with its duties of disclosure.25 It held that the Prosecution’s “disclosure” obligation under rule 77 applies “independently of any request from the defence”, in the sense that the Prosecution must proactively search and analyse all information in its possession or control to assess whether it falls within the scope of rule 77.26

d Disclosure in Relation to Applications for Interim Release Although there is no express regime for disclosure in relation to applications for interim release, the Appeals Chamber has held that “the PreTrial Chamber should ensure that in the disclosure process priority is given to those documents that are essential for the person to receive in order effectively to challenge the lawfulness of detention”.27 Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. This would allow the person to challenge his or her detention as soon as he or she is in detention at the Court and in circumstances in which he or she is appraised of the material on which the arrest warrant was based.28 II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) Rule 81(4) provides that a Chamber has the power to take the necessary steps, either on its own motion or at the request of a party or any State, to ensure the confidentiality of information to protect the safety of witnesses and victims and members of their families, including by authorising the non-disclosure of their identity prior to the commencement of the trial. In interpreting this provision, the Appeals Chamber has established the following principles: First, “the overriding principle is that full disclosure should be made”.29 However, the right to disclosure is not absolute. The 24 27

28 29

Ibid., para. 40. 25 Ibid., para. 34. 26 Ibid. Prosecutor v. Bemba, Judgment on Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 33. Ibid., para. 32. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64.

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withholding of disclosure of information from the Defence is permissible so as to preserve the fundamental rights of another individual; not every incident of non-disclosure automatically results in an unfair trial.30 Second, any exception to the general rule of disclosure must be assessed by a Chamber on a case-by-case basis, taking into account all relevant factors and balancing the various interests at stake.31 This includes an assessment of “the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why [. . .] the measure would not be prejudicial to or inconsistent with the rights of the Accused and a fair and impartial trial”.32 In addition, “[t]he relevance of the information to the Defence is another important consideration”.33 Third, the Appeals Chamber has held that “the alleged danger must involve an objectively justifiable risk to the safety of the person concerned [and] the risk must arise from disclosing the particular information to the Defence, as opposed to disclosing the information to the public at large”.34 If a Chamber concludes that it has been demonstrated that the risk in fact exists, it should proceed to assess whether the proposed redactions could overcome or reduce the risk. If not, the redactions should not be granted.35 Fourth, because redactions may result in restrictions of the suspect’s rights, a Chamber should consider the following factors to ensure that any such restrictions are strictly limited: a Chamber should (a) consider whether an alternative measure short of redaction is available and feasible in the circumstances; (b) bear in mind the stage of the proceedings at 30

31

32

33

34

35

Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 46–47. Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 36; Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/ 04-01/07-475 OA, 13 May 2008, para. 66. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 67. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 71. Ibid., para. 72.

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which the non-disclosure is sought; (c) assess the relevance of the information in question to the Defence – if the information may be of assistance to the case of the suspect or may affect the credibility of the case of the Prosecutor, the Chamber will need to take particular care when balancing the interests at stake; and (d) assess whether nondisclosure would result in the proceedings, viewed as a whole, to be unfair to the suspect.36 Fifth, given that the crimes prosecuted before the Court affect great numbers of persons, including whole communities, the unfortunate reality is that not only witnesses, victims and their families, but an indeterminate number of persons “may be exposed to risk through the activities of the Court”.37 As a result, the Appeals Chamber held that “Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words ‘persons at risk on account of the activities of the Court’.”38 The Appeals Chamber thereby extended the scope of protection under rule 81(4) by interpreting the provision in accordance with the Court’s overall duty of protection under article 68 and the Prosecutor’s power of protection under article 54(3)(f). Sixth, the Appeals Chamber implicitly endorsed the practice of the PreTrial and Trial Chambers that redactions under rule 81(4) may not only be applied until the commencement of the trial, but may, as a protective measure under article 68(1), extend to the entire proceedings. However, “[e]ven if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the [. . .] Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure”.39

III Redactions to Protect Investigations: Rule 81(2) Rule 81(2) allows the Prosecution to apply to the Chamber for permission to withhold from the Defence information that is otherwise disclosable, if disclosure would prejudice further or on-going investigations. The Appeals Chamber has held that redactions under rule 81(2) are 36 38

39

Ibid. 37 Ibid., paras. 45, 54. Ibid., para. 1; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, para. 33. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64.

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applied similarly to redactions under rule 81(4). It found that a Chamber must rule on those redactions on a case-by-case basis,40 and that “[t]he same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, [to redactions under rule 81(2)]”.41 In addition, a Chamber must keep any decision on redaction under review and alter that decision should changed circumstances make that appropriate.42 The Appeals Chamber has held that both information that falls within the scope of rule 77 and potentially exculpatory information under article 67(2) may be redacted pursuant to rule 81(2).43 However, it also clarified that once a document is assessed to contain disclosable information, it must be disclosed in its entirety,44 subject to redactions.45 This means that redactions may need to be made to information that is in itself not potentially exculpatory or material to the preparation of the Defence. If that is the case, a Chamber will be more likely to authorise redactions. In addition, if a redacted document is disclosed, the Prosecution may still rely on the unredacted portions of the document as evidence in support of its case.46 The Appeals Chamber has held that redactions under rule 81(2) may apply to any type of information, “without excluding per se certain categories of information”.47 In practice, it endorsed redactions under rule 81(2) to the following types of information: (a) the identity and identifying information of potential Prosecution witnesses when the disclosure of such information could impact on their ability to cooperate further with the Prosecution;48 (b) the date, time and place of a witness interview;49 (c) the identity of Court personnel (Prosecution and VWU) 40

41

42 43

44

45

46 47

48

49

Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 52. Ibid., para. 59; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. Ibid., para. 64. Ibid., para. 57; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12. Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Non-disclosure, ICC-01/ 04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, paras. 45–46. Ibid., paras. 45–46 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, paras. 49, 62. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 91.

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present during such interview;50 and (d) “pending investigative matters” that relate to requests for assistance.51

IV Relationship between Article 54(3)(e) and Disclosure Obligations Under article 54(3)(e), the Prosecution may agree not to disclose, at any stage of the proceedings, documents or information that it obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents. The Appeals Chamber has endorsed the Prosecution’s power to receive information under these conditions.52 However, it stressed that “the use of article 54(3)(e) of the Statute must not lead to breaches of the obligations of the Prosecutor vis-à-vis the suspect or the accused person”.53 According to the Appeals Chamber: the reliance by the Prosecutor on article 54(3)(e) of the Statute may lead to tensions with his disclosure obligations under article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence: by accepting material on the condition of confidentiality, the Prosecutor potentially puts himself in a position where he either does not disclose material that he normally would have to disclose, or breaches a confidentiality agreement entered into with the provider of the material in question [. . .]. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.54

Where material was obtained on the condition of confidentiality, a Chamber will have to respect the confidentiality agreement concluded by the Prosecution and “cannot order the disclosure of the material to the defence without the prior consent of the information provider”.55 On the other hand, the Appeals Chamber has laid out a process aimed at resolving the tension between any confidentiality agreements and the Prosecution’s disclosure obligations. It held that: 50 51

52

53

Ibid. Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/063017 A5 A6, 11 April 2013, para. 12. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 1, 41–42. Ibid., para. 42. 54 Ibid., paras. 43–44. 55 Ibid., para. 48.

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disclosure and redactions the Chamber will have to determine, in ex parte proceedings open only to the Prosecutor, whether the material would have had to be disclosed to the defence, had it not been obtained under article 54(3)(e) of the Statute. If the Chamber concludes that this is the case, the Prosecutor should seek the consent of the information provider, advising the provider of the ruling of the Chamber. If the provider of the material does not consent to the disclosure to the defence, the Chamber [. . .] will then have to determine whether and, if so, which counter-balancing measures can be taken to ensure that the rights of the accused are protected and that the trial is fair, in spite of the non-disclosure of the information.56

According to the Appeals Chamber, some or all of the following counter-balancing measures may be contemplated: the identification and disclosure of similar exculpatory material, providing the material in summarised form, stipulating the relevant facts, or amending or withdrawing the charges.57 If a Chamber is in no position to assess the availability of any such counter-balancing measures, or if they are not adequate to ensure the fairness of the proceedings, then it is appropriate for a Chamber to stay the proceedings.58

Jurisprudence I Right of the Accused to Disclosure and Inspection 1 General Principles Governing Disclosure “The overriding principle is that full disclosure should be made. It must always be borne in mind that the authorisation of non-disclosure of information is the exception to this general rule.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 70; Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[T]he tenor of the disclosure regime established by the Statute and the Rules of Procedure and Evidence is that the Prosecutor is ordinarily obliged to make full disclosure, save for where specific provision is made for restrictions on disclosure to be permitted.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 45. 56

Ibid.

57

Ibid., para. 44.

58

Ibid., paras. 95, 98.

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“[T]he Defence is entitled to full disclosure in relation to the case as a whole as known by the Prosecutor (subject to the statutory regime relating to restrictions on disclosure) [. . .].” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 55.

1.1 The Prosecution’s Obligation to Disclose is Not Contingent upon Disclosure by the Defence “[T]he Statute and the Rules of Procedure and Evidence not only emphasise the duty of the Prosecutor ordinarily to make full disclosure, but also indicate that the Prosecutor’s duty to disclose information to the Defence is not linked to any requirement that the Defence reveal defence(s) in advance.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 46. “[T]he Prosecutor’s ordinarily unfettered duty to disclose must necessarily be based, inter alia, on the Prosecutor’s understanding of the case as a whole, including what is known or anticipated about possible defence(s). The fact that the Prosecutor is required ‘to investigate incriminating and exonerating circumstances equally’, pursuant to article 54(1)(a) of the Statute, means that the Prosecutor will be aware, during the course of his investigations, of material that may be of assistance to the Defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 36. “[T]he lack of any correlation between the right to receive prosecution disclosure and any disclosure obligations of the Defence is evident in that the Prosecutor is duty-bound to provide full disclosure even if an accused elects to remain silent or does not raise a defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 50. “[T]he ordinary expectation as set out in the Statute and the Rules of Procedure and Evidence is that the Defence would be entitled to receive any additional material in the possession or control of the Prosecutor which a line of defence has revealed as exculpatory in nature, regardless of the stage at which the defence was raised.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 53. “[T]he Appeals Chamber is unable categorically to rule out the possibility that if a factual situation arises in which it could be demonstrated that the Defence had unjustifiably and unreasonably held back the revelation of

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disclosure and redactions a line of defence or issue in circumstances that made it impossible for the Court to ensure the protection of the exculpatory witnesses, it may conceivably be possible for the accused to receive a fair trial notwithstanding the non-disclosure of certain limited material.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 54.

2 Pre-trial Disclosure Relating to Prosecution Witnesses: Rule 76 2.1 General Considerations “Rule 76 [. . .] pertains to the Prosecutor’s obligations to disclose evidence or other material which he has already collected. Rule 111 [. . .] pertains to how the Prosecutor should go about collecting evidence during an investigation, at which stage the Prosecutor normally does not know whether or not he will call questioned persons to testify at trial.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 22. “In interpreting the relevant rules [76 and 111], a distinction must be made between the statement of an individual and the form in which that statement is recorded.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 23. “[R]ule 76 requires the Prosecutor to disclose, prior to the trial, copies of statements of persons he or she intends to call to testify, irrespective of the form in which such statements are recorded. Disclosure serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 27; Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26. “[R]ule 76 requires the Prosecutor to disclose ‘copies of any prior statements’. The Appeals Chamber agrees with the Prosecutor and Messrs Banda and Jerbo that the ordinary meaning of the term ‘statement’ as used in rule 76 is broad and requires the Prosecutor to disclose any prior statements, irrespective of the form in which they are recorded [. . .]. However, there might be statements that are otherwise recorded or given [other than pursuant to rule 111] which would also be subject to disclosure. In particular, the audio- or video-record of the questioning of a person [. . .] and the transcript thereof are records of statements that are

j ur i s p r uden ce potentially subject to disclosure pursuant to rule 76 of the Rules of Procedure and Evidence where the Prosecutor intends to call the person to testify as a witness. By equating ‘statements’ under rule 76 with only those records of statements prepared pursuant to rule 111, the Trial Chamber effectively, and erroneously, limited the Prosecutor’s disclosure obligations, thereby potentially excluding from disclosure other records of statements such as audio- or video-records prepared pursuant to rule 112.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 23.

2.2 The Scope of a Witness Statement under Rule 76 “A system of disclosure, in which only the disclosure of statements made by witnesses when questioned about their knowledge of the case occurs pursuant to rule 76(1) of the Rules of Procedure and Evidence, is not prejudicial to an accused’s fair trial rights.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 1, 16, 38. “The Appeals Chamber considers that the only qualification to be derived from the plain wording of rule 76(1) of the Rules is that the statement must have come from a witness whom the Prosecutor intends to call to testify.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 18. “[T]he Appeals Chamber emphasises that, in order to examine a prosecution witness and prepare for that witness’s future testimony, the Defence needs to know primarily the scope of the proposed testimony. The Appeals Chamber notes that the scope of the proposed testimony reveals to the Defence the witness’s knowledge of the case and, in particular, of the facts usually alleged by the Prosecutor as incriminating the accused.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 26. “[S]tatements provided by witnesses, which relate solely to matters other than facts and circumstances described in the charges, are more appropriately disclosed in accordance with rule 77 of the Rules or article 67(2) of the Statute if they meet the criteria set out in those provisions, which is also fully consistent with the accused’s rights guaranteed by the Statute.”

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dis cl osur e an d r eda ct ion s Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 38. “[I]n order to adequately prepare for the examination of a prosecution witness, the Defence may also need to prepare questions relevant to the credibility and potential bias of the witness. Such questions need not be based on the witness’s knowledge of the case but may encompass other issues, including those relevant to the witness’s background [. . .]. [M]aterial that puts a witness’s credibility in doubt or serves to show potential bias is not derived from witness statements alone. This category of material is much broader. The Prosecutor is obliged to disclose such material pursuant to article 67(2) of the Statute if the Prosecutor believes that it may affect the credibility of Prosecution evidence, or rule 77 of the Rules if it is otherwise ‘material to the preparation of the defence’.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 27–28. “[T]he Appeals Chamber considers that the view that witness statements pursuant to rule 76(1) of the Rules are statements relevant to the witness’s knowledge of the case is also supported by the translation requirement contained in rule 76(3) of the Rules. Under this rule, the Prosecutor has the duty to make the statements of her witnesses ‘available in original and in a language which the accused fully understands and speaks’ [. . .]. [T]he requirement to make the disclosed material available in a language which the accused fully understands and speaks is not expressly stated with respect to disclosure under other provisions of the Statute and the Rules. Notably, no such requirement is expressly stipulated for the disclosure of objects which are material to the preparation of the defence (rule 77 of the Rules) and for the disclosure of evidence which may affect the credibility of prosecution evidence (article 67(2) of the Statute).” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, paras. 29–30 (emphasis added). “[T]he Appeals Chamber finds that rule 77 of the Rules is not inherently prejudicial, it cannot be argued that an interpretation of rule 76(1) that allegedly excludes some material from the scope of this rule and makes its disclosure dependent on compliance with the criterion set out in rule 77 is, on its own, prejudicial to the rights of the accused.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 37.

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Right to Disclosure of Exculpatory Material

“[T]he Prosecutor is bound to collect both incriminating and evidence exonerating the accused in investigating a case, as laid down in article 54(1)(a). The ambit of exculpatory evidence, as defined by the aforesaid provisions of article 67 of the Statute, is very wide.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 16. Diss. Op. “The last sentence of article 67(2) of the Statute provides that ‘[i]n case of doubt as to the application of [article 67(2) of the Statute], the Court shall decide’. This indicates that the final assessment as to whether material in the possession or control of the Prosecutor has to be disclosed under that provision will have to be carried out by the Trial Chamber and that therefore the Chamber should receive the material.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 46. “[W]hile exculpatory material must be disclosed pursuant to article 67(2) of the Statute, the Appeals Chamber does not accept that applications to withhold potentially exculpatory material at the stage of the proceedings prior to the hearing to confirm the charges cannot, in principle, be made pursuant to rule 81(2) [. . .].” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57. “[T]he relevant jurisprudence of the European Court of Human Rights [. . .] demonstrates that the right to disclosure is not absolute, that the withholding of disclosure of information from the Defence is permissible so as to preserve the fundamental rights of another individual and that not every incident of non-disclosure automatically results in an unfair trial. It would be, in every case, for the Pre-Trial Chamber to assess whether the rights of the defendant to a fair hearing were prejudiced on the facts.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62. See also Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/ 04-01/06-1486 OA13, 21 October 2008, paras. 46–47. “In circumstances in which the redaction sought would involve withholding exculpatory information which was required to be disclosed, or would result in ‘a manifest inequality of arms, with little, if any prospect for fair proceedings’, the Pre-Trial Chamber would, no doubt, reject the application. However, this is a question of assessing the facts of an individual case rather than ruling out the possibility of redactions to

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disclo sure and redactions protect people at risk being granted, in principle, in carefully defined circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62, see also para. 72(c) (on the importance of the relevance of the information to the balancing exercise); Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07476 OA2, 13 May 2008, para. 62. “The failure of the Prosecutor to bring forth and disclose evidence tending to exonerate the accused is not confined to the trial, but extends to the confirmation hearing too [. . .].” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 43. Diss. Op. “[K]nowledge of the existence of exonerating evidence not put before the Trial Chamber would cloud the proceedings with doubt, rendering them a priori inconclusive.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 46. Diss. Op. “The use of article 54(3)(e) of the Statute by the Prosecutor must not lead to breaches of his obligations vis-à-vis the suspect or the accused person. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 2, 44.

4 Inspection of Information Material to the Preparation of the Defence: Rule 77 “[T]he Trial Chamber interpreted rule 77 of the Rules of Procedure and Evidence too narrowly because it excluded objects which, while not directly linked to exonerating or incriminating evidence, may otherwise be material to the preparation of the defence. The wording of rule 77 of the Rules of Procedure and Evidence does not suggest that the term ‘material to the preparation of the defence’ should be construed as narrowly as the Trial Chamber did. Rather, the term should be understood as referring to all objects that are relevant for the preparation of the defence.”

jurisprudence Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 77. “[T]he term ‘material to the preparation of the defence’ must be interpreted broadly.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 78, see also paras. 80–81; Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 10. “[T]he Appellant has sufficiently demonstrated that material relating to the general use of child soldiers in the DRC is material to the preparation of his defence [. . .] such material will be relevant because ‘[b]efore setting a defence line, it’s necessary to understand the situation, and it appeared to us that this information was useful to us and even necessary to us able to understand the situation in Ituri at that time’. In his Document in Support of the Appeal, the Appellant further specified that the requested material might be relevant, for example, to understand the phenomenon of the use of child soldiers and their demobilisation in the DRC. In addition to this [. . .] information relating to the general use of child soldiers might be relevant at the sentencing phase of the proceedings, if any, and that Counsel for the Defence will have to prepare herself for such a phase.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 82. “[T]he RFA is a request for assistance from the Prosecutor to the DRC authorities, the response to which was provided in the Letter. The Appeals Chamber further observes that the Letter relates to the determination of the age of D-0040 and D-0041, which is a key issue in dispute in the pending appeal against the Conviction Decision. Therefore, the Appeals Chamber considers that the RFA is a document that is material to the preparation of the defence and falls under rule 77 of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 11. “Rule 77 of the Rules of Procedure and Evidence has two stages. First, it must be determined whether the ‘books, documents, photographs and other tangible objects’ in question are ‘material to the preparation of the defence’. If they are, they must be disclosed to the defence ‘subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82’.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 1, 35.

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d i s c l o s u r e a n d re d a c t i o n s “Any assessment of whether information is material to the preparation of the defence should be made on a prima facie basis.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, paras. 2, 42. “The Appeals Chamber emphasises that the disclosure process is essential in ensuring the fairness of the proceedings and that the rights of the defence are respected, in particular the principle of equality of arms. This must remain paramount in decisions that are taken in relation to disclosure. The Prosecutor has an obligation to disclose information that is material to the preparation of the defence pursuant to rule 77 independently of any request from the Defence. In this regard, the Appeals Chamber notes the difference in wording between rule 77 and its equivalent at the ICTY and the [ICTR], in which specific provision is included for a request by the defence to be made. No such requirement appears in rule 77.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 34. “[T]he right to disclosure is not unlimited and which objects are ‘material to the preparation of the defence’ will depend upon the specific circumstances of the case. The Chamber may need to be provided with further information by the Prosecutor about the documents being sought, either in the form of lists of documents or the documents themselves, as well as an accompanying explanation, in order to be placed in the best position to take an informed decision with regard to whether the documents in respect of which disclosure was requested are material to the preparation of the defence.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 39. “Where appropriate, in deciding whether the information sought continues to be material to the preparation of the defence, the Chamber may also take into account whether the Defence has already received relevant documents from the Prosecutor. However, caution should be exercised in taking such an approach as it must not undermine the paramount right of the Defence to disclosure of all information material to the preparation of the defence.” Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 40.

jurisprudence “The Appeals Chamber notes that the main difference between disclosure in item 1) above (witness statements) and disclosure in items 3) and 4) above (rule 77 of the Rules and article 67(2) of the Statute), is the nature of the Prosecutor’s assessment of material subject to disclosure. Article 67(2) of the Statute requires disclosure of evidence which the Prosecutor believes meets the criteria set out therein. Similarly, rule 77 of the Rules leaves to the Prosecutor the assessment of whether objects are ‘material to the preparation of the defence’ and their inspection should thus be permitted.” Prosecutor v. Ntaganda, Judgment on the Ntaganda Appeal against the Decision on Disclosure, ICC-01/04-02/06-1330 OA3, 20 May 2016, para. 23.

5

Disclosure in Relation to Applications for Interim Release

“There is no express regime for disclosure in relation to applications for interim release in the legal texts of the [ICC]. What is provided for is the following: when arrested, a person has a right to receive a copy of the warrant of arrest. This is clear from rule 117(1) of the Rules. Article 58(3) of the Statute set out what the warrant of arrest shall contain, including, ‘(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’. Article 60(1) of the Statute provides that ‘[u]pon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her [. . .] right to apply for interim release pending trial’.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 26. “[T]he factual basis for the arrest warrants against [the Appellant] and for the [Decision of 10 June 2008] is provided in that decision which is public and, as such, accessible to the defence.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 25. “Based on the jurisprudence of the ECtHR, the Appeals Chamber considers that, in order to ensure both equality of arms and an adversarial procedure, the Defence must, to the largest extent possible, be granted access to documents that are essential in order effectively to challenge the lawfulness of detention, bearing in mind the circumstances of the case. Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. This would allow the person to challenge his or her detention as soon as he or she is in detention at the Court

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disclosure and redactio ns and in circumstances in which he or she is appraised of the material on which the arrest warrant was based.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 32. See also Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Babala’s Appeal for Interim Release, ICC-01/05-01/13-559 OA3, 11 July 2014, para. 60. “[T]he ECtHR illustrates that the right to disclosure in these circumstances is not unqualified. The nature and timing of such disclosure must take into account the context in which the Court operates. The right to disclosure in these circumstances must be assessed by reference to the need, inter alia, to ensure that victims and witnesses are appropriately protected [. . .]. The Court has jurisdiction over genocide, crimes against humanity and war crimes; the gravity of the crimes is such that the protection of victims and witnesses is a paramount consideration. An additional consideration is the need to safeguard on-going investigations.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “[T]he Appeals Chamber considers that the Prosecutor [. . .] when submitting an application for a warrant of arrest under article 58 of the Statute [. . .] should, as soon as possible, and preferably at that time, alert the Pre-Trial Chamber as to any redactions that he considers might be necessary.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “[T]he Pre-Trial Chamber should ensure that in the disclosure process priority is given to those documents that are essential for the person to receive in order effectively to challenge the lawfulness of detention.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 33. “In the instant case [. . .] the Appellant had not received all the material relied upon by the Pre-Trial Chamber nor had he received all of the material that was ‘essential in order effectively to challenge the lawfulness of detention’. However, as stated above, the right to the immediate disclosure of such material is not absolute. The Appeals Chamber considers it appropriate to consider the circumstances of the case.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 34. “[T]he Pre-Trial Chamber had to decide to either postpone the decision on interim release until all evidence had been disclosed to the Appellant or to

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render a decision on the application in the absence of full disclosure [. . .]. [A] person may, despite the fact that he or she has not yet had full disclosure, wish to raise arguments in relation to interim release in order to have a speedy decision rendered by a Chamber. As soon as the Appellant had received full disclosure, he had the right to apply for interim release again which would have allowed him to make full arguments at that time.” Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC01/05-01/08-323 OA, 16 December 2008, para. 39. “[T]he right to contest one’s detention requires [. . .] disclosure of every piece of evidence relied upon by the authority seeking detention. The requirement is that everything that would enable the person to effectively challenge the lawfulness of his detention must be disclosed. This has been repeatedly affirmed by the European Court of Human Rights.” Prosecutor v. Bemba, Dissenting Opinion of Judge Pikis in the Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 29. Diss. Op. “The case law of the European Court of Human Rights has acknowledged that disclosure of evidence may be withheld where it exposes the investigation to foreseeable dangers, provided such evidence is inconsequential for the build-up of the premises for detention. But no exception is admitted to the requirement to disclose evidence relied upon in justification of detention.” Prosecutor v. Bemba, Dissenting Opinion of Judge Pikis in the Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 30. Diss. Op.

II Redactions to Protect Victims, Witnesses and Other Persons at Risk: Rule 81(4) 1 General Principles “[N]on-disclosure of the identity of the witnesses on whom the Prosecutor intends to rely at the confirmation hearing is an exception.” The general principle is that names of witnesses and prior statements should be disclosed.59 Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 34. 59

The Appeals Chamber reasoned this after referring to the first sentence of rule 76(1) as well as stating that “Rule 76 is part of Chapter 4 of the Rules [. . .] which indicates that rule 76 is applicable to the confirmation hearing as well”, and finding that article 61(3)(b) further supports this reading: Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 34.

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disclosure and redactio ns “That exceptions to the principle that the names of witnesses and prior witness statements are to be disclosed may occur follows from rule 76(4) of the Rules of Procedure and Evidence [. . .].” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 35. “In circumstances in which the redaction sought would involve withholding exculpatory information which was required to be disclosed, or would result in ‘a manifest inequality of arms, with little, if any prospect for fair proceedings’, the Pre-Trial Chamber would, no doubt, reject the application. However, this is a question of assessing the facts of an individual case rather than ruling out the possibility of redactions to protect people at risk being granted, in principle, in carefully defined circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 62, see also para. 72(c) (on the importance of the relevance of the information to the balancing exercise). “More generally, if non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised. In addition, adequate procedural safeguards should be in place to ensure that the interests of the Defence are protected so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 63. “Even if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the Pre-Trial Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure. The overriding principle is that full disclosure should be made. It must always be borne in mind that the authorisation of non-disclosure of information is the exception to this general rule.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64. “[T]he Appeals Chamber reminds the Registrar that redactions to victims’ applications for participation transmitted to the parties should be limited to those that are justified for the purpose of protection and strictly necessary.” Prosecutor v. Lubanga, Decision on the 32 Applications by Victims for Participation, ICC-01/04-01/06-3045-Red2, A4 A5 A6, 27 August 2013, para. 22.

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1.1 Evaluation on a Case-by-Case Basis “In evaluating an application for non-disclosure of the identity of witnesses or of portions of witness statements, a Pre-Trial Chamber must take into account all relevant factors, and will carefully appraise the Prosecutor’s request on a case-by-case basis. The decision by the Pre-Trial Chamber that disclosure of witness identity and of prior statements is the rule and nondisclosure the exception does not exclude such appraisal on a case-by-case basis. The reference in the decision by the Pre-Trial Chamber to the exceptionality of non-disclosure of the names of witnesses or of portions of prior witness statements should not be understood as implying that, necessarily, only a very small number of witness identities will not be disclosed to the person in respect of whom a confirmation hearing is held; whether a request for non-disclosure will be successful will depend on the Pre-Trial Chamber’s case-by-case evaluation.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 36. “[T]he Pre-Trial Chamber was also correct in deciding that the nondisclosure of the identity of witnesses or of portions of prior witness statements would be authorised by the Chamber pursuant to rule 81(4) of the Rules of Procedure and Evidence only after an evaluation of the infeasibility or insufficiency of less restrictive protective measures.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 37. “These provisions [article 61(3) and rule 121(2)(b) of the Rules], however, do not vest a Pre-Trial Chamber with the competence to pre-determine the merits of future applications for authorisation of non-disclosure pursuant to rule 81(4) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 39. “[W]hile the non-disclosure of information for the protection of persons at risk is permissible in principle pursuant to rule 81(4) of the Rules, whether any such non-disclosure should be authorised on the facts of an individual case will require a careful assessment by the Pre-Trial Chamber on a case-by-case basis, balancing the various interests at stake.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 66, this includes identities of potential prosecution witnesses (Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, paras. 58, 65) and alleged victims of sexual offences unrelated to the charges (Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the

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disclosure and redacti ons Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/07-521 OA5, 27 May 2008, paras. 34–35).

2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(4) “[T]he Pre-Trial Chamber must carefully assess the type of information in respect of which authorisation for non-disclosure is sought. It is imperative that the Pre-Trial Chamber, which will have an overall view of the proceedings as a whole, take fully into account the individual facts and circumstances of each case and each specific request for any individual redaction before it.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 69. “[T]hree of the most important considerations for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81(4) of the Rules of Procedure and Evidence: the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why the Pre-Trial Chamber considered that the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (article 68(1), last sentence, of the Statute).” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 21. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 67. “The relevance of the information to the Defence is another important consideration [. . .]. [T]he relevance of any individual potential prosecution witness to the Defence would need to be carefully assessed.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62. “In the circumstances under consideration in the present case, nondisclosure pursuant to rule 81(4) may only be authorised if, first of all, disclosure of the information concerned would pose a danger to the particular person. In such circumstances, the Pre-Trial Chamber should consider the following factors in relation to the alleged risk of danger: a) the alleged danger must involve an objectively justifiable risk to the safety of the person concerned; b) the risk must arise from disclosing the particular information to the Defence, as opposed to disclosing the information to the public at large. The Chamber should consider, inter alia, whether the danger could be overcome by ruling that the information

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should be kept confidential between the parties. In making this assessment, the circumstances of the individual suspect should be considered, including, inter alia, whether there are factors indicating that he or she may pass on the information to others or otherwise put an individual at risk by his or her actions.”60 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal Against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 71. “If the Pre-Trial Chamber concludes that it has been demonstrated that the risk addressed above in fact exists, it should proceed to assess whether the proposed redactions could overcome or reduce the risk. If not, the redactions should not be granted. If so, the following factors should be considered in determining whether the rights of the suspect will be restricted only as far as strictly necessary: a) the Pre-Trial Chamber should consider whether an alternative measure short of redaction is available and feasible in the circumstances. If a less restrictive protective measure is sufficient and feasible, that measure should be chosen; b) the Pre-Trial Chamber should bear in mind that the non-disclosure is sought at the stage of the proceedings in relation to the hearing to confirm the charges [. . .]; c) the Pre-Trial Chamber should carefully assess the relevance of the information in question to the Defence. If, having carried out that assessment, the Chamber concludes that the information concerned is not relevant to the Defence, that is likely to be a significant factor in determining whether the interests of the person potentially placed at risk outweigh those of the Defence. If, on the other hand, the information may be of assistance to the case of the suspect or may affect the credibility of the case of the Prosecutor, the Pre-Trial Chamber will need to take particular care when balancing the interests at stake; d) if non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 72. “The following additional factors should be taken into account: a) in balancing the various interests at stake, the Pre-Trial Chamber must make sure that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of 60

Given that this “specific guidance” was provided “in the absence of any specific factual application before it, what is said below is only by way of guidance which must be understood to be capable of being interpreted flexibly depending upon the specific circumstances of the particular application”: Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 68.

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disclosure and redactio n s adversarial proceedings and equality of arms; b) prior to ruling on the application for redactions, the Pre-Trial Chamber should give the Defence the greatest possible opportunity to make submissions on the issues involved, necessarily without revealing to the Defence the information which the Prosecutor alleges should be protected; c) even if it is determined that certain information should not be disclosed, such determination should be kept under review by the Pre-Trial Chamber. It may be necessary to disclose the withheld information subsequently, should circumstances change. The Prosecutor should assist the Pre-Trial Chamber in this regard by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 73. The guidance above “must be interpreted flexibly to allow for a factual determination in relation to each specific application. It must also be seen in light of the Appeals Chamber determining this appeal in the context of non-disclosure that may be made prior to the confirmation hearing, as opposed to prior to trial”. Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59.

3 Scope of Protection under Rule 81(4) “Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words ‘persons at risk on account of the activities of the Court’ so as to reflect the intention of the States that adopted the Rome Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect that category of persons.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 1; Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9, ICC-01/04-01/ 07-521 OA5, 27 May 2008, para. 33. “Given the severity and the widespread nature of the crimes over which the Court has jurisdiction, affecting large numbers of persons including whole communities, the unfortunate yet unavoidable reality is that any number of persons may be exposed to risk through the activities of the Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 45.

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“[T]he specific provisions of the Statute and the Rules for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. “[P]ersons other than witnesses, victims and members of their families, may, at this stage of the proceedings, be protected through the nondisclosure of their identities by analogy with other provisions of the Statute and the Rules. The aim is to secure protection of individuals at risk. Thus, by necessary implication, rule 81(4) should be read to include the words ‘persons at risk on account of the activities of the Court’ so as to reflect the intention of the States that adopted the Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect people at risk.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 56. “Moreover, this interpretation is in adherence with the requirement in article 21(3) of the Statute to apply and interpret the provisions of the Statute and the Rules consistently with internationally recognized human rights [. . .]. The Appeals Chamber considers that the circumstances under consideration in the present appeal may give rise to a situation in which the withholding of certain information from the Defence may be necessary so as to preserve the fundamental rights of an individual put at risk by the activities of the International Criminal Court.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 57–58. “The Prosecutor has the [. . .] express power either to take necessary measures or to request that necessary measures be taken to ensure the protection of individuals who are at risk. Furthermore, article 54(3)(f) is not the only provision of the Statute and the Rules that provides for the protection of any person who might be put at risk on account of the activities of the Court.”61 Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 47. 61

See paras. 44–53, which refer to the other provisions including article 43(6), article 68(4), rules 16–18, particularly rule 17(2), rule 59(2) and rule 87(1).

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4 Summaries as a Protective Measure: Article 68(5)62 “The use of summary evidence pursuant to article 68(5) of the Statute [in contrast to article 61(5)], on the other hand, is primarily a witness protection measure.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 44. “[T]he Pre-Trial Chamber, seemingly acting on its own motion as provided for in rule 81(4) of the Rules of Procedure and Evidence, envisaged that the Prosecutor would present the summaries at the confirmation hearing as evidence and that the Prosecutor would not disclose to the Defence prior to the confirmation hearing the underlying witness statements or documents but only the summaries thereof, which would not divulge the identities of the witnesses. This approach by the Pre-Trial Chamber is, in principle, permissible under the Statute and the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, paras. 45–46. “The use of summaries [. . .] may affect the ability of the suspect pursuant to article 61(6)(b) of the Statute to challenge the evidence presented by the Prosecutor at the confirmation hearing in two respects: first, the Prosecutor is authorised to rely on witnesses whose identities are unknown to the Defence (anonymous witnesses); secondly, the ability of the Defence to evaluate the correctness of the summaries is restricted because the Defence does not receive prior to the confirmation hearing the witness statements and other documents that form the basis of the summaries. However, this does not mean that the use of such summaries at the confirmation hearing is necessarily prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 50. “[W]here the Pre-Trial Chamber takes sufficient steps to ensure that summaries of evidence in the circumstances described above are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and with a fair and impartial trial, the use of such summaries is

62

See also the digested cases under Chapter E, Charges and Confirmation Hearing, section III(3), Use of Summaries at the Confirmation Hearing under Article 61(5), above.

j u r i s p r ud e n c e permissible. This will have to be determined on a case-by-case basis, also bearing in mind the character of the confirmation hearing.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 51.

III Redactions to Protect Investigations: Rule 81(2) 1 General Principles “The Appeals Chamber observes that rule 81(2) provides generally for the non-disclosure of ‘information’, without excluding per se certain categories of information from non-disclosure.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93. “The Appeals Chamber instead concludes that the correct approach in such circumstances is for the Pre-Trial Chamber to rule on a case-by-case basis, pursuant to rule 81(2), where the balance of interests lies on the facts of a specific application for non-disclosure.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 52. “[P]ursuant to that rule [rule 81(2)], it will be for the Prosecutor seeking redactions to establish that such redactions are warranted and, in particular, that disclosure of the information for which redactions are sought ‘may prejudice further or on-going investigations’.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 97; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “The same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, in the current case, which can be summarised briefly as a thorough consideration of the danger that the disclosure of the information may cause; the necessity of the non-disclosure, including whether it is the least intrusive measure necessary to avoid prejudice to the investigations of the Prosecutor; and the fact that any measures taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Non-

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d i s c l o s u r e a n d re d a c t i o n s disclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[I]n principle, rule 81(2) applies to information ‘which must be disclosed in accordance with the Statute’. While exculpatory material must be disclosed pursuant to article 67(2) of the Statute, the Appeals Chamber does not accept that applications to withhold potentially exculpatory material at the stage of the proceedings prior to the hearing to confirm the charges cannot, in principle, be made pursuant to rule 81(2) on the basis of the plain reading of the terms of that provision quoted above.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57. “[R]ule 81(2), which deals specifically with applications for nondisclosure in circumstances where disclosure may prejudice further or ongoing investigations, provides expressly for ex parte applications to be made. Furthermore, the Appeals Chamber notes that rule 87 applies equally to requests for protective measures by victims and witnesses which, pursuant to that rule, can also only be made on an inter partes basis. However, in relation to applications for non-disclosure of the identity of victims and witnesses prior to the commencement of the trial, ex parte applications can be made pursuant to rule 81(4).” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 54. “[I]f non-disclosure would result in the hearing to confirm the charges, viewed as a whole, to be unfair to the suspect, the requested redactions should not be authorised. In addition, adequate procedural safeguards should be in place to ensure that the interests of the Defence are protected so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 63. “Even if non-disclosure is authorised, this determination must be kept under review and altered should changed circumstances make that appropriate. In this regard, the Prosecutor should assist the Pre-Trial Chamber by bringing to its attention factors that may cause it to reconsider its ruling on non-disclosure.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 64. “[O]nce it is established that a document is material to the preparation of the defence, pursuant to rule 77 of the Rules of Procedure and Evidence, the disclosure obligation extends to the entire document and not only to the ‘relevant’ portions of information contained within such a document.”

j u r i s p r ud e n c e Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 12.

2 Criteria for Determining Whether to Authorise Non-disclosure under Rule 81(2) “The same general factors [as for non-disclosure of the identity of a witness pursuant to rule 81(4)] apply, mutatis mutandis, in the current case, which can be summarised briefly as a thorough consideration of the danger that the disclosure of the information may cause; the necessity of the non-disclosure, including whether it is the least intrusive measure necessary to avoid prejudice to the investigations of the Prosecutor; and the fact that any measures taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 59. “In this context, for redactions to be granted, the Prosecutor will have to establish that the potential prejudice to investigations is objectively justifiable, would result from disclosure to the Defence (as opposed to the general public) and could be overcome or reduced by redactions. Dangers that cannot be overcome by redactions because they are inherent in the situation itself cannot, as such, provide a justification for redactions.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 98; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Nondisclosure, ICC-01/04-01/06-3031, OA4 OA5 OA6, 27 May 2013, para. 10. “[T]he Pre-Trial Chamber would need to consider whether there was an objectively justifiable risk of prejudice to the investigations and whether any such risk would arise from disclosing the particular information to the Defence. In circumstances in which an alleged fear ‘is completely hypothetical’ or where there is no factual basis to conclude that any risk arises out of disclosure to the Defence of the identifying information of potential prosecution witnesses, the Pre-Trial Chamber would not, without more, authorise the redaction sought.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 60. “Once it has been established that disclosure of the information to the Defence may prejudice on-going or further investigations and that this risk could be overcome by authorising redactions, the Prosecutor will

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d i s c l o s u r e a n d re d a c t i o n s have to establish that the redactions restrict the rights of the suspect only as far as strictly necessary.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 99. “[A] thorough assessment will need to be made by the Pre-Trial Chamber of the potential relevance of the information to the Defence on a case-bycase basis. If the information is relevant or potentially exculpatory, the balancing exercise performed by the Pre-Trial Chamber between the interests at stake will require particular care.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 57, see also para. 62 (“the relevance of the information to the Defence is another important consideration”). “[W]hether other means are available to the Prosecutor to safeguard the investigations also needs to be examined by the Pre-Trial Chamber on a case-by-case basis.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 61.

3 Specific Categories of Information which can be Protected under Rule 81(2) 3.1 Protection of “Potential Prosecution Witnesses” “The Appeals Chamber accepts that further or on-going investigations may be prejudiced if potential prosecution witnesses are interfered with in a manner that could lead to them being unable to cooperate further with the Prosecutor. As such, if it can be demonstrated by the Prosecutor that the disclosure of the identities and identifying information of such individuals to the Defence could lead to the intimidation of or interference with such individuals, further or on-going investigations could be prejudiced. In such a situation, the Pre-Trial Chamber would need to rule, pursuant to rule 81(2), whether the specific information had to be disclosed to the Defence in all the circumstances of the case.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 49. “[T]he Defence is entitled to contact persons who the Prosecutor either has interviewed or is about to interview prior to their becoming prosecution witnesses and recognises that such persons may have information which is potentially relevant to the Defence. In such circumstances, the assessment carried out by the Pre-Trial Chamber in deciding whether or

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not to authorise any particular redaction will necessarily take this factor into account.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 62.

3.2 Protection of the Identities of OTP and VWU Staff: Rule 111(1) “The Appeals Chamber notes that it is mandatory to record the date, the time and the place of the statement, as well as the persons present – such information shall be contained in any record of a formal statement that has been made. However, the Appeals Chamber considers that such information can be withheld from the Defence in appropriate circumstances.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 91. “The Appeals Chamber therefore concludes that it will have to be determined on a case-by-case basis whether the non-disclosure of information that is required to be recorded pursuant to rule 111(1) may be authorised by a Chamber. This will be determined in light of the conditions stipulated by rule 81(2) and/or (4) of the Rules.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 93.

3.3 Protection of Pending Investigative Matters “[A]ccording to the Prosecutor, parts of the RFA relate to pending investigative matters that are unrelated to the Letter, and that those parts should therefore be redacted. The Appeals Chamber recalls that, pursuant to rule 81(2) of the Rules of Procedure and Evidence, the Prosecutor may apply for the non-disclosure of material if such disclosure may prejudice further or on-going investigations; therefore, in the present case, the Appeals Chamber treats the Prosecutor’s submissions with respect to redactions as an application under rule 81(2) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Disclosure, ICC-01/04-01/06-3017 A5 A6, 11 April 2013, para. 12.

IV Reliance upon Redacted Documents or Summaries “Rule 81(2) of the Rules of Procedure and Evidence ‘does not dictate [. . .] that redactions and/or disclosure must be determined inflexibly by the

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d i s c l o s u r e a n d re d a c t i o n s unit of the entirety of a “statement” or “document”, such that the statement or document must either be disclosed in its entirety or not considered at the confirmation hearing at all.’ As a consequence, if only parts of a witness statement or document are not disclosed to the Defence prior to the confirmation hearing, the Prosecutor, in principle, may rely on those parts that have been disclosed at the confirmation hearing. To what extent redactions may be authorised or maintained if the Prosecutor seeks to introduce information that is disclosed to the Defence only in part will need to be determined upon the facts of the individual case, taking into account the interests of the Defence and the need for a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, paras. 45–46. “As the threshold for the confirmation of the charges is lower than for a conviction, the Prosecutor may be able to convince the Pre-Trial Chamber that the threshold for the confirmation of the charges has been reached even if the reliability of the witnesses and other evidence was not fully tested.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 47. “[R]ule 81(5) does not address the introduction into evidence of summaries at the confirmation hearing pursuant to articles 68(5) and 61(5) of the Statute; the provision regulates under what conditions the material and information on the basis of which the summaries were compiled may subsequently be introduced into evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 48. “If non-disclosure of any part or aspect of the evidence prejudices the rights of the accused, it is not permissible. The prohibition of nondisclosure of evidence, the withholding of which is prejudicial to the rights of the accused, is not subject to any balancing exercise. Evidence material for the making and preparation of one’s defence must necessarily be disclosed. It cannot be withheld for any reason. And that extends to the identity of a witness too. The provisions at the end part of article 68(5) of the Statute leave no room for exceptions.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, para. 11. Sep. Op.

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“Rule 81(2) of the Rules of Procedure and Evidence envisages the disclosure or non-disclosure of a compact piece of evidence or information which is the subject-matter of the rule. A piece of evidence like a witness statement or information is a unified entity that cannot be pierced. It cannot be fragmented because it entails alteration of or detraction from its content [. . .]. There is no halfway house allowing the disclosure of parts of the evidence or information through a process of redaction of its content.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, paras. 15–16. Sep. Op.

V Protection of Confidential Information Gathered under Article 54(3)(e) 1 General Scope and Purpose of Article 54(3)(e) “The Prosecutor may only rely on article 54(3)(e) of the Statute for a specific purpose, namely in order to generate new evidence.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 1, 41. “[A]rticle 54(3)(e) of the Statute [. . .] is separately regulated by rule 82 and concerns information obtained on the condition of confidentiality and ‘solely for the purpose of generating new evidence’ [. . .]. [T]he Prosecutor may not agree to disclose material obtained under article 54(3)(e) of the Statute for the purpose of generating new evidence unless the provider of the information consents.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 56. “The Appeals Chamber acknowledges [. . .] the importance of article 54(3) (e) of the Statute, in particular in the early stages of an investigation. Undoubtedly, article 54(3)(e) of the Statute may be an important tool for the Prosecutor in the conduct of his investigations, which often will take place in challenging circumstances. The Appeals Chamber accepts that the Prosecutor, when receiving material on the condition of confidentiality, may not be able to predict with certainty how this material can be used.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 42. “[T]he references of the Trial Chamber to the ‘highly restricted circumstances’ in which recourse to article 54(3)(e) of the Statute may be had [. . .] and to the exceptional character of the provision was not meant to

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d isclos ure and r edactions limit the number of documents that could be obtained on the condition of confidentiality, or otherwise to restrict inappropriately the use of the provision. Rather, the Trial Chamber recalled that the purpose for which material could be collected on the condition of confidentiality was limited to the generation of new evidence and that the provision must be applied in light of the other obligations of the Prosecutor.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 55. “Article 54(3)(e) of the Statute does not in terms prescribe either the nature and content or the character of documents or information that the Prosecutor may receive in confidence. The only limitation is that the documents and the information received should be collected solely for the purpose of generating new evidence. The Prosecutor cannot receive such material for any other purpose [. . .]. If a document provided to the Prosecutor constitutes evidence in itself, the duty of the Prosecutor is to gather evidence corresponding to its content. There is no express or implicit limitation of the power of the Prosecutor to gather evidence from persons mentioned or identified in oral or documentary material, or the suppliers or authors of such documents. What the confidentiality agreement prohibits the Prosecutor from doing is to disclose the content of the documents themselves and the information contained therein.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 39. Diss. Op.

2 Relationship between Article 54(3)(e) and Disclosure Obligations “[T]he use of article 54(3)(e) of the Statute must not lead to breaches of the obligations of the Prosecutor vis-à-vis the suspect or the accused person.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 42. “[T]he reliance by the Prosecutor on article 54(3)(e) of the Statute may lead to tensions with his disclosure obligations under article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence: by accepting material on the condition of confidentiality, the Prosecutor potentially puts himself in a position where he either does not disclose material that he normally would have to disclose, or breaches a confidentiality agreement entered into with the provider of the material in question [. . .]. Therefore, whenever the Prosecutor relies on article 54(3)(e) of the Statute he must bear in mind his obligations under the Statute and apply that provision in a manner that will allow the Court to resolve the potential

jurisprudence tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 43–44. “The Appeals Chamber is particularly concerned that when accepting large amounts of material from the United Nations, the relevance of which for future cases he could not appreciate at that time, the Prosecutor agreed that he would not disclose the material even to the Chambers of the Court without the consent of the information providers. By doing so, the Prosecutor effectively prevented the Chambers from assessing whether a fair trial could be held in spite of the non-disclosure to the Defence of certain documents, a role that the Chamber has to fulfil pursuant to the last sentence of article 67(2) of the Statute.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 45. “While article 18(3) [of the ICC–UN Relationship Agreement] provides that the Prosecutor may agree that material may not be disclosed to other organs of the Court, including to the Chambers, this does not mean that reliance by the Prosecutor on this provision would be appropriate in all circumstances [. . .]. Whenever material is offered to the Prosecutor on the condition of confidentiality, he will have to take into account the specific circumstances, including the expected content and nature of the documents, and its potential relevance to the Defence. On that basis he will have to determine under what exact conditions he may accept the material in question, bearing in mind his obligations under the Statute, and in particular under its article 67(2).” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 51.

3 Resolving the Tension between Confidentiality under Article 54(3)(e) and Disclosure under Article 67(2) 3.1 Review of the Material by the Trial Chamber Ex Parte “In situations [. . .] where the material in question was obtained on the condition of confidentiality, the Trial Chamber (as well as any other Chamber of this Court, including this Appeals Chamber) will have to respect the confidentiality agreement concluded by the Prosecutor under article 54(3)(e) of the Statute and cannot order the disclosure of the material to the Defence without the prior consent of the information provider.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 48.

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disclosure and redactio ns “[T]he Chamber will have to determine, in ex parte proceedings open only to the Prosecutor, whether the material would have had to be disclosed to the Defence, had it not been obtained under article 54(3)(e) of the Statute. If the Chamber concludes that this is the case, the Prosecutor should seek the consent of the information provider, advising the provider of the ruling of the Chamber. If the provider of the material does not consent to the disclosure to the Defence, the Chamber, while prohibited from ordering the disclosure of the material to the Defence, will then have to determine whether and, if so, which counter-balancing measures can be taken to ensure that the rights of the accused are protected and that the trial is fair, in spite of the non-disclosure of the information.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 48.

3.2

Potential Means Other than Disclosure of the Confidential Information “There might be circumstances in which this tension can be resolved by reverting to some or all of the measures referred to by the Prosecutor in his Document in Support of the Appeal [i.e., the identification of new, similar exculpatory material, providing the material in summarised form, stipulating the relevant facts, or amending or withdrawing the charges], in particular if only small numbers of documents are concerned.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 44. “While the Appeals Chamber cannot exclude that the provision of alternative evidence may, in appropriate circumstances, be one way of ensuring fairness in spite of the non-disclosure of material obtained on the condition of confidentiality under article 54(3)(e) of the Statute, this would require an assessment by a Chamber of the adequacy of the alternative evidence proposed by the Prosecutor, which was not possible in the present case.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 95. “Prior to staying the proceedings, the Trial Chamber had explored several alternatives, including by ordering the submission of summaries of the documents on 3 April 2008 and by giving an undertaking that it would not disclose the material without the consent of the providers.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 98.

G The Protection of Victims and Witnesses

Commentary

reinhold gallmetzer The Prosecution is often investigating situations where conflicts are still on-going, and its investigations frequently involve persons who are in positions of power or continue to have supporters. As a result, the protection of persons cooperating with the Court from the risks arising from that cooperation is one of the Court’s major challenges. While most of the litigation concerning the protection of persons cooperating with the Court took place before Pre-Trial and Trial Chambers and was confidential or even ex parte, the Appeals Chamber had the opportunity to adjudicate a limited number of interlocutory appeals, during which it established the following principles: First, regarding the scope of protection, the Appeals Chamber emphasised that the specific provisions of the Statute and the Rules provide “for the protection not only of witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court”.1 According to the Appeals Chamber, this is “indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court”.2 Second, protective measures taken by the Court “shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.3 This does not mean that the protection of persons cooperating with the Court is subordinate to the rights of the accused or that the safety of persons may be compromised to ensure the fairness 1

2 3

Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. Ibid. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50.

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t he p r o t e c t i o n of v i c t i m s a nd wi t n e s s e s

of the proceedings. Rather, the two are paramount principles in the Statute and must be reconciled. The Appeals Chamber held that “while the safety and security of victims is a key responsibility of the Court, when protecting victims the Court must ensure that the rights of the Defence are respected and the trial remains fair”.4 Third, the duty to protect persons at risk as a result of the activities of the Court “is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole”.5 However, “[t]he Chamber has a general power to provide for the protection and privacy of victims and witnesses [. . .] pursuant to article 57(3)(c)”,6 and the ultimate authority with respect to protection lies with the Chamber: “[t]here is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection”.7 Fourth, while the Appeals Chamber affirmed “the authority of the Chambers over the Prosecutor in relation to matters of protection”,8 it affirmed that the Prosecution also “undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses”.9 It held that the Prosecution has a general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.10 4

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9

10

Prosecutor v. Ngudjolo, Decision on the Participation of Anonymous Victims in the Appeal, ICC-01/04-02/12-140 OA, 23 September 2013, para. 16. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 101. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 95. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. Ibid., para. 51, referring to Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–98. See also Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 59–60. Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/ 07-776 OA7, 26 November 2008, para. 80. Ibid., para. 98.

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However, “the general mandate of the Prosecutor pursuant to article 68(1) of the Statute does not extend to the preventive relocation of witnesses”,11 which the Appeals Chamber defined as measures that involve the “removing of a witness from their normal surroundings and family ties and resettling that person in a new environment”.12 In any event, “one measure that the Prosecutor can take pursuant to article 68(1) of the Statute is that of making an application for relocation to the Registrar on behalf of a particular witness”.13 Further, “if instances do occur where the VWU has rejected an application for a witness to be relocated and the Prosecutor disagrees with that assessment, the matter should not be resolved by the unilateral action of the Prosecutor in ‘preventively relocating’ the witness, but by an application to the relevant Chamber for a ruling on the matter”.14 Fifth, the VWU is specifically set up “to provide protective measures to victims and witnesses”.15 Its role “in relation to protective measures was not limited to the provision of advice alone”.16 Rather, “[t]he function of the VWU is to provide, inter alia, appropriate protective measures and security arrangements, respecting the interests of the witness and acting impartially [. . .]. At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.”17 In fact, “cooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected [. . .]. The VWU has specific expertise in protection matters; and the Prosecutor is close to the relevant witnesses on the ground and in a position to see where a need for protection may arise.”18 Sixth, the Appeals Chamber acknowledged that in emergency situations, namely, under “exceptional circumstances in which a witness is facing a serious threat of imminent harm that requires an immediate response [. . .] there may need to be some degree of flexibility”.19 It has held that: in an urgent situation in relation to a person for whom relocation is sought, the Prosecutor may request the VWU to take a temporary emergency measure to protect the safety of a witness while the overall application for relocation is under consideration. The Appeals Chamber notes, in this context, the reference to a witness being placed temporarily in a “safe house” while the VWU completes its assessment of whether a witness 11 14 17

Ibid., para. 91. 12 Ibid., para. 104. 13 Ibid., para. 100. Ibid., para. 101, see also paras. 2, 93–94. 15 Ibid., para. 74. Ibid., para. 92. 18 Ibid., para. 101. 19 Ibid., para. 102.

16

Ibid., para. 90.

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t he p r o t e c t i o n of v i c t i m s a nd wi t n e s s e s should be relocated [. . .]. The Appeals Chamber also cannot rule out that there may be situations in which temporary emergency measures may have to be taken by the Prosecutor in relation to a person for whom relocation is sought, in a situation of urgency.20

Jurisprudence I General Principles “[I]n the context of the present appeal [regarding preventive relocation], cooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected. This is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101. There are “other provisions of the Statute and the Rules [in addition to rule 81(4)] that are aimed at ensuring that persons are not put at risk through the activities of the Court and which are not limited to the protection of witnesses and victims and members of their families only”. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 43 (and setting out the other provisions in paras. 44–53). These provisions “are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court”. Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 54. “This is not to minimise the importance of consultation, where appropriate, between the relevant organs of the Court as specified in the Court’s legal texts and prior jurisprudence or the importance of the Prosecutor alerting the Trial Chamber of information in his possession concerning matters of protection. However, once a judicial order is made, those subject to it are obliged to comply with its terms.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 53, citing Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008.

20

Ibid., paras. 102–103.

juri sprudence “[I]t was a failure by the Prosecutor to outline sufficiently why lesser alternative measures might not be available that led, at least in part, to the Pre-Trial Chamber failing to take factors into consideration which the Prosecutor now alleges are relevant. The Prosecutor should have been more specific in his submissions. The Prosecutor was in no way limited in relation to the submissions that he could make before the Pre-Trial Chamber, having been able to make several written filings and attend a number of ex parte hearings.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 108.

II The Distribution of Powers regarding Protection 1 The Prosecutor’s General Power regarding Protection “[T]he Prosecutor undoubtedly is responsible under the Statute to ensure that appropriate measures are taken to protect the safety of victims and witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 80. “While the VWU is responsible for specific aspects of witness protection, the Prosecutor has a more general mandate in relation to protection matters under articles 54(3)(f) and 68(1) of the Statute. The Appeals Chamber interprets those provisions as ensuring that the Prosecutor takes general measures that ordinarily might be expected to arise on a day-to-day basis during the course of an investigation or prosecution with the aim of preventing harm from occurring to victims and witnesses. Such measures could include meeting witnesses in discrete locations rather than in public and keeping their identities confidential.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98. “The obligation of the VWU to advise the Prosecutor on, and recommend the adoption of, appropriate protective measures makes sense. It is a reality that the Prosecutor is in the field and will need to take protective measures during the course of his investigations. Consultation, cooperation and advice are all part of ensuring that individuals are not put at risk during the course of the investigations and prosecutions of the Prosecutor [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 98.

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t he p r o t e c t i o n of vi c t i m s a n d wi tn e s s e s “However, [. . .] the general mandate of the Prosecutor pursuant to article 68(1) of the Statute does not extend to the preventive relocation of witnesses.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 99, see also para. 91. “Notwithstanding the above, the Prosecutor still has a significant role to play in relation to matters of relocation [. . .]. [O]ne measure that the Prosecutor can take pursuant to article 68(1) of the Statute is that of making an application for relocation to the Registrar on behalf of a particular witness.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 100. Articles 68(1), 42(1), 54(3)(f) and 68(4) “confer and acknowledge power on the Prosecutor to take protective measures for victims and witnesses, including, no doubt, relocation whenever their safety so requires”. Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Pikis & Nsereko in the Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 15–19. Diss. Op.

2 The Responsibilities of the Registry and the VWU “[A]rticle 43(6) is the sole provision of the Statute that deals with the setting up of a unit specifically to provide protective measures to victims and witnesses. The VWU is the responsibility of the Registrar and is situated within the Registry. There is no similar provision that establishes a unit for the provision of protective measures within the Office of the Prosecutor; nor is there therefore any provision which places the responsibility for such a unit under the authority of the Prosecutor.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 74. “The neutrality of the Registry was expressly raised as a reason for the VWU to be placed there rather than within the Office of the Prosecutor [. . .]. The role of the VWU in relation to protective measures was not limited to the provision of advice alone.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 90. “The function of the VWU is to provide, inter alia, appropriate protective measures and security arrangements, respecting the interests of the witness and acting impartially.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92.

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“At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92. “[C]ooperation between the Prosecutor and the VWU will be essential to ensure, as a matter of the highest priority, that witnesses are appropriately protected. This is, pursuant to article 68 of the Statute, a responsibility of the Court as a whole. The VWU has specific expertise in protection matters; and the Prosecutor is close to the relevant witnesses on the ground and in a position to see where a need for protection may arise. The Appeals Chamber emphasises the vital importance of cooperation on all matters of witness protection, including relocation.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101.

3 Particular Considerations regarding Relocation of Witnesses “It was [. . .] foreseen that experts in witness protection and security would be located within the VWU. Given the serious consequences of relocation, as referred to above, it is appropriate that questions of relocation be considered by those with appropriate expertise.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 77, see also para. 91. “The Prosecutor cannot unilaterally ‘preventively relocate’ witnesses either before the Registrar has decided whether a particular witness should be relocated or after the Registrar has decided that an individual witness should not be relocated.”21 Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 1, 99. “Assigning responsibility for relocation to the VWU ensures that all witnesses, whether ultimately appearing for the Prosecutor, the Defence or otherwise, are treated equally – and by those with relevant expertise – in matters that will significantly affect their interests. Those interests are to be specifically respected by the VWU, which will not be influenced, even unintentionally, when deciding upon whether relocation is appropriate to protect a particular witness, by the additional pressing interest of a party to the case of needing itself to secure the evidence of the witness 21

“It is important to stress at the outset that the question on appeal relates to the practice of ‘preventive relocation’ only and is not a general consideration of protective measures that can be taken in relation to witnesses”: see Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 65.

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the p rotection of victims and w itnesses concerned [. . .]. At the same time, the VWU must recognise the specific interests of, and cooperate with, the parties.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 92. “Given the need for, and expectation of, cooperation in relation to matters of relocation, disagreement between the VWU and the Office of the Prosecutor on relocation matters should be rare [. . .]. [I]f instances do occur where the VWU has rejected an application for a witness to be relocated and the Prosecutor disagrees with that assessment, the matter should not be resolved by the unilateral action of the Prosecutor in ‘preventively relocating’ the witness, but by an application to the relevant Chamber for a ruling on the matter.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 101.

4 Protection in Emergency Situations “[T]here might be exceptional circumstances in which a witness is facing a serious threat of imminent harm that requires an immediate response. In such circumstances, the protection of the individual concerned is necessarily paramount. The Appeals Chamber approves generally the scheme set out by the Pre-Trial Chamber at paragraph 36 of the Impugned Decision in this regard, while recognising that, by the very nature of emergency situations, there may need to be some degree of flexibility in this regard.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 102. “[I]n an urgent situation in relation to a person for whom relocation is sought, the Prosecutor may request the VWU to take a temporary emergency measure to protect the safety of a witness while the overall application for relocation is under consideration. The Appeals Chamber notes, in this context, the reference to a witness being placed temporarily in a ‘safe house’ while the VWU completes its assessment of whether a witness should be relocated [. . .].” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 102. “The Appeals Chamber also cannot rule out that there may be situations in which temporary emergency measures may have to be taken by the Prosecutor in relation to a person for whom relocation is sought, in a situation of urgency [. . .]. However [. . .] relocation, whether ‘preventive’ or otherwise, involves removing a witness from their normal surroundings and family ties and re-settling that person in a new environment. As such, the organisation of the relocation is likely to

jurisprudence involve assessment and planning. The Appeals Chamber therefore regards relocation by the Prosecutor as a protective measure that is unlikely to be necessary or appropriate to protect a witness from a situation that requires an immediate response.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 103–104.

5 The Powers and Role of the Chamber regarding Protection “The Chamber has a general power to provide for the protection and privacy of victims and witnesses where necessary, pursuant to article 57(3)(c) of the Statute. There is nothing to prevent the Prosecutor seeking relocation from the Chamber pursuant to that article, in particular when read with article 68(1) and (4) of the Statute, in circumstances in which the VWU has not agreed to relocate a particular witness.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 95. “The Appeals Chamber finds that any disagreement between the VWU and the Prosecutor about the relocation of a witness should ultimately be decided by the Chamber dealing with the case – and should not be resolved by the unilateral and unchecked action of the Prosecutor [. . .]. In other words, in circumstances where a party – in the present case, the Prosecutor – disagrees with the assessment of the VWU, it is always open to the Prosecutor to come before the Chamber to review that assessment.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–94, see also para. 2. “Decisions in relation to relocation must be taken expeditiously. There is the need for expedition on all sides – both by those bringing the application for relocation and by those deciding upon it – to ensure that effective witness protection can be put in place.” Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 96. The jurisprudence of the Appeals Chamber cited by the Prosecution “reaffirms the authority of the Chambers over the Prosecutor in relation to matters of protection”. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 51, referring to Prosecutor v. Katanga & Ngudjolo, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 93–98;

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the protection of victims and w itnesses Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, paras. 59–60. “There is no exception to the general principle that the Prosecutor (or other parties and participants) must follow the orders of the Trial Chamber when it comes to issues of protection. Indeed, article 68(1) of the Statute specifically provides that, whatever measures the Prosecutor may take with respect to the protection of victims and witnesses, ‘[t]hese measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’. Reading this provision together with the responsibility of the Trial Chamber to ensure a fair trial, it is clear that the Prosecutor’s duties are subordinate to the authority of the Trial Chamber. Moreover, the responsibility of the Trial Chamber under article 64(2) of the Statute explicitly encompasses ensuring not only that a trial is conducted fairly, expeditiously and with full respect for the rights of the accused, but also that the trial is conducted with ‘due regard for the protection of victims and witnesses’.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 50. “[W]hile the safety and security of victims is the key responsibility of the Court, when protecting victims the Court must ensure that the rights of the defence are respected and the trial remains fair.” Prosecutor v. Ngudjolo, Decision on the Participation of Anonymous Victims in the Appeal, ICC-01/04-02/12-140 OA, 23 September 2013, para. 16.

H Fairness, Expeditiousness of the Proceedings, and Rights of the Accused

Commentary

g e o r g e m u g w a ny a Human rights in general, and fair trial guarantees in particular, are a core norm underlying the Court’s justice system. Indeed, “[h]uman rights underpin the Statute; every aspect of it [. . .]. Its provisions must be interpreted and, more importantly, applied in accordance with internationally recognised human rights; first and foremost, in the context of the Statute [and] the right to a fair trial, a concept broadly perceived and applied, embracing the judicial process in its entirety.”1 The right to fair trial is immutable.2 A fair trial is the only means to do justice, and where breaches of the Accused’s rights are such as to make it impossible for the Accused to make his or her defence within the framework of his or her rights, the trial may be stayed.3 Since the Court’s inception, to date the Appeals Chamber has elucidated various aspects of fair trial guarantees. Other Chambers, the Presidency and the Plenary have also played a critical role. There are, however, some areas that require further elaboration.

I The Mandate of the Court: Ensuring a Fair and Expeditious Trial Under article 64(2), every Trial Chamber shall ensure that “[a] trial is fair and expeditious and is conducted with full respect for the rights 1

2

3

Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37. Prosecutor v. Lubanga, Decision on Disclosure Issues, Responsibilities for Protective Measures and Other Procedural Matters, ICC-01/04-01/06-1311-Anx2, 8 May 2008, para. 94. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 37, 39.

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254 fairness, expeditio usnes s of p roceedings, & rights

of the Accused and due regard to the protection of victims and witnesses”.4 How has the Court construed the concepts of fairness and expeditiousness? Fairness and expeditiousness in the conduct of proceedings are more than mere components of a fair trial. They are vehicles for ensuring the proper administration of justice. They lie at the heart of the Court’s duties to do justice and to determine the truth.

a The Concept of Fairness or Fair Trial Fairness or the right to a fair trial is “a concept broadly perceived and applied, embracing the judicial process in its entirety”.5 Notwithstanding its broad scope, fairness in particular embraces the principles of adversarial proceedings and equality of arms of all participants in the proceedings.6 An adversarial hearing, according to the Appeals Chamber, “means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party”.7 Moreover, “‘equality of arms’ in the sense of a ‘fair balance’ between the parties [. . .] implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponents”.8 Does the Court’s definition of “fairness” mean that not only the Accused, but also the Prosecutor, is entitled to a right to fair trial/ hearing? There is an absence of unanimity at the Appeals Chamber. However, arguably, the jurisprudence leans more towards the existence of a right to fair trial accruing both to the Accused and the Prosecutor. In Ngudjolo, the majority of the Appeals Chamber declined to determine “whether and to what extent the Prosecutor has a ‘right to fair trial’ in the 4

5

6

7

8

Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 254. Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 37. Situation in the DRC, Decision on the Prosecution’s 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, ICC-01/04-135tEN, 31 March 2006, para. 38. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 18, fn. 46. Sep. Op. Ibid., para. 29, fn. 47.

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abstract”.9 This was in response to the Prosecutor’s appeal which found fault with the Trial Chamber’s management of the Accused’s alleged interference with victims and witnesses.10 The majority took the position that what was in issue in the alleged errors was not the overall fairness visà-vis the Prosecutor11 or a fair trial question.12 Rather, the alleged errors were procedural errors under article 81(1)(a)(i). Although the majority declined to address whether and to what extent the Prosecutor has a right to fair trial in the abstract, they noted that “[i]t is commonly understood that the right to a fair trial/fair hearing in criminal proceedings, first and foremost, inures to the benefit of the Accused”.13 Moreover, “the specific rights entrenched in article 67(1) of the Statute are specifically tailored to the needs of the accused person”.14 While agreeing with the majority in finding that the alleged errors were procedural in nature and fell within the scope of article 81(1)(a)(i), the dissenting judges disagreed with the majority in relation to the latter’s ruling that such errors do not fall within the scope of article 64(2) concerning the right to a fair trial.15 In their view, “the errors alleged by the Prosecutor, first, fall within the scope of article 64(2) of the Statute, governing the Trial Chamber’s powers for the proper conduct of the proceedings and, secondly, affect its core judicial duty to establish the truth”.16 They also agreed with the Prosecutor that 9

10

11

12

13

14 15

16

Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Ibid., paras. 235, 249, 259, 274; Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12-271-AnxA, 27 February 2015, para. 4. Diss. Op. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Prosecutor v. Ngudjolo, Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271-AnxA, 27 February 2015, para. 5. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 255. Ibid., para. 255. Prosecutor v. Ngudjolo, Joint Dissenting Opinion of Judge Ekaterina Trendafilova and Judge Cuno Tarfusser in the Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271-AnxA, 27 February 2015, para. 5. Ibid., para. 5.

256 f a i r n e s s , e x p e d i t i o us n es s of p r o c e e d i n g s , & r i g ht s

the article 64(2) right to a fair trial was enjoyed by all parties to the proceedings, including the Prosecutor.17 Notwithstanding the disagreement, in principle, the majority and the dissenting judges confirm the concept of equality of arms which lies at the heart of the concept of fairness and inures to all the parties to the proceedings.18 Noting the provisions of article 69(3) (which entitle the parties to submit evidence relevant to the case), the majority found that “the principle that parties must be afforded an adequate opportunity to present their case has been adopted by Pre-Trial Chambers I and II and the ad hoc Tribunals [. . .]”.19 Also referring to the obligation of the Prosecutor under article 54(1) “to establish the truth” and the Trial Chamber’s duty to actively contribute to that goal, the majority concluded that “the Prosecutor may raise errors alleging that her ability to present her case has been violated as procedural errors under article 81(1)(a)(i) of the Statute”.20 The emphasis above highlights critical elements of the notion of the equality of arms, the cardinal lenses through which the ad hoc tribunals have construed the concept of fairness.21

b The Principle of Expeditiousness The principle of expeditiousness is more than a fair trial right, but “an independent and important value in the Statute to ensure the proper administration of justice [. . .]”.22 Expeditiousness not only promotes fairness to the Accused, but also assures victims “of receiving justice and of going through a healing process quickly. For witnesses, it relieves them as soon as possible of the anxiety of having to appear in court to give evidence. Unreasonable delay in commencing or finalizing a trial may also diminish public interest and public support for, and cooperation with the Court.”23 The ultimate duty of ensuring fairness and expeditiousness lies with the 17 18

19

20

21

22

23

Ibid., para. 6. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 256. Ibid., para. 256, citing the ICTY’s Prosecutor v. Haradinaj et al., IT-04-84-A, Judgment, 19 July 2010, para. 48 (emphasis added). Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12271, 27 February 2015, para. 257 (emphasis added). E.g., Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-A, Appeals Judgment (Reasons), 1 June 2001, para. 55. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01-/04-01/07-2259 OA10, 12 July 2010, para. 47. Ibid., para. 46.

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Chamber, and cannot be delegated by or removed from it.24 Moreover, the Chamber’s duty subsists regardless of the conduct of the parties,25 who also must play a role in ensuring that these values are respected.26 Thus, Chambers must take measures where the parties’ conduct is inappropriate.27 And wherever there is any conflict between the parties’ perception of their duties and the Trial Chamber’s orders, “the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair.”28 While expeditiousness is an important value, it cannot justify a deviation from statutory provisions or the full respect of the Accused’s other rights.29 It does not, for instance, exempt the Prosecution from disclosing information material to the defence preparation.30 A speedy conduct of the proceedings should also occur “without prejudice to the rights of the parties or participants concerned”.31

II Fair Trial Guarantees Article 67 enshrines a catalogue of minimum fair trial guarantees that accrue to the Accused in the determination of any charge and are to be enjoyed in full equality.

a Scope of Protection Although worded slightly differently, the Court has recognised that article 67 closely resembles the fair trial guarantees enshrined in global and regional human rights instruments,32 and therefore reflects internationally 24

25

26 27

28

29

30

31

32

Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 47. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 50. Ibid., para. 43. Prosecutor v. Saif Al-Islam Gaddafi & Abdullah Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175, 12 June 2012, para. 18. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. Prosecutor v. Katanga & Ngudjolo, Judgment on Unlawful Detention and Stay of Proceedings, ICC-01/04-01/07-2297, 28 July 2010, para. 47. Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501, 28 August 2013, para. 37. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 48. E.g., Prosecutor v. Lubanga, Decision on the Consequences of Non-disclosure of Exculpatory Materials covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain other Issues Raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008, para. 57;

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recognised human rights.33 Based on the plain terms of article 67, besides the enumerated minimum guarantees above, an accused is also entitled to the rights embedded within the chapeau of article 67: namely, (a) the right to a public hearing; (b) the right to a fair hearing conducted impartially; and (c) the right to equality before the Court. Moreover, since article 67 describes its catalogue of rights as minimum guarantees, this also suggests that the list of rights is not exhaustive,34 and other rights exceeding those mentioned in the article may be required in appropriate circumstances to ensure the fairness of the proceedings. Indeed, other provisions of the Statute are relevant as acknowledged in the Lubanga case.35 These other rights include article 64(2) and (3), obligating the Trial Chamber to ensure a fair and expeditious trial; article 63 (trial in one’s presence); article 74 (requiring Chambers to provide a reasoned opinion, which is indispensable to the parties’ exercise of the right to appeal); article 66 (the presumption of innocence); article 81 (the right to appeal); and article 21(3) (which ensures the application of internationally recognised human rights in the interpretation of the Statute). The reference in article 67 to the rights of the Accused in the determination of a charge may suggest that these rights only inure to accused persons (whose charges have been confirmed) or applies only during the actual trial. However, Pre-Trial Chamber I has rejected such a restrictive reading. It has held that the safeguards in article 67 apply at all stages of the proceedings, including the investigation stage.36 The Appeals Chamber has also recognised that breaches of rights at the pre-trial stages may have implications on the proceedings and may affect the outcome of the trial.37 But the Appeals Chamber has also found that “internationally recognised human rights standards do not

33

34

35 36

37

Prosecutor v. Ruto and Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, para. 32. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 83. Prosecutor v. Lubanga, Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04-01/06-102, 15 May 2006, para. 97. Ibid., para. 97. Situation in the DRC, Decision on the Prosecution’s 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, ICC-01/04-135tEN, 31 March 2006, paras. 34–35. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 11.

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necessarily extend all the rights enshrined in article 67 of the Statute to persons who have not yet been surrendered to the Court or appeared voluntarily before it”.38

b Right to a Fair Hearing Conducted Impartially The chapeau to article 67 provides that the Accused shall be entitled to a fair hearing conducted impartially. An impartial hearing is not only the right of every accused, but, as emphasised by the Presidency, is also a safeguard to the integrity of the Court’s administration of justice.39 The judges, the Prosecutor and Deputy Prosecutor have a duty to ensure that the Accused enjoys an impartial hearing.40 Impartiality is one of the essential qualities of any ICC judge, Prosecutor, Deputy Prosecutor, Registrar and Deputy Registrar.41 These officers may be disqualified from acting in a case in which their impartiality might reasonably be doubted based on a non-exhaustive list of factors.42 Besides the Prosecutor, the person being investigated or prosecuted may request the disqualification of a judge based on claims of lack of impartiality.43 Moreover, there is under rule 35, “[a] duty upon a judge to request to be excused in the absence of a request for disqualification should he or she believe that a ground of disqualification exists”.44 A similar duty also extends to the Prosecutor and Deputy Prosecutor.45

38

39

40 43 44

45

Prosecutor v. Gaddafi & Al-Senussi, Judgment on Admissibility Appeal on Al-Senussi, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 147. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 4. Rule 35. 41 Articles 36(3), 42(7), 45. 42 Articles 41(2)(a), 42(7); rule 34. Article 41(2)(b). Article 42(7); Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 4; Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the Case of The Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 4. Rule 35.

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i Actual Bias and Appearance of Bias As is the practice at ad hoc tribunals,46 “the assessment of judicial impartiality requires not only that a judge be impartial in the sense of being subjectively free from bias, but also that there is no objective appearance of bias”.47 In other words, the bias standard has two components: (a) actual bias, and (b) the appearance of bias. Therefore, a judge, Prosecutor or Deputy Prosecutor is not impartial if it is shown that actual bias exists, or there is an appearance of bias. Where, for instance, there is a conflict of interest, there is actual bias.48 Thus, where a judge who is a member of the Presidency submits to the Presidency a request to be excused from participating in a case, such a judge cannot be part of the Presidency when it is adjudicating his or her request.49 Apparent bias includes all other types of allegations of bias. Examples include the bases enshrined in article 41(2), as well as rule 34(1)(c) and (d), which according to the Appeals Chamber “concern an objective appearance of impartiality due, inter alia, to extra-judicial activities and the Presidency has found that an objective appearance of impartiality may be denied when a judge previously made determinations of fact based upon 46

47

48

49

See, e.g., Rutaganda v. Prosecutor, ICTR-96-3-A, Judgment, 26 May 2003, para. 46; Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 682. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, pp. 4–5; Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 11. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06925-AnxI, 21 October 2015, pp. 1–2. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of the Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06925-AnxI, 21 October 2015, pp. 1–2.

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consideration of the same issues and evidence, from which it would appear that he or she is not free to depart”.50 The relevant standard of assessing apparent bias, is “whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias [. . .]”.51 This test is concerned “not only with whether a reasonable observer could apprehend bias, but whether any such apprehension was objectively reasonable”.52 To disqualify a judge based on the appearance of bias, the applicant must meet a higher threshold of demonstration than the threshold required to prove actual bias. This is because, as is the practice at ad hoc tribunals,53 there is a presumption of impartiality that attaches to all ICC judges, who are professional judges and are capable of deciding issues solely based on the evidence adduced.54 ii Assessing the Appearance of Bias based on a Judge’s Extra-judicial Activities and Previous Involvement in a Case The above general standards have guided the Court in its adjudication of applications for the disqualification of judges. Many applications thus far have been concerned with the judges’ previous involvement in a case, under article 41(2)(a).55 Important principles can be discerned from these decisions. Critical among them is that not every previous involvement by a judge in 50

51

52 53

54

55

Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, p. 5. Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 11. Ibid., para. 13. See, e.g., Prosecutor v. Akayesu, ICTR-96-4-A, Judgment, 1 June 2001, para. 91; Prosecutor v. Furundzija, IT-95-17/1-A, Judgment, 10 December 1998, para. 196. Prosecutor v. Al Bashir, Decision on the Request of Judge Sanji Mmasenono Monageng of 25 February 2010 to be Excused from Reconsidering Whether a Warrant of Arrest for the Crime of Genocide should be Issued in the Case of The Prosecutor v. Omar Hassan Ahmad Al Bashir, Pursuant to Article 41(1) of the Statute and Rules 33 and 35 of the Rules of Procedure and Evidence, ICC-02/05-01/09-76-Anx2, 19 March 2010, para. 14. One case was concerned with other factors, such as a shared nationality by the judge and the victims of the alleged crimes; public opinions expressed by the judge prior to appointment at the Court; and the judge’s endorsement by a State or group of States for judgeship during elections of judges at the Court. See Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, paras. 16–32. Although this decision was not unanimous, it appears that the Court subjects allegations of an appearance of bias based on these and other factors to a high standard of demonstration.

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a case, whether before the Court or in a related criminal case at the national level prior to the person’s appointment as an ICC judge, will suffice to create an appearance of bias in terms of article 41(2)(a) as to be incompatible with an accused’s right to an impartial trial. Rather, only previous engagements in a case that gives rise to a reasonable ground to doubt a judge’s impartiality can lead to a judge’s disqualification from the case at hand.56 To reach a decision, a case-by-case assessment must be undertaken which evaluates “the ‘degree of congruence between the legal issues’ and whether ‘the factual determinations’ would be ‘based on the same evidence’ in considering requests for excusal on grounds of [the judge’s] previous involvement in the case”.57 Moreover, “‘it may reasonably appear to an objective observer that’ a judge lacks impartiality where he or she is ‘not free to depart from previous factual findings which [he or she] made upon consideration of the same issues and evidence’”.58 Overall, the decisions reveal a restrictive stance. Disqualification or excusal will be granted only in exceptional cases where a judge’s previous engagement in the case involved a similar assessment of facts or factual determination, for instance, concerning the Accused’s culpability. Once there is congruence as to the underlying facts, the purpose of the current assessment of facts and the standard or threshold of that assessment are immaterial. For instance, regarding an assessment of a person’s culpability, it is irrelevant that the judge’s previous involvement concerned the “responsibility” determination for purposes of meeting the low 56

57

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Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 5. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/0501/13-1329-AnxI, 2 October 2015, p. 3; Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06-925-AnxI, 21 October 2015, pp. 3, 4; Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009, p. 5. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in the case of Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1329-AnxI, 2 October 2015, pp. 3–4.

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standard for the issuance of a warrant of arrest, and the current engagement is for assessing culpability using a higher threshold of proof to either convict or acquit the Accused. Thus, if a judge previously served with the Prosecution or sat in the Pre-Trial Chamber to determine whether or not to issue a warrant of arrest, or to confirm the charges, the same judge cannot sit in the trial of the Accused or in an appeal adjudicating the Accused’s culpability or innocence. Accordingly, in a decision relating to excusal of Judge Fernandez in the Ntaganda case,59 the Presidency granted recusal in any appeal in relation to that case, given Judge Fernandez’s previous participation as ICC Prosecution Head of the Jurisdiction, Complementarity and Cooperation Division, in the preliminary examinations and investigations of the DRC situation. The Presidency found a significant degree of congruence between the legal issues and the factual determinations made during the preliminary examinations and appeals emanating from the Ntaganda case. It considered that the preliminary examinations in which Judge Fernandez had participated were extensive. They involved, among others, the assessment of those believed to be most responsible, and discussions leading to the issuance of a warrant of arrest of Ntaganda. On the other hand, the Presidency did not find the requisite congruence established between the judge’s engagement in the Bemba trial in relation to Judge Aluoch and Judge Ozaki,60 and their participation in another Chamber dealing with a compensation claim by one of the Defendants in the Bemba et al. article 70 case.61 In the Presidency’s view, the issues in the request for compensation “neither refer[red] to the facts underlying the Bemba or Bemba et al. proceedings nor pertain to legal issues relevant to either proceeding”.62 Based on these examples, a judge participating in pre-trial proceedings (e.g., for the confirmation of charges), may sit in a future Trial Chamber or the Appeals Chamber or other Chamber when auxiliary matters unrelated to the assessment of facts relating to culpability or responsibility are no longer in issue. Such auxiliary matters include the review of sentence or compensation, or the correction of transcripts, as was the case in the 59

60

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Prosecutor v. Ntaganda, Decision on the Request for Excusal from Appeals Chamber in all Pending and Future Appeals in the Case of The Prosecutor v. Bosco Ntaganda, ICC-01/0402/06-925-AnxI, 21 October 2015. Prosecutor v. Bemba et al., Decision on the Request for Excusal from all Pending and Future Proceedings in the case of Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu & Narcisse Arido, ICC-01/05-01/13-1329-AnxI, 2 October 2015. Ibid., pp. 4–5. 62 Ibid., p. 4.

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recusal request relating to Judge Ušacka.63 This is because “such limited involvement does not constitute a ground on which impartiality [. . .] might reasonably be doubted”.64 iii Impartiality of the Prosecutor The Prosecutor, like the judges and the Deputy Prosecutor, “is expected at all times to act impartially”.65 Under article 42(7), “[n]either the Prosecutor nor Deputy Prosecutor shall participate in any matter in which their impartiality might be reasonably doubted on any ground”.66 A person being investigated or prosecuted may seek the disqualification of the Prosecutor before the Appeals Chamber.67 This includes persons being investigated or prosecuted for article 70 offences.68 Article 42(7) and rule 34(1) provide for a non-exhaustive list of grounds on which disqualification may be sought. So far, the Court has not adjudicated many cases alleging the absence of impartiality, including allegations based on the Prosecutor’s or Deputy Prosecutor’s previous engagements. But it has adjudicated a case alleging the absence of impartiality based on the Prosecutor’s expression of opinions through communication to the media that “objectively” could adversely affect the required impartiality of the person concerned, under rule 34(1)(d). In the view of the Appeals Chamber, the use of the term “objectively” in rule 34 and the phrase “might reasonably be doubted” in article 42(7), “indicates that it is not necessary to establish an actual lack of impartiality on the part of the Prosecutor. Rather, the question [. . .] is whether it reasonably appears that the Prosecutor lacks impartiality.”69 63

64 65

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67

68

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Prosecutor v. Lubanga, Decision on the Request of 16 September 2009 to be Excused from Sitting in the Appeals against the Decision of Trial Chamber I of 14 July 2009 in the Case of Prosecutor v. Thomas Lubanga Dyilo, Pursuant to Article 41(1) of the Statute and Rule 33 of the Rules of Procedure and Evidence, ICC-01/04-01/06-2138-AnxIII, 23 September 2009. Ibid., p. 7. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 18. See also Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 18. Article 42(8); Prosecutor v. Banda, Decision of the Plenary of the Judges on the “Defence Request for the Disqualification of a Judge”, ICC-02/05-03/09-344-Anx, 5 June 2012, para. 18. Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 17. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 20.

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In making such a determination the yardstick is the perspective of a reasonable observer, properly informed.70 While a similar test may apply where the impartiality of a judge is disputed, it appears that at the Court, when such a dispute is based on the public expression of an opinion on the case, a more heightened threshold of demonstration is required to have the Prosecutor or Deputy Prosecutor disqualified than is required to disqualify a judge. This is based on the different role of the Prosecutor vis-à-vis that of the judges – the guilt or innocence of an accused is determined, not by the Prosecutor, but by the judges. Thus, in a case where the Prosecutor at the time was found to have inappropriately expressed opinions on the liability of a suspect which was incompatible with the presumption of innocence, nevertheless, the Appeals Chamber held that the ground for disqualification from the case was not demonstrated. In its view: [a] reasonable observer, properly informed, is aware of the functions of the Prosecutor. Such [an] observer would have understood that the Prosecutor’s statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence. That the Prosecutor manifested a certain conviction about the evidence is to be expected. A reasonable observer, properly informed, would not conclude that the Prosecutor’s conviction was not based on the evidence, was otherwise biased or would lead to the neglect of his duties under article 54(1)(a) and (c) of the Statute. As such, the Appeals Chamber finds that the Prosecutor’s statements do not lead to the conclusion that his impartiality might reasonably be doubted.71

c Right to a Public Hearing and Public Judgments The chapeau to article 67(1) enshrines the right to a public hearing. Under regulation 20 of the RoC, “[a]ll hearings shall be in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber”. The publicity of the hearing may extend beyond the courtroom,72 and may be communicated through broadcasting by the 70 72

Ibid., para. 20. 71 Ibid., para. 34. Regulation 21(1) of the RoC; Prosecutor v. Kony et al., Decision on Setting the Date for the Initial Appearance of Dominic Ongwen and the Date for a Status Conference, ICC-02/0401/15-188 1/5 SL PT, 16 February 2015, para. 7; Prosecutor v. Bemba, Decision Authorising Photographs at the Confirmation of the Charges Hearing on 12 January 2009, ICC-01/05-01/08-351, 8 January 2009, p. 3; Prosecutor v. Ngudjolo, Decision Scheduling the First Appearance of Mathieu Ngudjolo Chui and Authorising Photographs at the Hearing of 11 February 2008, ICC-01/04-01/07-273, 7 February 2008, p. 2.

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Registry or release of transcripts or recordings, unless otherwise ordered by the Chamber. “Publicity” thus also covers written material, such as documents and written submissions in a case.73 In keeping with the rule of publicity, any party, participant, or even the Registrar, who submits any materials with a confidential classification, is duty bound to apply to the Chamber to reclassify them where the basis for such classification no longer exists, under regulation 23bis (3) of the RoC.74 Article 74(5), without any qualification, requires that the Trial Chamber’s final judgment on the guilt or innocence of the Accused be delivered in open court. The same requirement is imposed on the Appeals Chamber.75 There is a “general principle of publicity in [the] Court’s proceedings, which can be derived from Article 67(1) and 64(7) of the Statute [. . .]”.76 The Court, like other international courts and institutions,77 holds that a public hearing is an important safeguard not only to the Accused, but also to the integrity of the Court’s judicial process and the public trust held in the Court.78 However, the guarantee of a public hearing is subject to exceptions and has to be balanced against other competing interests of the Court, such as the protection of vulnerable witnesses and victims.79 But protective measures shall be considered to be an exception to the general rule of publicity.80 For instance, according to Trial Chamber II, “[u]nder no circumstances the Chamber will allow victims to testify anonymously vis-à-vis the Defence”.81 73

74 76

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78

79 80

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Prosecutor v. Banda & Jerbo, Judgment on the Defence Appeal for the Disclosure of Documents, ICC-02/05-03/09-501 OA4, 28 August 2013, para. 43. Ibid., paras. 43–44. 75 Article 83(4). Prosecutor v. Ruto & Sang, Decision on the Conduct of Trial Proceedings (General Directions), ICC-01/09-01/11-847-Corr, 9 August 2013, para. 30. E.g., UN Human Rights Committee, CCPR General Comment No. 13: Article 14 (Administration of Justice), Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (1984), para. 6; Prosecutor v. Delalić et al., IT-96-21, Decision on the Prosecution’s Motion for the Redaction of the Public Record, 5 June 1997, para. 23; ECtHR, Werner v. Austria, Appl. no. 21835/93, “Judgment”, 24 November 1997, para. 45; ECtHR, Pretto & Ors v. Italy, Appl. no. 7984/77, “Judgment”, 8 December 1983. Prosecutor v. Katanga & Ngudjolo, ICC-01/04-01/07-T-189-ENG ET WT, 20 September 2010, 11/19 EA T, p. 10. Ibid., pp. 10–11. Prosecutor v. Ruto and Sang, Decision on the Conduct of Trial Proceedings (General Directions), ICC-01/09-01/11-847-Corr, 9 August 2013, para. 30. Prosecutor v. Katanga & Ngudjolo, Directions for the Conduct of the Proceedings and Testimony in Accordance with Rule 140, ICC-01/04-01/07-1665-Corr, 1 December 2009, para. 22(c).

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d Right to Prompt and Detailed Notification of the Charges in a Language the Accused Fully Understands and Speaks Under article 67(1)(a), the Accused is entitled “[t]o be informed promptly and in detail of the nature, cause and content of the charge, in a language in which the Accused fully understands and speaks”. i Notification of Charges The right to be promptly informed of the charges is “firmly grounded in the Statute and other legal instruments of the Court”,82 and is critical to ensuring that the Accused fully exercises his or her rights to defend him- or herself. Indeed, the Appeals Chamber reads this right together with the right “to have adequate time and facilities for the preparation of the defence”.83 The right to be notified of the charges accrues from the time of one’s arrest or detention (including in a State).84 Further, when an accused arrives at the Court, the relevant Chamber must ensure that his or her right is respected both before the confirmation of the charges hearing (conducted by a Pre-Trial Chamber) and the commencement of trial (conducted by a Trial Chamber). Thus, under article 61(3), “within a reasonable time prior to the hearing on the confirmation of charges, the Accused shall ‘[b]e provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial’”.85 Moreover, “[t]he Prosecutor shall provide to the Pre-Trial Chamber and the person, no later than 30 days before the date of the confirmation hearing, a detailed description of the charges together with a list of the evidence which he or she intends to present at the hearing”.86 Under article 64(8), “[a]t the commencement of the trial, the Trial Chamber shall have read to the Accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the Accused understands the nature of the charges [. . .].” Based on the right to be notified of the charges under article 67(1), the Document Containing the Charges (“DCC”) must include, inter alia, “[a] statement 82

83 84

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Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 118. Ibid., para. 118. Article 58(2), (3) and (7). For the ad hoc tribunals, see, e.g., Barayagwiza v. Prosecutor, ICTR-97-19-AR72, Decision, 3 November 1999, para. 80; Semanza v. Prosecutor, ICTR97-20-A, Decision, 31 May 2000, para. 78. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 119. Rule 121(3); Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 119.

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of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial [. . .]”.87 But the DCC need not plead the evidence supporting the factual allegations.88 Therefore, if a Chamber errs in its approach to the admission of evidence during a trial, the Accused’s right to be informed of the charges is not engaged as long as he had received the DCC and other documents conveying the charges.89 In a nutshell, “the right to be informed of the charges is not concerned with the timing of admissibility rulings”.90 As to the degree of specificity with which facts (meaning factual allegations that support each element of the charged crime) must be pleaded, the Appeals Chamber has emphasised that they “must be identified with sufficient clarity and detail, meeting the standard in article 67(1)(a) of the Statute”.91 The Appeals Chamber has also invoked jurisprudence from ad hoc tribunals,92 to the effect that the degree of specificity (for instance, regarding the identification of names of victims, locations, the time of the crimes), is dependent on the alleged criminal conduct charged.93 In other words, a decisive criterion is the proximity of the Accused to the alleged events. The further away the Accused is removed from the actus reus, the lesser the degree of specificity. In determining whether an accused has been sufficiently notified of the charges, the inquiry must consider not only the DCC or the Confirmation Decision, but all other auxiliary documents, such as the list or summary of the evidence.94 Only documents provided before trial are relevant in determining whether the Accused received sufficient notification of the charges.95 87

88

89 91

92

93

94

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Regulation 52(b) of the RoC; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, 1 December 2014, para. 119. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64. Ibid., paras. 63–65. 90 Ibid., para. 64. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, fn. 163; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 121. Regulation 52(b) of the RoC; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 122, citing Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, paras. 210–213. E.g., Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, paras. 210–213; Nahimana et al. v. Prosecutor, ICTR-99-52-A, Judgment, 28 November 2007, para. 322; Prosecutor v. Sesay et al., SCSL-04-16-A, Appeal Judgment, 20 October 2009, para. 48. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 12 December 2012, paras. 124–136. Ibid., para. 129.

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However, even documents furnished thereafter may be considered in the context of assessing whether any prejudice arising from any deficient charges was cured.96 Some aspects of the existing ICC jurisprudence on the degree of specificity of the charges require further elucidation. For instance, in Lubanga, since the Accused was not alleged to have directly carried out the actus reus of a crime and was charged on the basis of a common plan, it is not clear whether the DCC should have required, as found by the Appeals Chamber, details as to the date and location of the Accused’s underlying acts and the identity of the victims.97 However, on the other hand, it may be argued that the Chamber pursues a flexible approach – in the sense that charges would not be rejected for not providing such details in some circumstances – because the Judgment underlines that those details should be provided “to the greatest degree of specificity possible in the circumstances”.98 But the Judgment also appears less clear as to the degree of specificity where the DCC alleges a pattern of criminality (spanning a wide perimeter in terms of time, locations and affecting many victims), as Lubanga’s DCC partly did with respect to the enlistment, conscription or use of children under the age of fifteen years in hostilities. In upholding the charges based on a pattern approach, the Appeals Chamber held that it is sufficient that further details such as the names of the victims are furnished in other documents, for example, the summary of the evidence.99 This raises the issue of whether the Appeals Chamber could have reached a different conclusion if no further specification of victims had been conveyed in other documents beyond the DCC. Yet it may be argued that where charges are based on a pattern of criminality perpetrated in the circumstances just described, a low degree of specificity would suffice. ii Language Article 67(1)(a) requires the suspect or accused to be notified of the charges in a language that he or she fully speaks and writes. The Statute enshrines a similar language standard in article 67(1)(f), relating to the right to interpretation. The Appeals Chamber has underscored that the inclusion of the right provided in article 67, as a whole, indicates that this right is a sine qua non for the holding of a fair trial.100 The Appeals Chamber has also underscored that the plain text of article 67(1)(a) and (f) imposes a higher language standard than embraced by 96 100

97 98 99 Ibid. Ibid., para. 123. Ibid. Ibid., paras. 131–132. Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 41.

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other international instruments.101 The Katanga case illustrates this distinction. During his initial appearance, in response to the Presiding Judge’s question as to whether he spoke French or any other language, Katanga responded, “I speak Lingala best.”102 Asked to clarify if he also understood French, Katanga replied, “Not really.”103 Pressed on further to explain if he did not speak and understand French, Katanga replied, “[I] do not speak French fluently, and sometimes it is difficult for me to understand [. . .].”104 Relying on the case law of the European Court of Human Rights, the Single Judge found that Katanga’s competency in French met the standards set by article 67(1)(a) and (f), and rejected Katanga’s request for Lingala interpretation.105 On appeal, this decision was overturned. The Appeals Chamber emphasised that article 67’s use of the words “fully understands and speaks” engages a higher threshold of language competency – the accused must both understand and speak the language “in full manner [. . .] without deficiency”.106 And “[g]iven the addition of the word fully [. . .] the language requested [by the accused] should be granted unless it is absolutely clear on the record that the person fully understands and speaks one of the working languages of the Court and is abusing his or her right under article 67 of the Statute”.107 But, “[a]n accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer”.108 Notably, article 67(1)(a) and (f) relates to the language ability and knowledge of the suspect or accused, not of his or her counsel or the Defence team.109

e Right to Adequate Time and Facilities for Defence Preparation Under article 67(1)(b), the accused has a right “to have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence”. The right to adequate time and facilities “presupposes that the Defence team will have sufficient time to conceive, prepare and raise meaningful and effective grounds of defence which are tailored to its case”.110 This 101 105 109

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102 103 104 Ibid., paras. 42, 48, 56, 62. Ibid., para. 5. Ibid. Ibid. 106 107 108 Ibid., paras. 6–8, 21, 36. Ibid., para. 40. Ibid., para. 61. Ibid. Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 11. Prosecutor v. Katanga, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/ 07–3436-t-ENG, 7 March 2014, para. 1572.

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reinforces the principles of fairness, especially the principle of equality of arms.111 Whether the right to adequate time and facilities has been violated “[c]annot be a wholly abstract analysis. Everything turns on the specific circumstances of the case which the accused, counsel and the members of the defence team had to confront and the nature and status of the proceedings”.112 Article 67 does not preclude the legal recharacterisation of facts in the course of the trial under regulation 55, as long as such re-characterisation does not render the trial unfair.113 It is to avoid the violation of such rights as the right to have adequate facilities for defence preparation that “regulation 55(2) and (3) set out several stringent safeguards for the protection of the rights of the defence”.114

f Right to be Present at Trial and to Legal Representation Under article 67(1)(d), the Accused is entitled, subject to article 63(2), to be present at trial. Based on the Appeals Chamber jurisprudence, the presence of the Accused at trial is not only a right, but also an obligation under article 63(1). Concerning the former, the Accused has a right to be present at trial, but a Chamber may exceptionally remove him or her if he or she continuously disrupts the proceedings, under article 63(2).115 Such disruptive conduct “may be construed as an implicit waiver of his or her right to be present”.116 Concerning the latter, the Appeals Chamber has held that: article 63(1) of the Statute establishes that the accused shall be present during the trial, reflecting the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice. The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein [. . .] It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed [. . .].117 111 113

114 115

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Ibid., para. 1572. 112 Ibid., para. 1573. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. Ibid., para. 85. Prosecutor v. Ruto and Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 51. Ibid., para. 51. 117 Ibid., para. 49.

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Moreover, “the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice”.118 However, the obligation is not absolute and a Chamber may allow a trial to continue in the absence of the Accused, if among others, he or she expressly waived the right to be present.119 But, as the Appeals Chamber has underscored, the discretion the Trial Chamber enjoys under article 63(1) is limited and must be exercised with caution.120 In addition to an express waiver of the right, the Appeals Chamber identified the following limitations on the discretion of the Trial Chamber to excuse an accused from presence during trial: [(i)] the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.121

Under article 67(1)(d), the Accused is entitled to conduct his or her defence in person or through legal assistance of the Accused’s choosing. This right is universally recognised.122 Moreover, “the choice of counsel lies with the person and once appointed, counsel can conduct the defence of the individual”.123 But like other rights the right must be “reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial, including [. . .] the reasonableness of the time within which the proceedings must be held.”124 Therefore, an accused, whose previous counsel has left, cannot be allowed an indefinite time frame to choose a replacement. Effective representation “is not dependent on the number of staff involved in a Defence team, but instead on whether the accused received meaningful 118 122

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Ibid. 119 Ibid., paras. 2, 62. 120 Ibid., para. 2. 121 Ibid., para. 62. Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC01/04-01/06-844 OA8, 9 March 2007, para. 12. Ibid., para. 12. 124 Ibid., para. 15.

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representation”.125 In making such a determination, a Chamber may consider such factors as the Defence’s filings, which in the Bemba case, “reveal[ed] that Mr Jean-Pierre Bemba remain[ed] effectively represented”.126

g Right to a Presumption of Innocence The presumption of innocence requires that the burden of proof of guilt lies on the Prosecutor.127 Indeed, the rebuttal of an Accused’s defence is on the Prosecutor, not the Accused.128 Moreover, when an Accused adduces evidence, the burden is on the Prosecutor to discredit such evidence – for instance, its authenticity – through cross-examination or by calling witnesses.129 Under article 54(1)(c) (respecting investigations), the Prosecutor shall “[f]ully respect the rights of persons arising under the Statute, including the right to be presumed innocent as guaranteed by article 66 of the Statute [. . .]”.130 Within the context of court or trial proceedings, “the accused shall be presumed innocent until proven guilty beyond a reasonable doubt and shall not have imposed on him or her any reversal of the burden of proof or any onus of rebuttal”.131 The right to a presumption of innocence broadly imposes duties courtwide, applying to the judges, the Prosecutor and other organs of the Court alike.132 But as shown below, the requirement of impartiality imposes differing obligations and thresholds of scrutiny on the Prosecutor, the judges and the Registry. By virtue of the Accused’s right to a presumption of innocence, in an on-going trial, the judges are prohibited from publicly expressing an opinion on guilt or innocence, 125

126 127

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Prosecutor v. Bemba, Decision on the Defence’s Application to Suspend the Proceedings, ICC-01/05-01/08-530, 18 September 2009, para. 14. Ibid., para. 14. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-71, 27 February 2015, para. 172; Prosecutor v. Ngudjolo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-3-tENG, 18 December 2012, paras. 146–147; Prosecutor v. Bemba et al., Decision on Arido Defence Request to Withdraw the Charges, ICC-01/05-01/13-876, 27 March 2015, para. 12. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/0402/12-271, 27 February 2015, para. 172. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 23. Ibid., para. 25. 132 E.g., ibid., paras. 23–33.

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within or outside the court proceedings,133 except when they publicly issue in open court a final judgment under article 74 or 83 at the end of their private deliberations.134 The Court has similarly construed the presumption of innocence as imposing very strict obligations on the Registrar. For instance, in the Lubanga case, a Pre-Trial Chamber found a violation of the presumption of innocence by the Registrar’s categorisation of Mr Lubanga as an accused before the confirmation of the charges against him.135 There are two aspects to the Prosecutor’s expression of opinions on culpability that relate to the presumption of innocence. First, the Prosecutor is expected, and indeed reasonably required, to express such an opinion, at least within the context of court proceedings.136 One such example is an opinion on the guilt or innocence of the accused on the evidence – an action which would be inappropriate if made by a judge in an on-going trial.137 Secondly, he or she may comment on an on-going case outside court proceedings, but important restrictions are imposed on what he or she may say by virtue of the presumption of innocence.138 Indeed, like other officials of the Court, his or her duty to respect the presumption of innocence requires that he or she does not prejudge the outcome of the trial.139 Thus, while public statements by the Prosecutor merely describing allegations of suspicion are permissible, those declaring guilt in a pending case violate the presumption of innocence.140 In determining whether the particular statements of the Prosecutor violate the presumption of innocence, the Court must consider them “in light of all the relevant circumstances”,141 which entails assessing, for instance, whether the statement merely mentioned the evidence without giving the impression that the factual issues have been determined or could not be contested.142 If there is a violation of the presumption of innocence by the Prosecutor, it is the responsibility of the Chamber to take measures to ensure fair and expeditious proceedings.143 These measures include directing the Prosecutor to limit his or her public statements; various remedial measures to address any damage done by 133

134 135 136

137 142

Ibid., para. 25 (noting that the Prosecutor may express opinions in the court proceedings which would be inappropriate if made by a judge in an on-going trial). Articles 74(5) and 83(4). Prosecutor v. Lubanga, ICC-01/04-01/06-T-30-EN, 9 November 2006, p. 19, ll. 7–15. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175 OA3, 12 June 2012, para. 25. Ibid. 138 Ibid., paras. 26–35. 139 Ibid., para. 26. 140 Ibid., para. 28. 141 Ibid. Ibid., paras. 31, 34. 143 Ibid., para. 35.

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such statements; the issuing of a reminder to the Prosecutor of his or her obligations; a judicial reprimand or expression of discontent; or, where appropriate and subject to the rules and protections of due process, the institution of proceedings for misconduct under articles 46, 47 or 71.144

h Right not to be Compelled to Testify or to Confess Guilt and to Remain Silent, and the Right to Disclosure Under article 67(1)(g), an accused has the right “[n]ot to be compelled to testify or to confess guilt and to remain silent”,145 and “is entitled to exercise that right without silence being a consideration in the determination of guilt or innocence”.146 The accused is entitled to full disclosure of all exculpatory evidence and information material to his/her preparation from the Prosecutor,147 except where specific provision is made for restrictions on disclosure to be permitted, and the Prosecutor “is dutybound to provide full disclosure even if the accused elects to remain silent or does not raise a defence”.148 The expectation is that the Accused is entitled to receive any additional material in the possession or control of the Prosecutor which a line of defence has revealed as exculpatory in nature, regardless of the stage at which the defence was raised.149 However, the Appeals Chamber has noted that it is unable categorically to rule out the possibility that if a factual situation arises in which it could be demonstrated that the Defence has unjustifiably and unreasonably held back the revelation of a line of defence or issue in circumstances that made it impossible for the Court to ensure the protection of the exculpatory witnesses, it may conceivably be possible for the accused to receive a fair trial notwithstanding the non-disclosure of certain limited material.150

The right to remain silent is not absolute. Although the ICC legal framework does not provide for a reciprocal disclosure regime and the scope and timing of the Defence’s disclosure obligations tend to differ from that of the Prosecutor, certain provisions of the Court’s legal regime 144 145

146

147 148

149

Ibid. Prosecutor v. Gbagbo & Blé Goudé, Directions on the Conduct of the Proceedings, ICC02/11-01/15-205, 3 September 2015, para. 24. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 42. Article 67(2) and rule 77. Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC-01/04-01/061433 OA11, 11 July 2008, para. 50. Ibid., para. 53. 150 Ibid., para. 54.

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impose a disclosure obligation on the Defence. For instance, under rule 79, the Defence shall notify the Prosecutor of its intent to raise an alibi or other grounds for excluding criminal responsibility.151 The rationale is to secure a fair and expeditious trial.152 Under rule 78, the Defence has an obligation to permit inspection by the Prosecutor of any books, photographs and other tangible objects in its possession or control which are intended for use at trial.153

i Right to Trial Without Undue Delay This right is linked to the principle of expeditiousness. Whether there is undue delay or certain actions that cause undue delay is a fact-driven inquiry. Article 67 does not preclude the legal re-characterisation of facts in the course of the trial under regulation 55 of the RoC, as long as such re-characterisation does not render the trial unfair.154 Although such recharacterisation may cause delay, “the Appeals Chamber does not consider that a change of the legal characterisation of the facts pursuant to Regulation 55 as such will automatically lead to undue delay of the trial”.155 Indeed, “[w]hether a re-characterisation leads to undue delay will depend on the specific circumstances of the case”.156 j Right to Examine Witnesses, to Call Witnesses and to Present a Defence Under article 67(1)(e), the Accused shall be entitled to examine, or have examined, the witnesses against him or her, and to obtain the attendance and examination of witnesses on his or her behalf under the same 151

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E.g., Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/061235-Corr-Anx1, 20 March 2008; Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/04-01/07-2388, 14 September 2010; Prosecutor v. Bemba, Decision on Defence Disclosure and Related Issues, ICC-01/05-01/08-2141, 24 February 2012. Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/0401/07-2388, 14 September 2010, para. 37; Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/06-1235-Corr-Anx1, 20 March 2008, paras. 27–41; Prosecutor v. Bemba et al., Decision on Prosecution Request for Production of Evidence in Possession of the Defence, ICC-01/05-01/13-907, 15 April 2015, para. 14. Prosecutor v. Lubanga, Decision on Disclosure by the Defence, ICC-01/04-01/06-1235Corr-Anx1, 20 March 2008, para. 30; Prosecutor v. Katanga & Ngudjolo, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, ICC-01/04-01/07-2388, 14 September 2010, para. 39. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. Ibid., para. 86. 156 Ibid.

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conditions. Moreover, the Accused shall also be entitled to raise defences and to present other evidence admissible under the Statute.157 According to Judge Pikis of the Appeals Chamber, this “right introduces an adversarial hearing”.158 An adversarial hearing affords each party the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other.159 It also enables the Defence to challenge prosecution witnesses through questioning before the judges. The right under article 67(1)(e) enforces the equality of arms, another critical component of a fair trial.160 The right entitles the Accused to be afforded a reasonable opportunity to present his or her case, including the attendance and examination of witnesses, under conditions that do not place him or her at a substantial disadvantage vis-à-vis the Prosecution.161 The Accused’s right to examine witnesses is not limited to those called by the Prosecution, but may extend to additional witnesses a Chamber may order to be called under article 69(3).162 Under rule 140 (2), the Accused has the right to be the last to examine any witness. The Accused’s right to obtain the attendance and examination of witnesses on his or her behalf and to cross-examine witnesses against him or her is not unlimited. The Court’s statutory regime enshrines parameters within which the right may be exercised. Judges also enjoy trial management discretion on the basis of which they may regulate the exercise of that right in the interest of the fair and expeditious conduct of the trial.163 Therefore, “[a]lthough the parties’ [sic] are entitled to a degree of deference in the selection and presentation of their evidence, their discretion is not unlimited. The Chamber may intervene in these matters in order to ensure the fair and expeditious conduct of the trial, as foreseen in Articles 64(2) and (9), 67(1)(c) and 69(4) of the Statute.”164 Under article 69(4), only evidence relevant to the case, taking into account, inter alia, its probative value, may be submitted by the parties 157 158

159 162

163

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Article 67(1)(e). Prosecutor v. Lubanga, Decision of the Appeals Chamber on the Joint Application of Victim a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, ICC-01/04-01/06-925, 13 June 2007, Separate Opinion of Judge Georghios M. Pikis, para. 18. Sep. Op. Ibid., fn. 46. 160 Ibid. 161 Ibid., fn. 47. Prosecutor v. Ntaganda, Decision on the Conduct of Proceedings, ICC-01/04-02/06-411619, 2 June 2015, para. 13. Prosecutor v. Bemba et al., Decision on Relevance and Propriety of Certain Kilolo Defence Witnesses, ICC-01/05-01/13-1600, 4 February 2016, para. 6. Ibid., para. 6.

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and admitted by the Chamber.165 A Chamber may thus deny the Accused’s request to call a witness on the grounds that their evidence is irrelevant in the determination of his or her culpability.166 Under article 69(7), evidence obtained (whether by the Prosecution or the Accused) in violation of the Statute or internationally recognised human rights shall not be admissible if (a) the violation casts substantial doubt on its reliability; and (b) the admission of such evidence would be antithetical to and would seriously damage the integrity of the proceedings.167 Moreover, regarding sexual crimes, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or a witness.168 Neither the Prosecution nor the Defence can question victims or witnesses regarding their prior or subsequent sexual conduct. While, as a general principle, the Accused, like the Prosecution, enjoys a degree of deference as to the manner in which he or she presents the case, such as the witnesses to call and sequencing of the witnesses, this deference is not unlimited.169 It is subject to judicial oversight. Indeed, a Chamber may control the number of witnesses, the duration of a party’s examination of each witness and witness sequencing.170 Under rule 140(2)(b), the Accused, like the Prosecution, may only question witnesses presented by the opposing party “about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters”.171 Under article 64(8) and rule 140, the Presiding Judge may give directions for the conduct of proceedings. Such directions may cover, inter alia, the manner in which parties are to examine witnesses.172 Under regulation 43 of the RoC, “[s]ubject to the Statute and the Rules, the Presiding Judge, in consultation with the other members of the Chamber, shall determine the mode and order of questioning witnesses and 165

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167

168 169

170 171

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Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. Prosecutor v. Bemba et al., Decision on Relevance and Propriety of Certain Kilolo Defence Witnesses, ICC-01/05-01/13-1600, 4 February 2016, para. 8. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 52. Ibid., para. 52. E.g., Prosecutor v. Bemba, Public Redacted Version of the Chamber’s 11 November 2011 Decision regarding the Prosecution’s Witness Schedule, ICC-01/05-01/08-1904-Red, 15 November 2011, paras. 22–36. E.g., ibid., paras. 22–36. Prosecutor v. Ntaganda, Decision on the Conduct of Proceedings, ICC-01/04-02/06-411619, 2 June 2015, para. 31 (emphasis added). E.g., ibid., paras. 21–36.

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presenting evidence so as to (a) make the questioning of witnesses and the presentation of evidence fair and effective for the determination of the truth; (b) avoid delays and ensure the effective use of time”. The Chamber may thus reject certain lines of questioning it considers irrelevant, abusive or repetitive, and may impose time limits for crossexamination.173 The Accused has a right to choose not to call evidence or witnesses.174 Where on the closure of the Prosecution case, a Chamber exercises its discretion to rule on whether the Accused has “a case to answer”,175 the Accused may call witnesses, or adduce defence (if he or she so chooses), only if a Chamber rules that he or she has a case to answer.176

III Conclusion Since its inception, to date the Appeals Chamber has elucidated various aspects of fair trial. Although some issues still require clarity, while others have so far only been addressed by other Chambers, the Presidency and the Plenary, the Appeals Chamber may be credited for clarifying critical aspects of the Court’s fair trial framework.

Jurisprudence I General Principles 1 Fairness “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 39. “Human rights [. . .] aim to sustain the core of humanity and the right to a fair trial is amongst the most consequential ones. Laxity in their protection beholds, as history teaches, great dangers for humanity, such that no 173 175

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Ibid., paras. 24, 25. 174 Ibid., para. 18. Prosecutor v. Ruto and Sang, Decision No. 5 on the Conduct of Trial Proceedings (Principles and Procedure on “No Case to Answer” Motions), ICC-01/09-01/11-1334, 3 June 2014, paras. 10–18. See generally, ibid.

280 fairness, e xpeditiousness of proceedi ngs, & rights court of law should countenance [. . .]. Necessitous circumstances, grave as they may be, do not overshadow human rights, including, no doubt, the right to liberty.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, paras. 17–18. Diss. Op. “The authority of the judges over the parties within the context of the trial does not negate any Statutory duties of the Prosecutor, but [. . .] it does mean that when there is a conflict between the Prosecutor’s perception of his duties and the orders of the Trial Chamber, the Trial Chamber’s orders must prevail. This is a fundamental criterion for any trial to be fair.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 48. “The Appeals Chamber has previously found that proper management of the disclosure regime, including on-going monitoring of the necessity of maintaining redactions, is a key part of ensuring a fair trial, holding, in logic which even more strongly applies to a Trial Chamber, that Pre-Trial Chambers have a continuing duty to review restrictions on disclosure to ensure they are necessary and sufficiently counterbalanced by other procedures.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 58. “The Appeals Chamber has had specific regard to, and emphasises the importance of, the rights of the accused to a fair trial, as detailed in article 67 of the Statute.” Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 86.

1.1

Joint Trials “[R]eference to Mr Ngudjolo Chui’s rights is in itself not improper, given that the trial is a joint one. It would have been improper if the Trial Chamber relied on Mr Ngudjolo Chui’s rights at the expense of Mr Katanga’s rights.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 83.

1.2

Remedy for Unfair Proceedings “A conditional stay of the proceedings may be the appropriate remedy where a fair trial cannot be held at the time that the stay is imposed, but where the unfairness to the accused person is of such a nature that a fair

jurisprudence trial might become possible at a later stage because of a change in the situation that led to the stay. If the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay of the proceedings may decide to lift the stay of the proceedings in appropriate circumstances and if this would not occasion unfairness to the accused person for other reasons, in particular in light of his or her right to be tried without undue delay (see article 67(1)(c) of the Statute).” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, paras. 4–5.

1.3 Administrative Detention “[T]he Appeals Chamber recalls that Mr Ngudjolo is currently detained at an administrative detention centre at Schiphol airport, in connection with his request for asylum in the Netherlands. His detention is governed by the ‘Internal Rules and Regulations for Aliens Detention Centre’ [. . .]. As such, Mr Ngudjolo is under the jurisdiction of the Dutch authorities and the Appeals Chamber is not the competent judicial body to review the detention conditions pursuant to the Internal Rules and Regulations. Rather, the Appeals Chamber’s jurisdiction is limited to an assessment of whether the conditions of his detention infringe upon Mr Ngudjolo’s fair trial rights in relation to the proceedings before this Court.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 OA, 24 April 2013, para. 8. “The Appeals Chamber finds that the conditions in the administrative detention centre [daily access to counsel, access to hard copies of his case file, unmonitored phone calls to privileged contacts and the presence of a co-detainee], as laid out by the Internal Rules and Regulations and as described by Mr Ngudjolo, do not infringe upon his fair trial rights in relation to the proceedings before this Court.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 OA, 24 April 2013, para. 13.

1.4 Legal Certainty “Under the European Convention the need for certainty is an indispensable element of a right to a fair hearing.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 59. Diss. Op. “Thus, in order to achieve certainty, a Chamber, when faced with an issue that is not regulated by a relevant legal provision, should compensate for the lack of such a provision that would otherwise provide certainty.

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282 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s In doing so, the Chamber provides the necessary certainty and predictability to the parties and it ensures that the proceedings are properly organised. This in turn guarantees due respect for the rights of the parties. In this respect, Chambers should have in place a clear policy which will indicate to the parties how it expects the proceedings to unfold and in particular, as far as the issue at stake is concerned, that parties are expected to file motions, not otherwise regulated by law, whenever they are in a position to effectively exercise their right. This is an assessment that depends primarily on the facts of each particular case.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 60. Diss. Op.

2 Expeditiousness “The Appeals Chamber observes that expeditiousness is a recurrent theme in the Court’s legal instruments. The Statute and the Rules of Procedure and Evidence place an onus on all those involved in the trial to act in a diligent and expeditious manner in the performance of their obligations. The duty applies to the Chambers of the Court, the parties and participants. As regards the accused person, where he or she is represented by counsel, the Code of Professional Conduct for Counsel enjoins counsel to represent him or her ‘expeditiously with the purpose of avoiding unnecessary delay in the conduct of the proceedings’.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 43. “The need to act expeditiously must also be viewed in the context in which the Court operates. The crimes under the Court’s jurisdiction are by their nature complex and their adjudication takes time. It is vital for cases to be properly managed from the start to forestall unnecessary delays.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 45. “An expeditious trial is beneficial to victims. It assures them of receiving justice and of going through the healing process quickly. For witnesses, it relieves them as soon as possible of the anxiety of having to appear in court to give evidence. Unreasonable delay in commencing or finalising a trial may also diminish public interest [in] and public support for, and cooperation with, the Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 46.

jurisprudence “Expeditiousness is thus an independent and important value in the Statute to ensure the proper administration of justice, and is therefore more than just a component of the fair trial rights of the accused. For this reason, article 64(2) enjoins the Trial Chamber to ensure that the trial is both fair and expeditious.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 47. “We do not disagree that there is a need for, and obligation on, Chambers to ensure that trials before the Court are conducted expeditiously. However, Chambers are equally required to ensure ‘full respect for the [other] rights of the accused’, as guaranteed not only through article 64(2) but also through an independent provision dealing with the issue – article 67. In this regard, the rights of the accused must not be infringed at the expense of expeditiousness.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 47. Diss. Op. “[T]he onus of ensuring expeditiousness falls squarely on the relevant Chamber. As a result, regardless of the conduct of the parties, it is the duty of the judicial authority in question, namely, the Trial Chamber in this instance, to ensure expeditiousness.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 50. Diss. Op. “While expeditiousness is an important component of a fair trial, it cannot justify a deviation from statutory requirements.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 55.

3 Proportionality between Fairness and Expeditiousness “In its [the Appeals Chamber’s] view, when dismissing the Defence Motion, the Trial Chamber appropriately balanced Mr Katanga’s rights and the need for expeditiousness. Requiring the accused person to act in an expeditious manner is not in itself inconsistent with full respect for his rights [. . .]. [T]he accused’s rights are given full respect as long as the accused person has been given adequate opportunity to assert them [. . .]. Mr Katanga was given an adequate opportunity to

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284 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e e d i n g s , & r i g ht s raise his alleged unlawful arrest and detention in the DRC. He did not, however, avail himself of this opportunity.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 64. “The Appeals Chamber finds that in issuing the Order of 13 November 2008, the Trial Chamber was discharging its duty to be fair to Mr Katanga, in the sense of giving him a chance to raise, inter alia, the issue of his alleged unlawful pre-surrender arrest and detention in the DRC. By inviting the parties to present relevant issues a month after it was constituted, the Trial Chamber was seeking to ensure that the trial proceeded fairly and expeditiously.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 65. “The Appeals Chamber therefore finds that the Trial Chamber respected the principle of proportionality in the present case, ensuring fairness to Mr Katanga and the expeditiousness of the proceedings when concluding that Mr Katanga had not furnished it with any convincing reasons why the Defence Motion [alleging pre-surrender unlawful arrest and detention and seeking a stay of Proceedings] was filed seven months after the Order of 13 November 2008 and declining to consider its merits.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 67. See also Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/0401/07-2297 OA10, 28 July 2010, para. 99. Diss. Op.177

II Right to be Informed of the Charges and to Adequate Time to Prepare Defence “[A]rticle 67(1)(a) of the Statute does not preclude the possibility that there may be a change in the legal characterisation of facts in the course of the trial, and without a formal amendment to the charges. This is supported by the jurisprudence of the ECtHR on article 6(3)(a) of the Convention for the Protection of Human Rights and Fundamental 177

In their Dissenting Opinion, the judges held that “[t]he Trial Chamber also erred in the exercise of its discretion by failing to properly balance the factors contained in article 64(2) and, in particular, by placing too much emphasis on the requirement for expedition without considering the rights of the accused”.

jurisprudence Freedoms and of the Inter-American Court of Human Rights on article 8(2)(b) of the American Convention on Human Rights.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 84. “[H]uman rights law demands that the modification of the legal characterisation of facts in the course of the trial must not render that trial unfair. The Appeals Chamber notes in this context that article 67(1)(b) of the Statute provides for the right of the accused person to ‘have adequate time and facilities for the preparation of the defence’. It is to avoid violations of this right that regulation 55(2) and (3) set out several stringent safeguards for the protection of the rights of the accused. How these safeguards will have to be applied to protect the rights of the accused fully [. . .] will depend on the circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 85. “[A]rticle 67(1)(a) of the Statute is not concerned with the timing of rulings on the admissibility of evidence. The accused person enjoys the right to be informed of the nature, cause and content of the charges against him. This information has already been provided to Mr Bemba: Mr Bemba was, at the pre-trial stage, served with the document containing the charges, the evidence supporting those charges and the Confirmation Decision. The evidence upon which the Prosecutor intends to rely at trial has also been disclosed to him. In addition, the Trial Chamber ordered the Prosecutor to submit an updated ‘in-depth analysis chart’, setting out in detail how the documentary evidence and witness statements related to the Prosecutor’s factual allegations. Thus, Mr Bemba has been made fully aware of the factual and legal allegations against him.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 63. “[T]he Appeals Chamber notes that article 67(1)(a) of the Statute is based on similar provisions in international human rights treaties. In respect of article 6(3)(a) of the European Convention on Human Rights, the European Court of Human Rights [. . .] and the European Commission of Human Rights (hereinafter: ‘ECommHR’) have held that the ‘cause’ of a charge are ‘the acts [the accused] is alleged to have committed and on which the accusation is based’, and that the ‘nature’ is the legal characterisation of those alleged acts. The ECommHR has held that the information as to the charges does not ‘necessarily [have to mention] the evidence on which the charge is based’. This jurisprudence thus also indicates that the right to be informed of the charges is not concerned with the timing of admissibility rulings.”

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286 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64. “[T]he Appeals Chamber notes that Mr Ngudjolo’s Counsel is providing him with hard copies of the documents which are necessary for the preparation of his defence. As such, Mr Ngudjolo does have access to his case file, albeit not electronically. The Appeals Chamber considers that the lack of electronic access to his case file does not prejudice Mr Ngudjolo’s ability to prepare his defence.” Prosecutor v. Ngudjolo, Decision on the Defence’s Urgent Application for Instructions, ICC-01/04-02/12-67 A, 24 April 2013, para. 10.

III Right of the Accused to Silence “[T]he accused has the right to remain silent and is entitled to exercise that right without silence being a consideration in the determination of guilt or innocence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 42. “The Appeals Chamber does not regard the Impugned Decision as having impacted upon the exercise by the accused of his right to silence. The points raised by the relevant part of the Impugned Decision could only arise if the accused voluntarily chose to raise a defence or issue at a stage in proceedings that was ‘unnecessarily and unjustifiably late’.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 44. “The lack of any correlation between the right to receive prosecution disclosure and any disclosure obligations of the Defence is evident in that the Prosecutor is duty-bound to provide full disclosure even if an accused elects to remain silent or does not raise a defence.” Prosecutor v. Lubanga, Judgment on Appeal against Oral Disclosure, ICC01/04-01/06-1433 OA11, 11 July 2008, para. 50. “The very invitation of the Trial Chamber to the accused to disclose his lines of defence does suggest that the right to silence is not absolute. The undoubted right of the accused to silence, without such silence drawing adverse inferences, proclaimed in the decision of the Trial Chamber [. . .] signifies [. . .] that the accused, be it at some stage of the proceedings, is under a duty to disclose his lines of defence. And if he fails to do so, there may be consequences [. . .].”

jurisprudence Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 11. Diss. Op. “The right to silence, guaranteed by article 67(1)(g) of the Statute as the fundamental right of the accused, is in no way qualified, save in relation to the specific defences prescribed in rule 79 of the Rules. The Statute does not merely guarantee the right to silence as the inalienable right of the accused, but further provides that its exercise should draw no adverse consequences for him/her. By the decision of the Trial Chamber, the exercise of the right to silence can draw adverse consequences, of which the accused is warned. The decision compromises the right of the accused to silence in a direct way.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 14. Diss. Op. “[T]he Statute assures to the accused the right ‘not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal’. The right to silence is interwoven with the presumption of innocence of the accused. The accused is presumed to be innocent. He does not have to prove his innocence. What he must do in order to free himself from the accusation is to cast doubt on its validity; it is his right to be acquitted unless the accusations against him are proven beyond reasonable doubt.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 14. Diss. Op.

IV Right of the Accused in Relation to Languages 1 Standard Required by the ICC “The language in paragraph (1)(a) and (1)(f) is similar in that the phrase ‘fully understands and speaks’ is repeated. On its face it is clear that this standard is not low. It is a language an accused must both understand and speak and this, fully understand and speak. ‘Fully’ is defined in the online Oxford English Dictionary as ‘[i]n a full manner or degree; to the full, without deficiency; completely, entirely; thoroughly, exactly, quite’. The French version of ‘fully’ in the Statute is ‘parfaitement’ which is defined in Le Nouveau Petit Robert, Dictionnaire Alphabétique et Analogique de la Langue Française’ as, inter alia, ‘[d] une manière parfaite, [s]avoir parfaitement une langue’ and ‘[a]bsolument, complètement, entièrement, être parfaitement hereux [. . .]’. It suffices to state that the meaning of this provision based on these definitions provides that the standard that must be required under article 67 is very high.”

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288 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 40. “Given the addition of the word fully, and the drafting history, the standard must be high. Therefore, the language requested should be granted unless it is absolutely clear on the record that the person fully understands and speaks one of the working languages of the Court and is abusing his or her right under article 67 of the Statute. An accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer. If there is any doubt as to whether the person fully understands and speaks the language of the Court, the language being requested by the person should be accommodated. Ultimately, the Chamber in question is responsible for ensuring the fair trial of the accused.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 61. “‘[A]rticle 67(1)(a) and (f) of the Statute relates to the language ability and knowledge of the suspect and/or accused, not of his/her [c]ounsel and/or defence team’.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 11, citing Prosecutor v. Mbarushimana, Decision on the Defence Request for Reconsideration, ICC-01/04-01/10-505 OA4, 23 March 2012, para. 10. “[T]here is no general requirement that filings of parties and participants submitted in English be translated into French, or vice versa [. . .].” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 10. “[N]one of the documents of which translations have been requested [the Prosecution’s Document in Support of the Appeal, the Decision Granting Leave to Appeal and the Dissenting Opinion of Judge Fernandez de Gurmendi to the Decision adjourning the hearing on the confirmation of charges pursuant to article 61(7)(c)(i) of the Rome Statute] may be considered to be documents which would serve to inform Mr Gbagbo of the ‘nature, cause and content of the charge’ against him within the meaning of article 67(1)(a) of the Statute. Similarly, given the nature and context of the present appeal, the Appeals Chamber does not consider that the requested translations into the language that Mr Gbagbo fully understands and speaks ‘are necessary to meet the requirements of fairness’ within the meaning of article 67(1)(f) of the Statute.”

jurisprudence Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 12. “The Appeals Chamber considers that Mr Gbagbo’s counsel must be in a position to explain to him the issues raised in the present appeal. In this regard, the Appeals Chamber notes the Prosecutor’s submission that Mr Gbagbo’s defence team has in the past demonstrated that it is perfectly capable of understanding and responding to decisions by Chambers and submissions of the Prosecutor and Registrar that were filed in English. The Appeals Chamber notes the finding of the Single Judge of Pre-Trial I that ‘based on the previous course of proceedings in this case, [. . .] the unavailability at present of an official French translation of the Decision does not affect the ability of Mr Gbagbo’s Defence to properly represent his interests’.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 13.

2 Relationship between the ICC Standard and the Standards of Other Courts “The rights set out in paragraph (1)(a) and (f) are not dissimilar to comparable provisions to be found in legal texts associated with other courts and tribunals. However, those legal texts, contrary to article 67 of the Statute, do not, in relevant part, include the word ‘fully’.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 42. “All of these provisions use the term ‘understands’ or ‘understand or speak’; article 67 of the Statute refers to ‘fully understands and speaks’. As a result, the assistance to be derived from any jurisprudence interpreting these provisions is limited in light of the differences between the relevant provisions. The jurisprudence does not offer direct guidance as to what the standard under article 67 of the Statute should be; it indicates how the standard ‘understands’ has been implemented in practice at the international level.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 48. “There seems to have been an intention to grant to the accused before the Court, rights of a higher degree than in other courts referred to. There must be a difference between an entitlement to a language one understands or speaks (or simply understands) and a language one fully understands and speaks.”

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290 f a i r n e s s , ex p edi t i o us n es s o f p roc eed ings, & rights Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 49. “[T]he Appeals Chamber considers that the standard applicable under the Statute is high – higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR. To give effect to this higher standard must mean that an accused’s request for interpretation into a language other than the Court’s language must be granted as long as he or she is not abusing his or her rights under article 67 of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Language Appeal, ICC-01/ 04-01/07-522 OA3, 27 May 2008, para. 62.

V Right of the Accused to Trial without Undue Delay/Expeditious Proceedings “In face of accusation the rights of a person should ideally be determined immediately, if possible. Reality makes this unachievable. This is one of the principal reasons that human rights prescribe that the accused should be tried without delay or within a reasonable time. The right of the accused to trial without undue delay is assured as his/her fundamental right by article 67(1)(c) of the Statute, in pari passu with the other rights safeguarded to the accused by the same article. The time factor is in itself an element in the configuration of a fair trial [. . .]. Undue delay is evidenced by the very fact of stay of the proceedings [. . .]. [A]menity to hold a fair trial is determined from the viewpoint of the time perspective at which the trial should be held.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 14. Diss. Op. “Not only is trial without undue delay assured as a right of the accused, but the Statute goes a step further. Article 64(2) of the Statute binds the Court to hold, not only a fair, but an expeditious trial too. Expeditiousness denotes the speedy doing or transaction of something. The standard introduced by article 64(2) of the Statute is more stringent than the one imported by the requirement of trial being held without undue delay, which is incorporated in the notion of a fair trial; a standard that the Court is duty bound to uphold.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on the Release of Lubanga, ICC-01/04-01/06-1487 OA12, 21 October 2008, para. 15. Diss. Op. “The timelines of the proceedings is singled out in mandatory terms as a distinct element of a trial under the Statute, not only as an attribute to a fair trial.”

jurisprudence Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 31. Diss. Op. “The object of article 64(2) is to ensure that the trial is managed properly and expeditiously whilst giving full respect to the rights of the accused. However, full respect for the rights of the accused does not mean that a Trial Chamber may not control the manner in which an accused person acts in the proceedings. Under article 64(2) of the Statute, the Trial Chamber has the power to regulate the conduct of the parties and participants so as to ensure, among other considerations, that such conduct does not cause undue delay to the proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 53. “Requiring the accused person to act in an expeditious manner is not in itself inconsistent with full respect for his rights [. . .]. [T]he accused’s rights are given full respect as long as the accused person has been given the adequate opportunity to assert them.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 64.

VI Right of the Accused to Legal Representation “The right of the accused to legal representation by counsel as well as the corresponding right of a person against whom charges have been laid is safeguarded as his/her fundamental right under provisions of article 67(1) (d) of the Statute and rule 121(1) of the Rules of Procedure and Evidence. Such a right is a universally recognized human right (see article 21(3) of the Statute) [. . .].” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 12. “The Regulations of the Court must be read subject to the fundamental right of the accused to legal representation.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 13. “The right to legal representation by counsel of one’s choice like every other human right of a litigant must be exercised in a manner attuned to and consistent with the principles of a fair trial, with which it is interwoven, and within the framework of the Statute, the Rules of Procedure and Evidence and the Regulations of the Court. Hence, it must be

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292 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s exercised with due regard to the requisites of a fair trial, including those designed to assure that the proceedings are conducted within a reasonable time.” Prosecutor v. Lubanga, Reasons for the Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, para. 4. “What cannot be denied to the accused or a person under charge is a reasonable opportunity to appoint counsel of their choice and affording them adequate time and facilities to prepare their defence.” However, “[t]he right to choose Counsel for the representation of a person in legal proceedings must, like every right of the accused or the person under charge, be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, paras. 13, 15. “Article 67(1)(d) provides that the accused person shall have the right to be present at the trial and provides for a right to legal assistance. The first and second sentences of rule 121(1) of the Rules of Procedure and Evidence extend these rights to persons who appear before the Pre-Trial Chamber pursuant to a warrant of arrest or summons to appear.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 65. “The plain meaning of this provision [rule 121(1)] clearly shows that the ‘person’ referred to in the second sentence of the provision refers to persons appearing before the Pre-Trial Chamber, and not to those for whom warrants of arrest or summons to appear have been issued, but who have not yet appeared before the Court.” As a result, “the Pre-Trial Chamber was not obliged to appoint counsel to represent the four suspects” in admissibility proceedings when those suspects had not yet been arrested. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 66, 68. “[R]egulation 83 of the Regulations of the Court provides a specific and exhaustive procedure for the determination and review thereof of the scope of legal assistance to which an accused may be entitled.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 15.

jurisprudence

VII Right of the Accused to Be Heard and Right to a Reasoned Decision 1

Denial of the Right to be Heard

“This [Mr Katanga’s right to be heard] is a fundamental right that is guaranteed at the national level, such as in the procedural due process context, and also at the international level.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 56. Diss. Op. “[T]he right to be heard is not absolute and may be subject to limitations [. . .]. In the absence of adequate opportunity to be heard, a fundamental right, such as the right to a fair hearing, is only restricted in human rights and ad hoc tribunal jurisprudence through a proportionality assessment that looks to whether the restriction is in service of a sufficiently important objective that must impair the right no more than is necessary to accomplish the objective.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 57. Diss. Op.

2 Right to a Reasoned Decision “[T]he 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 [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 30. “The ex parte character of the proceedings [does] not reduce the need for the Impugned Decision to be properly reasoned, but [makes] the provision of proper reasoning more necessary because the Appellant [cannot] rely on the context in which the Impugned Decision was made to determine how the Pre-Trial Chamber reached its decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 22; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 33.

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294 f a i r n e s s , e x p ed i t i o u s ne s s of p r o c e ed i ng s , & r i g ht s “The extent of the reasoning will depend on the circumstances of the case, but it is essential that it indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 46, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the First Redaction Decision, ICC-01/04-01/06-773 OA5, 14 December 2006, para. 20; Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 10. Diss. Op. “[D]espite those shortcomings of the Impugned Decision [lack of detailed analysis and reference to footnotes instead of stated conclusions], the Appeals Chamber does not consider that the decision is so lacking in reasoning that it can be said that the Pre-Trial Chamber failed to comply with its obligations to provide a reasoned decision and therefore made an error of law.” Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 48. “Reasoning is at the heart of a judicial decision and an important aspect of the right to a fair trial. Articles 64(2) and 67(1) of the Statute require the Court to conduct a fair trial. Beyond that, article 21(3) of the Statute stipulates that the legal texts of the Court must be interpreted and applied in accordance with internationally recognised human rights, to which the principle of a fair trial belongs.” Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 8. Diss. Op. “The need to have reasoned judicial decisions is supported by the jurisprudence of human rights bodies [. . .]. The jurisprudence and opinions of all these bodies clarify that providing reasoning is a requirement of a fair trial that contributes to the acceptance of the decision by the parties and to preserving the rights of the defence. It requires that courts indicate with sufficient clarity the grounds upon which they base their decisions. While they are not obliged to give a detailed answer to every argument raised, the courts must base their reasoning on objective arguments and it must be clear from the decision that the essential issues of the case have been addressed. Further, and importantly, reasoning is the basis for raising an appeal and allows the appellate body to review a decision.”

jurisprudence Prosecutor v. Gbagbo, Dissenting Opinion of Judge Ušacka in the Judgment on Interim Release, ICC-02/11-01/11-278-Red OA, 26 October 2012, para. 9. Diss. Op. “[I]n the absence of sufficient reasoning in the Decision of 13 July 2012, an assessment of ‘changed circumstances’ in the current view of detention is problematic.” Prosecutor v. Gbagbo, Separate Opinion of Judge Kourula in the Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Anx1 OA4, 29 October 2013, para. 2. Sep. Op. See also Prosecutor v. Gbagbo, Dissenting Opinion of Judge Kourula in the Judgment on Interim Release, ICC-02/11-01-11-278-Red OA, 26 October 2012, para. 2. Diss. Op.

VIII Defence Strategy or Discretion to Present its Case “While a party has a discretion to organise and conduct his or her case in a manner that he or she deems appropriate, that discretion is not absolute [. . .]. [T]he discretion may be circumscribed by the Statute, Rules of Procedure and Evidence and the Regulations of the Court. Additionally, the Appeals Chamber must also emphasise that the Trial Chamber’s obligation to regulate the proceedings to ensure that the trial is fair and expeditious under article 64(2) of the Statute. Thus, while the parties are allowed some leeway in deciding how to conduct their cases, this cannot override the Trial Chamber’s said obligation. The defence strategy must respect both the procedural framework established by the Court’s legal instruments and the overall interests of the administration of justice.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 77. “The Appeals Chamber sees merit in the Trial Chamber’s conclusion that strategic reasons in themselves could not justify the untimely filing of the motion.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 79. “[W]e do not find that a counsel has an unlimited right to strategise at the expense of the trial as a whole, but he must have a certain right. There is a difference between strategic decisions that are made as part of an overall defence strategy to the case and decisions that amount to strategic efforts to undermine the conduct of proceedings.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of

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296 fairness, e xpeditiousness of proceedi ngs, & rights Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 89. Diss. Op.

IX Stay of Proceedings for Denial of Fairness or Abuse of Process “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC–01/04-01/06-772 OA4, 14 December 2006, para. 39; Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10.

1 Legal Basis for a Stay of Proceedings: Article 21(3) “Abuse of process is a principle associated with the administration of justice [. . .]. 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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 26. “[In application of this principle], [a]uthority 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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 27. “The doctrine of abuse of process as known to English law finds no application in Romano-Germanic systems of law. The principle encapsulated in the Latin maxim male captus bene detentus has received favourable reception [in a number of cases].178 But where serious violations of the fundamental rights of the accused or international law are involved, the rule is mitigated.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 33, see generally paras. 26–33.

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The Chamber noted that “[t]he principle received a favourable reception in the French case of Re Argoud; a less enthusiastic one in the old French case of Re Jollis. The German Constitutional Court, too, appears to have endorsed like principles to those approved in Re Argoud”.

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“Jurisdiction apart, admissibility is the only ground envisaged by the Statute for which the Court may validly refrain from assuming or exercising jurisdiction in any given cause. Abuse of process is not listed as a ground for relinquishing jurisdiction in article 17 of the Statute.”179 Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 34. See also Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, paras. 100–101. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 35. See also Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 36. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 37. 179

It challenges merely the exercise of jurisdiction once jurisdiction itself is affirmed insofar as the claim of abuse of process represents a sui generis application, an atypical motion. See also the digested cases under Chapter B, Jurisdiction and Admissibility, section I, Jurisdiction of the Court, above.

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2 Principles Guiding a Stay of Proceedings “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 37. “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 [. . .]. 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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 39. See also Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. “The power of a court of law to stay proceedings should be sparingly exercised [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 31. “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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 30. “Room for its exercise [stay of proceedings] 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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 31. “‘[I]f, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved

jurisprudence during the trial process, it is necessary [. . .] that the proceedings should be stayed.’” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 76. “[T]he Court’s legal instruments do not bar an accused person from bringing a motion challenging his or her alleged unlawful pre-surrender arrest and detention with a view to seeking a stay of proceedings.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 48, citing Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, paras. 36–39.

3 Circumstances in which a Stay of Proceedings has been Contemplated “Instances of stay of proceedings on grounds of the principle 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.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 29. A stay of proceedings was upheld by the Appeals Chamber where “a large number of documents containing potentially exculpatory information or information relevant to the preparation of the defence was in the possession of the Prosecutor, but could not be disclosed to [the accused]. Nor could the Trial Chamber have access to the documents in order to assess whether a fair trial could be held even without the disclosure of the documents”. Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 97.

4 Circumstances in which the Stay of Proceedings has not been Upheld by the Appeals Chamber 4.1 Refusals to Comply with Orders of a Chamber “[T]he Prosecutor’s refusal to comply with or to be bound by the orders of the Trial Chamber [related to matters of protection of those affected by their interaction with the Court, in the sense that they had dealings with the Prosecution] extended to a significant part of the trial and concerned issues of the trial’s fundamental fairness. It threatened not only Mr Lubanga Dyilo’s right to be tried without undue delay but also the fairness of the proceedings as a whole. If a Trial Chamber loses control of such

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300 f a i r n e ss , ex p edi t i o us n es s o f p roc eed ings, & rights a significant and fundamental part of proceedings because of the Prosecutor’s refusal to comply with its orders, it would indeed be impossible to ensure a fair trial, and a stay of proceedings would then be justified.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 58. “However, the Appeals Chamber finds that the Trial Chamber had not yet lost control of the proceedings in this case. The Appeals Chamber notes that article 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when faced with the deliberate refusal of a party to comply with its directions [. . .]. [S]anctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. “Recourse to sanctions enables a Trial Chamber, using the tools available within the trial process itself, to cure the underlying obstacles to a fair trial, thereby allowing the trial to proceed speedily to a conclusion on its merits. Doing so, rather than resorting to the significantly more drastic remedy of a stay of proceedings, is in the interests, not only of the victims and of the international community as a whole who wish to see justice done, but also of the accused, who is potentially left in limbo, awaiting a decision on the merits of the case against him by the International Criminal Court or another court.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60. “In predicating the stay of proceedings on its perceived loss of control over proceedings from that point forward [because of the Prosecutor’s evinced intention not to comply with orders of the Chamber on matters of protection], the Trial Chamber did not conclude that a fair trial already had become irreparably impossible. To the contrary, the Trial Chamber considered that, if the circumstances changed, a fair trial could conceivably become possible once again. There was, as such, no obstacle to imposing sanctions and allowing them a reasonable opportunity to induce compliance and, therefore, to change the very circumstances which made a fair trial prospectively impossible [. . .]. It is the view of the Appeals Chamber that, before ordering the stay of proceedings, the Trial Chamber should have imposed sanctions and given such sanctions a reasonable time to bring about their intended effects.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 61.

j u r i s p r ud e n c e “The Appeals Chamber does not preclude the possibility that, in some situations, a fair trial may have become irreparably impossible, including for reasons unrelated to the refusal of a party to comply with its orders, and that a stay would be justified before the imposition of sanctions.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, p. 26, fn. 135.

4.2 To Assist Litigation “No need arises to do so [to stop the proceedings where justice could not be done] in this case inasmuch as what the application of Mr Lubanga Dyilo really aims at is a respite in order to submit the documents due with the benefit of counsel’s help and advice. Effective representation is sought in order to enable him to fulfil [sic] his obligations in the litigation in hand. The Regulations of the Court acknowledge in regulation 35(2) power to a Chamber to extend the time set down by its directions for the presentation of a party’s case before it.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 11.

5 Permanent Stay versus Conditional Stay of Proceedings “Stay of proceedings for an indefinite or indeterminate period of time is an extreme measure, not lightly countenanced in any jurisdiction.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 10. A permanent stay of proceedings was considered in the context of allegations that the accused had been “illegally detained and ill-treated by the Congolese authorities and that the Prosecutor had illegally colluded with these authorities, in contravention of the rights of the Appellant. The nature of the allegations was such that, if established, the breaches of the rights of the Appellant might have led to an objectively irreparable and incurable situation. Accordingly, [. . .] a stay of proceedings imposed on such a basis would be absolute and permanent.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 79. “If the unfairness to the accused person is of such nature that – at least theoretically – a fair trial might become possible at a later stage because of a change in the situation that led to the stay, a conditional stay of the proceedings may be the appropriate remedy. Such a conditional stay is not entirely irreversible: if the obstacles that led to the stay of the proceedings fall away, the Chamber that imposed the stay may decide to lift it in appropriate circumstances and if this would not occasion unfairness to

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302 f a i r n e s s , e x p e d i t i o u s n es s of p r o c e e d i n g s , & r i g ht s the accused person for other reasons, in particular in light of his or her right to be tried without undue delay (see article 67(1)(c) of the Statute). If a trial that is fair in all respects becomes possible as a result of changed circumstances, there would be no reason not to put on trial a person who is accused of genocide, crimes against humanity or war crimes – deeds which must not go unpunished and for which there should be no impunity [. . .].” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 80. “At the same time, the right of any accused person to be tried without undue delay (article 67(1)(c) of the Statute) demands that a conditional stay cannot be imposed indefinitely. A Chamber that has imposed a conditional stay must, from time to time, review its decision and determine whether a fair trial has become possible or whether, in particular because of the time that has elapsed, a fair trial may have become permanently and incurably impossible. In the latter case, the Chamber may have to modify its decision and permanently stay the proceedings.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 81.

I Offences against the Administration of Justice and Misconduct before the Court Commentary

g e o r g e m u g w a ny a Article 70 of the Statute grants the Court jurisdiction over “offences against the administration of justice”, or what the ad hoc tribunals refer to as “contempt of court”.1 These offences are a means of protecting the Court against efforts to undermine the reliability of evidence presented before it and the impartiality of its decision-making process.2 There is no immunity for these offences. The Presidency has held that even counsel practising before the Court and persons supporting such counsel, are liable for prosecution if they engage in the proscribed conduct.3 1

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See rule 77(A), of the respective Rules of Procedure and Evidence of the UN Tribunal for the former Yugoslavia, the UN Tribunal for Rwanda and the Special Court for Sierra Leone. Piragoff, D., “Article 70: Offences against the Administration of Justice”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2008), p. 1338. Situation in the Central African Republic, Decision on the Urgent Application of the Single Judge of Pre-Trial Chamber II of 19 November 2013 for the Waiver of the Immunity of Lead Defence Counsel and the Case Manager for the Defence in the Case of The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-3001, 20 November 2013, paras. 8–13. Counsel or persons supporting such counsel would not benefit from the Headquarters Agreement between the International Criminal Court and the Host State (The Hague, 7 June 2007, in force 1 March 2008, ICC-BD/04-01-08) or the Agreement on the Privileges and Immunities of the International Criminal Court (New York, 9 September 2002, in force 22 July 2004, ICC-ASP/1/3) for conduct depicted in article 70. The immunity enjoyed under these agreements is available only to the extent necessary for the independent performance of their functions. The legitimate functions to be performed by counsel and persons assisting them do not extend to the types of conduct proscribed under article 70. See para. 10. In any case, to the extent that counsel may claim any immunity, the Presidency has a duty to waive it if (a) it would impede the course of justice, and (b) it can be waived without prejudice to the purpose for which it was accorded, see paras. 11–13. Here, granting counsel immunity from arrest or detention may impede the course of justice “were those persons [. . .] to flee and evade investigation or prosecution for article

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offences ag ainst the adminis tration

So far, the Appeals Chamber has not yet elaborated on the substantive elements of the article 70 offences.4 Only Pre-Trial Chamber II and Trial Chamber VII, in the Bemba et al. case, have elucidated the substantive elements of three offences: giving false testimony under an obligation pursuant to article 69; presenting false or forged evidence; and corruptly influencing a witness.5 Further litigation before the Appeals Chamber on the elements of these crimes is still likely. Indeed, the first appeals from convictions for article 70 offences that have recently been submitted to the Appeals Chamber appear to contest aspects of the substantive elements of some of these offences.6 The Appeals Chamber has, however, resolved some procedural matters as part of its interlocutory litigation. This includes the mandate of the Prosecutor to initiate and prosecute these offences, and the overall seriousness of the offences vis-à-vis the crimes of genocide, crimes against humanity and war crimes. The following materials comment on these two matters. A brief commentary is also made on misconduct before the Court (article 71 of the Statute).

I The Prosecutor’s Mandate to Initiate Investigations and Prosecutions The power to initiate or conduct investigation into article 70 offences is vested in the Prosecutor, and not in any other entity.7 In contrast

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70 offences [. . .]”, see para. 12. Concerning condition (b), the waiver of the immunity cannot prejudice the purpose for which the immunity was accorded because the commission of article 70 offences falls outside the purpose for which such immunities are normally granted to counsel, see para. 13. At the date of the delivery of this manuscript for publication, the appeal briefs had been submitted in Prosecutor v. Bemba et al., ICC-01/05-01/13. Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/05-01/13-749, 11 November 2014, paras. 28–30; Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Judgment Pursuant to Article 74 of the Statute, ICC-01/05-01/13-1989-Red, 19 October 2016, paras. 19–50. See, e.g., Prosecutor v. Bemba, Kilolo, Mangenda & Arido, Public Detailed Notice of Appeal, ICC-01/05-01/13-2017, 14 February 2017, para. 20(c) (Mangenda notified his intention to challenge the Trial Chamber’s alleged failure “to distinguish between indications of permissible witness preparation and criminal coaching”. In addition, he claims that the Chamber “erred in inferring that reporting on witnesses’ performance in court was indicative of a coaching scheme as opposed to a lawful scheme to effectively defend [the accused]”). Prosecutor v. Lubanga, Decision on the Request of the Defence in Relation to Investigations Conducted Pursuant to Article 70 of the Statute, ICC-01/04-01/06-3114, 17 June 2014, para. 19.

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to the ad hoc tribunals,8 not even a Chamber has this mandate, even if it initially alerts the Prosecutor to a potential crime perpetrated before it. Rather, pursuant to rule 165, “the Prosecutor may initiate and conduct investigations with respect to offences defined in article 70 [. . .] on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source. It follows that the decision whether to initiate or conduct investigations on alleged offences as provided by article 70 of the Statute lies within the purview of the Prosecutor.”9 The Lubanga case provides a helpful example of this relationship in practice. There, a Trial Chamber had communicated to the Prosecutor pursuant to article 70 of the Statute and rule 165 of the Rules its findings in the decision on conviction that two Prosecution witnesses may have encouraged, persuaded or assisted witnesses to give false evidence.10 The Chamber’s communication did not amount to an order that the Prosecutor initiate or carry out an investigation – the Prosecutor retained discretion to pursue the matter further. In the Lubanga case, the Prosecutor chose to engage an independent consultant to examine available evidence, and on the basis of his report, and the Prosecutor’s own assessment, the Prosecutor chose not to pursue further investigations and/or prosecution of the named persons.11 The Appeals Chamber did not intervene in these matters, and dismissed Lubanga’s requests to do so.12

II Gravity of Article 70 Offences vis-à-vis Articles 5–8 Crimes Article 70 offences are proscribed as offences “against the administration of justice”,13 and are independent from articles 5–8 crimes. Article 70(1) provides that offences against the administration of justice must be committed intentionally. The Appeals Chamber has held that while they are strictly not as grave as articles 5–8 crimes, article 70 offences 8

9

10

See the respective rule 77(C) in the ICTY, Rules of Procedure and Evidence (as amended 8 July 2015), in force 14 March 1994, UN Doc IT/32/Rev.50; ICTR, Rules of Procedure and Evidence (as amended 13 May 2015), in force 29 June 1995, UN Doc ITR/3/REV.1; and SCSL, Rules Of Procedure and Evidence (as amended 31 May 2012), 16 January 2002, in force 12 April 2002. Prosecutor v. Lubanga, Decision on the Request of the Defence in Relation to Investigations Conducted Pursuant to Article 70 of the Statute, ICC-01/04-01/06-3114, 17 June 2014, para. 19. Ibid., para. 20. 11 Ibid., paras. 12–15. 12 Ibid., para. 23. 13 Article 70(1).

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are “certainly serious in nature”.14 According to Pre-Trial Chamber II, article 70 offences “threaten or disrupt the overall fair and efficient functioning of the justice in the specific case to which they refer” and “ultimately undermine the public trust in the administration of justice and the judiciary”.15

III Misconduct before the Court Article 71 of the Statute empowers the Court to sanction “persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions”. Unlike article 70 offences, the Court may only impose “administrative measures” other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence. The purpose of article 71 sanctions is not merely to punish, but to ensure that a Chamber retains control over the proceedings which is necessary to achieve a fair trial. In the view of the Appeals Chamber, article 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when 14

15

Prosecutor v. Bemba et al., Judgment on the Appeal of Mr Aimé Kilolo Musamba against the Decision of Pre-Trial Chamber II of 14 March 2014 entitled “Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/0501/13-588 OA2, 11 July 2014, para. 64. Prosecutor v. Bemba et al., Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/05-01/13-259, para. 23. On appeal against this decision, the Appeals Chamber did not disturb these findings. See Prosecutor v. Bemba et al., Judgment on the Appeal of Mr Aimé Kilolo Musamba against the Decision of PreTrial Chamber II of 14 March 2014 entitled “Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/05-01/13-588 OA2, 11 July 2014, para. 65. The ad hoc tribunals have similarly emphasised that the prosecution of contempt crimes entails preventing the obstruction, frustration, prejudice or abuse of a court’s ability to exercise jurisdiction over core crimes and preserving the integrity and dignity of the judicial process. For the ICTY, see, e.g., Prosecutor v. Duško Tadić, IT-94-1-A-R77, Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, paras. 33, 16; Prosecutor v. Blagoje Simić et al., IT-95-9-R77, Judgment in the Matter of Contempt Allegations Against an Accused and his Counsel, 30 June 2000, para. 91; Prosecutor v. Dragan Jokić, IT-05–88-R77, Judgment on Allegations of Contempt, 27 March 2009, para. 38; Prosecutor v. Beqa Beqaj, IT-03-66-T-R77, Judgment on Contempt Allegations, 27 May 2005, paras. 13, 14. For the ICTR, see, e.g., Prosecutor v. GAA, ICTR-07-90-R77-I, Judgment and Sentence, 4 December 2007, para. 10; Prosecutor v. Leonidas Nshogoza, ICTR-07-91-T, Judgment, 7 July 2009, para. 218. For the SCSL, see, e.g., Independent Counsel v. Samura, SCSL-2005-01, Judgment in Contempt Proceedings, 26 October 2005, para. 15.

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faced with the deliberate refusal of a party to comply with its directions. The purpose of such sanctions is not merely, as the Prosecutor suggests, to punish the offending party, but also to bring about compliance.16

This, according to the Appeals Chamber, is evidenced by rule 171(4) of the Rules of Procedure and Evidence, which provides that, in relation to fines imposed under article 71, “in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative”. Given their specific inclusion in the Statute and Rules of Procedure and Evidence, sanctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.17

While misconduct before the Court, such as the deliberate refusal of a party to comply with the Court’s orders, is serious because it may threaten the fairness of the trial, a Chamber “should seek to bring about that party’s compliance through the imposition of sanctions under article 71 before resorting to imposition of a stay of proceedings”.18

Jurisprudence “[A]rticle 71 of the Statute provides Trial Chambers with a specific tool to maintain control of proceedings and, thereby, to ensure a fair trial when faced with the deliberate refusal of a party to comply with its directions. The purpose of such sanctions is not merely, as the Prosecutor suggests, to punish the offending party, but also to bring about compliance. This is evidenced by rule 171(4) of the Rules of Procedure and Evidence, which provides that, in relation to fines imposed under article 71, ‘in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative’. Given their specific inclusion in the Statute and Rules of Procedure and Evidence, sanctions under article 71 and rule 171 are the normal and proper means to bring about compliance in the face of refusals to follow the orders of a Chamber.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. “Recourse to sanctions enables a Trial Chamber, using the tools available within the trial process itself, to cure the underlying obstacles to a fair trial,

16

17

Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 59. Ibid., para. 59. 18 Ibid., para. 60.

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offences ag ainst t he admi nis tration thereby allowing the trial to proceed speedily to a conclusion on its merits.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60. “[T]he Appeals Chamber finds that, to the extent possible, a Trial Chamber faced with a deliberate refusal of a party to comply with its orders which threatens the fairness of the trial should seek to bring about that party’s compliance through the imposition of sanctions under article 71 before resorting to imposition of a stay of proceedings.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 60.

J Conduct of Trials

Commentary

reinhold gallmetzer The conduct of trial proceedings was one of the most controversial issues during the drafting of the Statute and the Rules. A participant in the negotiations characterised the discussion as a “clash of cultures between the civil law and the common law”.1 Because it was difficult to reach agreement, many aspects are not regulated in detail by the Statute or the Rules but are instead left to be determined by the judges, exercising their discretion within the legal framework. According to the Appeals Chamber, the “trial” is “[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding”.2 Further, “a reading of article 58(1)(b)(i) in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter”.3 In the first fifteen years of the Court’s operation, very few aspects regarding the conduct of trial proceedings have been litigated before the Appeals Chamber. Nevertheless, the emerging jurisprudence of the Appeals Chamber provides some guidance on aspects such as (i) the admission of evidence; (ii) modification of the legal characterisation of facts pursuant to regulation 55 of the RoC; (iii) trial in the presence of the accused under article 63(1) and excusal from trial; and (iv) whether the Trial Chamber is obliged to entertain a “no case to answer” motion.

1

2

3

Lewis, P., “Trial Procedure”, in Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational: New York, 2001), pp. 547–551. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/083249-Red OA11, 20 May 2015, paras. 36–37. Ibid., para. 40.

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I Admission of Evidence The Statute’s approach vis-à-vis the admission of evidence is to eschew most of the technical rules on admissibility,4 in favour of a system of utmost flexibility.5 The provisions in the Statute and the Rules are brief and their purpose is to promote fair and expeditious trials, giving the Trial Chamber wide discretionary power and flexibility to achieve this goal. Article 69(4) provides generally that the Court “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 [. . .]”.6 While under rule 63(2) the Trial Chamber may freely assess all evidence submitted in order to determine its relevance or admissibility in accordance with article 69(4), it may not impose a requirement of corroboration,7 and it shall not apply national laws governing evidence, other than in accordance with article 21.8 The following seven principles emerge from the Appeals Chamber’s jurisprudence on the admission of evidence: First, a Trial Chamber’s decision to admit evidence is a discretionary decision under articles 64(9)(a) and 69(4),9 in which the Trial Chamber must assess whether evidence is relevant, has probative value or would be prejudicial to the accused. In addition, it must determine whether evidence was obtained in violation of the Statute or human rights, or relates to the prior or subsequent sexual conduct of a victim or witness.10 Second, the Trial Chamber must provide a reasoned decision for the admission of each individual item of evidence and explain how the relevant criteria apply to that item.11 Third, under article 69(4), the Trial Chamber has the power to rule on relevance or admissibility when evidence is submitted to the Trial Chamber and then to determine the weight to be attached to the evidence at the end of the trial. Alternatively, the Trial Chamber may defer its consideration of the criteria relevant to the admissibility of evidence until 4

5

6 9

10

The only rules on exclusion of evidence are found in article 69(7) (evidence obtained by means of a violation of the Statute or internationally recognised human rights) and rule 71 (evidence of prior or subsequent sexual conduct of a victim or witness). Piragoff, D. K., “Evidence”, in Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (Transnational: New York, 2001), p. 351. 7 8 See also article 64(9)(a). Rule 63(4). Rule 63(5). Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. Ibid., para. 53. 11 Ibid., paras. 53, 59.

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the end of the proceedings, making it part of its assessment when determining the guilt or innocence of the accused person.12 Irrespective of the approach the Trial Chamber chooses, it will have to consider the relevance, probative value and the potential prejudice of each item of evidence at some point in the proceedings – when evidence is submitted, during the trial, or at the end of the trial.13 Fourth, the submission of the evidence and its discussion at trial are prerequisites under article 74(2) for evidence to be taken into consideration by the Trial Chamber for its judgment. To that end, it is insufficient for a party to merely add an item on its list of evidence.14 Fifth, article 69(2) establishes a general rule that witness evidence at trial must be provided by way of in-court personal testimony:15 [t]he importance of in-court personal testimony is that the witness giving evidence under oath does so under the observation and general oversight of the Chamber. The Chamber hears the evidence directly from the witness and is able to observe his or her demeanour and composure, and is also able to seek clarification on aspects of the witness’ testimony that may be unclear so that it may be accurately recorded.16

However, the Statute and the Rules allow for exceptions to this rule. For instance, witness evidence can be admitted in documentary form as a measure under article 68 “to protect witnesses, victims or an accused”.17 In addition, the Appeals Chamber acknowledged that rule 68, the scope of which has recently been broadened by the Assembly of States Parties,18 sets out exceptions to the general principle of orality of witness evidence.19 Rule 68 (both the former and current version) constitutes lex specialis to other general provisions regarding the admission of documentary evidence, such as article 69(2) and (4).20 In any event, when admitting witness evidence in documentary form, the Trial Chamber must ensure that this is not inconsistent with the rights of the accused or the fairness of the proceedings. Factors that may be taken into consideration to that end include: (i) whether the evidence relates to issues that are not materially in dispute; (ii) whether that evidence is not 12 17 18

19

20

Ibid., para. 37. 13 Ibid. 14 Ibid., paras. 43–45. 15 Ibid., para. 76. 16 Ibid. Ibid., para. 77. Amendments to the Rules of Procedure and Evidence, 27 November 2013, ICC-ASP/12/ Res.7. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 77. Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 86.

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central to core issues in the case, but only provides relevant background information; and (iii) whether the evidence is corroborative of other evidence.21 Sixth, the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, namely, the Prosecutor and the Defence.22 Seventh, the Trial Chamber must ensure that the Prosecution and the Defence can raise objections to the admission of evidence before the Trial Chamber rules on its admission.23

II Modifying the Legal Characterisation of Facts Regulation 55 of the RoC provides that the Trial Chamber, in its decision under article 74, may change the legal characterisation of the facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges. This provision has proved to be critical in the proceedings before the Court. It has been applied in the first two cases concluded thus far.24 To limit the use of regulation 55 of the RoC, the Prosecution has increasingly resorted to presenting cumulative legal characterisations of the charges, in particular with respect to the forms of participation under articles 25 and 28, but also with respect to the crimes under articles 7 and 8.25 Pre-Trial Chamber I recently found that when alternative legal 21

22

23

24

25

Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 78; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 85. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 93. Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 48. In the Lubanga case, the Trial Chamber changed the legal characterisation of the facts to the extent that the armed conflict relevant to the charges was non-international in character: see Prosecutor v. Lubanga, Judgment Pursuant to Article 74, ICC-01/04-01/ 06-2842, 14 March 2012, para. 556. In the Katanga case, the Trial Chamber, after severing the case from the co-accused Ngudjolo, changed the legal characterisation of the facts to accord to Katanga’s form of participation under article 25(3)(d): see Prosecutor v. Katanga, Judgment Pursuant to Article 74, ICC-01/04-01/07-3436-tENG, 7 March 2014, paras. 1422–1595. See Prosecutor v. Blé Goudé, Document Containing the Charges, ICC-02/11-02/11-124Anx2-Corr-Red, 10 December 2014 (French only).

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characterisations of the same facts proposed by the Prosecutor are satisfactorily established by the evidence, it is appropriate that the charges be confirmed with the various available alternatives in order for the Trial Chamber to determine whether any of those legal characterisations is established to the applicable standard of proof at trial. Taking stock of the experience of the Court, the Pre-Trial Chamber also held that confirming all applicable alternative legal characterisations on the basis of the same facts is a desirable approach as it may reduce future delays at trial, and provides early notice to the Defence of the different legal characterisations that may be considered by the trial judges.26 On three occasions, the Appeals Chamber has nevertheless had an opportunity to give guidance on the interpretation and application of regulation 55 of the RoC.

a Purpose of Regulation 55 of the RoC The Appeals Chamber held that a principal purpose of regulation 55 of the RoC is to close accountability gaps, a purpose that is fully consistent with the Statute. According to the Appeals Chamber, this provision is intended to prevent acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial.27 b Any Application of Regulation 55 of the RoC must be Consistent with the Full Protection of the Rights of the Accused The Appeals Chamber is of the view that regulation 55 of the RoC is not inherently in breach of an accused’s fair trial rights. Whether a recharacterisation leads to a violation of such rights will depend on the specific circumstances of the case and the application by the Trial Chamber of the safeguards under regulation 55(2) and (3) of the RoC.28 For instance, a decision giving notice of potential change to the 26

27

28

Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, paras. 227–228. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 21–22, 104. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, paras. 85–87; Prosecutor v. Katanga¸ Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 88, 97.

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legal characterisation of facts should provide “details as to the elements of the offences the inclusion of which it contemplated, [and should] consider how these elements were covered by the facts and circumstances described in the charges”.29

c Any Re-characterisation is Limited to the Facts and Circumstances in the Charges Consistent with article 74(2), regulation 55 of the RoC may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.30 All facts included in the charges may be the subject of a change in the legal characterisation.31 The incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial.32 However, a change in the narrative of a case does not exceed per se the facts and circumstances described in the charges. Focusing on certain facts to the exclusion of others will necessarily alter the narrative: indeed, it would appear inevitable that a change in characterisation would result in a change of narrative to a certain extent.33 d Timing of the Application of Regulation 55 of the RoC While it is preferable that notice under regulation 55(2) of the RoC should always be given as early as possible,34 a Trial Chamber may give notice of a possible re-characterisation of the charges at “any time during trial”, as long as it can ensure that the trial remains fair.35 This includes the deliberation stage. In fact, nothing prevents the Trial Chamber, upon carefully analysing the material and evidence that was presented in its totality, from re-opening the hearing 29

30

31

32

33

34

Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 109; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 100–101. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, paras. 1, 49, 88, 93. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 50; Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 37. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 48. Ibid., para. 24. 35 Ibid., para. 1.

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of evidence at the deliberations stage of the proceedings to give the parties and participants an opportunity to make oral or written submissions.36 If notice under regulation 55(2) of the RoC is only given at the deliberation stage, the Trial Chamber will need to be particularly vigilant in ensuring an accused’s right to be tried without undue delay.37 Notice may also be given at an early stage of the proceedings, when the Trial Chamber is seised of a case and before opening statements are heard.38 While notice under regulation 55(2) of the RoC is given at any time during the trial, the actual change in the legal characterisation will, if at all, only take place in the Trial Chamber’s decision under article 74. It is only in that decision that the Trial Chamber will have to demonstrate that the legal characterisation of the facts has changed without exceeding the “facts and circumstances described in the charges”.39

III Trial in the Presence of the Accused and Excusal from Trial a Background The majority of Trial Chamber V(a) in the Ruto & Sang case granted Mr Ruto’s request not to be continuously present at trial.40 While the majority recognised that under article 63(1), “the general rule as to presence [. . .] is one of continuous presence at trial”,41 it held that the Trial Chamber’s “general power” under article 64(6)(f) afforded it “discretion [. . .] to excuse an accused, on a case-by-case basis, from continuous presence at trial”.42 The majority exercised this discretion to excuse Mr Ruto from article 63(1)’s attendance requirement on the basis of his election as his country’s executive Deputy Head of State and the duties attached to this function.43 36 38

39

40

41

42

Ibid., paras. 17–18, 20–21. 37 Ibid., para. 99. Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 51. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 45; Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 53. Prosecutor v. Ruto & Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, paras. 1–2. Judge Herrera Carbuccia dissented: see ICC-01/09-01/11-777-Anx2. Prosecutor v. Ruto & Sang, Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-777, 18 June 2013, para. 49. Ibid., paras. 47, 49. 43 Ibid., paras. 27, 53, 71.

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It concluded that Mr Ruto was required to attend only the opening44 and closing45 of his trial and any hearings “when victims present their views and concerns in person”.46 The Trial Chamber otherwise excused his attendance.47 The Prosecution appealed this decision arguing that the majority erred in law when it disregarded this statutory requirement and excused Mr Ruto from attending substantially all of his trial. According to the Prosecution, the language of article 63(1), as well as its drafting history, clearly establish the accused’s presence as a fundamental requirement or condition of the trial.48

b The Appeals Chamber’s Determination The majority of the Appeals Chamber held that article 63(1) does not operate as an absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused.49 It found that, although the presence of the accused must remain the general rule,50 in exceptional circumstances a Trial Chamber may exercise its discretion to excuse an accused person, on a case-by-case basis, from continuous presence at trial.51 In the view of the Appeals Chamber, a measure of flexibility in the management of the proceedings in such circumstances accords with the duty of the Trial Chamber to ensure that a trial is fair and expeditious, and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses under article 64(2).52 As a result, the Appeals Chamber set out a test that should guide a Trial Chamber in the exercise of its limited discretion to excuse an accused from attending portions of the trial. Accordingly: (i) the absence of the accused can take place only in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must be considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; 44 47 48

49

50

Ibid., para. 3(a)(i). 45 Ibid., paras. 3(a)(ii), 3(a)(iv). 46 Ibid., para. 3(a)(iii). Ibid., paras. 104(a), 104(b). Prosecutor v. Ruto & Sang, Prosecution appeal against the “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, 29 July 2013, ICC-01/ 09–01/11–831 OA5. Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 1, 55. Judges Kourula and Ušacka issued a joint Separate Opinion: see ICC-01/09-01/11-1066-Anx OA5. Ibid., paras. 49, 61. 51 Ibid., para. 56. 52 Ibid., paras. 50, 54.

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(iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.53 The Appeals Chamber concluded that by providing Mr Ruto with a blanket excusal without exploring any alternative options or excluding Mr Ruto on a case-by-case basis and when strictly necessary, the Trial Chamber exceeded the limits of its discretionary power.54

c Subsequent Developments At its 12th Plenary Meeting, the ASP unanimously adopted rule 134ter of the Rules, which codifies the test for excusal from presence at trial previously developed by the Appeals Chamber. In addition, the ASP adopted rule 134bis, according to which an accused subject to a summons to appear may, on a case-by-case basis, be allowed to be present at the trial through the use of video technology. Finally, the new rule 134quater allows a Trial Chamber to excuse an accused subject to a summons to appear who is “mandated to fulfil extraordinary public duties at the highest national level” from being present at the trial.55 Shortly thereafter, Trial Chamber V(a) conditionally excused Mr Ruto from presence at trial pursuant to the new rule 134quater, to allow him to “perform the functions of the Deputy President of Kenya”.56 The Prosecution sought leave to appeal this decision on 53 54

55

56

Ibid., paras. 2, 62. Ibid., para. 63. In their joint Separate Opinion, Judges Kourula and Ušacka held that they would have found that article 63(1) establishes a requirement that the accused be present during the trial and that the Trial Chamber erred in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused, on a case-by -case basis, from continuous presence at trial (see ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 5). Amendments to the Rules of Procedure and Evidence, ICC-ASP/12/Res.7, 27 November 2013. The Trial Chamber first rendered an oral decision on 15 January 2014 (see transcript ICC01/09-01/11-T-72-ENG, pp. 67–68). On 18 February 2014, the Trial Chamber provided the reasons for its decision: Prosecutor v. Ruto and Sang, Reasons for the Decision on

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the question of whether rule 134, as well as its application by the Trial Chamber, was consistent with articles 63(1), 21(3) and 27(1),57 noting that the Rules must be read “subject to the provisions of the Statute”.58 The Trial Chamber rejected this application.59

IV “No Case to Answer” Motions In the Ntaganda case the Appeals Chamber was asked to rule on the question of whether it is mandatory for a Trial Chamber to entertain a “no case to answer” (NCTA) motion after the Prosecution presented its evidence and before the commencement of the Defence case. This issue arose in that case as the Trial Chamber did not entertain such a motion by the Defence and, therefore, did not follow the example of the Ruto & Sang case, where the Trial Chamber, for the first time in any case before the ICC, entertained such a motion and, as a result, vacated the charges and discharged the accused.60 The Appeals Chamber held that the Trial Chamber was correct in concluding that it had broad discretion to determine whether to entertain an NCTA motion. Although the core legal texts do not expressly refer to an NCTA motion, such a procedure is nevertheless permissible. A Trial Chamber has discretion pursuant to its powers under article 64(6)(f) and rule 134(3) to decide whether to conduct or decline to conduct such a procedure in the exercise of its discretion. However, it must exercise its discretion in a manner that ensures that the trial is fair and expeditious.61 The Appeals Chamber further held, in that case, that the Trial Chamber did not err in the exercise of its discretion by declining to

57

58 59

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Excusal from Presence at Trial under Rule 13quater, 18 February 2014, ICC-01/09-01/111186; see paras. 63–66. Regarding the conditions imposed on Mr Ruto, see para. 79. Judge Eboe-Osuji issued a Separate Further Opinion: see ICC-01/09-01/11-1186-Anx. Prosecutor v. Ruto & Sang, Prosecution’s Application for Leave to Appeal the Decision on Excusal from Presence at Trial under Rule 134quater, ICC-01/09-01/11-1189, 24 February 2014. Rules, explanatory note. Prosecutor v. Ruto & Sang, Decision on “Prosecution’s Application for Leave to Appeal the Decision on Excusal from Presence at Trial under Rule 134quater”, ICC-01/09-01/111246, 2 April 2014. Prosecutor v. Ruto & Sang, Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/11-2027-Red-Corr, 5 April 2016, p. 1. Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/ 04-02/06-2026 OA6, 5 September 2017, paras. 1, 42–45.

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entertain Ntaganda’s NCTA motion. According to the Appeals Chamber, the adoption of a “party-driven” system of presentation of evidence – which is a characteristic of adversarial common law proceedings which typically provide for NCTA motions – does not mean that the Trial Chamber was required to entertain an NCTA motion. The critical question was whether the decision not to entertain an NCTA motion violated Ntaganda’s fair trial rights and, in particular, his rights to “raise defences and to present other evidence admissible under [the] Statute” under article 67(1)(e), and his right “not to be compelled to testify [. . .] and to remain silent” under article 67(1)(g).62 In addition, the Appeals Chamber held that internationally recognised human rights law does not limit a Trial Chamber’s discretion on the issue, nor does its choice to adopt an adversarial trial structure. The Court’s legal framework combines features of Common Law and Romano-Germanic legal traditions. It includes fair trial guarantees that are not typically found in Common Law procedures, including the Prosecutor’s duty to investigate incriminating and exonerating circumstances equally pursuant to article 54(1)(a), and the Trial Chamber’s duty under article 61(7) to establish whether there are substantial grounds to believe that the person committed the crime prior to referring a case to trial. These safeguards ensure, on the whole, that the accused before the Court receives a fair trial. As such, references to particular national or international systems do not establish that the accused’s rights were violated.63

Jurisprudence “The ordinary meaning of the word ‘trial’, according to Black’s Law Dictionary, is ‘[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, paras. 36–37. “[A] reading of article 58(1)(b)(i) of the Statute in context and in light of its purpose confirms that the word ‘trial’ was intended to cover the entire period of the trial until the final determination of the matter.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-3249-Red, OA11, 20 May 2015, para. 40.

62

Ibid., paras. 46–47.

63

Ibid., paras. 48–56.

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I Admission of Evidence 1 The Principle of Orality and its Exceptions 1.1 General Considerations “The direct import of the first sentence of this provision [article 69(2)] is that witnesses must appear before the Trial Chamber in person and give their evidence orally. This sentence makes in-court personal testimony the rule, giving effect to the principle of orality.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 76; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/ 11-2024 OA10, 12 February 2016, para. 84. “The importance of in-court personal testimony is that the witness giving evidence under oath does so under the observation and general oversight of the Chamber. The Chamber hears the evidence directly from the witness and is able to observe his or her demeanour and composure, and is also able to seek clarification on aspects of the witness’ testimony that may be unclear so that it may be accurately recorded.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 76.

1.2

Exceptions to the General Rule

a A Cautious Approach “Nevertheless, in-court personal testimony is not the exclusive mode by which a Chamber may receive witness testimony. The first sentence of article 69(2) also provides for exceptions, namely, for measures taken under article 68 of the Statute or under the Rules of Procedure and Evidence ‘to protect witnesses, victims or an accused’. In addition, under the second sentence of article 69(2), the Chamber may inter alia permit the introduction of ‘documents or written transcripts’. This power is, however, ‘subject to this Statute’ and must be exercised ‘in accordance with the Rules of Procedure and Evidence’. Thus, under the second sentence of article 69(2) of the Statute, a Chamber has the discretion to receive the testimony of a witness by means other than in-court personal testimony, as long as this does not violate the Statute and accords with the Rules of Procedure and Evidence. The most relevant provision in the Rules of Procedure and Evidence is rule 68 [. . .].” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 77.

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“In deviating from the general requirement of in-court personal testimony and receiving into evidence any prior recorded witness testimony a Chamber must ensure that doing so is not prejudicial to or inconsistent with the rights of the accused or with the fairness of the trial generally [. . .]. [T]his requires a cautious assessment. The Trial Chamber may, for example, take into account, a number of factors, including the following: (i) whether the evidence relates to issues that are not materially in dispute; (ii) whether that evidence is not central to core issues in the case, but only provides relevant background information; and (iii) whether the evidence is corroborative of other evidence.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 78; Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/ 11-2024 OA10, 12 February 2016, para. 85.

b Lex Generalis vis-à-vis Lex Specialis: Rule 68 “The Appeals Chamber notes that rule 68 of the Rules (former and current) sets out certain scenarios in which prior recorded testimony may be admitted into evidence. It follows that, where the specific circumstances of a case fall within the parameters set out in rule 68 of the Rules, the legal requirements of that provision must be observed for the prior recorded testimony to be admissible. If those requirements are not met, recourse to article 69(2) and (4) of the Statute is not permissible given that such a course of action would render rule 68 of the Rules meaningless and would enable the party seeking the introduction of the evidence to avoid the stringency of the latter provision.” Prosecutor v. Ruto & Sang, Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68, ICC-01/09-01/11-2024 OA10, 12 February 2016, para. 86.

c

The Chamber’s Discretion and Limitations to the Admission of Evidence “The above provisions [articles 64(9)(a) and 69(4) of the Statute] accord the Trial Chamber discretion when admitting evidence at trial. As borne out by the use of the word ‘may’ in article 69(4), the Trial Chamber has the power to rule or not on relevance or admissibility when evidence is submitted to the Chamber [. . .] and then determine the weight to be attached to the evidence at the end of the trial. In that case, an item will be admitted into evidence only if the Chamber rules that it is relevant and/or admissible in terms of article 69(4), taking into account ‘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’. Alternatively, the Chamber may defer its consideration of these criteria until the end of the proceedings, making it part of its assessment of the evidence

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con duc t o f tr ial s when it is evaluating the guilt or innocence of the accused person [. . .]. [I]rrespective of the approach the Trial Chamber chooses, it will have to consider the relevance, probative value and the potential prejudice of each item of evidence at some point in the proceedings – when evidence is submitted, during the trial, or at the end of the trial.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37. “[T]he right to be informed of the charges is not concerned with the timing of admissibility rulings.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 64.

d

The Admission of Evidence is a Case-by-Case and Reasoned Determination “The scheme established by article 69(4) and (7) of the Statute and rule 71 of the Rules of Procedure and Evidence thus anticipates that a Chamber’s determination of the relevance or admissibility of evidence be made on an item-by-item basis.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 53. “Whether evidence is relevant, has probative value or would be prejudicial to the accused will depend on the specific characteristics of each item of evidence; the factors that will require consideration will not be the same for all items of evidence. Similarly, whether evidence was obtained in violation of the Statute or human rights or relates to the prior or subsequent sexual conduct of a victim or witness can only be determined on an item-specific basis.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 53. “Pursuant to rule 64(2) of the Rules of Procedure and Evidence, a ‘Chamber shall give reasons for any rulings it makes on evidentiary matters’. The Appeals Chamber has previously held, albeit in a different context, that a Chamber must explain with sufficient clarity the basis of its decision. In other words, ‘it must identify which facts it found to be relevant in coming to its conclusion’ [. . .]. [R]ulings on the admissibility of evidence must be made on an item-by-item basis. This analysis must be reflected in the reasons. This is not to say that the Trial Chamber may not

j u r i s p r ud e n c e rule on the relevance or admissibility of several items of evidence in one decision. However, it must be clear from the reasons of the decision that the Chamber carried out the required item-by-item analysis, and how it was carried out.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 59.

e The Chamber must Base its Judgment on Evidence “Submitted and Discussed” at Trial “[A]rticle 74(2) of the Statute provides that a Trial Chamber may base its decision at the end of the trial only on evidence that was ‘submitted and discussed before it at the trial’. Accordingly, the Trial Chamber may not rely, for the purposes of its final decision, on items that have come to the Chamber’s knowledge but that have not been submitted and discussed at trial.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 45. “It is clear from the above provisions, [articles 69(3), 64(8)(b), 74; rules 140, 64(1)], first, that evidence is ‘submitted’ if it is presented to the Trial Chamber by the parties on their own initiative or pursuant to a request by the Trial Chamber for the purpose of proving or disproving the facts in issue before the Chamber. Second, the submission of evidence must conform to the directions of the Presiding Judge or the manner agreed upon by the parties. Depending on the manner directed or agreed upon, the submission may also take place outside of the trial hearings; however, in such a case, the procedure for the submission of evidence must be clear.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 43. “[W]hen the Prosecutor filed the Lists of Evidence, he did not do so with a view to submitting the items as evidence for the trial, but for the ‘purpose of informing the Trial Chamber and the other parties and participants of the materials that [he] intends to use at trial’ and as a ‘case management tool’. The actual submission of the evidence was to take place later in the proceedings, when the Prosecutor would call witnesses or tender documents.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 44.

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Only Parties may Submit Evidence “The Appeals Chamber considers it important to underscore that the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, namely, the Prosecutor and the Defence. The first sentence of article 69(3) is categorical: ‘[t]he parties may submit evidence relevant to the case, in accordance with article 64’. It does not say ‘parties and victims may’.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93. “The language of article 69(3) cited above, and article 64(6)(d), which provides that the Court shall have the authority to ‘[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’ clearly envisions that evidence presented during the trial would be presented by the parties.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93. “The Rome Statute framework contains numerous provisions which support this interpretation [that only Prosecution and Defence/parties may submit evidence] such as those pertaining to the role assigned specifically to the Prosecutor in, inter alia, investigating the crimes, formulating the charges and determining what evidence should be brought in relation to the charges (articles 15, 53, 54, 58 and 61(5) of the Statute). Article 66(2) of the Statute provides: ‘[t]he onus is on the Prosecutor to prove the guilt of the accused’. Presumptively, it is the Prosecutor’s function to lead evidence of the guilt of the accused. In addition, the regime for disclosure contained in rules 76–84 of the Rules which set out the specific obligations of the parties in this regard is a further indicator that the scheme is directed towards the parties and not victims.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93.

g

Right of the Parties to Raise Objections to the Admission of Evidence “Rule 64(1) of the Rules of Procedure and Evidence entitles the parties to raise issues as to the relevance or admissibility of evidence at the time when the evidence is submitted to a Chamber. The rule ensures that the parties have the chance to raise objections to the evidence before it is admitted into evidence. The Trial Chamber has to give effect to this right and, therefore, cannot admit items into evidence without first giving the parties an opportunity to raise issues.”

j u r i s p r ud e n c e Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 48. “[T]he Appeals Chamber considers that, in exercising its discretion under article 69(4) to admit the items of evidence without first giving the parties an opportunity to raise issues regarding their relevance or admissibility, the Trial Chamber failed to effectively evaluate any potential prejudice that such evidence may cause to a fair trial, in particular Mr Bemba’s right to a trial without undue delay [pursuant to article 67(1)(c)].” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 70. “[T]he Appeals Chamber notes that under rule 64(1) of the Rules of Procedure and Evidence, the parties have the right to raise issues concerning the relevance or admissibility of the evidence when it is submitted [. . .]. [T]he Trial Chamber failed to give effect to this right before admitting the evidence. Therefore, rather than merely having to raise issues as to the relevance or admissibility of the evidence, Mr Bemba now has the additional burden of disproving the admissibility of items on which the Chamber has already ruled.” Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 73.

II Records of Questioning: Rules 111 and 112 1 Purpose and Interaction of Rules 111 and 112 “As reflected in their titles, rule 111 governs the record of questioning ‘in general’, while rule 112 governs the recording of questioning ‘in particular cases’. The Appeals Chamber is of the view that rule 111 establishes the general rule, but that rule 112 governs exceptions thereto and its application in particular cases.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “The essential purpose of rules 111 and 112 is that a record must be made of the questioning of persons, and this purpose can be fulfilled through either a written record pursuant to rule 111 or an audio- or video-record pursuant to rule 112.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26.

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c on duc t of tr ial s “The Appeals Chamber notes that rule 112, sub-rules 1(a) and 2 provide that where questioning is not audio- or video-recorded as would normally be required, the procedure in rule 111 shall be followed. In the view of the Appeals Chamber, these provisions indicate that rules 111 and 112 set out two alternative procedures for the recording of questioning.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “Furthermore, the Appeals Chamber observes that rule 112(4) provides for audio- or video-recording where this could assist in reducing any subsequent traumatization of victims of sexual or gender violence, children or persons with disabilities in providing their evidence. The Appeals Chamber considers that requiring such individuals to review and to sign an additional written record setting out the content of their statements might result in their re-traumatization and thus defeat the purpose of this sub-rule.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26. “The Appeals Chamber considers that the proper interpretation of rules 111 and 112 becomes clear when these rules are interpreted not in isolation but rather in the context of the overall framework for investigations and judicial proceedings set out in the Rules of Procedure and Evidence and their purposes.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 27.

2 Specific Purpose of Rule 112 “Rule 112 serves to protect the rights of questioned persons by ensuring that, in the particular circumstance where there are grounds to believe a person committed a crime within the jurisdiction of the Court, the Prosecutor must create the best possible record of that person’s statements, and it permits the Prosecutor to create such a record in other circumstances.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 26.

III Modifying the Legal Characterisation of Facts “[T]he question of modification of the legal characterisation of facts is an important question that directly impacts on the trial [. . .].” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 69.

jurisprudence A decision giving notice of potential change to the legal characterisation of facts should provide “details as to the elements of the offences the inclusion of which it contemplated, [and should] consider how these elements were covered by the facts and circumstances described in the charges”. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 109.

1 Regulation 55 is Consistent with the Statute and does not Inherently Violate the Rights of the Accused “[T]he Appeals Chamber does not consider that Regulation 55 is inherently in breach of Mr Lubanga Dyilo’s right to a fair trial.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 87. “[A] principal purpose of Regulation 55 is to close accountability gaps, a purpose that is fully consistent with the Statute.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 22, 104. “Mr Lubanga Dyilo’s interpretation of article 61(9) of the Statute [that any modification of the legal characterisation of the facts amounts to an amendment of the charges] bears the risk of acquittals that are merely the result of legal qualifications confirmed in the pre-trial phase that turn out to be incorrect, in particular based on the evidence presented at the trial. This would be contrary to the aim of the Statute to ‘put an end to impunity’ (fifth paragraph of the Preamble).” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 77; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 22. “[A]rticle 67(1)(a) of the Statute does not preclude the possibility that there may be a change in the legal characterisation of facts in the course of the trial, and without a formal amendment to the charges.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 84. “[H]uman rights law demands that the modification of the legal characterisation of facts in the course of the trial must not render that trial unfair [. . .]. It is to avoid violations of this right that Regulation 55(2) and (3) sets

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con duc t o f tr ial s out several stringent safeguards for the protection of the rights of the accused. How these safeguards will have to be applied to protect the rights of the accused fully [. . .] will depend on the circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 85; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 88. “[T]he Appeals Chamber does not consider that a change of the legal characterisation of the facts pursuant to Regulation 55 as such will automatically lead to undue delay of the trial. Whether a re-characterisation leads to undue delay will depend on the specific circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 86; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 97. “Any change from, for example, being alleged to be a principal to being alleged to have in fact been an accessory will always necessarily involve a change in the characterisation of the role. Were such a change not to be permissible, it would defeat the purpose of regulation 55 of the Regulations of the Court. The Trial Chamber would be constrained exclusively to using the precise characterisations established by the Pre-Trial Chamber at a much earlier stage of the proceedings and with a necessarily more restricted view of the case as a whole.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 57. “[R]egulation 55(2) and (3) of the Regulations of the Court makes specific provisions, inter alia, for notice of a possible re-characterisation to be given to the parties and for the receipt of their submissions thereon, in particular ensuring that the accused has adequate time and facilities to prepare the defence in accordance with article 67(1)(b) of the Statute and has the opportunity to examine witnesses or to present other evidence in accordance with article 67(1)(e) of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 87. “The Trial Chamber thereafter [after the accused is given the opportunity to make submissions] will need to assess whether it remains possible for Mr Katanga effectively to prepare his defence in light of both the manner in which the trial has been conducted to date and the re-characterisation that is now proposed. The Trial Chamber will also need to consider what measures may need to be implemented to ensure that the trial as a whole remains fair. Such consideration could include an assessment by the Trial

jurisprudence Chamber of whether Mr Katanga has, in fact, been prejudiced by a recharacterisation made at this [deliberations] stage, including in particular whether he has been deprived of mounting the defence in relation to article 25(3)(d) of the Statute that he otherwise would have wished to present.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 95. “[U]nder article 67(1) of the Statute, the accused is entitled to be informed of the ‘nature, cause and content’ of the charges, which includes both the factual allegations and their legal characterisation. In light of this provision, the purpose of regulation 55(2) of the Regulations of the Court is to ensure that the accused is informed of a possible change to the legal characterisation. This reading is consistent with the jurisprudence of the ECtHR, according to which notice of an envisaged change in the legal characterisation of the facts is required so as to allow the accused to exercise his or her rights in a practical and effective manner. By issuing the Impugned Decision, the Trial Chamber informed Mr Katanga of the potential change from article 25(3)(a) to article 25(3)(d) of the Statute, thereby ensuring that Mr Katanga remains informed of this aspect of the charges, namely their legal characterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 100. “[I]f a Trial Chamber gives notice under regulation 55(2) of the Regulations of the Court, the Trial Chamber may also need to indicate upon which specific facts, within the ‘facts and circumstances described in the charges’, it intends to rely. This is, in particular, because the charges before this Court usually cover complex factual allegations, and more detailed information about the factual allegations to which the potential change in the legal characterisation of the facts relate will therefore often be required to enable the accused to defend himself or herself effectively.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 101. “[A]t this [deliberations] stage, the Trial Chamber is in the best position to determine what level of factual detail has to be provided to Mr Katanga in order not to prejudice his right to be informed of the charges against him, taking into account, inter alia, the way in which the trial has been conducted to date when combined with what it now proposes by way of recharacterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 102. “Regulation 55 of the Regulations of the Court specifically empowers the Trial Chamber give such notice, even in the absence of a request by the

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c on duc t of tr ial s Prosecutor to that effect. Giving such notice is therefore a neutral judicial act, which, without more, has no impact on the impartiality of the Judges exercising their powers.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 104. “Regulation 55 of the Regulations of the Court vests in a Chamber the authority ‘to modify the legal characterisation of facts’ and to do so ‘at any time during the trial’. In so doing, it places itself at the crossroads between two fundamental, albeit inherently conflicting, tenets of the right to a fair trial: the right to be tried without undue delay, on the one hand, and the right to be adequately informed of the nature, cause and content of the charges, on the other. Both these components are duly enshrined in the Statute, respectively under article 67(1)(c) and article 67(1)(a).” Prosecutor v. Katanga, Dissenting Opinion of Judge Tarfusser in the Decision on the Implementation of Regulation 55, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 5. Diss. Op.

2 Regulation 55 is Limited to the Facts and Circumstances Described in the Charges “Regulation 55(2) and (3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, paras. 1, 88. “[A]rticle 74(2) of the Statute confines the scope of Regulation 55 to the facts and circumstances described in the charges and any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 93. “[T]he incorporation of new facts and circumstances into the subject matter of the trial would alter the fundamental scope of the trial.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 94. “[T]he most obvious obstacle to the Trial Chamber’s interpretation of Regulation 55 is article 74(2) of the Statute. The second sentence of that provision reads as follows: ‘The decision [of the Trial Chamber at the end of the trial] shall not exceed the facts and circumstances described in the charges and any amendments to the charges.’”

jurisprudence Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para 89; Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 49. “According to the Trial Chamber’s interpretation of Regulation 55, the Chamber could adjudicate, at the end of the trial, not only the facts described in the charges or any amendment thereto, but also additional facts that were introduced into the trial through a ‘change’ of their legal characterisation under Regulation 55. The Appeals Chamber considers that this interpretation would result in a conflict with article 74(2) of the Statute because these additional facts would not have been described in the charges or any amendment thereto.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 90. “The Appeals Chamber recalls at the outset that the Impugned Decision is a decision rendered pursuant to regulation 55(2) of the Regulations of the Court, which provides that if ‘it appears to the Chamber that the legal characterisation may be subject to change, the Chamber shall give notice to the participants of such a possibility’. The actual change in the legal characterisation will, if at all, only take place in the Trial Chamber’s eventual decision under article 74 of the Statute. It is only in that decision that the Trial Chamber will have to demonstrate that the legal characterisation of the facts has changed without exceeding the ‘facts and circumstances described in the charges’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 45. “The Appeals Chamber is not persuaded by Mr Katanga’s argument that, necessarily, only ‘material facts’, but not ‘subsidiary or collateral facts’, may be the subject of a change in the legal characterisation. There is no indication of any such limitation in the text of article 74(2) of the Statute or regulation 55(1) of the Regulations of the Court. Rather, those provisions stipulate that any change cannot exceed the ‘facts and circumstances’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 50; Prosecutor v. Gbagbo, Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 37. “The Appeals Chamber also does not accept that a change in the narrative exceeds per se the facts and circumstances described in the charges. As pointed out by the Trial Chamber, focusing on certain facts to the exclusion of others will necessarily alter the narrative: indeed, it would

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con duc t of t rial s appear inevitable that a change in characterisation would result in a change of narrative to a certain extent. Whether the change of narrative is of such an extent or nature that it does, in fact, exceed the facts or circumstances is something on which the Appeals Chamber will only be able to rule if and when the Trial Chamber has changed the legal characterisation in its decision under article 74 of the Statute.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 58. “In determining whether it is immediately apparent that the proposed change in the legal characterisation would exceed the facts and circumstances described in the charges, the Appeals Chamber has had particular regard to the factors64 to which the Trial Chamber referred in the Impugned Decision in deciding to give notice, pursuant to regulation 55(2) of the Regulations of the Court, that the legal characterisation of facts may be subject to change.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 54, 55. “Having reviewed the Impugned Decision in light of the documents describing the charges, the Appeals Chamber concludes that, at the present [deliberations] stage of the proceedings, it is not immediately apparent that the contemplated change in the legal characterisation of the facts [co-perpetration under article 25(3)(a) to contribution to the commission of a crime by a group under article 25(3)(d)] would exceed the facts and circumstances described in the charges.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 56.

3

Timing of the Application of Regulation 55

“Notice of a possible modification of the legal characterisation of facts under regulation 55(2) of the Regulations of the Court may be given at the deliberations stage of the trial proceedings. However, the Trial Chamber must ensure that the trial remains fair.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 1; Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 49. 64

Paragraph 55 lists the following factors: “the attack on Bogoro on 24 February 2003; the same alleged crimes; an analysis of the role played by the Ngiti combatants based in Walendu-Bindi collectivité; local commanders who were members of that group; and Mr Katanga’s contribution which led to the realisation of the objective elements of the crime”.

jurisprudence “Pursuant to regulation 55(2) of the Regulations of the Court, notice of a possible re-characterisation may be given ‘at any time during the trial’. The Appeals Chamber observes that, at the time the Impugned Decision was rendered, the trial was at the deliberations stage and no decision under article 74 of the Statute had yet been rendered. Furthermore, nothing in the Statute, the Rules of Procedure and Evidence or the Regulations of the Court prevents the Trial Chamber from re-opening the hearing of evidence at the deliberations stage of the proceedings. The Appeals Chamber therefore concludes that, for the purposes of regulation 55 of the Regulations of the Court, the trial is on-going at the present time. The timing of the Impugned Decision was therefore not incompatible with regulation 55 of the Regulations of the Court.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, paras. 17, 20. “[T]he reference to the ‘appropriate stage of proceedings’ relates to the opportunity to be given to the participants to make oral or written submissions. In other words, the participants must be given an opportunity to make submissions at an appropriate stage of the proceedings, following notice of a possible re-characterisation, but this does not limit the Trial Chamber’s power to give such notice ‘at any time during the trial’.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 18. “The Appeals Chamber observes that changing the legal characterisation of the facts may become necessary not only in the course of the hearing of evidence as, for example, an immediate reaction thereto, but also thereafter. At the latter stage, the Trial Chamber may realise, upon carefully analysing the material and evidence that was presented in its totality, that the legal characterisation on the basis of which the charges were confirmed may be subject to change. That this may be necessary at the deliberations stage is particularly the case in light of the length, complexity and evidentially voluminous nature of the proceedings that come before this Court. As the Prosecutor correctly points out, if regulation 55 of the Regulations of the Court were inapplicable at the deliberations stage of the proceedings, the Trial Chamber would have to acquit in such a situation, even if the evidence presented clearly established his or her guilt based upon the appropriate legal characterisation of the facts.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 21. “[T]he last sentence of regulation 55(2) of the Regulations of the Court provides that the Trial Chamber may, when considering a possible change in the legal characterisation of facts and having given notice, either

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con duc t o f tr ial s suspend the hearing or, ‘if necessary’, ‘order a hearing to consider all matters relevant to the proposed change’. The Appeals Chamber interprets this to mean that the hearing may be suspended to enable effective preparation if notice is given during a hearing; but that there is also provision for a hearing to be ordered ‘if necessary’, which implies that notice can be given, inter alia, after the hearing of evidence has been concluded, such as at the deliberations stage.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 23. “[W]hile it is preferable that notice under regulation 55(2) of the Regulations of the Court should always be given as early as possible, Mr Katanga’s argument that the timing of the Impugned Decision is incompatible with the terms of regulation 55(2) of the Regulations of the Court is not persuasive.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 24. “The wording of the regulation, stating that notice of a possible recharacterisation may be given ‘at any time during the trial’, is so clear as to prompt the well-known Latin maxim in claris non fit interpretatio: when the wording of a legal provision is univocal, the meaning and content of that provision must be determined based solely on such wording, with no need to recur to systematic or teleological arguments, or to look elsewhere. As long as it can be said that the trial is on-going (i.e., from the first hearing until a decision under article 74 of the Statute has been rendered), regulation 55 of the Regulations of the Court may in principle be triggered.” Prosecutor v. Katanga, Dissenting Opinion of Judge Tarfusser in the Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC01/04-01/07-3363 OA13, 27 March 2013, para. 2. Diss. Op. “The question arising, however, is whether by the terms of regulation 55 of the Regulations of the Court, the Trial Chamber is precluded from issuing notice of a possible recharacterisation of the facts at an early stage of the proceedings, namely, when it is seised of a case and before opening statements are heard. In this respect, the Appeals Chamber disagrees with Mr Gbagbo’s restrictive interpretation of the phrase ‘at any time during the trial’ in regulation 55(2) of the Regulations of the Court, as being limited to the stage where the hearing of evidence has begun. While the Appeals Chamber is not called upon to consider whether the term ‘trial’ has the same interpretation when used in other contexts throughout the legal framework of the Court, in its view, the ordinary meaning of the phrase ‘at any time during the trial’ in the context of regulation 55 does not exclude the stage after a Trial Chamber is seised of a case and before opening statements. This is because regulation 55(2) of the Regulations of

jurisprudence the Court requires notice to be issued when it ‘appears’ to the Trial Chamber that the legal characterisation of facts may be subject to change. This may become apparent to the Trial Chamber at any time before a decision under article 74 of the Statute is rendered. In these circumstances, to restrict the issuance of such a notice to a stage at which opening statements have been heard would be inconsistent with the requirement that notice be issued as ‘early as possible’ and prejudicial to the accused person.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 51. “Internationally recognised human rights do not require a different interpretation of this [regulation 55] legal provision. The cases of the ECtHR referred to by the Trial Chamber demonstrate that changes to the legal characterisation of facts may be addressed at late stages of the proceedings, including at the appeals stage, or in review proceedings before the highest domestic courts, without necessarily causing unfairness. The jurisprudence of the ECtHR equally provides that notice of a possible re-characterisation is necessary in order to give the accused the possibility to defend himself or herself in a practical and effective manner and in good time against any such possible re-characterisation.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 93. “[T]he Appeals Chamber cannot conclude, at this stage, that proceeding with the proposed re-characterisation would result in a violation of his right to an effective defence [without knowing the precise nature of the recharacterisation, nor evidence the TC may rely on, nor the impact on Katanga’s defence as a whole]. Any such determination by the Appeals Chamber would be premature.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 96. “[N]otice of a legal re-characterisation at a late state of the proceedings does not, in and of itself, violate the right to a fair trial. As such, there is no reason of principle as to why, without more, the timing of the notice of recharacterisation would result in a violation of Mr Katanga’s right to be informed properly of the charges under article 67(1)(a) of the Statute in the present case.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 94. “The Appeals Chamber emphasises that it is concerned that the Impugned Decision was rendered almost six months into the deliberations of the Trial Chamber. Nevertheless, at the present time it is not clear that ‘undue

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con duc t o f tr ial s delay’ will be caused as a result of the Impugned Decision. However, given that notice under regulation 55(2) of the Regulations of the Court was given at the deliberations stage, the Trial Chamber will need to be particularly vigilant in ensuring Mr Katanga’s right to be tried without undue delay. Recalling article 64(2) of the Statute, the Appeals Chamber emphasises that the Trial Chamber will have to ensure that the proceedings, taken as a whole, are fair and expeditious.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 99. “[T]he Appeals Chamber specifically finds that the [deliberations] stage of the proceedings at which regulation 55 of the Regulations of the Court was invoked also does not give rise to an appearance of bias.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 105.

4 Whether Re-characterisation is Limited to “Lesser Included Offences” “[T]he text of regulation 55 does not stipulate, beyond what is contained in sub-regulation 1, what changes in the legal characterisation may be permissible. The Appeals Chamber will not consider the issue [whether re-characterisation is limited to “lesser included offences”] any further, but notes, in any event, that the particular circumstances of the case will have to be taken into account.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 100.

5 Not Contingent on Whether Amendment of Charges was First Sought “With respect to Mr Gbagbo’s argument that by resorting to regulation 55 at this stage of the proceedings, the Trial Chamber is effectively subverting the coherent procedure set out in the Statute and allowing an amendment of the charges without the authorisation of the Pre-Trial Chamber, the Appeals Chamber finds this argument to be misdirected. Notwithstanding the fact that regulation 55 of the Regulations of the Court is part of the ‘coherent procedure’ available to the Trial Chamber, the Appeals Chamber finds that the mere issuance of notice of a possible recharacterisation does not amount to an amendment of the charges. As previously stated by the Appeals Chamber, ‘article 61(9) of the Statute and regulation 55 address different powers of different entities at different stages of the procedure, and the two provisions are therefore not inherently incompatible’ [. . .]. Furthermore, as indicated by the Prosecutor, resort to regulation 55 by the Trial Chamber is not contingent

jurisprudence on whether the procedure under article 61(9) of the Statute for the amendment of charges was applied. On the contrary, regulation 55 is only triggered where it appears to the Trial Chamber that the legal characterisation of the facts and circumstances may be subject to change. Mr Gbagbo’s argument is therefore rejected.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2), ICC-02/11-01/15-369 OA7, 18 December 2015, para. 53.

IV Excusal from Trial “The discretion that the Trial Chamber enjoys under article 63(1) of the Statute is limited and must be exercised with caution. The following limitations exist: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 2, 62. “[T]he Appeals Chamber notes that article 63(1) of the Statute establishes that the accused shall be present during the trial, reflecting the central role of the accused person in proceedings and the wider significance of the presence of the accused for the administration of justice.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 49. “During the course of prolonged criminal proceedings, unforeseen circumstances may arise, necessitating the absence of the accused person on a temporary basis. The Appeals Chamber considers that the interests of justice and the psychological well-being of witnesses would not be best served if the trial had to be automatically adjourned in each such instance. A measure of flexibility in the management of proceedings in such circumstances accords with the duty of the Trial Chamber to ensure

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con duc t of tr ial s that a trial is ‘fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’ under article 64(2) of the Statute and helps to ensure [. . .] ‘justice in each individual case’.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 50. “[A] trial may be continued in the absence of the accused, in accordance with article 63(2) of the Statute, when he or she continuously disrupts the trial. In the case of article 63(2) of the Statute, the requirement that the accused be present during the trial is superseded by the duty of the Court to ensure that proceedings are carried out in an orderly manner in the interests of the fair and proper administration of justice. In such cases, the continuously disruptive behaviour of the accused may be construed as an implicit waiver of his or her right to be present. The Appeals Chamber considers that the fact that a continuously disruptive accused person may be ‘excused’ from the courtroom against his will supports the conclusion that an excusal may be permissible if the accused voluntarily waives his or her right to be present.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 51. “[T]he travaux préparatoires, as a secondary means of interpretation, show that, although a number of exceptions to the requirement of the accused’s presence at trial other than that set out in article 63(2) of the Statute were discussed and ultimately deemed unnecessary, the question of whether an accused person could be excused from attending the trial in circumstances where he or she was, in principle, present for the trial, but had waived the right to be present, was not explicitly addressed. However, it is noteworthy in this regard that, during the Rome Conference, the more peremptory language – ‘the trial shall not be held except in the presence of the accused and his lawyer’– was considered but not adopted.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 52. “In formulating article 63 of the Statute, the drafters initially aimed to establish the presence of the accused during the trial as a general rule. As the debate evolved, discussions relative to article 63 of the Statute became more focused on the issue of whether to explicitly include or exclude the possibility of holding trials in absentia. Ultimately, concerns in relation to the rights of the accused, as well as the practical utility of trials in absentia and their potential to discredit the Court prevailed and

jurisprudence article 63(1) of the Statute was incorporated in order to preclude this possibility.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 53. “[P]art of the rationale for including article 63(1) of the Statute was to reinforce the right of the accused to be present at his or her trial and, in particular, to preclude any interpretation of article 67(1)(d) of the Statute that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 54. “[A]rticle 63(1) of the Statute does not operate as an absolute bar in all circumstances to the continuation of trial proceedings in the absence of the accused.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, paras. 1, 55. “[T]he Appeals Chamber concludes that the Trial Chamber did not err in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused person, on a case-by-case basis, from continuous presence at trial. However, the Appeals Chamber is of the view that the Trial Chamber’s reference to article 64(6)(f) of the Statute as the basis for this discretion is misplaced. As set out above, the Trial Chamber enjoys a measure of discretion under article 63(1) of the Statute and, in these circumstances, it is not necessary to resort to the powers of the Trial Chamber to rule on ‘any other relevant matter’ pursuant to article 64(6)(f) of the Statute.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 56. “[T]he Appeals Chamber recalls that the presence of the accused must remain the general rule and that article 63(1) of the Statute clearly limits the Trial Chamber’s discretion to excuse an accused person from presence during the trial. The restrictions on the removal of a disruptive accused, explicitly set out in article 63(2) of the Statute, are also instructive in determining the limits of the Trial Chamber’s discretion under article 63(1) of the Statute. Article 63(2) of the Statute makes it clear that the removal of a disruptive accused can take place only in exceptional circumstances and as a last resort, that is, after other reasonable alternatives have proved inadequate. Furthermore, the removal of the accused shall

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c on duct of t ria l s take place only for such duration as is strictly required. Finally, even if removed, the accused must still be represented by and in a position to instruct counsel.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 61. “The Appeals Chamber concludes that the Trial Chamber in the present case interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power. In particular, the Trial Chamber provided Mr Ruto with what amounts to a blanket excusal before the trial had even commenced, effectively making his absence the general rule and his presence the exception. Furthermore, the Trial Chamber excused Mr Ruto without first exploring whether there were any alternative options. Finally, the Trial Chamber did not exercise its discretion to excuse Mr Ruto on a case-by-case basis, at specific instances of the proceedings, and for a duration limited to that which was strictly necessary.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 63.

Joint Separate Opinion of Judges Kourula and Ušacka “[S]hort absences from particular hearings of the nature referred to above65 may be considered to be de minimus in the context of the overall trial. In this sense, we would find that although the strict terms of article 63(1) of the Statute do not appear to permit any absence of the accused during the trial, absences from particular hearings or parts of hearings may be considered to be so insignificant that they do not amount to a violation of the fundamental requirement of presence. No right mathematical formula can be applied to determine with certainty the point at which it would become necessary to adjourn the trial rather than continue in the absence of the accused; a common sense approach must be adopted to the management of proceedings based on the facts of the particular case.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 3. Sep. Op. 65

See Prosecutor v. Lubanga, Transcript of Hearing, 12 May 2009, ICC-01/04-01/06-T-172Red3-ENG, pp. 1–2; Prosecutor v. Bemba, Transcripts of Hearings, 7 November 2011, ICC-01/05-01/08-T-183-Red-ENG, pp. 1–2; 12 April 2013, ICC-01/05-0l/08-T-306-RedENG, p. 62; 17 June 2013, ICC-01/05-01/08-T-324-ENG, pp. 16–17; 17 June 2013, ICC01/05-01/08-T-324bis-CONF-ENG, p. 1; 27 June 2013, ICC-01/05-01/08-T-331-CONFENG, pp. 2–3.

j ur i s p r uden ce “[T]he practical difficulties that may be encountered in enforcing the requirement established in article 63(1) of the Statute to the strict letter of the law should not be used as a justification for interpreting article 63(1) of the Statute so that it is found to provide the Trial Chamber with a general discretion to excuse an accused from presence at trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 3. Sep. Op. “[W]e would have found that article 63(1) of the Statute establishes a requirement that the accused be present during the trial and that the Trial Chamber erred in law when it found that, in exceptional circumstances, the Chamber may exercise its discretion to excuse an accused, on a case-by-case basis, from continuous presence at trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 5. Sep. Op. “In our view, the ordinary meaning [in conformity with the VCLT] of article 63(1) of the Statute is clear and unambiguous: ‘[t]he accused shall be present during trial’. The use of the word ‘shall’ clearly establishes that the presence of the accused is a requirement of the trial.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, paras. 6, 10. Sep. Op. Four reasons why article 63(1) requires the presence of the accused at trial: “[f]irst, exceptions to the requirement that the accused be present are explicitly set out in the Statute, most notably in article 63(2) thereof, which deals with the removal of a continuously disruptive accused. Second, the possibility for the accused to waive his or her right to be present at the confirmation hearing is explicitly set out in article 61(2)(a) of the Statute [. . .]. Third, article 58(1)(b) and 58(7) of the Statute allow the Pre-Trial Chamber to issue a warrant of arrest ‘[t]o ensure the person’s appearance at trial’ or a summons to appear if ‘a summons is sufficient to ensure the person’s appearance’. It is clear that excusing an accused from the obligation to attend trial would make a warrant or summons issued on this basis redundant. Fourth, article 67(1)(d) of the Statute incorporates the right of the accused to be present at trial. The inclusion of this provision setting out the right of the accused to be present would be entirely redundant if article 63(1) of the Statute were interpreted as itself encapsulating such a right.”

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c on duc t of tr ial s Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 7. Sep. Op. “In interpreting article 63(1) of the Statute, it seems indisputable that the establishment of the presence of the accused as a requirement is consistent with the gravitas of the proceedings and their importance from the perspective of the victims of the alleged crimes and the international community as a whole.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 8. Sep. Op. In regard to the travaux préparatoires: “[e]ven delegations that supported the creation of broader exceptions to the rule, or the possibility of holding trials in absentia were in agreement that the general rule should remain that the accused would be present”. Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 13. Sep. Op. “The second noteworthy point which may be derived from the travaux préparatoires is that, although proposals for other exceptions to the requirement of presence of the accused were extensively discussed, none were ultimately agreed upon.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 14. Sep. Op. “[H]ad the intention of the drafters been to preclude the possibility of holding a trial in absentia, it would have been possible to frame a provision in those terms, leaving discretion to the Court to excuse an accused person in other circumstances. On the contrary, the drafters agreed on the insertion of an explicit provision requiring the accused to be present during the trial, to which only one exception was articulated. In this case, it is the terms of article 63 of the Statute as ultimately agreed upon that provide the clearest and most obvious point of reference as to the intention of the drafters.” Prosecutor v. Ruto & Sang, Joint Separate Opinion of Judges Kourula & Ušacka in the Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013, para. 15. Sep. Op.

jurisprudence

V “No Case to Answer” Motions 1

The Trial Chamber has Discretion to Determine Whether to Entertain a “No Case to Answer” Motion

“While the Court’s legal texts do not explicitly provide for a ‘no case to answer’ procedure in the trial proceedings before the Court, it nevertheless is permissible. A Trial Chamber may, in principle, decide to conduct or decline to conduct such a procedure in the exercise of its discretion.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 1, 45. “[T]he Appeals Chamber observes that the Court’s legal texts do not expressly provide for a ‘no case to answer’ procedure. Moreover, the Appeals Chamber is not aware of any proposals made or discussions held during the drafting of the Statute or the Rules of Procedure and Evidence (‘Rules’) in relation to such a procedure. Nevertheless, in the view of the Appeals Chamber, a ‘no case to answer’ procedure is not inherently incompatible with the legal framework of the Court. A Trial Chamber may decide to conduct such a procedure based on its power to rule on relevant matters pursuant to article 64(6)(f) of the Statute and rule 134(3) of the Rules. A decision on whether or not to conduct a ‘no case to answer’ procedure is thus discretionary in nature and must be exercised on a case-by-case basis in a manner that ensures that the trial proceedings are fair and expeditious pursuant to article 64(2) and 64(3)(a) of the Statute.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 43, 44.

2 Declining to Entertain a “No Case to Answer” Motion is Permitted “The discretion of the Trial Chamber as to whether or not to conduct a ‘no case to answer’ procedure was not limited by internationally recognised human rights or as a result of the adoption of an adversarial trial structure.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, paras. 2, 56. “The Appeals Chamber further observes that, as stated by the ICTY, a ‘no case to answer’ procedure protects ‘the right of an accused not to be called on to answer a charge unless there is credible evidence of his implication in the offence with which he is charged’. In the context of the Statute, such a procedure is, therefore, most directly connected with the right of the accused ‘to raise defences and to present other evidence admissible under

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c on duct of t r ial s this Statute’ pursuant to article 67(1)(e) of the Statute and, in addition, with the right ‘[n]ot to be compelled to testify [. . .] and to remain silent’ pursuant to article 67(1)(g) of the Statute.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 46. “The Appeals Chamber is not persuaded that the judgment of the ECtHR invoked by Mr Ntaganda, that is Stojkovic v. France and Belgium, establishes that a ‘no case to answer’ procedure constitutes an indispensable safeguard against interference with the right of accused persons not to incriminate themselves. The Appeals Chamber observes that this case is primarily concerned with the accused’s right to legal assistance under the ECtHR, which is not under consideration in this appeal. Accordingly, the ECtHR’s reference to the right of the accused not to incriminate himself or herself does not indicate that, in general, a ‘no case to answer’ procedure is required as a safeguard of the right to a fair trial. Moreover, whilst the ECtHR referred to a ‘no case to answer’ procedure as a safeguard in respect of the right to silence and the right not to incriminate oneself in another case, namely, John Murray v. the United Kingdom, it did so in relation to the specific question whether incriminating inferences may be drawn from the silence of the accused. This matter also falls outside the scope of this appeal and the Appeals Chamber notes that, in any event, the accused in proceedings before the Court are shielded from such inferences under article 67(1)(g) of the Statute. Therefore, this case does not support a general requirement to conduct a ‘no case to answer’ procedure to ensure a fair trial either.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 48. “The Appeals Chamber has, in addition, not been able to deduce from the views of the Human Rights Committee or other jurisprudence of the ECtHR that a ‘no case to answer’ procedure is necessarily required to protect any of the other rights of the accused pursuant to article 14 of the International Covenant on Civil and Political Rights and article 6 of the European Convention on Human Rights.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 49. “The Appeals Chamber recalls that the Court’s legal framework combines elements from the Common Law and Romano-Germanic legal traditions. Notably, it contains certain fair trial safeguards that are not typically found in Common Law systems, such as the obligation of the Prosecutor to ‘investigate incriminating and exonerating circumstances equally’ under article 54(1)(a) of the Statute and the need for a Pre-Trial Chamber to ‘determine whether there is sufficient evidence to establish substantial grounds to believe that the persons concerned committed each

jurisprudence of the crimes charged’ prior to committing the person concerned to trial pursuant to article 61(7) of the Statute. Thus, whilst other jurisdictions may strive to protect the rights of the accused through procedures not found in the Court’s legal texts, the latter espouse other safeguards aimed at protecting these rights. The safeguards defined in the Statute and Rules ensure, on the whole, that the accused before the Court receive a fair trial. In such circumstances, reference to particular domestic and international systems does not, as such, establish that Mr Ntaganda’s fair trial rights required the Trial Chamber to conduct a ‘no case to answer’ procedure.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s “No Case to Answer” Motion, ICC-01/04-02/06-2026 OA6, 5 September 2017, para. 52.

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Commentary

ge orge m ugw an ya The Court’s legal regime enshrines “a comprehensive scheme for the determination and imposition of a sentence”.1 However, the regime nonetheless includes many elements that require judicial interpretation. With one Appeals Chamber2 and four Trial Chamber sentencing judgments3 rendered since the Court’s inception, it may be too early to speak of a settled ICC sentencing pattern. Because some critical sentencing issues were “deferred” by the Appeals Chamber,4 further litigation will also be necessary for a more concrete sentencing jurisprudence to emerge. This commentary addresses a few issues arising in the Court’s sentencing jurisprudence, with a focus on jurisprudence from the Appeals Chamber. The Court’s legal regime establishes a single sentencing framework that applies to all crimes referred to in article 5,5 without specifying a penalty or a scale of penalties for each individual crime or 1

2 3

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Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 32. Ibid. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 04-01/06-2901, 10 July 2012; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/083399, 21 June 2016; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016. As discussed below, in Lubanga, the Appeals Chamber declined to address the interaction between article 78 and rule 145, and the nexus, if any, between the convicted person and aggravating circumstances. See Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 61–66, 90–91. The sentencing framework discussed herein does not cover sanction for article 70 offences against the administration of justice.

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mode of liability.6 Rather, the regime directs the judges to consider a variety of factors in determining a sentence, while allowing them a wide margin of discretion. This commentary particularly assesses how the judges have construed and applied their sentencing discretion.

I Applicable Penalties Under article 77(1) of the Statute and rule 145(3) of the Rules, a Chamber may impose a sentence of imprisonment that does not exceed thirty years, unless “the extreme gravity of the crimes and the individual circumstances of the convicted person” warrant a term of life imprisonment.7 In addition to imprisonment, the Court may order a fine or forfeiture.8 Based on article 77’s plain terms, no other penalties may be imposed. Non-custodial sentences or physical punishment are excluded. Moreover, fines and forfeitures cannot be ordered exclusively or alternatively, but in addition to imprisonment. So far, the Court’s Chambers have imposed neither a life sentence nor thirty years’ imprisonment.9 They have also not ordered fines or forfeitures. The Lubanga and Katanga Trial Chambers justified these decisions on the absence of “any aggravating factors in [the] case”,10 citing article 77 and/or rule 145(3).11 As noted above, both article 77(1) (b) and rule 145(3) provide that “[l]ife imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”, but to this, rule 145(3) adds “as evidenced by the existence of one or more aggravating circumstances” (emphasis added). Since the existence of one or more aggravating factors is one of the prerequisites for the imposition of a life sentence, it is critical that 6

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Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 91. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, paras. 21, 94. Article 77(2); Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 22. In Lubanga, the Prosecutor had specifically requested the Chamber to impose a thirtyyear sentence on Lubanga: Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 95. Ibid., para. 96; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 144 (also noting the existence of two mitigating circumstances in the case). Ibid., paras. 94, 96; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 142.

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the Court carefully construes what constitutes “aggravating factors”.12 Arguably, it should also not easily place factors normally categorised as aggravating factors into a different classification, such as the gravity of the crimes or the degree of the convicted person’s participation in the crimes. Thus, a Chamber’s conclusion that there were no aggravating circumstances can be reached only after a careful evaluation and correct categorisation of all the relevant factors before it. In the Lubanga and Katanga cases, it remains an open question as to whether the Trial Chambers properly found that there were no aggravating factors. This is because certain factors, such as Lubanga’s and Katanga’s “abuse of authority or trust”, arguably constituted aggravating factors. In Lubanga, the Appeals Chamber rejected the Prosecutor’s appeal against the Trial Chamber’s failure to consider abuse of authority or trust as an aggravating factor.13 Rather, it concluded that “the Trial Chamber did not err in not taking into account Mr Lubanga’s abuse of power as an aggravating factor when it had already considered it in its assessment of the gravity of the crime”.14 It also noted that “rule 145(2)(b) [. . .] requires a Chamber to take into account, as appropriate, abuse of power or official capacity as an aggravating circumstance”.15 The Lubanga Trial and Appeal Judgments are contentious. First, although rule 145(2)(b)(ii) allows a Chamber to consider any aggravating factor as appropriate, the Trial Chamber did not elucidate why it was not appropriate to consider abuse of authority as an aggravating factor in the case. Arguably, it should have explained why the absence of “abuse of authority” on the part of Lubanga undermined the sufficiency of his contribution to the common plan. On appeal, the Appeals Chamber, too, did not closely assess the appropriateness or correctness of the Trial Chamber’s approach.16 It could also be argued that the findings in the Conviction Judgment that the Trial Chamber referred to in the Sentencing Judgment when considering Lubanga’s degree of participation and intent17 dealt with Lubanga’s role in the common plan other than his abuse of authority or 12

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14 17

In addition, the Prosecutor’s decision to categorise any factor, for instance, as either part of the “gravity of the crimes” or as an “aggravating factor” must be the result of a careful assessment. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 78–85. Ibid., para. 85. 15 Ibid., para. 81 (emphasis added). 16 Ibid., para 18. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 52, referring to the Conviction Judgment, para. 1356.

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trust. Therefore, the consideration of abuse of authority as an aggravating factor would not have amounted to “double counting”. The jurisprudence of the ad hoc tribunals is instructive on this point. In Nikolić, for instance, the ICTY’s Appeals Chamber found that in sentencing there was a distinction between an accused’s role in the crimes and his abuse of authority.18 Therefore, there is no “double counting” if a Trial Chamber takes into account an accused’s role in the crimes when assessing the gravity of the crimes and his or her abuse of position or authority as an aggravating factor.19

II Determination of Sentences and Scope of Judicial Discretion The Court’s statutory regime does not specify a penalty for each crime. Although it specifies the nature and scope of penalties that may be imposed and identifies factors that judges are to consider in determining sentences, the Appeals Chamber has underscored that it does “not lay down any explicit requirements for how the factors should be balanced”.20 The sentencing framework thus confers a measure of discretion on judges in the determination of sentences.21 This, however, raises a critical issue that confronts virtually all criminal justice systems, both national and international;22 in determining sentences, how in practice are the judges to construe statutory regimes respecting the scope of their discretion? How has the Appeals Chamber interpreted such discretion? Has it construed it as more or less unfettered or as limited by identifiable sentencing criteria? Sentencing Decisions are appealable as of right by both the convicted person and the Prosecutor.23 Based on the Appeals Chamber’s approach in the sole existing sentencing judgment thus far, is the appeal process a viable additional safeguard for redressing abuses of sentencing discretion and for laying a strong foundation for a systematic and consistent sentencing 18

19 20

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Prosecutor v. Momir Nikolić, IT-02-60/1-A, Judgment on Sentencing Appeal, 8 March 2006, paras. 59–61. Ibid. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 40. Ibid., para. 34. See Meernik J., “Proving and Punishing Genocide at the International Tribunal for Rwanda”, International Criminal Law Review Vol. 1 (2004); Drumbl, M. and Gallant, K., “Sentencing Policies and Practices in the International Criminal Tribunals”, Federal Sentencing Reporter Vol. 15, Issue 2 (2002). Article 81(2)(a).

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practice? These issues are important. Unfettered sentencing discretion creates room for different Chambers at the Court to return Sentencing Decisions that are unsystematic across time and cases. While sentences must be tailored to the individual circumstances in each case, inconsistencies in sentencing, especially in relation to substantially similar cases, may violate the principles of legality and equality of protection.24

a Statutory Sentencing Factors vis-à-vis Sentencing Discretion Based on their “intimate knowledge of the case”, Trial Chambers are obligated to identify, take into account and balance all relevant factors before them in determining a sentence.25 This determination involves an exercise of discretion.26 In exercising discretion, the aim of every Chamber must always be “to impose a proportionate sentence that reflects the culpability of the convicted person”.27 Therefore, regulating the judges’ sentencing discretion are key factors and certain principles embedded in the sentencing framework and/or elucidated by the Appeals Chamber, notably totality, proportionality and individualisation. Article 78(1) “[r]equires that a Trial Chamber consider ‘such factors as the gravity of the crime and the individual circumstances of the convicted person’”.28 Under rule 145(1)(c), a Chamber is also under an obligation “to give consideration to a non-exhaustive list of additional factors”.29 These include the extent of the damage caused, in particular the harm caused to the victims and their families; the nature of the unlawful behaviour and the means employed to execute the crime; the degree of 24

25

26 28

29

See van Zyl Smit, D., “Sentencing and Punishment”, in Chaskalson et al. (eds.), Constitutional Law of South Africa (Juta: Kenwyn, SA, 1996), pp. 28–32; Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 756; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 74 (referring to the Prosecutor’s submissions on the point). Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 32–34. In his Partly Dissenting Opinion, Judge Song takes the view that every Chamber should take into account three overall factors when determining sentence, namely: the gravity of the crime; aggravating and mitigating circumstances; and individual circumstances of the convicted person: Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Sang-Hyun Song, ICC-01/04-01/06-3122, 1 December 2014, para. 4. Ibid., para. 34. 27 Ibid. (emphasis added). Ibid., para. 32 (emphasis added). See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 17, 23. Ibid.

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participation of the convicted person; the degree of intent; the circumstances, manner, time and location; and the age, education, social and economic condition of the convicted person. Moreover, pursuant to rule 145(2), a Chamber is required “to take into account, ‘as appropriate’ ‘[i]n addition to the factors mentioned’ in rule 145(1)(c) of the Rules of Procedure and Evidence, any mitigating and aggravating circumstances”.30 The weight to be accorded to a factor lies in the Trial Chamber’s discretion,31 and the Appeals Chamber “will only intervene if the Trial Chamber’s exercise of discretion [. . .] was so unreasonable as to constitute abuse of discretion”.32 In the Appeals Chamber’s view, regardless of the interpretative approach given as to how article 78 and rule 145 interact,33 after identifying and taking into account all the relevant factors, a Chamber is under an obligation to “balance all the relevant factors and pronounce a sentence”.34 In all situations, a Chamber must also consider the overarching requirement that the totality of any sentence must reflect the culpability of the convicted person, pursuant to rule 145(1)(a).35 Finally, once the sentence has been determined, a Chamber must deduct “[a]ny time that the convicted person spent in detention upon an order of the Court”.36 The Court may also deduct time during which the convicted person was “otherwise” detained “in connection with conduct underlying the crime”.37

b Determination of Relevance From the above summary of the ICC’s sentencing jurisprudence, it is clear that although judges have discretion, certain restrictions are imposed. One of the restrictions concerns the judges’ identification and consideration of relevant factors. How far does this restriction go? On the one hand, the jurisprudence suggests that certain factors specifically mentioned in the sentencing framework are mandatory, based on the use of “shall” in the Statute or Rules.38 Yet, on the other hand, a key 30 33

34

35 36

37 38

Ibid., para. 32 (emphasis added). 31 Ibid., paras. 43, 111. 32 Ibid., para. 72. The contentions arising from the Appeals Chamber’s refusal to address how these provisions interact are discussed below. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 33. Ibid. Ibid., para. 35. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 24. Ibid. Article 78; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras.

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conclusion in Lubanga – the only sentencing appeal judgment thus far – appears to create confusion as to whether judges have discretion in determining the relevance of factors specifically identified by the statutory regime as mandatory. Following its review of the statutory provisions on sentencing (i.e., articles 77, 78 and rule 145), and reaching the conclusions discussed above, the Lubanga Appeal Judgment underscored that these provisions “indicate that, in order to determine a sentence, the Trial Chamber, based on its intimate knowledge of the case, will have to balance all factors it considers relevant”.39 Can a Chamber consider a mandatory sentencing factor irrelevant? Or are such mandatory factors always relevant? Arguably, because certain sentencing factors are mandatory (such as the gravity of the crime and the individual circumstances of the convicted person), a Trial Chamber must take them into account and balance them with all other (non-mandatory) factors in determining a sentence.

c The Convicted Person’s Culpability and the Principle of Proportionality: Gravity in Abstracto or in Concreto? As noted above, the Appeals Chamber has underscored that an overarching requirement is that the totality of any sentence must reflect the culpability of the convicted person,40 and there must be proportionality between the sentence and the convicted person’s culpability.41 It has stated that “[p]roportionality is generally measured by the degree of harm caused by the crime and the culpability of the perpetrator, and in this regard relates to the determination of the length of the sentence”.42 The ad hoc tribunals have also added that proportionality does not imply that one’s sentence must be proportionate to the sentence of other offenders in other cases.43 Based on this jurisprudence, an argument

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32–33 (finding that the Court is “required” to consider the specified factors) and para. 42; Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 04-01/06-2901, 10 July 2012, para. 23. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 34 (emphasis added). Ibid., paras. 33, 40. Ibid., para. 40. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 26, 36, 93. Ibid., para. 40. For the ICTR, see, e.g., Kamuhanda v. Prosecutor, ICTR-99-54A, Judgment, 9 September 2005, para. 359. For the ICTY, see, e.g., Prosecutor v. Dragan Nikolić, IT94-2-A, Judgment on Sentencing Appeal, 4 February 2005, para. 21.

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raised by Lubanga that he was not “among those most responsible for the events” in further support of a “proportionate” sentence is legally wrong.44 But what does “culpability of the convicted person” mean? Beyond the above statements, thus far the ICC’s Appeals Chamber has not elucidated this concept, although Trial Chambers, including in Lubanga, expressed an opinion on it. Indeed, in Lubanga the Appeals Chamber declined to take a definitive position on the relationship between article 78 and rule 145. By declining to interpret this interaction, the Appeals Chamber’s approach omits a critical aspect of the ICC’s sentencing framework. This would have provided useful guidance to Trial Chambers. For instance, as already noted, article 78 obligates every Trial Chamber to consider, among other things, the “gravity of the crime” and the “individual circumstances of the accused”. But how is the gravity of an accused’s crime to be determined? Is it by assessing the objective seriousness of the crime in the abstract? Or is it an examination of gravity in concreto, by assessing the totality of the surrounding circumstances in a specific case, including the form or degree of the accused’s participation in the crimes, the degree of intent, the scale and cruelty in the perpetration of the crimes (etc.)? And in this context, how do the factors enumerated in rule 145(1) (c) interact, if at all, with article 78? At the ad hoc tribunals, overall, the Appeals Chambers have taken a definite position, preferring an evaluation of gravity in concreto.45 In the Lubanga case, the Appeals Chamber only identified potential interpretative approaches, without committing itself to any one of them. The first one views article 78(1) as setting out the mandatory factors as separate from those listed in rule 145(1)(c).46 Under this approach, gravity is assessed in abstracto, and the factors in rule 145 are evaluated separately.47 As a variation of this approach, “it would also be possible to conclude that some of the factors of rule 145(1)(c) [. . .] are subsumed by 44

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Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 83. In their view, determination of the “gravity of the crime” requires consideration of the particular circumstances of the case, as well as the form and degree of the convict’s participation in the crime. For the ICTR, see, e.g., Prosecutor v. Bikindi, ICTR-01-72-A, Judgment, 18 March 2010, para. 145; Rukundo v. Prosecutor, ICTR-2001-70-A, Judgment, 20 October 2010, para. 243. For the ICTY, see, e.g., Prosecutor v. Kupreškić, IT-95-16-A, Judgment, 23 October 2001, paras. 442, 852. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 62. Ibid.

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the factors set out in article 78(1) of the Statute, but others remain separate factors”.48 Finally, another approach takes the view that “[t]he factors listed in rule 145(1)(c) [. . .] could be seen as part of, and must be taken into account for purposes of assessing, the factors listed in article 78(1) of the Statute. In this respect, these factors could be said to provide the meaning and scope of article 78(1) of the Statute.”49 In declining to take any particular position, the Appeals Chamber explained that it was not necessary in the context of the present appeals to determine which of the possible approaches to the interaction between the factors of article 78(1) [. . .] and those of Rule 145(1)(c) is correct. In the Appeals Chamber’s view, regardless of which interpretation is followed, the issue is whether the Trial Chamber considered all the relevant factors and made no error in the weighing and balancing exercise of these factors in arriving at the sentence.50

The Lubanga Trial Chamber appears to have adopted the gravity in concreto approach.51 Other Trial Chambers have pursued the same approach – although they have also considered that while all article 5 crimes are the most serious, they are not necessarily of equivalent gravity.52 Here, for instance, they draw a dichotomy between crimes against persons and those targeting property.53 This suggests that these Chambers have also considered gravity in abstracto. Crucially, some of the Chambers have considered the factors in rule 145(1)(c) as relevant in assessing aggravating and/or mitigating factors.54 Because of the disparity in approaches across different Chambers, the relationship between the factors in rule 145(1)(c) and those in article 78 requires the Appeals Chamber’s definitive interpretation “as the final arbiter of what the law warrants on the appealable subject”.55 This is 48 51

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Ibid., para. 63. 49 Ibid., para. 64. 50 Ibid., para. 66. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 44. See, e.g., Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, paras. 42–69; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, paras. 71–72, 76–82. See, e.g., Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 43; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 72. Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 13; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 69 (see also fn. 118). Prosecutor v. Lubanga, Decision on Lubanga’s Request for Suspensive Effect, ICC-01/0401/06-1444-Anx OA12, 20 August 2008, Separate Opinion of Judge Pikis, para. 6. Sep. Op.

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necessary to guide Trial Chambers. Moreover, as underscored by Judge Song in his Partly Dissenting Opinion, “to ensure a consistent sentencing practice, the Appeals Chamber should have provided further guidance on how a Trial Chamber should take these factors into account when determining sentence”.56 In Judge Song’s view, the factors mentioned in rule 145(1)(c) inform those in article 78,57 in essence upholding the gravity in concreto approach taken by the majority of the Trial Chamber and by Judge Elizabeth Odio Benito in her Dissenting Opinion.58 Judge Song concluded that the following factors in rule 145(1)(c) must be considered in relation to the gravity of the crime under article 78(1): the extent of the damage caused, in particular the harm caused to the victims and their families; the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; and the circumstances of manner, time and location.59 Moreover, “the age, education, social and economic condition of the convicted person should be considered in the context of the individual circumstances of the convicted person pursuant to article 78(1) of the Statute”.60 Also requiring the Appeals Chamber’s definitive position is the relationship between the “ostensibly neutral”61 factors in rule 145(1)(c) and aggravating (or mitigating) factors in rule 145(2). At the ad hoc tribunals, many of the factors mentioned in rule 145(1)(c) have been characterised as aggravating circumstances.62 The Trial Chambers in Bemba and Al 56

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Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, para. 1. Ibid., para. 2. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, Dissenting Opinion of Judge Odio Benito, para. 23. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, para. 3. Ibid., para. 3. Schabas, W. A., The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), p. 903. These include: (a) the magnitude of the crimes, the number of victims and impact of the crimes on them (Prosecutor v. Kambanda, ICTR-97-23-A, Judgment and Sentence, 4 September 1998, paras. 42, 61–62; Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, para. 686); (b) the personal, active or direct involvement of the convict in the crimes (Prosecutor v. Musema, ICTR-96-13-A, Judgment and Sentence, 27 January 2000, para. 1002; Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, para. 868); (c) the callous, brutal or vicious manner or circumstances in which the crimes were perpetrated (Prosecutor v. Niyitegeka, ICTR-96-14-T, Judgment and Sentence,

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Faqi considered the article 145(1)(c) factors to be relevant to the assessment of aggravating and mitigating circumstances.63 Overall, while the Court’s jurisprudence thus far appears to consider that the rule 145(1)(c) factors inform those in article 78, the rule 145(1)(c) factors have variously been construed across different Chambers. Some construe them as defining the gravity of the crime, while others construe them as individual circumstances of the accused or as mitigating or aggravating circumstances. These disparities show that a definitive position from the Appeals Chamber is needed.

d

Individualisation vis-à-vis Consistency and the Relevance of Previous Sentencing Decisions Related to the principle of proportionality is the concept of “individualisation” in sentencing. The ad hoc tribunals have extensively discussed this principle together with the principle of “totality” and the role of previous sentences in sentencing. In their view, Trial Chambers may go beyond the factors spelled out in the sentencing framework. This is because: [t]he right to take into account other pertinent factors goes hand in hand with the overriding obligation to individualize a penalty to fit the individual circumstances of the accused, the overall scope of his guilt and the gravity of the crime the overriding consideration being that the sentence to be imposed must reflect the totality of the accused’s criminal conduct.64

In determining sentence, are ICC judges permitted to go beyond the factors specifically mentioned in the Court’s sentencing statutory framework? What is the role of previous Sentencing Decisions? While further elucidation is necessary, the Appeals Chamber has addressed similar principles. It also has found the ad hoc tribunals’ jurisprudence persuasive. The Appeals Chamber has recognised that the list of factors to consider in sentencing is not closed. Thus, in addition to the mandatory

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16 May 2003, para. 499; Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, para. 686); (d) the length of time during which the crimes were perpetrated (Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, ICTR-96-10 & 96-17-T, Judgment, 21 February 2003, para. 912; Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, para. 686). Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 13; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 69. Prosecutor v. Akayesu, ICTR-96-4-A, Judgment, 1 June 2001, para. 416 (emphasis added). For the ICTY, Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 771.

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factors in article 78(1), Trial Chambers are to “give consideration to a non-exhaustive list of additional factors”65 pursuant to rule 145(1)(c).66 A Chamber may also consider factors as constituting mitigating or aggravating factors beyond those specifically enumerated in rule 145(2)(a) and (b). The overarching requirement for every Chamber is that “the totality of any sentence [. . .] must reflect the culpability of the convicted person”.67 More specifically, the Appeals Chamber has examined individualisation when assessing the relevance of previous decisions on sentencing.68 Previous decisions may provide guidance in sentencing, but have limits,69 because the ICC’s statutory regime requires judges to impose a sentence that is “‘appropriate’ and [. . .] based on all the relevant factors of the specific case”.70 Given this, “[it] makes it difficult, at the least, to infer from the sentence that was imposed in one case the appropriate sentence in another case”.71 Based on the Court’s sentencing judgments thus far, it is not clear how much significance the judges will attach to the principle of consistency in sentencing, especially in the future when sentencing judgments increase. Although, as shown above, the Appeals Chamber acknowledges the limits of previous Sentencing Decisions, it is likely the Chamber will not completely disregard the need for consistency. Indeed, while the ad hoc tribunals have noted the limits of previous Sentencing Decisions, they have also underscored that such decisions should guide Chambers in the interests of consistency.72 In their view, consistency “is an important reflection of the notion of equal justice”,73 and is indispensable in ensuring “public confidence in the administration of criminal justice”.74 Such 65

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68 71 72

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Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 32 (emphasis added). The Court’s sentencing regime provides for a non-exhaustive list of other sentencing factors. Article 78(1), mandates the Court to take into account “such factors as the gravity of the crime and the individual circumstances of the convicted person” (emphasis added). In addition to the factors mentioned in article 78(1), pursuant to rule 145(1)(c), the Chamber shall give consideration, inter alia, to the extent of the damage caused etc. The lists of mitigating and aggravating factors in rule 145(2) are also non-exhaustive. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 33. Ibid., paras. 76–77. 69 Ibid., para. 76, and cases cited in fn. 128. 70 Ibid., para. 77. Ibid. For the ICTR, see, e.g., Semanza v. Prosecutor, ICTR-97-20-A, Judgment, 20 May 2005, para. 394. For the ICTY, see, e.g., Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 756. Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 756. Ibid., para. 756.

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confidence may be undermined when “these institutions give an appearance of injustice by permitting substantial inconsistencies in the punishment of different offenders, where the circumstances of the different offences and of the offenders being punished are sufficiently similar that the punishments imposed would, in justice, be expected to be also generally similar”.75

e The Safeguard of Appeal The Appeals Chamber has held that appellate intervention is corrective, not a de novo assessment. According to article 83(2) and (3): [t]he Appeals Chamber’s primary task is to review whether the Trial Chamber made any errors in sentencing the convicted person. The Appeal Chamber’s role is not to determine, on its own, which sentence is appropriate, unless – as stipulated in article 83(3) of the Statute – it has found that the sentence imposed by the Trial Chamber is “disproportionate” to the crime. Only then can the Appeals Chamber “amend” the sentence and enter a new, appropriate sentence.76

The ad hoc tribunals pursue a similar approach.77 Underscoring that Trial Chambers enjoy broad discretion in the determination of sentences, the ICC Appeals Chamber stated that it will not interfere in such discretion merely because it might have made a different ruling. Rather, its review of a Trial Chamber’s Sentencing Decision must be deferential and it will only intervene if: (i) the Trial Chamber’s exercise of discretion is based on an erroneous interpretation of the law; (ii) the discretion was exercised based on an incorrect conclusion of fact; or (iii) as a result of the Trial Chamber’s weighing and balancing of the relevant factors, the imposed sentence is so unreasonable as to constitute an abuse of discretion.78

Where a Chamber omits a mandatory sentencing factor, this “can amount to a legal error in the context of challenging the Trial 75 76

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Ibid. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 39. For the ICTY, see, e.g., Prosecutor v. Kupreškić, IT-95-16-A, Judgment, 23 October 2001, para. 408; Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, para. 717. For the ICTR, see, e.g., Semanza v. Prosecutor, ICTR-97-20-A, Judgment, 20 May 2005, para. 312; Rukundo v. Prosecutor, ICTR-2001-70-A, Judgment, 20 October 2010, para. 240. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 44.

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Chamber’s discretionary decision on sentencing”.79 In any event, as per article 83(2), the Appeals Chamber will intervene in a Sentencing Decision only if it was materially affected by an error of fact or law or procedural error.80 The material effect of such error “is only established if the Trial Chamber’s exercise of discretion led to a disproportionate sentence”.81 An issue arising from this is whether the ICC’s appeal process is a viable additional safeguard for (a) redressing any abuses of sentencing discretion, and (b) laying a strong foundation for a systematic/consistent sentencing practice. It may be too early to provide a definitive assessment, but on a prima facie examination of standards of appellate review articulated by the Appeals Chamber, an appeal is a critical safeguard. The standards of appellate review articulated by the Appeals Chamber impose a high burden on the Appellant to demonstrate why appellate intervention is justified. The Appeals Chamber’s deferential approach to Trial Chambers’ decisions suggests that the Appeals Chamber will intervene only under limited conditions.82 Arguably, these may limit the remedial reach of appeals. Nevertheless, the Court’s emphasis on the principle of proportionality is significant. It means that the Appeals Chamber’s mandate, though not involving a de novo assessment, should always focus on assessing the proportionality between the sentence and the convicted person’s culpability.83 Moreover, the Appeals Chamber must closely assess the degree of harm caused by the crime and the culpability of the perpetrator.84 The standards of appellate review above have been embraced by the ad hoc tribunals. While the effectiveness of the “safeguard of appeal” there in streamlining sentencing practices is debatable,85 a few examples show that appellate intervention remedied some Trial Chambers’ failure to properly exercise sentencing discretion.86 It may thus be argued that, 79 83

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Ibid., para. 42. 80 Ibid., para. 45. 81 Ibid. 82 Ibid., para. 41. Ibid., para. 40. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 26, 36, 93. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 40. See generally, D’Ascoli, S., Sentencing in International Criminal Law: The UN ad hoc Tribunals and Future Perspectives for the International Criminal Court (Hart: Oxford, 2011); Meernik, J., “Proving and Punishing Genocide at the International Criminal Tribunal for Rwanda”, International Criminal Law Review Vol. 1 (2004), pp. 65–81. At the ICTR, see, e.g., Gacumbitsi v. Prosecutor, ICTR-2001-64-A, Judgment, 7 July 2006, paras. 204–206; Prosecutor v. Seromba, ICTR-2001-66-A, Judgment, 12 March 2008, paras. 238–239. Some decisions have not been impressive – with the Appeals Chamber

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whether or not the ICC’s appeal proceedings will constitute a viable safeguard will very much depend on how the Appeals Chamber practically views the scope of the so-called “deferential approach”. In the cases where the Appeals Chambers of the ad hoc tribunals have intervened, they have underscored that the Trial Chambers’ sentencing discretion is not unlimited, and that “[i]t is the Appeals Chamber’s prerogative to substitute a new sentence when the one given by the Trial Chamber simply cannot be reconciled with the principles governing sentencing at the Tribunal”.87 The Appeals Chamber’s refusal to intervene in Lubanga’s fourteenyear sentence imposed by the Trial Chamber is debatable. The Trial Chamber found multiple factors that rendered the crimes particularly grave, including, among others, that the three crimes against children “are undoubtedly very serious crimes that affect the international community as a whole”.88 Moreover, “the crime of conscription is distinguished by the added element of compulsion”.89 Lubanga was responsible as a co-perpetrator90 for widespread enlistment of children under the age of fifteen.91 There was evidence that children were rerecruited after their demobilisation.92 In dismissing the Prosecutor’s appeal, the Appeals Chamber upheld the Trial Chamber’s findings that there were no aggravating factors – specifically with respect to Lubanga’s abuse of authority and trust.93 As argued above (under “applicable penalties”), the Chamber’s approach on this matter is contentious. The Chamber’s rejection of the Prosecutor’s appeal against the refusal by the majority of the Trial Chamber to consider the cruel treatment and rape of the children as an aggravating factor is similarly contentious.94 As argued below (under subsection (f), Aggravating Circumstances), the

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not intervening, or revising the sentences slightly, notwithstanding the magnitude of the crimes and the convicts’ pre-eminent roles in them. See, e.g., Semanza v. Prosecutor, ICTR-97-20-A, Judgment, 20 May 2005. Two of the five judges dissented: see para. 395. Gacumbitsi v. Prosecutor, ICTR-2001-64-A, Judgment, 7 July 2006, para. 205. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 37. Ibid., para. 37. 90 Ibid., para. 52. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-122 A4 A6, 1 December 2014, para. 102, referring to Trial (Conviction) Judgment, para. 911 and Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 49. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 70. Ibid., paras. 80–85. 94 Ibid., paras. 88–93.

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Trial Chamber appears controversially to have required proof that the convicted person perpetrated the aggravating circumstances much like the crimes underpinning his or her convictions. The Appeals Chamber declined to elucidate the nexus between the convicted person and the alleged aggravating circumstances. Given the importance of this issue, the Chamber’s intervention would have provided the most needed guidance. The Appeals Chamber also held that there were indications that the Trial Chamber took into account all of the relevant circumstances that the Prosecutor alleges were ignored.95 It is not clear that the Appeals Chamber adequately addressed whether the Trial Chamber had accorded the relevant factors sufficient weight. In some instances, the Appeals Chamber acknowledges that the Trial Chamber had not specifically or adequately addressed some factors, yet it controversially concluded that it had not committed any discernible error in the weight it had accorded them.96 It is not clear how a Trial Chamber could have properly weighed factors it had not specifically included in its assessment.

f Aggravating Circumstances Under rule 145(2), a Chamber is required “to take into account as ‘appropriate’ ‘[i]n addition to the factors mentioned’ in rule 145(1)(c) [. . .], the factors of any mitigating and aggravating circumstances”.97 Under rule 145(2)(b), the Court shall take, as appropriate, the following factors as aggravating circumstances: (a) any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature; (b) abuse of power or official capacity; (c) commission of the crime where the victim is particularly defenceless; (d) commission of the crime with particular cruelty or where there were multiple victims; (e) commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21(3); and (f) other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned. The Court’s case law thus far has elucidated only a few of these and other aggravating circumstances. Concerning abuse of power or authority (if not considered under gravity of the crimes), the Appeals Chamber has held that what constitutes the aggravating factor is not the position of 95 97

Ibid., paras. 68–71. 96 Ibid., paras. 69, 73. Ibid., para. 32. See also Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 23.

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authority or high rank taken alone, but that position or rank coupled with the manner in which the authority is exercised.98 The Trial Chambers have also briefly addressed the brutality and harshness of the crimes;99 other crimes committed together with or during the commission of the crimes for which the accused was convicted;100 the age of the victims (in support of the aggravating circumstance of “commission of the crime where the victim is particularly defenceless” under rule 145(2)(b)(iii));101 and the multiplicities of victims/scale of victimisation.102 In Lubanga, the Trial Chamber, with limited elucidation, found that, “motive involving discrimination” pursuant to rule 145(2)(b) has not been treated as an aggravating factor,103 while in Al Faqi, the Chamber considered the discriminatory religious motive relevant to its assessment of the gravity of the crime.104 The list of aggravating factors is not exhaustive; rule 145(2)(b) provides that “other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned” may also qualify as aggravating circumstances. With few exceptions, such as prior criminal convictions or conduct during trial, many aggravating factors are linked to the crime for which the accused is being punished. The Bemba and Al Faqi Trial Chamber judgments hold that aggravating factors must relate to the crimes upon which the person was convicted and to the convicted person himself.105 The absence of mitigating factors does not serve as an aggravating circumstance.106 Aggravating factors need not be 98

99

100 102

103

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106

Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 82, endorsing jurisprudence from the ad hoc tribunals. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, paras. 57, 59. Ibid., para. 67. 101 Ibid., paras. 77–78. Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 87 (but the Chamber declining to consider it as an aggravating circumstance because it had already considered “the far-reaching impact of the crimes” in its assessment of the gravity of the crimes). Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 81. Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 81. Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 18; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 73. Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 18; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 73; Prosecutor v. Lubanga, Decision on

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charged,107 but the Prosecutor bears the burden of proving them beyond reasonable doubt.108 But what is the nature of the convicted person’s “culpability” for aggravating circumstances? The Lubanga Trial Judgment took the position that it must be proven that Mr Lubanga intended or was aware of the alleged aggravating circumstances (in that case, cruel treatment and rape of the victim children), or that such circumstances could be attributed to him in a way that reflects his liability.109 In rejecting consideration of cruel treatment and rape as aggravating factors, the Trial Chamber concluded, inter alia, that nothing suggested intent, awareness or any other form of culpability on the part of Lubanga.110 Although the Appeals Chamber took the view that the Trial Chamber “did not expressly state which nexus” of culpability must be applied, it considered that “this does not need to be determined in order to resolve this ground of appeal, because irrespective of what the standard should be, it would have no impact on the Trial Chamber’s conclusion as based on its findings, even the lower standard was not met”.111 Arguably, the Appeals Chamber’s justification for not addressing the issue is controversial. The issue underlying the Prosecutor’s appeal was the nature of the “nexus” that must be established between the convicted person and aggravating circumstances. This issue remained alive or relevant in the appeal regardless of whether the Trial Chamber had propounded two alternative thresholds and applied one of them. It was necessary for the Appeals Chamber to determine which approach was the correct one and whether or not the Trial Chamber had erred. In any event, it may also be argued that the essence of all the Trial Chamber’s

107

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Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 33. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 67. Ibid., paras. 33, 69; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/08-3399, 21 June 2016, para. 18; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484tENG-Corr, 23 October 2015, para. 34; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 73. For a similar position at the ad hoc tribunals, see, e.g., the ICTR’s Nahimana et al., ICTR-99-52-A, Judgment, 28 November 2007, para. 1038. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, paras. 59, 69, 74. Ibid., paras. 59, 74. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 91.

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findings above regarding the nature of culpability for aggravating circumstances is that the convicted person must perpetrate (or be responsible) for the aggravating circumstances basically in the same manner as the crimes underpinning his or her conviction. However, a convicted person need not perpetrate the aggravating circumstances for a Chamber to take them into account in sentencing. In most crimes, many aggravating circumstances are a matter of course, or occur once the crime is set in motion, regardless of whether or not the accused intended them. Others may not be necessarily obvious but must also be considered in sentencing, because they directly flow from the crime. It cannot be argued that the accused thereby suffers an injustice, as long the aggravating circumstances are determined to be directly flowing from the crime and were objectively foreseeable. The ad hoc tribunals’ jurisprudence supports this position.112

g Mitigating Circumstances Under rule 145(2)(a), the Court shall take into account, as appropriate, mitigating factors such as (a) circumstances falling short of constituting grounds for exclusion of criminal responsibility; (b) the convicted person’s conduct after the act, including efforts by the person to compensate the victims; and (c) any cooperation with the Court. Rule 145(2)(a) does not exhaustively define the factors that may be considered mitigating. The Appeals Chamber is yet to elucidate many of the mitigating factors. As is shown by the Court’s sentencing judgments thus far, beyond the factors specifically mentioned, Trial Chambers enjoy discretion in determining what constitutes mitigating circumstances.113 Establishing the existence of mitigating 112

113

For the ICTY, see, e.g., Prosecutor v. Deronjić, IT-02-61-A, Judgment on Sentencing Appeal, 20 July 2005, paras. 124–125. Mitigating factors identified in the Court’s case law include: (a) serious rights violations, such as trial delays (Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 109); (b) cooperation with the Court (Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 9; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/08-3399, 21 June 2016, para. 81; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG -Corr, 23 October 2015, para. 127); (c) admission of guilt (Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 98); (d) expression of remorse, if sincere (Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 117; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171,

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circumstances is relevant only for “diminishing” the sentence, and by no means lessens the gravity of the crime.114 Unlike aggravating circumstances, mitigating circumstances are to be established on a balance of probabilities.115 The Court has justified this low threshold based on the dubio pro reo principle.116 Mitigating factors need not relate to the crimes,117 but they must relate directly to the convicted person.118 Once a Trial Chamber determines that a certain factor is a mitigating circumstance, the weight to accord such factor lies in the Trial Chamber’s discretion.119 For the Appeals Chamber to intervene, an Appellant must demonstrate “[t]hat the weight given to [such] mitigating factor by the Trial Chamber was so unreasonable as to constitute an abuse of discretion”.120

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27 September 2016, paras. 103–105); (e) peace-building, if genuine and concrete (Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/05-01/08-3399, 21 June 2016, paras. 72–73, 91); (f) family circumstances, if exceptional (Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/08-3399, 21 June 2016, paras. 77–78; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, para. 96; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG -Corr, 23 October 2015, para. 88). Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 77. Selective assistance to victims and claims that one was responding to threats of violence, are of limited, if any, relevance: Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 87; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/08-3399, 21 June 2016, para. 72. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 34; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 34; Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/1201/15-171, 27 September 2016, para. 74; Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/05-01/08-3399, 21 June 2016, para. 19. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 34. Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 19; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/07-3484-tENG-Corr, 23 October 2015, para. 32. The ad hoc tribunals appear to take a different position. See e.g., the ICTY’s Kunarac et al., IT-96-23/1-A, Judgment, 12 June 2002, para. 408. Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, paras. 19, 70. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 111. Ibid.

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III Other Issues and Conclusion Under article 78(1), a sentencing Chamber is obligated to consider the “individual circumstances” of the convicted person. This article does not identify what constitutes “individual circumstances”. According to the Lubanga Trial Judgment, and Judge Song’s Partly Dissenting Opinion on appeal, individual circumstances are to be informed by those factors as set out in rule145(c); they include the age, education, social and economic conditions of the convicted person.121 But what is the status quo of “individual circumstances”? Do they inform the “gravity of the crime” or should they be considered “aggravating” or “mitigating” circumstances? The Court’s jurisprudence thus far is not clear. Some Chambers do not categorise them,122 while others seem to view them through the lenses of aggravating or mitigating circumstances.123 Under article 78(2) of the Statute, after determining the sentence, the Court shall deduct the time previously spent in detention in accordance with an order of the Court.124 The use of “shall” means that a Chamber has no discretion in the matter. The Court may also deduct any time otherwise spent in detention in connection with conduct underlying the crime.125 This involves discretion.126 Overall, the time spent in detention in accordance with the Court’s order, including the period of provisional detention in a State pending transfer to the Court’s detention facilities pursuant to article 58(5) and detention throughout trial until the Sentencing Decision, does not pose interpretative controversies.127 121

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Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 54; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/0401/06-3122 A4 A6, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, para. 4. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 56. Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, paras. 94–105. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 100. Ibid. Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/07-3484-tENG-Corr, 23 October 2015, Dissenting Opinion of Judge Christine Van den Wyngaert, para. 5. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 108.

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However, the interpretation of “otherwise spent in detention in connection with the conduct underlying the crime” has been litigated.128 According to the Appeals Chamber, a strict interpretation must be applied respecting “conduct”.129 It rejected Lubanga’s contention that the Trial Chamber erred when it refused to deduct the time he had spent in house arrest in the DRC for his activities as President of the Union des Patriots Congolais/Réconciliation (UPC/ RP) prior to the ICC’s issuance of a warrant for his arrest for crimes of enlisting and conscripting children under the age of fifteen years and using them in hostilities.130 The Appeals Chamber upheld a dichotomy the Trial Chamber had drawn between the conduct underlying the crimes for which he had be convicted at the ICC, vis-à-vis his detention by the DRC authorities based on his “role as President”.131 In the Appeals Chamber’s view, if Lubanga’s interpretation of “conduct” were to be accepted, it “would overly broaden the meaning of ‘conduct’ in that any action taken by an elected official for which he/she was domestically detained could be considered the same ‘conduct’ in respect of crimes prosecuted under the Statute”.132 The convicted person bears the burden of demonstrating that his or her detention prior to the ICC’s intervention was related to the conduct underlying the crimes for which he or she was convicted.133 To succeed, this has to be demonstrated on the balance of probabilities.134 In conclusion, the Court’s first sentencing appeal judgment addresses some key issues, although it also defers a few critical ones. Further litigation is still required before a sentencing pattern can emerge at the Court. 128

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Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/07-3484-tENG-Corr, 23 October 2015, paras. 148–168, and the Dissenting Opinion of Judge Christine Van den Wyngaert, paras. 3–5; Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, paras. 100–102; Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 113–118. Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 116. Ibid. 131 Ibid. 132 Ibid. Ibid.; Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 102. Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/06-2901, 10 July 2012, para. 102.

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Jurisprudence I Standard of Appellate Review “[T]he Appeals Chamber notes that article 83(2) and (3) of the Statute clarifies that, with respect to appeals against Sentencing Decisions, the Appeal Chamber’s primary task is to review whether the Trial Chamber made any errors in sentencing the convicted person. The Appeals Chamber’s role is not to determine, on its own, which sentence is appropriate, unless – as stipulated in article 83(3) of the Statute – it has found that the sentence is ‘disproportionate’ to the crime. Only then can the Appeals Chamber ‘amend’ the sentence and enter a new, appropriate sentence.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 39. “The Appeals Chamber considers that [. . .] in order to determine a sentence, the Trial Chamber, based on its intimate knowledge of the case, will have to balance all factors it considers relevant. Therefore, the Trial Chamber’s determination involves an exercise of discretion with the aim to impose a proportionate sentence that reflects the culpability of the convicted person.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 34. “The Appeals Chamber considers that the above standard of review [on discretionary decisions] also applies to Sentencing Decisions.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 42. “Thus, the Appeals Chamber’s review of a Trial Chamber’s exercise of its discretion in determining the sentence must be deferential and it will only intervene if: (i) the Trial Chamber’s exercise of discretion is based on an erroneous interpretation of the law; (ii) the discretion was exercised based on an incorrect conclusion of fact; or (iii) as a result of the Trial Chamber’s weighing and balancing of the relevant factors, the imposed sentence is so unreasonable as to constitute an abuse of discretion.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 44. “[A]rticle 83(2) of the Statute requires that the sentence be ‘materially affected by error of fact or law or procedural error’. The Appeals Chamber

jurisprudence considers that the material effect of such an error is only established if the Trial Chamber’s exercise of discretion led to a disproportionate sentence.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 45.

II Some Sentencing Guidelines and Principles 1 The Trial Chamber should Weigh and Balance all Relevant Factors “The Appeals Chamber considers that [. . .] in order to determine a sentence, the Trial Chamber, based on its intimate knowledge of the case, will have to balance all factors it considers relevant. Therefore, the Trial Chamber’s determination involves an exercise of discretion with the aim to impose a proportionate sentence that reflects the culpability of the convicted person.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 34, see also paras. 66, 68, 70, 73.

2 Sentence must reflect the Culpability of the Convicted Person “Furthermore, as set out in the previous section, the Trial Chamber’s main task is to weigh the relevant factors in order to determine a sentence that reflects the culpability of the convicted person. The Court’s legal texts do not lay down any explicit requirements for how the factors should be balanced. As noted above, the Appeals Chamber considers that the Trial Chamber has broad discretion in the determination of a sentence. In this regard, the Appeals Chamber notes that article 81(2)(a) of the Statute states that a decision on sentence can only be appealed on the ground that there is ‘disproportion between the crime and the sentence’.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 40.

3

Sentence should be Proportional to the Crime

“Proportionality is generally measured by the degree of harm caused by the crime and the culpability of the perpetrator and, in this regard, relates to the determination of the length of sentence. While proportionality is not mentioned as a principle in article 78(1) of the Statute, rule 145(1) of the Rules of Procedure and Evidence provides guidance on how the Trial

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sentencing Chamber should exercise its discretion in entering a sentence that is proportionate to the crime and reflects the culpability of the convicted person.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 40.

4 Notwithstanding the Two Interpretative Approaches on the Relationship between Article 78 and Rule 145, the Chamber must Consider all Relevant Factors “The Appeals Chamber considers that it could be concluded that the factors of ‘the gravity of the crimes’ and ‘the individual circumstances of the convicted person’ set out in article 78(1) of the Statute are separate from those listed in rule 145(1)(c) the Rules of Procedure and Evidence. This would imply that the ‘gravity of the crime’ would be determined in abstracto. Under this interpretation, the factors of rule 145(1)(c) of the Rules of Procedure and Evidence would be assessed separately from the factors of article 78(1) of the Statute. The Appeals Chamber notes that this interpretation is supported by the text of article 78(1) of the Statute, which provides, in relevant part, that the Court shall take into account ‘such factors as [. . .]’, which implies that it was envisioned that additional, separate factors would also be taken into account. It is also supported by a plain reading of rule 145(1)(c) of the Rules of Procedure and Evidence, which begins with ‘in addition to the factors mentioned in article 78 [. . .]’.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 62 (emphasis added). “As a variation of the above approach and based on the statutory language, the Appeals Chamber considers that it would also be possible to conclude that some of the factors of rule 145(1)(c) of the Rules of Procedure and Evidence are subsumed by the factors set out in article 78(1) of the Statute, but others remain separate factors.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 63. “The Appeals Chamber considers that, alternatively, the factors listed in rule 145(1)(c) of the Rules of Procedure and Evidence could be seen as part of, and must be taken into account for the purpose of assessing, the factors of article 78(1) of the Statute. In this respect, these factors could be said to provide the meaning and scope of the factors of article 78(1) of the Statute. The Appeals Chamber considers that this interpretation is

jurisprudence supported by taking into account the substance of the factors in rule 145(1)(c) of the Rules of Procedure and Evidence. In this respect, article 78(1) of the Statute requires that the ‘individual circumstances of the convicted person’ be considered. Rule 145(1)(c) of the Rules of Procedure and Evidence requires that consideration be given to, inter alia, ‘the degree of participation of the convicted person; the degree of intent; [. . .] and the age, education, social and economic condition of the convicted person’. The Appeals Chamber notes that it is difficult to discern the meaning of the ‘individual circumstances of the convicted person’ if it is wholly distinct from what is listed under rule 145(1)(c) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 64. “The Appeals Chamber considers that it is not necessary in the context of the present appeals to determine which of the possible approaches to the interaction between the factors of article 78(1) of the Statute and those of rule 145(1)(c) of the Rules of Procedure and Evidence is correct. In the Appeals Chamber’s view, regardless of which interpretation is followed, the issue is whether the Trial Chamber considered all the relevant factors and made no error in the weighing and balancing exercise of these factors in arriving at the sentence. For purposes of the Prosecutor’s appeal against the Sentencing Decision, the Appeals Chamber will examine whether the Trial Chamber erred in its assessment of the relevant factors as argued by the Prosecutor.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 66.

5 Previous Sentencing Decisions are of Limited Guidance as Sentences are Individualised “The Appeals Chamber is not persuaded by the Prosecutor’s arguments. The Appeals Chamber notes that the ICTY Appeals Chamber has held that, while recognising that ‘[a] previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances’, any assistance may be limited, given the Trial Chamber’s overriding obligation to tailor a penalty to fit the gravity of the crime and the individual circumstances of the accused. This obligation to individualise the sentence means that ‘it is frequently impossible to transpose the sentence in one case mutatis mutandis to another’. Consequently, ‘previous sentencing practice is but one factor among a host of others which must be taken into account when determining the sentence’.”

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s e n t en c i n g Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 76. “The Appeals Chamber finds that the approach of the ICTY Appeals Chamber is persuasive in this respect. According to the Court’s provisions, the sentence must be ‘appropriate’ and must be based on all the relevant factors of the specific case. This makes it difficult, at the least, to infer from the sentence that was imposed in one case the appropriate sentence in another case. Further, the Appeals Chamber considers that the value of other sentencing practices is even lower when the reference is to the sentencing practices of another tribunal, as opposed to that of a Trial Chamber of the Court. This is because, even though there are similarities in the sentencing provisions of the Court and those of other international criminal courts and tribunals, the Court has to apply, in the first place, its own Statute and legal instruments. The Appeals Chamber thus considers that the Prosecutor has not identified any error in the Trial Chamber’s approach to Mr Lubanga’s sentence and her argument in this regard is accordingly dismissed.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 77.

6 Abuse of Authority, not Position of Authority per se, Justifies a Harsher Sentence “The first question is therefore whether the consideration of Mr Lubanga’s abuse of power in accordance with rule 145(2)(b)(ii) of the Rules of Procedure and Evidence entails more than the simple consideration of his position of authority. In this respect, the Appeals Chamber of the ICTY and the ICTR has determined that ‘[a] high rank in the military or political field does not, in itself, merit a harsher sentence. But a person who abuses or wrongly exercises power deserves a harsher sentence. Consequently, what matters is not the position of authority taken alone, but that position coupled with the manner in which the authority is exercised’ (footnotes omitted). The Appeals Chamber endorses this approach and considers that the two concepts are indeed distinct.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 82.

7 Rule against Double Counting “[T]he Appeals Chamber finds that the language used by the Trial Chamber demonstrates that not only Mr Lubanga’s position of authority,

jurisprudence but also the manner in which his authority was exercised, were taken into account [. . .]. Based on the foregoing, the Appeals Chamber finds that the Trial Chamber did not err in not taking into account Mr Lubanga’s abuse of power as an aggravating factor when it had already considered it in its assessment of the gravity of the crime.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, paras. 83–85.

8 A Factor’s Weight Falls Within the Trial Chamber’s Discretion “The Appeals Chamber considers that the weight given to an individual factor and the balancing of all relevant factors is at the core of a Trial Chamber’s exercise of discretion as the court of first instance.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 43. “Turning to the alleged factual errors, the Appeals Chamber understands Mr Lubanga to argue that the Trial Chamber failed to give adequate weight to these fair trial allegations in its assessment of the length of sentence. In this regard, the Appeals Chamber notes that the Trial Chamber did consider these allegations and found them to be a mitigating factor. The question is therefore whether the Trial Chamber erred in the weight it gave to this mitigating factor. The Appeals Chamber recalls that the weight given to a mitigating factor falls within the discretion of the Trial Chamber. The Appeals Chamber considers that Mr Lubanga has not demonstrated that the weight given to this mitigating factor by the Trial Chamber was so unreasonable as to constitute an abuse of discretion.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 111.

9 Obligation to Deduct Time Spent in Detention “Finally, once the sentence has been imposed, article 78(2) of the Statute requires the deduction of any time that the convicted person spent in detention upon an order of the Court. The Court ‘may’ deduct time during which the convicted person was ‘otherwise’ detained ‘in connection with conduct underlying the crime’.” Prosecutor v. Lubanga, Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision, ICC-01/04-01/06-3122 A4 A6, 1 December 2014, para. 35.

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L Reparations

Commentary

ge orge m ugw an ya Reparations are a key component of the Court’s system of criminal justice. According to the Appeals Chamber, “[t]he success of the Court is, to some extent, linked to the success of its system of reparations”.1 Reparations “oblige those responsible for serious crimes to repair the harm they caused to the victims”2 and “enable the Court to ensure that offenders account for their acts”.3 So far, the Court has issued one trial and one appeal reparation judgment concerning the Lubanga case.4 In overturning the Trial Chamber’s refusal to issue a reparation order 1

2

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4

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 3 of the Amended Order for Reparations. See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 178. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 2 of the Amended Order for Reparations. See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 179. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 2 of the Amended Order for Reparations. See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 179. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012; Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015. There are also a few relevant interlocutory decisions. See, e.g., Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals against Trial Chamber I’s “Decision Establishing the Principles and Procedures to be Applied to Reparations” and Directions on the Further Conduct of Proceedings, ICC-01/04-01/06-2953, 14 December 2012. Reparation proceedings in Ruto/Sang were shortened when Trial Chamber V(A), by majority, declined to entertain reparation requests following the termination of the case at the “no case to answer” stage and in the absence of a conviction. Prosecutor v. Ruto and Sang, Decision on the Requests regarding Reparations, ICC-01/09-01/11-2038, 1 July 2016.

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against Lubanga based on his indigence, the Lubanga Appeals Judgment propounded critical elements underlying reparation orders.5 Given the limited number of reparation judgments thus far, additional issues are likely to require resolution in future litigation. Already, the Lubanga Appeals Judgment’s position that no reparations can be ordered without a conviction has attracted a Dissenting Opinion.6 Other contentious areas include the status of individual reparation requests when a Chamber orders only collective reparations.7 A few of these issues are addressed here.

I Statutory Framework Reparations at the Court are addressed at two stages: (a) the proceedings leading to the issuance of reparation orders; and (b) the implementation of reparation orders, which the Trust Fund for Victims (“TFV”) may be tasked with carrying out.8 The former proceedings are regulated in particular by articles 75 and 76(3) of the Statute and rules 94, 95, 97 and 143 of the Rules. In these proceedings, a “Trial Chamber may, inter alia, establish the principles relating to reparations to, or in respect of, victims”.9 They conclude “with the issuance of an order for reparations under article 75(2) or a decision not to award reparations”.10 The latter proceedings consist of the implementation phase and are regulated primarily by article 75(2) and rule 98.11

II Modalities of Reparations Pursuant to article 75(1), the Court is required to establish principles relating to reparations to victims, including restitution, compensation 5

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Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 57–243. Prosecutor v. Ruto and Sang, Decision on the Requests regarding Reparations, ICC-01/0901/11-2038-Anx, para. 13. See, e.g., Prosecutor v. Lubanga, Order Instructing the Trust Fund for Victims to Supplement the Draft Implementation Plan, ICC-01/04-01/06-3198-tENG, 9 February 1016, paras. 17–18 (instructing the Fund to prepare a file for each potential victim and to transmit the files to the Chamber). Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals against Trial Chamber I’s “Decision Establishing the Principles and Procedures to be Applied to Reparations” and Directions on the Further Conduct of Proceedings, ICC-01/04-01/062953, 14 December 2012, para. 53. Ibid., para. 54. 10 Ibid. 11 Ibid., para. 55.

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and rehabilitation. This list is non-exhaustive;12 “[o]ther types of reparations, for instance those with a symbolic, preventative or transformative value, may also be appropriate”.13

a Restitution Restitution is a restorative form of remedy “directed at the restoration of an individual’s life”14 to his or her circumstances before the crime was committed, “including a return to his or her family, home and previous employment; providing continuing education; and returning lost or stolen property”.15 Restitution, however, may not be achievable with respect to victims of some crimes, such as enlisting and conscripting children under the age of fifteen and using them to participate actively in hostilities.16 Notwithstanding this, the Appeals Chamber has ruled that restitution should as far as possible restore victims to their prior circumstances in life. Should the TFV determine that it is achievable specifically for former child soldiers, it must provide reasons to the Chamber as to how it arrived at this conclusion in its draft implementation plan.17 12

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15

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Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 53, 202; and para. 34 of the Amended Order for Reparations. See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 222. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/ 06-3129 A A2 A3, 3 March 2015, para. 34 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 222, 237–241. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 35 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 223. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 35 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 224. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/ 06-3129 A A2 A3, 3 March 2015, para. 67(i) of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 223. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 67(i) and 68 of the Amended Order for Reparations.

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b Compensation While some forms of damage are essentially unquantifiable,18 “[c]ompensation is a form of economic relief that is aimed at addressing, in a proportionate and appropriate manner, the harm that has been inflicted”.19 This includes physical harm, moral and non-material damage, material damage, lost opportunities, costs of legal or other relevant experts, medical services, and psychological and social assistance.20 Compensation is to be broadly applied to cover all forms of damage, loss or injury, and is to be approached on a gender-inclusive basis, avoiding reinforcing previous structural inequalities and discriminatory practices.21 The use of compensation, however, is not without restrictions. According to the Court’s jurisprudence, compensation should be considered when three conditions are met, namely: (a) the economic harm is sufficiently quantifiable; (b) compensation would be appropriate and proportionate, bearing in mind the gravity of the crime and the circumstances of the case; and (c) the available funds mean that this result is feasible.22 c Rehabilitation Rehabilitation takes various forms, including provision of medical services and medical care to the victims, psychological, psychiatric and social assistance to support those suffering from grief and trauma, and any other relevant legal and social services.23 Specifically regarding 18

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23

Ibid., para. 40 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/ 06-2904, 7 August 2012, para. 230. Ibid.; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 230. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 230. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 38 and 39 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 227. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 37 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 226. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 42 of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 233.

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convictions for enlisting and conscripting children under the age of fifteen and using them to participate actively in the hostilities, the Appeals Chamber has held that rehabilitation should include measures that are directed at facilitating former child soldiers’ reintegration into society, addressing the shame children may feel and preventing further victimisation.24

d An Holistic Application of Reparation Modalities Although not all reparations modalities may necessarily be applied in every given case, the Appeals Chamber supports a holistic and inclusive approach in the designation of reparation orders. In its view, “in designing the awards of reparations, the Trust Fund should endeavour to design awards on the basis of all the identified modalities of reparations”.25 The Appeals Chamber does not provide reasons for a holistic approach. It is nevertheless a defensible position because it has the benefit of redressing different dimensions of victimisation.26 III Mandatory Elements of a Reparation Order Although “the Court’s legal texts do not provide a comprehensive definition as such of an ‘order for reparations’, nor do they specify the minimum required content of such an order [. . .] [w]hen read together, the Court’s legal texts provide a clear framework as to the minimum elements required for an order for reparations pursuant to article 75 of the Statute”.27 24

25

26

27

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 67(iii) of the Amended Order for Reparations; Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 234–235. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 70 of the Amended Order for Reparations. Some academic commentators, specifically referring to a similar approach adopted by the Lubanga Trial Chamber, have also argued that an “over-inclusive approach” may “detract from the quality of the reparations and lead to the appearance of arbitrariness [. . .] The wide range of reparations modalities should be reduced instead, the focus of the court should be upon improving a few key modalities”: see British Institute of International and Comparative Law, Reparations to Victims: the Recent International Criminal Court Decision and Beyond, 7 August 2012, available at: www.biicl.org/files/6103_icc_7_august_2012_decision_-_rapid_ response_seminar_report.pdf, last accessed 20 August 2016. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 31.

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Salient aspects of this framework are enshrined in the Statute, the Rules (such as rules 94, 98) and the Regulations of the Registry.28 According to the Lubanga Appeals Judgment, at a minimum, an order for reparation must contain five essential elements:29 (i) it must be directed against the convicted person; (ii) it must establish and inform the convicted person of his or her liability; (iii) it must specify the type of reparations ordered, either collective or individual or both; (iv) it must define the harm caused to direct and indirect victims and identify the modalities of reparations; and (v) it must identify the victims eligible to benefit from the awards for reparations. Since the Appeals Chamber identifies the above as the “minimum” elements, this suggests that a reparation order may contain additional elements – as long as it also includes, at a minimum, the listed elements.

a A Reparation Order must be Directed against the Convicted Person Any reparation order must in all circumstances be directed against the convicted person.30 It cannot be directed against any other person or organ, such as the TFV. The convict’s reparation liability is absolute and unlimited by any circumstances of the convict, including indigence.31 But when appropriate, an order for reparations can be made through the TFV pursuant to article 75(2).32 This means that the TFV only acts as an intermediary and not as a substitute of the convict.33 Why is the convicted person exclusively liable? In the view of the Appeals Chamber, “the obligation to repair harm arises from the individual criminal responsibility for the crimes which caused the harm and, accordingly, the person found criminally responsible for those crimes is the person to be held liable for reparations”.34 A principal object of reparation, to ensure that offenders account for their acts properly reflects the system of reparations at the Court [. . .]. Reparations, and more specifically orders for reparations, must reflect the context from which they arise, which, at the Court, is a legal system of establishing individual criminal liability for crimes under the Statute [. . .]. This context strongly suggests that reparation orders are intrinsically linked to the

28

29 33

Ibid., paras. 31, 51. See also Regulations of the Registry, in force 6 March 2006, ICC-BD /03-03-13. Ibid., paras. 1; 32, 57–228. 30 Ibid., paras. 65–76. 31 Ibid., para. 76. 32 Ibid. Ibid., paras. 70–71, 74. 34 Ibid., para. 99.

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r ep a r a t i o n s individual whose criminal liability is established in a conviction and whose culpability for those criminal acts is determined in a sentence.35

In a nutshell, it is the “principle of accountability of the offender” towards the victim that drives the Court’s reparations regime.36 Since “it is the obligation of the convicted person to remedy the harm caused by the crimes for which he or she was convicted”,37 prior to issuing a reparation order, “a Trial Chamber must establish that the person is guilty of one or more of the crimes with which he or she was charged”.38 The “principle of accountability” of the convicted person towards the victim represents victory to victims. The Court cannot order the TFV to use its resources to substitute the convicted person’s monetary obligation. This allows the Fund to focus its assistance mandate resources towards redressing broader classes of victimisation falling outside the convicted person’s reparation liability.39 Moreover, ordering a convicted person to redress harm inflicted on a victim “can represent a public acknowledgement of the prejudice a victim has suffered at the hands of the perpetrator, and a form of restoration of their dignity”.40 Arguably, however, the convict-centred reparations regime (which, as shown below, also restricts the scope of the convicted person’s obligatory reparations41) may fail to redress broader societal/community needs associated with crimes. The Court’s jurisprudence appears to be alive to this challenge. For instance, as part of the order for reparations against Lubanga, the Appeals Chamber ordered that reparations in the circumstances of that case and to the extent achievable, must also serve some of those broader societal needs, such as deterrence, reintegration and reconciliation.42 35 36 39

40

41 42

Ibid., para. 65. See also para. 20 of the Amended Order for Reparations. Ibid., para. 69. 37 Ibid., para. 99. 38 Ibid. See also Stahn, C., Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures for Reparation, 7 April 2015, available at: www.ejiltalk.org/reparative-justiceafter-the-lubanga-appeals-judgment-on-principles-and-procedures-of-reparation, last accessed August 2016. International Centre for Transitional Justice, Summary of ICTJ’s Recommendations to the ICC on Reparations in the Lubanga Case, available at: www.ictj.org/sites/default/files/ ICTJ-DRC-Reparations-Recommendations-ICC-2012-English.pdf, last accessed 17 February 2016, para. 23. See discussion of the second, third and fourth elements of reparation orders. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 71–72 of Amended Order for Reparations. See also Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 179.

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The aforementioned caveats may limit the reach of reparations, but doors are still open for further creativity.43 A final issue concerns the utility to victims of directing reparation orders against indigent convicted persons. Based on the Lubanga Judgment, it is the view of the Appeals Chamber that reparation orders against indigent convicted persons are not meaningless. The Appeals Chamber envisages that, notwithstanding any earlier finding of indigence (e.g., during the trial when the accused benefited from the Court’s legal aid), there must be further efforts at the reparations stage to trace the convicted person’s assets. The indigent convicted person’s financial situation must be monitored pursuant to regulation 117 of the Regulations of the Court.44 Moreover, the Court should elicit assistance from States Parties.45 This approach is defensible – a convicted person’s indigence is not necessarily permanent and a convicted person’s unknown assets, wherever they may be, fall within the Court’s reparation order. The Court should therefore pay sufficient attention to the convicted person’s present and future assets. The Court should also differentiate a finding of indigence for the purposes of legal aid at the trial stage and indigence for purposes of meeting reparations liability, since at the trial stage, prior to conviction, the accused enjoys a presumption of innocence and the Court may not lightly deny him or her legal aid. Reparations arise only after the end of the trial when the accused’s criminal responsibility has been established. Claims of indigence must be thoroughly investigated to ensure the convicted person does not evade his or her reparations liability. How long should victims have to wait to receive reparations when a convicted person is indigent? The Appeals Chamber’s jurisprudence envisages that, as long as the convicted person’s indigence persists despite efforts to identify his or her property and assets, the Board of Directors of the TFV may decide to advance its resources in order to enable the implementation of the order. But, in keeping with the “convict/perpetrator-centred” approach to reparations, if the Board of Directors 43

44

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Stahn, C., Reparative Justice after the Lubanga Appeals Judgment on Principles and Procedures for Reparation, 7 April 2015, available at: www.ejiltalk.org/reparative-justiceafter-the-lubanga-appeals-judgment-on-principles-and-procedures-of-reparation, last accessed August 2016. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 116. See also para. 61 of the Amended Order for Reparations. Ibid., para. 61 of the Amended Order for Reparations.

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decided to do so, the TFV can claim the advanced resources from the convicted person.46

b A Reparation Order must Establish and Inform the Convicted Person of His or Her Liability In the view of the Appeals Chamber, “the ‘principles relating to reparations’ must also address the scope of the convicted person’s liability”.47 This is important because “the scope of a convicted person’s liability for reparations may differ depending on, for example, the mode of individual criminal responsibility established with respect to that person and on the specific elements of that responsibility”.48 This means that different modes of liability or the convicted person’s manner of participation in the crimes may affect the scope of the convict person’s liability to remedy harm afflicted against victims. In this respect, the Appeals Chamber has concluded that reparation determinations must be guided by the principle of proportionality: “[a] convicted person’s liability for reparations must be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case”.49 The jurisprudence thus far does not elucidate how the proportionality standard would be applied across the different modes of criminal responsibility in articles 25 and 28 of the Statute. More complex challenges of proportionately allocating liability are likely, especially in complex cases of multi-perpetrators convicted for a single crime or set of crimes. i The Standard of Causation Determining the scope of the person’s reparations liability raises two critical issues: the standard of causation and the burden and standard of proof. The standard of causation is concerned with the causal link between the crimes and harm to victims. It has been formulated in the Court’s case law as (both) a “but for” and/or a “proximate cause” standard.50 Arguably, this standard is not entirely clear. The Appeals Chamber is yet to shed additional light on the benchmarks defining this formulation. Additional elucidation would provide further guidance to Trial Chambers. 46 47 50

Ibid., para. 116. See also para. 62 of the Amended Order for Reparations. Ibid., para. 118. 48 Ibid. 49 Ibid. Ibid., para. 59 of the Amended Order for Reparations.

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In Lubanga, the Trial Chamber took the position that the “damage, loss or injury” that form the basis of a reparations claim must have resulted from the crimes,51 and that the appropriate standard needs to take into account competing interests and the rights of the victims and the convicted person.52 The Chamber required both a “proximate cause” and a “but for” relationship between the crime and the harm suffered by the victims,53 stating that reparations should not be limited to “direct” harm or the “immediate effects” of the crimes [. . .] but instead the Court should apply the standard of proximate cause [. . .]. [A]t a minimum the Court must be satisfied that there exists a “but for” relationship between the crime and the harm and, moreover, the crimes for which Mr Lubanga was convicted were the “proximate cause” of the harm for which reparations are sought.54

On appeal, Lubanga impugned the Trial Chamber’s “proximate cause” standard as being inadequate to assess the existence of a causal link between the harm suffered and the crime for which he was convicted.55 He submitted that the standard is vague and relies on a purely subjective appraisal of the person applying it.56 In his view, there is a common standard applied under international law requiring the causal link to be 51

52

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Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 247; Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 78. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 250; Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 78. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 247–250. The Trial Chamber added that this was particularly to the extent that reparations are ordered against the convicted person: para. 250. This contradicted the first element of reparation orders: that all reparation orders are directed against the convicted person. The Appeals Chamber thus amended the Trial Chamber’s decision “insofar as it states that reparations are ordered against the convicted person to a certain extent”: Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 82. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 249–250. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 121; Prosecutor v. Lubanga, Mr Lubanga’s Document in Support of Appeal A3, ICC-01/04-01/06-2972-tENG, 5 February 2013, paras. 172–173. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 121; Prosecutor v. Lubanga, Mr Lubanga’s Document in Support of Appeal A3, ICC-01/04-01/06-2972-tENG, 5 February 2013, para. 173.

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“direct and immediate”.57 The Appeals Chamber dismissed Lubanga’s challenge, arguably on the basis of “technical” grounds.58 It did not address the “deeper” substantive issues the appeal raised. Rather, it found that “Mr Lubanga [did] not explain how this alleged vagueness renders the standard inadequate or how the standard of a direct and/or immediate causal link differs in this regard. In particular, Mr Lubanga fail[ed] to demonstrate that the application of the direct and/or immediate standard does not also rely on a ‘purely subjective appraisal of the person applying it’.”59 In faulting Lubanga’s appeal further for not showing how the Trial Chamber had erred, the Appeals Chamber concluded that he had not demonstrated: (a) that there is a “definite trend” in international courts towards adopting a restrictive approach with regard to causation; (b) how the application of the “but for” relationship and the “approximate cause” standard would infringe his rights; and (c) how the application of the “direct and immediate link” test would remedy the alleged vagueness of the standard in the Trial Chamber’s Decision.60 Given the limited scope of the Appeals Chamber’s judgment, further elucidation of the standard is still necessary. This is so especially because the “but for” and/or “proximate cause” standards as construed and applied in national jurisdictions around the world diverge as to their content.61 It is unclear whether the Chamber’s standard requires the convicted person’s crimes to be the sine qua non element, or a “necessary” or (substantial) “contributing factor”. Some commentators suggest that the standard may be unworkable in some 57

58

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60 61

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 121; Prosecutor v. Lubanga, Mr Lubanga’s Document in Support of Appeal A3, ICC-01/04-01/06-2972-tENG, 5 February 2013, paras. 173–179. The Appeals Chamber has the discretion to summarily dismiss an appeal ground where an Appellant fails to demonstrate the alleged error. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 20, 30–34. Arguably, however, given the importance of causation especially to future reparation litigation, it was open for the Appeals Chamber to provide additional elucidation. The Chamber essentially adopted this approach when amending various aspects of the Trial Chamber’s reparation order, even on subjects that had not strictly speaking been challenged on appeal. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 124. Ibid., para. 129. As to the experience of the ad hoc tribunals when dealing with concepts with a similar attribute, see, e.g., Prosecutor v. Jelisić, IT-95-10-A, Judgment, 5 July 2001, para. 41 and fn. 8; Prosecutor v. Blaškić, IT-95-14, Judgment on the Request of the Republic of Croatia for a Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 21.

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situations.62 Additionally, it may be argued that the causation standard articulated at the Court is, on its face, overly strict. As such, it may exclude from reparations the redress of broader societal needs “associated” with the convicted person’s criminality, but which are strictly speaking not the results of those convictions.63 Arguably, the existing Appeals Chamber’s jurisprudence does not specifically address what sort of circumstances may justify extending a convicted person’s reparations liability beyond the more “immediate” harm to the victims of the convicted person’s crimes to cover broader societal concerns.64 Broader societal concerns are not necessarily eliminated in every reparation order against a convict. Consideration, for instance, will have to be given in some cases as to whether the charged crimes by their nature inflict harm to societies or groups beyond individual victims. A number of the broader societal concerns would be construed as harm resulting from those crimes, and the redress of such concerns would equally be a primary focus of reparation orders. Such crimes include genocide and persecution, which are committed with intent to harm victims as members of specific groups. But a broader range of crimes within the Court’s jurisdiction may have similar elements given their gravity. Moreover, the manner in which they may be perpetrated may devastate very broadly across societies. Nevertheless, any causation standard adopted at the Court must consider the principle of proportionality (between criminal liability and reparations) and fairness to the accused. The convicted person’s liability for reparations towards the victims is not unlimited; a fair balance must always be struck between the rights of the convicted and the victims. This inquiry must be case-specific, as the Appeals Chamber’s elucidation of the direct and indirect victims of Lubanga’s crimes shows. 62

63

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See generally David, H., “Proving Causation Where the But For Test is Unworkable”, Advocates’ Quarterly Vol. 30, Issue 2 (2005), p. 216. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 212. Some commentators have also contended that the “but for” test “can extend causation too widely and yet, simultaneously exclude inappropriately”. Moreover, the test “may be difficult to reconcile with the notion of numerous perpetrators performing a single crime”: British Institute of International and Comparative Law, Reparations to Victims: the Recent International Criminal Court Decision and Beyond, 7 August 2012, available at: www.biicl.org/files/6103_icc_7_august_2012_decision_-_rapid_response_seminar_re port.pdf, last accessed 20 August 2016.

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ii The Burden and Standard of Proof The victim/applicant seeking reparation bears the burden of showing the necessary harm.65 In the view of the Appeals Chamber, the victim/applicant “shall provide sufficient proof of the causal link between the crime and the harm suffered, based on the specific circumstances of the case”.66 Moreover, “what is the ‘appropriate’ standard of proof and what is ‘sufficient’ for [the] purposes of an applicant meeting the burden of proof will depend upon the circumstances of the specific case. For purposes of determining what is sufficient, Trial Chambers should take into account any difficulties that are present from the circumstances of the case at hand.”67 This approach is justified because these proceedings are “fundamentally different” from trial proceedings.68 Moreover, the difficulties that victims may face in obtaining evidence in support of their claims are significant.69

c A Reparation Order must Specify the Type of Reparations: Individual or Collective The Court’s legal text provides for two distinct procedures for awarding reparations: (a) individual reparation awards; and (b) collective reparation awards. Individual reparation awards are primarily application- (“request”-) based. They are mainly regulated by rules 94 and 95 of the Rules. Collective reparation awards are regulated in relevant 65 66

67

68

69

Ibid., para. 22 of the Amended Order for Reparations. Ibid., para. 121; Prosecutor v. Lubanga, Mr Lubanga’s Document in Support of Appeal A3, ICC-01/04-01/06-2972-tENG, 5 February 2013, para. 81 (emphasis added). This is the only governing standard – regardless of whether reparations against the convict are made through the TFV. This is because, in all instances, orders for reparations are directed against the convicted person and never against the TFV. Thus, in Lubanga, the Appeals Chamber found that the Trial Chamber had erred when it articulated two standards of proof, namely, with regard to reparations through the TFV (“wholly flexible” standard) versus reparations against the convicted person (balance of probabilities): Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 253–254. The Appeals Chamber found that this was legally incorrect because all Court-ordered reparations are against the convicted person: Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/06-3129 A A2 A3, 3 March 2015, para. 83. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 81; Prosecutor v. Lubanga, Mr Lubanga’s Document in Support of Appeal A3, ICC-01/04-01/06-2972-tENG, 5 February 2013, para. 81. Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, paras. 251–252. Ibid.

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part by rules 97(1) and 98(3).70 Because of these two distinct procedures, a reparations order must clearly specify the type of reparation granted, whether individual or collective, or both. In the view of the Appeals Chamber, “when only collective reparations are awarded pursuant to rule 98(3) of the Rules [. . .], a Trial Chamber is not required to rule on the merits of the individual requests for reparations. Rather, the determination that it is more appropriate to award collective reparations operates as a decision denying, as a category, individual reparation awards.”71 Since rule 98(3) identifies the factors that a Chamber is to consider in determining whether to award collective reparations, the Chamber’s decision to that effect is case-specific. The Appeals Chamber has underscored that a decision to award collective reparations, and thus not to rule on the merits of individual reparations, can be “challenged on appeal based on the Trial Chamber’s consideration of the factors laid out in rule 98(3)”.72 But in so holding, the Appeals Chamber limit[ed] itself to the circumstances of the Impugned Decision and clarifie[d] that this holding is without prejudice to the question whether a Trial Chamber would be required to rule on each individual reparations requests received if it decides to award reparations on an individual basis pursuant to rule 98(2) [. . .] or to award reparations on both an individual and collective basis.73

The Appeals Chamber thus dismissed arguments that the Trial Chamber had violated internationally recognised human rights by ordering collective reparations without considering the individual applications for reparations.74 Moreover, it rejected the argument that the absence of a ruling on the merits of the individual requests undermined the actual objectives of the reparation proceedings.75 Based on the Lubanga reparation proceedings, it appears that the newly created Trial Chamber established for the implementation of the reparation order has taken the view that even in the case of collective reparations orders, individual applications may still play a role – for instance, in assessing the reach or type of collective orders.76 70

71 76

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 149. Ibid., para. 152. 72 Ibid. 73 Ibid. 74 Ibid., para. 155. 75 Ibid., para. 156. See, e.g., Prosecutor v. Lubanga, Order Instructing the Trust Fund for Victims to Supplement the Draft Implementation Plan, ICC-01/04-01/06-3198-tENG, 9 February 2016, paras. 17–18 (instructing the Fund to prepare a file for each potential victim and to transmit the files to the Chamber).

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d A Reparation Order must Define the Harm Caused to Victims and Modalities for Reparation In the view of the Appeals Chamber, in order to protect the rights of the convicted person and ensure that reparations are not awarded to remedy harms that are not the result of the crimes for which he or she was convicted and to also protect the right of the victims to appeal the exclusion of any harms that they consider have been shown to be caused by these crimes, the Trial Chamber must clearly define the harms that result from the crimes for which the person was convicted, the extent of which may then be assessed by the Trust Fund for purposes of determining the size and nature of reparation awards.77

Moreover, every reparation order “must identify the most appropriate modalities of reparations, based on the specific circumstances of the case at hand”.78 The Appeals Chamber has stated that the concept of “harm” denotes “hurt, injury or damage”.79 Harm may be material, physical and psychological.80 Moreover, “[t]he harm does not necessarily need to have been direct, but it must have been personal to the victim”.81 The definition of the harm in a given case must be judicially determined by the Chamber. It cannot be delegated to any other organ, such as the TFV. Delegating this task to the TFV, in the view of the Appeals Chamber, creates the “real risk” that the Fund’s different mandates, including assistance and reparations, might be blurred.82 In Lubanga, the Appeals Chamber found that the Trial Chamber had “erred in delegating to the Trust Fund the task of defining the harms caused to direct and indirect victims as a result of the crimes for which Mr Lubanga was convicted”.83 The Appeals Chamber drew a distinction between definition of harm (which must be made by the Chamber) and assessment of the extent of the harm (which may be delegated to the TFV). The definition of the harm delineates the parameters within which the Fund must assess the scope of the harm. Therefore, the Trial Chamber may “determine the scope, extent of any damage, loss or injury to, or in respect of, victims in the order of reparations” or “define the harms caused to direct and indirect victims and set the criteria that are to

77

78 81

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 184 (emphasis added). Ibid., para. 200. 79 Ibid., para. 10 of the Amended Order for Reparations. 80 Ibid. Ibid. 82 Ibid., para. 182. 83 Ibid., para. 184.

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be applied by the Trust Fund for [the] purposes of assessing the extent of the harms”.84 Where, on appeal, it is clear that the Trial Chamber did not elicit evidence specific to harm caused by the convict person’s crimes, as was the case in Lubanga, the Appeals Chamber may itself define the harm, based on the circumstances of the case. In Lubanga, the Appeals Chamber identified these circumstances to include the decisions relevant to victim participation, findings in the article 74 Conviction Decision insofar as they related to defining the harm caused by the convicted person’s crimes, and the article 76 Sentencing Decision.85 Harm from crimes that were not charged (and thus did not form part of the conviction), were not among the factors considered in sentencing, or were not found to be attributable to the convicted person, cannot be “harm” for reparations purposes. In Lubanga, the Appeals Chamber overturned the Trial Chamber’s contrary position. It found that in the article 76 Sentencing Decision, the Trial Chamber had not considered sexual and gender-based crimes perpetrated by or against former child soldiers as part of the gravity, or as aggravating factors, of the crimes for which Lubanga was ultimately convicted.86 Moreover, the Trial Chamber held that “nothing suggests that Mr Lubanga ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributable to him in a way that reflects his culpability”.87 This, in the Appeals Chamber’s view, meant that the Trial Chamber did not establish that the harm from sexual and gender-based violence resulted from the crimes for which Lubanga was convicted. The Appeals Chamber concluded that these crimes could not be attributed to Lubanga, and it amended the Trial Chamber’s reparations decision to reflect that 84

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Ibid., para. 183. Some commentators criticise positioning “assessment” of the harm at the “implementation” stage rather than before – for instance, when determining the harm. They argue that such positioning “suggest[s] that the court and indeed the TFV favou[r] collective reparations above individual reparations”. See, e.g., British Institute of International and Comparative Law, Reparations to Victims: the Recent International Criminal Court Decision and Beyond, 7 August 2012, available at: www.biicl.org/files/ 6103_icc_7_august_2012_decision_-_rapid_response_seminar_report.pdf, last accessed 20 August 2016. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, paras. 186–187. Ibid., para. 197. Ibid., para. 197, referring to Prosecutor v. Lubanga, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 74.

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Lubanga could not be held liable for reparations in respect of such harm.88 The exclusion of sexual and gender-based violence from reparation orders against Lubanga has generated important debates,89 and demonstrates that the Prosecution’s charging approach also plays an important role in delineating the reach of reparation orders issued against the convicted person. Where the scope of the charges forming the basis of the conviction is limited, this will also impact on the scope of the reparations that the Court may order. Indeed, when ordering “reconciliation” between the convicted person, the victims of the crimes and the affected communities as a form of reparations (arguably to redress broader societal concerns), the Lubanga Appeals Judgment found that the limited scope in the charges in that case negatively restricted the categories of victims.90 This situation could give rise to the risk of resentment on the part of the excluded victims/communities.91 Therefore, a more inclusive and robust approach to charging and sentencing (which must necessarily be driven by the evidence) can play a critical role in extending the reach of reparations to redress broader forms of harm. The Appeals Chamber’s findings above are intrinsically linked to the Chamber’s approaches regarding other elements of reparations (particularly causation and proportionality, discussed above). As noted above, some of these approaches are contentious, especially respecting the reach of reparation orders in redressing other harms, such as those broadly afflicting societies/communities. It remains an open question whether the “but for” causation standard articulated by the Court always requires that the convicted person directly perpetrated the claimed harm or was aware of it for reparation liability to arise. Why is it not sufficient that once an accused is convicted of a crime, he or she accounts for all foreseeable harm flowing from it? Arguably, certain crimes necessarily 88 89

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Ibid., paras. 197–198. See, e.g., British Institute of International and Comparative Law, Reparations to Victims: the Recent International Criminal Court Decision and Beyond, 7 August 2012, available at: www.biicl.org/files/6103_icc_7_august_2012_decision_-_rapid_response_seminar_re port.pdf, last accessed 20 August 2016; Women’s Initiative for Gender Justice, ICC Issues First Appeal Judgment on Reparations: the Prosecutor v. Thomas Lubanga Dyilo, 3 March 2015, p. 2, available at: www.iccwomen.org/documents/ICC-issues-first-appealjudgment-on-reparations_Lubanga.pdf, last accessed 20 August 2016. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, fn. 44 of Amended Order for Reparations. Ibid.

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“result” in a wide range of “harms”, and whether the convict either directly perpetrated such harm or was (directly) aware of it is immaterial. This triggers the argument that the “but for” causation standard adopted by the Court “can extend causation too widely and yet simultaneously exclude inappropriately”.92 The totality of the circumstances in the Lubanga case right from charging through to the confirmation and trial stages arguably militated against including rape and sexual violence among the reparation orders against the accused.93 Nonetheless, the Appeals Chamber could have addressed the correctness of some of the Trial Chamber’s statements respecting the standards defining reparation liability. Nonetheless, while the Appeals Chamber found that Lubanga’s reparations liability did not extend to the harm inflicted by the sexual and gender-based crimes, it did not close the door for the TFV to include, as a matter of the TFV’s discretion, victims of these crimes in its possible activities undertaken pursuant to the Fund’s assistance mandate.94 In addition, the Appeals Chamber, in line with the Trial Chamber’s decision, held that a gender-inclusive approach to reparations should guide the design of the principles to be applied to reparations, ensuring that they are accessible to all victims in their implementation.95 Furthermore, there are potential openings in the Appeals Chamber’s approaches for broadening the reach of reparations to redress broader societal harms, without necessarily violating the principle of proportionality and rights of the convicted person. Harm resulting from crimes outside the conviction can be considered at sentencing, informing the gravity of the crime and as aggravating circumstances. Therefore, in a situation where certain crimes were not charged, the Prosecutor can 92

93

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95

British Institute of International and Comparative Law, Reparations to Victims: the Recent International Criminal Court Decision and Beyond, 7 August 2012, available at: www.biicl .org/files/6103_icc_7_august_2012_decision_-_rapid_response_seminar_report.pdf, last accessed 20 August 2016. Besides not charging them, the Prosecutor, like the accused, opposed their inclusion via a regulation 55 re-characterisation: Prosecutor v. Lubanga, Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, paras. 53–55. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 199, and para. 64 of the Amended Order for Reparations. Ibid., para. 18 of the Amended Order for Reparations.

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still bring them within the reach of reparations by demonstrating that they are either part of the gravity of the crimes forming part of the conviction or aggravating circumstances. Extending the scope of reparation this way is not incompatible with the principles of proportionality and fairness. Aggravating circumstances, for example, according to the case law of the Court, must be established beyond reasonable doubt.96 The convicted person thus has an opportunity to rebut them. However, it is also clear from the Lubanga case, that the Court cannot be expected to retroactively correct, or include in its reparations order, crimes or harms that may arguably be the Prosecutor’s decision to exclude from the charges or those not demonstrated to form part of the gravity of the crime or aggravating circumstances.

e A Reparation Order must Identify Eligible Victims or Criteria of Eligibility A reparation order must either identify the victims eligible to benefit from reparations or set out the criteria of their eligibility for reparations.97 Where a Trial Chamber fails to identify eligible victims, but indicates the characteristics of (groups of) eligible victims, this may be sufficient to identify the victim group.98 This is demonstrated in the Lubanga case. The Appeals Chamber quashed the Trial Chamber’s adoption of a “community-based approach” without setting out the criteria for distinguishing between members of communities eligible for reparations from those who were not.99 The Appeals Chamber thus accordingly amended the Trial Chamber’s judgment.100 It, however, underscored that the amendment did not preclude other members of the community not meeting the eligibility criteria (and therefore not entitled to access reparations ordered against Lubanga) to benefit from the Fund’s assistance mandate programmes.101 The above Appeals Chamber jurisprudence shows that delineating the reach of collective reparation orders is a complex task. It may be contended that, even based on the Chamber’s own findings above, 96

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Prosecutor v. Bemba, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/ 05-01/08-3399, 21 June 2016, para. 18; Prosecutor v. Lubanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC-01/04-01/06-2901, 10 July 2012, para. 33; Prosecutor v. Katanga, Decision on Sentence Pursuant to Article 76 of the Statute, ICC01/04-01/07-3484-tENG, 22 September 2015, para. 34. Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063129 A A2 A3, 3 March 2015, para. 205. 99 Ibid. Ibid., para. 54 of the Amended Order for Reparations. 100 Ibid. Ibid.

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distinguishing communities that are eligible for reparations from those that are not may not be simple, and may require the assessment of individual reparation requests or other forms of victim screening. The implementation of collective reparations should, however, be flexibly and holistically executed with a view to reaching as far as possible the affected communities in a broad sense. Rigidly assessing individual reparation requests, as a means of driving collective reparations, may create a risk of overly restricting the reach of collective reparations.

Jurisprudence I General Principles 1 Parties to Reparation Appeals “Article 82(4) of the Statute defines which individuals may appeal an order for reparations, which does not include the Trust Fund.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 37. “The Appeals Chamber recalls that, in the Admissibility Decision, it held that the Prosecutor was not a party to the appellate proceedings and therefore was not invited to submit a response to the participants’ documents in support of the appeals.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 86; Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/ 06-2953 A A2 A3 OA21, 14 December 2012, para. 74. “[U]nder article 82(4) of the Statute, victims are entitled to bring an appeal. They are therefore parties to the proceedings and not, as is the case at other stages of the proceedings, participants who, under article 68(3) of the Statute, may present their views and concerns where their personal interests are affected. Furthermore, the Appeals Chamber notes that the right to appeal lies with the victims, not with the legal representatives of victims.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 67.

2 Burden and Standard of Proof “[I]n the reparation proceedings, the applicant shall provide sufficient proof of the causal link between the crime and the harm suffered, based on the specific circumstances of the case. In this sense, what is the ‘appropriate’ standard of proof and what is ‘sufficient’ for purposes of an

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r e pa rat ion s applicant meeting the burden of proof will depend upon the circumstances of the specific case. For purposes of determining what is sufficient, Trial Chambers should take into account any difficulties that are present from the circumstances of the case at hand.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 81.

3 Reparation Principles in Article 75 vis-à-vis Orders for Reparations “The Appeals Chamber notes that the Trial Chamber stated that ‘[a]lthough [. . .] the Trial Chamber has established certain principles relating to reparations and the approach to be taken to their implementation, these are limited to the circumstances of the present case’. The Appeals Chamber agrees that Trial Chambers should articulate principles within the context of the circumstances of the specific case at hand. However, principles relevant to the circumstances of a case must be distinguished from the order for reparations, that is, the Trial Chamber’s holdings, determinations and findings based on those principles. Accordingly, principles should be general concepts that, while formulated in light of the circumstances of a specific case, can nonetheless be applied, adapted, expanded upon, or added to by future Trial Chambers.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 55.

4 Reparation Principles for Individual and Collective Reparations “The Appeals Chamber considers that the requirement to establish principles relating to reparations is mandatory (‘shall’). The question that arises, however, is whether these principles are applicable to both individual and collective reparation awards, as well as whether they are applicable to awards made directly against an individual and also to awards made against an individual, but through, or deposited with, the Trust Fund pursuant to article 75(2) of the Statute and rules 98(2) and (3) of the Rules of Procedure and Evidence. The second sentence of article 75(1) of the Statute makes it clear that a decision to award individual reparations pursuant to a request or a proprio motu decision under rules 94 or 95 of the Rules of Procedure and Evidence must be based on the article 75(1) principles and requires the Trial Chamber to ‘state the principles on which it is acting’ in making the individual award. The Appeals Chamber considers that this also applies to individual reparation awards deposited with the Trust Fund pursuant to rule 98(2) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 52.

jurisprudence “The Appeals Chamber notes that the Statute and rule 98 of the Rules of Procedure and Evidence do not explicitly state that collective reparation awards made against the convicted person, but through the Trust Fund, must be based on the article 75(1) principles. However, the Appeals Chamber observes that ‘restitution, compensation and rehabilitation’, which are included in the article 75(1) principles, are various forms and modalities of reparations and that collective reparations may be ordered pursuant to rule 98(3) of the Rules of Procedure and Evidence because, inter alia, the forms and modalities of reparations makes a collective award more appropriate. Therefore, the Appeals Chamber considers that a collective reparation order made against the convicted person, but through the Trust Fund, must also be based on the relevant article 75(1) principles.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 53.

5 Protective Measures in Relation to Property and Assets to Secure Reparations “The Appeals Chamber is of the view that efficient protective measures taken at early stages of proceedings increase the likelihood that property and assets will be available for the purpose of reparations at the time any such award is made pursuant to article 75 of the Statute. Ensuring the availability of effective protective measures in relation to property and assets of the suspect or accused under article 57(3)(e) of the Statute is consistent with the object and purpose of the Statute. Indeed, reparations to victims are a prominent feature of the Statute, distinguishing the Court from, for instance, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone, whose Rules of Procedure and Evidence indicate that compensation for injury caused by the crime may only be claimed ‘in a national court or other competent body’. In contrast, the Appeals Chamber notes that the remedies available to victims under the Statute and the Rules of Procedure and Evidence are far more elaborate. Victims may claim reparations directly before the Court, under rule 94 of the Rules of Procedure and Evidence. Pursuant to article 75 of the Statute, reparations are awarded by the Court, rather than national courts or other competent bodies. There is also an enforcement mechanism with respect to orders for reparations, involving cooperation of States Parties, under article 75(4) in conjunction with article 109 of the Statute. The Appeals Chamber considers that an interpretation of the Statute that brings the property and assets of the suspect or accused person that will be potentially subject to reparations orders in the event of conviction within the scope of protective measures under articles 57(3)(e) and 93(1)(k) of the Statute consolidates the effectiveness of the reparations system and is thus

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r ep a r a t i o n s consistent with the object and purpose of the Statute. It is additionally noted that the freezing of assets constitutes a provisional protective measure which must be applied in a manner consistent with article 21(3) of the Statute.” Prosecutor v. [REDACTED], Judgment on the Prosecutor’s Appeal on the Freezing of Assets, ICC-ACRed-01/16, 15 February 2016, para. 53.

II Mandatory Elements of a Reparation Order “[T]he Appeals Chamber holds that an order for reparations under article 75 of the Statute must contain, at a minimum, five essential elements: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both, pursuant to rules 97(1) and 98 of the Rules of Procedure and Evidence; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 32.

1 Directed against the Convicted Person “[T]he Appeals Chamber finds that the legal framework clearly establishes that an order for reparations has to be issued in all circumstances against the convicted person. When appropriate, such an order for reparations can – in addition – be made through the Trust Fund. The Appeals Chamber therefore finds that the Trial Chamber erred in not making the reparation order against Mr Lubanga and through the Trust Fund.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 76. “[T]he Appeals Chamber finds that the Trial Chamber erred by considering Mr Lubanga’s indigence to be relevant to whether he should be liable for any reparations awarded. The Appeals Chamber arrives at this conclusion based on the relevant provisions of the Court’s legal texts and the drafting history of the Statute.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 102.

jurisprudence

2 Address the Scope of the Convicted Person’s Liability “[T]he Appeals Chamber considers that the ‘principles relating to reparations’ must also address the scope of the convicted person’s liability. In this regard, the Appeals Chamber notes that the scope of a convicted person’s liability for reparations may differ depending on, for example, the mode of individual criminal responsibility established with respect to that person and on the specific elements of that responsibility. Accordingly, the Appeals Chamber finds it necessary to be guided by a principle not previously articulated by the Trial Chamber, namely, that: A convicted person’s liability for reparations must be proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 118.

3 Specify the Type of Reparations: Individual or Collective “[T]he Appeals Chamber considers that the Court’s legal texts provide for two distinct procedures for awards for reparations. The first, which relates to individual reparation awards, is primarily application (‘request’) based and is mainly regulated by rules 94 and 95 of the Rules of Procedure and Evidence. The second relates to collective reparation awards and is regulated in relevant part by rules 97(1) and 98(3) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 149. “[W]hen only collective reparations are awarded pursuant to rule 98(3) of the Rules of Procedure and Evidence, a Trial Chamber is not required to rule on the merits of the individual requests for reparations. Rather, the determination that it is more appropriate to award collective reparations operates as a decision denying, as a category, individual reparation awards. Such a determination may be challenged on appeal based on the Trial Chamber’s consideration of the factors laid out in rule 98(3) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 152.

4 Define the Harm Caused to Victims and Modalities for Reparation “[I]n order to protect the rights of the convicted person and ensure that reparations are not awarded to remedy harms that are not the result of the

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r e pa rat ion s crimes for which he or she was convicted and to also protect the right of the victims to appeal the exclusion of any harms that they consider have been shown to be caused by these crimes, the Trial Chamber must clearly define the harms that result from the crimes for which the person was convicted, the extent of which may then be assessed by the Trust Fund for purposes of determining the size and nature of reparation awards. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in delegating to the Trust Fund the task of defining the harms caused to direct and indirect victims as a result of the crimes for which Mr Lubanga was convicted.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 184. “[A] Trial Chamber must identify the most appropriate modalities of reparations, based on the specific circumstances of the case at hand, in the order for reparations. Indeed, the Appeals Chamber considers that identifying the harm caused to direct and indirect victims as a result of the crimes for which a person was convicted [. . .] is interlinked with identifying the appropriate modalities of reparations in that specific case. In this sense, the appropriateness of a modality of reparations can only be determined by reference to the harms that were caused and which the reparations seek to remedy.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 200.

5 Identify Eligible Victims or Criteria of Eligibility “The Appeals Chamber recalls that, as a fifth element, the reparation order must either identify the victims eligible to benefit from reparations, or set out the criteria of their eligibility for reparations. The Trial Chamber did not identify eligible victims. It did, however, indicate certain characteristics of groups of eligible victims, in order to enable their identification by the Trust Fund.” Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC01/04-01/06-3129 A A2 A3, 3 March 2015, para. 205.

M Victim Participation in the Proceedings

Commentary

fabricio guariglia I Issues Common to Victim Participation in all Phases a General Requirements and Procedure for Applying to Participate Victim participation is a unique and distinctive feature of the Statute. However, some of its contours remain unclear even at this stage of the Court‘s existence, and certain aspects pertaining to the exercise of victims’ participatory rights under the Statute still require clarification.1 To some extent, this is an unavoidable consequence of the general and somewhat ambiguous language of article 68(3), the cornerstone of victim participation in the Court’s legal regime. At the same time, the procedural provisions in the Rules embrace a broad concept of victim participation, including participation in hearings through a legal representative, unless not authorised by the Chamber concerned (rule 91(2)), and questioning of witnesses, experts or the accused, all with leave of the Chamber (rule 91(3)). These provisions make clear that victims are not mere observers of the Court’s criminal proceedings, but rather enjoy some of the parties’ procedural rights, even though their exercise may be subject to restrictions such as the requisite judicial authorisation under rule 91(3).

1

The process leading to the adoption of the current wording of article 68(3) is discussed in Donat-Cattin, D., “Article 68: Protection of Victims and Witnesses and Their Participation in the Proceedings”, in Triffterer and Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary, 3rd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/ Baden-Baden, 2016), p. 1684.

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Consequently, the Appeals Chamber had to clarify the proper status of victims within the Court’s criminal process and in particular, the differences between the victims and the parties, that is, Prosecution and Defence. Notably, the Appeals Chamber’s ability to rule on the general requirements to participate in the Court’s proceedings was initially considered in the context of the Appeals Chamber’s regulation of victim participation in its own proceedings, since, as explained below, appellate scrutiny of the manner in which Pre-Trial Chambers were approaching victim participation was prevented by the Pre-Trial Chambers’ refusal to grant leave to appeal their decisions.2 A fundamental principle arising from the existing appellate jurisprudence is that article 68(3) does not allow for a third party to join proceedings. According to the Appeals Chamber, the opportunity that the provision affords to victims to voice their views and concerns “does not equate them [. . .] to parties to the proceedings before a Chamber, restricting their participation to issues arising therein touching upon their personal interests, and at stages and in a manner not inconsistent with the rights of the accused and a fair and impartial trial”.3 This necessarily impacts on the scope and depth of the victims’ participatory rights within the Court’s procedural framework, including their ability to lead evidence during the trial phase. A right to participate is recognised if the applicant qualifies as a victim under the definition provided by rule 85 of the Rules and his or her personal interests are affected.4 The determination of victim status during the pre-trial and trial phases of the proceedings will ordinarily correspond to the relevant Pre-Trial or Trial Chamber.5

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3

4 5

For a critical analysis of this particular stage of the initial jurisprudence on victim participation emerging from Pre-Trial Chambers of the Court, see Chung, C., “Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?”, Northwestern Journal of International Human Rights Vol. 6, Issue 3 (2008), p. 460. Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 55. Ibid., para. 45. Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 10. Implicitly, once a case has reached the appellate stage after a decision under article 74 has been rendered, responsibility for determination of victim status for any fresh applications to participate in the proceedings, if they are to be entertained, would rest with the Appeals Chamber.

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b Defining “Victim” in Rule 85 and Applying that Definition The Appeals Chamber has explained that rule 85 is a general provision relating to victims that is applicable to various stages of the proceedings and that its object and purpose is to define who is a victim.6 The Appeals Chamber has also clarified that the critical element of “harm” in rule 85 (a) must be personal, that is, it must be material, physical and/or psychological harm7 that is personal to the individual, but not necessarily direct.8 This must be established in every case. While there may be harm that can be both personal and collective, the issue for determination is whether the harm is personal to the individual victim, and in this regard, “[t]he notion of harm suffered by a collective is not, as such, relevant or determinative”.9 Indirect harm can also satisfy the requirements of rule 85(a): “[h]arm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims”.10 A typical example will be “when there is a close personal relationship between the victims such as the relationship between a child soldier and the parents of that child. The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents of that child.”11 In such a case, however, the relevant Chamber “must be satisfied that the family member existed and that he or she had the requisite relationship with the applicant”.12 For these purposes, the Chamber “must require proof of the identity of the family member and his or her relationship with the applicant”.13 According to the Appeals Chamber, “[w]hat evidence (be it documentary or otherwise) may be sufficient cannot be determined in the abstract, but must be assessed on 6

7

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9 12

13

Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, paras. 57–58. The Appeals Chamber has clarified that it considers “emotional harm” to be a form of psychological harm and that it understands the terms “préjudice moral” and “mental harm” to have the same meaning. See Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 34. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, paras. 1, 32, 38, 102. See also para. 30, direct harm is only required for organisational or institutional victims who have sustained “direct harm to their property” under rule 85(b). Ibid., para. 35. 10 Ibid., para 32. 11 Ibid. See Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 36. Ibid.

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a case-by-case basis and taking into account all relevant circumstances, including the context in which this Court operates”.14

c The Interpretation and Definition of “Personal Interests” The Appeals Chamber’s initial jurisprudence, which was delivered at a time when a Pre-Trial Chamber refused to certify its first decisions on victim participation at the situation level for appeal, contrasted starkly with the broad manner in which the case law emerging from that PreTrial Chamber was approaching this specific requirement.15 This strict approach would also characterise the Appeals Chamber’s interpretation of other elements of victim participation in the Court’s proceedings. A distinctive feature of this jurisprudence is that the impact on the victims’ personal interests must be determined after “careful consideration on a case-by-case basis”.16 In particular, “an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor”.17 Clear examples of where the personal interests of victims are affected are “when their protection is in issue and in relation to proceedings for reparations”.18 Further, when seeking to demonstrate that their personal interests are affected, victims should make “express reference [. . .] to the specific facts behind their individual applications and the precise manner in which those facts are said to fall within the issue under consideration on appeal”.19 Ordinarily, submissions of a broad and general nature would not suffice.20 14 15

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17 19

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Ibid., para. 38. For instance, the first Pre-Trial Chamber decision that granted general participatory status to victims at the situation level (something that the Appeals Chamber would later consider to be in error) did so on the basis of a very broad construction of “personal interests”. According to that Pre-Trial Chamber, “the personal interests of victims are affected in general at the investigation stage, since the participation of victims at this stage can serve to clarify the facts, to punish the perpetrators of crimes and to request reparations for the harm suffered”; see Situation in the DRC, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04-101-tEN-Corr, 17 January 2006, para. 63. Prosecutor v. Lubanga, Decision on Participation of Victims in the Appeal Against the Confirmation Decision under Article 82(1)(b), ICC-01/04-01/06-925 OA8, 13 June 2007, para. 28. Ibid. 18 Ibid. Situation in Uganda, Decision on the Participation of Victims in the Appeal, ICC-02/04164 OA, 27 October 2008, para. 11 (Judge Pikis Dissenting) and Prosecutor v. Kony et al., Decision on the Participation of Victims in the Appeal, ICC-02/04-01/05-324 OA2, 27 October 2008, para 13 (Judge Pikis Dissenting). Ibid.

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This language denotes a strict interpretation of the critical requirement of personal interests. It seems to indicate that the Appeals Chamber has aligned itself with those scholars who advocate for “a judicially recognisable personal interest”,21 that is, a tangible and identifiable interest being affected by the issues at stake, instead of broad or general claims, such as a general interest in the outcome of the investigation or the proceedings. Also, the language stating that in each case it must be determined whether the interests asserted by victims “do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor” is particularly instructive. Under the Statute, victims are not “second prosecutors”;22 rather, their participation is based on their personal interests and those interests must be distinguished from the mission that the Statute assigns to the Office of the Prosecutor. It can thus be concluded that victims cannot invoke aspects of the role and mission of the Prosecution under the Statute and the Rules, at least as the sole or main basis for their request to participate. Whereas the manner in which the Prosecution performs its statutory role under the Statute will not generally be neutral to victims, disagreement or concerns about the conduct of the investigation or prosecution may not suffice for the purposes of participation; the applicants must still demonstrate the existence of a personal interest being affected by the manner in which the investigation or prosecution is being carried out.

d Modalities of Participation So far, only individual judges of the Appeals Chamber have ventured into these areas, in the context of separate and dissenting opinions. However, the full Chamber has agreed that in order to give effect to the spirit and intention of article 68(3), the provision must be interpreted “so as to make victim participation meaningful”.23 Notably, while this principle is 21

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Haslan, E., “Victim Participation at the International Criminal Court: A Triumph of Hope Over Experience?” in McGoldrick et al. (eds.), The Permanent International Criminal Court (Hart: Oxford, 2004), p. 326. In this sense, victim participation under the Statute differs from the process followed by some domestic jurisdictions that afford to the victim of the crime prosecutorial functions, be it as an autonomous prosecutor (e.g., as private prosecutor in Spain) or as an auxiliary to the public prosecutor (e.g., Nebenkläger in Germany). For a comparative analysis on the role of victims in criminal proceedings, see Brienen, M. E. I. and Hoegen, E. H., Victims of Crime in 22 European Criminal Justice Systems: the Implementation of Recommendation (85)11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure (Wolf Legal Productions/Vidya: Nijmegen, 2000). Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 97.

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conceived for trial proceedings, it seems to be of general application to all proceedings before the Court.24 Further, this interpretation appears to exclude a marginal role for victims in the context of the Court’s proceedings. As one commentator has noted, meaningful participation “should be more than a pointless – and unaffordable – symbolism. It must benefit victims by enabling them to promote, individually or collectively, their legally recognized interests in the manner consistent with the Statute while contributing tangibly to the discharge of the core functions of the Court’s criminal process”.25

II Victims’ Participation in the Situation In a landmark ruling, the Appeals Chamber clarified that there was no right under the Statute for victims to participate in an investigation carried out by the Prosecution, contrary to the initial determinations made by Pre-Trial Chambers. In the view of the Appeals Chamber, under article 68(3) there could only be participation in “proceedings”, a term “denoting a judicial cause pending before a Chamber. In contrast, an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible.”26 This means that as a general principle, an investigation will remain closed to victims. This should not come as a surprise as a criminal investigation under the Statute is an inquiry conducted solely by the Prosecutor under strict conditions of confidentiality and guided by the principle of objectivity enshrined in article 54(1)(a). However, there appear to be three exceptions to this principle. First, victims may pass on relevant information and make representations to the Prosecution “on any matter pertaining to the investigations and to their interests”.27 The Prosecution has the authority to receive and consider such information and representations under articles 15(2) and 42(1).28 Second, victims have an express right to make representations under articles 15(3) and 19(3).29 Finally, victims “are not precluded from 24 25

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Ibid. Vasiliev, S., “Victim Participation Revisited: What the ICC is Learning about Itself”, in Stahn (ed.), The Law and Practice of the International Criminal Court (Oxford University Press: Oxford, 2015), p. 1140. Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para 45. Ibid., para. 53. 28 Ibid. 29 Ibid.

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seeking participation in any judicial proceedings, including proceedings affecting investigations, provided their personal interests are affected by the issues arising from resolution”.30 The latter situation, however, presupposes not only the existence of judicial proceedings related to ongoing investigations, but also that the existence of those proceedings is known to the relevant victims or groups of victims, which will not happen if those proceedings are conducted confidentially or ex parte – which, due to the confidential nature of the investigations conducted by the Prosecution, will very often be the case.

III Victim Participation in the Case a Participation of Victims at Trial i Link of the Harm Suffered to the Charges against the Accused In Lubanga, the majority of the Trial Chamber had concluded that in order to participate in a case before a Trial Chamber of the Court, victims did not need to establish a nexus between the harm allegedly suffered and the charges against the Accused. Instead, a victim of any crime under the jurisdiction of the Court could apply, and the Trial Chamber would then determine whether participation was warranted by analysing if their personal interests were truly affected by the evidence or issues involved in the trial.31 This peculiar decision, whereby a Trial Chamber would have been free to delve into facts falling squarely outside the framework of the charges, was unsurprisingly reversed by the Appeals Chamber. The Appeals Chamber acknowledged that rule 85 did not necessarily limit the notion of victims to those persons who had suffered harm as a result of the crimes charged, but concluded that “the effect of article 68(3) of the Statute is that the participation of victims in the trial proceedings, pursuant to the procedure set out in rule 89(1) of the Rules, is limited to those victims who are linked to the charges”.32 This is due, inter alia, to the fact that the subject matter of the trial proceedings in which victims may participate is defined by the crimes charged. The charges “define the issues to be determined at trial and limit the Trial Chamber’s authority to the determination of those 30 31

32

Ibid., para. 56. Prosecutor v. Lubanga, Decision on Victims’ Participation, ICC-01/04-01/06-1119, 18 January 2008, para. 95. Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 O10, 11 July 2008, para. 58.

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issues”.33 Consequently, allowing a Trial Chamber to venture into the circumstances of victims of crimes completely unrelated to the specific charges against the accused would fall outside the applicable legal framework. ii Evidentiary Rights The scope of the evidentiary rights of victims during trial was also a matter of debate during the Court’s initial years, and one that required two Appeals Chamber decisions in order to become fully settled. Initially, the Appeals Chamber held that while the right to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence lay “primarily” with the parties, this did not automatically preclude the possibility of victims doing the same.34 Indeed, the Appeals Chamber “confirmed” that “victims participating in the trial proceedings” might “in principle, lead evidence pertaining to the guilt or innocence of the accused and challenge the admissibility or relevance of the evidence”.35 The statutory basis for this sweeping assertion, however, was unclear, since article 68(3) only allows victims to present “views and concerns”, and not evidence, the Appeals Chamber needed to look elsewhere to find support. It did so by relying chiefly on the principle enshrined in article 69(3), which empowers the Court to “request the submission of all evidence that it considers necessary for the determination of the truth”.36 But the issue was also closely linked to the general rights of participation: “[i]f victims were generally and under all circumstances precluded from tendering evidence relating to the guilt or innocence of the accused and from challenging the admissibility or relevance of evidence, their right to participate in the trial would potentially become ineffectual”.37 Had the Appeals Chamber suddenly recognised a statutory right of victims to present evidence pertaining to the guilt or innocence of the accused? The answer to this question was provided by the same Appeals Chamber in a ruling delivered in the Katanga case and it was unequivocal: it had not. The Appeals Chamber reaffirmed the principle that victims did not have the right to present evidence during the trial.38 However, if victims could demonstrate that the requirements of article 68(3) 33 34

35 38

Ibid., para. 63. See Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 O10, 11 July 2008, paras. 3, 93–94. Ibid., para. 109 36 Ibid., para. 95. 37 Ibid., para. 97. Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC01/04-01/07-2288 OA11, 16 July 2010, para. 48.

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were met, and persuade the Trial Chamber that the evidence in question was “necessary for the determination of the truth” within the terms of article 69(3), then the Trial Chamber could call the evidence.39 That is, by means of petition, victims have the right to trigger the Trial Chamber’s authority to call evidence ex officio. Therefore, the evidence in question is not called by the victim, but by the Trial Chamber.

IV Victim Participation in Appeals a The Original Jurisprudence Initially, the Appeals Chamber required that in order to participate in interlocutory appeals – which were the only appeals that the Chamber had to deal with at the time – victims made a fresh application for participation before the Appeals Chamber.40 According to the Appeals Chamber, there was “no automatic right of participation in interlocutory appeals” for victims. 41 As a court acting at a distinct “stage of the proceedings”, the Appeals Chamber could not be bound by the previous determination made by the first instance Chamber that victim participation was appropriate in proceedings before the latter Chamber. The Appeals Chamber was required to make a separate and specific determination on the following matters: (i) whether the individuals seeking participation were victims in the case; (ii) whether they had personal interests that were affected by the issues on appeal; (iii) whether their participation was appropriate; and, finally, (iv) that the manner of participation was not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.42 This bifurcated approach, whereby victims had to make separate showings in the same case in order to be allowed to participate, was the object of a persistent dissent from Judge Song. Judge Song, subsequently joined by Judge Van den Wyngaert, considered that no further application to intervene on appeal was required, provided that the victims in question

39 40

41

42

Ibid., paras. 44–45. Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 38, 40, 43. Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 9. See Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 36.

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participated in the proceedings giving rise to the appeal.43 Under this view, requiring a further application to intervene was not only inconsistent with the Statute, the Rules and of the RoC,44 but also led to unnecessary delays in the appellate proceedings.45

b The New Appeals Chamber Changes Practice The situation remained unchanged until 2015, when the Appeals Chamber, in a different composition, decided to depart from its prior jurisprudence and follow the path laid down in Judge Song’s dissent. The Appeals Chamber first noted that under its own case law, it would exercise its discretion to depart from its previous jurisprudence only if there were “convincing reasons” to do so. It then considered that, “with the benefit of hindsight”, the practice of requiring a separate authorisation in order for victims to participate in an interlocutory appeal had resulted in “considerable delays in the proceedings given the added procedural steps involved”, namely, deciding on the application in each separate interlocutory appeal, and waiting for victims to file their applications and the parties to file their responses. The Appeals Chamber therefore concluded that the need for further efficiency warranted a modification of its prior interpretation of the relevant provisions of the Statute, the Rules and the RoC. For these purposes, the Appeals Chamber explicitly resorted to Judge Song’s interpretation of the relevant statutory framework, as laid down in its original dissent. Accordingly, the Appeals Chamber interpreted the term “participant” in regulations 64(4) and 65(5) of the RoC to necessarily include victims, thereby obviating the need for a specific determination on the appropriateness of victim participation pursuant to article 68(3) in an interlocutory appeal. It also considered 43

44

45

See Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in the Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 3, 7. Diss. Op; Prosecutor v. Bemba, Separate Opinion of Judge Song in the Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, p. 8. Sep. Op; Prosecutor v. Lubanga, Separate Opinion of Judge Song in the Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/04-01/06-2555 OA17, 17 August 2010, p. 10. Sep. Op. Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in the Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 2, 8. Diss. Op. Prosecutor v. Bemba, Separate Opinion of Judge Song to the Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-623, 27 November 2009, paras. 3–4. Sep. Op; Prosecutor v. Bemba, Separate Opinion of Judge Song in the Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1722 OA8, 9 September 2011, p. 19. Sep. Op.

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that appeals under article 82(1)(b) and (d) should be seen as an extension of the proceedings before the relevant Pre-Trial or Trial Chamber in the relevant case; therefore, following regulation 86(8) of the RoC, a decision taken by a Chamber under rule 89 (granting or rejecting applications to participate) would apply automatically to those interlocutory appeals.46 The Appeals Chamber recognised that there could be instances where the particular nature of the issues on appeal would fall outside the scope of the victims’ “personal interests” or where their participation would not be appropriate. In such a case, the Appeals Chamber could issue an order to that effect. According to the Appeals Chamber, “[t]his is expressly acknowledged by regulation 86(8) of the Regulations of the Court, whereby a prior decision of a Chamber concerning victim participation is ‘subject to the powers of the relevant Chamber in accordance with rule 91(1)’”. The Appeals Chamber also noted that any participation of victims that would exceed the filing of a response to the document in support of the appeal pursuant to regulation 64(4), (5) and (5) of the RoC, would require prior authorisation of the Appeals Chamber.47 There are two interesting aspects of this change of jurisprudence. First, it appears that the Appeals Chamber is becoming more accepting of the participation of victims at the appellate stage. Indeed, the Appeals Chamber has effectively moved from a restrictive system whereby it would not defer to the determination made by a Pre-Trial or Trial Chamber on the requirements of article 68(3) nor assume that participation would be warranted in interlocutory appeals flowing from the same case in which the victims were active participants, to a system that effectively does both of those things, while maintaining the Appeals Chamber’s regulatory powers. Secondly, the Appeals Chamber has injected considerations of efficiency in the standard used for departing from its own case law. It will be interesting to see whether other areas of that case law regarding the Chamber’s own procedure or that of first instance Chambers are also revisited with a view to bolstering the efficiency of the Court’s proceedings in this new phase of the Appeals Chamber’s work. 46

47

Prosecutor v. Gbagbo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, paras. 14–17. Regulation 86(8) of the RoC states that “[a] decision taken by a Chamber under rule 89 shall apply throughout the proceedings in the same case”. Prosecutor v. Gbagbo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 18.

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vi ctim participation in t he proceedings

c Other Questions Related to Victim Participation on Appeal There are two important elements of the Appeals Chamber’s case law pertaining to the participation of victims on appeal. The first element relates to appeals on admissibility and jurisdiction under article 82(1)(a). The Appeals Chamber noted that there was a lacuna in the Court’s legal instruments as to the procedure governing victim participation in appeals brought under articles 19(6) and 82(1)(a). Consequently, the Appeals Chamber developed an ad hoc scheme, whereby only those victims who made observations on the issues of jurisdiction or admissibility in the first instance are invited to make observations on appeal, within the time limit set under rule 59(3). “Victim applicants”, that is, individuals whose status as victims has not yet been determined, may be accepted “as long as they have made observations before the first-instance Chamber”.48 Secondly, the Appeals Chamber has made clear that, as a general rule, only victims who have already been recognised as such in the relevant case or situation may participate in an appeal, at least in the context of interlocutory appeals. The Appeals Chamber will not embark in an exercise of determining the status of persons who have not been recognised as victims in the first instance and will “not itself make first-hand determinations with the respect to the status of victims” in interlocutory appeals.49 The Appeals Chamber subsequently noted that this was the combined result of its limited role during pre-trial and trial phases, and the better position of Pre-Trial and Trial Chambers to assess whether an applicant is a victim, as they often have a deeper acquaintance with the facts underlying the case.50 “It follows,” concluded the Appeals Chamber, “that during the pre-trial and trial phases of the proceedings the Pre-Trial or Trial Chambers should ordinarily make the determination of victim status, and not the Appeals Chamber.”51 While the above case law only applied to interlocutory appeals, in its first final appeal the Appeals Chamber confined its ruling on victim participation to determine that those victims who had participated at trial could continue participating 48

49

50

51

Prosecutor v. Kosgey & Sang, Decision on the OPCV Request to Participate in the Defence Appeal on Jurisdiction, ICC-01/09-01/11-390 OA4, 20 February 2012, para. 13; Prosecutor v. Gbagbo, Directions on the Submissions of Observations, ICC-02/11-01/ 11-236 OA2, 31 August 2012, para. 3. Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9, OA10, 16 May 2008, para. 40. Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 10. Ibid.

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on appeal.52 At no point did the Appeals Chamber suggest that in final appeals it would be willing to expand the scope of participation and enter findings as to the status of new applicants. In contrast, in appeals on reparations, the Appeals Chamber has adopted a much more generous approach. In Lubanga, the Appeals Chamber first recalled that in the context of reparations proceedings, victims are true parties and not mere participants.53 As such, they are entitled to appeal decisions entered by the Trial Chamber in those proceedings.54 The Appeals Chamber further considered that the term “victim” in article 82(4) had to be understood in its context, that is, as a provision allowing individuals to appeal an order for reparations rendered by a Trial Chamber as a result of the reparations proceedings. It concluded that the term “victim” “is not defined as those victims who were granted the right to participate in the proceedings in relation to the accused person’s guilt or innocence or the sentence”, but may also include individuals who did not participate in those proceedings, but who claim to have suffered harm as a result of the crimes in relation to which the accused was convicted and who request reparations. This is because a request for reparations pursuant to rule 94 of the Rules of Procedure and Evidence is not dependent upon either the filing of an application for participation pursuant to rule 89 of the Rules of Procedure and Evidence or being granted the right to participate in the proceedings in relation to the accused person’s guilt or innocence or the sentence.55

There is therefore a significantly broader locus standi for victims in appellate proceedings related to reparations, consistent with the broader nature of victim intervention in reparations proceedings in general.

Jurisprudence I Issues Common to Victim Participation in all Phases 1 General Requirements and Procedure for Applying to Participate “Save for the above [referring to articles 15(3), 19(3), 75(3), 76(3) and rules 72(2)(b) and 119(3)], article 68(3) is the only provision of the Statute 52

53

54

See Prosecutor v. Lubanga, Decision on Victim Participation in the Appeals against Conviction and Sentencing, ICC-01/04-01/06 A4 A5 A6, 13 December 2012, paras. 2–3. Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/062953 A, A2, A3, OA2, 14 December 2012, para. 67. Ibid. 55 Ibid., para. 69.

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victim participation in the proceedings conferring upon a specified class of victims a right to participate, in the circumstances envisaged therein, in proceedings before the Court.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 10. Sep. Op. “The first constituent [of article 68(3)] requires that ‘the personal interests of the victim must be affected’. The status or identity of a person as a victim does not legitimize as such participation in any proceedings before the Court.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 13. Sep. Op. “Participation pursuant to article 68(3) of the Statute is confined to proceedings before the Court, and aims to afford victims an opportunity to voice their views and concerns on matters affecting their personal interests. This does not equate them, as the case law of the Appeals Chamber conclusively establishes, to parties to the proceedings before a Chamber, restricting their participation to issues arising therein touching upon their personal interests, and then at stages and in a manner not inconsistent with the rights of the accused and a fair and impartial trial.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 55. “A person has the right to participate in proceedings if a) he/she qualifies as a victim under the definition of this term provided by rule 85 of the Rules, and b) his/her personal interests are affected by the proceedings in hand in, that is, by the issues, legal or factual, raised therein.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 45. “[P]articipatory rights can only be granted under article 68(3) of the Statute once the requirements of that provision have been fulfilled.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 57. “Rule 89 of the Rules is specifically fashioned to the provisions of article 68 of the Statute and aims to regulate the steps that must be taken in order for a victim to participate in judicial proceedings.”

j ur i s p r uden ce Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 46. “The legal instruments of the Court do not expressly state which of the Chambers is the ‘relevant Chamber’ in terms of rule 89(1) of the Rules of Procedure and Evidence, and therefore the addressee of applications for participation transmitted by the Registrar.” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 8. “[T]he intervention of the Appeals Chamber during the pre-trial and trial phases is limited; the majority of the proceedings – and therefore the main opportunities for victims’ participation – takes place before the Pre-Trial or Trial Chambers. Furthermore, the Pre-Trial or Trial Chambers will, depending on the stage of the proceedings, often have an in-depth familiarity with the facts underlying the case and therefore are in a better position to assess whether an applicant is a victim. It follows that during the pre-trial and trial phases of the proceedings the Pre-Trial or Trial Chambers should ordinarily make the determination of victim status, and not the Appeals Chamber.” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 10.

2 Defining “Victim” in Rule 85 and Applying that Definition “On a contextual interpretation of rule 85, the Appeals Chamber notes that it is situated in Chapter 4 of the Rules: ‘Provisions relating to various stages of the proceedings’, Section III: ‘Victims and witnesses’, Subsection 1: ‘Definition and general principle relating to victims’. The location of rule 85 in the Rules is indicative of a general provision relating to victims, applicable to various stages of proceedings.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 57. “In relation to the object and purpose of rule 85, the Appeals Chamber considers that the rule does not have the effect of mandating participation of victims instead the object and purpose of rule 85 is to define who are victims.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 58.

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victim participation i n the proceedings

2.1 The Notion of Victim Necessarily Implies the Existence of Personal Harm (Direct or Indirect) “The harm suffered by a natural person is harm to that person, that is, personal harm. Material, physical and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim. Harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims [. . .]. The issue for determination is whether the harm suffered is personal to the individual. If it is, it can attach to both direct and indirect victims.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 1, 32; Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/ 04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para 34. “[T]he notion of victim necessarily implies the existence of personal harm but does not necessarily imply the existence of direct harm.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 38, 107. “[R]ule 85(b) of the Rules, limits the definition of organizational or institutional victims to those that have sustained ‘direct harm to any of their property’. The type of ‘harm’ referred to relates to organizations or institutions rather than natural persons. It is therefore different from the type of harm set out in rule 85(a) of the Rules, which is harm to natural persons.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 30. “The word ‘harm’ in its ordinary meaning denotes hurt, injury and damage. It carries the same meaning in legal texts, denoting injury, loss or damage and is the meaning of ‘harm’ in rule 85(a) of the Rules.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 31. “For the purpose of the present appeals, the Appeals Chamber understands ‘emotional harm’ to refer to a form of psychological harm; it understands the terms ‘préjudice moral’ and ‘mental harm’ to have the same meaning. For that reason, and having noted the definition of victims provided in Principle 8 of 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 of 16 December 2005, the Appeals Chamber will use the term ‘emotional harm’ in the present judgment.”

j ur i s p r uden ce Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 34. “Whether or not a person has suffered harm as the result of a crime within the jurisdiction of the Court and is therefore a victim before the Court would have to be determined in light of the particular circumstances.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 32. “The Appeals Chamber considers that there may clearly be harm that could be both personal and collective in nature. The fact that harm is collective does not mandate either its inclusion or exclusion in the establishment of whether a person is a victim before the Court. The issue for determination is whether the harm is personal to the individual victim. The notion of harm suffered by a collective is not, as such, relevant or determinative.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 35. “I am in agreement with the finding that to qualify as a victim under rule 85(a), the harm suffered must necessarily be personal harm. On the other hand, I disagree with the position that ‘the harm suffered by victims does not necessarily have to be direct’. There must be a direct nexus between the crime and the harm, in the sense of cause and effect. Psychological harm may, no doubt, be suffered without prior physical harm, but the crime itself must be the cause generating the harm, as may be the case with the destruction, violation or humiliation of persons near and dear to the victims.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 3. Diss. Op; Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in the Decision on the Participation of Victims in the Appeal, ICC-02/04-01/05-324 OA2, 27 October 2008, para. 7. Diss. Op. “Regulation 86(6) of the Regulations of the Court does not envisage participation outside the confines of rule 89 of the Rules. It merely regulates victim participation under article 68(3) of the Statute.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 49. “On the basis of a prima facie assessment of the information contained in the consolidated applications of the Applicant and victim a/0333/10 and the clarification provided as to the apparent inconsistencies in the

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victim participation i n the proceedings accounts, the Appeals Chamber is satisfied that there are credible grounds for suggesting that the Applicant suffered harm as a result of the crimes with which Mr Lubanga was charged. Accordingly, the Applicant has established, prima facie, that she is a victim within the meaning of [rule] 85(a) of the Rules of Procedure and Evidence for the purposes of participating in the present appeal proceedings.” Prosecutor v. Lubanga, Decision on a/2922/11’s Application to Participate, ICC-01/04-01/06-3052-Red A4 A5 A6, 3 October 2013, para. 8.

2.2

Indirect Harm and Harm Suffered as the Result of the Loss of a Family Member “Harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims. This is evident, for instance, when there is a close personal relationship between the victims such as the relationship between a child soldier and the parents of that child. The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents of that child.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 32. “When a Pre-Trial Chamber is considering whether an applicant fulfils the criteria of rule 85(a) of the Rules of Procedure and Evidence because he or she suffered emotional harm as the result of the loss of a family member, it must require proof of the identity of the family member and of his or her relationship with the applicant. The Chamber must be satisfied that the family member existed and that he or she had the requisite relationship with the applicant. In the light of these principles and the factual and evidential basis in the present case [no documentary or other evidence in addition to applications provided; applications themselves providing little information], the Pre-Trial Chamber erred in arriving at its finding that applicants [. . .] had suffered emotional harm as the result of the loss of a family member.”56 Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 36. “What evidence (be it documentary or otherwise) may be sufficient cannot be determined in the abstract, but must be assessed on a case-bycase basis and taking into account all relevant circumstances, including

56

However, the Impugned Decisions were confirmed (see para. 41) not solely on the findings of emotional harm, but also on findings of other forms of harm (Judge Pikis dissenting, considering the appeal to be inadmissible in para. 11 of his Dissenting Opinion).

j u r i s p r ud e n c e the context in which this Court operates [. . .]. It is noteworthy that the identity of an applicant, on the one hand, and the identities of his or her family members and their relationship with the applicant, on the other hand, relate to different elements of rule 85(a) of the Rules of Procedure and Evidence [. . .]. It is not per se erroneous for a Pre-Trial Chamber to require specific evidence in respect of one of the elements of rule 85(a) of the Rules of Procedure and Evidence, but not to require the same specific evidence in respect of the other elements of that rule, in certain circumstances. Furthermore, the Appeals Chamber is aware that, in the context of which this Court operates, it may be more difficult for an applicant to obtain documentary evidence in relation to the identity of another person than in relation to his or her own identity.” Prosecutor v. Kony et al., Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para 38.

3 Victims must Demonstrate How their “Personal Interests” are Affected “The proof or disproof of the charges is a matter affecting the adversaries. The victims have no say in the matter. Their interest is that justice should be done, coinciding with the interest of the world at large that the criminal process should run its course according to law, according to the norms of a fair trial. Both the submission of evidence and its reception affect the parties to the adversity. It is not the victims’ concern, a matter directly related to the reception of evidence, to either prove or disprove the charges.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 19. Diss. Op. “To qualify for participation in proceedings before the Court, the personal interests of a victim as such must be affected. The word ‘affect’ denotes something having a bearing on, impact or repercussions upon the victims’ personal interests. To the question ‘affected’ by what, the self-evident answer is by the proceedings before the Court, in which participation is sought. Of which victims (of those coming within the definition) the personal interests are at stake in any given proceedings? The inevitable answer is of victims who suffered harm from the crime or crimes, the subject-matter of investigation, confirmation, the trial, appeal, revision (article 84 of the Statute), and reduction of sentence (article 110 of the Statute and rule 224 of the Rules of Procedure and Evidence).” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the

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v i c t i m p a r t i c i p a t i o n in th e p r o c e e d i n g s Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 13. Sep. Op. “Participating victims’ views and concerns are referable to the cause that legitimizes their participation, the cause that distinguishes them from other victims, namely, their personal interests to the extent they are affected by the proceedings [. . .]. Victims have an interest that the loss or injury they have suffered, a matter of individual concern, should surface in the proceedings and be brought to light. Such evidence would presage any claim to reparations as well as illuminate the gravity of the crime.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 16. Sep. Op. Victims may not express their views and concerns “in relation to the proof of the case or the advancement of the defence. The burden of proof of the guilt of the accused lies squarely with the Prosecutor (article 66(2) of the Statute). Provision is made in the Statute (article 54(1)) for the Prosecutor to seek and obtain information from victims about the facts surrounding the crime or crimes forming the subject-matter of the proceedings. That the judicial process should follow its ordained course is a cause common to all; its sustenance is the responsibility of the Court, the guardian of the judicial process. It is not the victims’ domain either to reinforce the prosecution or dispute the defence.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 16. Sep. Op. “In seeking to demonstrate that their personal interests are affected, victims should generally ensure, inter alia, that express reference is made to the specific facts behind their individual applications, and the precise manner in which those facts are said to fall within the issue under consideration on appeal. The Appeals Chamber notes that in the present case the submissions made on personal interests were of a broad and general nature. Notwithstanding that factor, the Appeals Chamber accepts the essence of the submission of [the] victim [. . .] that both his status and his right to participate may be prejudiced should the resolution of the issue on appeal result in a reversal of the Chamber’s decision on the issue.”57

57

Note that pursuant to a subsequent judgment of the Appeals Chamber, victims are granted an automatic right to participate in appeals under article 82(1)(b) and (d): see Prosecutor v. Gbagbo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 19.

jurisprudence Situation in Uganda, Decision on the Participation of Victims in the Appeal, ICC-02/04-164 OA, 27 October 2008, para 11; Prosecutor v. Kony et al., Decision on the Participation of Victims in the Appeal, ICC-02/0401/05-324 OA2, 27 October 2008, para. 13; Prosecutor v. Gbagbo, Decision on Victim Participation in the Interim Release Appeal, ICC-02/11-01/11491 OA4, 27 August 2013, para. 11. “[A]n application should include a statement from the victims in relation to whether and how their personal interests are affected by the particular interlocutory appeal, as well as why it is ‘appropriate’ for the Appeals Chamber to permit their views and concerns to be presented.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 2, 44; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 23; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 35. “[A]ny determination by the Appeals Chamber of whether the personal interests of victims are affected in relation to a particular appeal will require careful consideration on a case-by-case basis. Clear examples of where the personal interests of victims are affected are when their protection is in issue and in relation to proceedings for reparations.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 28. See also Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, paras. 35–36 (where victims claimed to have suffered from sexual slavery, inhuman and/or cruel treatment, an appeal on whether the legal characterisation facts could be modified to include these crimes did affect their personal interests); Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 9; Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2124 OA11, 24 May 2010, para. 7; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 9; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1848 Red OA9, 19 October 2011, para. 10; Prosecutor v. Mbarushimana, Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision, ICC-01/0401/10-509 OA4, 2 April 2012, para. 9.

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victim participation in t he proceedings “[A]n assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/ 06-925 OA8, 13 June 2007, para. 28. “In the present case, the Appeals Chamber notes that the Victims’ submissions on their personal interests are limited to a re-statement of the Appeals Chamber’s previous fact-specific jurisprudence and that they do not indicate its specific relevance to the issues under consideration in the present appeal. The facts or issues underlying one appeal on interim release may be different from another and thus it is necessary for victims, in future applications, to demonstrate with sufficient particularity and clarity the link between the specific issues on appeal and the effect of such issues on their personal interests.” Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 10; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 13. “The Appeals Chamber notes that the [application to participate in the appeal as Legal Representative of Victims] does not list the victims who are represented by Ms Douzima-Lawson. Nor does the Second Application explain in any detail why the appeal affects the personal interests of the victims represented by her. In these circumstances, the Second Application must be rejected.” Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 14. “In relation to whether the Victims’ personal interests are affected in the case at hand, the Appeals Chamber notes that the issues on appeal concern the scope of the Prosecutor’s obligations under rule 77 of the Rules of Procedure and Evidence to disclose the Requested Material to Mr Banda and Mr Jerbo. The Appeals Chamber considers that these issues are, as such, unrelated to the personal interests of the Victims because they relate solely to the relationship between the accused and the Prosecutor. The Appeals Chamber recalls further that the Requested Material is from another case entirely – that of Prosecutor v. Omar Hassan Ahmad Al Bashir – and there is no suggestion that potentially disclosing material from that case affects the personal interests of the Victims in the present case.” Prosecutor v. Banda & Jerbo, Decision on the Participation of Victims, ICC-02/05-03/09-470 OA4, 6 May 2013, para. 12.

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4 Cases Where the Interests of Victims are Affected 4.1 Decisions Confirming the Charges “The issues on appeal relate to the evaluation of evidence at the confirmation hearing and to the scope of individual criminal responsibility under article 25(3)(d) of the Statute [. . .]. If the Impugned Decision is upheld and subject to article 61(8) of the Statute, the victims will not have an opportunity to present their views and concerns in the course of a trial and will be prevented from seeking reparations before this Court. Therefore, the Appeals Chamber finds that the victims’ personal interests are affected by this appeal [. . .]. [T]he repercussions of the appeal on the personal interests of the victims are considerable.” Prosecutor v. Mbarushimana, Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision, ICC-01/0401/10-509 OA4, 2 April 2012, para. 10. “Whether the decision confirming the charges is ultimately liable to be quashed is predicated upon the Appellant having the right to appeal under article 82(1)(b) of the Statute. If the Appellant fails to demonstrate that he has such a right, then there is no possibility of the decision confirming the charges being quashed, and the interests that the Victims assert in their Application for Participation will therefore never be implicated. On the other hand, should the Appeals Chamber decide, following its consideration of the preliminary issue, that the appeal can proceed to be heard, it would then consider, on the basis of the application made by the Victims, whether or not their personal interests are affected by the appeal itself and whether it is appropriate for them to participate at that stage.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/ 06-925 OA8, 13 June 2007, para. 27.

4.2 Ethnicities Targeted in Cases of Genocide “The Victims’ personal interests are affected by the issue on appeal insofar as they claim to belong to the Fur, an ethnic group against whom Mr Al Bashir is alleged to have committed the crime of genocide.” Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 10

4.3 Presentation of Evidence and Calling of Witnesses The Appeals Chamber found that the victims’ personal interests were directly affected as “[i]n the present appeal [. . .] Mr Katanga challenges

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v i c t i m p a r t i c i p a t i o n in t h e p r o c e e d i n g s the Trial Chamber’s finding that the Victims may present evidence and call victims to testify against the accused, in a manner that includes incriminating evidence and testimony, without disclosing the evidence prior to trial. In addition, Mr Katanga seeks to limit the scope of the Victims’ evidence and to have a general obligation imposed on Victims to disclose all incriminatory and exculpatory information in their possession”. Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2124 OA11, 24 May 2010, para. 7.

4.4

When Issue on Appeal Refers to Whether the Accused would Stand Trial (Stay Proceedings, Interim or Indefinite Release) “[T]he Appeals Chamber observes that the subject-matter of the present appeal involves a review of a decision denying the release of Mr Bemba, on the basis that (i) there are no changed circumstances warranting his release, and (ii) that his detention is necessary to ensure his appearance at trial. The Appeals Chamber recalls that it has previously held that where the underlying issue on appeal was whether the accused would stand trial, this issue affects a victim’s personal interest. This is because if an accused does not appear for trial, the victim will neither have an opportunity to present his or her views and concerns nor present a claim for reparations against the accused, should he or she be convicted.” Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 10; Second sentence quoted in Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 10. “[T]he present appeal affects the victims’ personal interests, given that the Impugned Decision ordered the unconditional release of Mr Lubanga Dyilo.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/ 04-01/06-2555 OA17, 17 August 2010, para. 18 (emphasis added), citing Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 54; Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 17 (“having regard to the nature of the appeal itself”). “The Appeals Chamber has previously held that where the underlying issue on appeal was whether the accused should be granted interim release, the issue affects a victim’s personal interest.”

jurisprudence Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1848-Red OA9, 19 October 2011, para. 11, citing Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 17 (“having regard to the nature of the appeal itself”). “[T]he personal interests of the three victims are affected by the principal issue on appeal, namely, whether the proceedings in respect of Mr Lubanga Dyilo should be stayed. If the trial in respect of Mr Lubanga Dyilo does not take place, the victims will not have an opportunity to present their views and concerns in the course of that trial and will be unable to present a claim for reparations against him, should he be convicted.” Prosecutor v. Lubanga, Decision on the Participation of Victims in the Appeal, ICC-01/04-01/06-1453 OA12, 6 August 2008, para. 9 (emphasis added); Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal on the Stay of Proceedings due to an Abuse of Process, ICC-01/0401/06-2556 OA18, 18 August 2010, para. 9.

5 Victims Must Demonstrate that Their Participation is at an Appropriate Stage of the Proceedings “Even when the personal interests of victims are affected within the meaning of article 68(3) of the Statute, the Court is still required, by the express terms of that article, to determine that it is appropriate for their views and concerns to be presented at that stage of the proceedings and to ensure that any participation occurs in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/ 06-925 OA8, 13 June 2007, para. 28. “[T]he proceedings in the present appeal are far advanced, and it will not ordinarily accept requests for participation at such a late stage. However, in light of the extraordinary circumstances of the present case, which impeded the Victims from approaching the Chamber earlier, the Appeals Chamber accepts that these circumstances were beyond the control of the Victims and accordingly deems their participation to be appropriate.” Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 11. “In addition, the Appeals Chamber considers that the present appeal is at a stage of the proceedings in which the participation of the Victims is

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victim participation in t he proceedings appropriate, in particular, in light of the consequences that the outcome of the present appeal may have [interim release of the accused].” Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 11. “[E]ven if this right [of victims and States to submit observations on admissibility proceedings under article 19(3)] is applicable [on appeal] it must of necessity be restricted in its enforcement due to the under seal and ex parte, Prosecutor only, nature of the proceedings.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 30. “[P]articipation by these sixty victims [. . .] is appropriate given the subject-matter of the current appeals and the desirability for the views of victims in appeals of this nature to be heard.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 98. “[T]he Appeals Chamber considers the participation of [the] victim [. . .] is appropriate in light of the consequences that the outcome of the appeal may have on his personal interests.” As “both his status and his right to participate may be prejudiced should the resolution of the issue on appeal result in a reversal of the Chamber’s decision on the issue”. Situation in Uganda, Decision on the Participation of Victims in the Appeal, ICC-02/04-164 OA, 27 October 2008, paras. 11–12; Prosecutor v. Kony et al., Decision on the Participation of Victims in the Appeal, ICC02/04-01/05-324 OA2, 27 October 2008, paras. 13–14. “[T]he Appeals Chamber has already found that the appeals of the Prosecutor are clearly inadmissible. Any delay for procedural reasons in the delivery of this admissibility decision could have an effect on the release of Mr Mbarushimana and potentially could jeopardize his fundamental right to liberty. Therefore, the Appeals Chamber finds it unacceptable to delay the delivery of the decision and cannot, in this specific appeal, allow victims to participate.” Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, para. 34.

6 The Stages of Proceedings at Which Victims may Participate “The ‘stage’ relates to the point or interval of the proceedings at which views and concerns may be put forward and the ‘manner’ of the framework of their presentation. The manner of presentation of victims’

jurisprudence views and concerns is subject to an important proviso. It must not be inconsistent with a) the rights of the accused and b) a fair and impartial trial. This is also a consideration relevant to the determination of the appropriateness of the stage at which such views and concerns may be presented.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 17. Sep. Op. “The stage at which the views and concerns of victims may be presented must be at an interval of the proceedings that would be appropriate, regard being had to the norms of a fair and impartial trial and the rights of the accused evaluated within the context of the Statute. An opportune stage at which the views and concerns of participating victims may be presented is at the outset of the proceedings, alerting the Court and the parties to the implications of the case on the personal interests of victims and how best they may be safeguarded.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 20. Sep. Op.

7 Principles Governing the Modalities of the Participation of Victims and the Expression of “Views and Concerns” “To give effect to the spirit and intention of article 68(3) of the Statute in the context of the trial proceedings it must be interpreted so as to make participation by victims meaningful.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 97. “The participation of victims in the proceedings is confined to the expression of their views and concerns.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 15. Diss. Op. “Power is acknowledged to the Court [. . .] to seek the adduction of evidence (article 69(3) of the Statute) and ask questions of witnesses, as provided for in rule 140 of the Rules of Procedure and Evidence. Rule 91(3) of the Rules of Procedure and Evidence confers a limited right to victims to seek, subject to a ruling of the Chamber approving such a course, to question through their legal representatives or the Chamber witnesses, a right confined [. . .] to matters affecting their personal

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victim participation in t he proceedings interests, qualified again by the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 20. Sep. Op. “Victims may refer to the effect of the evidence on their personal interests at the end of the trial, subject always to the right of the accused, assured by rule 141(2) of the Rules of Procedure and Evidence, to have the last word. The possibility of affording victims the opportunity to present their views and concerns at the opening and closing stages of the trial is envisioned by rule 89(1) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 21. Sep. Op. “Once they have established that their personal interests are affected, what victims are entitled to present are their ‘views and concerns’. On an ordinary understanding of those words, they do not equate to an ability to lead evidence on guilt. It would, in my view, be perfectly legitimate for victims to present their views and concerns in relation to the evidence submitted by the parties where it affects their personal interests. However, there is a sizeable difference between presenting views and concerns in relation to issues that arise at the trial that affect the personal interests of victims and presenting a prosecution case by leading additional evidence – independent of that led by the Prosecutor – on guilt.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 30. Diss. Op.

8 Participation of Victims under other Provisions (including Articles 15, 19 and 75 and Rules 93, 94 and 143) 8.1 Victim Participation under Articles 15 and 19 “In the view of the Appeals Chamber, there is ample scope within the statutory scheme of the Statute for victims and anyone else with relevant information to pass it on to the Prosecutor without first being formally accorded ‘a general right to participate’. For example, under article 15(2) the Prosecutor is authorised to receive information from, inter alia, any ‘reliable source’ – including victims. He is similarly authorised under article 42(1) to receive and consider ‘any substantiated information on crimes within the jurisdiction of the Court’. Victims may thus make representations to the Prosecutor on any matter pertaining to the

juri sprudence investigations and to their interests. They are also specifically granted the right to make representations under articles 15(3) and 19(3) of the Statute.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 53.

8.2 Victim Participation under Rule 93 Under rule 93, “[t]he views of victims may be solicited independently of whether they participate or not in any given proceedings before the Court. Initiative for soliciting the views of victims under this rule rests entirely with a Chamber. Victims may express their views on any given subject identified by the Chamber. Here again, the process is distinguished from victim participation under article 68(3) of the Statute”. Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 48.

8.3 Victim Participation under Article 75 “There is yet another species of proceedings that must be distinguished from participation under article 68(3) of the Statute. These are proceedings which the victims may initiate themselves under statutory provisions. Pursuant to the provisions of article 75 of the Statute and rule 94 of the Rules, they may make a request for reparations against the convicted person in the manner envisaged by the aforesaid rule.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 50.

8.4 Victim Participation under Article 68(1) and (2) “Furthermore, victims as well as witnesses may move the Court to take protective measures for their safety, physical and psychological well-being, dignity and privacy as foreseen, inter alia, in article 68(1) and (2) of the Statute and rules 87 and 88 of the Rules.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 50.

8.5 Victim Participation under Rule 143 “Rule 143 of the Rules of Procedure and Evidence imports by necessary implication a right to participating victims to express their position in any

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victi m participation in t he proceedings hearing held for sentencing purposes. Another area involving the personal interests of victims is their protection and support in the proceedings, for which provision is made in several parts of the Statute and the Rules of Procedure and Evidence. The Court itself may elicit the views of participating victims in relation to the matters outlined in rule 93 of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 16. Sep. Op.

8.6

Victim Participation under other Provisions “Information that victims can provide to the Prosecutor about the scope of his investigations [including under articles 54(1)(b), 53(1)(c), 68(1) and 54(3)(f)] cannot but be welcome as it could provide nothing other than assistance.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 54.

9 Legal Representation of Victims 9.1 Scope of the Legal Representatives’ Representation “[T]he relationship between counsel and his or her clients is regulated by the Code of Professional Conduct for Counsel [. . .]. Under article 11 of the Code, acceptance by counsel of a request for representation from a Chamber establishes a representation agreement, which, under article 2(2) of the Code ‘binds counsel to his or her client before the Court’. The duration and eventual termination of the representation agreement is governed by article 17(1) of the Code [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Legal Representation of Victims Participating in Appeals Proceedings, ICC-01/ 09-02/11-416 OA4, 23 April 2012, para. 16; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 19. “[T]his provision [article 17(1) of the Code of Conduct] ensures that there are no gaps in the legal representation of a client, even if a case continues before the Appeals Chamber. The application of article 17(1) of the Code to the case at hand leads to a practical result: it ensures that the Victims remain represented unless and until the case is concluded, the Legal Representative withdraws, or is withdrawn by the Pre-Trial Chamber, the Trial Chamber or indeed the Appeals

jurisprudence Chamber. In contrast, limiting the legal representation from the outset to the proceedings before the Pre-Trial Chamber would have led to a situation in which, as soon as the case moves to the Trial Chamber, as well as in respect of all proceedings before the Appeals Chamber, the Victims would be without legal representation. In such a situation, the Trial or Appeals Chamber would not even have an interlocutor with whom to address the arrangements for the participation of the Victims.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Legal Representation of Victims Participating in Appeals Proceedings, ICC-01/ 09-02/11-416 OA4, 23 April 2012, para. 17; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 20. “[I]n the Decision on Victims’ Participation, the Pre-Trial Chamber did not consider article 17 of the Code and its impact on the continuing representation of the Victims by the Legal Representative. The Appeals Chamber notes the Pre-Trial Chamber’s concern not to predetermine the question of the legal representation of the Victims at the trial phase of the proceedings. Nevertheless, the application to the case at hand of article 17 of the Code does not lead to any such predetermination or limit the Trial Chamber’s powers to regulate, within the Court’s legal framework, the common representation of victims at the trial, if any. The Trial Chamber remains free to take any decision within that framework to regulate the legal representation of the Victims.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Legal Representation of Victims Participating in Appeals Proceedings, ICC-01/ 09-02/11-416 OA4, 23 April 2012, para. 18; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 21. “[T]he result of the application of article 17 of the Code is simply that the Victims are currently represented. Accordingly, having regard to the legal framework, the effect of the Decision on Victims’ Participation is not that the Victims are currently unrepresented; rather, unless and until the representation agreement is brought to an end pursuant to article 17 of the Code, the Legal Representative continues to represent the Victims, including in the present appeals proceedings.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Legal Representation of Victims Participating in Appeals Proceedings, ICC-01/ 09-02/11-416 OA4, 23 April 2012, para. 18; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 21.

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victim participation in t he proceedings

Scope of the Legal Assistance Paid by the Court “The Appeals Chamber underlines that the question of whether the Legal Representative continues to represent the Victims must be distinguished from the scope of legal assistance paid by the Court [. . .].” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Legal Representation of Victims Participating in Appeals Proceedings, ICC-01/ 09-02/11-416 OA4, 23 April 2012, para. 20; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 22. “[T]he Legal Representative continues to represent the Victims. This, however, does not mean that the scope of legal assistance paid by the Court must be maintained at the same level as during the pre-trial proceedings [. . .]. In the view of the Appeals Chamber, and based on the information currently available to the Chamber, the approach of the Registry as to legal assistance paid by the Court for the present phase of the proceedings before the Appeals Chamber, namely, that further activities of the Legal Representative must be authorised beforehand by the Registry in order to be covered by the legal aid scheme, is therefore adequate.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Legal Representative Application under Article 83 of the Regulations, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012, para. 23.

II Victim Participation in the Situation 1 Absence of General Participatory Rights of Victims in an Investigation “[P]articipation can take place only within the context of judicial proceedings. Article 68(3) of the Statute correlates victim participation to ‘proceedings’, a term denoting a judicial cause pending before a Chamber. In contrast, an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para 45. See also Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in the Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 12. Diss. Op. “In the view of the Appeals Chamber, there is ample scope within the statutory scheme of the Statute for victims and anyone else with relevant

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information to pass it on to the Prosecutor without first being formally accorded ‘a general right to participate’. For example, under Article 15(2) the Prosecutor is authorised to receive information from, inter alia, any ‘reliable source’ – including victims. He is similarly authorised under article 42(1) to receive and consider ‘any substantiated information on crimes within the jurisdiction of the Court’. Victims may thus make representations to the Prosecutor on any matter pertaining to the investigations and to their interests. They are also specifically granted the right to make representations under articles 15(3) and 19(3) of the Statute.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 53. “[I]n the situation phase of the proceedings a suspect or group of suspects has yet to be identified by the Prosecutor. The application therefore of criteria (iv) above, namely, ‘that the manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial’ will be with a view to safeguarding the rights of future suspects.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 91.

2 Victim Participation in Judicial Proceedings in a Situation “[V]ictims are not precluded from seeking participation in any judicial proceedings, including proceedings affecting investigations, provided their personal interests are affected by the issues arising for resolution.” Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008, para. 56.

III Victim Participation in the Case 1 Participation of Victims at Trial 1.1 The Harm Alleged by Victims and Their Personal Interests Must be Linked with the Charges against the Accused “For the purposes of participation in the trial proceedings, the harm alleged by a victim and the concept of personal interests under article 68(3) of the Statute must be linked with the charges confirmed against the accused.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 2, 65.

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vi ctim participation in t he proceedings “The Appeals Chamber acknowledges that rule 85 does not have the effect of restricting the participation of victims to the crimes charged. However, the provision must be read in context and in accordance with its object and purpose.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 54. “[W]hilst the ordinary meaning of rule 85 does not per se limit the notion of victims to the victims of the crimes charged, the effect of article 68(3) of the Statute is that the participation of victims in the trial proceedings, pursuant to the procedure set out in rule 89(1) of the Rules, is limited to those victims who are linked to the charges.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 58. “Given that the purpose of trial proceedings is the determination of the guilt or innocence of the accused person of the crimes charged, and that the application under rule 89(1) of the Rules in this context is for participation in the trial, only victims of these crimes will be able to demonstrate that the trial, as such, affects their personal interests. Therefore, only victims who are victims of the crimes charged may participate in the trial proceedings pursuant to article 68(3) of the Statute read with rules 85 and 89(1) of the Rules. Once the charges in a case against an accused have been confirmed in accordance with article 61 of the Statute, the subject matter of the proceedings in that case is defined by the crimes charged.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 62. “[T]he parameters set forth in the charges define the issues to be determined at trial and limit the Trial Chamber’s authority to the determination of those issues. Therefore, any determination of the Trial Chamber under article 68(3) of the Statute read with rules 85 and 89(1) of the Rules, in relation to a victim’s status and/or participatory rights which are unrelated to the specific charges against the accused would fall outside this framework.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 63. “It is for the Trial Chamber to determine within this framework whether an applicant is a victim, because he or she suffered harm in connection with the particular crimes charged, and if so, whether the personal interests of the applicant are affected. If the applicant is unable to demonstrate a link between the harm suffered and the particular crimes charged, then even if his or her personal interests are affected by an issue in the trial, it would not be appropriate under article 68(3) read with rules 85 and 89(1) of the Rules for his or her views and concerns to be presented.”

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Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 64.

1.2 General Considerations Regarding the Participation of Victims during the Trial “Participation of victims at trial will, first and foremost, take place through the procedure of rule 89(1) of the Rules. By way of written applications, applicants will have to demonstrate, firstly, that they are victims within the meaning of rule 85 of the Rules. Secondly, pursuant to article 68(3) of the Statute, victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 61.

1.3 Victims’ Right to Lead Evidence “[T]he right to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence lies primarily with the parties, namely, the Prosecutor and the Defence [. . .]. However, the Appeals Chamber does not consider these provisions to preclude the possibility for victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence during the trial proceedings.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 3, see also paras. 93–94. “[T]he Appeals Chamber confirms [. . .] that victims participating in the trial proceedings may, in principle, lead evidence pertaining to the guilt or innocence of the accused and challenge the admissibility or relevance of the evidence.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 109. “[T]he first sentence of article 69(3) is categorical: ‘[t]he parties may submit evidence relevant to the case, in accordance with article 64’. It does not say ‘parties and victims may’. The language of article 69(3) cited above, and article 64(6)(d) which provides that the Court shall have the authority to ‘[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’ clearly envisions that evidence presented during the trial would be presented by the parties. The Rome Statute framework contains

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victim participation in t he proceedings numerous provisions which support this interpretation such as those pertaining to the role assigned specifically to the Prosecutor in, inter alia, investigating the crimes, formulating the charges and determining what evidence should be brought in relation to the charges (articles 15, 53, 54, 58 and 61(5) of the Statute). Article 66(2) of the Statute provides: ‘[t]he onus is on the Prosecutor to prove the guilt of the accused’. Presumptively, it is the Prosecutor’s function to lead evidence of the guilt of the accused. In addition, the regime for disclosure contained in rules 76 to 84 of the Rules which sets out the specific obligations of the parties in this regard is a further indicator that the scheme is directed towards the parties and not victims.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 93. “While mindful that the Prosecutor bears the onus of proving the guilt of the accused, it is nevertheless clear that ‘the Court has the authority to request the submission of all evidence that it considers necessary for the determination of the truth’ (article 69(3) of the Statute). The fact that the onus lies on the Prosecutor cannot be read to exclude the statutory powers of the court, as it is the court that ‘must be convinced of the guilt of the accused beyond reasonable doubt’ (article 66(3) of the Statute).” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 95. “To give effect to the spirit and intention of article 68(3) of the Statute in the context of the trial proceedings it must be interpreted so as to make participation by victims meaningful. Evidence to be tendered at trial which does not pertain to the guilt or innocence of the accused would most likely be considered inadmissible and irrelevant.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 97. “If victims were generally and under all circumstances precluded from tendering evidence relating to the guilt or innocence of the accused and from challenging the admissibility or relevance of evidence, their right to participate in the trial would potentially become ineffectual.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 97. “The framework established by the Trial Chamber [. . .] is premised on an interpretation of article 69(3), second sentence, read with article 68(3) and rule 91(3) of the Rules, pursuant to which the Chamber, in exercising its competent powers, leaves open the possibility for victims to move the Chamber to request the submission of all evidence that it considers necessary for the determination of the truth.”

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Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 98. “[P]articipating victims are not parties to the proceedings; under article 68(3) of the Statute they may only present their ‘views and concerns’, and this only if their personal interests are affected.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 39. “The Appeals Chamber underlines once again that victims do not have the right to present evidence during the trial; the possibility of victims being requested to submit evidence is contingent on them fulfilling numerous conditions. Firstly, their participation is always subject to article 68(3) of the Statute, which requires that they demonstrate that their personal interests are affected by the evidence they request to submit. Secondly, when requesting victims to submit evidence, the Trial Chamber must ensure that the request does not exceed the scope of the Trial Chamber’s power under article 69(3) of the Statute. In addition, the Trial Chamber will ‘ensure that [the] trial is fair and expeditious and is conducted with full respect for the rights of the accused’, which includes the right to ‘have adequate time and facilities for the preparation of the defence’.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 48.

1.4 Principles Governing the Implementation of the Right to Present Evidence “[T]he Trial Chamber did not create an unfettered right for victims to lead or challenge evidence, instead victims are required to demonstrate why their interests are affected by the evidence or issue, upon which the Chamber will decide, on a case-by-case basis whether or not to allow such participation.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 4, 99. “The Trial Chamber has correctly identified the procedure and confined limits within which it will exercise its powers to permit victims to tender and examine evidence: (i) a discrete application, (ii) notice to the parties, (iii) demonstration of personal interests that are affected by the specific proceedings, (iv) compliance with disclosure obligations and protection orders, (v) determination of appropriateness and (vi) consistency with the rights of the accused and a fair trial.”

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v i c t i m p a r t i c i p a t i o n in t h e p r o c e e d i n g s Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 4, 104. “With these safeguards in place, the grant of participatory rights to victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of the evidence is not inconsistent with the onus on the Prosecutor to prove the guilt of the accused nor is it inconsistent with the rights of the accused and a fair trial.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, paras. 4, 104. “In deciding each application the Trial Chamber, being vigilant in safeguarding the rights of the accused could take into account, inter alia, whether the hearing of such evidence would be appropriate, timely or for other reasons should not be ordered. If the Trial Chamber decides that the evidence should be presented then it could rule on the modalities for the proper disclosure of such evidence before allowing it to be adduced and, depending on the circumstances, it could order one of the parties to present the evidence, call the evidence itself, or order the victims to present the evidence.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 100. “[T]he delineation of what constitutes evidence ‘necessary for the determination of the truth’ will inevitably be decided by the Trial Chamber on a case-by-case basis [. . .]. [T]he role of the accused in the crimes charged is a crucial question on which the Trial Chamber will have to decide at the end of the trial. Thus, in principle, evidence pertaining to the role of the accused may fall within the scope of evidence that the Trial Chamber considers necessary for the determination of the truth [. . .]. Consequently, the Trial Chamber may request victims to testify on the role of the accused, if it considers that such testimony is necessary for the determination of the truth.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 112. “[T]he possibility of the Trial Chamber requesting victims to submit evidence is contingent on (i) the Victims fulfilling the requirements of article 68(3) of the Statute, and (ii) the Trial Chamber deciding to exercise its authority under article 69(3) of the Statute. The submission of such evidence therefore falls within the regime provided for the Trial Chamber to exercise its authority to request the submission of ‘evidence that it considers necessary for the determination of the truth’ [. . .]. Because article 64(6)(d) of the Statute specifically refers to evidence in addition to that which has been

jurisprudence presented during the trial by the parties, it is clear that it is intended to give effect to the power of the Trial Chamber under the second sentence of article 69(3) of the Statute. In light of the above, the necessary implication is that there may be circumstances under which evidence called by the Trial Chamber may not be communicated to the accused before the commencement of the trial [. . .]. [W]hile it is correct that the Statute emphasises disclosure of evidence by the Prosecutor prior to the commencement of the trial, this does not apply to evidence submitted at the request of the Trial Chamber under article 69(3) of the Statute.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, paras. 44–45. “[T]he Prosecutor’s disclosure obligations to the accused are linked to the Prosecutor’s role in conducting the investigation, and stem from the Prosecutor’s obligation to investigate incriminating and exonerating circumstances equally under article 54(1)(a) of the Statute. In contrast [. . .] pursuant to article 68(3) of the Statute, the victims’ role in the proceedings is significantly more limited. The Appeals Chamber considers that imposing a general disclosure obligation on the victims to disclose evidence to the accused would disregard the limited role of the victims in presenting their views and concerns where their personal interests are affected.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 75. “Under article 54(3)(b) of the Statute, the Prosecutor may, with respect to his investigations, ‘[r]equest the presence of and question persons being investigated, victims and witnesses’. The Appeals Chamber therefore considers that it is reasonable that, in particular where the submissions in the victims’ applications for participation indicate that victims may possess potentially exculpatory information, the Prosecutor’s investigation should extend to discovering any such information in the victims’ possession. Such information would then be disclosed to the accused pursuant to article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 81. “[I]t is not necessary for the Trial Chamber to impose a general disclosure obligation on the Victims to ensure that it is not misled by items of evidence submitted at their request pursuant to article 69(3) of the Statute.”

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victim partici pation in t he proceedings Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 83. “[E]ven if the Trial Chamber decides that it is satisfied that the personal interests of the Victims have been demonstrated and that it will request the Victims to submit incriminating evidence, nothing precludes the Trial Chamber from then requesting that any exculpatory evidence in the possession of the Victims is also submitted, in order to ensure that the Trial Chamber does not receive the evidence in a distorted manner.” Prosecutor v. Katanga, Judgment on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2288 OA11, 16 July 2010, para. 85.

Partly Dissenting Opinion of Judges Pikis and Kirsch regarding the Right of Victims to Submit Evidence and Challenge Admissibility/Relevance of Evidence “Victims can neither adduce evidence on the guilt or innocence of the accused nor challenge the admissibility or relevance of evidence.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 5. Diss. Op. “In my view, the leading of evidence on guilt or innocence belongs exclusively to the role assigned to the parties – and, more particularly in the context of evidence likely to be sought to be introduced by victims, to the Prosecutor.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 5. Diss. Op. “The proof or disproof of the charges is a matter affecting the adversaries. The victims have no say in the matter. Their interest is that justice should be done, coinciding with the interest of the world at large that the criminal process should run its course according to law, according to the norms of a fair trial. Both the submission of evidence and its reception affect the parties to the adversity. It is not the victims’ concern, a matter directly related to the reception of evidence, to either prove or disprove the charges. The interests of justice are safeguarded by the Chamber, trusted to ensure that only relevant and admissible evidence, in the context earlier defined, can be received in proceedings before it. The presumption of innocence leaves no room for anyone other than the Prosecutor to assert the contrary and seek to prove it by the adduction of relevant evidence, admissible in the criminal proceedings before the Chamber.”

juri sprudence Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 19. Diss. Op. “In sum, in an adversarial hearing the two sides are cast in the position of adversaries, in connection with the determination of the only issue raised before the Chamber, the guilt or innocence of the accused. The adversary of the accused is the Prosecutor and none other. The defendant cannot have more than one accuser. It is not for the accused to prove his innocence. He is presumed to be innocent. The ultimate question is whether the Prosecution proved its case beyond reasonable doubt.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 14. Diss. Op. “Neither the Trial Chamber nor the Pre-Trial Chamber is concerned with the collection of evidence. The Trial Chamber, as provided in article 69(3) of the Statute, may request either party to submit all evidence that it considers necessary for the determination of the truth; such evidence, no doubt, is the evidence of which it is apprised by the record of the confirmation hearing before it. The Trial Chamber is vested with a like power in the case of a plea of guilty, as it emerges from the provisions of article 65(3) of the Statute.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Pikis in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432 OA9 OA10, 11 July 2008, para. 12. Diss. Op. “None of the above provisions relating to disclosure [articles 67(2), 64(3) (c), 61(3)(b) and rules 76(1), 77–80] refer to any disclosure obligations on the part of victims. Given the specificity of these provisions, had it been the intention of the drafters of the relevant provisions to permit victims to lead evidence relating to guilt or innocence, this would have been stated expressly, and the provisions relating to the disclosure of evidence would have provided for disclosure by victims in such circumstances.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 15. Diss. Op. “The specific provisions on disclosure set out above [articles 67(2), 64(3) (c), 61(3)(b) and rules 76(1), 77–80] are designed to ensure the fairness of the proceedings. There are specific obligations upon the Prosecutor to disclose evidence of assistance to the defence; and there are provisions that enable both parties appropriately to prepare for trial. The fact that no requirements in relation to disclosure are placed upon victims indicates that it was not envisaged that victims would disclose, and thereafter lead, evidence relating to guilt or innocence.”

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victim participation in t he proceed ings Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 16. Diss. Op. “It follows from the fact that it is the parties who disclose evidence relating to guilt or innocence that it is the parties who present such evidence at trial. The first sentence of article 69(3) is unambiguous in that regard. It defines it as ‘the parties’ who may submit evidence. The reference to the submission of evidence in the second sentence refers, in my view, to the ability of the Court to request the parties to submit all evidence that is necessary for the establishment of the truth.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 19. Diss. Op. “[I]t was not the intention of the drafters that victims should lead evidence on guilt or innocence. In addition, determining that it is the parties that lead evidence on guilt or innocence, and not the victims, is consistent with the overall desire to ensure that proceedings at the ICC are both fair and expeditious.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 23. Diss. Op. “First, this conclusion results in the accused being faced by one Prosecutor, in accordance with the scheme of the Statute, rather than, potentially, multiple accusers. Significant in this context are the provisions of article 66(2) of the Statute, making it clear that it is the Prosecutor who bears the onus of proving guilt at the trial, entailing the related responsibility to lead evidence as to guilt or innocence at trial. Second, the proceedings can take place in a streamlined fashion, ensuring that evidence on guilt and innocence emanates from the parties. The different roles played by the Prosecutor and the victims must be kept distinct if the proceedings are to run in an orderly fashion which best protects the interests of all parties and participants involved.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, paras. 24–25. Diss. Op. “[O]nce one accepts the principle that victims can lead evidence, applications by victims to take such a role could, understandably, be frequent and numerous. This invitation to victims to apply to lead evidence relating to guilt or innocence may slow down the proceedings considerably, leading to inefficiency and potential unfairness.”

jurisprudence Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 28. Diss. Op. “Once they have established that their personal interests are affected, what victims are entitled to present are their ‘views and concerns’. On an ordinary understanding of those words, they do not equate to an ability to lead evidence on guilt. It would, in my view, be perfectly legitimate for victims to present their views and concerns in relation to the evidence submitted by the parties where it affects their personal interests. However, there is a sizeable difference between presenting views and concerns in relation to issues that arise at the trial that affect the personal interests of victims and presenting a prosecution case by leading additional evidence – independent of that led by the Prosecutor – on guilt.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 30. Diss. Op. “Rule 91(3) regulates the limited manner in which victims may be permitted to put questions to a witness. Far from lending support to the idea that victims should be permitted independently to lead evidence on guilt, it emphasises, in my view, the more limited role that was assigned to the victims during the course of a trial when compared with that provided to the parties. Rule 91 falls within a subsection of the Rules relating specifically to the participation of victims in the proceedings. For the determination of the question at issue in the present appeal, I find it striking that there is no reference to victims leading evidence pertaining to guilt or innocence in rule 91 itself or within the section of the Rules in which it appears. On a matter of such fundamental importance, a provision to deal with this subject would have been expressly included, had it been the intention of the drafters for victims to lead such evidence.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 32. Diss. Op. “Whereas the Trial Chamber may rule on admissibility or relevance on its own motion, I note that the provision refers to applications relating to admissibility or relevance being made by a party. There is no reference to such applications being made by a participant, who, for the purposes of this appeal, would equate to a victim. Furthermore, I read the provisions of article 69(4) of the Statute to relate to how the Chamber would rule on the relevance or admissibility of any evidence, as opposed to who may make an application concerning relevance or admissibility.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 35. Diss. Op.

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victim participation in t he proceedings “Challenges to admissibility and relevance of evidence pertaining to guilt or innocence are for those who are entitled to lead such evidence – namely the parties.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 36. Diss. Op. “[T]he fact that specific provision is made, in rule 72 of the Rules, for a victim to be able to be heard in relation to the admissibility or relevance of evidence that a victim consented to an alleged crime of sexual violence and related matters, further indicates that where it is intended that a victim has a direct role to play in relation to the admissibility or relevance of evidence, specific provision is made to that effect. Rule 72 is, in my view, the separately regulated exception to the general rule, as set out above, that it is for the parties to challenge admissibility or relevance.” Prosecutor v. Lubanga, Partly Dissenting Opinion of Judge Kirsch in the Judgment on Victims’ Participation, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008, para. 37. Diss. Op.

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Victims’ Right to Challenge the Admissibility or Relevance of Evidence “In relation to the right afforded to victims to challenge the admissibility or relevance of evidence, the Trial Chamber relied on its general powers under article 69(4) to declare any evidence admissible or relevant. The provision is silent as to who may challenge such evidence. Under article 64(9) of the Statute, the Trial Chamber has the power to rule on the admissibility or relevance of evidence on its own motion. These provisions must be seen in light of the provisions on victims’ participation, in particular article 68(3) of the Statute and rules 89 and 91 of the Rules. In light of these provisions, nothing in articles 69(4) and 64(9) excludes the possibility of a Trial Chamber ruling on the admissibility or relevance of evidence after having received submissions by the victims on said evidence. The approach of the Trial Chamber in interpreting its powers, once again does not result in an unfettered right for victims but is subject to the application of article 68(3), which is the founding provision governing victim participation in the proceedings.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 101. “In addition the Trial Chamber finds support for this approach in the provision under rule 91(3) of the Rules. Under this rule the Trial Chamber may authorise, upon request, the legal representatives of victims to question witnesses or to produce documents in the restricted manner ordered. The Appeals Chamber considers that it cannot be ruled out that such

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questions or documents may pertain to the guilt or innocence of the accused and may go towards challenging the admissibility or relevance of evidence insofar as it may affect their interests earlier identified and subject to the confines of their right to participate.” Prosecutor v. Lubanga, Judgment on Victims’ Participation, ICC-01/0401/06-1432 OA9 OA10, 11 July 2008, para. 102.

IV Victim Participation in Appeals 1 Automatic Victim Participation in Interlocutory Appeals under Article 82(1)(b) and (d)58 “[T]he Appeals Chamber determines that, for appeals arising under article 82(1)(b) and (d) of the Statute, victims who have participated in the proceedings giving rise to the particular appeal need not seek the prior authorization of the Appeals Chamber to file a response to the document in support of the appeal.” Prosecutor v. Gbagbo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 19. “[I]n the event that the Appeals Chamber considers that the personal interests of victims are not affected by the issues arising in a particular appeal or that the participation of victims would be inappropriate, it could issue an order to that effect. This is expressly acknowledged by regulation 86(8) of the Regulations of the Court, whereby a prior decision of a Chamber concerning victim participation is ‘subject to the powers of the relevant Chamber in accordance with rule 91(1)’. In addition, any participation of victims that would exceed the filing of a response to the document in support of the appeal pursuant to regulations 64(4) and (5) and 65(5) of the Regulations of the Court, would require prior authorization of the Appeals Chamber.” Prosecutor v. Gbagbo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 18. “The Appeals Chamber notes that regulation 24(2) of the Regulations of the Court provides for victims or their legal representatives to file 58

The jurisprudence on this matter has evolved from a series of dissenting opinions from Judge Song and others. See, for instance, Prosecutor v. Lubanga, Separate Opinion of Judge Song and Judge Van den Wyngaert in the Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, p. 42. Sep. Op; Separate Opinion of Judge Song in the Decision on the Participation of Victims in the Appeal, ICC-02/0503/09-470-Anx OA4, 10 May 2013, para. 1. Sep. Op.

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victim participation in t he proceedings a response to any document when they are permitted to participate. In this respect, regulation 24(4) of the Regulations of the Court provides that ‘[a] response referred to in sub-regulation 1–3 may not be filed to any document which is itself a response or reply’. Consequently, the latter provision precludes the possibility of an automatic response by the parties to the victims’ response, except with the leave of the Appeals Chamber, pursuant to regulation 24(5) of the Regulations of the Court.” Prosecutor v. Gbabgo & Blé Goudé, Reasons for the Authorisation of Victim Participation in Interlocutory Appeals, ICC-02/11-01/15-172 OA6, 31 July 2015, para. 20. “In line with the Appeals Chamber’s recent departure from its previous jurisprudence on victim participation in appeals under article 82(1)(b) and (d) of the Statute, and in the interests of efficiency, the Appeals Chamber deems it appropriate for an Appellant who wishes to reply to a participant’s response to a document in support of the appeal, to first seek leave of the Appeals Chamber under regulation 24(5) of the Regulations of the Court. Given the time limit set out in regulation 34 (c) of the Regulations of the Court for the filing of a reply to a response, the Appeals Chamber finds this procedure to be more efficient than that set out in regulation 28 of the Regulations of the Court.” Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal against the Ninth Review Decision on his Detention, ICC-02/11-01/15-208 OA6, 8 September 2015, para. 25.

2 Victim Participation in Other Interlocutory Appeals 2.1 Victims must Apply to Participate in Interlocutory Appeals “[I]n order for victims to participate in an appeal under article 82(1)(b) of the Statute, an application seeking leave to participate in the appeal must be filed.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 38, see also paras. 40, 43; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/ 06-925 OA8, 13 June 2007, para. 23. See also Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 1. Sep. Op; Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 13. “The Appeals Chamber finds these procedures adopted in respect of interlocutory appeals pursuant to article 82(1)(b) of the Statute to be

juri sprudence equally applicable to the instant interlocutory appeals arising under article 82(1)(d) of the Statute.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 37. See also Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 13; Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, para. 34. “[I]n the Appeals Chamber’s view, there is no automatic right of participation in interlocutory appeals and victims are required to make an application.” Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 9; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/04-01/06-2555 OA17, 17 August 2010, para. 16. “[T]he requirement under article 68(3) that victim participation shall be permitted at ‘stages of the proceedings determined to be appropriate by the Court’ mandates a specific determination by the Appeals Chamber that the participation of victims is appropriate in the particular interlocutory appeal under consideration.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 40; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 36; Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08566 OA2, 20 October 2009, para. 14. See also Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/04-01/06-2555 OA17, 17 August 2010, para. 16. “An interlocutory appeal [. . .], in which a particular issue requires specific consideration, is a separate and distinct stage of the proceedings. The Appeals Chamber, pursuant to article 68(3), is required to determine whether the participation of victims in relation to that particular appeal is appropriate. It cannot automatically be bound by the previous determination of the Pre-Trial Chamber that it was appropriate for the victims to participate before the court of first instance [. . .]. The subject matter and nature of any interlocutory appeal would, at that stage, have been unknown. Hence it would be impossible for the Pre-Trial Chamber, in effect, to deem it to be appropriate for victims to participate in that stage of the proceedings or to determine that their interests would be affected by that particular interlocutory appeal.”

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victim parti cipation in t he proceedings Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43. See also Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 14. “The Appeals Chamber will [. . .] examine each application for participation [. . .] in light of its earlier interpretation of the framework provided by article 68(3) of the Statute, for granting participation, namely, (i) whether the individuals seeking participation are victims in the case, (ii) whether they have personal interests which are affected by the issues on appeal, (iii) whether their participation is appropriate, and lastly (iv) that the manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 36; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 90; Prosecutor v. Lubanga, Decision on the Participation of Victims in the Appeal, ICC-01/04-01/06-1453 OA13, 6 August 2008, para. 7; Situation in Uganda, Decision on Participation of Victims in Appeal, ICC-02/04-164 OA 27 October 2008, para. 7; Prosecutor v. Kony et al., Decision on Participation of Victims in Appeal, ICC-02/04-01/05-324 OA2, 27 October 2008, para. 8; Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 15; Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, para. 34; Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 9; Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 7; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga, ICC-01/04-01/06-2555 OA17, 17 August 2010, para. 15; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2556 OA18, 18 August 2010, para. 7; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 7; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 21; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC01/05-01/08-1848-Red OA9, 19 October 2011, para. 8; Prosecutor v. Bemba, Decision on Victims’ Participation, ICC-01/05-01/08-2098 OA10, 1 February 2012, para. 11; Prosecutor v. Mbarushimana, Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision, ICC-01/04-01/10-509 OA4, 2 April 2012, para. 6;

jurisprudence Prosecutor v. Gbagbo, Decision on Victim Participation in the Interim Release Appeal, ICC-02/11-01/11-491 OA4, 27 August 2013, para. 9; Prosecutor v. Gbagbo, Decision on Victim Participation in the Prosecutor’s Appeal, ICC-02/11-01/11-492 OA5, 29 August 2013, para. 8; Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3346 OA13, 17 January 2013, para. 6; Prosecutor v. Banda & Jerbo, Decision on the Participation of Victims, ICC-02/05-03/09-470 OA4, 6 May 2013, para. 11. “[I]n the absence of any express mention of victims within regulation 64(4) or (5), the Appeals Chamber therefore does not interpret the reference to a ‘participant’ or to the filing of ‘[t]he response’ within those provisions to mean that victims have an automatic right to participate in an interlocutory appeal under article 82(1)(b) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 32; Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08566 OA2, 20 October 2009, para. 14. “[U]ntil such time as the matter is regulated in the constituent documents of the Court, applications by victims for participation in appeals must be filed as soon as possible and in any event before the date of filing of the response to the document in support of the appeal.” Prosecutor v. Lubanga, Decision on Participation of Victims in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para 15; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 39. “Once an application to participate has been received, the Prosecutor and the Defence will thereafter be entitled to reply to the application within a time limit to be set by the Appeals Chamber, in line with the provisions of rule 89(1) of the Rules of Procedure and Evidence. Thereafter, the Appeals Chamber will rule upon whether, and in what manner, the victims may participate in the appeal, necessarily taking into account the provisions of article 68(3).” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 47–48; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04503 OA4 OA5 OA6, 30 June 2008, para. 33. “[A]uthorisation for victims to provide observations on an interlocutory appeal arises only when the Appeals Chamber decides that the victims

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victim participation in t he proceedings may participate in the appellate proceedings. Thus, [a] response [. . .] filed without the prior authorisation of the Appeal Chamber, necessitate[es] that it be disregarded since a decision permitting victim participation in the appeal had not yet been rendered.” Prosecutor v. Bemba, Decision on Victim Participation in Conditional Release Appeal, ICC-01/05-01/08-566 OA2, 20 October 2009, para. 20. “The precise application of the principles set out below [regarding victim participation in interlocutory appeals] is likely to be guided by practice and experience.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 37. “In my view, victims who were permitted to participate in proceedings giving rise to an appeal under that provision [article 82(1)(d)] are participants within the meaning of regulations 64(4) and 65(5) of the Regulations of the Court. As participants, they have the right to file a response to the document in support of the appeal. There is no need for them to apply for participation or for the Appeals Chamber to rule on such applications. Conversely, victims who did not participate in the underlying proceedings have no right to participate in the ensuing appeal.” Prosecutor v. Banda & Jerbo, Separate Opinion of Judge Song in the Decision on the Participation of Victims, ICC-02/05-03/09-470-Anx, 10 May 2013, para. 1. Sep. Op; Prosecutor v. Gbagbo, Separate Opinion of Judge Song in the Decision on Victim Participation in the Interim Release Appeal, ICC-02/11-01/11-491-Anx OA4, 27 August 2013, Sep. Op; Separate Opinion of Judge Song in the Decision on Victim Participation in the Prosecutor’s Appeal, ICC-02/11-01/11-492-Anx, 29 August 2013, Sep. Op.

2.2

The Time Limit to File Applications “The Victims’ Application has been filed in good time. The Appeals Chamber stipulated in previous decisions that any such application should be filed at the latest on the day the response to the document in support of the appeal is due.” Prosecutor v. Mbarushimana, Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision, ICC-01/0401/10-509 OA4, 2 April 2012, para. 7, citing Prosecutor v. Bemba, Decision on Victims’ Participation, ICC-01/05-01/08-2098 OA10, 1 February 2012, para. 10. See also Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/ 06-335 OA9 OA10, 16 May 2008, para. 15.

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2.3 Admissibility and Jurisdiction Appeals under Article 82(1)(a) “The legal instruments of the Court do not set out any specific procedure regarding the participation of victims in appeals brought under articles 19(6) and 82(1)(a) of the Statute. Therefore the Appeals Chamber has adopted a scheme for such participation in the first jurisdictional and admissibility appeals that the Chamber has heard. Under this scheme, only those victims who have made observations on the question of jurisdiction or admissibility in the proceedings before the Pre-Trial or Trial Chamber are invited to make observations before the Appeals Chamber, within a time limit set under rule 59(3) of the Rules of Procedure and Evidence. This may include individuals whose victim status has not yet been determined (so-called ‘victim applicants’), as long as they have made observations before the first-instance Chamber.” Prosecutor v. Kosgey & Sang, Decision on the OPCV Request to Participate in the Defence Appeal on Jurisdiction, ICC-01/09-01/11-390 OA4, 20 February 2012, para. 13; Prosecutor v. Kenyatta, Muthaura & Ali, Decision on the OPCV Request to Participate in the Defence Appeal on Jurisdiction, ICC-01/09-02/11-400 OA4, 20 February 2012, para. 13; Prosecutor v. Gbagbo, Directions on the Submissions of Observations, ICC-02/11-01/11-236 OA2, 31 August 2012, para. 3.

2.4 Only Victims Who Have Already Been Recognised as Such in the Relevant Case or Situation May Participate in Interlocutory Appeals “[A]pplicants [. . .], whose status as victims has not been determined by the Single Judge of Pre-Trial Chamber I nor established before the Appeals Chamber. Sequentially, they do not meet the first criterion under article 68(3) of the Statute. In the circumstances, their applications for participation in these appeals are denied pursuant to rule 89(2) of the Rules of Procedure and Evidence and the Appeals Chamber will not examine whether they satisfy the remaining three criteria.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 93(b). “The remaining applicants [. . .] do not hold the status of victims in the case. They are currently applicants awaiting the Trial Chamber’s determination of their status. Therefore they do not meet the prerequisite for participation in the appeals. In the circumstances, their applications for participation in these appeals are denied pursuant to rule 89(2) of the Rules of Procedure and Evidence and the Appeals Chamber will not examine whether they satisfy the remaining three criteria.” Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 39.

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victim participation in t he proceedings “The Appeals Chamber will not embark on determining the status of these victims as ordinarily for interlocutory appeals it would not itself make firsthand determinations with respect to the status of victims. With regard to the rejected applications, other factors inhibit the Appeals Chamber from taking the initiative to make such determinations. These include: (i) the fact that their applications for victim status and authorisation to participate in the trial proceedings are sub judice before the Trial Chamber, and (ii) no applications have been transmitted to the Appeals Chamber by the Registrar in terms of rule 89(1) of the Rules of Procedure and Evidence nor has the Appeals Chamber been provided with any of the information required under Regulation 86 of the Regulations of the Court.” Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 40. “[I]n the present case, the Registrar decided to transmit the applications of the eight applicants directly to the Appeals Chamber. However, the principle developed in the Decision of 16 May 2008 applies to the present case as well [. . .]. [T]he intervention of the Appeals Chamber during the pre-trial and trial phases is limited; the majority of the proceedings – and therefore the main opportunities for victims’ participation – takes place before the Pre-Trial or Trial Chambers. Furthermore, the Pre-Trial or Trial Chambers will, depending on the stage of the proceedings, often have an in-depth familiarity with the facts underlying the case and therefore are in a better position to assess whether an applicant is a victim. It follows that during the pre-trial and trial phases of the proceedings the Pre-Trial or Trial Chambers should ordinarily make the determination of victim status, and not the Appeals Chamber.” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 10.

2.5

Victims Who Have Been Recognised as Such in the Relevant Case or Situation Need Not Demonstrate that Again “In circumstances in which the particular victims have already been granted leave to participating in the proceedings before the Pre-Trial Chamber [. . .] [t]he application need not specifically address whether or not the person qualifies as ‘a victim’ within the meaning of rule 85 of the Rules of Procedure and Evidence in the absence of any appeal relating to that matter. The issue for the Appeals Chamber is more limited. Given that the victims have been granted victim status by the Pre-Trial Chamber, the question to be addressed here is whether their personal interests are affected by the interlocutory appeal and whether it is appropriate for them to participate at that stage of the proceedings.”

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Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, paras. 44–45. See also Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 92.

2.6 The Legal Representatives Must Indicate Which Victims They are Representing and the Decisions Granting the Victims Such Status “[T]he legal representatives of victims [. . .] need to specify, in their applications to participate in appeals brought under article 82(1)(b), (c) and (d) of the Statute, the victims that they represent, as well as the decisions that granted the victims such status.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the release of Thomas Lubanga, ICC-01/04-01/06-2555 OA17, 17 August 2010, para. 13. See also Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on the Modalities of Victim Participation at Trial, ICC-01/04-01/07-2124 OA11, 24 May 2010, para. 6;59 Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1848-Red OA9, 19 October 2011, para. 9. Where “the legal representatives [of victims] did not indicate in the Observations [. . .] the victims they were representing [. . .] [i]t is still unclear to the Appeals Chamber which victims or applicants the three legal representatives are representing in the present proceedings [. . .] the Appeals Chamber considers it appropriate to reject the Observations of the Three Legal Representatives without considering the substance of their submissions.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 24. “The Appeals Chamber notes that the [application to participate in the appeal as Legal Representative of Victims] does not list the victims who are represented by Ms Douzima-Lawson. Nor does the Second Application explain in any detail why the appeal affects the personal interests of the victims represented by her. In these circumstances, the Second Application must be rejected.” Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 14. “In the instant case, the application does not meet the first criterion for two reasons: (i) it does not make clear which victims are applying to 59

In this case the victims were allowed to participate.

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vi ctim participation in t he proceedings participate in the appeal; and (ii) it does not indicate the decisions in which those victims were granted victim status.” Prosecutor v. Bemba, Decision on Victims’ Participation, ICC-01/05-01/ 08-2098 OA10, 1 February 2012, para. 12.

3

Modalities of Participation in Interlocutory Appeals

“It is for the Appeals Chamber to ensure that their participation occurs in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 35; Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 44; Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 99. “The ‘right of the accused’ at stake in the underlying pre-trial and appeal proceedings is Mr Mbarushimana’s fundamental right to liberty.” Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, para. 33. “Observations to be received by the victims were limited and had to be specifically relevant to the issues arising in the appeal rather than more generally.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 55. “[I]n ordering the manner of participation of victims to comply with the rights of future suspects or a fair and impartial trial, the Appeals Chamber will limit the victims to presenting their views and concerns respecting their personal interests solely to the issues raised on appeal. Observations to be received by the victims must be specifically relevant to the issues arising in the appeal and to the extent that their personal interests are affected by the proceedings.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 101; Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/062205 OA15 OA16, 8 December 2009, para. 34. “Should the Appeals Chamber permit the victims to participate in the appeal, the Prosecutor and the Defence shall be allowed to reply to any filing of the victims, in accordance with the provisions of rule 91(2) of the Rules of Procedure and of Evidence.”

jurisprudence Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 49; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/04-01/062555 OA17, 17 August 2010, para. 18; Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08857 OA4, 18 August 2010, para. 11; Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on Modalities of Victim Participation at Trial, ICC-01/04-01/07-2124 OA11, 24 May 2010, para. 8; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2556 OA18, 18 August 2010, para. 9. “[I]n ordering the manner of participation of victims to comply with the rights of the Defence to a fair and impartial trial, the Appeals Chamber will limit the victims to presenting their views and concerns respecting their personal interests solely to the issues raised on appeal. Observations to be received by the victims must be specifically relevant to the issues arising in the appeal and to the extent that their personal interests are affected by the proceedings.” Prosecutor v. Lubanga, Decision on Victim Participation in Appeals against the Decision on Victim Participation, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008, para. 50. See also Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-1/06-2205 OA15 OA16, 8 December 2009, para. 36. “[T]he Second Request for Participation contains not only an application for participation in the present appeal, but also the substantive submissions of the Victims [. . .]. [B]efore victims may make submissions to the Appeals Chamber on the substance of an appeal they must be granted the right to do so. Nevertheless, in the circumstances of this case and in the interests of expediting the present appeal, the Appeals Chamber has decided to allow the Victims’ substantive submissions.” Prosecutor v. Al Bashir, Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-70 OA, 28 January 2010, para. 12. “Where it is demonstrated or made to appear that the victims’ personal interests are affected by the proceedings, the Court is duty bound (‘shall’) to ‘permit their views and concerns to be presented and considered’. ‘[C]onsidered’ in this context means the taking into consideration of the views and concerns of victims in the course of the judicial process. An apt example is the elicitation of evidence revealing the injury inflicted upon victims by the crime, the subject-matter of the proceedings.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the

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victim participation in t he proceedings Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 14. Sep. Op. “Participation is confined to the expression of the victims’ ‘views and concerns’. It is a highly qualified participation limited to the voicing of their views and concerns. Victims are not made parties to the proceedings nor can they proffer or advance anything other than their ‘views and concerns’. The term ‘views’ in the context of article 68(3) of the Statute signifies ‘opinion’, in fact, an opinion, stance or position on a subject. In the Russian and Spanish version of article 68(3) of the Statute the word ‘opinion’ is used. ‘[C]oncerns’ signify matters of interest to a person; matters that preoccupy him/her. ‘[P]reoccupations’ is precisely the word used in the French text of the Statute.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 15. Sep. Op. “Once it has been established that the personal interests of the victims are affected it is the Chamber that has to determine the appropriate stage at which the victims may present their views and concerns. In appeals proceedings under article 82(1)(b) of the Statute, the appropriate stage for participating victims to present their views generally will be after the submission of the document in support of the appeal, once the arguments of the Appellant have been fully expressed. Only then will the victims be able to react properly and to submit their views and concerns in relation to the appeal.” Prosecutor v. Lubanga, Separate Opinion of Judge Song in Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 21. Sep. Op. “As to the manner of participation, the Appeals Chamber considers that the participation of the Victims in the present appeal will be limited to the written presentation of their views and concerns with respect to their personal interests relating to the issues raised in this appeal, and, therefore, is consistent with the rights of the accused and a fair and impartial trial.” Prosecutor v. Bemba, Decision on Victim Participation in Renewed Detention Appeal, ICC-01/05-01/08-857 OA4, 18 August 2010, para. 11 (emphasis added); Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/04-01/06-2555 OA17, 17 August 2010, para. 18; Prosecutor v. Katanga, Decision on Victim Participation in the Appeal on

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Modalities of Victim Participation at Trial, ICC-01/04-01/07-2124 OA11, 24 May 2010, para. 8; Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2556 OA18, 18 August 2010, para. 9; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1597 OA7, 14 July 2011, para. 12; Prosecutor v. Bemba, Decision on Victim Participation in the Provisional Release Appeal, ICC-01/05-01/08-1848-Red OA9, 19 October 2011, para. 13; Prosecutor v. Mbarushimana, Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision, ICC-01/04-01/10-509 OA4, 2 April 2012, para. 12.

4 Participation of Victims in Final Appeals 4.1 The Grounds for Victim Participation in Appellate Proceedings must Mirror the Personal Interests of the Victim as Determined during Trial “The Appeals Chamber notes that Mr Mathieu Ngudjolo Chui was acquitted of all charges brought against him and that the appeal proceedings against the Acquittal Decision affect victims’ personal interests in the same way as during the trial. Therefore, the Appeals Chamber finds that the victims who participated in the trial and whose victim status was not revoked, may participate in the present appeal, which concerns the merits of the case and is brought under article 81(1)(a) of the Statute.” Prosecutor v. Ngudjolo, Decision on Participation of Victims in Judgment Appeal, ICC-01/04-02/12-30 A, 6 March 2013, para. 3. “The Appeals Chamber notes that Mr Lubanga was convicted on all charges brought against him, and that his appeal against the Conviction Decision is directed against the entirety of the decision. Therefore, the Appeals Chamber finds that the 120 victims who participated in the trial proceedings and whose right to participate in the proceedings was not withdrawn may participate in the appeal proceedings against the Conviction Decision, as their personal interests are affected by the appeal in the same way as during trial.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeals against Conviction and Sentencing, ICC-01/04-01/06-2951 A4 A5 A6, 13 December 2012, para. 3.

4.2 The Participation of an Heir in Appellate Proceedings in Light of the Death of a Victim “Insofar as the requirements of article 68(3) mandate that victim participation be based on their personal interests that are affected and since the

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v i c t i m p a r t i c i p a t i o n in t h e p r o c e e d i n g s views and concerns of deceased victims continue to be considered in the appellate proceedings as part of the case record under review, the Appeals Chamber considers that resumption of a deceased victim’s participation by an heir/successor is not deemed appropriate.”60 Prosecutor v. Ngudjolo, Decision on the Participation of Anonymous Victims in the Appeal, ICC-01/04-02/12-140 A, 23 September 2013, para. 26.

V Victim Participation in Reparations Proceedings 1 Victims’ Right to Participate in Reparations Proceedings “As to the appeals brought by the legal representatives of victims and by the OPCV, the Appeals Chamber notes at the outset that, under article 82(4) of the Statute, victims are entitled to bring an appeal. They are therefore parties to the proceedings and not, as is the case at other stages of the proceedings, participants who, under article 68(3) of the Statute, may present their views and concerns where their personal interests are affected. Furthermore, the Appeals Chamber notes that the right to appeal lies with the victims, not with the legal representatives of victims. In this regard, article 82(4) of the Statute provides that victims may only appeal with the assistance of a legal representative, as is the case in these appeals.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 67. “[The reparation proceeding before the Trial Chamber] includes individuals who participated in the trial as victims and requested reparations under rule 94 of the Rules of Procedure and Evidence (including some whose right to participate was later withdrawn by the Trial Chamber), as well as individuals whose application for participation in the trial had been rejected, but who nevertheless requested reparations. It also includes individuals who participated in the trial, but did not apply for reparations. Furthermore, the OPCV states that, in addition to individuals who have applied for reparations, it also brings its appeal on behalf of ‘victims who have not submitted applications for reparations but who might be affected by collective reparations’.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 68.

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See, fn. 48: “[t]his is without prejudice to any determination on the resumption of participation on behalf of deceased victims in relation to reparation proceedings”.

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2 Victim Status for the Purpose of Reparations Proceedings “The Appeals Chamber considers that the term ‘victim’ is not defined as those victims who were granted the right to participate in the proceedings in relation to the accused person’s guilt or innocence or the sentence. The Appeals Chamber finds that this term may also include individuals who did not participate in those proceedings, but who claim to have suffered harm as a result of the crimes in relation to which the accused was convicted and who request reparations. This is because a request for reparations pursuant to rule 94 of the Rules of Procedure and Evidence is not dependent upon either the filing of an application for participation pursuant to rule 89 of the Rules of Procedure and Evidence or being granted the right to participate in the proceedings in relation to the accused person’s guilt or innocence or the sentence.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 69.

3 Right of Victims to Appeal the Relevant Decision due to Participation in the Reparations Proceedings “[I]t follows that those individuals who requested reparations and who now seek to appeal the Impugned Decision are entitled to do so, because the Impugned Decision contained a ruling that affected them. The same ruling affected those claimants for reparations whose request for participation in the proceedings in relation to the accused person’s guilt or innocence or the sentence was rejected or whose right to participate was withdrawn in the Conviction Decision. This is because the reparations proceedings are a distinct stage of the proceedings and it is conceivable that different evidentiary standards and procedural rules apply to the question of who is a victim for the purposes of those proceedings.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 70. “Further, in the reparations proceedings the Trial Chamber invited submissions from victims who did not request reparations, even though they participated in the proceedings in relation to Mr Lubanga’s guilt or innocence. Thus, the Trial Chamber accorded to those victims a role in the reparations proceedings, which the victims accepted by making submissions. This also demonstrates their interest in the reparations proceedings. For these reasons, the Appeals Chamber finds that it is possible that they are affected by the Impugned Decision, in particular because the Impugned Decision was the result of reparations proceedings in which they participated and made submissions.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 71.

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victim partici pation in t he proceedings

4 Unidentified Victims Who Have Not Applied for Reparations may be Denied the Right to Appeal “[T]he OPCV made submissions in relation to ‘the interests of [unidentified] victims who have not submitted applications but who may benefit from an award for collective reparations, pursuant to rules 97 and 98 of the Rules’ [. . .]. The Appeals Chamber determines that, in the circumstances of the present case, the OPCV is entitled to bring an appeal with regard to those individuals in respect of whom it was appointed as a legal representative. However, the Appeals Chamber considers that the unidentified individuals referred to above cannot have a right of appeal because at this stage of the proceedings it is impossible to discern who would belong to this group as no concrete criteria exist. Accordingly, to the extent that the OPCV has appealed the Impugned Decision on behalf of those unidentified individuals, the appeal must be rejected as inadmissible. This is without prejudice to the OPCV potentially being invited to make submissions on behalf of such individuals at a later stage in the proceedings [. . .].” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2014, para. 72.

N Substantive Law

Commentary

g e o r g e m u g w a ny a Since the Court’s inception, to date most of the litigation before the Appeals Chamber on the various aspects of the Court’s statutory framework has addressed procedural and evidentiary matters. Only a few have been concerned with substantive law. The Appeals Chamber has thus not yet had the opportunity to elucidate the elements of most of the crimes and modes of liability in the Statute. So far, their elements have mostly been elaborated by Pre-Trial and Trial Chambers. Therefore, with the limited Appeals Chamber’s verdicts, it may be argued that the Court’s jurisprudence on the elements of crimes and modes of liability is yet to crystallise. This chapter focuses on the Appeals Chamber’s jurisprudence on the crimes and modes of liability where the Chamber has had an opportunity to pronounce itself on those issues. It also briefly comments on the seminal ruling that war crimes under the Statute include crimes perpetrated against the members of the same armed force or group – a ruling that furthered the protection of child soldiers and other vulnerable persons and clarified an uncertain area of international humanitarian law.

I Crimes a Conscription, Enlistment and Using Children Under the Age of Fifteen Years in Hostilities Pursuant to article 8(2)(b)(xxvi) and 8(2)(e)(vii), the Court is mandated to prosecute the war crime of “conscripting, or enlisting children under the age of fifteen years into armed forces or groups or using them to participate in hostilities”, in the context of both international armed conflicts and those not of international character. 459

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i Three Separate Crimes? One of the issues arising from the above provisions is whether there are three separate crimes or three different manners of participating in one crime. This issue still requires further elucidation by the Appeals Chamber since only a Dissenting Opinion from a single judge of this Chamber has thus far addressed it.1 In Lubanga, the Appeals Chamber, by majority, declined to determine this issue as no party had raised it.2 But in his Partly Dissenting Opinion, Judge Song took the position that conscription, enlistment and the use of children under fifteen years of age in hostilities are not separate crimes, but different modalities by which one and the same offence can be committed.3 Therefore, upon conviction covering all three, the Trial Chamber should have entered one sentence, instead of three separate sentences.4 In Judge Song’s view, the Elements of Crimes support this interpretation. According to the explanatory note on the title page of the Elements of Crimes, where “paragraphs of those articles of the Rome Statute list multiple crimes”,5 “the elements of crimes appear in separate paragraphs which correspond to each of those crimes to facilitate identification of the respective elements”.6 Whereas this layout is followed with respect to the multiple crimes enshrined in article 8(2)(b)(xxii) and 8(2) (e)(v), “[t]he Elements of Crimes do not separate the three forms of conduct under article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Statute [. . .] E contrario, it can be concluded that the drafters of the Elements of Crimes did not consider them to be separate offences [. . .]”.7 ii Age and Gender The crime under article 8(2)(b)(xxvi) and 8(2)(e) (vii) does not require that the exact age of the victim be established. Rather, the Court’s legal framework requires only that the victim is under the age of fifteen years. It is thus sufficient that it is proven that the victim 1

2

3

4 6

7

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red-Anx1, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, paras. 4–5. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red A5, 1 December 2014, para. 38. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red-Anx1, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, paras. 4–5. Ibid., para. 5. 5 Elements of Crimes, explanatory note. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red-Anx1, 1 December 2014, Partly Dissenting Opinion of Judge Sang-Hyun Song, para. 5 (emphasis added). Ibid.

commentary

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is within a certain age range, namely, under the age of fifteen years.8 It follows that an accused’s criminal culpability for these crimes can be found to exist, notwithstanding that the identity and exact date of birth of the victim are unknown – because these “are questions of fact and must be decided on a case-by-case basis taking into account the specific facts and circumstances of the case and individual at issue”.9 Therefore, a Chamber commits no error in basing its determination of the age of the victims on the victim’s appearance on video excerpts, even in the absence of corroboration, as a matter of law.10 However, in light of the limitations of determining age on the basis of physical appearance, a Trial Chamber needs to act with the requisite caution.11 In Lubanga, the Appeals Chamber (by majority) found that the Trial Chamber had exercised the requisite caution – for instance, it relied on video appearance only where, in its assessment, the child(ren) were clearly under the age of fifteen years, or where the children were “significantly” under the age of fifteen years.12 The gender of the child is not an element of these crimes. It follows that any factual error by the Chamber as to a child’s gender is harmless, because what matters for these crimes is the child’s age.13 iii Conscription The crime of conscription requires proof of compulsion, but this is not restricted to the use of physical force prompting a child under the age of fifteen years to join the armed forces against his or her will. According to the Appeals Chamber, the element of compulsion underlying the crime of conscription is to be broadly construed, and can be established from a diverse set of circumstances demonstrating that a child under the age of fifteen years joined the armed force or armed group due to a legal obligation, brute force, threats of force or psychological pressure amounting to coercion inter 8

9 12

13

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 198. Ibid. 10 Ibid., paras. 218, 222. 11 Ibid., para. 222. Ibid., paras. 228, 229. In her dissent, Judge Anita Ušacka stated that the Appeals Chamber should have carefully reviewed the challenged video excerpts to assess whether they spoke for themselves as the “manifestly underage” test requires. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Anx2, 1 December 2014, para. 51. After reviewing the video excerpts, Judge Anita Ušacka was of the view that they did not meet this standard due to “several problematic aspects” in them, such as their failure to depict the individuals clearly. Ibid., para. 67. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 225.

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alia.14 The Appeals Chamber thus dismissed Lubanga’s contention that the crime could not be established based on “recruitment and mobilisation campaigns”, which in his view could not be considered acts of conscription because they are “aimed at persuading the population to join the armed forces voluntarily” and cannot be equated to compulsion.15 The Appeals Chamber upheld the Prosecutor’s submissions, which in opposing a narrow interpretation, argued that the mobilisation campaigns in the present case “included both compulsory conscription through the use of physical force (such as abductions), as well as by psychological pressure and fear or threats of harm exerted by elders and wise men, the cadres and the army”.16 In the Appeals Chamber’s view, “the determination as to whether the element of compulsion has been established should be carried out on a case-by-case basis, taking into account whether the force, threat of force or psychological pressure applied was of such a degree and so pervasive that individuals can be said to have been forced to join the armed force or group”.17 iv The Crime of Using Children in Hostilities Based on the plain terms of the Statute and the Elements of the Crimes, to be guilty of the crime it must be proven that the perpetrator used one or more persons under the age of fifteen years “to participate actively in hostilities”.18 The Court’s statutory framework does not explicitly set out the range of activities that may constitute “use to participate actively in hostilities” under article 8(2)(b)(xxvi) and 8(2)(e)(vii).19 The Appeals Chamber has elucidated this element. It generally rejected a restrictive reading that is incompatible with the purpose of the provision, namely, to protect children, but at the same time it has identified some restrictions. According to the Appeals Chamber, in order to determine whether the crime of using children to participate actively in hostilities is established, “it is necessary to analyse the link between the activity for which the child is used and the combat in which the armed force or group of the 14 15 16

17 18 19

Ibid., paras. 4, 278. Ibid., para. 273, referring to Lubanga’s Document in Support of the Appeal, para. 246. Ibid., para. 273, referring to the Prosecutor’s Response to the Document in Support of the Appeal, para. 178. Ibid., para. 273, referring to Lubanga’s Document in Support of the Appeal, para. 282. Article 8(2)(b)(xxvi) and 8(2)(e)(vii). Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 322.

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perpetrator is engaged”.20 The range of activities are not limited to direct participation in combat, but also active participation in military activities, such as those identified in the ICRC Commentary on the Additional Protocols and in the Preparatory Committee’s Draft (Rome) Statute.21 Given the complex and unforeseeable scenarios presented by the rapidly changing face of warfare, the Appeals Chamber considered that it was not appropriate to give further guidance on the parameters of the notion “active participation in hostilities” in the abstract; rather, a determination as to whether a particular activity falls within the scope of the crime must be made on a case-by-case basis.22 Nevertheless, the Appeals Chamber found that in making the above determinations, it would be guided by the lists of activities identified in the ICRC Commentary on the Additional Protocols and in the Preparatory Committee’s Draft (Rome) Statute. In a nutshell, besides direct participation, these lists identify, among others, the following indirect acts of participation: the gathering and transmission of military information; transportation of arms and munitions; provision of supplies;23 scouting, spying, sabotage; the use of children as decoys, couriers or at military checkpoints; and the use of children as bearers to take supplies to the front line or activities at the front line itself.24 Furthermore, specifically with regard to activities underlying Lubanga’s convictions, the Appeals Chamber concluded that, besides their use in actual combat, the use of children under the age of fifteen years as military guards and as bodyguards by military chiefs and senior UPC/FPLC officials, including Lubanga himself, in an active conflict zone constituted using children under the age of fifteen years to participate actively in hostilities under article 8(2)(e)(vii).25 But “the formation of a unit within an armed group, cannot, in and of itself, constitute [the] use of children under the age of fifteen years to participate 20 21 23

24

25

Ibid., para. 273, referring to Lubanga’s Document in Support of the Appeal, para. 335. Ibid., paras. 326–335. 22 Ibid., para. 335. Ibid., para. 326; Sandoz, Y. et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff: Geneva, 1987), p. 901, para. 3187. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 334; Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1 (1998), p. 21, fn. 12. Prosecutor v. Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against his Conviction, ICC-01/04-01/06-3121-Red, 1 December 2014, paras. 336–337.

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actively in hostilities”.26 Also excluded are activities “clearly unrelated to the hostilities”, such as food deliveries to an air base or their use as domestic staff in an officer’s married accommodation.27

II Modes of Liability a Co-perpetration i Material Elements Co-perpetration is of one of the three forms of commission liability in article 25(3)(a), namely, where a perpetrator commits a crime “jointly with another person”.28 According to the Appeals Chamber, for an accused to be culpable on the basis of this mode of liability, a plurality of persons, and an agreement, must be proven. In this regard, it must be shown that “two or more individuals worked together in the commission of the crime. This requires an agreement between these perpetrators, which led to the commission of one or more crimes under the jurisdiction of the Court”.29 The existence of an agreement – which may take the form of a common plan30 – among other elements, is critical in dispelling any potential claims that this mode of liability is equivalent to “guilt by association”. In the view of the Appeals Chamber, “[i]t is this very agreement – express or implied, previously arranged or materialising extemporaneously – that ties the coperpetrators together and that justifies the reciprocal imputation of their respective acts”.31 ii Essential Contribution and Control Over the Crime The accused must make an essential contribution to the agreement/common plan32 by virtue of which he or she has control over the crime,33 but he or she need not directly and personally carry out the actus reus of the crime him- or 26 27

28

29 32

33

Ibid., para. 338. Ibid., para. 334; Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1 (1998), p. 21, fn. 12. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 464. The other two forms are: (a) where the perpetrator commits the crime as an individual; and (b) where he commits the crimes through another person. Ibid., para. 445. 30 Ibid. 31 Ibid. (emphasis added). For further analysis on the contention as to whether the contribution is to the common plan rather than the crime, see infra. Some commentators describe it as the “control theory”. See, e.g., Ohlin, J., “Lubanga Decision Roundtable: Lubanga and the Control Theory”, Opinio Juris, 15 March 2012, available at: www.opiniojuris.org.

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herself.34 In the Lubanga appeal litigation, Mr Lubanga challenged the Trial Chamber’s finding that “the accused can be absent from the scene of the crime, as long as he has the power to decide whether and how the offence will be carried out. In Mr Lubanga’s view, this is akin to liability for ordering the commission of a crime or superior responsibility [. . .] and cannot therefore establish liability for the commission of a crime under article 25(3)(a) of the Statute.”35 The Appeals Chamber rejected Mr Lubanga’s contentions and endorsed the Prosecutor’s submissions to the contrary.36 In its view, “article 25(3)(a) of the Statute does not establish that co-perpetrators need to carry out the crime personally and directly”.37 Indeed, “the text of article 25(3)(a) does not expressly stipulate that a crime is committed with others only if the co-perpetrators directly and personally carry out the incriminated conduct in question”.38 The Appeals Chamber noted that in prescribing the definition of “commission”, article 25(3)(a) expressly embeds three forms of commission liability: (a) a perpetrator may commit a crime as an individual; or (b) jointly with another person; or (c) through another person. In its view, the third form of commission liability, which may assist in the interpretation of the second form, establishes culpability for a perpetrator who does not personally carry out the crime, but who uses another person to do so. In that situation, [t]he underlying assumption is that the accused makes use of another person, who actually carries out the incriminated conduct by virtue of the accused’s control over that person, and the latter’s conduct is therefore imputed to the former. Accordingly, commission of a crime “through” another person is a form of criminal responsibility that requires a normative assessment of the relationship between the person actually carrying out the incriminated conduct and the person who in the background, as well as of the latter person’s relationship to the crime [. . .].39

In conclusion, the Appeals Chamber, in upholding the Trial Chamber’s approach, found that the phrase “committing jointly with others” (or co-perpetration) cannot only be answered merely by reference to how close the accused was to the actual crime and whether or not he or she personally or directly carried out the actus reus.40 Rather, it is the normative assessment of the accused’s role in the specific circumstances of the case that takes into account his or her control over the 34

35 39

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 458. Ibid., para. 456. 36 Ibid., para. 457. 37 Ibid., para. 458. 38 Ibid., para. 460. Ibid., para. 465. 40 Ibid., para. 473.

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crime by virtue of his or her essential contribution to it that transcends the sort of contribution engaged by other modes of liability such as ordering, inducing or soliciting:41 the Appeals Chamber considers that, in circumstances where a plurality of persons was involved in the commission of crimes under the Statute, the question of whether an accused “committed” a crime – and therefore not only contributed to the crime committed by someone else – cannot only be answered by reference to how close the accused was to the actual crime and whether or not he or she directly carried out the incriminated conduct. Rather, what is required is a normative assessment of the role of the accused person in the specific circumstances of the case. The Appeals Chamber considers that the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resultant power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime [. . .].42

Whether or not the accused had the requisite control over the crime by virtue of his or her essential contribution is a case-by-case determination that will depend on the totality of an accused’s conduct with all elements of the accused’s contributions considered cumulatively and not in isolation.43 However, three issues arise from the Lubanga Appeal Chamber’s Judgment. First, what distinguishes “committing jointly with others” in article 25(3)(a) from other modes of liability in the same article, such as ordering, inducing or soliciting – or indeed, the ad hoc tribunals’ “joint criminal enterprise” (“JCE”) liability? Secondly, does the accused’s essential contribution have to be to the crime or the common plan that underpins the agreement? Thirdly, if culpability for co-perpetration is a case-by-case determination that focuses on the scope of the role of the accused, can culpability arise where some of the indicators of control over the crime identified by the Judgment are missing, or cannot be proven? These issues are addressed in turn below. iii Co-perpetration vis-à-vis Ordering, Soliciting, Inducing and JCE According to the Appeals Chamber, co-perpetration is a form of commission liability and is different from forms of liability that involve contributing to the commission of a crime by another person in one of the ways described in article 25(3)(b) and (d), which are accessorial in nature.44 In the Appeals Chamber’s view, “the Statute differentiates 41 43

Ibid., paras. 467–473. Ibid., paras. 489–492.

42 44

Ibid., para. 473 (emphasis added). Ibid., para. 462.

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between two principal forms of liability, namely liability as a perpetrator and liability as an accessory”.45 Blameworthiness varies between the two categories. Thus, “generally speaking and all other things being equal, a person who is found to commit a crime him- or herself bears more blameworthiness than a person who contributes to the crime of another person or persons”.46 Overall, in Lubanga the Appeals Chamber endorsed the Trial Chamber’s conclusion that the accused’s contribution in co-perpetration must be of greater significance than of those, for instance, who order, induce or solicit crimes (article 25(3)(b)), or in any other way contribute to the commission of crimes by a group of persons acting with a common purpose (article 25(3)(d)).47 In the Appeals Chamber’s view, what distinguishes coperpetration from the other modes (which, as noted above, are viewed as being accessorial in nature48) is an objective criterion that considers not the accused’s mental relationship to the crime,49 but “the accused person’s extent of contribution to the crime. This is because blameworthiness of the person is directly dependent on the extent to which the person actually contributed to the crime in question.”50 The Appeals Chamber endorsed the Pre-Trial Chambers’ and Trial Chambers’ reliance on the “control theory” in order to distinguish between those who are considered to have committed the crimes from those who have contributed to the crimes of others, through acts such as ordering, inducing or soliciting the crimes.51

45 48

49

50

51

Ibid. 46 Ibid. 47 Ibid., paras. 467–472. Ibid., paras. 467, 468, 469, 472. This approach raises some questions – which are not discussed in detail here – such as the impact of this approach on sentencing. It suffices to state that, overall, the Court’s characterisation of modes of liability, including ordering, as being “accessorial” in nature is contentious, given the primary role played by those who order the commission of crimes. The ad hoc tribunals do not contain a similar characterisation; rather, they take the position that modes of liability, such as ordering, are, like commission, direct and primary forms of criminal liability. E.g., Laurent Semanza v. Prosecutor, ICTR-97-20-A, Judgment, 20 May 2005, para. 388. According to the Appeals Chamber, even JCE liability as elucidated by the ad hoc tribunals is no exception. In its view, although the notion of JCE liability as developed by the ad hoc tribunals also uses normative criteria to distinguish co-perpetration from accessorial liability, unlike the ICC’s conception of “co-perpetration”, JCE puts emphasis on subjective criteria and not objective criteria. The former assesses the person’s mental relationship to the crime, while the latter focuses on the extent of the person’s contribution to the crime. See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, 1 December 2014, paras. 468–469. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 468. Ibid., para. 469.

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iv Essential Contribution to the Crime or the Common Plan? In some of its findings in Lubanga, the Appeals Chamber appears to align the accused’s essential contribution to the crime being committed to the “crime” itself as opposed to the “common plan”.52 For instance, the Chamber stated that, “it is indeed appropriate to distinguish between liability as a perpetrator and as an accessory primarily based on the objective criterion of the accused person’s extent of contribution to the crime. This is because the blameworthiness of the person is directly dependent on the extent to which the person actually contributed to the crime in question”.53 In summing up the law on co-perpetration, the Appeals Chamber noted that “the most appropriate tool for [assessing whether the accused committed the crime] is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime”.54 On the other hand, when addressing the Trial Chamber’s application of the law of co-perpetration to the facts (including on Lubanga’s essential contribution), the Appeals Chamber endorsed the Trial Chamber’s approach, which critically focused on the Accused’s essential contribution to the common plan rather than on the specific crimes. For instance, in dismissing Lubanga’s claims that the Trial Chamber erred in analysing his individual contribution to the commission of the charged crimes, the Appeals Chamber did not disturb the Trial Chambers findings which underscored Lubanga’s contribution to the common plan. In fact, the Appeals Chamber found that Lubanga was misreading findings that properly addressed his role. In its view, in analysing the significance of the speech given by Mr Lubanga at the Rwampara training camp, the Trial Chamber emphasised the cumulative nature of its assessment in the following terms: The essential nature of his contribution to the common plan is not established by the discrete and undisputed fact that he visited the Rwampara camp, but instead it is

52

53

54

E.g., ibid., paras. 468, 469, 473. In the latest trial judgment in the Al Faqi case, Trial Chamber VIII acknowledged that “[t]here is a split in the Court’s case law as to whether this contribution must be to the ‘crime’ itself or the ‘common plan’. However, on the facts of the present case this distinction makes no difference”: Prosecutor v. Al Faqi, Judgment and Sentence, ICC-01/12-01/15-171, 27 September 2016, fn. 31. In that case, the Accused, inter alia, physically perpetrated the crimes. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, para. 468 (emphasis added). Ibid., para. 473 (emphasis added).

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founded on the entirety of the evidence relating to the contribution he made as the highest-ranking official within the UPC.55

Moreover, the Appeals Chamber did not disturb the Trial Chamber’s finding that “the fact that other co-perpetrators, such as Floribert Kisembo and Bosco Ntaganda, were more involved with the day-today recruitment and training of soldiers, including those under the age of fifteen, does not undermine the conclusion that Mr Lubanga’s role was essential to the implementation of the common plan [. . .]”.56 Based on the specific legal issue on appeal in the Lubanga case – namely, whether an accused must personally and directly perpetrate the crime, and which the Appeals Chamber answered in the negative, as well as the Appeals Chamber’s endorsement of the Trial Chamber’s entire approach – it may be argued that, strictly speaking, the Appeals Chamber’s jurisprudence does not require a contribution to the “crime” as such. It is sufficient that the accused makes an essential contribution to the common plan as the vehicle through which the crimes were committed. In any event, the interchangeable use of the terms “crime” or “common plan” may not mean that the Chamber materially erred by confusing the two conflicting notions. Often, when dealing with the culpability of co-perpetrators under international law, where the focus is on contribution, it is modes of liability that link the accused to the crimes. In essence, an accused is culpable by perpetrating the requisite mode of liability that contributes to the perpetration of the charged crime – and whether the mode of liability is co-perpetration or otherwise, it is immaterial that an accused may be geographically and temporally removed. It follows that by contributing to the mode of liability, the accused necessarily contributes to the charged crime. v Determination of Contribution is Case-by-Case: Are the Indices Closed? The Appeals Chamber holds that, whether or not an accused is culpable as a co-perpetrator is a case-by-case normative determination of the extent of his role, and “the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting power to frustrate its commission [. . .]”.57 In making that determination, a Chamber may consider the accused’s roles and 55 57

Ibid., para. 488 (emphasis added). Ibid., para. 473 (emphasis added).

56

Ibid., para. 491 (emphasis added).

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contributions to the common plan in a cumulative, rather than a piecemeal, fashion.58 This case-by-case approach may suggest that the factors identified by the Chamber are merely just indicators of contribution and that the list (for instance, of how the accused controls the crime/common plan) is not closed. Indeed, depending on the circumstances of the case, the nature of the inquiry as to whether the accused’s contribution meets the essentiality threshold may differ between, for instance, those who are present at the crime scenes or participate in the crimes from those who control the crimes from a distance. But an accused’s distance away from the crimes alone is not reason to doubt or undermine his or her capacity to make the requisite contribution or have control over the crimes. As underscored by the Appeals Chamber, the essential contribution can be made not only at the execution stage of the crime, but also, depending on the circumstances, at its planning or preparation stage, including when the common plan is conceived. At the core of this approach is the assumption that a co-perpetrator may compensate for his lack of contribution at the execution stage of the crime if, by virtue of his or her essential contribution, the person nevertheless had control over the crime.59

vi Mental Element The accused must intend to commit the crime. Where culpability is based on co-perpetration through participation in a common plan, it is not required that the common plan between the perpetrators be specifically directed at the commission of a crime.60 This is because, in article 30, the Statute provides that a person has intent, if he or she meant to engage in the criminal conduct or “is aware that it (i.e., the crime) will occur in the ordinary course of events”.61 The latter point was most pertinent in the Lubanga case.62 As per article 30(2)(b) it is therefore sufficient that the accused was aware that the crime will occur in the ordinary course of events when participating in the common plan. In the Lubanga case, given the critical element of criminality involved as discussed below, the Chamber was satisfied that Lubanga possessed the requistic awareness that in the ordinary course of implementing the agreement or common plan to build a strong army, children under the age of fifteen years would be enlisted, conscripted or used in combat. According to the Appeals Chamber, article 30(2)(b)’s “awareness that the crime will occur in the ordinary course of events” does not require absolute, but virtual certainty: 58

Ibid., paras. 488–490.

59

Ibid., para. 469.

60

Ibid., para. 446.

61

Ibid.

62

Ibid.

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[t]he verb “occur” is used with the modal verb “will” and not with “may” or “could”. Therefore, this phrase conveys, as does the French version, certainty about future occurrence. However, absolute certainty about the future occurrence can never exist; therefore, the Appeals Chamber considers that the standard for the foreseeability of events is virtual certainty. That absolute certainty is not required is reinforced by the inclusion in article 30(2)(b) and (3) of the Statute of the phrase “in the ordinary course of events”.63

At the same time, in Lubanga the Appeals Chamber found that the Trial Chamber erred when it articulated the requisite level of awareness of the accused inherent in the notions of risk or danger in terms of possibility or probability when construing article 30(2)(b).64 But although the Trial Chamber had also examined the awareness prong of article 30(2)(b) in terms of risk, the Appeals Chamber concluded that the Trial Chamber’s ultimate requirement that the common plan must involve “a critical element of criminality”,65 “means in the context of the present case and the specific allegations against Mr Lubanga, that it was virtually certain that the implementation of the common plan led to the commission of the crimes at issue”.66 The above Appeals Chamber’s jurisprudence on co-perpetration is also relevant to the construction of other modes of liability (such as ordering, inducing and soliciting) and mens rea generally. This is because, article 30(2)(b) applies across other modes of liability and crimes (unless mens rea is otherwise provided for in the Statute, such as is the case with genocide). The ad hoc tribunals’ case law construes a prong similar to the ICC’s “awareness that crimes will occur in the ordinary course of events” in terms of “substantial likelihood”. For instance, the ad hoc tribunals hold that in cases where an accused’s order is not explicit in relation to the consequence it will have, it is sufficient that when ordering, for instance, a military operation, the

63 65

66

Ibid., para. 447 (emphasis added). 64 Ibid., para. 449. In this case, which involved charges of recruiting, enlisting and using children under the age of fifteen years in hostilities, the common plan (to build a strong army) was implemented over a long period of time. During this period, children were recruited, enlisted and used in hostilities. This meant that the level of risk that the crimes would be perpetrated was clearly heightened, and the totality of the circumstances showed that it was virtually certain to Mr Lubanga that the implementation of the common plan would lead and did lead to the commission of the crimes. See ibid., paras. 450–451. Ibid., para. 451.

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accused was aware of the substantial likelihood that crimes would be committed in the ordinary course of events.67 The Lubanga Appeal Judgment propounds the threshold as being one of virtual certainty.68 Accordingly, it appears to reject resort to the substantial likelihood test or the concept of possibility for cases where an accused’s culpability is described as an “awareness of consequences”.69 But this does not mean that the case law of ad hoc tribunals cannot provide any inspiration, especially given that the ICC has only applied the virtual certainty test to a limited number of cases.70 It may, for instance, provide inspiration on what type of evidence or circumstances to consider, where, for example, there is an absence of direct evidence that an accused co-perpetrated or ordered the crimes. For example, in the ICTY’s Dragomir Milošević case, the Appeals Chamber did not fault the Trial Chamber for concluding that the accused could be responsible for ordering the crimes, even though the accused did not explicitly order the specific commission of the crimes concerned. Rather, he could be held responsible for ordering the crimes, given the campaign of sniping that was carried out in the context of the tight command that he had instituted.71 The Gbagbo Confirmation Decision illustrates how the case law of the ad hoc tribunals such as Dragomir Milošević may still be useful. There, even if there was no direct evidence of an express order, the Pre-Trial Chamber concluded that there were sufficient grounds to believe that Gbagbo instructed (or otherwise instigated) the pro-Gbagbo forces to commit crimes. It based this, inter alia, on Gbagbo’s ordering of the forces, in furtherance of his broader avowed agenda of retaining political power at all costs, (a) to intervene, using heavy weaponry, to stop civilian marches and other activities of his civilian/political opponents; (b) mobilising and directing the violent actions of militias and youth towards one 67

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For the ICTY, see, e.g., Prosecutor v. Dragomir Milošević, IT-98-29/1-A, Judgment, 12 November 2009, para. 67. For the ICTR, see, e.g., Prosecutor v. Ntagerura et al., ICTR-99-46-A, Judgment, 7 July 2006, para. 365. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red, 1 December 2014, paras. 6, 447. Ibid., paras. 448–449. See, e.g., Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment Pursuant to Article 74 of the Statute, ICC-01/05-01/13, 19 October 2016, paras. 29, 857, 863. Prosecutor v. Dragomir Milošević, IT-98-29/1-A, Judgment, 12 November 2009, para. 267. However, in this case, the Appeals Chamber concluded that on the evidence, the Chamber was not satisfied that the Trial Chamber had “established beyond reasonable doubt that Milošević instructed his troops to perform a campaign of sniping and shelling of the civilian population in Sarajevo as such”: ibid. The Appeals Chamber thus overturned his ordering conviction and replaced it with a conviction under article 7(3).

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agenda – retention of power at all costs; and (c) his overemphasis on this avowed agenda through statements, without qualifying the means that were permissible to attain this goal.72 This overemphasis “[created] a general situation amongst the forces under his control and his inner circle’s control, which justified the use of violence against the civilian population”.73 Arguably, in reaching a conclusion, an ICC Chamber may closely examine the same sort of evidence and circumstances that confronted the ad hoc tribunals in order to determine whether in the totality of the circumstances, even assuming there is direct lack of evidence that the accused meant to cause the crimes, he was nevertheless virtually certain that the crimes would occur in the ordinary course of events.

b Article 25(3)(d): Common Purpose Liability Article 25(3)(d) provides for criminal responsibility for a person who “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 [. . .].” The Appeals Chamber has not yet elucidated the elements of this mode of liability in any substantial detail. It has only stated that “Article 25(3)(d)(ii) of the Statute requires, on its face, that one or more crimes are committed by a group of persons, that this group acts with a common purpose, and that the accused intentionally contributes to the commission of the crime in the knowledge of the group’s intention to commit the crime”.74 In her Separate Opinion in the Mbarushimana case, Judge Fernandez took the position that article 25(3)(d) is “rather a residual form of accessory liability, applicable if other forms of responsibility are not at issue”.75 In the same Opinion, Judge Fernandez assigned an expansive scope to the required contribution. In her view, [t]he phrase “in any other way” indicates that there should not be a minimum threshold or level of contribution under this mode of liability. As a commentator held: “Any contribution to the group crime (‘in any other way contributes’) not covered by another form of participation, 72

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Prosecutor v. Gbagbo, Decision on the Confirmation of Charges against Laurent Gbagbo, ICC-02/11-01/11-656-Red, 12 June 2014, para. 246. Ibid. Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 53. Prosecutor v. Mbrarushimana, Separate Opinion of Judge Fernandez in the Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision. ICC-01/04-01/10514, 30 May 2012, para. 8. Sep. Op.

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sub sta n tive l a w especially assistance, establishes the criminal liability of the accessory.” However, the Pre-Trial Chamber established a minimum threshold whereby it would be necessary for the suspect to have made a “significant contribution”. The arguments of the Pre-Trial Chamber in support of such threshold which contradicts the wording of article 25(3) (d) of the Statute are not convincing.76

III Whether War Crimes can be Committed against Members of the Same Armed Force or Group The Appeals Chamber in Ntaganda, in jurisdiction-related litigation, made an unprecedented ruling when it found that members of an armed force or group could be held accountable for the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute even when perpetrated against members of the same armed force or group. Before this ruling, it was unclear under international humanitarian law whether a combatant could be protected from acts that would otherwise amount to war crimes if perpetrated by an opposing force when perpetrated by the same armed force.77 On the one hand, some commentators observed that international humanitarian law protects combatants only when the combatant is not participating in hostilities, a prisoner of war or otherwise placed hors de combat (e.g., by being wounded or sick).78 On the other hand, some commentators applauded the judgment for extending protections to victims who are both combatants and coerced into 76 77

78

Ibid., para. 9. This issue is described in the judgment as the “Status Requirements”, Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 16: “[t]he principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be ‘protected persons’ in the sense of the Geneva Conventions of 1949 [. . .] or ‘[p]ersons taking no active part in the hostilities’ in the sense of Common Article 3 to the 1949 Geneva Conventions [. . .] (so-called ‘Status Requirements’)”. Heller, K. J., “ICC Appeals Chamber Says a War Crime Does not Have to Violate IHL”, Opinio Juris, 15 June 2017, available at: http://opiniojuris.org/2017/06/15/icc-appealschamber-holds-a-war-crime-does-not-have-to-violate-ihl, last accessed 18 July 2017; McDermott, Y., “ICC Extends War Crimes of Rape and Sexual Slavery to Victims from Same Armed Forces as Perpetrator”, IntLawGrrls, 5 January 2017, available at: https://ilg2 .org/2017/01/05/icc-extends-war-crimes-of-rape-and-sexual-slavery-to-victims-fromsame-armed-forces-as-perpetrator, last accessed 18 July 2017.

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sexual slavery or raped by a member or members of their own armed force or group.79 The Appeals Chamber came to its conclusion as follows. First, the Appeals Chamber affirmed that the reference in article 8(2)(a) to protected persons and the reference in article 8(2)(c) to a “person taking no active part in hostilities” meant that article 8(2)(b)(xxii) and 8(2)(e)(vi) was not meant to read in such constraints.80 Secondly, the Appeals Chamber discussed whether there needed to be a lacuna in the relevant articles before recourse to other sources of law could occur (see article 21). However, it found that the reference to “the established framework of international law” in the chapeaux of article 8(2)(b) and 8(2)(e) includes resort to customary and conventional international law, especially international humanitarian law, even if there are no lacunas.81 It then reasoned that if customary or conventional international law stipulates an additional element to those mentioned in the Elements of the Crime and the Statute, then this must be included.82 Thirdly, the Appeals Chamber explored the question of whether international humanitarian law generally restricted protection only to war crimes committed against an opposing party or civilians and excluded members of an armed force or group from protection against crimes committed by the same armed force or group. The Appeals Chamber concluded that international humanitarian law did not contain such general restriction.83 It found that even though there have been no known cases where the grave breach regime has been applied to the perpetration of war crimes against members of the same armed force or group, Common Article 3 “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation, requiring only that the persons were taking no active part in hostilities at the material 79

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See Grey, R., “ICC Appeals Chamber Issues ‘Unprecedented’ Decision on War Crimes of Rape and Sexual Slavery”, IntLawGrrls, 14 June 2017, available at: https://ilg2.org/2017/ 06/14/icc-appeals-chamber-issues-unprecedented-decision-on-war-crimes-of-rape-andsexual-slavery, last accessed 28 July 2017, adding to her original observations in Grey, R., “Sexual Violence against Child Soldiers”, International Feminist Journal of Politics, Vol. 16, Issue 4 (2014), p. 601, p. 612. For a similar line of thought to the Appeals Chamber, see also Rodenhäuser, T., “Squaring the Circle?: Prosecuting Sexual Violence against Child Soldiers by their ‘Own Forces’”, Journal of International Criminal Law, Vol. 14, Issue 1 (2016), p. 171, p. 191. Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, paras. 46–51. Ibid., para. 53. 82 Ibid., para. 54. 83 Ibid., paras. 56–66.

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time”.84 It considered that the International Committee of the Red Cross’ Commentary on the First Geneva Convention “specifically observed that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong”.85 Further, it found that under the First and Second Geneva Conventions86 there are protections that apply to the wounded, sick or shipwrecked members of an armed force or group against other members of that same armed force or group,87 and that international humanitarian law “not only governs actions of parties to the conflict in relation to each other but also concerns itself with protecting vulnerable persons during armed conflict and assuring fundamental guarantees to persons not taking active part in the hostilities”.88 The Appeals Chamber implicitly seemed to find that protections under international humanitarian law not only protect individuals when they are considered to be a civilian or not participating in hostilities, but point to a more expansive vulnerability. In particular, it found that members of an armed group are not excluded from protection against the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (2)(e)(vi) of the Statute when committed by members of the same armed force or group. It reasoned that even if under international humanitarian law, a combatant could be targeted and killed, this does not mean that there should be no protection against rape and sexual slavery, even when committed by the same armed force or group.89 However, in saying this, it implicitly argued that while international humanitarian law cannot be extended to cover all instances 84

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Ibid., para. 60, citing the Prosecution’s submissions: Prosecutor v. Ntaganda, Corrected Version of “Prosecution’s Response to Ntaganda’s ‘Appeal from the Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9’”, ICC-01/04-02/06-1794-Corr, 21 February 2017, para. 69 (emphasis added). Ibid., para. 61. See Dörmann, K. et al. (eds.), International Committee of the Red Cross, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Cambridge University Press: Cambridge, 2016), para. 547. International Committee of the Red Cross, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31 (1949); International Committee of the Red Cross, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85 (1949). Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, paras. 58–59. Ibid., para. 57. Ibid., para. 65, affirming the Trial Chamber (“there is never a justification to engage in sexual violence against any person [. . .]”).

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of wrongdoing that should be captured by domestic criminal law or human rights law,90 any “judicial activism” could be constrained by always demanding proof of a nexus between the alleged violation with the armed conflict, as per ICTY jurisprudence and the Elements of Crime.91

Jurisprudence I Modes of Liability 1 Co-perpetration 1.1 Material Elements a Plurality of Persons or Agreement “[I]n order to establish that an accused person committed a crime under the jurisdiction of the Court ‘jointly with another [. . .] person’, it has to be established that two or more individuals worked together in the commission of the crime. This requires an agreement between these perpetrators, which led to the commission of one or more crimes under the jurisdiction of the Court. It is this very agreement – express or implied, previously arranged or materialising extemporaneously – that ties the coperpetrators together and that justifies the reciprocal imputation of their respective acts. This agreement may take the form of a ‘common plan’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 445.

b Essential Contribution and Control Over the Crime “In sum, the Appeals Chamber considers that, in circumstances where a plurality of persons was involved in the commission of crimes under the Statute, the question of whether an accused ‘committed’ a crime – and therefore not only contributed to the crime committed by someone else – cannot only be answered by reference to how close the accused was to the actual crime and whether he or she directly carried out the incriminated conduct. Rather, what is required is a normative assessment of the role of the accused person in the specific circumstances of the case. The Appeals Chamber considers that the most appropriate tool for conducting such an assessment is an evaluation of whether the accused had control over the crime, by virtue of his or her essential contribution to it and the resulting 90

91

See the Defence’s submissions: Prosecutor v. Ntaganda, Appeal from the Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1754, 26 January 2017, para. 59, fn. 87. “The Appeals Chamber considers that any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.” Ibid., paras. 67–68.

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sub st an tiv e l aw power to frustrate its commission, even if that essential contribution was not made at the execution stage of the crime. Accordingly, the Appeals Chamber is not convinced by Mr Lubanga’s argument that the Trial Chamber erred in its interpretation of article 25(3)(a) of the Statute and rejects this ground of appeal.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 473. “The Appeals Chamber finds that Mr Lubanga’s first set of submissions does not accurately reflect the conclusions of the Trial Chamber, which addressed the question of whether Mr Lubanga’s role and activities amounted cumulatively to an essential contribution, as required for coperpetration. The Trial Chamber did not rely on any one of these activities in isolation to establish that Mr Lubanga made such an essential contribution. In analysing the significance of the speech given by Mr Lubanga at the Rwampara training camp, the Trial Chamber emphasised the cumulative nature of its assessment in the following terms: The essential nature of his contribution to the common plan is not established by the discrete and undisputed fact that he visited the Rwampara camp, but instead it is founded on the entirety of the evidence relating to the contribution he made as the highest-ranking official within the UPC.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 488. “The Trial Chamber’s conclusion that the implementation of the common plan would not have been possible without Mr Lubanga’s contribution was based on its findings as to his ‘role [. . .] within the UPC/FPLC and the hierarchical relationship with the other co-perpetrators, viewed in combination with the activities he carried out personally in support of the common plan, as demonstrated by the rallies and visits to recruits and troops [. . .]’. The Trial Chamber took into consideration: (i) his ability ‘to shape the policies of the UPC/FPLC and to direct the activities of his alleged co-perpetrators’ ‘by virtue of his position as President and Commander-in-Chief from September 2002 onwards’; (ii) the established reporting structures, the lines of communication within the UPC/FPLC, and the meetings and close contact between Mr Lubanga and at least some of the alleged co-perpetrators, supporting the conclusion that he was kept fully informed throughout the relevant period and issued instructions relating to the implementation of the common plan; (iii) the personal assistance he provided in the military affairs of the UPC/FPLC in terms of planning military operations and providing logistical support by ensuring weapons, ammunition, food, uniforms and military rations and other supplies were available for the troops; (iv) the fact that he and other

jurisprudence commanders were protected by guards, some of whom were under the age of fifteen years.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 489. “This finding confirms that the Trial Chamber considered all elements cumulatively and that the ‘activities he carried out personally’ are only one of many factors considered in coming to the conclusion that Mr Lubanga made an essential contribution to the recruitment and use of children under the age of fifteen years.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 490.

1.2 Mental Element “As to the question of whether the common plan must be ‘designed to further a criminal purpose’, the Appeals Chamber considers that it is not required that the common plan between individuals was specifically directed at the commission of a crime. The Appeals Chamber recalls that the Trial Chamber held that it was sufficient for the common plan to involve ‘a critical element of criminality’ and that the Trial Chamber sought to define such an element of criminality by reference to article 30 of the Statute. In the view of the Appeals Chamber, it was as such correct to consider article 30 of the Statute because that provision describes the relevant mental element and may therefore also serve as a yardstick for determining whether two or more individuals agreed to commit a crime. Article 30 of the Statute states [. . .].” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 446.

1.3 Article 30(2)(b): Virtual Certainty “At issue here is the second alternative of both article 30(2)(b) and (3) of the Statute. The Appeals Chamber notes that these provisions do not refer to the notion of ‘risk’, but employ the term of occurrence of a consequence ‘in the ordinary course of events’. The Appeals Chamber considers that the words ‘[a consequence] will occur’ refer to future events. The verb ‘occur’ is used with the modal verb ‘will’, and not with ‘may’ or ‘could’. Therefore, this phrase conveys, as does the French version, certainty about the future occurrence. However, absolute certainty about a future occurrence can never exist; therefore, the Appeals Chamber considers that the standard for the foreseeability of events is virtual certainty. That absolute certainty is not required is

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subs ta nt ive l a w reinforced by the inclusion in article 30(2)(b) and (3) of the Statute of the phrase ‘in the ordinary course of events’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 447 (emphasis added). “The Appeals Chamber recalls that the Trial Chamber held that it is necessary, as a minimum, for the prosecution to establish [that] the common plan included a critical element of criminality, namely that its implementation embodied a sufficient risk that, if events follow the ordinary course, a crime will be committed. The Appeals Chamber considers that the term ‘risk’ is usually used in the context of ‘dolus eventualis’ or ‘advertent recklessness’, as known in some domestic jurisdictions, a concept that the Trial Chamber specifically excluded from application. The Appeals Chamber considers that it does not help in creating more clarity that the Trial Chamber, in the section on the mental element, explains that this ‘involves consideration of the concepts of “possibility” and “probability”, which are inherent to the notions of “risk” and “danger”’. The Appeals Chamber finds that the use of this phrase is confusing and reference to ‘risk’ should have been avoided when interpreting article 30(2) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 448–449. “Nevertheless, in the result, the Appeals Chamber does not consider that the Trial Chamber’s approach broadened the scope of article 30(2) and (3) of the Statute, despite the Trial Chamber’s use of the term ‘risk’. The Appeals Chamber notes that the Trial Chamber appears to have referred to the term ‘risk’ in this context because the common plan was implemented over a long period of time. Thus, at the time of its conception, the co-perpetrators anticipated future events (as will often be the case when a broad plan is conceived). The Trial Chamber, in defining the requisite level of ‘risk’, specified at paragraph 1012 of the Conviction Decision that this entailed an ‘awareness on the part of the co-perpetrators that the consequence will occur in the “ordinary course of events”’ and distinguished this from a ‘low risk’. In addition, the Trial Chamber found, in line with article 30 of the Statute, that the Prosecutor needs to establish that, as a consequence of the common plan, the crimes ‘will occur in the ordinary course of events’. Therefore, Appeals Chamber finds that the Trial Chamber, in its legal conclusions, did not deviate from the requirements of article 30(2)(b) and (3) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 448–450.

jurisprudence “The Appeals Chamber recalls in this context that, according to the Trial Chamber, Mr Lubanga and the co-perpetrators agreed ‘to build an effective army in order to ensure the UPC/FPLC’s political and military control over Ituri’. The Trial Chamber found that, in the circumstances prevailing in Ituri at the time (of which the co-perpetrators were aware), the implementation of this plan led to the recruitment and use to participate actively in hostilities of individuals who were both above and under the age of fifteen years, the latter being a crime falling within the scope of the Statute. Thus, the implementation of the plan, which itself may have included non-criminal goals in addition to criminal ones, resulted in the commission of crimes under article 8(2)(e)(vii) of the Statute. Accordingly, the Trial Chamber’s requirement of a ‘critical element of criminality’ of the common plan means, in the context of the present case and the specific allegations against Mr Lubanga, that it was virtually certain that the implementation of the common plan led to the commission of the crimes at issue.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, paras. 448–451.

2 Article 25(3)(d): Common Purpose Liability “Article 25(3)(d)(ii) of the Statute requires, on its face, that one or more crimes are committed by a group of persons, that this group acts with a common purpose, and that the accused intentionally contributes to the commission of the crime in the knowledge of the group’s intention to commit the crime.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal on Regulation 55 Implementation, ICC-01/04-01/07-3363 OA13, 27 March 2013, para. 53. “The phrase ‘in any other way’ indicates that there should not be a minimum threshold or level of contribution under this mode of liability. As a commentator held: ‘Any contribution to the group crime (“in any other way contributes”) not covered by another form of participation, especially assistance, establishes the criminal liability of the accessory.’ However, the Pre-Trial Chamber established a minimum threshold whereby it would be necessary for the suspect to have made a ‘significant contribution’. The arguments of the Pre-Trial Chamber in support of such threshold which contradicts the wording of article 25(3) (d) of the Statute are not convincing.” Prosecutor v. Mbarushimana, Separate Opinion of Judge Fernandez in the Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10514, 30 May 2012, para. 9. Sep. Op.

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II War Crimes 1 Interpretation of Article 8(2) 1.1 Interpreting Potential Overlaps between Article 8(2) Provisions “[W]hile the potential overlap between provisions may be of relevance to their interpretation, little weight should be attached to this argument in the interpretation of article 8(2) of the Statute. When the provisions on war crimes were negotiated, there was a desire to ‘define the specific content or constituent elements of the violations in question’. States were concerned, in particular, with providing certainty as to the specific conduct that would give rise to criminal liability and in upholding the principle of legality. As the Trial Chamber noted, while the drafting history is silent as to whether the drafters intended the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (e)(vi) to be subject to the Status Requirements, it is clear that the drafters intended these crimes to be ‘distinct war crimes’, as opposed to merely illustrations of grave breaches of the Geneva Conventions or violations of Common Article 3. Nevertheless, States were aware of the potential overlap between the categories of crimes listed in the various sub-paragraphs of article 8(2) of the Statute. There is no indication that the States intended to avoid such overlap.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 48.

1.2

Reference to the Geneva Conventions in Article 8(2)(b)(xxii) and (e)(vi) “As to the reference to the Geneva Conventions in article 8(2)(b)(xxii) and (e)(vi), the Trial Chamber held that it qualifies only the crime of ‘any other form of sexual violence’ and only for the purpose of setting ‘a certain gravity threshold and [to] exclude lesser forms of sexual violence or harassment which would not amount to crimes of the most serious concern to the international community’. The Appeals Chamber finds no error in the Trial Chamber’s conclusion. The respective Elements of Crimes and the drafting history indicate that ‘other form[s] of sexual violence’ should only give rise to criminal liability if the conduct in question was of a ‘gravity comparable to that of a grave breach of the Geneva Conventions or serious violation of Common Article 3’. However, the same does not apply for rape and sexual slavery, in relation to which the Elements of Crimes do not stipulate such a requirement. In the Appeals Chamber’s view, this is because rape and sexual slavery are by definition crimes of a gravity comparable to that of a grave breach of the Geneva Conventions or serious violation of Common Article 3.”

jurisprudence Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 49.

2 There are no Status Requirements that Distinguish War Crimes under the “Established Framework of International Law’’, that is, International Humanitarian Law 2.1 Existence of Status Requirements under International Humanitarian Law “[T]he Appeals Chamber considers that international humanitarian law not only governs actions of parties to the conflict in relation to each other, but also concerns itself with protecting vulnerable persons during armed conflict and assuring fundamental guarantees to persons not taking active part in the hostilities. Protection is required in particular against harm suffered from the enemy forces since violence – and potential abuses – during armed conflict are typically directed against, or inflicted on, enemy combatants or enemy civilians.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 57. “This is reflected, in particular, in Geneva Conventions III and IV. Geneva Convention III protects prisoners of war, who are defined in article 4(A) of that instrument as members of armed forces or militias or volunteer corps ‘who have fallen into the power of the enemy’. Similarly, article 4(1) of Geneva Convention IV defines persons protected under this convention as those ‘who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’. Consequently, the protections against grave breaches of Geneva Conventions III and IV are narrow in scope, owing to the nature of their respective subject-matter.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 58. “In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea, respectively, provide protection ‘in all circumstances [. . .] without any adverse distinction founded on sex, race, nationality’ and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva

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sub sta n tive l a w Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II [. . .] includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 59. “Notwithstanding the fact that the provisions of Geneva Conventions I and II extend protection irrespective of affiliation, the Appeals Chamber is not aware of any case in which the grave breaches regime has been applied to situations in which victims belonged to the same armed force as the perpetrators. However, the Appeals Chamber is unconvinced that this, in and of itself, reflects the fact that Status Requirements exist as a general rule of international humanitarian law. In this regard, and as noted by the Prosecutor, Common Article 3 provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation, requiring only that the persons were taking no active part in hostilities at the material time.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 60. “The Appeals Chamber recalls in this regard that the Trial Chamber considered it ‘noteworthy’ that the updated commentary of the International Committee of the Red Cross (‘ICRC’) specifically observed that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong. The Appeals Chamber is not persuaded by Mr Ntaganda’s argument that the Trial Chamber erred by relying on this commentary. While it is correct that the references on which the commentary relies are limited and include a decision of the Pre-Trial Chamber in this very case, and while the decision of the Trial Chamber of the Special Court for Sierra Leone (‘SCSL’) reached a contrary finding, this, in and of itself, is not an indication that the ICRC’s conclusion was incorrect. Notably, the Appeals Chamber finds the decision of the SCSL Trial Chamber that ‘[t]he law of international armed conflict was never intended to criminalise acts of violence committed by one member of an armed group against another’ to be unpersuasive, not least because it is apparently based solely on an analysis of Geneva Convention III relating to the protection of prisoners of war and the consideration that ‘an armed group cannot hold its own members as prisoners of war’. As noted above, while this is true as far as Geneva Convention III is concerned, it is the result of the specific subjectmatter of the convention and not an expression of a general rule.”

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Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 61. “Upon closer examination of the principles and the cases, the Appeals Chamber is persuaded that international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group. For this reason, the Appeals Chamber also rejects Mr Ntaganda’s argument as to the Impugned Decision’s reference to the Martens clause and the rationale of international humanitarian law.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 63. “The Appeals Chamber agrees with the Trial Chamber’s finding that ‘there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law’. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 65.

2.2 War Crimes are Determined by an Express Nexus Requirement “The Appeals Chamber emphasises in this context that the Elements of Crime for each war crime contain an express nexus requirement which must be established in each particular instance. Thus, it must be established that the conduct in question ‘took place in the context of and was associated with an armed conflict’ of either international or noninternational character. In the view of the Appeals Chamber, it is this nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes. To that end, as rightly observed in the Impugned Decision with reference to the judgment of the ICTY Appeals Chamber in Kunarac, the Trial Chamber may have regard, inter alia, to ‘the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties’. The Appeals Chamber considers that any undue expansion of the

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subs ta n tive l a w reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1962 OA5, 15 June 2017, para. 68.

O Conduct of Appeals

Commentary

fabricio guariglia I Nature and Scope of Appellate Jurisdiction The Statute limits itself to spelling out the permissible grounds of appeal against an article 74 decision (trial judgment). It does not provide further clarification as to the scope and nature of appellate proceedings. This has been noted by the first edition of Triffterer’s Commentary on the Rome Statute of the International Criminal Court, which also observed that in national legal systems there are different types of appellate proceedings, and that in the civil law tradition there could be second instance proceedings which involved a full fresh consideration of the merits of the case, both legal and factual (Appel/Berufung), and proceedings which only allowed for the consideration by the second instance court of confined issues of law or procedure (Cassation/Revision).1 The inclusion in article 81 of an error of fact as a ground of appeal available to both the Prosecution and the Defence, and of the open-ended additional ground afforded to the Defence by article 81(1)(b)(iv)2 seems to have led to doubts as to the type of appellate review that the ICC Appeals Chamber should undertake, and in particular whether the Chamber was expected to depart from a narrow corrective review of trial judgments, as the one

1

2

Staker, C., “Article 8: Appeal against Decision of Acquittal or Conviction or against Sentence”, Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 1st edn (Nomos: Baden-Baden, 1999), Commentary to Article 81, p. 1022, para. 21. “Any other ground that affects the fairness or reliability of the proceedings or decision.”

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followed by the ICTY Appeals Chamber,3 and embrace a full de novo hearing of the criminal case. The latter choice, as it should be apparent, would have had very profound implications for the Court as a whole, ranging from the impact on the overall length of proceedings before the ICC to budgetary and logistical matters. The Appeals Chamber, however, quickly dispelled any doubt in this regard: the corrective nature of appellate proceedings was already stated in the first interlocutory appeals decided by the Chamber,4 and reaffirmed in its first final appeal.5 The Appeals Chamber further emphasised that appellate proceedings “are not concerned with correcting all errors that may have occurred at trial, but rather only those errors that have been shown to have materially affected the relevant decision”.6 Inconsequential or harmless errors will accordingly fall outside the scope of appellate scrutiny and will not lead to the Appeals Chamber exercising any corrective action. Finally, the Chamber has already clarified that its authority is confined to the appellate review of decisions of first instance Chambers. It does not have original jurisdiction, except in relation to disqualification of the Prosecutor and his or her Deputy (article 42(8) of the Statute) and the reduction of sentences (article 110 of the Statute).7 Nor does the Appeals Chamber have an advisory function;8 accordingly, the Chamber “will not provide guidance on the interpretation of the law to the Registrar or to the parties”. Legal guidance will thus emerge only as a result of the Appeals Chamber’s ordinary exercise of its jurisdiction, as delineated by the Statute, which, as the Chamber has noted, is confined to: (i) appeals under articles 81 and 82 of 3

4

5

6 7

8

See, inter alia, Prosecutor v. Vasiljević, Case II-98-32-A, Judgment, 25 February 2004, para. 5. E.g., Prosecutor v. Lubanga, Judgment on Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 71. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/ 06-3121-Red A5, 1 December 2014, para. 56. Ibid. Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 30, citing Prosecutor v. Katanga & Ngudjolo, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/07-3132 OA12, 26 August 2011, para. 7; Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC02/04-01/05-371 OA2, 23 February 2009, para 9. Diss. Op., Prosecutor v. Lubanga, Decision on the Registrar’s Request relating to the Transmission of Applications for Participation, ICC-01/04-01/06-3026 A4 A5 A6, 6 May 2013, para. 4.

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the Statute; (ii) the revision of conviction or sentence under article 84 of the Statute; (iii) the disqualification of the Prosecutor or a Deputy Prosecutor under article 42(8) of the Statute; and (iv) review concerning reduction of sentence under article 110 of the Statute.9

II Decisions that May be Subject to Interlocutory Appeal Consistent with its strict interpretation of its authority under the Statute, referred to above, the Appeals Chamber has already adopted in the early days of its existence a narrow interpretation of the universe of appealable decisions, and determined that the Statute has established a numerus clausus system: “[t]he decisions that are subject to appeal are enumerated in articles 81 and 82 of the Statute. There is nothing in Part 8 [of the Statute] to suggest that a right to appeal arises except as provided thereunder”;10 thus, “[t]he inexorable inference is that the Statute defines exhaustively the right to appeal decisions of first instance courts, namely, decisions of the PreTrial or Trial Chambers”.11 This means that the Appeals Chamber will not consider matters that, in its view, fall outside the context of articles 81 and 82 even if a first instance Chamber has certified them for appeal: the fact that such a Chamber considered that the granting of an appeal was “desirable or even necessary does not justify departure from the clearly enumerated grounds of appeal in the Statute”.12 Further, if a first instance Chamber considers that human rights considerations under article 21(3) require the Appeals Chamber to consider a matter, then the former must resort to its regulatory powers under article 82(1)(d), instead of expecting the Appeals Chamber to circumvent the numerus clausus system of appealable decisions established by the Statute. In such a situation, “it is for that Chamber to exercise its discretion to broadly interpret the two prongs of article 82(1)(d) of the Statute”.13 9

10

11 12

13

Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 30; Prosecutor v. Katanga & Ngudjolo, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/07-3132 OA12, 26 August 2011, para. 7. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 35. Ibid., para. 39. Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC01/04-01/06-2799 OA19, 26 August 2011, para. 8. Prosecutor v. Bemba et al., Decision on the “Requête en appel de la défense de monsieur Aimé Kilolo Musamba contre la décision de la Chambre de première instance VII du 17 novembre 2015”, ICC-01/05-01/13 OA 12, 23 December 2015, para. 16.

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a Appeals under Article 82(1)(a): Jurisdiction and Admissibility The Statute merely states that either party may appeal “a decision with respect to jurisdiction or admissibility”. Defining the contours of both rulings, however, has been left to the case law of the Court. During its first decade of judicial activity, which, as stated elsewhere in this Digest,14 concerned primarily appeals against interlocutory rulings, the Appeals Chamber has been able to provide guidance on the scope of both types of decisions. The Appeals Chamber has first specified that the formula “decision with respect to” means that the operative part of the decision itself “must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility.”15 The requirement is thus one of a direct link between the issues of jurisdiction or admissibility with the ruling’s thema decidendi. The first instance Chamber’s decision must be one “specifically on the jurisdiction of the Court or the admissibility of the case”.16 The fact that a certain ruling is contained in a decision that also deals with jurisdiction or admissibility does not automatically render the former ruling appealable under article 82(1)(a). For instance, in Gbgabo, the Appeals Chamber refused to review a ruling rejecting a request for stay of proceedings contained in a broader decision rejecting a jurisdictional challenge by the Accused, stating that the mere inclusion of that ruling in a decision dealing with a jurisdictional matter could not open the route for a direct appeal of the ruling. Otherwise, “parties to the proceedings could unduly expand their right to appeal under article 82(1) (a) of the Statute by attaching other requests to jurisdictional challenges, which, if the Chamber ruled on them in the same document, would render them directly appealable”.17

14 15

16

17

See Preface, above. See, inter alia, Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 15. Ibid., para. 16; more recently, Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 43. Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 101.

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The Appeals Chamber has also rejected efforts to extend the scope of article 82(1)(a) appeals by focusing on the effects of the Impugned Decision. Instead, the Chamber has clarified that “it is the nature, and not the ultimate effect or implication of a decision, that determines whether an appeal falls under article 82(1)(a) of the Statute”.18 Thus, decisions that impact on, or relate to, questions of jurisdiction or admissibility, but do not rule specifically on those matters, fall outside the scope of article 82(1)(a) and may be appealable only via article 82(1)(d), if leave to appeal is granted by the Chamber who issued the ruling being challenged. An important question is the delimitation between proper jurisdictional matters and matters that relate to the merits of the case, including both evidentiary matters and issues of statutory interpretation.19 For instance, the Appeals Chamber declined to consider the proper interpretation of “organizational policy” within the terms of article 7(2)(a), considering this was not an issue of subject-matter jurisdiction.20 The Chamber also refused to scrutinise whether the Prosecution had adduced sufficient evidence to substantiate that requirement before a Pre-Trial Chamber, for the same reasons.21 However, in Ntaganda, the Appeals Chamber seemed to depart from this narrow approach: the Trial Chamber had rejected a jurisdictional challenge solely based on the argument that an armed group could not commit the crimes of rape and sexual slavery against children under the age of fifteen who were members of the same armed group, considering that this was a matter for determination at trial. The Appeals Chamber reversed the Trial Chamber’s decision, considering that, in contrast to the cases cited above, which involved both legal and factual issues, Ntaganda revolved around a single legal question, which, if resolved by the Trial 18

19

20

21

Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 17, inter alia. This has also been addressed in Chapter B, Jurisdiction and Admissibility, section I, Jurisdiction of the Court. See also the digested cases under Chapter B, Jurisdiction and Admissibility, section I(2)(2.1), Challenges to Jurisdiction Ratione Materiae. Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 36; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11-414 OA3 OA4, 24 May 2012, para. 30. Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 33; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11-414 OA3 OA4, 24 May 2012, para. 27.

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Chamber “could have resulted in the crimes charged falling outside the jurisdiction of the Court”. On the particulars of the case, whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery was “an essential legal issue which is jurisdictional in nature”.22 The Appeals Chamber remanded the challenge back to the Trial Chamber. It may be too early to tell whether the Ntaganda ruling implies a shift of direction in relation to jurisdictional challenges, and in particular whether questions pertaining to the statutory delimitation of crimes should now be dealt with in a preliminary fashion instead of being left for the trial. On the one hand, the ruling signals a more proactive approach to this particular category of legal issues; at the same time, the decision contains a number of caveats, including the complete absence of any evidentiary components in the decision-making process that the Appeals Chamber had to undertake in the case. A final issue to note in relation to jurisdiction and admissibility appeals, is that while the Appeals Chamber has adopted a strict approach as to what type of decisions fall within the ambit of appealable decisions under article 82(1)(a), it has also made clear that, at least in the context of admissibility appeals, raising errors pertaining to aspects of the decision other than the admissibility findings, chiefly procedural components, is permissible. According to the Chamber, an Appellant may bring an appeal against a decision on admissibility based solely on alleged procedural errors made by the first instance Chamber. The absence of any challenge to that Chamber’s findings on admissibility “does not per se render the appeal inadmissible”.23 The general principles pertaining to procedural errors remain applicable: the procedural error “must have materially affected the decision [on admissibility]” for it to lead to a reversal of that decision.24

b Appeals under Article 82(1)(b): Detention and Release As in the case of decisions on jurisdiction and admissibility, the Appeals Chamber has stated that it is the “nature and character” of the decision 22

23

24

Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/06-1225 OA2, 22 March 2016, paras. 36–40. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 47. Prosecutor v. Ruto, Kosgey & Sang, Judgment on the Admissibility Appeal, ICC-01/09-01/ 11-307 OA, 30 August 2011, para. 87. The case law on appealable errors is discussed below in this same chapter.

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and not its implications and effects that determines whether a direct appeal may be brought under article 82(1)(b).25 The fact that a decision may be linked to the detention of an accused person does not make that decision appealable under this provision. For instance, the Appeals Chamber has rejected an attempt to challenge a decision confirming charges via article 82(1)(b), stating that such a decision “neither grants nor denies release. The effect or implications of a decision confirming or denying the charges do not qualify or alter the characterisation of the decision”.26 Similarly, a decision denying stay of a release order pending determination of a request for leave to appeal a decision declining to confirm charges brought by the Prosecution was not analogised to a “decision granting release”. Rather, the decision was viewed as a “procedural decision that did not address the substance of whether release should be granted”.27 Who has standing to appeal a decision on release is a question that has also been approached in a strict manner: the Appeals Chamber rejected an appeal lodged by witnesses who were subject to detention in the Democratic Republic of the Congo and, pursuant to an agreement with the ICC, had been allowed to travel to The Hague for the purposes of testifying at trial, provided that they remained in custody. Once in the Netherlands, the witnesses applied for asylum. As a consequence, the Trial Chamber concluded that it could not return the witnesses to the DRC until the request was decided. The witnesses then applied for release before the Trial Chamber, which declined to rule on the basis that it lacked competence to decide on applications for release. The Appeals Chamber did not enter into the latter aspect of the ruling, but simply noted that the Detained Witnesses were not persons who were “being investigated or prosecuted” within the terms of article 82(1)(b) of the Statute, a formula that the Appeals Chamber construed narrowly as only applying to “persons under investigation or being prosecuted by the Court”.28 Thus, only persons subject to a court-issued warrant of arrest may have standing to appeal under article 82(1)(b). 25

26

27

28

See, inter alia, Prosecutor v. Mbarushimana, Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release, ICC-01/04-01/10-438 OA2, 21 September 2011, para. 17 (see fn. 46 for more references). Prosecutor v. Lubanga, Decision on Admissibility of Defence Appeal against Confirmation Decision under Article 82(1)(b), ICC-01/04-01/06-926 OA8, 13 June 2007, paras. 15–16. Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/ 10-483 OA3, 24 January 2012, para. 31. Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 37 (emphasis added).

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c

Appeals under Article 82(1)(d): Other Interlocutory Appeals with Leave of the Chamber The Rome Statute establishes a two-tier system for interlocutory appeals, granting a right to directly appeal against a numerus clausus of decisions (e.g., jurisdiction, admissibility, release), and making an appeal on any other rulings conditional on an authorisation by the same Chamber that issued the decision. On the face of article 82, there is no recourse against a first instance Chamber’s refusal to authorise an appeal against its own ruling. In the first years of the Court’s existence, Pre-Trial Chambers adopted an extremely narrow approach to the formula adopted by article 82(1)(d) for leave to be granted, effectively rendering interlocutory appeals under this provision highly exceptional.29 In 2006, the Prosecution sought extraordinary review of a Pre-Trial Chamber’s refusal to grant leave to appeal against one of its rulings. The Appeals Chamber, as discussed elsewhere in this book,30 rejected the request, but did provide some guidance by means of obiter dicta on the terms of article 82(1)(d). The Chamber, inter alia, reaffirmed that under the Statute it is the first instance Chamber that is vested with the power “to certify the existence of an appealable issue”, and that the Appeals Chamber lacked any competence to review a decision not stating a subject for appeal.31 The Chamber also provided definitions of some of the terms employed by article 82(1)(d): it defined an “issue” as “an identifiable subject or topic requiring a decision for its resolution, not merely a question over which there is a disagreement or conflicting opinion”.32 More than ten years after this ruling, Chambers of the ICC continue to reject applications for leave to appeal where the matters raised therein only express a “disagreement” with the decision, and fail to raise an appealable issue. The Appeals Chamber further clarified that an “issue”, within the terms of article 82(1)(d), “is constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination”.33 Thus, peripheral or 29

30

31

32

A study delivered in 2008 noted that within five years of the ICC’s operations, only once had leave to appeal been granted in full by a Pre-Trial Chamber. See War Crimes Research Office (Washington College of Law), Interlocutory Appellate Review of Early Decisions by the International Criminal Court, 2008, p. 2, available at: www.wcl.american.edu/war crimes/documents/01-2008InterlocutoryAppeals.pdf, last accessed 11 September 2017. See commentary under Chapter A, Interpretation and Structural Issues, section (b), Applicable Law in Order of Applicability. Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, paras. 30, 34. Ibid., para. 9. 33 Ibid.

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marginal matters which fail to meet this test should not be certified for appeal. Other than this, there are no specific requirements as to the type of questions that may be brought for certification: an “issue” may be “legal or factual or a mixed one”.34 The remaining limbs of article 82(1)(d) were also succinctly explained. Perhaps worthy of note are the Appeals Chamber’s clarification that the term “proceedings” within article 82(1)(d) “is not confined to the proceedings at hand but extends to proceedings prior and subsequent thereto”, and that when determining whether an issue may affect the outcome of trial, a first instance Chamber must embark on a forecast of the consequences that a given issue being wrongly decided may bring about on the outcome of a case.35 Finally, the requirement that immediate resolution of the issue by the Appeals Chamber may materially advance proceedings was also explained: the issue must be such “that its immediate resolution by the Appeals Chamber will settle the matter posing for decision through its authoritative determination, ridding thereby the judicial process of possible mistakes that might taint the fairness of the proceedings or mar the outcome of trial”.36 Two important elements follow from this. First, early corrective intervention by the Appeals Chamber must be seen as required in order to prevent harm to the proceedings. Secondly, it is implied that such a remedial action can be delivered only by the Appeals Chamber through an interlocutory appeal – if there is still recourse before the first instance Chamber, or if the matter can be dealt with as part of a final appeal then this limb of article 82(1)(d) should be deemed to have not been satisfied.

d Appeals under Article 82(4): Reparations Order At the time of writing this commentary, the Appeals Chamber has been seized with only one final appeal against a reparations order (in the Lubanga case). It has, however, used the opportunity to provide guidance on how appeals of this type (unique to the ICC) should be conducted. Three salient features of this category of appeals can be identified: first, article 82(4) is lex specialis vis-à-vis other provisions governing appeals, notably article 82(1)(d); accordingly, an “order for reparations” may only be appealed under article 82(4).37 Secondly, the applicable standard of review for errors raised in appeals against reparations orders are the same 34 37

Ibid. 35 Ibid., paras 12–13. 36 Ibid., para. 14. Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/062953 A A2 A3 OA21, 14 December 2012, para. 49.

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as applicable to “all appeals raised before the Appeals Chamber”.38 Finally, article 82(4) entails a departure from the standing system applicable to other appeals, notably in the sense that victims are no longer mere “participants” in the proceedings who are only entitled to present views and concerns under article 68(3), but proper parties, with standing to bring appeals against reparation orders. The right to appeal “lies with the victims, not with the legal representatives of victims”, although under article 82(4) the former may appeal only “with the assistance of a legal representative”.39

III Grounds of Appeal, Variation of Grounds and Standards of Review a Grounds of Appeal Article 81(1)(a) establishes three main appealable errors: procedural errors, errors of fact and errors of law. Article 81(1)(b) adds a fourth, and broader, error which may only be invoked by the convicted person, or the Prosecutor on his or her behalf : “[a]ny other ground that affects the fairness or reliability of the proceedings or decision”. While these errors are included in the provision dealing with final appeals, the Appeals Chamber has held, since its very first judgment, that they may be imported into the context of interlocutory appeals, considering that the governing provision (article 82) is silent on the matter.40 In practice, interlocutory appeals have consistently required the appealing party to demonstrate the existence of an error warranting reversal, be it procedural, legal, factual or mixed, as would happen in the context of final appeals. Indeed, from the early years of its existence, and consistent with its approach that appeals are corrective in nature,41 the Appeals Chamber has made clear that it will not review the findings of first instance Chambers de novo, and instead “will intervene [. . .] only where clear errors of law, fact or procedure are shown to exist and vitiate the impugned decision”.42 Thus, an Appellant “is obliged not only to set 38

39

40

41 42

Prosecutor v. Lubanga, Judgment on the Principles of Reparations, ICC-01/04-01/063219 A A2 A3, 3 March 2015, para. 40. Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/062953 A A2 A3 OA21, 14 December 2012, para. 67. Situation in the DRC, Judgment on Ntganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 32–35. See above, section I, Nature and Scope of Appellate Litigation. See, inter alia, Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 62.

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out the alleged error, but also to indicate, with sufficient precision, how this error would have materially affected the impugned decision”.43 i Procedural Errors The boundaries of this category of errors are not yet entirely precise in the practice of the ICC, especially in regard to the distinction between procedural and legal errors. The Statute itself does not offer a clear demarcation between those categories, nor does comparative practice show a uniform picture. For instance, while some national jurisdictions treat all errors related to procedural matters (including erroneous interpretation of procedural provisions and abuses of discretion) as procedural errors (error in procedendo) and all errors concerning the interpretation and application of substantive law as legal errors (error in iudicando),44 international criminal tribunals have not followed this route and instead approached all procedural errors as errors of law.45 The Appeals Chamber’s jurisprudence has not shed light on the distinction between both categories of errors. The Chamber has held that procedural errors are errors which occur in proceedings “leading up to an impugned decision”, without further developing the concept.46 It has been suggested that, since the Appeals Chamber, as its ICTY and ICTR equivalents, approaches the lack of reasoning in an Impugned Decision as an error of law, the distinction could lie in whether the error or errors “relate to the proceedings leading up to the Impugned Decision or whether they concern the Impugned Decision itself”.47 Notably, a procedural error does not require a close temporal link to the Impugned Decision. The Appeals Chamber has clarified this in the event of an appeal against an article 74 decision, an allegation of 43

44 45

46

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Prosecutor v. Gbagbo, Judgment on Jurisdiction and Stay of Proceedings, ICC-02/11-01/ 11-321 OA2, 12 December 2012, para. 44. See de la Rúa, F., El recurso de casación (V. P. de Zavalia: Buenos Aires, 1968), p. 99. See Staker, C. and Eckelmans, F., “Article 81: Appeal against Decision of Acquittal or Conviction or against Sentence”, in Triffterer and Ambos (eds.), Commentary to the Rome Statute of the International Criminal Court, 3rd edn (C. H. Beck/Hart/Nomos: Munich/ Oxford/Baden-Baden, 2016), p. 1929. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 20; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/ 04-02/12-271-Corr A, 7 April 2015, para. 21. See Staker, C. and Eckelmans, F., “Article 81: Appeal against Decision of Acquittal or Conviction or against Sentence”, in Triffterer and Ambos (eds.), Commentary to the Rome Statute of the International Criminal Court, 3rd edn (C. H. Beck/Hart/Nomos: Munich/ Oxford/Baden-Baden, 2016), p. 1929.

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a procedural error may be based on events that occurred during the trial and/or pre-trial proceedings.48 However, the error must have “materially affected the decision” in order to lead to a reversal.49 Thus, procedural defects that are essentially inconsequential vis-à-vis the impugned decision, such as a technical error that has no bearing on the outcome of the trial, will be treated as harmless errors. ii Errors of Fact The Appeals Chamber has held that a Pre-Trial or Trial Chamber commits errors of fact if that Chamber “misappreciates facts, disregards relevant facts or takes into account facts extraneous to the sub judice issues”.50 In practice, and as already advanced above in relation to reasoning errors where categories are blurred, errors related to evidentiary standards, like the “beyond reasonable doubt” standard and the in dubio pro reo principle, are also treated as errors of fact, despite their clear legal and procedural aspects. For instance, in the Ngudjolo final appeal, the Prosecution argued that the Trial Chamber had misinterpreted the facts beyond a reasonable doubt standard and effectively required “proof of the relevant facts to a degree of absolute certainty (i.e., beyond any doubt)”.51 The Prosecution framed this ground of appeal as an error of law, since it involved the flawed interpretation of a key legal standard enshrined in the Rome Statute.52 However, the Appeals Chamber concluded that to the extent that the alleged errors were based on challenges to the Trial Chamber’s factual findings, the ground of appeal had to be assessed against the standard of review for alleged factual errors, “since in order to analyse the Prosecutor’s arguments, the 48

49

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51

52

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 20; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/ 04-02/12-271-Corr A, 7 April 2015, para. 21. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 87; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 85; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 44. See, inter alia, Prosecutor v. Mbarushimana, Judgment on Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 16; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 45. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271-Corr A, 7 April 2015, para. 42. Ibid., para. 44.

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Appeals Chamber is required to review the Trial Chamber’s factual findings, and it is therefore appropriate to apply the standard of review for alleged factual errors.”53 Strictly speaking, the ground of appeal involved so-called “mixed issues” of fact and law, in the sense that it revolved around both the proper interpretation of a legal standard and the ensuing assessment of the evidence discussed at trial (and consequently, the soundness of the Trial Chamber’s factual findings, as the Appeals Chamber noted). However, neither the ICTY or ICTR nor the ICC Appeals Chamber have recognised the classification of mixed questions of law and fact, which are accepted in some common law jurisdictions. Instead, they have approached this type of issue either as errors of fact or errors of law, depending on the circumstances.54 The burden on the party alleging an error of fact is to “set out in particular why the Trial Chamber’s findings were unreasonable. In that respect, repetitions of submissions made before the Trial Chamber as to how the evidence should be assessed are insufficient if such submissions merely put forward a different interpretation of the evidence”.55 iii Errors of Law No strict definition of errors of law has been provided yet by the Appeals Chamber. It has, however, distinguished errors related to the exercise of discretionary trial management powers (which should ordinarily be captured by the category of procedural errors) from errors of law, which involve “an erroneous interpretation of the law”.56 The burden on the party alleging an error of law is first to “substantiate that the [first instance] Chamber’s interpretation of the law was incorrect”. Secondly, the Appellant “must substantiate that the decision under review would have been substantially different, had it not been for the error”.57

53 54

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Ibid., paras. 43–44. See Drumbl, M. and Gallant, K., “Appeals in the Ad Hoc International Criminal Tribunals: Structure, Procedure, and Recent Cases”, Journal of Appellate Practice and Process, Vol. 3, Issue 2 (2001), p. 620. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 33. Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 29. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 31, see also para. 18.

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b Variation of Grounds of Appeal before the Appeals Chamber: Regulation 61 The requirements and procedure for variations of ground of appeal are set out in regulation 61 of the RoC. The Appeals Chamber has clarified that the term “variation” in that provision must be interpreted in the same manner as the ICTY and ICTR Appeals Chambers have interpreted the term in their equivalent provisions, namely, as including “both ‘new or amended’ grounds of appeal, provided that good cause is shown why ‘those grounds were not included (or were not correctly phrased)’”.58 The party seeking variation must make a request “as soon as the reasons warranting [variation] become known”. The decision to grant or deny variation is a discretionary one by the Appeals Chamber.59 c Standards of Review i Standard of Review in Discretionary Decisions Consistent with its conception of appellate proceedings as a corrective process, the Appeals Chamber has clarified that it will not substitute its own discretion for that of the first instance Chamber, but will intervene only if the exercise of discretion was vitiated by a legal error, a factual error or a procedural error (cases of so-called “abuse of discretion” appear to fall within this rubric), and only if the error materially affects the Impugned Decision.60 When faced with an alleged abuse of discretion, the Appeals Chamber will examine whether the first instance Chamber gave weight “to extraneous or irrelevant considerations, [or] failed to give weight or sufficient weight to relevant considerations”.61

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Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/0401/06-3057-Corr A5 A6, 14 January 2014, para. 7 (emphasis added). Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/0401/06-3057-Corr A5 A6, 14 January 2014, paras. 10–11. See, inter alia, Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 34, citing Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 80; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/ 09-02/11-274 OA, 30 August 2011, para. 87. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 81.

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ii Standard of Review for Errors of Fact Errors of fact are not reviewed de novo by the Appeals Chamber, which, like its ad hoc Tribunals equivalents, will not intervene unless a “clear error” has been articulated by the Appellant, in the sense that the first instance Chamber “misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts”.62 In relation to the “misappreciation of the facts”, the Appeals Chamber will interfere only where “it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it”.63 In Ngudjolo, the Appeals Chamber appears to have espoused the standard of reasonableness that the ICTY Appeals Chamber had developed for factual errors, according to which appellate intervention would be warranted when “no reasonable trier of fact could have reached the original decision”.64 It also noted with approval the manner in which the ICTY Appeals Chamber articulated the standard of reasonableness for factual findings underlying an acquittal appealed by the Prosecution: while a convicted person must show that the factual errors create a reasonable doubt as to his guilt, the Prosecution “must show that, when account is taken of the errors of fact committed by the trial chamber, all reasonable doubt of the accused’s guilt has been eliminated”.65 The Appeals Chamber will reverse the acquittal only “if it finds that no reasonable trier of fact could have failed to make the particular finding of fact beyond reasonable doubt and the acquittal relied on the absence of this finding”.66 iii Standard of Review in Errors of Law There has been some terminological confusion as to the applicable standard of review for errors of law. In the Banda & Jerbo case, the Prosecution argued that, consistent with the approach of appellate bodies of other international

62

63 64

65 66

Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 21. Ibid. See, inter alia, Prosecutor v. Stanišić & Simatović, IT-03-69-A, Judgment, 9 December 2015, para. 18. Ibid., para. 20. Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271-Corr A, 7 April 2015, para. 26, citing the ICTY, Prosecutor v. Blagojević & Jokić, IT-02-60-A, Judgment, 9 May 2007, para. 9.

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criminal tribunals,67 the Appeals Chamber should review the Trial Chamber’s legal findings “de novo”, in the sense of plenary review with no deference made to the Trial Chamber.68 The Appeals Chamber appears to have considered this plea as an invitation to broaden the scope of its appellate scrutiny beyond its narrow corrective nature by stating that it had “repeatedly held that its review is corrective in nature and not de novo”.69 In substance, however, there was no disagreement: the Appeals Chamber confirmed that on questions of law, it would not defer to the Trial Chamber’s interpretation of the law; rather, the Appeals Chamber “will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law”.70 If it finds an error, “the Appeals Chamber will only intervene if the error materially affected the impugned decision”.71 In this sense, the Appeals Chamber’s approach to errors of law raised on appeal is consistent with that adopted by the ad hoc tribunals.72 iv Standard of Review in Procedural Errors The key ruling from the Appeals Chamber to date is the following one made in the Lubanga final appeal: [w]ith respect to procedural errors, the substantiation required will also depend on the precise type of error alleged. To the extent that the Appellant is arguing that a mandatory procedural provision was violated, this has to be sufficiently substantiated both in fact and in law. To the extent that a discretionary decision of the Trial Chamber is at issue, the arguments of the Appellant must be tailored to the specific standard of review for such decisions. Further, when alleging such an error, the Appellant must substantiate specifically how the error materially affected the impugned decision.73 67

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70 72

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See Boas, G., Jackson, J., Roche, B. and Don Taylor III, B., “Appeals, Reviews and Reconsideration”, in Sluiter, Friman, Linton, Vasiliev and Zappalá (eds.), International Criminal Procedure: Principles and Rules (Oxford University Press: Oxford, 2013), p. 944. Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 19. Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 20, citing Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10514 OA4, 30 May 2012, para. 15. Ibid. 71 Ibid. See, inter alia, ICTY, Prosecutor v. Dragomir Milošević, IT-98-29/1-A, Judgment, 12 November 2009, paras. 13–14. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 32.

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This means that the applicable standard of review may vary not only depending on the type of procedural error invoked, whether it is an infringement of a mandatory provision or discretion wrongly exercised, but also the manner in which it is argued that the first instance Chamber made that error. If the error raised involves the defective application of a mandatory procedural provision (e.g., the duty of the Pre-Trial Chamber to periodically review its ruling on release or detention under article 60(3)), then the Appeals Chamber will examine both the factual and legal components of the error alleged. It should be assumed that if the alleged defective application of the procedural provision rests solely on an erroneous legal construction of that provision by the first instance Chamber, the Appeals Chamber will effectively approach the error as a legal one and freely review the challenged finding. Similarly, a defective procedural ruling based on a flawed factual assessment – such as a Pre-Trial Chamber’s erroneous refusal to issue a warrant arrest under article 58(1) due to a defective assessment of the facts advanced by the Prosecution to support the conclusion that the “reasonable grounds” requirement has been met – would appear to be more akin to a factual error, and may lead to the Appeals Chamber showing deference to the Pre-Trial Chamber’s findings.74 Finally, if the error involves the exercise of discretion by the first instance Chamber, then the Appeals Chamber will verify whether the first instance Chamber exercised its discretion judiciously or whether, on the contrary, it abused its discretion in its procedural ruling.75 In both cases, that is, where there is a defective application of a mandatory procedural provision or an erroneous exercise of discretion, the burden is on the Appellant to show how the alleged procedural error materially affected the impugned decision.

IV Some Salient Aspects of the Procedure on Appeal a Parties to an Appeal The Appeals Chamber has resisted attempts to broaden the circle of persons or entities with standing to appeal decisions under 74

75

In a comparable situation, the Appeals Chamber has concluded that appraisal of the evidence relevant to continued detention “lies, in the first place, with the Pre-Trial Chamber” and that, therefore, it will defer to that Chamber’s factual conclusions; see Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC01/04-01/07-572 OA4, 9 June 2008, para. 25; Prosecutor v. Bemba, Judgment on Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 52. See subsection (c)(i), Standard of Review in Discretionary Decisions, above.

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article 82(1)(a) and (b) – the only area where some additional clarification may have been required, since the terms of article 81 are plainly clear as to appeals being circumscribed to the Prosecutor and the convicted person. In particular, the Appeals Chamber rejected the possibility of States or Detained Witnesses being able to bring appeals under article 82, outside the confined exception of the concerned State being able to challenge rulings on jurisdiction or admissibility. While the Chamber’s decisions are confined primarily to article 82(1)(a) and, to a lesser degree, (b) rulings, its rationale may be applicable to the entirety of article 82(1). In analysing the admissibility of an appeal brought by Detained Witnesses, the Chamber first noted the clear language of article 82(1) (a) in stating that “[e]ither party may appeal [. . .]”. It fell short, however, of specifying who qualifies as a “party” for the purposes of that provision, and clarifying whether the expression “either party” may be interpreted in some circumstances to go beyond the Prosecution and the Defence. Rather, the Chamber limited its analysis to first determining whether the decisions being challenged could fall within the purview of article 82(1)(a) and (b) – which it concluded they did not – and whether the Detained Witnesses could qualify as “parties” in the instant proceedings (which they could not).76 In another ruling, the Appeals Chamber concluded that the Trial Chamber had acted ultra vires the Statute when granting leave to appeal to the Netherlands against a decision concerning a request for asylum lodged by a Detained Witness, noting the numerus clausus of decisions that are enumerated as appealable ones under articles 81 and 82 and the ensuing limitation on the right to bring interlocutory appeals.77 Affected States have been allowed to bring appeals against jurisdiction and admissibility rulings. Worthy of note, however, is that the Appeals Chamber has not to date addressed directly the issue of standing. In the Kenya situation, the Appeals Chamber implicitly held that Kenya had standing to appeal an admissibility decision: “[a]rticle 82(1)(a) of the Statute must be read in conjunction with articles 18 and 19 of the Statute. Article 18(4) of the Statute provides that the State concerned or the Prosecutor may appeal to the Appeals Chamber against a preliminary ruling of the Pre-Trial Chamber regarding admissibility in accordance 76

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Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, paras. 27 et seq. Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC01/04-01/06 OA19, 26 August 2011, paras. 7–8.

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with article 82 of the Statute.” Standing would thus appear to emerge from the combined effect of those provisions, and, in particular, the explicit right to appeal conferred by article 18 against early rulings on admissibility.78 Finally, the Appeals Chamber has clarified that in appeals against reparation orders only those who are afforded standing under article 82(4) (which includes “[a] legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75”) may participate. The Prosecutor is not a party to reparations and therefore is not permitted to respond to appeals filed by the parties.79

b Oral Hearings before the Appeals Chamber Rule 156(3) of the Rules provides that in interlocutory appeals “[t]he appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing”. In relation to interlocutory appeals, the Appeals Chamber re-affirmed its discretion to depart from the principle of written proceedings in interlocutory appeals. It also articulated the standard that it would apply for that determination: the Chamber “must be furnished with cogent reasons that demonstrate why an oral hearing in lieu of, or in addition to, written submissions is necessary”.80 The Chamber has in particular rejected requests for oral hearings on the basis of the detrimental effect that they would have on the expeditious conduct of the appeal.81 It also noted that the fact that an appeal raises complex and novel questions does not, in and of itself, justify an oral

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Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 16. Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/062953 A A2 A3 OA21, 14 December 2012, paras. 65, 74. Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/ 09-01/11-271 OA, 17 August 2011, para. 10; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 10; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 10. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 27; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 13; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 13; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 12.

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hearing,82 and further, that if the Appeals Chamber has questions and concerns, it can always avail itself of regulation 28 and ask for further submissions.83 It could have been assumed that in final appeals (i.e., appeals brought under article 81), an a contrario reading of rule 156(3) would have led the Appeals Chamber to the inverse principle, namely, a hearing would be the default position and written proceedings would be, at most, an exception. This was, after all, the regime in the ad hoc tribunals, which not only regularly heard oral hearings in final appeals, but also established procedures for their effective preparation, such as the appointment of a pre-appeal judge in advance of the hearing.84 However, this did not happen: the Appeals Chamber ruled against any principle of oral hearings in final appeals, considering the decision to hold a hearing to be a discretionary one, to be determined on a case-by-case basis, thereby departing from the appellate practice of the ad hoc tribunals on this point.85 A decision to hold a hearing “should be based primarily on the potential utility of an oral hearing, namely, whether it would assist the Appeals Chamber in clarifying and resolving the issues raised on appeal”.86 Against this reasoning, it could be argued that appeals in international cases frequently involve not only complex legal and factual issues, but also a very lengthy and dense record, and in these circumstances, holding a hearing and putting questions directly to the parties that litigated the case at trial – and therefore have a detailed knowledge of it – seems to be a wise course of action to follow, at least as a general principle. Despite what could be perceived as a lack of enthusiasm for oral hearings, the Appeals Chamber in its prior composition held such 82

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Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/ 09-01/11-271 OA, 17 August 2011, para. 11; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 11. Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/ 09-01/11-271 OA, 17 August 2011, para. 12; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 12. See Boas, G., Jackson, J., Roche, B. and Don Taylor III, B., “Appeals, Reviews and Reconsideration”, in Sluiter, Friman, Linton, Vasiliev and Zappalá (eds.), International Criminal Procedure. Principles and Rules (Oxford University Press: Oxford, 2013), pp. 947–949. Prosecutor v. Ngudjolo, Scheduling Order for a Hearing before the Appeals Chamber, ICC-01/04-02/12-199 A, 18 September 2014, para. 13. Ibid.

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hearings in its first two final appeals (Lubanga and Ngudjolo). Both hearings were compact,87 and no status conferences were held prior to them. At the time of writing this chapter, it is still to be seen whether the new Appeals Chamber will approach oral hearings in final appeals differently from its predecessor.

V Remedies on Appeal The Appeals Chamber has produced a number of decisions regulating different aspects of its remedial authority to date. The Chamber first clarified that the only remedies that it is authorised to grant “are listed in article 83 of the Statute and rules 153 and 158 of the Rules of Procedure and Evidence”.88 This means that the Statute has created a numerus clausus system, and that requests for remedies that are not provided for in the Court’s basic documents or flow from its limited original jurisdiction will not be accepted.89 In addition, the Appellant will need not only to set out the alleged error, but also “to indicate, with sufficient precision, how this error would have materially affected the impugned decision”.90 The Appeals Chamber will circumscribe its remedial action to those matters that strictly arise from the Impugned Decision and that warrant determination; it will not render advisory opinions on issues that are not properly before it,91 nor will it enter findings where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”.92 Finally, the errors alleged must have affected the decision under appeal, and not previous decisions, even if they are related to the one being challenged.93 87

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See, e.g., Prosecutor v. Lubanga, Scheduling Order and Decision in Relation to the Conduct of the Hearing before the Appeals Chamber, ICC-01/04-01/06-3083 A4 A5 A6, 30 April 2014. Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. Ibid. See, inter alia, Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 48; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, paras. 102, 106, 133–134; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, para. 69. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 38. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 110. Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/082151-Red OA10, 5 March 2012, para. 29.

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As to the available remedies on appeal, the Appeals Chamber has only been able to provide guidance in relation to interlocutory appeals, since the only final appeals brought before it at the time of writing this chapter were all rejected and, thus, no relief was granted. The Chamber first determined that article 83(2) does not apply to interlocutory appeals, since the provision only covers appeals brought under article 81 (appeals against acquittals, convictions and/or sentences).94 In practice, there are no significant differences due to the fact that rule 158(1) replicates the remedies envisioned by article 83(2); in article 82 appeals, the Appeals Chamber “may confirm, reverse or amend the decision appealed”.95 The main difference is that the authority to order a new trial under article 83(2)(b) is clearly inapplicable to interlocutory appeals. Having said this, the Appeals Chamber has the ability to instruct new pre-trial proceedings if it considers that sending the matter back to a Pre-Trial Chamber is the appropriate remedy. This is because despite the lack of specific language to that effect in rule 158(1), the Appeals Chamber has already concluded in its first appeal that it may remand a matter to a Pre-Trial Chamber for a new determination when it considers it warranted.96 It must be noted, however, that the Appeals Chamber did not provide a clear basis for the authority to remand in that context. For instance, it did not clarify whether it considered that a particular remedy is to be implied in rule 158(1) or whether the basis for the conclusion lay in the Chamber’s inherent authority. One judge, dissenting, even called into question the authority of the Appeals Chamber to remand matters in interlocutory appeals.97 However, this has not operated as an obstacle for the Appeals Chamber in consolidating this practice as it has frequently remanded matters to the first instance Chamber, in particular, for applications of the corrected interpretation of the law to the facts of the case.98 94

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Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, paras. 13, 15. Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 105, 109. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 116 (in regard to article 82(1)(a)). Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 91–92. Prosecutor v. Katanga & Ngudjolo, Partly Dissenting Opinion of Judge Pikis in the Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, paras. 44–45. Diss. Op. See Staker, C. and Eckelmans, F., “Article 83: Proceedings on Appeal”, in Triffterer and Ambos (eds.), Commentary to the Rome Statute of the International Criminal Court, 3rd

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VI Additional Evidence on Appeal: Regulation 62 The admission and evaluation of additional evidence on appeal has proven to be a challenge at the international level, particularly in the ICTY experience, where late access to voluminous archival collections between the time of trial and the appeal has had a big impact in final appeals, both in terms of case management and outcome.99 So far, the ICC Appeals Chamber has not had to deal with a comparable situation. Rather, with two completed final appeals, it has been faced with confined requests for the admission of additional evidence, first in the Lubanga case,100 and now in the Bemba et al. appeal.101 It has also had to deal with requests for additional evidence in some interlocutory appeals.102 However, it is in the Lubanga Judgment that the Appeals Chamber

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edn (C. H. Beck/Hart/Nomos: Munich/Oxford/Baden-Baden, 2016), p. 1971 (more specifically, as per fn. 34, examples of the Appeals Chamber deciding the matter itself instead of remanding include Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 82; Prosecutor v. Lubanga, Judgment on the Release of Lubanga due to the Stay of Proceedings, ICC-01/04-01/06-2583 OA17, 8 October 2010, para. 27; and Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 112). For instance, in the ICTY Kupreškić et al. appeal, involving five appellants, “a total of 26 motions were filed before the Appeals Chamber by the Defendants pursuant to Rule 115 of the Rules, seeking to admit a wide variety of additional evidence, including the evidence of new witnesses, documents obtained from Croatian State archives and other sources, as well as video-recordings [. . .] As a result of the applications, seven Appeals Chamber decisions were issued, an oral hearing was held, and an evidentiary hearing conducted involving the testimony of live witnesses”; see Prosecutor v. Kupreškić et al., IT-95-16-A, Appeals Judgment, 23 October 2001, para. 42. See Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/ 04-01/06-3121-Red A5, 1 December 2014, pp. 16–40. Prosecutor v. Bemba et al., Directions and Decision regarding Mr Arido’s Applications for Additional Evidence Filed Pursuant to Regulation 62 of the Regulations of the Court, ICC-01/05-01/13-2160 A A2 A3 A4 A5, 18 May 2017; Prosecutor v. Bemba et al., Directions regarding Mr Bemba’s Application for Additional Evidence Filed Pursuant to Regulation 62 of the Regulations of the Court, ICC-01/05-01/13-2176 A A2 A3 A4 A5, 18 July 2017; Prosecutor v. Bemba et al., Decision on Mr Arido’s Application for Admission of Two Hearing Transcripts as Additional Evidence, ICC-01/05-01/132206 A A2 A3 A4 A5, 25 August 2017. Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/ 11-307 OA, 30 August 2011; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962-Corr OA3, 19 October 2010; Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/1101/11-565 OA6, 24 July 2014.

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truly delved into the contours of additional evidence on appeal, and the scope and requirements of the governing provision, regulation 62 of the RoC, which, in comparison with ICTY rule 115,103 appears to be a less developed normative tool, requiring further interpretation. The first issue concerns the timing for a determination of admissibility of any additional evidence filed with the Appeals Chamber. Consistent with the authority afforded to Chambers of the Court by article 69(4),104 regulation 62 vests the Appeals Chamber with discretion to decide on admissibility at the time of submission of the evidence, or to combine its determination on admissibility with the overall determination of the other issues on appeal. Both options are open to the Appeals Chamber.105 Notably, in the few decisions issued to date, the Appeals Chamber has preferred to rule on the admissibility of the proposed additional evidence jointly with the other issues raised in the appeals.106 The Chamber seems to have considered a joint determination to be a more efficient procedure in the specific circumstances of those appeals, which admittedly did not involve large amounts of additional evidence being filed. It may be that 103

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ICTY, Rules of Procedure and Evidence (as amended 8 July 2015), in force 14 March 1994, UN Doc IT/32/Rev.50. The Appeals Chamber has defined the discretion afforded by article 69(4) in the following terms: “a Trial Chamber may rule on the relevance and/or admissibility of each item of evidence when it is submitted, and then determine the weight to be attached to the evidence at the end of the trial. In that case, an item will be admitted into evidence only if the Chamber rules that it is relevant and/or admissible in terms of article 69(4), taking into account ‘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’. Alternatively, the Chamber may defer its consideration of these criteria until the end of the proceedings, making it part of its assessment of the evidence when it is evaluating the guilt or innocence of the accused person.” See Prosecutor v. Bemba, Judgment on the Appeals against the Decision on the Admission of Evidence, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011, para. 37 (see digested cases under Chapter J, Conduct of Trials, section I(1) (1.2)(c), The Chamber’s Discretion and Limitations to the Admission of Evidence). Prosecutor v. Lubanga, Directions under Regulation 62, ICC-01/04-01/06-2958 A5 A6, 21 December 2012, paras. 6–7. See ibid., para. 8; Prosecutor v. Bemba et al., Directions and Decision regarding Mr Arido’s Applications for Additional Evidence Filed Pursuant to Regulation 62 of the Regulations of the Court, ICC-01/05-01/13-2160 A A2 A3 A4 A5, 18 May 2017, para. 11; Prosecutor v. Bemba et al., Directions regarding Mr Bemba’s Application for Additional Evidence Filed Pursuant to Regulation 62 of the Regulations of the Court, ICC-01/05-01/ 13-2176 A A2 A3 A4 A5, 18 July 2017, para. 4. However, in a recent decision, the Appeals Chamber rejected a request to adduce additional evidence on appeal on the basis that the evidence in question “could not have led the Trial Chamber to enter a different verdict, in whole or in part” in respect of the Appellant. See Prosecutor v. Bemba et al., Decision on Mr Arido’s Application for Admission of Two Hearing Transcripts as Additional Evidence, ICC-01/05-01/13-2206 A2 A3 A4 A5, 25 August 2017, para. 16.

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the Appeals Chamber opts for a different approach if faced with requests involving the admission of voluminous amounts of evidentiary material. A second, and most important, issue, is the requirements for the admission of additional evidence on appeal. In Lubanga, the Appeals Chamber provided further clarification as to the contours of regulation 62: [a]dditional evidence on an appeal pursuant to article 81(1) of the Statute is admissible if: (i) the Appeals Chamber is convinced of the reasons why such evidence was not presented at trial, including whether it could have been presented with the exercise of due diligence; and (ii) it is demonstrated that the additional evidence, if it had been presented before the Trial Chamber, could have led the Trial Chamber to enter a different verdict, in whole or in part. It is within the Appeals Chamber’s discretion to admit additional evidence on appeal despite a negative finding on one or more of these criteria, if there are compelling reasons for doing so.

As the Appeals Chamber has acknowledged, it has sought guidance from the case law of the ad hoc tribunals in light of the similarities between the standards applied by those tribunals for the admission of additional evidence on appeal and the criteria developed on the basis of the Court’s legal texts.107 The result is a restrictive standard for admission based on the corrective nature of the appellate process and the principle that the assessment of evidence pertaining to the facts of the case is primarily the responsibility of the Trial Chamber which is “much better positioned to assess a piece of evidence in light of all the other evidence presented at trial than the Appeals Chamber”.108 One important issue concerns the scope of the additional evidence filed on appeal. In Lubanga, the Prosecution unsuccessfully sought to limit that evidence to new material relating to the guilt or innocence of the convicted person, and not to other matters, chiefly the procedural fairness of the trial.109 The Appeals Chamber also noted the inter-relation between additional evidence filed on appeal and evidence supporting revision under article 84, and ruled that: additional evidence brought by a convicted person on appeal that would be considered in revision proceedings should, as a general matter, be admissible on appeal. In this respect, it would be contrary to the interests 107

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Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 63. Ibid., paras. 56–57. Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/0401/06-3121-Red A5, 1 December 2014, para. 60.

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c on duct of a pp e al s of justice and the proper and expeditious administration of judicial proceedings to establish a more stringent standard for the admission of evidence on appeal than that which can be considered in revision proceedings. This is because to do so could lead to a person’s conviction first being confirmed on appeal because the evidence could not be considered, only then to be overturned in revision proceedings.110

Finally, in relation to rebuttal evidence, the Appeals Chamber has merely noted that under regulation 62(2)(a) of the RoC, the responding party may “adduce any evidence in response only after a decision on the admissibility of [the proposed additional] evidence has been issued”, and that the provision “is silent as to any standard for its admission”.111 However, the Appeals Chamber did not elaborate further, and merely stated that “evidence submitted in response, that is, the ‘rebuttal evidence’, need only be considered if the underlying proposed additional evidence is admitted into evidence”.112 Precisely because the evidence adduced in Lubanga by the Defence was not admitted into evidence, for various reasons, the Appeals Chamber did not touch one of the most sensitive aspects of additional evidence on appeal; chiefly, how the Appeals Chamber should test the evidence once it is admitted and what standard should apply. In its response to the Defence appeal in Lubanga, the Prosecution invited the Appeals Chamber to follow the model adopted by the ICTY Appeals Chamber in the Kupreškić case, according to which the Appeals Chamber can: (i) test the evidence itself to determine veracity by holding an evidentiary hearing; or (ii) order the case to be remitted to a new Trial Chamber to hear the new evidence; or (iii) admit all items of conflicting evidence without holding a hearing, without prejudice to the determination of the weight to be attached to the evidence.113 In the same document, the Prosecution also requested the Appeals Chamber not to follow the test subsequently developed by the ICTY Appeals Chamber in the Blaškić case, whereby the Appeals Chamber must determine on the basis of the evidence on the record and any additional evidence whether “it is itself convinced beyond a reasonable doubt as to the finding of guilt”.114 110 113

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Ibid., para. 61. 111 Ibid., para. 64. 112 Ibid. Prosecutor v. Lubanga, Prosecution’s Response to Thomas Lubanga’s Appeal against Trial Chamber I’s Judgment Pursuant to Article 74, ICC-01/04-01/06-2969-Red, 18 February 2013, para. 94, citing Prosecutor v. Kupreškić et al., IT-95-16-A, Appeal Judgment, 23 October 2001, paras. 70–71. Ibid., para 94, fn. 143, citing Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, para. 24.

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The Prosecution in particular noted that the standard has been very controversial and its compatibility with the corrective nature of the appeals process and the limited function of the Appeals Chamber is doubtful.115 It remains to be seen how the ICC Appeals Chamber approaches this complex issue if it arises in any future appeal.

VII Suspensive Effect Article 82(3) provides that an appeal “shall not have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence”. The Appeals Chamber has been able to provide some important guidelines as to the scope of suspensive effect as well as its procedural aspects. First, the Chamber has clarified that suspensive effect may be ordered in relation to an appeal brought under article 81(3)(c)(ii) (a decision by a Trial Chamber on whether to maintain the detention of an acquitted person, at the Prosecutor’s request), relying on the combined language of rules 154(1) and 156.116 It has also explained that a decision as to whether or not to grant suspensive effect “is always discretionary and depends on the individual circumstances of the case”, and that “suspensive effect is not automatic”.117 A request for suspensive effect must be made “in the appeal together with the reasons in support of the request, as prescribed in rule 156(5) of the Rules of Procedure and Evidence”.118 This is because of the “urgent 115

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Ibid., para. 95, fn. 143, citing Partial Dissenting Opinion of Judge Weinberg de Roca in Prosecutor v. Blaškić, IT-95-14-A, Judgment, 29 July 2004, where it is emphasised that even in cases with additional evidence, the question for the Appeals Chamber remains “whether a reasonable tribunal of fact could have reached the Trial Chamber’s factual conclusion”, para. 47. Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC01/04-02/12-12 OA, 20 December 2012, para. 15. Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC01/04-02/12-12 OA, 20 December 2012, para. 20; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/ 07-3344 OA13, 16 January 2013, para. 7; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 14. Prosecutor v. Bemba, Decision on the Request of the Prosecutor for Suspensive Effect, ICC-01/05-01/08-499 OA2, 3 September 2009, paras. 9–10; Prosecutor v. Gaddafi & AlSenussi, Decision on the Request for Suspensive Effect and Related Issues, ICC-01/11-01/ 11-387 OA4, 18 July 2013, para. 13.

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nature” of requests for suspensive effect,119 which justifies inclusion of the request in the first document that the Appeals Chamber will receive. The language of rule 156(5) is clear: the request for suspensive effect should be made “when filing an appeal”; “an appeal”, under the RoC, is actually the notice of appeal filed under regulation 57, and not the appeal brief (previously known as “document in support of the appeal”) provided for in regulation 58.120 The Appeals Chamber has identified the following factors for the purposes of deciding on requests for suspensive effect: (i) whether the implementation of the decision under appeal would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the Appellant; (ii) whether such implementation would lead to consequences that would be very difficult to correct and may be irreversible; or (iii) whether such implementation could potentially defeat the purpose of the appeal.121 According to this test, mere prejudice or adverse impact resulting from the Impugned Decision will not suffice. What it is required is a showing of damaging consequences stemming from implementing the decision under appeal, which may be irreversible or otherwise render the appeal moot, for example, where the damage that the Appellant was seeking to avert through his or her appeal materialises as a result of implementation of the decision before the Appeals Chamber can rule on the matter. In the case of requests for suspensive effect in appeals against decisions granting release of an acquitted person under article 81(3)(c), the showing of irreparable consequences must be particularly strong. Indeed, the 119

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Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/ 08-817 OA3, 9 July 2010, para. 8. Regulations 57 and 58 were amended on 12 July 2017. New requirements were introduced to the notice of appeal (chiefly, that the grounds of appeal be indicated), and the term “document in support of the appeal” was replaced by the simpler title of “appeal brief”. See, inter alia, Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 11 (see fns. 24–26); Prosecutor v. Ruto & Sang, Decision on Ruto and Sang’s Requests for Suspensive Effect, ICC-01/09-01/11-391 OA4, 29 February 2012, para. 9; Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 82; Prosecutor v. Ngudjolo, Decision on Request of the Prosecutor of 19 December 2012 for Suspensive Effect, ICC-01/04-02/12 OA, 20 December 2012, para. 19; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/07-3344 OA13, 16 January 2013, para. 6; Prosecutor v. Ruto & Sang, Decision on the Request for Suspensive Effect, ICC-01/09-01/11-862 OA5, 20 August 2013, para. 6; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 14.

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Appeals Chamber has considered that in these cases, it must “bear in mind the exceptional nature of the continued detention of the acquitted person pending appeal. In other words [. . .] particularly strong reasons for doing so must exist, which clearly outweigh [the acquitted person’s] statutory right to be released immediately following his acquittal”.122 One important point is the distinction between “suspensive effect”, which must be decided by the Appeals Chamber, and the power to stay proceedings. The Appeals Chamber’s authority under article 82(3) is limited to delaying implementation of a decision being challenged on appeal, but does not extend to all proceedings before another Chamber of the Court.123 In a Separate Opinion, Judge Pikis advanced the view that the stay of proceedings “is a relief wholly separate and distinct from the one envisaged in Article 82(3) of the Statute [. . .]. [J]urisdiction to stay lies with the trial court and not with the appeal court”.124 Finally, the Appeals Chamber has also clarified that it has the authority to order suspensive effect when an order for reparations is appealed, despite the lack of a specific provision to that effect in the Court’s legal texts. This is, on the one hand, due to the placement of an appeal against reparations in article 82, but, on the other hand, also due to the practical necessity of the Appeals Chamber being able to grant that relief in appeals against reparation orders.125

Jurisprudence I Nature and Scope of the Appellate Jurisdiction “[P]roceedings on appeal do not constitute a mere continuation of proceedings before the Pre-Trial Chamber, but rather ‘a separate and distinct stage of the proceedings’.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 11; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 12, partially quoting Prosecutor v. Lubanga, Judgment on Lubanga’s 122

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Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC01/04-02/12-12 OA, 20 December 2012, para. 23. Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC01/04-01/06-844 OA8, 9 March 2007, para. 4. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 5. Sep. Op. Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/062953 A A2 A3 OA21, 14 December 2012, para. 80.

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c on duct of a pp e al s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43; Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 13 (which added “the two stages should not be conflated”). “An interlocutory appeal of this nature, in which a particular issue requires specific consideration, is a separate and distinct stage of the proceedings [. . .]. It cannot automatically be bound by the previous determination of the Pre-Trial Chamber that it was appropriate for the victims to participate before the court of first instance.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43. The fact that “parts of the reasoning employed in the decision of 15 May 2006 were similar to or overlapped with the reasoning in the Impugned Decision in the present case does not preclude the Prosecutor from bringing this appeal because the two decisions disposed of different matters”. Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 23. “[T]he Appeals Chamber has jurisdiction to address not only the appeal itself, but also, within the legal framework of the Court, any matter related to that case. This is confirmed by article 83(1) of the Statute, which provides that, ‘[f]or the purposes of proceedings under article 81 [of the Statute] and this article, the Appeals Chamber shall have all the powers of the Trial Chamber’, as well as by rule 149 of the Rules of Procedure and Evidence, which provides, in relevant part, that the rules governing proceedings in the Trial Chambers ‘shall apply mutatis mutandis to proceedings in the Appeals Chamber’. Thus, the Appeals Chamber has the power to rule on the matter of the Detained Witnesses in accordance with the Statute and Rules of Procedure and Evidence. The Appeals Chamber may exercise this power proprio motu, if necessary [. . .]. [T]he Appeals Chamber notes that the Trial Chamber found that it was not competent to deal with the Request to be Released. Accordingly, the Appeals Chamber considers it appropriate and indeed necessary to resolve the situation of the Detained Witnesses, acting proprio motu.” Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the DRC, ICC-01/ 04-02/12-158 OA, 20 January 2014, paras. 20–21. “[T]he Appeals Chamber finds that the Trial Chamber’s own characterization of the Impugned Decision is not determinative. Where necessary,

jurisprudence the Appeals Chamber itself has to establish the true nature of an Impugned Decision, in order to ensure that the decision in question is appropriately before it, and that the appeal is determined pursuant to the correct legal basis.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 50. “As the case [. . .] is still at the pre-trial stage and as the Surrender Request was issued pursuant to an order by the Pre-Trial Chamber, the Appeals Chamber is not competent to make a finding on non-compliance.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for an Immediate Finding of Non-compliance, ICC-01/11-01/11-446 OA4, 17 September 2013, para. 7.

1 The Corrective and Confined Nature of Appeals 1.1 General Considerations “The Appeals Chamber has repeatedly held that its review is corrective in nature and not de novo.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 20. “They [appeals proceedings] are corrective in nature, conducted with the purpose of reviewing the proceedings before the Pre-Trial Chamber.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 11; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 12. “[T]he Appeals Chamber considers that the nature of this appeal is corrective and limited to the specific grounds of appeal raised. It is not a rehearing of the original request for interim release. For that reason, in the context of the present appeal, it is not appropriate either merely to repeat evidence that was before the Pre-Trial Chamber, or to introduce new evidence before the Appeals Chamber, without making any specific link as to how such material affects the Appeals Chamber’s determination of the issues raised on appeal.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 71. “[T]he Appellant cannot go beyond the scope of his grounds of appeal in the current case and, in effect, reply for the first time in his appeal to those factual allegations that were made in submissions in the Pre-Trial Chamber.”

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c on duct of a pp e al s Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 73. “The Appeals Chamber considers that appellate proceedings significantly differ in their nature and purpose from pre-trial and trial proceedings. Importantly, appellate proceedings at the Court are of a corrective nature, which finds expression in, inter alia, the standard of review on appeal, as set out above [. . .]. Similarly, article 83(2) of the Statute limits the scope of appellate proceedings by requiring that a procedural error or an error of fact or law must materially affect the Conviction or Sentencing Decision or that the unfairness of the proceedings has the potential to make these decisions unreliable. In this respect, appellate proceedings are not concerned with correcting all errors that may have occurred at trial, but rather only those errors that have been shown to have materially affected the relevant decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 56.

1.2

Facts that Post-Date the Impugned Decision Fall Outside the Appeals Chamber’s Determination in Appeal “[I]n circumstances such as the present, the developments that occurred after the Impugned Decision cannot be taken into account for evaluating whether the Impugned Decision was correct. Under article 82(1)(d) of the Statute, the Appeals Chamber is vested with jurisdiction to review certain decisions of the Pre-Trial and Trial Chambers. Any new developments will have to be assessed and evaluated by the Pre-Trial or Trial Chambers.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 85. “As a corrective measure, the scope of proceedings on appeal is determined by the scope of the relevant proceedings before the Pre-Trial Chamber. The instant proceedings before the Pre-Trial Chamber concluded with the issuance of the Impugned Decision. Facts which post-date the Impugned Decision fall beyond the possible scope of the proceedings before the Pre-Trial Chamber and therefore beyond the scope of the proceedings on appeal. As the Updated Investigation Report concerns facts which post-date the Impugned Decision, it is not relevant for this appeal and must be rejected in limine.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-02/11-202 OA, 28 July 2011, para. 12; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 13.

j ur i s p r uden ce

2 The Appeals Chamber Does Not have Original Jurisdiction or an Advisory Function “The Appeals Chamber is not invested with original jurisdiction as it clearly emerges from articles 81, 82 and 84 of the Statute save in two cases specified in the Statute, namely, those identified by articles 110 and 42(8).” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “If the Appeals Chamber were to answer such a request, it would have to assume the role of an advisory body, which it considers to be beyond and outside the scope of its authority.” Situation in the DRC, Decision on Victim Participation in the Situation, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008, para. 30, citing Prosecutor v. Katanga & Ngudjolo, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/07-3132 OA12, 26 August 2011, para. 7; Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para 9. Diss. Op; Prosecutor v. Lubanga, Decision on the Registrar’s Request relating to the Transmission of Applications for Participation, ICC-01/04-01/06-3026 A4 A5 A6, 6 May 2013, para. 4.

II Decisions Which May be Subject to Interlocutory Appeal “In proceedings under article 82(1)(d) of the Statute, the role of the Appeals Chamber is to review decisions rendered by the Pre-Trial or Trial Chambers in the course of the pre-trial and trial proceedings. Thus, the intervention of the Appeals Chamber during the pre-trial and trial phases is limited [. . .].” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 10. “The fact that implementation of the decision has been deferred does not negate the fact that a determination on release has been made. There is therefore no ground for declaring the appeal [under article 82(1)(b)] inadmissible.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 36. “Thus in the exceptional circumstances of needing to issue a decision within a very short timeframe, the Trial Chamber issued its decision in

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con duc t of ap pe a l s two parts, with the operative part of the decision being followed by the reasons for the decision. Accordingly, the Appeals Chamber finds that the appeal filed upon the notification of the Summary of the Impugned Decision [which constituted, in itself, a decision denying provisional release, albeit in summary form] was admissible.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1722 OA8, 9 September 2011, para. 27. “The Appeals Chamber observes that the Urgent Request for Directions is submitted prior to the bringing of any appeal under article 81 or 82 of the Statute. As the Appeals Chamber has previously noted, its jurisdiction is clearly and exhaustively defined in the Statute and Rules of Procedure and Evidence to proceedings in relation to: (i) appeals under articles 81 and 82 of the Statute; (ii) the revision of conviction or sentence under article 84 of the Statute; (iii) the disqualification of the Prosecutor or a Deputy Prosecutor under article 42(8) of the Statute; and (iv) review concerning reduction of sentence under article 110 of the Statute. As the Urgent Request does not fit within any of these provisions, it falls outside of the Appeals Chamber’s jurisdiction and must be dismissed in limine.” Prosecutor v. Katanga & Ngudjolo, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/07-3132 OA12, 26 August 2011, para. 6.

1 Interlocutory Appeals Strictly Limited to Those Prescribed in Article 82 “Only final decisions of a criminal court determinative of its verdict or decisions pertaining to the punishment meted out to the convict are assured as an indispensable right of man.”126 Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 38. “The decisions that are subject to appeal are enumerated in articles 81 and 82 of the Statute. There is nothing in Part 8 [of the Statute] to suggest that a right to appeal arises except as provided thereunder.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 35; Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/06-2799 OA19, 26 August 2011, para. 7; Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 14; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04126

That is, the right to appeal against an interlocutory decision of a criminal court to the court of appeal is not recognised by international human rights.

jurisprudence 01/07-3424 OA14, 20 January 2014, para. 28; Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Decision on the Admissibility of Kilolo’s Appeal against the Decision on the Freezing of Assets, ICC-01/05-01/131533 OA12, 23 December 2015, para. 14. “The inexorable inference is that the Statute defines exhaustively the right to appeal against decisions of first instance courts, namely, decisions of the Pre-Trial or Trial Chambers.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 39; Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-926 OA8, 13 June 2007, para. 9; Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/06-2799 OA19, 26 August 2011, para. 7; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 28. “[T]he legislator specified distinctly decisions liable to or subject to appeal. The Rules of Procedure and Evidence regulating the exercise of the right to appeal reflect that.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 35. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-926 OA8, 13 June 2007, para. 9. “Mr Ongwen raises arguments objecting to the part of the Impugned Decision that requires him to file in-depth analysis charts. The Appeals Chamber notes that Mr Ongwen did not seek leave to appeal this issue before the Pre-Trial Chamber in accordance with rule 155 of the Rules of Procedure and Evidence. Furthermore, the Appeals Chamber notes that pursuant to regulation 65(5) of the Regulations of the Court, as a participant in these proceedings, Mr Ongwen may only respond to the arguments raised in the Document in Support of the Appeal as prescribed in regulation 64(4) of the Regulations of the Court. Consequently, the Appeals Chamber shall disregard these arguments entirely. Notwithstanding this ruling, the Appeals Chamber is aware of the impact that the resolution of the issue on appeal may have on Mr Ongwen. The Appeals Chamber will therefore address any such impact in this judgment on its own motion.” Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15251 OA3, 17 June 2015, para. 12. “[T]he Trial Chamber’s grant of leave to appeal the Decision of 4 July [ICC-01/04-01/06-2779] outside of the context of articles 81 and 82 of

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co nd uc t of ap p e al s the Statute [‘on an exceptional basis’ under article 64(6)(f) of the Statute] was ultra vires.” Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/06-2799 OA19, 26 August 2011, para. 8. See in a different context, Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 50. “[T]he fact that the granting of appeal may, in the eyes of the Trial Chamber, be desirable or even necessary does not justify departure from the clearly enumerated grounds of appeal in the Statute.” Prosecutor v. Lubanga, Decision on the Netherlands’ Urgent Request for Directions, ICC-01/04-01/06-2799 OA19, 26 August 2011, para. 8. “As the Registrar’s Submissions seek, through the use of regulation 24bis (1) of the Regulations of the Court, to bring an appeal outside the scope of the Appeals Chamber’s clearly defined Statutory jurisdiction, they must be rejected.” Prosecutor v. Lubanga, Decision on the Admissibility of the Registrar’s Submissions, ICC-01/04-01/06-2823 OA20, 21 November 2011, para. 14. “The Appeals Chamber considers that the Detained Witnesses’ arguments regarding article 21(3) of the Statute are misplaced. The Detained Witnesses do not identify, nor does the Appeals Chamber find, an internationally recognised human right to appeal that requires the Appeals Chamber to expand its limited subject-matter appellate jurisdiction under the Statute, beyond the scope of the powers vested in it by the States Parties.” Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 30. “Finally, the Appeals Chamber notes that the Pre-Trial Chamber expressed that its above finding on the scope of article 82(1)(d) of the Statute ‘might be hard to reconcile with the need that the Statute be construed consistently with internationally recognized human rights pursuant to article 21(3) of the Statute’ and that it therefore ‘[saw] no obstacle for Mr Kilolo to directly submit his “Notice of Appeal” to the Appeals Chamber’. The Appeals Chamber recalls that that article 82(1)(d) of the Statute vests power in the Pre-Trial and Trial Chambers to certify appealable issues and to determine whether appellate resolution will materially advance the proceedings. In addition, article 21(3) of the Statute is applicable to all Chambers, not only the Appeals Chamber. Accordingly, should a first-instance Chamber find itself in a situation similar to that encountered by the Pre-Trial Chamber, the Appeals Chamber considers that the matter falls within the ambit of article 82(1)(d) of

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the Statute. Therefore, it is for that Chamber to exercise its discretion to broadly interpret the two prongs of article 82(1)(d) of the Statute if it considers it necessary due to human rights considerations under article 21(3) of the Statute.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Decision on the Admissibility of Kilolo’s Appeal against the Decision on the Freezing of Assets, ICC-01/05-01/13-1533 OA12, 23 December 2015, para. 16.

2 Appeals under Article 82(1)(a): Jurisdiction and Admissibility 2.1 What “a Decision with Respect to Jurisdiction or Admissibility” under Article 82(1)(a) Means “Article 82(1)(a) of the Statute provides that either party may appeal ‘a decision with respect to jurisdiction or admissibility’. The Appeals Chamber understands from the phrase ‘decision with respect to’ that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 15; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Admissibility of the Amicus Curiae Appeal, ICC-01/11-01/11-74 OA, 9 March 2011, para. 10; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/ 11-126 OA2, 25 April 2012, para. 13; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/0401/07-3424 OA14, 20 January 2014, para. 33; Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 41. “[A] decision of a Pre-Trial or Trial Chamber may constitute a ‘decision with respect to [. . .] admissibility’ only to the extent that it consisted of or ‘was based on’ a ruling that a case was admissible or inadmissible. The French version of article 82(1)(a) of the Statute confirms this interpretation as it provides that a party may only appeal a ‘[d]écision sur la compétence ou la recevabilité’.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 15, citing Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 18; Prosecutor v. Gaddafi & AlSenussi, Decision on the Libya Appeal for the Postponement of the

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con duc t of ap p ea l s Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012, para. 13; Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC01/13-51 OA, 6 November 2015, para. 42. “The Appeals Chamber’s reading of the plain meaning of article 82(1)(a) of the Statute is also confirmed by its relationship with other provisions [namely articles 18(4) and 19] of the Statute. Article 82(1)(a) of the Statute must be read in conjunction with articles 18 and 19 of the Statute [. . .]. In the view of the Appeals Chamber, the specific references to article 82 of the Statute and the use of identical language in articles 19(6) and 82(1)(a) of the Statute indicate that the right to appeal a decision on jurisdiction or admissibility is intended to be limited only to those instances in which a Pre-Trial or Trial Chamber issues a ruling specifically on the jurisdiction of the Court or the admissibility of the case.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 16; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Admissibility of the Amicus Curiae Appeal, ICC-01/11-01/11-74 OA, 9 March 2011, para. 10; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 33; Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 43. “[T]he fact that the decision on the request for a stay of proceedings was contained in the same Impugned Decision that rejected Mr Gbagbo’s challenge to the jurisdiction of the Court does not render the decision on the stay request appealable under article 82(1)(a) of the Statute. If this were the case, parties to the proceedings could unduly expand their right to appeal under article 82(1)(a) of the Statute by attaching other requests to jurisdictional challenges, which, if the Chamber ruled on them in the same document, would render them directly appealable.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 101. “Since then [the Lubanga OA4 Judgment], it is settled that a decision on such a request [stays of proceedings] is not jurisdictional in nature, and cannot therefore be appealed under article 82(1)(a) of the Statute. This is demonstrated by the fact that, in respect of subsequent decisions on stay requests in the case of Prosecutor v. Thomas Lubanga Dyilo, the

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Appellants obtained leave to appeal under article 82(1)(d) of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 102.

2.2 The Nature of a Decision, and Not its Effects, Will Determine Whether a Decision Falls under Article 82(1)(a) “The Appeals Chamber has also previously held with respect to appeals under article 82(1)(b) of the Statute that the ‘effect or implications of a decision confirming or denying the charges do not qualify or alter the character of the decision’. The Appeals Chamber finds that the same logic applies to appeals under article 82(1)(a) of the Statute. It is the nature, and not the ultimate effect or implication of a decision, that determines whether an appeal falls under article 82(1)(a) of the Statute. Even if the ultimate impact of a decision of a Pre-Trial or Trial Chamber were to affect the admissibility of cases, that fact would not, in and of itself, render the decision a ‘decision with respect to [. . .] admissibility’ under article 82(1)(a).” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011 para. 17; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Admissibility of the Amicus Curiae Appeal, ICC-01/11-01/11-74 OA, 9 March 2011, para. 10; Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation, ICC-01/13-51 OA, 6 November 2015, para. 44. “Even if resolution of the Request for Assistance in Kenya’s favour might have ultimately contributed in some way to a finding of inadmissibility of cases in the future, this would not render the Impugned Decision a decision with respect to admissibility as that term is used in articles 19(6) and 82(1)(a) of the Statute.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 20. “The Impugned Decision [a direct appeal against a Pre-Trial Chamber’s decision rejecting an amicus participation] does not fall into any of the categories of decisions that can be appealed without leave of the Pre-Trial Chamber. The Impugned Decision is neither a decision ‘with respect to jurisdiction or admissibility’ (article 82(1)(a) of the Statute), nor a decision ‘granting or denying release of the person being investigated or prosecuted’ (article 82(1)(b) of the Statute, nor a decision of a ‘Pre-Trial

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con duc t of ap p ea l s Chamber to act on its own initiative under article 56, paragraph 3’ (article 82(1)(c) of the Statute. Nor is it an order under article 75 of the Statute that could be appealed pursuant to article 82(4) of the Statute.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Admissibility of Gesicho’s Appeal on Her Request to Appear as Amicus Curiae, ICC-01/ 09-01/11-270 OA2, 17 August 2011, para. 4; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Admissibility of Gesicho’s Appeal on Her Request to Appear as Amicus Curiae, ICC-01/09-02/11-250 OA2, 17 August 2011, para. 4. “The Impugned Decision constituted a decision rejecting a request by Ms Hosseinioun to submit observations under rule 103 of the Rules of Procedure and Evidence. The Pre-Trial Chamber did not even consider, let alone issue a ruling on, the admissibility of the case against Mr Gaddafi. As such, it cannot be considered a ‘decision with respect to [. . .] admissibility’. [. . .] [A] decision of such a nature is not and cannot be considered to be a decision with respect to jurisdiction or admissibility under article 82(1) of the Statute.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Admissibility of the Amicus Curiae Appeal, ICC-01/11-01/11-74 OA, 9 March 2011, para. 11. “The Impugned Decision concerned a request for the postponement of surrender under article 95 of the Statute and made no determination concerning the admissibility of the case. Therefore, the Impugned Decision cannot be characterised as a decision that consisted of, or was based on, a ruling that the case against Mr Gaddafi was admissible or inadmissible.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/ 11-126 OA2, 25 April 2012, para. 14. “[I]nsofar as the sub judice decision dismisses the application of Mr Lubanga Dyilo raised under article 19(2)(a) of the Statute, the semblance of a decision subject to appeal is visible; reinforced by the fact that the PreTrial Chamber, as may be gathered from their decision, treated the application for stay or discontinuance of the proceedings on grounds of abuse of process as a challenge to jurisdiction.” Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC01/04-01/06-772 OA4, 14 December 2006, para. 12. “[A]rticle 95 of the Statute is not applicable to the appellate phase of proceedings. This is because this phase of the proceedings is regulated by article 82(3) of the Statute. In addition, in the view of the Appeals Chamber, once the Pre-Trial or Trial Chamber has ruled on an admissibility challenge, it is no longer ‘under consideration by the Court’, as referred to in article 95 of the Statute. Rather, the decision

jurisprudence on the admissibility challenged is being reviewed by the Appeals Chamber pursuant to article 82(1)(a) of the Statute.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect and Related Issues, ICC-01/11-01/11-387 OA4, 18 July 2013, para. 27. “A decision rejecting a request for a stay of the proceedings based on allegations of violations of the suspect’s fundamental rights is not jurisdictional in nature and therefore cannot be appealed under article 82(1)(a) of the Statute, even if the request for a stay of proceedings was combined with a challenge to the jurisdiction of the Court and the Chamber disposes of the stay request and the challenge to the jurisdiction in the same document.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 2. “The Appeals Chamber also recalls that, in the cases of [Prosecutor v. Muthaura, Kenyatta & Ali and Prosecutor v. Ruto, Kosgey & Sang], it declined to consider the interpretation of a contextual element of article 7(1) of the Statute in appeals brought under article 82(1)(a) of the Statute, finding that those issues were not jurisdictional in nature and therefore not properly before it; consequently, the Appeals Chamber rejected the appeals as inadmissible.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 103, citing Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11425 OA4, 24 May 2012; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012. “[T]he issues that [the accused] raise on appeal, namely, that the Pre-Trial Chamber erred in its interpretation of ‘organisational policy’ within the meaning of article 7(2)(a) of the Statute and its conclusion that such a policy existed, are not issues of subject-matter jurisdiction for the purposes of articles 19(6) and 82(1)(a) of the Statute and these issues are not properly before the Appeals Chamber under article 82(1)(a) of the Statute.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b), ICC-01/09-02/11-425 OA4, 24 May 2012, para. 38; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 33.

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co nduc t of ap p ea l s “The Appeals Chamber notes that the question as to whether the Prosecutor has been able to establish, both in law and by producing sufficient evidence, that an ‘organisational policy’ existed was a question pertaining to the merits of the case. It was one of the questions before the Pre-Trial Chamber at the confirmation hearing for the purposes of assessing whether or not to confirm the charges in the present case pursuant to article 61 of the Statute. The enquiry that Mr Muthaura and Mr Kenyatta allege should have been carried out on a challenge to jurisdiction was therefore carried out as part of the confirmation process as, indeed, it had to be.” Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Defence Appeal against the Confirmation of Charges, ICC-01/09-02/11-425 OA4, 24 May 2012, para. 33; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Defence Appeals against the Confirmation of Charges, ICC-01/09-01/11414 OA3 OA4, 24 May 2012, para. 27. “The Appeals Chamber considers that the Impugned Decision [the Trial Chamber’s rejection of an application for interim release] does not pertain to a question of the jurisdiction of the Court as previously defined by its jurisprudence.127 Accordingly, the Appeals Chamber finds that it cannot be appealed under article 82(1)(a) of the Statute.” Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 34. “I consider that the appeal brought by the Detained Witnesses can and, in the circumstances of the case, must, be treated as an appeal under article 82(1)(a) of the Statute against a ‘decision with respect to jurisdiction’ because the Trial Chamber found it lacked jurisdiction to review the Detained Witnesses’ detention.” Prosecutor v. Katanga, Dissenting Opinion of Judge Song in Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/073424-Anx OA14, 20 January 2014, para. 16. Diss. Op., see also paras. 11, 14. “[T]he Lubanga OA4 Judgment can be distinguished because, in the present situation, the Trial Chamber held that it could not consider the legality of the detention of the Detained Witnesses, whereas, in the Lubanga OA4 Judgment, the Trial Chamber did rule on Mr Lubanga’s request to relinquish jurisdiction due to alleged human rights violations. Thus, unlike in the Lubanga OA4 Judgment, what is at issue is truly

127

See paras. 32–33, citing Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011 paras. 15–16; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Admissibility of the Amicus Curiae Appeal, ICC-01/11-01/11-74 OA, 9 March 2011, para. 10; Prosecutor v. Lubanga, Judgment on Lubanga’s Jurisdiction Appeal, ICC-01/04-01/06-772 OA4, 14 December 2006, para. 21.

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a question of the jurisdiction of the Court and, more specifically, of the Trial Chamber to review the legality of the on-going detention of the Detained Witnesses.” Prosecutor v. Katanga, Dissenting Opinion of Judge Song in Decision on the Application for Interim Release of Detained Witnesses, ICC-01/0401/07-3424-Anx OA14, 20 January 2014, para. 16. Diss. Op. “[A] narrow understanding of article 82(1)(a) of the Statute would, in the circumstances of the case [regarding the detention of Detained Witnesses], be irreconcilable with article 21(3) of the Statute, according to which the Court has to apply and interpret the Statute consistently with internationally recognised human rights. This is because if the appeal were found to be inadmissible, it would become impossible for the Detained Witnesses to exercise their right to judicial review of the legality of their detention. It would be an especially peculiar result for a court such as the ICC, which is meant to provide a forum to address the most serious rights’ violations, not to be able to address and remedy human rights violations for which it is itself responsible.” Prosecutor v. Katanga, Dissenting Opinion of Judge Song in Decision on the Application for Interim Release of Detained Witnesses, ICC-01/0401/07-3424-Anx OA14, 20 January 2014, para. 17. Diss. Op.

2.3 Decisions Rejecting Challenges on the Ground that They are Not Proper Jurisdictional Challenges can be Appealed “If the Appeals Chamber were to dismiss appeals against decisions rejecting challenges on the grounds that they are not proper jurisdictional challenges, potentially valid questions as to the Court’s jurisdiction could be left unresolved until the end of trial without any possibility for appellate intervention. In such circumstances, a Chamber could erroneously continue to assume jurisdiction over a crime, despite the fact that a proper jurisdictional challenge had been raised and not determined. The Appeals Chamber finds that it is important to preserve appellate scrutiny of such decisions and that this approach is consonant with the spirit of the Statute as described above.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 19. “For this reason, the Appeals Chamber is of the view that decisions rejecting challenges on the grounds that they are not proper jurisdictional challenges are subject to different considerations to those articulated in its prior jurisprudence on the admissibility of appeals under article 82(1)(a) of the Statute set out above. None of these decisions concerned a firstinstance decision rejecting a challenge to jurisdiction brought under

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con duc t of ap p ea l s article 19 of the Statute on this basis.128 The Appeals Chamber considers that, in relation to decisions of this nature, it is necessary to assess whether a proper jurisdictional challenge has been raised, but erroneously not addressed by the first instance Chamber on the basis that it was not a jurisdictional challenge. Therefore, decisions rejecting challenges under article 19 of the Statute on the ground that they do not challenge the jurisdiction of the Court are considered to be ‘decisions with respect to jurisdiction’ within the meaning of article 82(1)(a) of the Statute and appeals against such decisions are admissible.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 20.

2.4

Challenges that if Successful would Eliminate the Legal Basis for a Charge may be Considered Jurisdictional in Nature “The Appeals Chamber underlines that, in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, it did not address, nor was it faced with the question of whether resolving a legal issue alone could have resulted in the crimes charged falling outside the jurisdiction of the Court. As stated above, the challenges under examination in those appeals required the resolution of the question of whether an organizational policy existed both in law and in fact.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 36. “The Appeals Chamber finds the issue in the present case to be distinguishable from those raised in the Kenya cases. Mr Ntaganda’s Challenge requires an exclusively legal determination as to whether the factual allegations correspond to the crime under international humanitarian law. If his arguments were to be accepted, the result would be a finding that the Statute restricts the applicability of war crimes in a way that fully excludes the set of facts as charged. The Appeals Chamber notes that, in contrast to the challenges considered in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision, no additional factual or evidentiary determinations are required in the present case in order to resolve the legal issue raised by Mr Ntaganda. In this regard, the scope of the group intended by the Prosecutor to fall within the description ‘child soldiers’ is clearly specified to be ‘children under the age of fifteen years who were members of the UPC/FPLC’ and this allegation is undisputed for the purposes of the present appeal.”

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Referring to, inter alia, Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, paras. 15–17.

jurisprudence Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 37. “The Appeals Chamber acknowledges that references to the jurisprudence of the ad hoc tribunals and the Extraordinary Chambers in the Courts of Cambodia and certain findings in the Ruto et al. OA3 OA4 Decision and the Muthaura et al. OA4 Decision may suggest that the question of subject-matter jurisdiction is limited to whether the Prosecutor has alleged crimes that are listed in the Statute, and that any other legal or factual issues related to the exercise of this jurisdiction must be determined on the merits. However, these findings must be read in light of the context in which they appear, namely, in rejecting the argument that a finding that the contextual elements of crimes against humanity exist in law and in fact is per se a jurisdictional matter and that any challenge to these findings, legal or factual, is necessarily jurisdictional in nature.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 38. “[T]he question of whether the Court has subject-matter jurisdiction cannot be confined exclusively to an examination of whether the Prosecutor has successfully recited the elements of a crime listed under article 5 of the Statute. In certain circumstances, the question of whether the facts alleged correspond to the crime charged may also acquire a jurisdictional dimension. This is so, for example, where a particular legal interpretation could result in the allegations being characterised either as an ordinary crime as opposed to one of the crimes over which the Court has jurisdiction or simply as non-criminal in nature. The Appeals Chamber finds that challenges, which would, if successful, eliminate the legal basis for a charge on the facts alleged by the Prosecutor may be considered to be jurisdictional challenges. Accordingly, some verification as to whether the facts alleged correspond in law to the crimes charged may be necessary, depending on the circumstances, in order to determine whether the Court has jurisdiction over such crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 39. “In the context of the present case, the Appeals Chamber finds that the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature. If the Trial Chamber were to determine that the war crimes of rape and sexual slavery under article 8(2) (e)(vi) of the Statute cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator, the

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c on duct of a pp e al s necessary implication would be that article 8(2)(e)(vi) of the Statute per se excludes from its ambit the acts of rape and sexual slavery against child soldiers as charged in this case. Accordingly, the Trial Chamber would not need to address whether, on the basis of the evidence submitted and discussed before it, the Prosecutor had succeeded in proving the relevant allegations. The Appeals Chamber considers that the appropriate result of such a legal finding would be that the Court lacks jurisdiction ratione materiae to prosecute the alleged acts as war crimes.” Prosecutor v. Ntaganda, Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9, ICC-01/04-02/061225 OA2, 22 March 2016, para. 40.

2.5

Procedural Errors in Admissibility Appeals “[A]n Appellant may raise procedural errors in an appeal brought under article 82(1)(a) of the Statute. Accordingly, [. . .] Counsel for the Defence is entitled to rely on procedural errors as the basis for impugning the PreTrial Chamber’s decision; his failure to attack its findings on admissibility does not per se render the appeal inadmissible.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 47; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 101; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 87; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 85. “Although the Impugned Decision is a decision on an application for warrants of arrest, the decision by the Pre-Trial Chamber to reject the Prosecutor’s application [. . .] was based on a ruling of the admissibility of the case against him. To this extent, the Impugned Decision is a decision ‘with respect to [. . .] admissibility’, as required by article 82(1)(a) of the Statute. The Prosecutor has limited his appeal to this aspect of the decision.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 18.

3 Appeals under Article 82(1)(b): Detention and Release 3.1 The Nature or Character of a Decision, and Not its Effects, Determine Whether a Decision Falls under Article 82(1)(b) “[I]t is the nature or character of a decision and not its implications or effects which determine whether a party is entitled to bring an appeal pursuant to article 82(1)(b) of the Statute.”

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Prosecutor v. Mbarushimana, Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release, ICC-01/04-01/10-438 OA2, 21 September 2011, para. 17, citing Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-926 OA8, 13 June 2007, para. 15; Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 17; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 35. “[T]he ‘implications’ or ‘effects’ of a decision do not change its ‘character’ or ‘nature’.” Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, para. 22, citing Prosecutor v. Mbarushimana, Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release, ICC-01/04-01/10-438 OA2, 21 September 2011, para. 17. “Under article 82(1)(b) of the Statute, either party may appeal ‘a decision granting or denying release of the person being investigated or prosecuted’. The Appeals Chamber considers the Impugned Decision to be such a decision because by its terms, it granted the conditional release of Mr Bemba. The fact that implementation of the Decision has been deferred does not negate the fact that a determination on release has been made. There is therefore no ground for declaring the appeal inadmissible. The Impugned Decision is a decision on release and as such the Appellant may, as a matter of right, lodge his appeal.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 36.

3.2 Whether Decisions Confirming or Rejecting the Charges May be Appealed under Article 82(1)(b) “[A]rticle 82(1)(b) of the Statute defines succinctly the decisions subject to appeal, leaving no ambiguity as to the intentions of the makers of the Statute. Indeed, had they intended to make decisions confirming or refusing confirmation of charges the subject of a distinct right of appeal, a crucial decision for the progress of the proceedings, they would have done so expressly, as they did with other decisions itemized as the subjects of appeal in articles 81 and 82 of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, para. 11.

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co nd uct of ap p e al s “Article 82(1)(b) of the Statute is explicit in what it imports. It confers a right to appeal decisions ‘granting or denying release’. Such decisions may be given in the context of article 60 of the Statute [. . .]. The decision confirming charges neither grants nor denies release. The effect or implications of a decision confirming or denying the charges do not qualify or alter the characterisation of the decision [. . .]. The wording of article 82(1) (b) of the Statute is explicit and as such it is the sole guide to the identification of decisions appealable under its provisions [. . .]. It confers exclusively a right to appeal a decision that deals with the detention or release of a person subject to a warrant of arrest.” Prosecutor v. Lubanga, Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision, ICC01/04-01/06-926 OA8, 13 June 2007, paras. 15–16; Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, paras. 22–23; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 37. “That the warrant of arrest ceases to have effect is therefore an automatic result of the decision declining to confirm all charges. The consequence thereof is that the person who is subject to the warrant of arrest must be released [. . .]. Accordingly, the Pre-Trial Chamber’s order in the Confirmation Decision to release Mr Mbarushimana forms an integral part of the decision not to confirm the charges against him. It has no impact on the nature of the Confirmation Decision, nor does it make it a decision granting release.” Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, paras. 21–22.

3.3

Whether Other Decisions May be Appealed under Article 82(1)(b) “The Appeals Chamber finds that the Second Defence Request for Interim Release did not constitute a request for release but rather a request that the Pre-Trial Chamber consider the admissibility of the case as it stood at the time of the issuance of the arrest warrant and, based on this, the validity of the arrest warrant. As such, the Impugned Decision constituted a decision rejecting this request [. . .] rather than a decision on the question of whether to grant or deny Mr Mbarushimana release [. . .]. Accordingly, the Appeals Chamber finds [. . .] that Mr Mbarushimana may not bring an

jurisprudence appeal against the Impugned Decision on the basis of article 82(1)(b) of the Statute.” Prosecutor v. Mbarushimana, Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release, ICC-01/04-01/10-438 OA2, 21 September 2011, para. 17. “The Pre-Trial Chamber rejected, in its Decision on the Request for Stay of Release, the Prosecutor’s request to stay the release of Mr Mbarushimana pending a decision on an application for leave to appeal under article 82(1)(d) of the Statute that had yet to be filed. The effect of such a stay would have been that Mr Mbarushimana had to remain in detention until the Pre-Trial Chamber had resolved the Prosecutor’s application for leave to appeal the Confirmation Decision under article 82(1)(d). In other words, the stay would have affected the release of Mr Mbarushimana. Despite this, however, the Decision on the Request for Stay of Release dealt only with the question of whether the Confirmation Decision should have immediate effect. It was, therefore, a procedural decision that did not address the substance of whether release should be granted or whether Mr Mbarushimana should remain in detention. As a result, the Appeals Chamber finds that the Decision on the Request for Stay of Release is not a ‘decision granting or denying release’. Accordingly, it cannot be appealed under article 82(1)(b) of the Statute and the Prosecutor’s appeal is therefore inadmissible.” Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/10-483 OA3, 24 January 2012, para. 31.

3.4 Whether Detained Witnesses Can Appeal a Decision on Detention/Release under Article 82(1)(b) “[T]he Appeals Chamber considers that [. . .] the Detained Witnesses are not persons who are ‘being investigated or prosecuted’ within the meaning of article 82(1)(b) of the Statute. The Appeals Chamber considers that this term refers to persons under investigation or being prosecuted by the Court. This understanding is reflected in the Lubanga OA8 Decision, where it held: [. . .] It [article 82(1)(b)] confers exclusively the right to appeal a decision that deals with the detention or release of a person subject to a warrant of arrest.” Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 37 (emphasis added). “In the present case, the Detained Witnesses are not subject to a Courtissued warrant of arrest. Thus, the Appeals Chamber concludes that the

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co nd uc t of ap p e al s Detained Witnesses cannot appeal the Impugned Decision under article 82(1)(b) of the Statute.” Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 38.

4 Appeals under Article 82(1)(d): Other Interlocutory Appeals with Leave of the Chamber “[A]rticle 82(1)(d) of the Statute has two components. The first concerns the prerequisites for the definition of an appealable issue and the second the criteria by reference to which the Pre-Trial Chamber may state such an issue for consideration by the Appeals Chamber.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 8. “[T]he object of paragraph (d) of article 82(1) of the Statute is to pre-empt the repercussions of erroneous decisions on the fairness of the proceedings or the outcome of the trial.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 19. “Purging the pre-trial process for errors consequential in the above sense is designed as a safeguard of the integrity of the proceedings. This is at the core of article 82(1)(d) of the Statute.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 11.

4.1

The Ability to Appeal under Article 82(1)(d) “Article 82(1)(d) of the Statute does not confer a right to appeal interlocutory or intermediate decisions [. . .]. A right to appeal only arises if the Pre-Trial Chamber or the Trial Chamber is of the opinion that any such decision must receive the immediate attention of the Appeals Chamber [. . .]. In essence, the Pre-Trial or Trial Chamber is vested with a power to state, or more accurately still, to certify the existence of an appealable issue.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 20; Situation in the DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04556 OA4 OA5 OA6, 19 December 2008, para. 38; Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in the Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/ 05-371 OA2, 23 February 2009, para. 7. Diss. Op; Prosecutor v. Gbagbo,

jurisprudence Judgment on the Adjournment of the Confirmation of Charges Hearing, ICC-02/11-01/11-572 OA5, 16 December 2013, para. 62. “The Appeals Chamber has previously held that ‘article 82(1)(d) of the Statute clearly vests power solely in the Pre-Trial and Trial Chambers to certify appealable issues and to determine whether appellate resolution will materially advance the proceedings’. However, the Appeals Chamber has held that ‘[w]here necessary, [. . .] [it] has to establish the true nature of an Impugned Decision, in order to ensure that the decision in question is appropriately before it, and that the appeal is determined pursuant to the correct legal basis’. In the same decision, the Appeals Chamber reviewed the scope of article 82(1)(d) of the Statute and ultimately rejected as inadmissible an appeal against an order for reparations brought under article 82(1)(d) of the Statute, based on its determination that final judicial decisions in respect of reparations are appealable under article 82(4) of the Statute.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal on Compensation for Unlawful Detention, ICC-01/ 05-01/13-1964 OA13, 8 August 2016, paras. 12–13. “[N]othing in the nature of a general principle of law exists or is universally adopted entailing the review of decisions of hierarchically subordinate courts disallowing or not permitting an appeal.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 32. “Interpreting article 82(1)(d) of the Statute [. . .] does not in terms confer power or competence upon the Appeals Chamber to review a decision not stating a subject for appeal.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 34.

4.2 “A Decision that Involves an Issue” “The word ‘decision’ refers to determinations or rulings made by a PreTrial or Trial Chamber, not to all statements that are made in the reasoning.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 3. Diss. Op. “Only an ‘issue’ may form the subject-matter of an appealable decision. An issue is an identifiable subject or topic requiring a decision for its resolution, not merely a question over which there is disagreement or conflicting opinion.”

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c on duct of ap p e al s Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para 9; Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in the Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 7. Diss. Op. “An issue is constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination. The issue may be legal or factual or a mixed one.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 9. “A decision ‘involves’ an issue if the question of law or fact constituting the issue was essential for the determination or ruling that was made.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Song in the Judgment on Appeal against Oral Disclosure, ICC-01/04-01/06-1433 OA11, 11 July 2008, para. 4. Diss. Op. “Sequentially, what may found an appeal under article 82(1)(d) of the Statute is an issue the determination of which is an integral part of a decision of the first-instance court. The statement of an appealable issue is the sole responsibility of the court that made the decision determinative of the issue.” Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, para. 8. Diss. Op. “[T]he Single Judge acknowledges that the decision by reference to which leave to appeal was sought ‘did not explicitly address the issue’ set down for appeal [. . .]. The case law of the Appeals Chamber as to the subject-matter of an appeal under article 82(1)(d) of the Statute establishing that a) only issues arising from a decision of a first-instance court can be made the subject of an appeal [. . .] and b) the Appeals Chamber is not an advice-rendering body, seals the outcome of this appeal. The appeal is inadmissible and as such it should be dismissed.” Prosecutor v. Kony et al., Dissenting Opinion of Judge Pikis in Judgment on the Defence Appeals against Victim Participation, ICC-02/04 OA and ICC-02/04-01/05-371 OA2, 23 February 2009, paras. 5, 11. Diss. Op.

4.3

The Issue Must Affect the Fair and Expeditious Conduct of the Proceedings “The term ‘fair’ in the context of article 82(1)(d) of the Statute is associated with the norms of a fair trial, the attributes of which are an inseverable part of the corresponding human right, incorporated in the Statute by

jurisprudence distinct provisions of it [. . .] and article 21(3); making its interpretation and application subject to internationally recognized human rights.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 11. “The principles of a fair trial are not confined to trial proceedings but extend to pre-trial proceedings as well as the investigation of crime; a fact directly borne out by the provisions of articles 55 and 54(1)(c) of the Statute.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 11. “Purging the pre-trial process for errors consequential [. . .] is designed as a safeguard of the integrity of the proceedings. This is at the core of article 82(1)(d) of the Statute.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para.11. “Equality of arms is another element of a fair trial, which in the context of the Statute, putting the burden of proof on the Prosecutor, means that the defendant cannot be required to confront more than one accuser.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 19. Sep. Op. “The expeditious conduct of the proceedings in one form or another constitutes an attribute of a fair trial.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 11. “The term ‘proceedings’ [. . .] is not confined to the proceedings at hand but extends to proceedings prior and subsequent thereto.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 12.

4.4 Alternatively, the Issue May Affect the Outcome of the Trial “The outcome of the trial is postulated as a separate and distinct consideration warranting the statement of an issue for consideration by the Appeals Chamber, where the possibility of error in an interlocutory or intermediate decision may have a bearing thereupon. The Pre-Trial Chamber or Trial Chamber must ponder the possible implications of a given issue being wrongly decided on the outcome of the case. The exercise involves a forecast of the consequences of such an occurrence.”

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con duc t o f ap pe al s Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 13.

4.5

“Stand Alone” or Ancillary Proceeding, Such as Requests for Compensation for Unlawful Detention, May have an Interlocutory Element “The Appeals Chamber notes that article 82(1)(d) of the Statute simply refers to a ‘decision’ without further characterising the nature of the decision. Nevertheless, it is clear from its requirement that a decision appealed thereunder must have the potential to ‘affect the fair and expeditious conduct of the proceedings or the outcome of the trial’, and that article 82(1)(d) of the Statute allows for appeals of an interlocutory nature.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal on Compensation for Unlawful Detention, ICC-01/ 05-01/13-1964 OA13, 8 August 2016, para. 15. “The Appeals Chamber notes that compensation proceedings under article 85(1) of the Statute may be seen as ‘stand alone’ or ancillary proceedings, separate from the criminal prosecution of Mr Mangenda before the Court. Nevertheless, the Appeals Chamber is of the view that this does not justify depriving the parties of the possibility of appellate intervention throughout the conduct of such proceedings.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal on Compensation for Unlawful Detention, ICC-01/ 05-01/13-1964 OA13, 8 August 2016, para. 16. “On the contrary, the Appeals Chamber notes that, before making its final determination on whether or not to grant compensation under article 85(1) of the Statute, the Chamber may need to take other decisions that could be considered to be interlocutory to the final outcome of such ‘stand alone’ proceedings. Indeed, compensation proceedings under article 85(1) of the Statute involve a two-step process that requires at least two distinct decisions. These decisions are the following: (i) a decision on the unlawfulness of the arrest or detention under article 85, paragraph 1 (rule 173(2)(a) of the Rules); and (ii) a decision on the request for compensation (rule 174(3) of the Rules of Procedure and Evidence (‘Rules’). As set out above, it is the latter decision to grant or reject a request for compensation which concludes or brings to an end the compensation proceedings. The Appeals Chamber considers that the preliminary decision on the unlawfulness of the arrest or detention represents only the first decision in a two-step decision-making process and for that reason it may be considered to be an interlocutory decision within the meaning of

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article 82(1)(d) of the Statute. In the Appeals Chamber’s view, this is so even if such a decision has, as in the case at hand, the effect of denying the right to receive compensation and thereby brings the compensation proceedings to an end.” Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, Judgment on Mangenda’s Appeal on Compensation for Unlawful Detention, ICC-01/ 05-01/13-1964 OA13, 8 August 2016, para. 17.

4.6 Immediate Resolution of the Issue by the Appeals Chamber May Materially Advance the Proceedings “The issue must be one ‘for which in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings’. Hence, the issue must be such that its immediate resolution by the Appeals Chamber will settle the matter posing for decision through its authoritative determination, ridding thereby the judicial process of possible mistakes that might taint either the fairness of the proceedings or mar the outcome of the trial.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 14. “The meaning conveyed by ‘advance’ [. . .] is ‘move forward’; by ensuring that the proceedings follow the right course.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 15. “[T]he term ‘immediate’ underlines the importance of avoiding errors through the mechanism provided by sub-paragraph (d) by the prompt reference of the issue to the court of appeal. A corresponding duty is cast upon the Appeals Chamber to render its decision, the earliest possible (see also rule 156(4) of the Rules of Procedure and Evidence).” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 18. “The term ‘proceedings’ in the second part of article 82(1)(d) of the Statute can have no different meaning from the one ascribed to it in the first part of the paragraph, encompassing the proceedings in their entirety.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 17.

5

Appeals under Article 82(4): Reparations Order

“An ‘order for reparations’ appealable under article 82(4) of the Statute cannot, at the same time, be a decision that is appealable under article

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con duc t of ap p ea l s 82(1)(d) of the Statute. Specific provision is made within article 82(4) of the Statute for appeals against the ‘order for reparations’.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 49.

5.1

The Statute, the RPE and the Regulations of the Trust Fund Determine Whether an Order of Reparations Falls under Article 82(4) “[T]he explanatory note to the Rules of Procedure and Evidence states that they are ‘an instrument for the application of the Rome Statute’. The Appeals Chamber recalls further that the Assembly of States Parties adopted the Regulations of the Trust Fund in 2005, ‘wishing to ensure the proper and effective functioning of the Trust Fund’. Therefore, the Appeals Chamber considers that the provisions of the Statute, read in conjunction with these instruments, determine whether the Impugned Decision is, or should be deemed to be, ‘an order for reparations’ within the meaning of article 82(4) of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 52.

5.2

The Conduct of Reparations Proceedings “[R]eparations proceedings can be divided into two distinct parts: 1) the proceedings leading to the issuance of an order for reparations; and 2) the implementation of the order for reparations, which the Trust Fund may be tasked with carrying out.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 53. “The proceedings before the Trial Chamber leading to the issuance of an order for reparations are regulated in particular by articles 75 and 76(3) of the Statute and by rules 94, 95, 97 and 143 of the Rules of Procedure and Evidence. During this first part of the proceedings, the Trial Chamber may, inter alia, establish principles relating to reparations to, or in respect of, victims. This first part of the reparations proceedings concludes with the issuance of an order for reparations under article 75(2) of the Statute or a decision not to award reparations.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 54. “The second part of the reparations proceedings consists of the implementation phase, which is regulated primarily by article 75(2) of the Statute and rule 98 of the Rules of Procedure and Evidence. If the Trial Chamber has ordered that reparations be made through the Trust Fund

jurisprudence pursuant to rule 98(3) and 98(4) of the Rules of Procedure and Evidence, or that the award for reparations be deposited with the Trust Fund pursuant to rule 98(2) of the Rules of Procedure and Evidence, the Trust Fund plays an important role in this phase and the Regulations of the Trust Fund apply.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 55. “[T]he judicial ‘approval’ of the draft implementation plan, pursuant to regulations 57 and 69, if applicable, of the Regulations of the Trust Fund is not an initial order for reparations. Rather [. . .] pursuant to regulation 50 (b) of the Regulations of the Trust Fund, an ‘order for reparations’ in terms of article 82(4) of the Statute must be issued under article 75 of the Statute prior to any implementation activities by the Trust Fund.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 57.

5.3 Parties Entitled to Appeal Orders for Reparations “Under article 82(4) of the Statute, appeals against an order for reparations may be brought by ‘[a] legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75’.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 65. “[T]he Appeals Chamber notes that article 82(4) of the Statute gives the convicted person the right to appeal orders for reparations. This right is unencumbered.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 OA OA2 OA3 OA21, 14 December 2012, para. 66. “[U]nder article 82(4) of the Statute, victims are entitled to bring an appeal. They are therefore parties to the proceedings and not, as is the case at other stages of the proceedings, participants who, under article 68(3) of the Statute, may present their views and concerns where their personal interests are affected. Furthermore, [. . .] the right to appeal lies with the victims, not with the legal representatives of victims. In this regard, article 82(4) of the Statute provides that victims may only appeal with the assistance of a legal representative [. . .].” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 67. “The Appeals Chamber considers that the term ‘victim’ in article 82(4) of the Statute has to be understood in context – it allows individuals to appeal an order for reparations rendered by a Trial Chamber as

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con duc t of ap pe a l s a result of the reparations proceedings. In this respect, the Appeals Chamber agrees with the OPCV that the term ‘victim’ is not defined as those victims who were granted the right to participate in the proceedings in relation to the accused person’s guilt or innocence or the sentence. The Appeals Chamber finds that this term may also include individuals who did not participate in those proceedings, but who claim to have suffered harm as a result of the crimes in relation to which the accused was convicted and who request reparations.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 69. “[T]hose individuals who requested reparations and who now seek to appeal the Impugned Decision are entitled to do so, because the Impugned Decision contained a ruling that affected them. The same ruling affected those claimants for reparations whose request for participation in the proceedings in relation to the accused person’s guilt or innocence or the sentence was rejected or whose right to participate was withdrawn in the Conviction Decision. This is because the reparations proceedings are a distinct stage of the proceedings and it is conceivable that different evidentiary standards and procedural rules apply to the question of who is a victim for the purposes of those proceedings.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 70. “[T]he Trial Chamber accorded to those victims [who did not request reparations but participated in the proceedings in relation to Lubanga’s guilt/innocence] a role in the reparations proceedings, which the victims accepted by making submissions. This also demonstrates their interest in the reparations proceedings. For these reasons, the Appeals Chamber finds that it is possible that they are affected by the Impugned Decision, in particular because the Impugned Decision was the result of reparations proceedings in which they participated and made submissions.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 71. “[T]he OPCV is entitled to bring an appeal with regard to those individuals in respect of whom it was appointed as a legal representative. However, the Appeals Chamber considers that the unidentified individuals referred to above [who have not submitted applications but may benefit from an award pursuant to rules 97 and 98] cannot have a right to appeal because at this stage of the proceedings it is impossible to discern who would belong to this group as no concrete criteria exist [. . .]. This is without prejudice to the OPCV potentially being invited to make submissions on behalf of such individuals at a later stage in the proceedings [. . .].” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 72.

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III Grounds of Appeal, Variation of Grounds and Standards of Review 1 Grounds of Appeal 1.1 The Statute and the Rules do not List the Grounds of Appeal “[A]rticle 82(1)(a) of the Statute does not, as does article 81(1), spell out the grounds on which appeals under the provision may be based. Nevertheless, absence of statutory grounds does not preclude a party from raising any grounds, either substantive or procedural, that may be germane to the legal correctness or procedural fairness of the Chamber’s decision.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 46. “Neither the Statute nor the Rules of Procedure and Evidence provide for what grounds can be raised on appeal pursuant to article 82(1)(a) of the Statute [. . .]. In the absence of specification of any grounds the parties are at liberty to raise any relevant ground of appeal, including the grounds as specified under article 82(1)(a) and (b).” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 32–33. “Pursuant to article 81(1)(b) of the Statute, in an appeal against a Conviction Decision, the convicted person may raise (i) procedural errors, (ii) errors of fact, or (iii) errors of law, as well as (iv) ‘[a]ny other ground that affects the fairness or reliability of the proceedings or decision’. Article 83(2) of the Statute also establishes that the Appeals Chamber may only interfere with a Conviction Decision if the error of fact or law or a procedural error ‘materially affected’ that decision, and, in respect of unfairness allegations, that the unfairness ‘affected the reliability of the decision’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 16. See also paras. 30, 56.

1.2 Appealable Errors: Errors of Fact, Law and Procedure “The Prosecutor in his document in support ‘submits that it is appropriate to import into article 82 the categories of error in article 81 that can meaningfully be transposed to interlocutory appeals, namely, the core errors in article 81(1)(a): procedural error, error of fact or error of law’ [. . .]. The procedure adopted by the Prosecutor in this regard is acceptable.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 34–35.

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con duc t o f ap pe a l s “The Appeals Chamber may justifiably interfere if the findings of the PreTrial Chamber are flawed on account of a misdirection on a question of law, a misappreciation of the facts founding its decision, a disregard of relevant facts, or taking into account facts extraneous to the sub judice issues.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 25; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, ICC-01/05-01/08-323 OA, 16 December 2008, para. 52; Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 61; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 45; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 16. “[T]he Appeals Chamber will not review the findings of the Pre-Trial Chamber de novo, instead it will intervene in the findings of the Pre-Trial Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned Decision.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red, 2 December 2009, para. 62; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 44; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 15. “[A]s part of the reasons in support of a ground of appeal, an Appellant is obliged not only to set out the alleged error, but also to indicate, with sufficient precision, how this error would have materially affected the Impugned Decision.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 44; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 96. “In the absence of the identification of a clear error, and to the extent that an ‘Appellant’s mere disagreement with the conclusions that the Pre-Trial Chamber drew from the available facts or the weight accorded to particular factors is not enough to establish a clear error’ [. . .].” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 103.

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1.3 Procedural Errors “[A]n Appellant may raise procedural errors in an appeal brought under article 82(1)(a) of the Statute. Accordingly, in this case, Counsel for the Defence is entitled to rely on procedural errors as the basis for impugning the Pre-Trial Chamber’s decision; his failure to attack its findings on admissibility does not per se render the appeal inadmissible.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 47; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 101. “[R]egarding procedural errors, the Appeals Chamber has held that such errors may occur in the proceedings leading up to an Impugned Decision. Therefore, in relation to an appeal against a Conviction Decision, an allegation of a procedural error may be based on events which occurred during the trial proceedings and pre-trial proceedings.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 20; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 21. “However, for such errors [procedural errors raised in appeals under article 82(1)(a)] to lead to a reversal of the decision on admissibility, they must have materially affected the decision.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 87; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 85; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 44; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/ 04-01/05-408 OA3, 16 September 2009, para. 48. See also Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/ 08-1019 OA4, 19 November 2010, para. 69; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962-Corr OA3, 19 October 2010, para. 102.

1.4 Errors of Fact “The Appeals Chamber has held that a Pre-Trial or Trial Chamber commits an error of fact if it misappreciates facts, disregards relevant facts or takes into account facts extraneous to the sub judice issues.”

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con duc t of ap p ea l s Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 16; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 45; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 56; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 55; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 16; Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 51. See also Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, para. 87. “In support of this ground of appeal, Mr Bemba argues that the Trial Chamber accorded insufficient weight to some facts or failed to take into account relevant facts. Thus, the Appeals Chamber considers that Mr Bemba is alleging errors of fact.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 62. “It is, however, unclear on what factual basis the Pre-Trial Chamber concluded that such less intrusive measures existed. This fact and the arguments put forward by the Prosecutor in his Document in Support of the Appeal call into question the viability of these alternative measures in a manner that suggests that the Pre-Trial Chamber may not have taken all relevant factors into account.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 103. “The Appeals Chamber finds that Mr Mbarushimana’s arguments concerning these additional factors comprise primarily a list of disagreements with either the conclusions drawn by the Pre-Trial Chamber from the available facts or the weight accorded to particular instances of his past alleged good behaviour. At most, he has merely offered alternative conclusions which could have been drawn by the Pre-Trial Chamber. He has not established any clear errors in either the inferences drawn by the PreTrial Chamber from the available evidence or in the weight that it accorded to each factor. The question is not whether the Pre-Trial Chamber could also have reached other conclusions. The question is whether the Pre-Trial Chamber could not have reasonably reached the conclusions it did on the available evidence.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 31;

juri sprudence Prosecutor v. Gbagbo, Judgment on Interim Release, ICC-02/11-01/11278-Red OA, 26 October 2012, para. 52. “The Prosecutor states that under the first ground of appeal, she is alleging errors of law. Nevertheless, the Appeals Chamber considers that, to the extent that the alleged errors are based on challenges to the Trial Chamber’s factual finding, her arguments under the first ground of appeal must be assessed against the standard of review for alleged factual errors, since in order to analyse the Prosecutor’s arguments, the Appeals Chamber is required to review the Trial Chamber’s factual findings, and it is therefore appropriate to apply the standard of review for alleged factual errors.” Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 44. “Appellants alleging factual errors need to set out in particular why the Trial Chamber’s findings were unreasonable. In that respect, repetitions of submissions made before the Trial Chamber as to how the evidence should be assessed are insufficient if such submissions merely put forward a different interpretation of the evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 33.

1.5 Errors of Law “Grounds of appeal for appeals brought under article 82(1)(d) of the Statute can include those grounds that are listed at article 81(1)(a) of the Statute, which includes errors of law.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 19. “[T]he Impugned Decision fundamentally was not based on the Trial Chamber’s discretionary trial management powers. Rather, it was premised on an erroneous interpretation of the law. Accordingly, the Impugned Decision must be reversed.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 29. “Whether an error or the material effect of that error has been sufficiently substantiated will depend on the specific argument raised, including the type of error alleged. With respect to legal errors, the Appeals Chamber, as set out above, ‘will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law’. Accordingly, the Appellant has to substantiate that the Trial Chamber’s interpretation of the law was incorrect; contrary to the arguments of the

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con duc t of ap p ea l s Prosecutor raised elsewhere in her Response to the Document in Support of the Appeal, this may be done, including by raising arguments that were previously put before the Pre-Trial and/or Trial Chamber. In addition, the Appellant must substantiate that the decision under review would have been substantially different, had it not been for the error.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 31, see also para. 18.

2

Variation of Grounds of Appeal before the Appeals Chamber: Regulation 61

“Regarding whether a ‘variation’ includes the addition of a new ground, the Appeals Chamber notes that the Appeals Chambers of the International Tribunals for the former Yugoslavia and for Rwanda (hereinafter: ‘ICTY/ICTR’) interpret the term ‘variation’ in their respective Rules of Procedure and Evidence to include both ‘new or amended’ grounds of appeal, provided that good cause is shown why ‘those grounds were not included (or were not correctly phrased)’. The Appeals Chamber considers that the term ‘variation’ (‘modification’ in French) in regulation 61 of the Regulations of the Court should be interpreted in the same manner.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 7 (emphasis added). “[R]egulation 61(1) and (2) of the Regulations of the Court requires the requesting party to set out the reasons in support of the variation, as well as to request the variation ‘as soon as the reasons warranting it become known’. The Appeals Chamber considers that the 23 December 2013 Request sufficiently sets out the reasons in support of the requested variation, that is, the discovery of the allegedly non-disclosed documents on which the new ground of appeal is based, and that the Request was made within a reasonable time, namely, within approximately three weeks from when Mr Lubanga became aware of this alleged non-disclosure.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 9. “The Appeals Chamber notes that Mr Lubanga’s legal and factual reasons in support of the additional ground of appeal are already contained in the 23 December 2013 Request. The Appeals Chamber recalls that under regulation 61 of the Regulations of the Court, an Appellant must first file an application for variation of grounds to appeal; the amended document in support of the appeal may only be filed once the Appeals Chamber has granted the variation. Nevertheless, in the circumstances

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of the present case, the Appeals Chamber does not consider it necessary to receive additional document[ation] from Mr Lubanga pursuant to regulations 58 and 61(4) of the Regulations of the Court.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 11. “[B]eyond the formal requirements cited above [that the requesting party set out the reasons in support of the variation and request it as soon as reasons become known], regulation 61 of the Regulations of the Court contains no further guidance regarding any applicable standards for granting a request for variation. The Appeals Chamber therefore considers that it is within its discretionary authority to grant or deny the request.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 10. “The Appeals Chamber considers that the new ground of appeal, namely, the non-disclosure of material potentially relevant to the finding of the use of children under the age of fifteen years within the UPC Presidential Guard, seeks to call into question the reliability of a considerable part of the findings upon which Mr Lubanga’s conviction is based. Further, the addition of this new ground would not significantly delay the proceedings or prejudice the rights of Mr Lubanga, as the Appeals Chamber has procedural means to avoid lengthy and time-intensive submissions on this issue. Accordingly, the Appeals Chamber considers it appropriate to grant the request.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 10.

3 Standards of Review129 3.1 Standard of Review in Discretionary Decisions a The Appeals Chamber will Interfere only if there is a Legal Error, a Factual Error or a Procedural Error “[T]he Appeals Chamber [. . .] will not interfere with a discretionary decision of another Chamber unless that decision is vitiated by a legal error, a factual error or a procedural error, and only if the error materially affected the decision.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 129

Note that the standards of review have been grouped in different categories. However, in some cases there is an overlap: that is, between discretionary decisions (subsection 3.5) and interim release (mentioned under subsection 3.5(b), Decisions granting or denying release).

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c on duct of a pp e al s 12 July 2010, para. 34, citing Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05408 OA3, 16 September 2009, para. 80; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/0901/11-307 OA, 30 August 2011, para. 89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 87. “[T]he Appeals Chamber will interfere with a discretionary decision only under limited conditions. The jurisprudence of other international tribunals as well as that of domestic courts endorses this position. They identify the conditions justifying appellate interference to be: (i) where the exercise of discretion is based on an erroneous interpretation of the law; (ii) where it is exercised on patently incorrect conclusion of fact; or (iii) where the decision is so unfair and unreasonable as to constitute an abuse of discretion.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 80, citing Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/0901/11-307 OA, 30 August 2011, paras. 89, 98, 110; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, paras. 87, 96, 108; Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 60; Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15-251 OA3, 17 June 2015, para. 35; Prosecutor v. Banda, Judgment on the Abdallah Banda Arrest Warrant Appeal, ICC02/05-03/09-632-Red, 3 March 2015, para. 30; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271-Corr A, 7 April 2015, para. 21. “[T]he Appeals Chamber’s functions extend to reviewing the exercise of discretion by the Pre-Trial Chamber to ensure that the Chamber properly exercised its discretion. However, the Appeals Chamber will not interfere with the Pre-Trial Chamber’s exercise of discretion under article 19(1) of the Statute to determine admissibility, save where it is shown that that determination was vitiated by an error of law, an error of fact or a procedural error, and then, only if the error materially affected the determination.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 80; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307

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OA, 30 August 2011, para. 89; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/0902/11-274 OA, 30 August 2011, para. 87. See also Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/ 08-631-Red OA2, 2 December 2009, para. 62.

b The Appeals Chamber will Intervene only when the Lower Chamber has Exercised its Discretion Incorrectly “[T]he Appeals Chamber will not reverse the Impugned Decision simply because it would have decided differently. It can only do so when it finds that the Trial Chamber exercised its discretion incorrectly.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 34. The Appeals Chamber also indicated that it could review “whether the Trial Chamber has correctly exercised its discretion in reaching that decision” on the basis of whether the Trial Chamber “[gave] weight to extraneous or irrelevant considerations, [or] failed to give weight or sufficient weight to relevant considerations”. Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 81. “The Appeals Chamber will not interfere with a Pre-Trial or Trial Chamber’s evaluation of the evidence just because the Appeals Chamber might have come to a different conclusion. It will interfere only in the case of a clear error, namely, where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 1, 17; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 56; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 55; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 45; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1722 OA8, 9 September 2011, para. 34; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 16.

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co nd uct of ap p e al s “The Appeals Chamber reviews discretionary decisions of the Pre-Trial and Trial Chambers with some deference. It is the Appeals Chamber’s jurisprudence that it is not conducting a de novo review and therefore cannot substitute its discretion with the discretion of the Pre-Trial or Trial Chamber. Rather, the Appeals Chamber will intervene only if the exercise of discretion amounted to an abuse of discretion.” Prosecutor v. Ruto, Kosgey & Sang, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-01/11-336 OA, 20 September 2011, para. 15. Diss. Op.; Prosecutor v. Muthaura, Kenyatta & Ali, Dissenting Opinion of Judge Ušacka in the Judgment on the Admissibility Appeal, ICC-01/09-02/11-342 OA, 20 September 2011, para. 15. Diss. Op.

c

Assessment of the Evidence “[A]appraisal of evidence lies, in the first place, with the Pre-Trial Chamber.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 17; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 16. “The Appeals Chamber will defer to this finding of the Trial Chamber in the absence of any concrete substantiation as to how the finding was erroneous. This is because the Trial Chamber is better placed to assess the accuracy of Mr Katanga’s assertions.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 75. “In reviewing a claim that a Pre-Trial or Trial Chamber has misappreciated facts in a decision on interim release, the Appeals Chamber will defer or accord a margin of appreciation both to the inferences that Chamber drew from the available evidence and to the weight it accorded to the different factors militating for or against detention.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, paras. 1, 17. See also Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 56; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 45; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 16.

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3.2 Standard of Review in Errors of Fact a Standard of Review in Errors of Fact in General “Regarding an alleged error of fact, the Appeals Chamber has ruled in previous decisions that its review is corrective and not de novo. It will therefore not interfere unless it is shown that the Pre-Trial or Trial Chamber committed a clear error, namely: misappreciated the facts, took into account irrelevant facts or failed to take into account relevant facts.” Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 56; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011, para. 55, citing Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 62; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 15; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 21; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271-Corr A, 7 April 2015, para. 22. “As to the ‘misappreciation of facts’, the Appeals Chamber has also stated that it ‘will not disturb a Pre-Trial or Trial Chamber’s evaluation of the facts just because the Appeals Chamber might have come to a different conclusion. It will interfere only in the case where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it’.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 21; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 22. “Therefore, the Appeals Chamber ‘must a priori lend some credibility to the Trial Chamber’s assessment of the evidence proffered at trial’. However, the Appeals Chamber’s intervention is required when ‘an unreasonable assessment of the facts of the case’ carried out by the Trial Chamber ‘may have occasioned a miscarriage of justice’, which constitutes a factual error. The ICTY Appeals Chamber has stated that what constitutes an erroneous evaluation of the evidence can only be determined on a case-by-case basis and that ‘[t]he Appeals Chamber cannot and should not legislate the circumstances that suffice to meet this test’.” Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 24.

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b Standard of Review in Errors of Fact where the Prosecution Appeals an Acquittal “Accordingly this standard has been articulated by the Appeals Chamber of the ad hoc tribunals with respect to alleged factual errors in an acquittal decision as follows: ‘[C]onsidering that it is the Prosecution that bears the burden at trial of proving the guilt of the accused beyond reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a Defence appeal against conviction. A convicted person must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.’” Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 25. “Furthermore, the Appeals Chamber notes that the ICTY Appeals Chamber held in relation to an acquittal decision that ‘[it] will reverse only if it finds that no reasonable trier of fact could have failed to make the particular finding of fact beyond reasonable doubt and the acquittal relied on the absence of this finding’. The Appeals Chamber considers that, given that the onus is on the Prosecutor to prove the guilt of the accused (see article 66(2) of the Statute), such an approach to alleged factual errors in appeals by the Prosecutor pursuant to article 81(1)(a) of the Statute against an acquittal decision is appropriate.” Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 26.

3.3

Standard of Review in Errors of Law “The Appeals Chamber has repeatedly held that its review is corrective in nature and not de novo. On questions of law, the Appeals Chamber will not defer to the Trial Chamber’s interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.” Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/0503/09-295 OA2, 17 February 2012, para. 20, citing Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 15; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321

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OA2, 12 December 2012, para. 76; Prosecutor v. Ongwen, Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters, ICC-02/04-01/15-251 OA3, 17 June 2015, para. 30; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 18; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271Corr A, 7 April 2015, para. 20. Note that in a case where the Appeals Chamber found that the Pre-Trial Chamber had applied an incorrect legal standard in applying article 12(1) (b) of the Code of Professional Conduct for Counsel130 (where counsel must have had knowledge of any confidential information relating to the case in which counsel seeks to appear in order to be barred from representing the client in that case), “the Pre-Trial Chamber [was] directed to decide anew on the question of whether to invalidate the appointment of Mr Faal in light of the present judgment”, but only in respect to “the ambiguity of the Impugned Decision as to whether or not Mr Faal had knowledge of any confidential information”. Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on the Appointment of Defence Counsel, ICC-01/09-02/11-365 OA3, 10 November 2011, para. 72.131

3.4 Standard of Review in Procedural Errors “With respect to procedural errors, the substantiation required will also depend on the precise type of error alleged. To the extent that the Appellant is arguing that a mandatory procedural provision was violated, this has to be sufficiently substantiated both in fact and in law. To the extent that a discretionary decision of the Trial Chamber is at issue, the arguments of the Appellant must be tailored to the specific standard of review for such decisions. Further, when alleging such an error, the Appellant must substantiate specifically how the error materially affected the impugned decision.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 32. 130

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Code of Professional Conduct for Counsel, 2 December 2005, in force 1 January 2006, ICC-ASP/4/Res.1. Note that in another case where the same issue was raised, the Appeals Chamber found that although the Pre-Trial Chamber had erred in applying the relevant standard, its application was insignificant to the facts of the case because the Pre-Trial Chamber had not found that Mr Yillah had knowledge of any confidential information. Prosecutor v. Banda & Jerbo, Judgment on the Appointment of Defence Counsel, ICC-02/05-03/09252 OA, 11 November 2011, para. 34. Thus, the Appeals Chamber will not revert to the Pre-Trial Chamber in all cases where an error of law is found.

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Application of the Standard of Review to Specific Decisions

a Admissibility Decisions “The function of the Appeals Chamber in respect of appeals brought under article 82(1)(a) of the Statute is to determine whether the determination on the admissibility of the case or the jurisdiction of the Court was in accord with the law.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 80; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/ 09-02/11-202 OA, 28 July 2011, para. 10; Prosecutor v. Ruto, Kosgey & Sang, Decision on Kenya’s Filing of an Updated Investigation Report, ICC-01/09-01/11-234 OA, 28 July 2011, para. 11. “The Appeals Chamber will not interfere with the Pre-Trial Chamber’s exercise of discretion to make a determination proprio motu on the admissibility of a case merely because the Appeals Chamber, if it had the power, might have made a different ruling. To do so would be to usurp powers not conferred on it and to render nugatory powers specifically vested in the Pre-Trial Chamber.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, paras. 79–80; Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/ 09-01/11-1066 OA5, 25 October 2013, para. 60. “The Appeals Chamber has previously held that it may justifiably interfere with a sub judice decision ‘if the findings of the [Chamber] are flawed on account of a misdirection on a question of law, a misappreciation of the facts founding its decision, a disregard of relevant facts, or taking into account facts extraneous to the sub judice issues’. The Appeals Chamber considers that this standard of review is equally applicable when reviewing a decision on the admissibility of a case.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 63.

b Decisions Granting or Denying Release Regarding the standard of review for appeals granting or denying release, the Appeals Chamber has previously held that it “will not review the findings of the Pre-Trial Chamber de novo, instead it will intervene in the findings of the Pre-Trial Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned Decision”. Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 62; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim

jurisprudence Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 15; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1626-Red OA7, 19 August 2011, para. 44; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 47; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 18. “[A]ppraisal of the evidence relevant to continued detention lies, in the first place, with the Pre-trial Chamber.” Prosecutor v. Katanga & Ngudjolo, Judgment on Ngudjolo’s Interim Release Appeal, ICC-01/04-01/07-572 OA4, 9 June 2008, para. 25; Prosecutor v. Bemba, Judgment on Bemba’s Interim Release Appeal, 01/ 05-01/08-323 OA, 16 December 2008, para. 52; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, para. 45; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 17; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 16. “Therefore, in determining whether a Pre-Trial or Trial Chamber has misappreciated facts in a decision on interim release, the Appeals Chamber will ‘defer or accord a margin of appreciation both to the inferences [that the Pre-Trial or Trial Chamber] drew from the available evidence and to the weight it accorded to the different factors militating for or against detention’ and ‘will interfere only in the case of a clear error, namely, where it cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-1937-Red2 OA9, 23 November 2011, para. 48, citing Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 17.

c

Decisions on Staying the Trial Proceedings “A Trial Chamber ordering a stay of the proceedings enjoys a margin of appreciation, based on its intimate understanding of the process thus far, as to whether and when the threshold meriting a stay of proceedings has been reached [. . .]. [T]he Appeals Chamber in the present case is not persuaded that the conclusion of the Trial Chamber that the proceedings must be stayed exceeded this margin of appreciation and therefore was erroneous.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/061486 OA13, 21 October 2008, para. 84; Prosecutor v. Lubanga, Judgment

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con duc t o f ap pe al s on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/062582 OA18, 8 October 2010, para. 56. The Appeals Chamber added that “[it] should not substitute its judgment for that of the Trial Chamber but rather should review whether the Trial Chamber went beyond its margin of appreciation in determining that the threshold was met”. Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 56.

IV Procedure on Appeal “An interlocutory appeal of this nature, in which a particular issue requires specific consideration, is a separate and distinct stage of the proceedings.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 43. Even where the first instance proceedings were conducted under seal, “[m]indful of its discretion in the conduct of its own proceedings to determine whether this characterisation of the proceedings should continue to have force and effect on appeal, the Appeals Chamber in the order pursuant to regulation 28 requested the Prosecutor to explain the factual and legal bases for the filing of the appeal under seal and ex parte, Prosecution only”. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 20.

1 Parties to an Appeal 1.1 Prosecution and Defence “In accordance with the introductory statement of paragraph 1 of article 82, an appeal under its provisions may be raised by either party to the proceedings, that is, the Prosecution and the defence. The counter-party to the appeal, the respondent, is the other party to the proceedings. The Registrar is not a party to or a participant in the proceedings [. . .]. Nowhere in the Statute is a right conferred upon the Registrar or the Registry to participate as of right in any proceedings before the Court.” Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judge Pikis in Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675, 11 July 2008, para. 4. Diss. Op.

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“[I]n the specific circumstances of the present appeal and in order to remedy the on-going violation of the Detained Witnesses’ human right to judicial review of their detention, article 82(1) of the Statute should be interpreted to include the Detained Witnesses as a ‘party’. In this context, I note that pursuant to article 82(1)(a) of the Statute, States that challenge the admissibility of a case may then also appeal ‘decisions with respect to [. . .] admissibility’. This clearly demonstrates that the term ‘party’ within the meaning of article 82(1) of the Statute is not restricted to the parties in the ‘classical’ sense, that is, the Prosecutor and the Defence.” Prosecutor v. Katanga, Dissenting Opinion of Judge Song in Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424-Anx OA14, 20 January 2014, para. 18. “Under article 82(4) of the Statute, appeals against an order for reparations may be brought by ‘[a] legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75’.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 65. “Under regulation 59 of the Regulations of the Court, ‘[a] participant may file a response within 60 days of notification of the document in support of the appeal as described in regulation 58’ [. . .]. The Prosecutor, not being a party to [reparations] proceedings, is not invited to submit a response to the documents in support of the appeals.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 74.

1.2 Standing of States to File Interlocutory Appeals under Article 82(1)(a) In the two Kenya cases, the Appeals Chamber ruled on the appeals filed by Kenya against the Pre-Trial Chamber’s decisions on the admissibility of the case and did not even consider the issue of Kenya’s standing. Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-02/11-274 OA, 30 August 2011. In the Kenya situation, the Appeals Chamber implicitly held that Kenya had standing to appeal an admissibility decision when it had filed the challenge: “Article 82(1)(a) of the Statute must be read in conjunction

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con duc t of ap p ea l s with articles 18 and 19 of the Statute. Article 18(4) of the Statute provides that the State concerned or the Prosecutor may appeal to the Appeals Chamber against a preliminary ruling of the Pre-Trial Chamber regarding admissibility in accordance with article 82 of the Statute. Article 19 of the Statute provides that the Court may decide on the admissibility of a case either on its own motion, on request of the Prosecutor or in response to a challenge brought by certain specified persons or States. Article 19(6) of the Statute provides that ‘[d]ecisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82’. In the view of the Appeals Chamber, the specific references to article 82 of the Statute and the use of identical language in articles 19(6) and 82(1)(a) of the Statute indicate that the right to appeal a decision on jurisdiction or admissibility is intended to be limited only to those instances in which a Pre-Trial or Trial Chamber issues a ruling specifically on the jurisdiction of the Court or the admissibility of the case.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 16.

1.3

Other Participants in Interlocutory Appeals “[I]t is left to the discretion of the Appeals Chamber to grant leave to any State, organisation or person to submit observations” under rule 103. Prosecutor v. Lubanga, Decision on International Criminal Bar Amicus Curiae Motion, ICC-01/04-01/06-1289 OA11, 22 April 2008, para. 8. See also Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 10. “Pursuant to regulation 24bis(1) of the Regulations of the Court [. . .] ‘[t]he Registrar, when necessary for the proper discharge of his or her functions, insofar as they relate to any proceedings, may make oral or written submissions to a Chamber with notification to the participants’ [. . .], Reading articles 43(6) and 68(4) of the Statute together with regulation 24bis(1) of the Regulations of the Court, and in light of the subject-matter of the instant appeal [the role of the Prosecutor and the Victims and Witnesses Units in relocating witnesses], the Appeals Chamber considered that the filing by the Registrar was legitimately made. In this regard, the Appeals Chamber considered it appropriate and of assistance to it in the circumstances of this appeal to hear from the Registrar.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation, ICC-01/04-01/07-675 OA7, 11 July 2008, paras. 3–4.

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2 The Appeals Chamber may Consider Preliminary Issues Prior to the Merits “[F]or reasons of procedural economy, the Appeals Chamber departed from the usual procedure in appeals brought under article 82(1)(b) of the Statute and singled out the question of admissibility for determination prior to the submission of the document in support of the appeal pursuant to regulation 64(2) of the Regulations of the Court.” Prosecutor v. Lubanga, Separate Opinion of Judge Song in the Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision, ICC-01/04-01/06-925 OA8, 13 June 2007, para. 22. Sep. Op.

3 Replies and Additional Submissions in Interlocutory Appeals: Regulations 24 and 28 3.1 Procedural Principles “In a decision arising in the case of Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, the Appeals Chamber explained that for reasons of efficiency it deemed it ‘appropriate for an Appellant who wishe[d] to reply to a participant’s response to a document in support of the appeal, to first seek leave of the Appeals Chamber under regulation 24(5) of the Regulations of the Court’.” Prosecutor v. Ntaganda, Decision on Ntaganda’s Request for Leave to Reply, ICC-01/04-02/06-1813 OA5, 3 March 2017, para. 6. See also Prosecutor v. Gbagbo & Blé Goudé, Judgment on Gbagbo’s Appeal against the Ninth Review Decision on his Detention, ICC-02/11-01/15-208 OA6, 8 September 2015, paras. 26–27. “The Appeals Chamber is cognisant that the departure from its previous jurisprudence occurred in the context of an appeal arising pursuant to article 82(1)(b) of the Statute. Subsequently, the Appeals Chamber applied this interpretation in an appeal arising under article 82(1)(d). The Appeals Chamber considers that there is no reason for not applying the same interpretation to appeals arising pursuant to article 82(1)(a) of the Statute, as is the case at hand. Accordingly, the Prosecutor’s submissions on the correct legal basis for the Request are dismissed.” Prosecutor v. Ntaganda, Decision on Ntaganda’s Request for Leave to Reply, ICC-01/04-02/06-1813 OA5, 3 March 2017, para. 7. See also Prosecutor v. Gbagbo & Blé Goudé, Decision on Gbagbo’s Request for Leave to Reply, ICC-02/11-01/15-284 OA7, 9 October 2015, para. 11. “The Appeals Chamber considers that its decision [. . .] left open the possibility of a Chamber being moved to act pursuant to regulation 28 of the Regulations [. . .]. ‘[I]t may be regarded as axiomatic that, if any

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con duc t o f ap pe a l s power is conferred upon a court to make an order or issue a decision, the parties have an implicit right to move the Chamber to exercise it’ [. . .] the Appeals Chamber considers that a Chamber may act pursuant to regulation 28 of the Regulations upon request or upon its own motion.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, paras. 17–18. “[S]hould the arguments that are raised in a response to a document in support of the appeal make further submissions by the Appellant necessary for the proper disposal of the appeal, the Appeals Chamber will issue an order to that effect pursuant to regulation 28(2) of the Regulations of the Court, bearing in mind the principle of equality of arms and the need for expeditious proceedings.” Prosecutor v. Lubanga, Decision on the Application for Leave to Reply, ICC-01/04-1/06-424 OA3, 12 September 2006, para. 7; Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 16; Prosecutor v. Ngudjolo, Decision on the Defence Request to Reply, ICC-01/04-01/ 12-43 OA, 20 March 2013, para. 12; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on Kenya’s Application for Leave to Reply to the Prosecution’s Response, ICC-01/09-02/11-206 OA, 1 August 2011, para. 8. “[T]he Appeals Chamber has also held that, ‘should the arguments that are raised in a response to a document in support of the appeal make further submissions by the Appellant necessary for the proper disposal of the appeal, the Appeals Chamber will issue an order to that effect pursuant to regulation 28(2) of the Regulations of the Court, bearing in mind the principle of equality of arms and the need for expeditious proceedings’.” Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the Libyan Government’s Request to File Further Submissions, ICC-01/ 11-01/11-442 OA4, 12 September 2013, para. 12, citing Prosecutor v. Lubanga, Decision on the Application for Leave to Reply, ICC-01/ 04-01/06-424 OA3, 12 September 2006, paras 6, 7. See also Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on Mr Al-Senussi’s Request to File Further Submissions and Related Issues, ICC01/11-01/11-508 OA6, 6 February 2014, para. 17. “Assuming that the Appeals Chamber had ‘questions and concerns’, an oral hearing would not necessarily be the only procedural option the Chamber would employ to solicit and receive answers to those ‘questions and concerns’. The Appeals Chamber could also avail itself of regulation 28 of the Regulations of the Court to ‘clarify’, ‘provide additional details’ or ‘address specific issues’ by way of written submissions.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 12; Prosecutor

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v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 12. “The Appeals Chamber disapproves of a practice of the filing of a substantive reply prior to leave being granted by the Appeals Chamber, which in and of itself may also give rise to the rejection of an application for leave. If a participant anticipates that the Appeals Chamber might not be in position to dispose of such an application prior to the expiration of the time limit for the filing of a reply, the proper procedural avenue is to file, together with the application for leave to reply, an application for the extension of the time limit.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 68.132 “The Appeals Chamber recalls that there is no specific provision dealing with replies in the case of requests for suspensive effect pursuant to article 82(3) of the Statute. Rule 156(5) of the Rules of Procedure and Evidence simply regulates the filing of the request itself. However, regulation 24(5) of the Regulations of the Court provides that ‘[p]articipants may only reply to a response with the leave of the Chamber, unless otherwise provided in these Regulations’. It is, therefore, possible for the Appeals Chamber to grant leave to a participant to file a reply.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect and Related Issues, ICC-01/11-01/11-387 OA4, 18 July 2013, para. 15. “[S]ubmissions under regulation 28 of the Regulations of the Court are not intended to reiterate a position or demonstrate mere disagreements with the position of another party.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libyan Government’s Request to File Further Submissions, ICC-01/11-01/11-442 OA4, 12 September 2013, para. 13.

3.2 Factors Relevant for Leave to Present Additional Submissions or Authorities “[T]he terms of the Impugned Decision might have been ambiguous to the Appellant, bearing in mind that he had not been privy to the ex parte proceedings before the Pre-Trial Chamber upon which the Impugned Decision was based.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 19. 132

On the merits, the Appeals Chamber found that the content of the Prosecutor’s Application constituted a substantive reply to issues raised by the Appellant.

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con duc t o f ap pe al s “[I]t would not have been in the interests of justice to deprive the Appellant of the opportunity to make informed submissions in the circumstances of the present case [. . .]. [G]iven: (i) the importance of the issue on appeal in shaping the disclosure process in this and in other cases; (ii) the fact that the Appellant had not been involved in the ex parte proceedings that led to the Impugned Decision; and (iii) the fact that restrictions to the disclosure process are likely to be addressed, at least in part, in the context of ex parte proceedings, making the involvement of the Defence in this appeal especially important, the Appeals Chamber considered that the receipt of additional details from the Appellant, specifically targeted at the issue on appeal in light of the Prosecutor’s clarification, was necessary for the proper determination of the appeal in the unusual situation that had arisen.” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 20. “[T]he Appeals Chamber allowed the submission of the supplementary list of authorities and thereby of details of a recent decision by the Appeals Chamber of the ICTY, ‘without accompanying argument’, on the basis that it may be of assistance to the Appeals Chamber in deciding on this appeal.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, para. 16.

3.3

Factors against Leave to Reply or to Present Additional Submissions or Authorities The issue to be addressed in the proposed reply “is unnecessary and is not relevant to the deliberations of the Appeals Chamber”. Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 67. “[T]he reasons which Kenya now puts forward for seeking leave to reply comprise a reiteration of the arguments it put forward in the appeal, a substantive reply to the Prosecutor’s Response and arguments concerning the merits of the appeal. The Appeals Chamber does not consider that Kenya’s intended submissions would provide any new or additional information or arguments which would assist it in resolving the issue of the admissibility of the appeal.” Situation in Kenya, Decision on the Admissibility of Kenya’s Appeal and Leave to Reply, ICC-01/09-78 OA, 10 August 2011, para. 9.

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4 Discontinuance of an Interlocutory Appeal “The Appellant need not provide reasons for discontinuing and may exercise this right at any time before judgment is delivered. A notice of discontinuance is neither subject to approval by nor acknowledgement from the Court.” Prosecutor v. Lubanga, Decision on Discontinuance of Appeal, ICC-01/04-01/06-176 OA2, 3 July 2006, para. 8. “A notice under rule 157 does not require any action by the Chamber and should deal exclusively with the discontinuance.” Prosecutor v. Lubanga, Decision on the Application for Referral to the Pre-Trial Chamber or Discontinuance of Appeal, ICC-01/04-01/06-393 OA2, 6 September 2006, para. 12. “Discontinuance of an appeal subject to reservations is not foreseen in either the Statute or the Rules of Procedure and Evidence, and that includes reservations relevant to the future conduct of the proceedings. As such, the Appeals Chamber is not vested with discretion to sanction discontinuance of an appeal subject to conditions.” Prosecutor v. Lubanga, Decision on Discontinuance of Appeal, ICC-01/04-01/06-176 OA2, 3 July 2006, para. 9. “[O]n its face [Rule 157], only provides for the discontinuance of an appeal in its entirety, and not for the discontinuance of certain grounds of appeal [. . .]. The Appeals Chamber considers that it is not necessary for the purpose of the present case to determine whether such partial discontinuance could ever be based on rule 157 of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, para. 16. “The Notice of Discontinuance can in any event be treated as an indication by the Prosecutor to the Appeals Chamber of a desire to withdraw his first two grounds of appeal. In the present case, however, the Notice of Discontinuance is without effect because the questions raised under the first two grounds are inextricably linked to the third ground of appeal, which the Prosecutor wishes to maintain. Even if the Prosecutor had never raised the first and second grounds of appeal, the Appeals Chamber would have had to consider the issues raised thereunder as part of its consideration of the arguments raised under the third ground of appeal.” Prosecutor v. Lubanga, Judgment on Article 54(3)(e), ICC-01/04-01/06-1486 OA13, 21 October 2008, paras. 16–17.

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con duc t of ap p ea l s “The Prosecutor ‘thus considers that the Second Issue has been rendered moot by the Single Judge’s decision [. . .]. The Prosecution therefore discontinues the appeal, in respect of the Second Issue only, pursuant to Rule 157’ [. . .]. [R]ecalling that the Appeals Chamber had previously decided that a notice of discontinuance must deal exclusively with discontinuance, the Prosecutor submits that if the Appeals Chamber finds that he cannot discontinue the Second Issue, then he ‘does not intend to present any arguments or seek any relief in respect of the Second Issue and that [he] hereby abandons [his] appeal in respect of that issue only’ [. . .]. In light of the above, the Appeals Chamber has decided not to consider the Second Issue in respect of which leave to appeal has been granted.” Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/0401/07-776 OA7, 26 November 2008, paras. 11–12.

5 Oral Hearings before the Appeals Chamber 5.1 Oral Hearings in Interlocutory Appeals “Pursuant to rule 156(3) of the Rules of Procedure and Evidence, ‘[t]he appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing’. It is thus within the Appeals Chamber’s discretion to decide whether it should convene a hearing.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 25; Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 10; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 10; Prosecutor v. Ruto & Sang, Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial, ICC-01/09-01/11-1066 OA5, 25 October 2013, para. 16; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 10. “[F]or the Appeals Chamber to exercise its discretion and to depart from this norm [that proceedings on appeal should be conducted by way of written submissions] it must be furnished with cogent reasons that demonstrate why an oral hearing in lieu of, or in addition to, written submissions is necessary.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 10; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 10; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 10.

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5.2 Oral Hearings in Final Appeals “The Appeals Chamber considers that the decision to hold an oral hearing in appeal proceedings against final judgments is discretionary and made on a case-by-case basis. Such decisions should be based primarily on the potential utility of an oral hearing, namely, whether it would assist the Appeals Chamber in clarifying and resolving the issues raised in the appeal.” Prosecutor v. Ngudjolo, Scheduling Order for a Hearing before the Appeals Chamber, ICC-01/04-02/12-199 A, 18 September 2014, para. 13.

5.3 Factors Considered by the Appeals Chamber to Deny a Request for Oral Hearing a Delay the Resolution of the Appeal “[A]n oral hearing would be unnecessary in the present appeal and would only delay the consideration of the appeal in contravention of rule 156(4) of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 27. “[T]he holding of an oral hearing at such a late stage in the proceedings would unduly affect the expeditious resolution of the appeal, another factor for the rejection of the Request for an Oral Hearing.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 13; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 13; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request to Make Oral Submissions, ICC-01/09-02/11-421 OA4, 1 May 2012, para. 12.

b Matters Raised in Appeals under Rules 154 and 155 are Complex and Novel Issues “[M]any issues arising in appeals under rules 154 or 155 of the Rules of Procedure and Evidence are usually complex, and, particularly in the early years of the Court’s existence, many of them are novel. The present appeal is no exception. However, Kenya as well as the other parties and participants to the proceedings, have been given sufficient opportunity and have addressed the issues comprehensively and exhaustively in their written submissions. Kenya has failed to provide cogent reasons that would persuade the Appeals Chamber to exercise its discretion and convene a hearing.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 11; Prosecutor

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c

Oral Hearing is not the Only Option if the Appeals Chamber has Questions and Concerns “Assuming that the Appeals Chamber had questions and concerns, an oral hearing would not necessarily be the only procedural option the Chamber would employ to solicit and receive answers to those ‘questions and concerns’. The Appeals Chamber could also avail itself of regulation 28 of the Regulations of the Court to ‘clarify’, ‘provide additional details’ or ‘address specific issues’ by way of written submissions.” Prosecutor v. Ruto, Kosgey & Sang, Decision on the Request for an Oral Hearing, ICC-01/09-01/11-271 OA, 17 August 2011, para. 12; Prosecutor v. Muthaura, Kenyatta & Ali, Decision on the Request for an Oral Hearing, ICC-01/09-02/11-251 OA, 17 August 2011, para. 12.

6 Expeditiousness of Appeal Proceedings “[R]ule 156(4) of the Rules of Procedure and Evidence mandate the Appeals Chamber to hear an appeal ‘as expeditiously as possible’. However, this rule neither imposes any specific time limits on the Appeals Chamber nor provides for parties to request the Appeals Chamber to issue a decision or judgment within a specific time limit.” Prosecutor v. Mbarushimana, Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release, ICC-01/04-01/10-438 OA2, 21 September 2011, para. 14.

7 Summary Decisions are Authoritative Decisions “[T]he Summary of the Impugned Decision constituted, in itself, a decision denying provisional release, albeit in summary form. The Impugned Decision does not constitute a new decision but rather was issued for the purpose of providing ‘the Chamber’s full reasoning’ to its summary decision and did not contain any operative part. Thus, in the exceptional circumstances of needing to issue a decision within a very short timeframe, the Trial Chamber issued its decision in two parts, with the operative part of the decision being followed by the reasons for the decision. Accordingly, the Appeals Chamber finds that the appeal filed upon the notification of the Summary of the Impugned Decision was admissible.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1722 OA8, 9 September 2011, para. 27.

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V Replies and Responses in Appeal Proceedings 1 Responses: Regulation 59 “In light of this provision [regulation 59], the Appeals Chamber decides that the Legal Representatives of Victims V01 and the Legal Representative of Victims V02 jointly with the OPCV may file responses to the documents in support of the appeal submitted by Mr Lubanga, and vice versa.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 74. “Under regulation 59 of the Regulations of the Court, ‘[a] participant may file a response within 60 days of notification of the document in support of the appeal as described in regulation 58’ [. . .]. The Prosecutor, not being a party to [reparations] proceedings, is not invited to submit a response to the documents in support of the appeals.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 74.

2 Replies: Regulation 60 “The Appeals Chamber notes that ordering the filing of a reply lies within its discretion. Although not specifically mentioned in regulation 60 of the Regulations of the Court, an Appellant may request and, accordingly, trigger the powers of the Appeals Chamber to order the filing of a reply under said regulation.” Prosecutor v. Lubanga, Order on the Filing of a Reply under Regulation 60, ICC-01/04-01/06-2982 A5 A6, 21 February 2013, para. 6. See also Prosecutor v. Lubanga, Order on the Filing of a Reply under Regulation 60, ICC-01/04-01/06-3030 A3, 24 May 2013, para. 8.

VI Remedies on Appeal 1 Scope of the Issues to be Adjudicated by the Appeals Chamber “Ordinarily, the reversal of a decision sweeps away the judgment in its entirety and every matter associated therewith. In this case, the reversal of the decision is made by reference to one of the three issues certified for consideration by the Pre-Trial Chamber. And the question arises whether the other issues merit separate consideration by the Appeals Chamber. It appears that the issues posed affect the basic legal framework within which questions of non-disclosure and matters sequential thereto may be addressed. As far as it may be gathered, the issues identified for

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co nd uct of ap p e al s consideration by the Appeals Chamber may significantly affect the fair and expeditious conduct of the proceedings; their resolution will sequentially materially advance the proceedings. In such circumstances, answering them to the extent plausible will pave the way to confront them in light of the decision of the Appeals Chamber. And inasmuch as the Pre-Trial Chamber will examine anew the subject-matter of the application, the elucidation of the issues raised will no doubt both expedite the proceedings before the Pre-Trial Chamber and contribute to the fairness of their outcome.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/0401/06-774 OA6, 14 December 2006, para. 2. Sep. Op. “As an error has been identified in the decision by the Pre-Trial Chamber, it is appropriate in the present case to correct that error also in respect of the other participant because the error is made in the same decision.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 76. “While it is true that leave to appeal was neither sought nor granted in respect of this specific question [on the legality of regulation 55], it is the Appeals Chamber’s view that this question is nevertheless fundamental to the appeals, as it is directly related to the issues for which leave to appeal was granted. If regulation 55 were incompatible with the Statute and therefore should not be applied, any interpretation by the Trial Chamber that would lead to an application of the provision would be erroneous. The question raised by Mr Lubanga Dyilo is thus implicitly contained in the first issue on appeal.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 20. “[T]he Trial Chamber itself has not yet considered the questions arising under the Second Issue [whether the legal characterisation of facts may be subject to change] in any detail [. . .]. Thus, if it considered the Second Issue, the Appeals Chamber would, for the first time, make an assessment of these questions in its judgment on the appeals, even though the Trial Chamber currently is in the best position to assess the charges and the evidence that has been presented. Furthermore, the Appeals Chamber notes that it would potentially deprive the accused of one level of review if it would rule on the Second Issue. The Appeals Chamber thus finds that it would be premature to address the arguments raised [. . .] under the Second Issue.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 109.

jurisprudence “[T]he question of whether the Trial Chamber correctly dealt with the Request for Assistance from the Registry for the purposes of future applications for release is not properly before the Appeals Chamber [. . .]. [T]he Request [. . .] could, if at all, come before the Appeals Chamber if leave to appeal had been sought and granted, pursuant to article 82(1)(d) of the Statute [. . .]. If it were otherwise, parties could significantly expand their possibility to appeal a decision without having to seek leave to appeal by attaching requests to their submissions on release or detention and subsequently appealing the matter under article 82(1)(b).” Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, para. 70.

2 The Error Must have Materially Affected the Decision under Appeal “In previous decisions, the Appeals Chamber has required that for a successful appeal, the error raised by an Appellant must have materially affected the Impugned Decision.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 37; Prosecutor v. Banda & Jerbo, Judgment on Rules 111 and 112, ICC-02/05-03/09-295 OA2, 17 February 2012, para. 20. “Decisions of the Appeals Chamber indicate that the Chamber will use its power under rule 158 of the Rules of Procedure and Evidence to reverse an Impugned Decision only if the decision was materially affected by an error [. . .]. Accordingly, as part of the reasons in support of a ground of appeal, an Appellant is obliged not only to set out the alleged error, but also to indicate, with sufficient precision, how this error would have materially affected the Impugned Decision.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 48; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, paras. 102, 106, 133–134; Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, para. 69; Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 18; Prosecutor v. Ruto, Kosgey & Sang, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/09-01/11-307 OA, 30 August 2011, para. 87; Prosecutor v. Muthaura, Kenyatta & Ali, Judgment on Kenya’s Appeal on the Admissibility of the Case, ICC-01/0902/11-274 OA, 30 August 2011, para. 85; Prosecutor v. Gbagbo, Judgment

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con duc t of ap p ea l s on Gbagbo’s Appeal against the Third Review Decision on his Detention, ICC-02/11-01/11-548-Red OA4, 29 October 2013, para. 18. “[T]he Appeals Chamber held that ‘[a] decision is materially affected by an error of law if the Pre-Trial or Trial Chamber would have rendered a decision that is substantially different from the decision that was affected by the error, if it had not made the error’.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 44, citing Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 84; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/ 04-01/06-3121-Red A5, 1 December 2014, para. 19; Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/063121-Red A5, 1 December 2014, para. 20, see also paras. 32, 55; Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-271-Corr A, 7 April 2015, paras. 20–21. “In relation to an error of law, the Appeals Chamber has held that ‘[a] decision is materially affected by an error of law if the Pre-Trial or Trial Chamber would have rendered a decision that is substantially different from the decision that was affected by the error, if it had not made the error’. The Appeals Chamber has held that the same standard is applicable to alleged procedural errors. The Appeals Chamber notes that this standard is high – it must be demonstrated that, had the Trial Chamber not erred in procedure, the decision under article 74 of the Statute would (as opposed to ‘could’ or ‘might’) have been substantially different. In the circumstances of this case, it has to be established that there is a high likelihood that the Trial Chamber, had it not committed the procedural errors, would not have acquitted Mr Ngudjolo.” Prosecutor v. Ngudjolo, Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/ 12-271-Corr A, 7 April 2015, para. 285. “Whether an error or the material effect of that error has been sufficiently substantiated will depend on the specific argument raised, including the type of error alleged. With respect to legal errors, the Appeals Chamber, as set out above, ‘will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law’. Accordingly, the Appellant has to substantiate that the Trial Chamber’s interpretation of the law was incorrect; contrary to the arguments of the Prosecutor raised elsewhere in her Response to the Document in Support of the Appeal, this may be done including by raising arguments that were previously put before the Pre-Trial and/or Trial Chamber. In addition, the

jurisprudence Appellant must substantiate that the decision under review would have been substantially different, had it not been for the error.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 31. “[T]he Appeals Chamber has consistently held that, in exercising its powers under rule 158 of the Rules of Procedure and Evidence, it would only consider specific grounds of appeal that allege legal, factual or procedural errors that materially affect the Impugned Decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, paras. 29, 41. “[A]n Appellant cannot simply claim that an Impugned Decision violated the overall fairness or led to a violation of his or her human rights without specifying and substantiating such claim.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 41. “Failure to do so [to indicate with sufficient precision how an error would have materially affected the Impugned Decision] will result in the Appeals Chamber rejecting a ground of appeal in limine, without consideration of the merits.” Prosecutor v. Mbarushimana, Judgment on Mbarushimana’s Interim Release Appeal, ICC-01/04-01/10-283 OA, 14 July 2011, para. 18, citing Prosecutor v. Bemba, Judgment on the Review of Bemba’s Detention, ICC-01/05-01/08-1019 OA4, 19 November 2010, paras. 69–71; Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 51. “In light of the above [the Appellant did not connect the alleged errors to the Trial Chamber’s decision on the admissibility of the case], the Appeals Chamber concludes that Mr Bemba fails to meet the minimum requirements for a consideration of the merits of two grounds of appeal and accordingly dismisses the [. . .] appeal.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, paras. 104, 135. “A decision is materially affected by an error of law if the Pre-Trial or Trial Chamber would have rendered a decision that is substantially different from the decision that was affected by the error, if it had not made the error.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, para. 84.

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con duc t of ap p ea l s An Appellant must show how the alleged error affects the particular decision under appeal, not some other or earlier decision. Where in an appeal against a Trial Chamber’s decision on admissibility, a ground of appeal “relate[d] to the decision of Pre-Trial Chamber I regarding the issuance of a warrant for his arrest”, the Appeals Chamber refused to consider it on the basis that “[t]hat decision is, however, not the subject of the present appeal. Were the Appeals Chamber to consider the merits of the second ground of appeal, it would, in effect, be assessing the correctness of the Pre-Trial Chamber’s decision on the warrant of arrest, and not of the decision that is the subject of the present appeal.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 57. “[T]he alleged error in relation to the time limit for an admissibility challenge cannot be said to have materially affected the decision on admissibility, because the Trial Chamber did not dismiss the admissibility challenge on the basis that it had not been made in time. Instead, the Trial Chamber considered the merits of the challenge and found the case to be inadmissible.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 38. “The Appeals Chamber considers it inappropriate to pronounce itself on obiter dicta. To do so would be tantamount to rendering advisory opinions on issues that are not properly before it.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 38. The Appeals Chamber has declined to enter findings where “any discussion by the Appeals Chamber of the issues raised would be abstract and hypothetical”. Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 110.

3 The Appellant Cannot Raise Errors in Assessments made in Prior Decisions “With respect to the present proceedings, the Appeals Chamber finds that the risk of flight was only assessed in previous decisions of the Trial Chamber, in which also the predisposition of Mr Bemba to flee was at issue. Mr Bemba therefore cannot raise errors in assessments made in

jurisprudence those previous decisions as a ground of appeal in challenging the Impugned Decision.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC01/05-01/08-2151-Red OA10, 5 March 2012, para. 29.

4 Available and Appropriate Remedies on Appeal “[A]rticle 83(2) of the Statute does not apply to appeals brought from the Pre-Trial Chamber under article 82(1)(d) of the Statute [. . .]. [A]rticle 83(2) relates to appeals brought under article 81 of the Statute (against decisions of acquittal or conviction or against sentence) at the conclusion of the trial, as opposed to decisions referred to at article 82(1)(d) of the Statute, which occur during the course of the proceedings, prior to the conclusion of the trial [. . .].” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, paras. 13, 15. “[R]emedies as the Appeals Chamber is authorized to grant are listed in article 83 of the Statute and rules 153 and 158 of the Rules of Procedure and Evidence.” Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007, para. 6. “On an appeal pursuant to article 82(1)(d) of the Statute, the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158(1) of the Rules of Procedure and Evidence).” Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, paras. 105, 109. See also Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 116 (in regard to article 82(1)(a)). “[R]ule 158(1) of the Rules of Procedure and Evidence does not explicitly foresee the remand of a matter to the Pre-Trial or Trial Chamber that rendered the Impugned Decision. Nevertheless, the Appeals Chamber considers that in the present case, the remand of the matter to Pre-Trial Chamber I is warranted, because the Pre-Trial Chamber curtailed its enquiry under article 58 of the Statute on the basis that the case was inadmissible [. . .]. As the Appeals Chamber has reversed [this finding], the Prosecutor’s application for a warrant of arrest against him has to be remanded to the Pre-Trial Chamber to complete its review under article 58 of the Statute.”

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co nd uc t of ap p e al s Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 91–92. “The Appeals Chamber considers that it is appropriate to reverse all authorisations of disclosure with redactions [. . .] because the Impugned Decision did not clearly indicate under which provision the redactions were authorised, nor did the Pre-Trial Chamber identify [. . .] which parts of its disposition in the Impugned Decision it considered to be affected by the first ground of appeal. As a result of the insufficient reasoning of the Impugned Decision, the Appeals Chamber in the present judgment has not made any determination about whether the Pre-Trial Chamber came to correct or erroneous conclusions in relation to the specific redactions which it authorised. It is for that reason that the Pre-Trial Chamber is directed to decide anew upon the applications of the Prosecutor for authorisation of redactions that gave rise to the Impugned Decision, in light of the present judgment.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, paras. 65–66. “All relevant material on the subject is before the Appeals Chamber. Deciding the issue ourselves would be consistent with the finality attached to the appellate process by rule 158(1) of the Rules of Procedure and Evidence, empowering the Court to confirm, reverse or amend the sub judice decision; a provision importing power to allow the appeal by substituting the decision that ought to have been given for the one given, varying the sub judice decision as deemed necessary by the Appeals Chamber or confirming it by dismissing the appeal.”133 Prosecutor v. Katanga & Ngudjolo, Partly Dissenting Opinion of Judge Pikis in the Judgment on Katanga’s Language Appeal, ICC-01/04-01/07522 OA3, 27 May 2008, para. 2. Diss. Op. Reviewing a matter on appeal, the Appeals Chamber should not engage “in the elicitation of general legal principles outside the decision-making process for the disposition of a matter at issue, exceeding thereby the jurisdiction of the court. The Appeals Chamber would itself assume jurisdiction to pre-judge the law applicable to pending and future proceedings.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/ 06-568 OA3, 13 October 2006, para. 29. Diss. Op.

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As a result, the Appeals Chamber “should determine the issue ourselves and not remit the case back to the Pre-Trial Chamber to address anew the request of the Appellant for interpretation in the language he ‘fully understands and speaks’, namely Lingala”, according to Judge Pikis in that same paragraph.

jurisprudence “The Appeals Chamber’s powers in interlocutory appeals are limited according to rule 158(1) of the Rules of Procedure and Evidence to confirming, reversing or amending the ‘decision appealed’.” Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, para. 29.

5 Powers that the Appeals Chamber may not Exercise on Appeal “[S]tay of all proceedings pending before another Chamber at the instance of the Appeals Chamber is not known to the law applicable to proceedings before the Court.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 4. “Stay of proceedings is a relief wholly separate and distinct from the one envisaged in article 82(3) of the Statute.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 5. “The jurisdiction of the Appeals Chamber is different and distinct from that of the Pre-Trial Chamber. It is a contradiction in terms to suggest that an appellate issue may be referred to the Pre-Trial Chamber for adjudication in these circumstances. Article 19(6) of the Statute therefore has no relevance in relation to, and provides no legal basis for, the referral of an appeal to the Pre-Trial Chamber or Trial Chamber for consideration. Decisions on admissibility are subject to appeal at the instance of ‘either party’ under the provisions of article 82(1)(a) of the Statute.” Prosecutor v. Lubanga, Decision on the Application for Referral to the Pre-Trial Chamber or Discontinuance of Appeal, ICC-01/04-01/06-393 OA2, 6 September 2006, paras. 9, 10. “No jurisdiction is conferred upon the Appeals Chamber to issue orders similar to a writ of prohibition [. . .]. The writ of prohibition is available to restrain excess of jurisdiction by lower courts, that is, courts of limited jurisdiction under English law. The Pre-Trial and Trial Chambers of the Court are not inferior courts in that sense.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/ 06-844 OA8, 9 March 2007, para. 5. Sep. Op. See also Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 30. The Appeals Chamber may not grant an extension of time under regulation 35(2) of the Regulations of the Court to file an application for leave to

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con duc t o f ap pe a l s appeal against a decision issued by a Trial Chamber: “Mr Bemba would have had to file an application for leave to appeal before the Trial Chamber within five days of being notified of that decision [. . .]. [A]ny such request should be made, if at all, to the Trial Chamber.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 31.

VII Additional Evidence on Appeal: Regulation 62 1 General Principles “The Appeals Chamber notes that under this provision [regulation 62], it has discretion as to which of the two procedures in relation to additional evidence it chooses.” Prosecutor v. Lubanga, Directions under Regulation 62, ICC-01/04-01/062958 A5 A6, 21 December 2012, para. 7. “The Appeals Chamber considers that regulation 62 of the Regulations of the Court is not applicable to requests to add a new ground of appeal once a party has filed his or her documents in support of the appeal pursuant to regulation 58 of the Regulations of the Court.” Prosecutor v. Lubanga, Decision and Order in Relation to Lubanga’s Request, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014, para. 6. “[U]nder regulation 62(2) and (3) of the Regulations of the Court, the Appeals Chamber shall give directions in respect of the filing of responses to requests for the presentation of additional evidence, which ‘shall be filed within a time limit specified by the Appeals Chamber’. To date, no such directions have been given, nor has a time limit been specified; the Prosecutor is therefore not yet entitled to file a response.” Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for an Extension of the Page Limit, ICC-01/04-01/06-2955 A5 A6, 17 December 2012, para. 4.

2 Considerations for the Admission of Additional Evidence on Appeal “Additional evidence on an appeal pursuant to article 81(1) of the Statute is admissible if: (i) the Appeals Chamber is convinced of the reasons why such evidence was not presented at trial, including whether it could have been presented with the exercise of due diligence; and (ii) it is demonstrated that the additional evidence, if it had been presented before the Trial Chamber, could have led the Trial Chamber to enter a different verdict, in whole or in part. It is within the Appeals Chamber’s discretion

jurisprudence to admit additional evidence on appeal despite a negative finding on one or more of these criteria, if there are compelling reasons for doing so.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 1, see also paras. 58, 59, 62. “The Appeals Chamber considers that the criteria of relevance, probative value and potential prejudicial effect also apply to the admission of evidence at the appellate stage of proceedings [. . .]. As to relevance, the Appeals Chamber, noting regulation 62(1)(a) of the Regulations of the Court, considers that the proposed additional evidence must be shown to be relevant to a ground of appeal raised pursuant to article 81(1) and (2) of the Statute.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 54. “The Appeals Chamber notes, however, that the list of criteria for the admissibility of evidence under article 69(4) of the Statute is not exhaustive, which indicates that criteria other than those listed can be taken into account, especially given the distinct features of the appellate stage of proceedings.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 55. “The Appeals Chamber notes that the criteria developed on the basis of the Court’s legal texts are in many respects similar to those applied by the jurisprudence of the ad hoc tribunals referred to above. Where the criteria are similar, the Appeals Chamber considers it appropriate to seek guidance from this jurisprudence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 63. “[T]he Appeals Chamber notes that Mr Bemba does not claim that the Expert Report was unavailable in the proceedings before the Trial Chamber. In light of the above, the Appeals Chamber rejects the request for permission to present additional evidence on appeal and disregards the Expert Report.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 32. “At the outset, the Appeals Chamber notes that the Application complies with the formal requirements of regulation 62(1)(a) and (b) of the Regulations of the Court because it sets out the evidence to be presented, the ground of appeal to which it relates and the reasons why it was not adduced before the Trial Chamber.”

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co nduc t of ap p ea l s Prosecutor v. Lubanga, Directions under Regulation 62, ICC-01/04-01/062958 A5 A6, 21 December 2012, para. 5. “[T]o allow the submission of the Expert Report as additional evidence on appeal would, in effect, circumvent the oral decision of the Trial Chamber which rejected Mr Bemba’s application.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 32. “[T]he Appeals Chamber finds that it would be premature to take any decision on the Application [to present additional evidence] before the Prosecutor has filed her responses under regulation 59 of the Regulations of the Court to Mr Lubanga’s documents in support of his appeals against the Conviction and the Sentencing Decisions. This is because the Appeals Chamber considers it appropriate to gauge the relevance and importance of the proposed additional evidence only after having received and properly considered the Prosecutor’s responses to Mr Lubanga’s grounds of appeal.” Prosecutor v. Lubanga, Directions under Regulation 62, ICC-01/04-01/06-2958 A5 A6, 21 December 2012, para. 7. “[T]he Appeals Chamber deems it appropriate to act pursuant to regulation 62(2)(b) of the Regulations of the Court, namely, to rule on the admissibility of the proposed additional evidence jointly with the other issues raised in these appeals. The Appeals Chamber does not consider that proceeding under this provision would be inefficient or delay the proceedings [. . .] it is more efficient to hear the Prosecutor’s submissions also in relation to those arguments of Mr Lubanga that are based on the proposed evidence, even if the Appeals Chamber has not yet ruled on the admissibility of that evidence.” Prosecutor v. Lubanga, Directions under Regulation 62, ICC-01/04-01/06-2958 A5 A6, 21 December 2012, para. 8. “[The Appeals Chamber’s] function is corrective in nature and ‘the scope of the proceedings on appeal is determined by the scope of the relevant proceedings before the Pre-Trial Chamber’ [. . .]. [T]he Appeals Chamber reiterates that ‘[f]acts which post-date the Impugned Decision fall beyond the possible scope of the proceedings before the Pre-Trial Chamber and therefore beyond the scope of the proceedings on appeal’. Accordingly, the application to submit them as additional evidence must be rejected”. Prosecutor v. Gadaffi and Al-Senussi, Judgment on the Appeal of Libya against the Decision on the Admissibility of the Case, ICC-01/11-01/11-547-Red, 21 May 2014, para. 43.

jurisprudence

3 Rebuttal Evidence “[T]he Appeals Chamber notes that regulation 62(2)(a) of the Regulations of the Court directs the other participants affected by an additional evidence request to ‘adduce any evidence in response only after a decision on the admissibility of [the proposed additional] evidence has been issued’. The regulation is silent as to any standard for its admission. On the basis of this provision, the Appeals Chamber finds that evidence submitted in response, that is, the ‘rebuttal evidence’, need only be considered if the underlying proposed additional evidence is admitted into evidence.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red, 1 December 2014, para. 63.

4 Additional Evidence and Revision Proceedings “With respect to the interaction between the rules governing the admissibility of additional evidence on appeal and revision proceedings, the Appeals Chamber considers that additional evidence brought by a convicted person on appeal that would be considered in revision proceedings should, as a general matter, be admissible on appeal. In this respect, it would be contrary to the interests of justice and the proper and expeditious administration of judicial proceedings to establish a more stringent standard for the admission of evidence on appeal than that which can be considered in revision proceedings. This is because to do so could lead to a person’s conviction first being confirmed on appeal because the evidence could not be considered, only then to be overturned in revision proceedings.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/06-3121-Red A5, 1 December 2014, para. 54.

VIII Suspensive Effect 1 General Principles on the Appeals Chamber’s Power to Order Suspensive Effect “As neither article 82(3) of the Statute nor rule 156(5) of the Rules of Procedure and Evidence stipulate in which circumstances suspensive effect should be ordered, this decision is left to the discretion of the Appeals Chamber. Therefore, when faced with a request for suspensive effect, the Appeals Chamber will consider the specific circumstances of the case and the factors it considers relevant for the exercise of its discretion under these circumstances.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Suspensive Effect, ICC-01/04-01/06-1290 OA11, 22 April 2008, para. 7; Prosecutor

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con duc t of ap p ea l s v. Lubanga, Decision on the Suspensive Effect of the Interim Release Appeal, ICC-01/04-01/06-1444 OA12, 22 July 2008, para. 8; Prosecutor v. Bemba, Decision on the Request of the Prosecutor for Suspensive Effect, ICC-01/05-01/08-499 OA2, 3 September 2009, para. 11; Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/0501/08-817 OA3, 9 July 2010, para. 6; Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-01/06-2536 OA17, 23 July 2010, para. 7; Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 81; Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 18. “[T]he submission [. . .] that suspension may only be granted in exceptional circumstances was misguided. The fact that the suspension of the Impugned Decision would lead to his continued detention was, however, one of the factors that the Appeals Chamber has taken into account in the exercise of its discretion.” Prosecutor v. Lubanga, Decision on the Suspensive Effect of the Interim Release Appeal, ICC-01/04-01/06-1444 OA12, 22 July 2008, para. 8. Implementing the Impugned Decision “at this point in time could potentially defeat the purpose of the present appeal, as well as of the appeal that, in all likelihood, would be mounted against the Decision to Stay the Proceedings”. Prosecutor v. Lubanga, Decision on the Suspensive Effect of the Interim Release Appeal, ICC-01/04-01/06-1444 OA12, 22 July 2008, para. 10. See also Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 11. “[I]t becomes necessary to identify the appealable issues and the decision(s) wherefrom they stem before addressing the question of suspension.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Decision on Lubanga’s Request for Suspensive Effect, ICC-01/04-01/06-1290-Anx OA11, 13 May 2008, para. 5. Diss. Op. “The guiding principle in the exercise of the discretion of the Court lies in the evaluation of the consequences that enforcement of an erroneous decision, if that is found to be the case by the decision of the Appeals Chamber, could have on the proceedings before the first instance court.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Decision on Lubanga’s Request for Suspensive Effect, ICC-01/04-01/06-1290-Anx OA11, 13 May 2008, para. 9. Diss. Op. “Suspension entails the non-enforcement of the sub judice decision pending the outcome of the appeal. It is designed to sustain the status quo ante,

jurisprudence that is, the position obtaining prior to the issuance of the sub judice decision. Suspension is par excellence a discretionary power, to be exercised in the interests of justice, foremost the efficacy of the judicial process. The Statute casts the Appeals Chamber as the final arbiter of what the law warrants on an appealable subject [. . .]. The aim is to guard against errors that may lead the judicial process off course to the detriment of justice. Suspension is a pre-emptive measure, a safeguard against mistakes apt to divert the judicial process from its ordained course [. . .]. If the foundation for release is shaken on appeal by the reversal of the decision, the premise upon which [it] was ordered will also collapse.” Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Decision on the Suspensive Effect of the Interim Release Appeal, ICC-01/04-01/061444-Anx OA12, 20 August 2008, paras. 6, 9, 10. Sep. Op; Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/ 06-2953 A A2 A3 OA21, 14 December 2012, para. 81; Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 17; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/07-3344 OA13, 16 January 2013, para. 5; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect and Related Issues, ICC-01/11-01/11387 OA4, 18 July 2013, para. 20; Prosecutor v. Ruto & Sang, Decision on the Request for Suspensive Effect, ICC-01/09-01/11-862 OA5, 20 August 2013, para. 8; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/0401/07-3344 OA13, 16 January 2013, para. 5. “Neither the Statute nor the Rules of Procedure and Evidence confer power upon the Appeals Chamber to grant the remedy sought. Nonetheless, the Prosecutor argued that the Appeals Chamber may assume such power in view of the provisions of article 82(3) of the Statue enabling the Appeals Chamber to order, in its discretion, that an appeal should have suspensive effect. Suspension involves the nonenforcement of a decision [that is] the subject of an appeal. This is not the object of the application before the Appeals Chamber. The application is designed to stay proceedings, pending the outcome of an application of the Prosecutor in another case. This remedy is unknown to the Statute and wholly separate from the one envisaged by article 82(3) of the Statute that the Prosecutor invokes in aid of his application.” Situation in Uganda, Decision on Giving Suspensive Effect to the Application for Extraordinary Review, ICC-02/04-01/05-92 SL PT OA, 13 July 2006 (reclassified as public pursuant to decision ICC-02/04-01/05-266), para. 3. “The Appeals Chamber notes that, contrary to Mr Ngudjolo’s submission, it may order that an appeal under article 81(3)(c)(ii) of the Statute has

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con duc t of ap p ea l s suspensive effect, upon request, pursuant to article 82(3) of the Statute and rule 156(5) of the Rules of Procedure and Evidence. Rule 154(1) of the Rules of Procedure and Evidence regulates appeals filed under article 81(3)(c)(ii) of the Statute. Rule 156 of the Rules of Procedure and Evidence regulates the procedure to be followed in respect of an appeal filed under rule 154, including in relation to requests for suspensive effect under sub-paragraph 5.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 15. “[T]he decision as to whether or not to grant suspensive effect is always discretionary and depends upon the individual circumstances of the case. Suspensive effect is not automatic. Indeed, article 82(3) of the Statute specifically provides that an appeal (including an appeal against a decision granting or denying release) ‘shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request [. . .]’.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 20; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/07-3344 OA13, 16 January 2013, para. 7; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 14.

2 Procedure to Apply for Suspensive Effect “[T]he Prosecutor requests suspensive effect in both the Appeal and in the subsequent Document in Support of the Appeal [. . .]. However, the Appeals Chamber considers that, as a practice, it is preferable that a request for suspensive effect – which, given the nature of the request, ought to be decided as expeditiously as possible – should be presented in the appeal together with the reasons in support of the request as prescribed in rule 156(5) of the Rules of Procedure and Evidence.” Prosecutor v. Bemba, Decision on the Request of the Prosecutor for Suspensive Effect, ICC-01/05-01/08-499 OA2, 3 September 2009, paras. 9–10; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect and Related Issues, ICC-01/11-01/11-387 OA4, 18 July 2013, para. 13. “Thus, for appeals against a decision on admissibility [under article 82(1) (a)], the ‘appeal’ in terms of rule 156(5) is the document filed pursuant to rule 154 of the Rules of Procedure and Evidence. Any request for suspensive effect must be made in the appeal, which will generally be the first filing of the Appellant before the Appeals Chamber. This requirement is logical because of the urgent nature of requests for suspensive effect, and

jurisprudence because of the need for clarity as early as possible as to whether a request for suspensive effect is made.” Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 8. “Although the Decision in Bemba OA2 concerned an appeal under article 82(1)(b) of the Statute against a decision granting release of the person being investigated or prosecuted, whereas the present appeal is brought under article 82(1)(a) of the Statute against a decision on admissibility, both types of appeals require the Appellant to file an appeal within time limits stipulated in rule 154 of the Rules of Procedure and Evidence.” Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 9.

3

Consideration of Requests for Suspensive Effect

“In past decisions, the Appeals Chamber, when deciding on requests for suspensive effect, has considered whether the implementation of the decision under appeal (i) ‘would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the Appellant’, (ii) would lead to consequences that ‘would be very difficult to correct and may be irreversible’, or (iii) ‘could potentially defeat the purpose of the appeal’. In the present appeal, Mr Bemba submits that commencing the hearing of evidence would be an inadequate use of the Court’s resources [. . .]. [I]n the Impugned Decision the Trial Chamber decided that the case against Mr Bemba is admissible. Even if the trial proceedings continue, this would neither lead to an irreversible situation nor defeat the purpose of the appeal, since the Appeals Chamber is able to reverse, confirm or amend the Impugned Decision irrespective of whether the proceedings before Trial Chamber III continue.” Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 11 (see fns. 24–26); Prosecutor v. Ruto & Sang, Decision on Ruto and Sang’s Requests for Suspensive Effect, ICC-01/09-01/11-391 OA4, 29 February 2012, para. 9; Prosecutor v. Kenyatta, Muthaura & Ali, Decision on Kenyatta and Muthaura’s Requests for Suspensive Effect during their Jurisdiction Appeal, ICC-01/09-02/11-401 OA4, 29 February 2012, para. 9; Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/ 06-2953 A A2 A3 OA21, 14 December 2012, para. 82; Prosecutor v. Ngudjolo, Decision on Request of the Prosecutor of 19 December 2012 for Suspensive Effect, ICC-01/04-02/12 OA, 20 December 2012, para. 19; Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/07-3344 OA13, 16 January 2013, para. 6; Prosecutor v. Gaddafi & Al-Senussi, Decision on

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con duc t of ap p ea l s the Request for Suspensive Effect and Related Issues, ICC-01/11-01/11387 OA4, 18 July 2013, para. 22; Prosecutor v. Ruto & Sang, Decision on the Request for Suspensive Effect, ICC-01/09-01/11-862 OA5, 20 August 2013, para. 6; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Suspensive Effect, ICC-01/11-01/11-480 OA6, 22 November 2013, para. 14. “The Appeals Chamber is not persuaded that it would be appropriate to order that the appeal shall have suspensive effect because it does not consider that the implementation of the Impugned Decision would create such an irreversible situation and because there are no other apparent reasons for granting the request [. . .]. Similarly, if the present appeal were successful and if this would lead to additional disclosure obligations of the Prosecutor prior to the commencement of the trial [. . .], the Trial Chamber could make any necessary adjustments at that time, in order to ensure the fairness of the proceedings.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for Suspensive Effect, ICC-01/04-01/06-1290 OA11, 22 April 2008, para. 8; Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/0501/08-817 OA3, 9 July 2010, para. 11. “The implementation of the finding in the Confirmation Decision that the Chamber had jurisdiction with respect to the case would not lead to an irreversible situation that could not be corrected were the Appeals Chamber eventually to find in favour of Mr Ruto and/or Mr Sang. Nor could it potentially defeat the purpose of the appeal [. . .]. The Appeals Chamber [. . .] is able to confirm, reverse or amend the Impugned Decision in relation to its findings in respect of jurisdiction [. . .] irrespective of whether the proceedings continue. If the Appeals Chamber eventually decides to grant Mr Ruto and/or Mr Sang’s appeals, any on-going proceedings could be discontinued at that time.” Prosecutor v. Ruto & Sang, Decision on Ruto and Sang’s Requests for Suspensive Effect, ICC-01/09-01/11-391 OA3 OA4, 29 February 2012, para. 10; Prosecutor v. Kenyatta, Muthaura & Ali, Decision on Kenyatta and Muthaura’s Requests for Suspensive Effect during their Jurisdiction Appeal, ICC-01/09-02/11-401 OA4, 29 February 2012, para. 10. “The Appeals Chamber notes that [. . .] the participation of victims based on the Impugned determinations could lead to the Trial Chamber considering additional material in the trial with resulting effects on the fairness and expeditiousness of the trial and the outcome. In addition, implementation of these determinations could result in the rendering of decisions on the status of victims that may be premised on incorrect assumptions, forcing the parties to seek leave to appeal these decisions [. . .]. The Appeals Chamber is of the view that resolution of these issues on appeal would be of crucial importance for the identification of victims

jurisprudence with a right to participate in the trial proceedings. The Appeals Chamber concludes that suspension of the impugned rulings [. . .] is justified.” Prosecutor v. Lubanga, Decision on the Suspensive Effect of Appeals, ICC01/04-01/06-1347 OA9 OA10, 22 May 2008, paras. 19–20. “The Defence argues that there will be irreversible outcomes because their rights will be affected in ways that cannot be remedied. The Appeals Chamber agrees that such a development may conceivably arise were Trial Chamber I to view additional material or hear evidence introduced by participants who, in the event of a successful appeal, no longer have the status of victim nor the right to lead and challenge the admissibility of evidence.” Prosecutor v. Lubanga, Decision on the Suspensive Effect of Appeals, ICC01/04-01/06-1347 OA9 OA10, 22 May 2008, para. 22. “This ruling [regarding the rights of victims to lead and challenge evidence] is important insofar as it hinges on an interpretation of article 68(3), which, if reversed on appeal, would have far-reaching consequences on the fairness of the proceedings and the rights of the accused. Implementation of these Impugned determinations prior to the issuance of the judgment on appeal could mean that the trial might commence on the basis of an incorrect legal framework. The consequences would be very difficult to correct and may be irreversible. The Appeals Chamber finds that suspension of this ruling is therefore warranted.” Prosecutor v. Lubanga, Decision on the Suspensive Effect of Appeals, ICC01/04-01/06-1347 OA9 OA10, 22 May 2008, para. 23, cited in Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/0501/08-817 OA3, 9 July 2010, para. 11: “(ii) would lead to consequences that ‘would be very difficult to correct and may be irreversible’”. “Enforcement or implementation of the decision of the Trial Chamber giving rise to an obligation on the part of the accused to disclose his line of defence, if the decision is erroneous, will undoubtedly have adverse and possibly dire consequences on the fairness of the proceedings. Therefore, suspension is warranted and so would I order [. . .]. Inasmuch as delay in making disclosure, where there is a duty to disclose, may have a bearing on the fairness of the proceedings, suspension is justified in the interest of the efficacy of the process. The decision, as above distilled, is a proper subject of suspension, and so would I order.” Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Decision on Lubanga’s Request for Suspensive Effect, ICC-01/04-01/06-1290-Anx OA11, 13 May 2008, para. 12. Diss. Op. Implementing the Impugned Decision “at this point in time could potentially defeat the purpose of the present appeal as well as of the appeal that,

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con duc t o f ap pe al s in all likelihood, would be mounted against the Decision to Stay the Proceedings”. Prosecutor v. Lubanga, Decision on the Suspensive Effect of the Interim Release Appeal, ICC-01/04-01/06-1444 OA12, 22 July 2008, para. 10; Prosecutor v. Bemba, Decision on the Request of the Prosecutor for Suspensive Effect, ICC-01/05-01/08-499 OA2, 3 September 2009, para. 13; Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 11. “The submission of the Prosecutor that the Trial Chamber should have waited to decide upon the release of Mr Lubanga Dyilo until the Appeals Chamber rendered its judgment on the appeal against the Decision to Stay the Proceedings is misguided [. . .]. Decisions of the Trial Chamber even on fundamental questions are not merely provisional decisions that require the approval of the Appeals Chamber before they can be enforced.” Prosecutor v. Lubanga, Judgment on the Release of Lubanga, ICC-01/0401/06-1487 OA12, 21 October 2008, para. 18. “Since [the] release of Mr Bemba is the essential issue in an appeal concerning whether a decision on interim release should be reversed or confirmed, the Appeals Chamber also considers that granting suspensive effect in the present case is appropriate.” Prosecutor v. Bemba, Decision on the Request of the Prosecutor for Suspensive Effect, ICC-01/05-01/08-499 OA2, 3 September 2009, para. 13. “In the present appeal, Mr Bemba submits that commencing the hearing of evidence would be an inadequate use of the Court’s resources, but he does not put forward any arguments that support the conclusion that the implementation of the Impugned Decision could lead to an irreversible situation or could potentially defeat the purpose of the appeal. As stated above, in the Impugned Decision the Trial Chamber decided that the case against Mr Bemba is admissible. Even if the trial proceedings continue, this would neither lead to an irreversible situation nor defeat the purpose of the appeal, since the Appeals Chamber is able to reverse, confirm or amend the Impugned Decision irrespective of whether the proceedings before Trial Chamber III continue. In addition, if the Appeals Chamber eventually decides to grant Mr Bemba’s appeal, any on-going proceedings could be discontinued at that time.” Prosecutor v. Bemba, Decision on Bemba’s Request for Suspensive Effect, ICC-01/05-01/08-817 OA3, 9 July 2010, para. 11. “The Appeals Chamber has previously found that there is no reason to grant suspensive effect when an appeal has been found to be inadmissible.”

j ur i s p r uden ce Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/ 11-126 OA2, 25 April 2012, para. 18, citing Prosecutor v. Mbarushimana, Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release, ICC-01/04-01/ 10-483 OA3, 24 January 2012, para. 26. “The Appeals Chamber notes the Prosecutor’s concerns regarding the trial proceeding on the basis of an incorrect legal framework and the difficulties that may arise should witnesses who testified in Mr Ruto’s absence be unwilling or unable to return to testify again, if the Impugned Decision were to be overturned and the trial had to restart in Mr Ruto’s presence. In all circumstances of this case, the Appeals Chamber finds that the consequences of implementing the Impugned Decision prior to the issuance of the judgment on the Prosecutor’s appeal, would be difficult to correct and may be irreversible and that suspension of the Impugned Decision is warranted.” Prosecutor v. Ruto & Sang, Decision on the Request for Suspensive Effect, ICC-01/09-01/11-862 OA5, 20 August 2013, para. 10. “[T]he Appeals Chamber notes that it has never addressed the question of whether or under what circumstances the Appeals Chamber may reconsider its prior decisions. For the purposes of the present request [reconsideration of the Decision on suspensive effect in light of a terrorist attack in Nairobi], it is deemed unnecessary to do so, as the Appeals Chamber is, in any event, not persuaded by Mr Ruto’s arguments in support of his request for reconsideration.” Prosecutor v. Ruto & Sang, Decision on Ruto’s Request for Reconsideration of the Decision on Suspensive Effect, ICC-01/09-01/11993-Red OA5, 27 September 2013, para. 8. “The difficulties that may arise if the proceedings continued in Mr Ruto’s absence, should the Impugned Decision be overturned, are still the same. Accordingly, Mr Ruto’s Request is dismissed.” Prosecutor v. Ruto & Sang, Decision on Ruto’s Request for Reconsideration of the Decision on Suspensive Effect, ICC-01/09-01/11993-Red OA5, 27 September 2013, para. 10. “[T]he context of the present request for suspensive effect is very different from the other requests upon which it has ruled in the cases of [Lubanga and Bemba], referred to above. In those cases, requests for suspensive effect were made, and granted, in respect to decisions to release a suspect following a stay of the proceedings or in relation to interim release pending trial. Thus, in those cases, no decision of acquittal or conviction under article 74 of the Statute had been rendered. In contrast, in the

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con duc t of ap p ea l s present case, the Trial Chamber acquitted Mr Ngudjolo, finding that his guilt has not been established beyond a reasonable doubt.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 21. “The fundamental difference of this case from other cases in which the Appeals Chamber has ordered suspensive effect is that it is plain from the wording of article 81(3)(c) of the Statute that the rule, in the case of an acquittal, is that the acquitted person ‘shall be released immediately’. Continued detention may be ordered only ‘[u]nder exceptional circumstances’. Thus, in the ordinary course of events, the acquitted person is to be released immediately, thereby respecting the fundamental right to liberty of the person.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 22. “In exercising its discretion whether to order suspensive effect in the present case, the Appeals Chamber has to bear in mind the exceptional nature of the continued detention of the acquitted person pending appeal. In other words, for the Appeals Chamber to order suspensive effect, which would result in Mr Ngudjolo remaining in custody until the Prosecutor’s appeal against the Impugned Decision has been decided upon, particularly strong reasons for doing so must exist, which clearly outweigh Mr Ngudjolo’s statutory right to be released immediately following his acquittal.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 23. “The principal reason in support of her [the Prosecutor’s] request is that not ordering suspensive effect could render her appeal against the Impugned Decision as well as the appeal she intends to file against the Decision of Acquittal moot because Mr Ngudjolo might abscond. In the present case, and having considered the Prosecutor’s submissions, this alone does not persuade the Appeals Chamber to exercise its discretion and order suspensive effect, given the importance of Mr Ngudjolo’s statutory right to be released immediately after acquittal.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 24. “[T]he Prosecutor’s argument that the Appeals Chamber may reverse the Decision of Acquittal, in which case ‘the very foundations of the release would have disappeared’, is unpersuasive. The Statute provides for the right of the Prosecutor to appeal an acquittal – notwithstanding this, the Statute also provides that unless exceptional circumstances exist, the acquitted person has to be released immediately.”

jurisprudence Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 24. “[I]n the absence of strong reasons in support of the ordering of suspensive effect, the Appeals Chamber finds that the interest of Mr Ngudjolo to be released immediately prevails.” Prosecutor v. Ngudjolo, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-02/12-12 OA, 20 December 2012, para. 25. “[I]n this appeal, which is directed against a decision that was rendered at the final stage of trial proceedings, the need to preserve the integrity of the proceedings overrides any other consideration. In this regard, if the trial proceedings continued based on the Impugned Decision, and that decision were eventually reversed on appeal, any adverse effects on the overall fairness of the proceedings and the rights of the accused might be difficult to correct. Similarly, even if the Appeals Chamber were to confirm the Impugned Decision, the Appeals Chamber’s judgment may have a significant impact on the further conduct of the trial proceedings. Therefore, the Appeals Chamber finds that the Trial Chamber should not proceed with the trial on the basis of the Impugned Decision and decides that the appeal shall have suspensive effect.” Prosecutor v. Katanga, Decision on the Request for Suspensive Effect on the Implementation of Regulation 55, ICC-01/04-01/07-3344 OA13, 16 January 2013, para. 9. “The Appeals Chamber notes that these are all factors [the second stay of proceedings in the case, Lubanga’s four-year detention, the fact that the Prosecutor has closed the case and imposed travel restrictions] to be taken into account, but concludes that they do not outweigh the potential impact on the proceedings, should the Appeals Chamber decline to grant suspensive effect. In the view of the Appeals Chamber, an immediate implementation of the order to release him could render the resumption of the trial uncertain, should the Appeals Chamber later find in favour of the Prosecutor’s appeals against the Decision to Stay Proceedings and the Impugned Decision.” Prosecutor v. Lubanga, Decision on the Prosecutor’s Request for Suspensive Effect, ICC-01/04-01/06-2536 OA17, 23 July 2010, para. 11.

4 Suspensive Effect is not the Same as the Power to Stay Proceedings “[T]he Appeals Chamber determines that stay of all proceedings pending before another Chamber at the instance of the Appeals Chamber is not known to the law applicable to proceedings before the Court.”

593

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con duc t of ap pe a l s Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 4. “Stay of proceedings is a relief wholly separate and distinct from the one envisaged in article 82(3) of the Statute [. . .]. [J]urisdiction to stay lies with the trial court” and not with the Appeals Chamber. Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 5. Sep. Op. “Responsibility for the transmission of the record lies with the Presidency in pursuance of the administrative or other functions entrusted to the Presidency as foreseen in article 38(3) of the Statute. As such, it is to the Presidency, and not to the Appeals Chamber, that any application to stay the transmission of the record must be made.” Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 8. “The duty cast upon the Presidency is a ministerial one, that is, one cast upon a public authority other than a judicial one having no discretion but [to] do what the law instructs; being the medium for the enforcement of the law [. . .]. Acts of the Presidency of the character under consideration, notably the setting up of a Trial Chamber and the transmission of the pre-trial record, cannot be the subject of judicial proceedings. Nor does power lie to stop a body or authority established under the Statute from doing what the Statute warrants.”134 Prosecutor v. Lubanga, Separate Opinion of Judge Pikis in the Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 9. Sep. Op.

5 Suspensive Effect of an Order for Reparations “The Appeals Chamber does not accept the submission that, pursuant to rule 150(4) of the Rules of Procedure and Evidence, if an appeal is filed pursuant to article 82(4) of the Statute, the order for reparations is not final and therefore automatically suspended.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 79.

134

Only failure to carry out a ministerial duty might possibly be the subject of judicial proceedings in order to ensure that the process ordained by law is followed (by a writ of mandamus), but in the particular case (Reasons for the Decision on the “demande de suspension”) no decision on the competence of the Appeals Chamber was necessary.

jurisprudence “[T]here is a difference between an order for reparations becoming final and the suspension of an order for reparations pending the outcome of an appeal against it. An order being final provides legal certainty in that it is known that it will not be the subject of a further appeal (and therefore will not potentially be reversed or amended). Suspensive effect, on the other hand, means that the order for reparations cannot be enforced during the period of its suspension. As the order for reparations is under appeal, there remains the possibility that it will be reversed or amended.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 79. “[A]rticle 82(4) of the Statute, which provides for appeals against orders for reparations, appears within the same article of the Statute as article 82(3), which gives the Appeals Chamber power to order suspensive effect ‘in accordance with the Rules of Procedure and Evidence’. The Rules of Procedure and Evidence contain, in rule 156(5), a provision on requests for suspensive effect. This provision, however, deals with appeals regulated by rules 154 and 155 of the Rules of Procedure and Evidence and is as such not applicable to appeals under 82(4) of the Statute, which are regulated by rules 150 to 153 of the Rules of Procedure and Evidence. There is no other provision in the legal texts that specifically regulates suspensive effect in relation to appeals against orders for reparations, including article 81(4) of the Statute. Therefore, because of its placement in article 82 of the Statute and the need for the Appeals Chamber to be able to order suspensive effect when an order for reparations is appealed, the Appeals Chamber considers that it has the power to grant a request for suspensive effect under article 82(3) of the Statute and rule 156(5) of the Rules of Procedure and Evidence when seized of such a request in relation to an appeal under article 82(4) of the Statute.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 80. “[T]he Appeals Chamber finds persuasive the argument put forward by the Trust Fund that it would be undesirable for engagement with victims and their communities to commence, only to have to be halted or revised as a result of a later determination of the Appeals Chamber, potentially leading to re-traumatisation of victims. Given the prejudice which the forgoing could cause, which could create a situation that would be difficult to correct, the Appeals Chamber finds that suspensive effect should be ordered.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 83.

595

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con duc t o f ap pe a l s “Given that an order for reparations depends upon there having been a conviction, if the decision on conviction cannot be executed unless and until it is confirmed on appeal, it follows that an order for reparations also cannot be executed until that time.” Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 86.

P Miscellaneous Procedural Issues

Commentary

ben batros In addition to the issues above concerning evidentiary matters, the conduct of cases and substantive law that the Appeals Chamber has addressed in the early years of its operation, it has also provided significant guidance on a number of matters of internal procedure, such as the rules governing filings; issues which may at first appear mundane, but have significant impact on the day-to-day conduct of cases. This guidance has arisen in two distinct contexts. In a few instances, the Appeals Chamber has had cause to comment on the procedure adopted by the Pre-Trial or Trial Chamber in the proceedings under appeal. For example, it has cautioned against Chambers using “clarifications” to modify the substance of their decisions,1 provided guidance on which States may respond to jurisdiction challenges,2 and delimited the range of documents to which a party may seek leave to reply.3 Such guidance is, of course, directly applicable to comparable proceedings before those Chambers (irrespective of whether it is strictly binding upon them).4 1

2

3

4

Prosecutor v. Lubanga, Judgment on Regulation 55 Appeal, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 92. Prosecutor v. Ngudjolo, Decision on the Defence Request to Reply, ICC-01/04-02/12-43 OA, 20 March 2013, paras. 11–12. Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 37. Per article 21(2), “[t]he Court may apply principles and rules of law as interpreted in its previous decisions” (emphasis added). The Court is therefore not obliged to apply principles set out in its previous rulings, a standard which represented a compromise between common and civil law traditions during the drafting of the Statute, but also represented an evolutionary (though not revolutionary) step towards consistency and predictability in jurisprudence from the ICJ Statute by even suggesting that the judges take their previous decisions into account: see de Guzman, M., “Article 21: Applicable Law”, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court:

597

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mis cellaneous p ro cedura l issues

More common have been decisions by the Appeals Chamber on procedural questions that have arisen in the appeals themselves – each appeal, including interlocutory appeals, being considered a separate stage of the proceedings.5 Some of those issues are specific to the conduct of appeals and are discussed elsewhere.6 However, many others have seen the Appeals Chamber interpret procedural provisions which are applicable to a broader range of proceedings. These decisions thus provide useful principles to guide the resolution of similar issues before the PreTrial or Trial Chambers. Nevertheless, one must always be conscious of the specific provisions which apply to the proceedings before each Chamber. Just as the interlocutory appeals which have formed the bulk of the Appeals Chamber jurisprudence to date have a specific procedural regime, and some decisions may thus not apply in other contexts,7 certain decisions at the Pre-Trial or Trial stages may also have procedural particularities which limit the application of the Appeals Chamber’s guidance, even on more general questions.8

I Participation of Amicus Curiae One issue on which the guidance of the Appeals Chamber is relevant to other Chambers is the issue of participation of amici curiae or other submissions under rule 103 – indeed, the Appeals Chamber has directed that Pre-Trial Chambers should consider certain applications to submit observations, for example, in jurisdiction challenges, under rule 103 and its attendant procedures.9 The Appeals Chamber has indicated that Chambers have a broad discretion on whether to authorise the participation of amici under rule 103, though it has strictly enforced a two-stage

5

6

7 8

9

Observers’ Notes, Article by Article, 2nd edn (C. H. Beck/Hart/Nomos: Munich/Oxford/ Baden-Baden, 2008), p. 711, paras. [20]–[21]. See the digested cases under Chapter O, Conduct of Appeals, section I, Nature and Scope of Appellate Jurisdiction. E.g., Chapter M, Victim Participation in the Proceedings, section IV, Victim Participation in Appeals, and Chapter O, Conduct of Appeals. E.g., its decisions on the possibility of applying for leave to reply in interlocutory appeals. E.g., regulation 35 only authorises a Chamber to modify a time limit that has been set by that Chamber or by the regulations; it does not authorise extension of a time limit set out in the Statute or the Rules, in particular the five-day time limit for filing an application for leave to appeal against a decision under article 82(1)(d) or to file a notice of appeal under article 82(1)(a)–(c), which are set out in rules 154 and 155 (see below, section IV, Applications for Extensions). Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, paras. 39–43.

commentary

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process: the amicus must first be authorised by the Chamber to submit observations, either by invitation or approving a request for leave; the amicus may then submit observations, once it has received the appropriate authorisation.10 In practice, applications for participation by amici have been more common than proactive invitations from the Chamber, and the Appeals Chamber has reiterated its consistent position that a participant applying for leave should not include substantive submissions in that request for leave.11 It is difficult to extrapolate general rules for when an amicus will or will not be authorised to present submissions; the Appeals Chamber, like the other Chambers, has protected its discretion12 and has tended to approach this question on a case-by-case basis. The key consideration appears to be that any submissions must assist the Chamber in its determination of the issue on appeal;13 they must address the issue before 10

11

12

13

Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 10; Prosecutor v. Gbagbo, Decision on the Common Legal Representative’s Request to Submit Observations, ICC-02/11-01/ 11-533 OA5, 9 October 2013, para. 11; Prosecutor v. Gbagbo, Decision on Zwart and Knoops’ Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-517 OA5, 1 October 2013, para. 9; Prosecutor v. Gbagbo, Decision on Robinson et al.’s Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-516 OA5, 1 October 2013, para. 9; Prosecutor v. Gaddafi & Al-Senussi, Decision on Hosseinioun’s Application to Submit Observations, ICC-01/11-01/11-404 OA4, 15 August 2013, para. 5. E.g., Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 9. In certain instances, the Appeals Chamber has accepted observations notwithstanding the fact that they were submitted concurrently with the application for leave: see Prosecutor v. Lubanga, Decision on the Application by Child Soldiers International to Submit Observations, ICC-01/0401/06-3044 A4 A5 A6, 16 August 2013, para. 9. Prosecutor v. Lubanga, Decision on International Criminal Bar Amicus Curiae Motion, ICC-01/04-01/06-1289 OA11, 22 April 2008, para. 8; Prosecutor v. Al Bashir, Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal, ICC-02/05-01/0951 OA, 9 November 2009, para. 7; Prosecutor v. Ruto & Sang, Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 9; Prosecutor v. Ruto & Sang, Second Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-988 OA5, 25 September 2013, para. 11; Prosecutor v. Lubanga, Decision on the Application by Child Soldiers International to Submit Observations, ICC-01/04-01/06-3044 A4 A5 A6, 16 August 2013, para. 11. Prosecutor v. Lubanga, Decision on International Criminal Bar Amicus Curiae Motion, ICC-01/04-01/06-1289 OA11, 22 April 2008, para. 8; Prosecutor v. Ruto & Sang, Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 10. But see Prosecutor v. Ruto & Sang, Second Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-988 OA5, 25 September 2013, para. 12.

600

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the Chamber,14 must be within the knowledge or expertise of the amicus15 and must offer some new or different perspective and not simply reiterate the position of one of the parties.16 Provided that it does so, the Appeals Chamber has not disqualified an amicus simply because they advocate for one particular party or a specific outcome on the facts (although concerns have been raised about creating an imbalance in the proceedings).17 In this regard, the role of the amicus is not necessarily limited to neutral submissions on law without any comments on the facts or merits of the case, as is commonly the role of a third-party intervener before the European Court of Human Rights.18

II Filing Confidential Documents Many of the other relevant procedural decisions of the Appeals Chamber address the formal requirements for filing documents, including their confidentiality, formatting, page and time limits. The trend could be best described as one where the Appeals Chamber has adopted an increasingly stringent line with regard to the formal requirements, while tempering their application in practice where little or no harm resulted. Regarding the filing of confidential documents, proceedings before the Court are in principle public,19 and the Appeals Chamber has repeatedly 14

15

16

17

18

19

E.g., Prosecutor v. Gbagbo, Decision on Robinson et al.’s Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-516 OA5, 1 October 2013, para. 10. Compare Prosecutor v. Gbagbo, Decision on Zwart and Knoops’ Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-517 OA5, 1 October 2013, para. 10. Prosecutor v. Gaddafi & Al-Senussi, Decision on Hosseinioun’s Application to Submit Observations, ICC-01/11-01/11-404 OA4, 15 August 2013, para. 9; Prosecutor v. Gbagbo, Directions on the Submissions of Observations, ICC-02/11-01/11-236 OA2, 31 August 2012, para. 4. Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 11. This allows a particular space for amicus curiae when there are public but ex parte proceedings: see Prosecutor v. Al Bashir, Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal, ICC02/05-01/09-51 OA, 9 November 2009, para. 9. Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka, in the Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942-Anx OA5, 13 September 2013, paras. 4–7. Diss. Op. See Leach, P., Taking a Case to the European Court of Human Rights, 3rd edn (Oxford University Press: New York, 2011), at 2.119. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012, para. 22; Prosecutor v. Ngudjolo, Order on the Filing of Public Redacted Versions of the Submissions, ICC-01/04-02/12-143 OA, 4 October 2013, para. 8.

commentary

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reminded participants that if they file a document on a confidential basis they must expressly set out their reasons for doing so, both factual and legal, in sufficient detail to allow the Chamber to assess whether the confidential classification is warranted.20 Participants are also expected to publicly file a redacted version whenever possible.21 There has, unsurprisingly, been little public discussion of the reasons which will justify a confidential filing. However, these reasons appear to include the protection of victims and witnesses, integrity and efficiency of on-going investigations, and prospects for future arrests22 (where adequately substantiated).23

III Format and Content of Documents In terms of the format and content of documents,24 the Appeals Chamber’s decisions appear to have been driven by the need to safeguard 20

21

22

23

24

Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 26; Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 29; Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 15. See also Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC-02/11-01/11-266 OA2, 16 October 2012, para. 16; Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 13; Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/ 04-01/06-844 OA8, 9 March 2007, para. 17; Situation in the DRC, Decision on the Unsealing of the Judgment of the Appeals Chamber, ICC-01/04-538 OA, 22 September 2008, para. 6. But see Prosecutor v. Ngudjolo, Order on the Filing of Public Redacted Versions of the Submissions, ICC-01/04-02/12-143 OA, 4 October 2013, para. 8. Prosecutor v. Gbagbo, Decision on Detention Pursuant to Article 60(3), ICC-02/11-01/11304 OA3, 23 November 2012, para. 8. The Appeals Chamber has reiterated, however, that the filing of a public redacted version is no substitute for a proper explanation of the basis for filing the original confidentially, see Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 29; Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 26; Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 29. Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 21, 23; Prosecutor v. Ngudjolo, Decision on the Victim’s Urgent Request for an Extension of Time and Reclassification of the Prosecution’s Document, ICC-01/04-02/12-71 OA, 16 May 2013, para. 9. Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012, para. 22. Note that regulations 34, 36 and 38 on time limits and page limits have been amended after the Appeals Chamber entered some of the findings referred to in this section.

602

miscella neo us p rocedural is sues

the fairness and efficacy of the process by ensuring (a) that the filings before it are comprehensible to enable all parties to respond and the Chamber to adjudicate the arguments expeditiously, and (b) that no party attempts to gain an advantage by circumventing restrictions such as page and word limits. It has insisted that documents filed in appeals must be self-contained, they may not incorporate arguments by reference to other filings or include additional arguments in annexes,25 and that all substantive submissions or significant procedural requests must be in the body of the submission rather than in footnotes.26 Despite the increasing reference to these requirements and identification of breaches, where a breach does not undermine the substantive equality of opportunity to present the parties’ arguments or impinge on the effective disposition of the appeal, the Chamber has allowed a little latitude in practice. For example, where a failure to comply with a formatting requirement did not lead to the documents substantively exceeding the page or word limit, or where the document exceeded the word limit in part because it included procedural requests that could have been made separately and the other parties had already responded without objection, the Chamber has imposed no sanction.27 However, the Chamber rejected a notice of appeal under article 82(1)(b) and rule 64 in limine because it did not comply with regulation 64 of the RoC. The Chamber held that “[i]n light of the strict timelines prescribed by regulation 64 of the Regulations of the Court for the efficient conduct of proceedings on interim release [. . .], to allow Mr Gbagbo to re-file his Notice of Appeal at this stage of the proceedings would unduly infringe on these timelines”.28 25

26

27

28

Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 5. Prosecutor v. Lubanga, Decision on the Re-filing of the Document in Support of the Appeal, ICC-01/04-01/06-1445 OA13, 22 July 2008, para. 6; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/05-01/08-962 OA3, 19 October 2010, para. 30. Such significant procedural issues can include extensions of time or introduction of new evidence. See also regulation 36(3) of the RoC as amended on 6 December 2016. See, e.g., Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/0401/06-2953 A, A2 A3 OA21, 14 December 2012, para. 21; Prosecutor v. Gaddafi & AlSenussi, Judgment on the Admissibility Appeal, ICC-01/11-01/11-565 OA6, 24 July 2014, paras. 34–35; Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014, para. 26. Prosecutor v. Gbagbo & Blé Goudé, Decision on Gbagbo’s Notice of Appeal, ICC-02/1101/15-1047 OA13, 5 October 2017, paras. 6–7. Judge Morrison dissented from this decision, finding that “the broader interests of justice could have been better served by

co mmentary

603

IV Applications for Extensions Part of the insistence on compliance with word and page limits may be that failure to comply with these limits circumvents the existing process for the Chamber to consider applications for extensions – of the page limit or of the time limit for filing – having heard a reasoned explanation, and to control any extension granted. In many respects, requests for extensions of the page limit are subject to more stringent requirements than extensions of the time limit. The standard of “exceptional circumstances” for page limits in regulation 37(2) is more demanding than that of “good cause” for time limits in regulation 35(2). While an extension of either should in principle be sought prior to the deadline for filing the document in question, the Appeals Chamber considers this essential for extensions of the page limit, with no authority for it to grant an extension retroactively;29 whereas regulation 35(2) does provide for retroactive extensions of the time limit in what the Appeals Chamber has categorised as the “exceptional circumstance” of the party being unable to file on time “for reasons outside his or her control”.30 There is one exception, however: a party may only seek an extension of a time limit set in the RoC or an order of the Chamber, not a time limit set by the Statute or the Rules;31 whereas it may seek an extension of any page limit. Ultimately, the decision as to whether to grant a request for an extension is made on a case-by-case basis, with a range of reasons having been considered by the Chambers as justifying an extension or not in the particular circumstances of the various cases. At times, the abstracted reasons can seem contradictory – overlapping deadlines for the submissions of responses, on-going work relating to the case, the short time limit for filing a reply, the fact that the Court was in recess at the time of the filing of the request for leave to reply and the number of court holidays during the relevant period together were not considered “good cause” for

29

30

31

condoning the non-compliance with a strong caution to Mr Gbagbo and his Counsel to be more attentive in the future to amendments to the applicable law before the Court”: Prosecutor v. Gbagbo & Blé Goudé, Dissenting Opinion of Judge Howard Morrison, ICC02/11-01/15-1047-Anx OA13, 5 October 2017, para. 2. Diss. Op. Prosecutor v. Lubanga, Decision on the Re-filing of the Document in Support of the Appeal, ICC-01/04-01/06-1445 OA13, 22 July 2008, para. 8; Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC02/11-01/11-266 OA2, 16 October 2012, para. 9. Prosecutor v. Lubanga, Decision on the Legal Representative of Victims’ Request for an Extension of Time, ICC-01/04-01/06-2975 A4 A5 A6, 7 February 2013, para. 4. E.g., the deadline for filing an appeal under article 82(1)(a), (b) or (c), or an application for leave to appeal under article 82(1)(d), set out in rules 154 and 155.

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an extension of the time limit in one instance;32 while other work on the case or on related proceedings, or unavailability of team members due to public holidays, have been considered as “good cause” in others.33 It is therefore important to ground any request in the context and circumstances of the particular case.34 One constant is the requirement for an applicant to specify the precise extension required; a matter of particular importance when requesting an extension of the time limit given that the Chamber must ensure that any extension does not impede the conclusion of the proceedings within a reasonable time.35

Jurisprudence I Participation of Amicus Curiae 1 The Decision on Whether to Accept Amicus Curiae is Discretionary “[I]t is left to the discretion of the Appeals Chamber to grant leave to any State, organisation or person to submit observations.” Prosecutor v. Lubanga, Decision on International Criminal Bar Amicus Curiae Motion, ICC-01/04-01/06-1289 OA11, 22 April 2008, para. 8; Prosecutor v. Al Bashir, Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-51 OA, 9 November 2009, para. 7; Prosecutor v. Lubanga, Decision on the Application by Child Soldiers International to Submit Observations, ICC01/04-01/06-3044 A4 A5 A6, 16 August 2013, para. 11; Prosecutor v. Ruto & Sang, Decision on the Requests for Leave to Submit Observations under 32

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Prosecutor v. Lubanga, Decision on the Prosecution’s Application for Extension of Time, ICC-01/04-01/06-493, 29 September 2006, p. 2. See, e.g., Prosecutor v. Lubanga, Decision on the Extension of the Time Limit, ICC-01/0401/06-190 OA3, 11 July 2006, para. 4; Prosecutor v. Gbagbo, Decision on Defence Request for Time Extension Pursuant to Regulation 64(5), ICC-02/11-01/11-458-Red OA4, 18 July 2013, para. 6; Prosecutor v. Gbagbo, Decision on the Defence Request to Suspend Time Limits, ICC-02/11-01/11-189, 19 July 2012, para. 4; Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for an Extension of Time, ICC-01/04-02/ 12-84 OA, 7 June 2013, para. 9; Prosecutor v. Katanga, Decision on the Defence Application for an Extension of Time, ICC-01/04-01/07-121 OA2, 21 December 2007, paras. 2, 5; Prosecutor v. Katanga, Decision on Prosecution’s Urgent Application for Extension of Time, ICC-01/04-01/07-115 OA, 18 December 2007, para. 6. Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/07-653 OA7, 27 June 2008, para. 5. Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/07-653 OA7, 27 June 2008, para. 6; Prosecutor v. Bemba, Decision on the Request for an Extension of the Time Limit, ICC-01/05-01/ 08-827 OA3, 15 July 2010, para. 10.

jurisprudence Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 9; Prosecutor v. Ruto & Sang, Second Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-988 OA5, 25 September 2013, para. 11. “A decision of the Appeals Chamber under rule 103(1) of the Rules of Procedure and Evidence is discretionary. The decision may be made after a request for leave to address the Chamber as an amicus curiae by an organisation, person or State, or the Chamber may, proprio motu, invite an organisation, person or State to participate as an amicus curiae if the Chamber considers it desirable to do so.” Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 10; Prosecutor v. Gaddafi & Al-Senussi, Decision on Hosseinioun’s Application to Submit Observations, ICC-01/11-01/11-404 OA4, 15 August 2013, para. 5; Prosecutor v. Gbagbo, Decision on Robinson et al.’s Request to Submit Amicus Curiae Observations, ICC-02/11-01/11516 OA5, 1 October 2013, para. 9; Prosecutor v. Gbagbo, Decision on Zwart and Knoops’ Request to Submit Amicus Curiae Observations, ICC02/11-01/11-517 OA5, 1 October 2013, para. 9; Prosecutor v. Gbagbo, Decision on the Common Legal Representative’s Request to Submit Observations, ICC-02/11-01/11-533 OA5, 9 October 2013, para. 11.

2 Factors Relevant to Granting Leave to Participate as Amicus Curiae “[T]he Appeals Chamber considers that submissions by the International Criminal Bar on the third issue in respect of which leave to appeal was granted may assist the Appeals Chamber in the proper determination of the case.” Prosecutor v. Lubanga, Decision on International Criminal Bar Amicus Curiae Motion, ICC-01/04-01/06-1289 OA11, 22 April 2008, para. 8. “[T]he Applicants proposed putting forward another view to that of the Prosecutor who was the only participant to have made submissions before the Appeals Chamber on the merits of the appeal. In light of the issue on appeal, the Appeals Chamber considered it desirable for the proper determination of this appeal to grant the Applicants leave to submit observations.” Prosecutor v. Al Bashir, Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-51 OA, 9 November 2009, para. 9. “[T]he observations that Aprodec wishes to make would serve merely to repeat submissions already provided by the parties and participants. Therefore, in the circumstances of the present case, the Appeals

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m i s c el l a n eo u s pr o c ed u r a l is s u e s Chamber does not find it desirable for the proper determination of the case to receive submissions from Aprodec. Thus, [. . .] the Amicus Application is rejected.” Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 11. “[T]he Appeals Chamber observes that the Victims do not indicate what value their observations would add to the submissions before the Appeals Chamber, nor do they state the reasons that would make their participation appropriate under the circumstances. Therefore, the Appeals Chamber does not find it appropriate for the Victims to make submissions on the Amicus Curiae Observations.” Prosecutor v. Gbagbo, Decision on the Common Legal Representative’s Request to Submit Observations, ICC-02/11-01/11-533 OA5, 9 October 2013, para. 12. “[T]he Appeals Chamber finds that the issues [inter alia, the relevance of the political question doctrine and the non-justiciability doctrine in international criminal trials] that the Applicants propose to address in their observations are not related to the Prosecutor’s appeal. Therefore, in the circumstances of the present appeal, the Appeals Chamber does not find it desirable for the proper determination of the matter to receive observations from the Applicants.” Prosecutor v. Gbagbo, Decision on Zwart and Knoops’ Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-517 OA5, 1 October 2013, para. 10. “[T]he Appeals Chamber finds that the issues the Applicants propose to address in their observations [in regard to crimes against humanity, that an attack does not require multiple incidents and direct evidence of a policy is not required] appear to be of relevance to the grounds of appeal set out by the Prosecutor and that receipt of the proposed observations may be desirable for the proper determination of the appeal.” Prosecutor v. Gbagbo, Decision on Robinson et al.’s Request to Submit Amicus Curiae Observations, ICC-02/11-01/11-516 OA5, 1 October 2013, para. 10. “The first part [of the Impugned Decision] related foremost to the question [of] how the three letters of Côte d’Ivoire relevant to article 12(3) of the Statute should be interpreted. The second part discussed whether Côte d’Ivoire violated Mr Gbagbo’s human rights (before his surrender) in a way that should lead to a stay of the Court’s proceedings. Therefore, it appears not only desirable, but, rather, essential for the proper determination of this appeal to hear the observations of Côte d’Ivoire on Mr Gbagbo’s document in support of the appeal.”

jurisprudence Prosecutor v. Gbagbo, Directions on the Submissions of Observations, ICC-02/11-01/11-236 OA2, 31 August 2012, para. 4. “[S]he [the Prosecutor] does not explain why Ms Hosseinioun would not have knowledge of the issues [the question of the unavailability of the Libyan judicial system] on which she intends to make observations. Furthermore, the argument of the Prosecutor that Ms Hosseinioun’s observations would amount to additional evidence in the appeal, if at all relevant, can only be assessed after having received such observations in relation to which the Prosecutor will, in any event, have a right to respond.” Prosecutor v. Gaddafi & Al-Senussi, Decision on Hosseinioun’s Application to Submit Observations, ICC-01/11-01/11-404 OA4, 15 August 2013, para. 9. “In the circumstances of the present case and given the novelty of the issues raised in the present appeal [State cooperation and the parameters of article 63], the Appeals Chamber considers that it is desirable for the proper determination of the case to grant the applicants leave to submit observations as set out in the Requests.” Prosecutor v. Ruto & Sang, Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 10. But see Prosecutor v. Ruto & Sang, Second Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-988 OA5, 25 September 2013, para. 12 (“In these circumstances [where observations were submitted previously on the same issues] and to avoid any unnecessary delay given the advanced stage of these appeal proceedings, the Appeals Chamber does not consider it ‘desirable for the proper determination of the case’ within the meaning of rule 103 of the Rules of Procedure and Evidence to grant the Applicants leave to submit observations as set out in the Requests”). “[A] distinction must be drawn between the role of the judiciary, on the one hand, and the role of States Parties, on the other hand. The judiciary is bound to interpret and apply the law as set out in the Court’s legal texts and in accordance with article 21 of the Statute, while the States Parties, through the Assembly of States Parties, act as the legislative body of the Court. A strict separation between these two roles must be observed in order to preserve the independence of the judiciary. In the circumstances of the present case, the intervention by five interested States of the nature proposed endangers the risk of distorting the judicial process or, at a minimum, creating the appearance that States have inappropriately encroached upon the functions of the judiciary.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka, ICC-01/ 09-01/11-942-Anx OA5, in Decision on the Requests for Leave to Submit

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misc el l a n eo us p roc ed ur al is sue s Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 4. Diss. Op. “It is also of relevance to note that the Applicant States appear to align themselves with the position of Mr Ruto in the present proceedings. Accordingly, in deciding whether the proposed observations would be ‘desirable for the proper determination of the case’, careful consideration must be given to the impact that the intervention of these five States would have on the principle of equality of arms and the balance between the parties in these proceedings.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka, ICC-01/ 09-01/11-942-Anx OA5, in Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 6. Diss. Op. “It is my view that authorising five States to submit amici curiae observations over one month after the parties to the appeal have made their final submissions is not in the interests of judicial economy and will unduly and unnecessarily delay the resolution of this important issue.” Prosecutor v. Ruto & Sang, Dissenting Opinion of Judge Ušacka, ICC-01/ 09-01/11-942-Anx OA5, in Decision on the Requests for Leave to Submit Observations under Rule 103, ICC-01/09-01/11-942 OA5, 13 September 2013, para. 7. Diss. Op.

3

Procedural Issues Relating to Amicus Applications

“[I]n accordance with rule 103 [. . .], the submission of substantive observations is only permissible after a Chamber has decided to invite or grant leave to do so. In the present circumstances, Aprodec submitted substantive observations on the appeal in paragraphs 35 through 74 of the application without leave. For that reason, the Appeals Chamber shall disregard the substantive submissions contained in the Amicus Application.” Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 9. “[R]ule 103 [. . .] does not provide for the supplementation of an application once said application has been filed.” Prosecutor v. Bemba, Decision on the Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 9. “The Appeals Chamber notes that rule 58(2) of the Rules of Procedure and Evidence gives the relevant Chamber broad discretion over the conduct of proceedings pursuant to article 19(1) and (2) of the Statute. The Appeals Chamber, however, finds that such discretion is not unlimited. It has to be exercised in conjunction with other relevant legal provisions [. . .]. In the

jurisprudence context of proceedings in relation to jurisdiction and admissibility, this provision [rule 103(1)] thus regulates how a Pre-Trial Chamber may hear submissions from individuals and entities other than those mentioned in article 19(3) of the Statute and rules 58 and 59 of the Rules of Procedure and Evidence. The Appeals Chamber therefore finds that rule 58(2) of the Rules of Procedure and Evidence has to be applied by the Pre-Trial Chamber in conjunction with rule 103 of the Rules of Procedure and Evidence, if it decides to hear States that may have an interest in jurisdiction proceedings, but do not have a right to participate in the proceedings pursuant to article 19(3) of the Statute.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 39. “[R]ule 103 of the Rules of Procedure and Evidence regulates the procedure for hearing entities that would not otherwise participate in the proceedings. In the view of the Appeals Chamber, rule 103 of the Rules of Procedure and Evidence requires the Chamber to render a separate decision on requests [for] to leave to submit observations. This is because, under sub-rule 2, ‘[t]he Prosecutor and the defence’ are entitled to respond to the observations, if any, and the Chamber should set the applicable time limits for such responses. In the case at hand, the PreTrial Chamber should therefore have treated the Request for Leave to Submit Observations as a request pursuant to rule 103(1) of the Rules of Procedure and Evidence. It should have decided on this request and allowed Mr Gbagbo and the Prosecutor the opportunity to respond to Côte d’Ivoire’s Observations on the Jurisdictional Challenge. Since this procedure was not followed, the Appeals Chamber finds that the Pre-Trial Chamber erred.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 43.

3.1 Issues Related to Responses to Amicus Curiae Observations Although rule 103(2) gives the parties the right to respond to substantive submissions of an amicus curiae, “under the express wording of rule 103(1) of the Rules, the Prosecutor is not entitled to respond to an application under rule 103(1) [to participate as amicus]. Therefore, in the future, such responses may not be filed without the leave of the Appeals Chamber.” Prosecutor v. Al Bashir, Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-51 OA, 9 November 2009, para. 8. See also Prosecutor v. Bemba, Decision on the

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mis cellaneous p ro cedura l issues Application for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009, para. 7. “Considering that, in its ‘Directions’, the Appeals Chamber allowed Mr Gbagbo and the Prosecutor to ‘each file a single response’ to the Observations by Côte d’Ivoire and the Observations by OPCV, to which regulation 37(1) of the Regulations of the Court is applicable and that they thus have to respond to a total of forty pages, the Appeals Chamber decides proprio motu, in the interest of justice and for reasons of expeditiousness of the proceedings, to allow Mr Gbagbo and the Prosecutor to respectively file a forty-page consolidated response [. . .].” Prosecutor v. Gbagbo, Decision Further to the Directions on the Submissions of Observations, ICC-02/11-01/11-268 OA2, 18 October 2012, para. 4. “The Appeals Chamber observes that rule 103(2) of the Rules of Procedure and Evidence specifically provides for the Prosecutor and the defence to have the opportunity to respond to observations submitted pursuant to rule 103(1). However, the Appeals Chamber does not consider that rule 103(2) of the Rules of Procedure and Evidence excludes other participants from filing a response to observations filed under that provision. The Appeals Chamber finds that it is within its discretion to request observations or to grant permissions to participants in the proceedings to submit observations in relation to any observations filed pursuant to rule 103(1) of the Rules of Procedure and Evidence.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the OPCV’s Request to File Observations, ICC-01/11-01/11-415 OA4, 23 August 2013, para. 9.

II Replies in Pre-Trial and Trial Proceedings: Regulation 24 “The Appeals Chamber finds Mr Ngudjolo’s reliance on regulation 24 of the Regulations of the Court as a legal basis for his Request to Reply to be misguided. Regulation 24 of the Regulations of the Court is not applicable to submissions made by the Registrar under regulation 24bis of the Regulations of the Court since the Registrar cannot be considered to be a ‘participant in the case’. In this regard, article 43(1) of the Statute stipulates that ‘the Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court [. . .]’ while rule 13(1) of the Rules of Procedure and Evidence states that ‘[. . .] the Registrar shall serve as the channel of communication of the Court’. The Registrar therefore has no statutory power to participate in judicial proceedings as a participant. For that reason, submissions of the Registrar under regulation 24bis cannot be considered a ‘document filed by a participant’ in terms of regulation 24(1) of the Regulations of the

jurisprudence Court, to which the Prosecutor and the defence may automatically respond.” Prosecutor v. Ngudjolo, Decision on the Defence Request to Reply, ICC01/04-02/12-43 A, 20 March 2013, para. 11. “[T]he Appeals Chamber considers that for the proper disposal of the Request to Reply, and considering the interests of fairness, the exercise of its discretion under regulation 28 of the Regulations of the Court is warranted. Accordingly, Mr Ngudjolo may file submissions on the Registrar’s Observations and the Report [. . .].” Prosecutor v. Ngudjolo, Decision on the Defence Request to Reply, ICC01/04-02/12-43 A, 20 March 2013, para. 12. “[T]he Appeals Chamber is not convinced by Côte d’Ivoire’s argument that it had an automatic right to respond to the Jurisdictional Challenge pursuant to regulation 24(3) of the Regulations of the Court. This provision regulates the right to respond of ‘States participating in the proceedings’. It does not, however, confer participatory rights to States that are not yet participating in the proceedings.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 37.

III Chambers’ Clarification and Reconsideration of Decisions 1 Clarification of Decisions “[T]he Clarification substantially modified the Impugned Decision. The Appeals Chamber disapproves of the use of such clarifications to alter, or to add to, the substance of a decision. Clarifications of this kind are of questionable legality and are undesirable, because they affect the finality of judicial decisions.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 92.

2 Reconsideration of Decisions “Given that Mr Mbarushimana’s Request for Reconsideration is based on a misrepresentation of the Decision on Time Extension, the Appeals Chamber finds it unnecessary to consider the Request for Reconsideration on its merits or to address the question of whether or under what circumstances the Appeals Chamber may reconsider its prior decisions. The Request for Reconsideration is therefore dismissed in limine.”

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m i s ce l l a n e o u s pr o ce d u r a l is s u es Prosecutor v. Mbarushimana, Decision on the Defence Request for Reconsideration, ICC-01/04-01/10-505 OA4, 23 March 2012, para. 10.

IV Confidentiality of Documents and Information 1 Confidential Filings “[G]enerally, participants who are making filings confidentially should clearly set out the reasons for doing so.” Prosecutor v. Lubanga, Judgment on Lubanga’s Interim Release Appeal, ICC-01/04-01/06-824 OA7, 13 February 2007, para. 76; Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 22, citing generally Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009; Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/11-126 OA2, 25 April 2012. “Mere labelling of a given proceeding as confidential without substantiation is not in itself conclusive.”36 Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, para. 17. See also Situation in the DRC, Decision on the Unsealing of the Judgment of the Appeals Chamber, ICC-01/04-538-PUB-Exp OA, 22 September 2008, para. 6. “[T]he basis for the chosen classification should have been made expressly in the original document itself, pursuant to regulation 23bis (1). This would have put the Appeals Chamber on notice that there was material within the Document in Support of the Appeal that the Prosecutor wished to be treated as confidential that went beyond material that had been redacted out of the public version of the Impugned Decision by the PreTrial Chamber.” Prosecutor v. Katanga, Judgment on the Prosecution’s Appeal against the First Redaction Decision, ICC-01/04-01/07-475 OA, 13 May 2008, para. 13. There is an “obligation under regulation 23bis of the Regulations of the Court to state the factual and legal basis for a non-public filing. 36

The Appellant’s application was filed as a confidential document. However, in para. 17, the Appeals Chamber considered that “[n]o aspect of this decision qualifies as confidential from whatever angle one may view the matter. Therefore, the decision and the reasons in support are made public.”

jurisprudence The purpose of this provision is to clearly inform the relevant Chamber of the reason why the filing as non-public is necessary.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 15. See also Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC-02/11-01/ 11-266 OA2, 16 October 2012, para. 16. When filing a document confidentially, “[t]he explanation provided by the participant must be so framed as to allow the Chamber to assess whether or not the classification chosen by the participant should be retained or altered. It is not sufficient merely to file a public redacted version of the document at a later stage.” Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Appeal on the Admissibility of the Case, ICC-01/04-01/07-1497 OA8, 25 September 2009, para. 26; Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 29. “The Appeals Chamber reminds all participants in the proceedings as well as the Registrar of the necessity to state the factual and legal basis for filing documents confidentially. The filing of a public redacted version, while appreciated, does not obviate the need to comply with this requirement.” Prosecutor v. Lubanga, Judgment on the Stay of Proceedings due to an Abuse of Process, ICC-01/04-01/06-2582 OA18, 8 October 2010, para. 29. “[T]he Prosecutor is reminded that [. . .] submissions should not be made in a footnote. This includes submissions as to the reasons why a document is filed confidentially.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 30; Prosecutor v. Lubanga, Decision on the Re-filing of the Document in Support of the Appeal, ICC01/04-01/06-1445 OA13, 22 July 2008, para. 6. “[P]ursuant to regulation 23bis (1) of the Regulations of the Court, ‘any document filed by the Registrar or a participant and marked “ex parte”, “under seal” or “confidential” shall state the factual and legal basis for the chosen classification’.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A, 11 February 2014, para. 13. “The Prosecutor affirmed that any disclosure at this stage [. . .] posed serious risks to the life and well-being of victims and witnesses, the integrity and efficiency of on-going investigative efforts, and the prospects

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m i s ce l l a n e o u s p r o ce d u r a l is s ue s of success of any future arrest efforts [. . .]. The Chamber is satisfied that a sufficient factual and legal basis exists for the proceedings on appeal to be maintained under seal and ex parte, Prosecution only.” Situation in the DRC, Judgment on the Ntaganda Arrest Warrant Appeal, ICC-01/04-169 OA, 13 July 2006, paras. 21, 23. “The Court’s legal texts, in particular articles 72, 73 of the Statute and rules 73 or 87 of the Rules of Procedure and Evidence, do not provide for the confidentiality of the information at issue [the title of a newspaper]. Furthermore, Libya does not adequately substantiate or justify a threat to a person who would be protected by making this information confidential. Considering that the proceedings before the Court are, in principle, public, the Appeals Chamber finds that Libya’s arguments in support of reclassification do not establish a factual or legal basis for the confidential treatment of the information.” Prosecutor v. Gaddafi & Al-Senussi, Decision on the Libya Appeal for the Postponement of the Surrender of Saif Al-Islam Gaddafi, ICC-01/11-01/ 11-126 OA2, 25 April 2012, para. 22. “[T]he Appeals Chamber would expect the parties, if they file confidential submissions, to also file public redacted versions of those submissions, to the extent possible.” Prosecutor v. Gbagbo, Decision on Detention Pursuant to Article 60(3), ICC-02/11-01/11-304 OA3, 23 November 2012, para. 8. “In the Appeals Chamber’s view, disclosure of this [confidential ex parte] information could undermine protective measures in respect of certain witnesses. Nevertheless, the Appeals Chamber considers that, for the victims to enjoy full participation in the present appeal, they should be granted access to the third ground of appeal, in order for them to present their views and concerns in that regard. The Appeals Chamber considers that their access to the third ground would not jeopardise the confidentiality of the information, in particular because the victims are prohibited from disclosing the content of the third ground of appeal to third parties.” Prosecutor v. Ngudjolo, Decision on the Victim’s Urgent Request for an Extension of Time and Reclassification of the Prosecution’s Document, ICC-01/04-02/12-71 A, 16 May 2013, para. 9. “The Appeals Chamber considers that the principle of publicity, as enshrined in articles 64(7) and 67(1) of the Statute, imposes a duty on the parties and participants to the proceedings to ensure, to the extent possible, that public redacted versions of their confidential filings are filed timeously. The Appeals Chamber recalls that in principle its practice has been to permit the filing of public redacted versions of submissions by the parties and participants without any prior scrutiny or authorisation of the Appeals Chamber. This approach is premised on the understanding that

jurisprudence the primary responsibility for the filing of public redacted versions of submissions that are compliant with protective measures and the confidentiality of information, as ordered by the relevant Chamber, lies first and foremost with the party or participant making the filing.” Prosecutor v. Ngudjolo, Order on the Filing of Public Redacted Versions of the Submissions, ICC-01/04-02/12-143 A, 4 October 2013, para. 8. “The Appeals Chamber notes that if the Prosecutor had not filed her document in support of the appeal confidentially, Mr Katanga would have had access to it, due to the principle of publicity of the proceedings before the Court. In addition, the Prosecutor and Mr Ngudjolo expressed no objection to Mr Katanga receiving access to the Confidential Redacted Document in Support of the Appeal. Accordingly, the Appeals Chamber directs the Registry to notify the Confidential Redacted Document in Support of the Appeal to Mr Katanga.” Prosecutor v. Ngudjolo, Order on Katanga’s Request for the Prosecution’s Appeal Brief, ICC-01/04-02/12-61 A, 12 April 2013, para. 6. “The Appeals Chamber understands this [regulation 23bis (2)] to cover not only references to the titles or document numbers of confidential documents, decisions or orders, but also to references to information contained in such documents, decisions or orders.” Prosecutor v. Bemba, Order on Reclassification as Confidential and the Filing of a Public Redacted Version, ICC-01/05-01/08-498-RSC OA2, 2 September 2009, para. 3.

2 Reclassification of Confidential Filings “Regulation 23bis (3) of the Regulations of the Court provides, in relevant part, that where the basis for the classification no longer exists, ‘[a] Chamber may [. . .] re-classify a document upon request by any other participant or on its own motion’. In this regard, the Appeals Chamber notes that Annex I consists of [sketches] and a topographical survey provided by the Registrar for Trial Chamber II’s site visit to Ituri [. . .]. [B]oth sketches were produced and discussed in public sessions during the trial before Trial Chamber II. The topographical survey is also already public. In addition, the Appeals Chamber notes that Annex I is not related to the third ground of appeal which is currently classified as confidential. Accordingly, the Appeals Chamber finds that no reason exists for Annex I and the Request to remain confidential and directs these documents be reclassified as public.” Prosecutor v. Ngudjolo, Order on the Reclassification of Documents, ICC01/04-02/12-137 A, 17 September 2013, para. 4.

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3 Regime of “Ex Parte” Applications It is in the “discretion of a Chamber to determine, within the framework of the applicable law, whether applications by participants are kept ex parte or are made inter partes and whether or not to hold proceedings on an ex parte basis”. Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 66, see also para. 75. Generally “the other participant has to be informed of the fact that an application for ex parte proceedings has been filed and of the legal basis for the application [. . .]. Nevertheless, there may be cases where this approach would be inappropriate. Should it be submitted that such a case arises, any such application would need to be determined on its own specific facts and consistently with internationally recognized human rights standards, as required by article 21(3) of the Statute.” Prosecutor v. Lubanga, Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4), ICC-01/04-01/06-568 OA3, 13 October 2006, para. 67. “[R]ule 81(2), which deals specifically with applications for nondisclosure in circumstances where disclosure may prejudice further or ongoing investigations, provides expressly for ex parte applications to be made. Furthermore, the Appeals Chamber notes that rule 87 applies equally to requests for protective measures by victims and witnesses which, pursuant to that rule, can also only be made on an inter partes basis. However, in relation to applications for non-disclosure of the identity of victims and witnesses prior to the commencement of the trial, ex parte applications can be made pursuant to rule 81(4).” Prosecutor v. Katanga, Judgment on Katanga’s Appeal against the First Redaction Decision, ICC-01/04-01/07-476 OA2, 13 May 2008, para. 54.

V Formal Requirements of Filings 1 General Principles “The arguments of a participant to an appeal must be fully contained within that participant’s filing in relation to that particular appeal. The filing must, in itself, enable the Appeals Chamber to understand the position of the participant on the appeal, without requiring reference to arguments made by that participant elsewhere.” Prosecutor v. Lubanga, Judgment on Lubanga’s Appeal against the Second Redaction Decision, ICC-01/04-01/06-774 OA6, 14 December 2006, para. 29.

jurisprudence “[N]either the Regulations of the Court nor the Regulations of the Registry stipulate that documents filed by participants must be in ‘pdf’ format.” Prosecutor v. Kony et al., Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-01/05-306 OA2, 22 July 2008, para. 7; Situation in Uganda, Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-148 OA, 22 July 2008, para. 7. “The Appeals Chamber disapproves this practice [of inserting requests such as introducing additional evidence under regulation 62 or extension of time limit under regulation 35(2)], as such requests should not be made in a party’s response to another filing or in a footnote. In addition, the Appeals Chamber, with a view to ensuring the expeditiousness of the proceedings, disapproves of a party making requests of this type in a final submission of the appellate proceedings.” Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/0501/08-962 OA3, 19 October 2010, para. 30. “The Appeals Chamber notes that the Document in Support of the Appeal, Côte d’Ivoire’s Observations and Mr Gbagbo’s Response do not have annexed copies of the authorities relied upon or, if appropriate, a list of internet links, as required under regulation 23(3) of the Regulations of the Court. Only Mr Gbagbo provided internet links, where available, in the footnotes of his submissions. The Appeals Chamber finds it important to recall that, when filing documents, the participant must comply with the requirements of regulation 23(3) of the Regulations of the Court.” Prosecutor v. Gbagbo, Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012, para. 26. “[T]he Appeals Chamber notes that all decisions and orders of the Court must be translated into the other working language of the Court, pursuant to regulation 40(3) of the Regulations of the Court. Article 50(2) of the Statute provides that English and French are the working languages of the Court. Regulation 39(1) of the Regulations of the Court provides that all documents and materials filed with the Registry shall be in English or French. Therefore, the Prosecutor may choose to file her Document in Support of Appeal in either English or French.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 9. “[W]ith regard to the substance and style of the submissions, the Appeals Chamber considers that it is incumbent upon the applicant to provide

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m i s ce l l a n e o u s pr o ce d u r a l is s u es submissions in as comprehensible a manner as possible in order for the Appeals Chamber to determine the validity of the arguments.” Situation in the Republic of Kenya, Decision on the Request for Reconsideration of the Request to Disqualify the Prosecutor, ICC-01/09111 OA2, 22 April 2013, para. 4.

2 Time Limits 2.1

General Principles “In the view of the Appeals Chamber, the Document in Support of the Appeal was filed within the applicable time limit, even though the corrigendum to this document was filed after the expiry of the time limit. What is decisive is that the original Document in Support of Appeal was filed in time.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 12. “Although the Prosecutor was notified of the original Document in Support of the Appeal on 25 February 2010, the Registrar removed electronic access to this document shortly after notification. The Prosecutor regained electronic access to the Document in Support of the Appeal only with the notification of the corrigendum on 26 February 2010. In light of these circumstances, the Appeals Chamber considers that the effective date of notification of the Document in Support of the Appeal was 26 February 2010, and not 25 February 2010.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 14. “The Appeals Chamber agrees with the Trial Chamber’s conclusion that parties must submit motions that have repercussions on the conduct of the trial in ‘a timely manner’. The Appeals Chamber interprets ‘timely manner’ to mean that the parties must act within a reasonable time. However, what is reasonable or unreasonable in relation to time always turns on all the circumstances of the case, including the conduct of the person seeking the Court’s assistance.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 54. The Appeals Chamber has reiterated the need to abide to the time limits set out in the Rules and Regulations in filing documents in support of appeal [ten days since the notification of the decision granting leave to appeal under regulation 65(4); and between 9 am and 4 pm under

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regulation 33(1) and (3)]. Exceptionally the Appeals Chamber has accepted late filings because of “the negligible extent of the delay and because there was no objection to the late filing by the Prosecutor”. Prosecutor v. Katanga & Ngudjolo, Judgment on Katanga’s Language Appeal, ICC-01/04-01/07-522 OA3, 27 May 2008, paras. 11–12.37

2.2 Time Limits of Sui Generis Motions “[N]one of the time limits stipulated in the Statute, the Rules of Procedure and Evidence or the Regulations of the Court directly apply to motions alleging unlawful pre-surrender arrest and detention and seeking a stay of proceedings. This is due to the fact that such motions are not provided in the Court’s legal instruments; they are therefore of a sui generis character.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 39. “It is consistent with the role of the Pre-Trial Chamber and the purpose of the confirmation proceedings that, in the absence of any provision to the contrary, motions alleging unlawful pre-surrender arrest and detention and seeking a stay of proceedings should be brought during the pre-trial phase of the proceedings. If such motions are made at an unduly late stage of the proceedings, it would turn the Court’s attention away from the trial proper and delay the hearing of the substantive case.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, paras. 41, 48. But see also Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2297 OA10, 28 July 2010, para. 28. Diss. Op. (“The Trial Chamber also established a requirement applicable to a phase of the proceedings that take place before the Pre-Trial Chamber, prior to the confirmation of charges. It did this, albeit it is clear that this is a phase of the proceedings [pre-trial phase] over which the Trial Chamber has no mandate. In this regard, it is our view that Chambers cannot act beyond the scope of the powers assigned to them.”) “[T]he principle identified by the Trial Chamber is based, first, on considerations of efficiency and judicial economy within the procedural framework of the Court.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 40. 37

The Document in Support of the Appeal was received by the Registry at 4:26 pm, the Appeals Chamber considering the delay to be negligible in para. 12.

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miscella neo us p rocedural is sues “In the view of the Appeals Chamber, this does not lead to unfairness visà-vis the accused person [. . .]. [T]he principle allows for flexibility. An accused person’s right to raise the matter of allegedly unlawful presurrender arrest and detention and to seek a stay on that basis is not denied, but is given prominence before the Pre-Trial Chamber. Only in circumstances where the accused person could not reasonably be expected to raise the matter at that stage will he or she be permitted to raise it at the trial stage. The principle thus strikes a fair balance between the rights of the accused person and the requirements of expeditiousness.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 48. The Appeals Chamber also noted that “there may be instances where events arising after the pre-trial phase may justifiably lead to a motion seeking a stay of the proceedings”. Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 49. “The Appeals Chamber observes that in light of the Pre-Trial Chamber’s statements [that gave Mr Katanga the impression that he could file his motion on unlawful arrest and detention during trial], the Trial Chamber excused Mr Katanga’s failure to file an application on the issue during the pre-trial phase of the proceedings – the period it had held to be the most appropriate – and correctly extended its analysis to the trial phase when determining whether the Defence Motion was filed in time. Therefore, the Trial Chamber did not retroactively apply the principle [. . .]. Rather, it took a decision based on the specific facts and circumstances of the case.” Prosecutor v. Katanga & Ngudjolo, Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/04-01/07-2259 OA10, 12 July 2010, para. 51. But see Prosecutor v. Katanga & Ngudjolo, Dissenting Opinion of Judges Kourula and Trendafilova in the Judgment on the Unlawful Detention and Stay of Proceedings Appeal, ICC-01/0401/07-2297 OA10, 28 July 2010, para. 34. Diss. Op. (“[T]he Trial Chamber did apply the requirement it had established retroactively. The Trial Chamber erred in deciding that Mr Katanga should have filed the Defence Motion at the pre-trial phase on the basis of a requirement not envisaged by law and laid out by this Chamber for the first time in the Impugned Decision. Mr Katanga was not on notice that he had to raise the matter during the pre-trial proceedings and therefore did not act in accordance with this requirement.”)

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3 Word Limits, Formatting, Footnotes and Inclusion of Legal Basis 3.1 Conditions that Must be Complied With “The Appeals Chamber disapproves of the practice of the Prosecutor placing substantial submissions in the footnotes of the documents filed before this Chamber. This practice [. . .] makes the structure of the arguments put forward potentially unclear.”38 Prosecutor v. Lubanga, Decision on the Re-filing of the Document in Support of the Appeal, ICC-01/04-01/06-1445 OA13, 22 July 2008, para. 6; Prosecutor v. Bemba, Judgment on the Admissibility Appeal, ICC-01/ 05-01/08-962 OA3, 19 October 2010, para. 30. “[A] violation of regulation 36(3) of the Regulations of the Court ‘cannot be corrected by retroactively granting an extension of the page limit’.” Prosecutor v. Lubanga, Decision on the Word Limit of the Prosecution’s Appeal Brief, ICC-01/04-01/06-2543 OA18, 30 July 2010, para. 11. “The Appeals Chamber considers that breaches by a party or participant of regulation 36(3) of the Regulations of the Court could result in the rejection of the document in its entirety. However [. . .], in view of the extraordinary nature of a stay of proceedings and the significance of the Prosecutor’s appeal, the Appeals Chamber determines that it is in the interest of justice to order the Prosecutor to re-file by 16h00 today [. . .].”39 Prosecutor v. Lubanga, Decision on the Word Limit of the Prosecution’s Appeal Brief, ICC-01/04-01/06-2543 OA18, 30 July 2010, para. 14. “[T]he Appeals Chamber recalls that regulation 36(3) of the Regulations of the Court sets out how documents filed with the Court shall be formatted, including that such documents shall have 1.5 line spacing. Given that the V02 Legal Representatives’ Observations were single spaced, the document did not comply with regulation 36(3) of the Regulations of the Court. However, it nonetheless appears to the Appeals Chamber that the document, which was eleven pages long, would not, if properly spaced, have exceeded the page limit of twenty pages as set out in regulation 37 of the Regulations of the Court. In this specific case, the Appeals Chamber considers that, despite its noncompliance with regulation 36(3) of the Regulations of the Court, it is in the interests of justice to accept the document in the circumstances described (regulation 29(1) of the Regulations of the Court).” 38

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Regulation 36(3) of the RoC was subsequently amended on 6 December 2016 to state that “no substantial submissions may be placed in the footnotes of a document”. The breach in this case was of the condition that every page should not exceed 300 words in regulation 36(3) of the RoC, which was later deleted on 6 December 2016; however, the principle could still be applicable to other page limits listed under the RoC.

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m i s c e l l a n e o u s p r o c e d u r a l is s u e s Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 21. “Recent Appeals Chamber jurisprudence has clarified that [. . .] the twentypage limit in regulation 37(1) of the Regulations of the Court has to be read as including both the cover and the notification page. However, the Appeals Chamber notes that regulation 60 of the Regulations of the Court provides for a page limit of fifty pages for a reply and recalls that the page limit set by the Order of 21 February 2013 was based on Mr Lubanga’s assessment of the pages he would need to file a consolidated reply. Therefore, the Appeals Chamber does not find it necessary in the interests of justice to request Mr Lubanga to file a reply with twenty pages, but accepts, pursuant to regulation 29 of the Regulations of the Court, Mr Lubanga’s Reply in its present form.” Prosecutor v. Lubanga, Decision on the Prosecution’s Request to Strike Lubanga’s Reply, ICC-01/04-01/06-3002 A5 A6, 26 March 2013, para. 7.

3.2

Discernible Legal Basis Required for the Admissibility of the Filing “The Appeals Chamber noted that, although it refers extensively to the factual issues, the Request for Review does not contain any reference to the relevant provisions of the Court’s legal framework, as required by regulation 23(1)(d) of the Regulations of the Court. The Appeals Chamber notes, however, that Mr Ngudjolo indicates a time period of fifteen days as the deadline to file ‘an appeal against such a decision’, which is the deadline to file a request for review of a decision by the Registrar on disputes relating to fees [. . .] pursuant to regulation 135(2) of the Regulations of the Registry [. . .].” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A, 11 February 2014, para. 12. “In the case at hand, the Appeals Chamber considers that Mr Ngudjolo’s non-compliance with regulations 23(1)(d) and 23bis (1) of the Regulations of the Court does not per se render the Request for Review inadmissible. In the circumstances, the Appeals Chamber considers that the legal basis for the Request for Review together with the need for the confidential, ex parte classification of the request may be discerned and considers that the interests of justice are best served by condoning such non-compliance. Therefore, the Appeals Chamber pursuant to regulation 29(1) of the Regulations of the Court accepts the Request for Review as admissible.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A, 11 February 2014, para. 15.

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3.3 Declaration/Statement of Compliance ”Parties and participants to appeals proceedings are required ‘to add to the end of their filling a short, signed statement’ certifying the total number of words and its compliance with the requirements of regulation 36 of the Regulations of the Court.” Prosecutor v. Ruto & Sang, Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses, ICC-01/09-01/111598 OA7 OA8, 9 October 2014, para. 26; Prosecutor v. Bemba, Decision on Bemba’s Request to File Additional Submissions, ICC-01/05-01/083243 OA11, 9 February 2015, para. 14. See also Prosecutor v. Gaddafi & AlSenussi, Judgment on Al-Senussi’s Appeal on the Admissibility of the Case, ICC-01/11-01/11-565 OA6, 24 July 2014, para. 32.

4 Annexes “The Appeals Chamber notes that, in his Request for Disqualification, Mr Nyekorach-Matsanga ‘adopts the reasons’ contained in one of the annexes to the Request for Disqualification. The Appeals Chamber considers that this amounts to an attempt to circumvent the requirements of regulations 36 and 37 of the Regulations of the Court. To the extent that the annexes to the Request for Disqualification may be construed to contain submissions or argumentative material, the Appeals Chamber considers it appropriate to disregard such submissions or arguments contained therein.” Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 5. “[I]n the Request for Disqualification, Mr Nyekorach-Matsanga, when referring to its [sic] voluminous annexes, often does not clearly specify which part of the cited annex supports the relevant argument being advanced. The Appeals Chamber disapproves of this practice, which does not assist in assessing the submissions expeditiously.” Situation in the Republic of Kenya, Decision on the Request for Disqualification of the Prosecutor in the Investigation, ICC-01/09-96-Red OA2, 11 July 2012, para. 5.

5

Corrigenda

5.1 General Principles “[T]he purpose of corrigenda is to correct typographical errors. A corrigendum should provide a list of the errors contained in the original document and their specific location within that document, together with the corresponding corrections. A corrigendum may not be used to add or alter the substance of the submissions made in a document.”

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miscellaneous p rocedural issues Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 38; Prosecutor v. Katanga, Decision on the Application for Interim Release of Detained Witnesses, ICC-01/04-01/07-3424 OA14, 20 January 2014, para. 15.

5.2

Instances Where the Appeals Chamber has Rejected Corrigenda for Going Further than Correcting Typographical Errors “The legal representatives, by adding a sentence and a footnote to their filing, have effectively supplemented their submissions without the leave of the Appeals Chamber instead of merely correcting typographical errors in their filing. For these reasons, the Appeals Chamber rejects the Corrigendum [. . .].” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 39. See also Prosecutor v. Lubanga, Decision on the Admissibility of the Appeals, ICC-01/04-01/06-2953 A A2 A3 OA21, 14 December 2012, para. 22.

5.3

Instances Where the Appeals Chamber has Accepted Corrigenda Despite Going Further than Correcting Typographical Errors “Even though the Prosecutor’s corrigendum goes beyond the correction of typographical errors, the Appeals Chamber has decided to accept it as the Document in Support of the Appeal because the changes did not add to the substance of the arguments but only corrected and added inadvertently omitted citations, and the participants to this appeal did not object to this document.” Prosecutor v. Mbarushimana, Judgment on the Prosecutor’s Appeal against the Confirmation of Charges Decision, ICC-01/04-01/10-514 OA4, 30 May 2012, para. 12. See also Prosecutor v. Gaddafi & Al-Senussi, Decision on the Request for Disqualification of the Prosecutor, ICC-01/ 11-01/11-175 OA3, 12 June 2012, para. 7.

6 Remedies or Sanctions for Non-Compliance “In the case of non-compliance with a regulation of the court, the Appeals Chamber recalls regulation 29(1) of the Regulations of the Court pursuant to which ‘[. . .] the Chamber may issue any order that is deemed necessary in the interests of justice’.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees, ICC-01/04-02/12159 A, 11 February 2014, para. 14.

jurisprudence “Regulation 29 of the Regulations of the Court provides that ‘[i]n the event of non-compliance by a participant with the provisions of any regulation [. . .] the Chamber may issue any order that is deemed necessary in the interests of justice’. In the case at hand, the Appeals Chamber considers that the degree of non-compliance with the Regulations of the Court displayed by Mr Gbagbo and his Counsel is unacceptable. As mentioned above, the amended regulations have been in effect for almost three months and, in the view of the Appeals Chamber, the Appellant has failed to demonstrate the required diligence that is expected of participants before the Court. The Appeals Chamber considers that a central purpose of the amendment of the regulations was to expedite appeals proceedings in respect of appeals against decision on interim release. Notably, the Appeals Chamber is expected to give directions on the conduct of the proceedings within two days of the filing of the notice of appeal (see regulation 64(6) of the Regulations of the Court). To allow the Appeals Chamber to give these directions, and, in particular, determine whether to proceed by way of a hearing or by way of written submissions only, it is essential that the Appellant provide in the notice of appeal the information required under regulation 64(5)(e) of the Regulations of the Court, as amended [. . .]. In the circumstances, the Appeals Chamber cannot condone Mr Gbagbo’s non-compliance with regulation 64 of the Regulations of the Court. In light of the strict timelines prescribed by regulation 64 of the Regulations of the Court for the efficient conduct of proceedings on interim release, the Appeals Chamber considers that to allow Mr Gbagbo to re-file his Notice of Appeal at this stage of the proceedings would unduly infringe on these timelines. The Notice of Appeal is therefore dismissed in limine.” Prosecutor v. Gbagbo & Blé Goudé, Decision on Gbagbo’s Notice of Appeal, ICC-02/11-01/15-1047 OA13, 5 October 2017, paras. 6–7. “While I agree that the Notice of Appeal falls short of full compliance with regulation 64 of the Court’s Regulations as amended, in my view the broader interests of justice could have been better served by condoning the non-compliance with a strong caution to Mr Gbagbo and his counsel to be more attentive in the future to amendments to the applicable law before the Court [. . .]. This is especially so when the liberty of an individual is at stake and the failure to be able to take advantage of appellate procedure is purely the result of avoidable errors by an accused’s counsel.” Prosecutor v. Gbagbo & Blé Goudé, Dissenting Opinion of Judge Morrison, ICC-02/11-01/15-1047-Anx OA13, 5 October 2017, paras. 2–3. Diss. Op.

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VI Applications for Extensions of Time 1 Procedural Factors 1.1 Any Departure from Time Limits must not Derail the Proceedings “[A]ny departure from the time limits set by the Rules or Regulations of the Court must not derail the proceedings from their ordained course, requiring that they be conducted and concluded within a reasonable time.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/07-653 OA7, 27 June 2008, para. 6; Prosecutor v. Bemba, Decision on the Request for an Extension of the Time Limit, ICC-01/05-01/08-827 OA3, 15 July 2010, para. 10. “None of the parties to the present proceedings has raised this issue [the issue of the late filing of the Prosecution’s document in support of the appeal and the response thereto], and given the short period of the delay the Appeals Chamber has decided to accept the two documents on an exceptional basis. The participants are nevertheless reminded that failure to comply with time limits may entail the rejection of a document that is filed late.” Prosecutor v. Katanga, Judgment on Preventive Relocation, ICC-01/04-01/07-776 OA7, 26 November 2008, para. 9.

1.2

The Applicant must Demonstrate “Good Cause” for an Extension of Time “Regulation 35 of the Regulations of the Court provides that ‘[t]he Chamber may extend or reduce a time limit if good cause is shown’. In the view of the Appeals Chamber, a time limit requires, by its very terms, a definite date.” Prosecutor v. Bemba, Judgment on Prosecution’s Conditional Release Appeal, ICC-01/05-01/08-631-Red OA2, 2 December 2009, para. 34. See also Prosecutor v. Bemba, Decision on the Request for an Extension of the Time Limit, ICC-01/05-01/08-827 OA3, 15 July 2010, para. 6; Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-1626-Red OA7, 19 August 2011, paras. 21, 23; Prosecutor v. Gbagbo, Decision on Gbagbo’s Request to Suspend Time Limits, ICC-02/11-01/11-189 OA, 19 July 2012, para. 4; Prosecutor v. Gbagbo, Decision on Defence Request for Time Extension Pursuant to Regulation 64(5), ICC-02/11-01/11-458-Red OA4, 18 July 2013, para. 6.

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1.3 A Request for an Extension of Time must Stem from an Order of a Chamber or be Prescribed by the Regulations of the Court “As to the time limit for the filing of the appeal itself, which has to be filed pursuant to rule 154(1) of the Rules of Procedure and Evidence, within five days of the decision that is the object of the appeal, failing which that decision shall become final, the Appeals Chamber notes that regulation 35 of the Regulations of the Court provides only for the extension of time limits ordered by a Chamber or prescribed in the Regulations of the Court. Accordingly, the Appeals Chamber does not extend the time limit for the filing of the appeal on that basis.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request to Suspend Time Limits, ICC-02/11-01/11-189 OA, 19 July 2012, para. 5.

1.4 A Request for an Extension of Time Should be Filed Prior to the Expiry of the Time Limit “[P]ursuant to regulation 35 of the Regulations of the Court, a request for extension of time should, as a rule, be filed before the expiry of the time limit in question. The Appeals Chamber recalls that it has previously held that, pursuant to regulation 35(2), last sentence, of the Regulations of the Court, a document that was not filed within the time limit may be submitted thereafter only in ‘exceptional circumstance [. . .] namely, for reasons outside the control of a person’.” Prosecutor v. Lubanga, Decision on the Legal Representative of Victims’ Request for an Extension of Time, ICC-01/04-01/06-2975 A4 A5 A6, 7 February 2013, para. 4.

2 Factors Which May Show Good Cause for an Extension of Time “‘Such reasons as may found a good cause are necessarily associated with a party’s duties and obligations in the judicial process. A cause is good, if founded upon reasons associated with a person’s capacity to conform to the applicable procedural rule or regulation or the directions of the Court. Incapability to do so must be for sound reasons, such as would objectively provide justification for the inability of a party to comply with his/her obligations’.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/07-653 OA7, 27 June 2008, para. 5, citing Prosecutor v. Lubanga, Reasons for the Decision on the Request for Modification of the Time Limit, ICC-01/04-01/06-834 OA8, 21 February 2007, para. 7.

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Nature of Issues and Preparation Required “[T]he important and complex issues at stake necessitate proper preparation [. . .]; in light of this, an extension of five days is not excessive.” Prosecutor v. Lubanga, Decision on the Extension of the Time Limit, ICC01/04-01/06-190 OA3, 11 July 2006, paras. 4–5; Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Decision on the Appellant’s Application for an Extension of the Time Limit, ICC-01/04-01/06-129 OA2, 30 May 2006, para. 7. Diss. Op.40 “[Referring to Lubanga, above], in which the time for submission of a document was extended in [the] face of the heavy burden of work confronting counsel in preparation for the confirmation hearing. The Prosecutor [. . .] does not dispute, directly at least, the voluminousness of the work Counsel for the Applicant has to do in preparation for the confirmation hearing [. . .]. [T]here is merit in the application, but not for the length of the extension sought.” Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/07-653 OA7, 27 June 2008, paras. 5–6; Prosecutor v. Lubanga, Dissenting Opinion of Judge Pikis in the Decision on the Appellant’s Application for an Extension of the Time Limit, ICC-01/04-01/06-129 OA2, 30 May 2006, para. 7. Diss. Op. “As a rule, counsel is best placed to appreciate the needs of a case, especially the time needed for going into matters at issue in the way expected of counsel. The Appeals Chamber has no reason to doubt duty counsel’s estimation of the time required for the filing of the documents [. . .]. In his response, the Prosecutor raises no objection.” Prosecutor v. Lubanga, Decision on the Defence Application for an Extension of Time, ICC-01/04-01/06-903 OA8, 11 May 2007, paras. 2–3.41 “Given the specific circumstances at hand, namely, the particular nature, importance and possible impact of a decision on the confirmation of charges on a suspect, the fundamental importance of the document in support of the appeal to the merits of the appeal [. . .] the Appeals Chamber considers that good cause has been shown.”

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“Inability to file the document envisaged by regulation 64(2) of the Regulations of the Court must stem from lack of information bearing on the appealable issues or be associated with fact-specific difficulties or obstacles in the exposition of such grounds and reasons; deriving ordinarily from the complexity of the case or the magnitude of the research that has to be undertaken.” Duty Counsel had only been “appointed on 4 May 2007 and as stated in the application, she did not arrive at The Hague before 8 May 2007 and only on the day following was it possible to have an interview with the Appellant. She is in no position, as she asserts, to prepare and file the relevant documents by 11 May 2007, the last day fixed for their submission.”

jurisprudence Prosecutor v. Mbarushimana, Decision on Mbarushimana’s Request for a Time Extension, ICC-01/04-01/10-497 OA4, 9 March 2012, para. 6. See also Prosecutor v. Bemba, Decision on the Request for an Extension of the Time Limit, ICC-01/05-01/08-827 OA3, 15 July 2010, paras. 3, 7; Prosecutor v. Ngudjolo, Decision on Defence Request for Translation and Suspension of Time Limit, ICC-01/04-02/12-60 A, 11 April 2013, para. 12; Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Second Request for Translation and Suspension of the Time Limit, ICC-01/04-02/12-130 A, 7 August 2013, para. 12.

2.2 Technical Problems “In light of the technical problems he had encountered, it was not possible for him to submit the document [. . .] in time.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for an Extension of Time, ICC-01/04-01/06-562 OA5, 12 October 2006, paras. 2, 5; Prosecutor v. Lubanga, Decision on the Legal Representative of Victims’ Request for an Extension of Time, ICC-01/04-01/06-2975 A4 A5 A6, 7 February 2013, para. 5.

2.3 Mistakes Made in Good Faith “Counsel submitted the Defence Document [. . .], within the prescribed time limit [. . .], believing that she had complied with the relevant time limit [. . .]. [T]he fact that the document was not originally accepted and was late was beyond her control.” Prosecutor v. Kony et al., Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-01/05-306 OA2, 22 July 2008, paras. 7–8; Situation in Uganda, Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-148 OA, 22 July 2008, paras. 7–8.

2.4 Illness of Counsel “There is no second counsel who could conceivably assume the task in the stead of [. . .] counsel of Appellant. More often than not, illness is an unforeseeable occurrence [. . .]. In such circumstances, inability of counsel to perform his/her duties owing to illness, medically certified, does provide a good cause for the extension of time [. . .].” Prosecutor v. Lubanga, Reasons for the Decision on the Request for Modification of the Time Limit, ICC-01/04-01/06-834 OA8, 21 February 2007, para. 7.

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2.5

miscellaneous p rocedural issues

Absence of Counsel ”The reasons that prompted the decision of 23 February 2007 to extend the time still exist, namely, absence of counsel. That in itself is not conclusive. Much depends on the reasonableness of the steps taken to secure the services of counsel [. . .]. Had the Appellant been inactive in seeking the services of counsel, the Appeals Chamber would, no doubt, conclude that no further extension should be granted. As it is, the Appeals Chamber cannot but give the Appellant a further opportunity [. . .]. On the other hand, the judicial process cannot be allowed to come to a halt.” Prosecutor v. Lubanga, Reasons for the Appeals Chamber’s Decision to Extend Time Limits, ICC-01/04-01/06-871 OA8, 20 April 2007, paras. 5–6. See also Prosecutor v. Lubanga, Reasons for the Decision on the “demande de suspension”, ICC-01/04-01/06-844 OA8, 9 March 2007, paras. 11, 13, 15–16; Prosecutor v. Lubanga, Appeals Chamber’s Decision to Extend Time Limits for Defence Documents, ICC-01/04-01/06-857 OA8, 3 April 2007, paras. 1–2.

2.6

Inability of Counsel to Take Instructions “The Appeals Chamber notes that the Legal Representatives of Victims V01 and V02 state that they have been unable to liaise with the victims they are representing. In the view of the Appeals Chamber [. . .] this [. . .] constitutes ‘good cause’ for a time extension.” Prosecutor v. Lubanga, Decision on the Requests for an Extension of the Time Limit, ICC-01/04-01/06-3050 A4 A5 A6, 20 September 2013, para. 3.

2.7

Competing Deadlines and Workload in the Case and Related Proceedings “Counsel [. . .] has argued convincingly that due to the preparation of the confirmation hearing [. . .] which may include an investigation [. . .], and other pending work on this case, counsel [. . .] is incapable of filing a potentially complex response [. . .] within the time limit of ten days [. . .].” Prosecutor v. Lubanga, Decision on the Extension of the Time Limit, ICC01/04-01/06-190 OA3, 11 July 2006, para. 4. See also Prosecutor v. Gbagbo, Decision on the Defence Request to Suspend Time Limits, ICC-02/11-01/ 11-189, 19 July 2012, para. 4; Prosecutor v. Gbagbo, Decision on Defence Request for Time Extension Pursuant to Regulation 64(5), ICC-02/11-01/ 11-458-Red OA4, 18 July 2013, para. 6. “[T]he mainstay of Mr Ngudjolo’s arguments in support of his request [. . .] relate to the defence’s workload with respect to the appellate

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proceedings before this Court and his asylum proceedings before the Dutch authorities. The Appeals Chamber considers that in the circumstances, ‘good cause’ [. . .] has been established.” Prosecutor v. Ngudjolo, Decision on Ngudjolo’s Request for an Extension of Time, ICC-01/04-02/12-84 A, 7 June 2013, para. 9.

2.8 Problems in Notification “[T]he decision of Pre-Trial Chamber I was notified outside normal working hours on a Friday evening and there was no urgency attached to the Pre-Trial Chamber’s decision. The Prosecutor could not reasonably have been expected to take note of the decision [. . .] until Monday [. . .] when a significant part of the time limit for the filing [. . .] had already elapsed.” Prosecutor v. Lubanga, Decision on the Prosecutor’s Motion for Extensions of the Time and Page Limits, ICC-01/04-01/06-177 OA3, 3 July 2006, para. 5. “[T]he Central African Republic was notified of the original version of the Impugned Decision in English on 29 June 2010. However [. . .], the Central African Republic was only notified of the French translation of the Impugned Decision on 6 September 2010. This was ‘due to an oversight of the Registry’. The Appeals Chamber finds that despite the fact that the French translation was available on the Court’s website, the delayed notification of the French translation of the Impugned Decision [. . .] provides good cause for a limited extension [. . .].” Prosecutor v. Bemba, Decision on the Central African Republic’s Request for an Extension of the Time Limit, ICC-01/05-01/08-878 OA3, 8 September 2010, paras. 18–19.

2.9 Brevity of Requested Extension “[Having found another factor to show good cause, noting,] [f]urthermore, he has sought only a short extension of the time limit.” Prosecutor v. Lubanga, Decision on Lubanga’s Request for an Extension of Time, ICC-01/04-01/06-562 OA3, 12 October 2006, para. 5. See also Prosecutor v. Lubanga, Decision on Extension of a Time Limit, ICC-01/04-01/06-190 OA3, 11 July 2006, paras. 2, 4–5;42 Prosecutor v. Katanga & Ngudjolo, Reasons for the Extension of Time for the Preventive Relocation Response, ICC-01/04-01/0742

The Prosecutor had voiced concern about the length of the extension sought (at least fifteen days), and of its impact on the Appeals Chamber’s ability to decide the appeal in an expedited fashion. Notwithstanding the showing of good cause, an extension of only five days was granted.

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mis cellaneous p ro cedura l issues 653 OA7, 27 June 2008, para. 5; Prosecutor v. Mbarushimana, Decision on Mbarushimana’s Request for a Time Extension, ICC-01/ 04-01/10-497 OA4, 9 March 2012, para. 6.

2.10

Inability of the Accused to Speak the Relevant Working Language “Given the specific circumstances at hand, namely [. . .] the fact that the Prosecutor’s document in support of the appeal is likely to be filed in English and the fact that the Pre-Trial Chamber has considered that Mr Mbarushimana fully understands and speaks French, the Appeals Chamber considers that good cause has been shown [. . .]. At the same time, the Appeals Chamber notes that Mr Mbarushimana has responded without difficulty to documents filed in English in previous appeals and that a modest extension would provide [. . .] an opportunity to institute appropriate measures to facilitate his understanding [. . .].” Prosecutor v. Mbarushimana, Decision on Mbarushimana’s Request for a Time Extension, ICC-01/04-01/10-497 OA4, 9 March 2012, para. 6. See also Prosecutor v. Bemba, Decision on the Request for an Extension of the Time Limit, ICC-01/05-01/08-827 OA3, 15 July 2010, paras. 3, 7–8;43 Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for Translation and an Extension of Time, ICC-02/11-01/11-489 OA5, 22 August 2013, para. 16.

2.11

Delay in Rendering Decision on Request for Extension “However, considering the specific circumstances related to the composition of the Appeals Chamber in this case and their consequences for the issuance of this decision, the Appeals Chamber decides, in the interests of justice, to extend further the time limit [. . .].” Prosecutor v. Mbarushimana, Decision on the Defence Request for Reconsideration, ICC-01/04-01/10-505 OA4, 23 March 2012, para. 11, fn. 25.

2.12

Court Recess, Public Holidays and Special Days of Leave “[I]f the time limit [. . .] were not extended, the Prosecutor would have to file [. . .] during the final week of the year (commencing 24 December 2007) and the Defence would have to begin its response

43

E.g., para. 8: “the Appeals Chamber is not persuaded that the time limit should be extended by 21 days after notification of the translation into French of the Impugned Decision [. . .]. The Appeals Chamber considers that the assistance of an interpreter to provide sight translation [. . .] could more efficiently achieve the same result” (emphasis added).

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[. . .] during the same week. This week is unusual in that, over and above the fact that it falls during the three-week Court recess, it comprises two public holidays and special days of leave. On that basis, the Appeals Chamber regards it as appropriate to extend the prescribed time limits to take those factors into account.” Prosecutor v. Katanga, Decision on Prosecution’s Urgent Application for Extension of Time, ICC-01/04-01/07-115 OA, 18 December 2007, para. 6; Prosecutor v. Katanga, Decision on the Defence Application for an Extension of Time, ICC-01/04-01/07-121 OA2, 21 December 2007, paras. 2, 5.

3 Factors That do not Show Good Cause for an Extension of Time 3.1 Abstract and Unsubstantiated Arguments “The Appellant does in no way explain in what way the undisclosed material will cast light on the issues under appeal or aid in their presentation. He has not demonstrated that on the basis of the documents and material available to him at the time that the Appellant’s Brief was filed, he was unable to formulate full grounds of appeal. Thus, his argument that without access to further material he could not formulate grounds of appeal is abstract and unsubstantiated. No valid cause has been shown for extending the time for the filing of what may be described as supplementary grounds of appeal.” Prosecutor v. Lubanga, Decision on the Appellant’s Application for an Extension of the Time Limit, ICC-01/04-01/06-129 OA2, 30 May 2006, paras. 8–9.44 “[The applicants] submit that they were unable to meet the time limit [. . .] because of the short time limit, their inability to access the Order electronically [. . .] and the absence of their case manager. The Appeals Chamber is, however, not convinced that these factors were outside their control [as required by regulation 35 of the Regulations of the Court, second sentence, for extension applications after the time limit has lapsed]. In the view of the Appeals Chamber, [the applicants] have not adequately substantiated the nature of the difficulties they encountered [. . .] and how this factor affected their ability to file the Clarification within the time limit.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/ 04-01/06-2555 OA17, 17 August 2010, para. 11. See also Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/081626-Red OA7, 19 August 2011, paras. 21 (concerning good cause for abridgement of time), 23 (concerning good cause for extension of time). 44

“[G]ood cause is correlated to the facts relevant to the presentation and articulation of the grounds in support of the appeal” (para. 7).

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3.2

m i s c e l l a n e o u s p r o c e d u r a l is s u e s

Safeguarding Purely Hypothetical Interests “[T]he Applicants have not shown good cause. The Applicants submit their request for an extension of time based on the assumption that the Pre-Trial Chamber will grant them victim status and that they will be granted the right to participate in the present appeal. Thus, their request is meant to safeguard a right that, at present, is merely hypothetical. Currently, there is no time limit that could be extended.” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 17.

3.3

Indefinite Extensions “[T]he extension sought would be for an indefinite period of time; if the Appeals Chamber were to grant the request for an extension of the time limit, the proceedings in this appeal could not be brought to an end until the Pre-Trial Chamber has rendered a decision on the eight applications for participation.” Prosecutor v. Al Bashir, Decision on Victim Participation in Al Bashir Arrest Warrant Appeal, ICC-02/05-01/09-48 OA, 23 October 2009, para. 17.

3.4

Absence of Case Manager “[T]he Appeals Chamber underlines that the absence of the case manager when the Order was notified cannot form the basis for a request for an extension of time for the filing of a document. When managing their offices, the legal representatives must factor in the possibility of orders of the Court that set short time limits.” Prosecutor v. Lubanga, Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings, ICC-01/ 04-01/06-2555 OA17, 17 August 2010, para. 11.

3.5

Frustration of Only Part of the Object of the Appeal “Mr Bemba does not show good cause for abridging the time limits as required by regulation 35 of the Regulations of the Court. The expiry of only one of the periods for which Mr Bemba seeks interim release does not render the appeal moot. Even if the Appeals Chamber rejects the Defence Request [. . .] Mr Bemba would, if successful with his appeal, still benefit. The Appeals Chamber notes further that, even if Mr Bemba’s appeal was upheld [. . .], and if the Court had ordered Mr Bemba’s interim release, it still would have taken time to make the necessary arrangements [. . .]. Therefore, the Appeals Chamber cannot discern the urgency in Mr Bemba’s requests.”

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Prosecutor v. Bemba, Judgment on the Provisional Release Appeal, ICC-01/05-01/08-2151-Red OA10, 5 March 2012, paras. 10–11.

VII Applications for Extensions of Page Limits 1 Procedural Factors 1.1 Regulation 38(2)(c)45 Applies Only to “Challenges” to Admissibility or Jurisdiction in the Meaning of Article 19(2) “Regulation 38[2](c) of the Regulations of the Court makes specific provision for the page limit of documents filed in support of and in response to challenges to jurisdiction raised under article 19(2) of the Rome Statute [. . .]. Unless the provisions of this regulation are confined to challenges to the jurisdiction of the Court raised before the Pre-Trial Chamber or Trial Chamber [. . .] their application would extend to appeal proceedings as the subject-matter of appellate proceedings too revolves around the validity of challenges made to the jurisdiction of the Court [. . .]. In proceedings involving challenges to the jurisdiction of the Court, the core of the subject-matter of the proceedings before either Chamber is the same, namely, resolution of challenges to the jurisdiction of the Court. Regulation 38[2](c) [. . .] does not apply to every issue raised before or by the Court affecting its jurisdiction but only to challenges pursuant to article 19(2) of the Statute. Its provisions have no application to proceedings under article 19(3) of the Statute for which a separate page limit is envisioned [. . .] or questions of jurisdiction addressed by the Court on its own motion under article 19(1) of the Statute. The expression ‘under article 19, paragraph 2’ identifies the origin of the proceedings, the source wherefrom they emanate, not the stage of the proceedings [. . .].” Prosecutor v. Lubanga, Reasons for the Appeals Chamber’s Decision on the Request for an Extension of the Page Limit, ICC-01/04-01/06-717 OA4, 17 November 2006, paras. 6–8. “[T]he specification of the length of documents to be filed in relation to challenges to the jurisdiction of the Court is the same before the first-instance court and on appeal. The provisions of regulation 38[2](c) of the Regulations of the Court are applicable to both instances.” Prosecutor v. Lubanga, Reasons for the Appeals Chamber’s Decision on the Request for an Extension of the Page Limit, ICC-01/04-01/06-717 OA4, 17 November 2006, para. 9. 45

This sub-regulation was originally regulation 38(1)(c) of the RoC, but has now been renumbered as regulation 38(2)(c) as of 6 December 2016. The references in the following excerpts have been amended accordingly.

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m i s c e l l a n e o u s p r o c e d u r a l is s u e s “[T]he page limit of 100 pages46 laid down in regulation 38[2](c) of the Regulations of the Court for a challenge to the admissibility or jurisdiction of the Court under article 19(2) of the Statute is applicable to the document in support of an appeal arising therefrom. The present appeal, however, arose from a proprio motu decision of the Pre-Trial Chamber on admissibility under article 19(1) of the Statute, and not from a challenge to admissibility. In such circumstances, regulation 38[2](c) of the Regulations of the Court has no application.” Prosecutor v. Kony et al., Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case, ICC-02/04-01/05-408 OA3, 16 September 2009, para. 21. “[T]he limit of [. . .] pages that applies to challenges to the jurisdiction of the Court and responses thereto [. . .] is not applicable to observations by victims under article 19(3) of the Statute. This is explained by the more limited role of victims in the proceedings than that of, for instance, the Prosecutor, the accused person or person in respect of whom a warrant of arrest or summons to appear was issued, or a State challenging the jurisdiction or the admissibility of a case.” Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC-02/11-01/1-266 OA2, 16 October 2012, para. 14. “Côte d’Ivoire is participating by invitation of the Appeals Chamber pursuant to rule 103 of the Rules of Procedure and Evidence, and as such is not entitled under regulation 38[2](c) of the Regulations of the Court to exceed the twenty-page limit stipulated in regulation 37(1) of the Regulations of the Court.” Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC-02/11-01/11-266, OA2, 16 October 2012, para. 11.

1.2

Leave to File an Extended Document is Generally a Prerequisite “An application for the extension of the page limit envisaged by the Regulations of the Court and its approval by the Chamber are prerequisites for the submissions of an extended document.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 4; Prosecutor v. Lubanga, Decision on the Word Limit of the Prosecution’s Appeal Brief, ICC-01/04-01/06-2543 OA18, 30 July 2010, para. 11; Prosecutor v. Gbagbo, Decision on Requests Related

46

This sub-regulation was originally regulation 38(1)(c) of the RoC, but has now been renumbered as regulation 38(2)(c) as well as changed to sixty pages as of 6 December 2016.

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to Page Limits and Reclassification of Documents, ICC-02/11-01/11-266 OA2, 16 October 2012, para. 9.

1.3 Exceptionally, an Extended Document may be Accepted Without Prior Authorisation “Unlike regulation 35(2), second sentence, of the Regulations of the Court in respect of time limits, the Regulations of the Court do not provide for a retroactive extension of page limits.” Prosecutor v. Lubanga, Decision on the Re-filing of the Document in Support of the Appeal, ICC-01/04-01/06-1445 OA13, 22 July 2008, para. 8; Prosecutor v. Gbagbo, Decision on Requests Related to Page Limits and Reclassification of Documents, ICC-02/11-01/11-266, OA2, 16 October 2012, para. 9. “Derogation from the ordained procedure should not, in this case, stand in the way of looking into the entirety of the document submitted. The reasons for extending the page limit under regulation 37(2) of the Regulations of the Court in this case are compelling in view of the issues arising for determination and their complexity; save for this, no justification could be found for bypassing the Regulations of the Court. The exceptional circumstances surrounding the case warrant the extension.” Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 4. See also Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 22.

2 Factors Which may Show Exceptional Circumstances Justifying the Extension of the Page Limit 2.1 Complexity of the Case and the Necessity for Proper Presentation of the Issues “The Appeals Chamber is persuaded that the complexity of the case warrants the extension of the page limit. Moreover, the enlargement sought is adjusted to the necessity for the proper presentation of the case.” Prosecutor v. Lubanga, Decision on the Prosecutor’s Motion for Extensions of the Time and Page Limits, ICC-01/04-01/06-177 OA3, 3 July 2006, para. 6. See also Situation in the DRC, Judgment on Extraordinary Review, ICC-01/04-168 OA3, 13 July 2006, para. 4; Prosecutor v. Katanga, Decision on the Urgent Defence Application for an Extension of the Page Limit, ICC-01/04-01/07-3334 OA13, 8 January 2013, para. 7; Prosecutor v. Gbagbo, Decision on the Extension of the Page Limit for the Prosecution’s Appeal, ICC-02/11-01/11-471 OA5, 7 August 2013, para. 7; Prosecutor v. Gbagbo, Decision on Gbagbo’s

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mis cellaneous p ro cedura l issues Request for an Extension of the Page Limit, ICC-02/11-01/11-481 OA4, 16 August 2013, para. 6. “[T]he Appeals Chamber finds that in the present case, exceptional circumstances [. . .] have been established because of the complexity of the case and the novelty of the issue; the Appeals Chamber is also persuaded that Mr Lubanga Dyilo could not present all of his arguments within the page limit [. . .].” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/04-01/06-2205 OA15 OA16, 8 December 2009, para. 21. See also Prosecutor v. Lubanga, Decision on the Prosecutor’s Application for an Extension of the Page Limit, ICC-01/04-01/06-2532 OA18, 22 July 2010, para. 6 (“number and complexity of the questions identified [. . .], together with the extraordinary nature of a stay of proceedings”); Prosecutor v. Mbarushimana, Decision on the Prosecution Request for an Extension of the Page Limit, ICC-01/04-01/10-495 OA4, 7 March 2012, para. 5 (“in light of the issues on appeal”); Prosecutor v. Lubanga, Decision on Lubanga’s Request for an Extension of the Page Limit, ICC01/04-01/06-2946 A5, 28 November 2012, para. 5 (“complex and novel issues”); Prosecutor v. Lubanga, Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit, ICC-01/04-01/06-2965 A5, 1 February 2013, para. 9 (“complex and novel issues”); Prosecutor v. Ngudjolo, Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit, ICC-01/04-02/12-34 A, 13 March 2013, para. 5 (“complex and novel issues”).

2.2

Reasonable Nature of Extension Request “Noting also the modest extension sought, the Appeals Chamber has decided to grant the extension of the page limit.” Prosecutor v. Lubanga, Judgment on the Regulation 55 Appeals, ICC-01/ 04-01/06-2205 OA15 OA16, 8 December 2009, para. 21. “The Appeals Chamber considers that the number of extra pages sought (twenty) is unreasonable in the circumstances and grants Mr Gbagbo a further ten pages instead. Consequently, the Appeals Chamber considers it appropriate, at this stage, to extend the page limit for the Prosecutor’s response [. . .] by ten pages.” Prosecutor v. Gbagbo, Decision on Gbagbo’s Request for an Extension of the Page Limit, ICC-02/11-01/11-481 OA4, 16 August 2013, paras. 6–7. See also Prosecutor v. Lubanga, Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit, ICC-01/04-01/06-2965 A5, 1 February 2013, para. 9; Prosecutor v. Ngudjolo, Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit, ICC-01/04-02/12-34 A, 13 March 2013, para. 5;

jurisprudence Prosecutor v. Gbagbo, Decision on the Extension of Page Limit for the Prosecution’s Appeal, ICC-02/11-01/11-471 OA5, 7 August 2013, para. 7 (granting the requested extension where the proposed size is “reasonable”). “Noting that neither regulation 34 of the Regulations of the Court nor any other applicable text makes any distinction between languages as to the number of pages, the Appeals Chamber also extends the page limit by fifteen pages only for Mr Mbarushimana’s response [in French] to the document in support of the appeal [in English].” Prosecutor v. Mbarushimana, Decision on the Prosecution Request for an Extension of the Page Limit, ICC-01/04-01/10-495 OA4, 7 March 2012, para. 5.

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Q Index of Digested Decisions

Situation in the Democratic Republic of the Congo, ICC-01/04 OA: Prosecution Appeal against Refusal to Issue Arrest Warrant for Ntaganda • Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, ICC-01/04-169 OA, 13 July 2006 (“Judgment on the Ntaganda Arrest Warrant Appeal”). • Decision on the Unsealing of the Judgment of the Appeals Chamber issued on 13 July 2006, ICC-01/04-538-PUB-Exp OA, 22 September 2008 (“Decision on the Unsealing of the Judgment of the Appeals Chamber”). OA3: Application for Extraordinary Review • Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, ICC-01/04-168 OA3, 13 July 2006 (“Judgment on Extraordinary Review”). OA4 OA5 OA6: One Appeal by Prosecution and Two Appeals by OPCD Regarding the Participation of Victims in the Situation • Decision on Victim Participation in the Appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 7 December 2007 and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of 24 December 2007, ICC-01/04-503 OA4 OA5 OA6, 30 June 2008 (“Decision on Victim Participation in the Situation”). • Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of PreTrial Chamber I of 7 December 2007 and in the appeals of the OPCD 640

prosecutor v. thomas lubang a dyilo , icc-01/04-01/06 641

and the Prosecutor against the Decision of Pre-Trial Chamber I of 24 December 2007, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008 (“Judgment on Victim Participation in the Investigation Stage of the Proceedings”).

Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 OA2: Defence Appeal against Admissibility Determination in Arrest Warrant Decision • Decision on the Appellant’s Application for an Extension of the Time Limit for Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court, ICC-01/0401/06-129 OA2, 30 May 2006 (“Decision on the Appellant’s Application for an Extension of the Time Limit”). • Decision on Thomas Lubangas Dyilo’s Brief Relative to Discontinuance of Appeal, ICC-01/04-01/06-176 OA2, 3 July 2006 (“Decision on Discontinuance of Appeal”). • Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber, in the Alternative, Discontinuance of Appeal, ICC-01/04-01/06-393 OA2, 6 September 2006 (“Decision on the Application for Referral to the Pre-Trial Chamber or Discontinuance of Appeal”). OA3: Prosecution Appeal against Decision on Disclosure Restriction Pursuant to Rule 81(2) and (4) • Decision on the “Prosecutor’s Motion for Extensions of the Time and Page Limits”, ICC-01/04-01/06-177 OA3, 3 July 2006 (“Decision on the ‘Prosecutor’s Motion for Extensions of the Time and Page Limits’”). • Decision on the Application by Counsel for Mr Thomas Lubanga Dyilo to Extend the Time Limit for the Filing of a Response to the Prosecutor’s Document in Support of the Appeal, ICC-01/04-01/06190 OA3, 11 July 2006 (“Decision on the Extension of the Time Limit”). • Decision on the Prosecutor’s “Application for Leave to Reply to Conclusions de la défence en réponse au mémoire d’appel du Procureur”, ICC-01/04-01/06-424 OA3, 12 September 2006 (“Decision on the Application for Leave to Reply”).

642

i n dex of di ges t ed dec isi ons

• Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence”, ICC-01/04-01/06-568 OA3, 13 October 2006 (“Judgment on Disclosure Restriction Pursuant to Rule 81(2) and (4)”), including the Dissenting Opinion of Judge Pikis. OA4: Defence Appeal against Jurisdiction Decision • Reasons for the Appeals Chamber’s Decision of 16 November 2006 on the “Prosecution’s Request for an Extension of the Page Limit”, ICC-01/ 04-01/06-717 OA4, 17 November 2006 (“Reasons for the Appeals Chamber’s Decision on the Request for an Extension of the Page Limit”). • 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, ICC-01/ 04-01/06-772 OA4, 14 December 2006 (“Judgment on Lubanga’s Jurisdiction Appeal”). OA5: Defence Appeal against First Redaction Decision • Decision on the Request by Mr Thomas Lubanga Dyilo for an Extension of Time, ICC-01/04-01/06-562 OA5, 12 October 2006 (“Decision on Lubanga’s Request for an Extension of Time”). • 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”, ICC-01/04-01/06-773 OA5, 14 December 2006 (“Judgment on Lubanga’s Appeal against the First Redaction Decision”). OA6: Defence Appeal against Second Redaction Decision • Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81”, ICC-01/04-01/06-774 OA6, 14 December 2006 (“Judgment on Lubanga’s Appeal against the Second Redaction Decision”). OA7: Defence Appeal against Interim Release Decision • Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,

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ICC-01/04-01/06-824 OA7, 13 February 2007 (“Judgment on Lubanga’s Interim Release Appeal”). OA8: Defence Appeal against Confirmation Decision under Article 82(1)(b) • Reasons for the “Decision of the Appeals Chamber on the Request of Counsel to Mr Thomas Lubanga Dyilo for Modification of the Time Limit Pursuant to Regulation 35 of the Regulations of the Court of 7 February 2007” issued on 16 February 2007, ICC-01/04-01/06-834 OA8, 21 February 2007 (“Reasons for the Decision on the Request for Modification of the Time Limit”). • Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on 20 February 2007, ICC-01/04-01/06-838 OA8, 23 February 2007 (“Decision on ‘Demande de suspension’”). • Reasons for “Decision of the Appeals Chamber on the Defence Application ‘Demande de suspension de toute action ou procédure afin de permettre la designation d’un nouveau Conseil de la Défense’ filed on 20 February 2007” issued on 23 February 2007, ICC-01/04-01/ 06-844 OA8, 9 March 2007 (“Reasons for the Decision on the ‘Demande de suspension’”). • Appeals Chamber’s Decision to Extend Time Limits for Defence Documents, ICC-01/04-01/06-857 OA8, 3 April 2007 (“Appeals Chamber’s Decision to Extend Time Limits for Defence Documents”). • Reasons for the Appeals Chamber’s Decision to Extend Time Limits for Defence Documents issued on 3 April 2007, ICC-01/04-01/06-871 OA8, 20 April 2007 (“Reasons for the Decision to Extend Time Limits”). • Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873 OA8, 27 April 2007 (“Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007”). • Decision of the Appeals Chamber on the Defence Application for an Extension of Time of 9 May 2007, ICC-01/04-01/06-903 OA8, 11 May 2007 (“Decision on the Defence Application for an Extension of Time”). • Decision of the Appeals Chamber on the Joint Application of Victims a/ 0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber” of 2 February 2007, ICC-01/04-01/

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06-925 OA8, 13 June 2007 (“Decision on Victim Participation in the Appeal under Article 82(1)(b) against the Confirmation Decision”), including Separate Opinion of Judge Pikis. • Decision on the Admissibility of the Appeal of Mr Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of 29 January 2007, ICC-01/04-01/06926 OA8, 13 June 2007 (“Decision on the Admissibility of the Defence Appeal under Article 82(1)(b) against the Confirmation Decision”). OA9 OA10: Prosecution and Defence Appeals against Decision on Victim Participation • Decision, in limine, on Victim Participation in the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision entitled “Decision on Victims’ Participation”, ICC-01/04-01/06-1335 OA9 OA10, 16 May 2008 (“Decision on Victim Participation in Appeals against the Decision on Victim Participation”). • Decision on the Requests of the Prosecutor and the Defence for Suspensive Effect of the Appeals against Trial Chamber I’s Decision on Victim’s Participation of 18 January 2008, ICC-01/04-01/06-1347 OA9 OA10, 22 May 2008 (“Decision on the Suspensive Effect of Appeals”). • Judgment on the Appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision on Victim’s Participation of 18 January 2008, ICC01/04-01/06-1432 OA9 OA10, 11 July 2008 (“Judgment on Victim Participation”), including the Partly Dissenting Opinion of Judge Kirsch, ICC-01/04-01/06-1432-Anx OA9 OA10, 23 July 2008. OA11: Defence Appeal against Oral Disclosure Decision • Decision on “Motion for Leave to File Proposed Amicus Curiae Submission of the International Criminal Bar Pursuant to Rule 103 of the Rules of Evidence and Procedure”, ICC-01/04-01/06-1289 OA11, 22 April 2008 (“Decision on International Criminal Bar Amicus Curiae Motion”). • Decision on the Request of Mr Thomas Lubanga Dyilo for Suspensive Effect of the Appeal against the Oral Decision of Trial Chamber I of 18 January 2008, ICC-01/04-01/06-1290 OA11, 22 April 2008 (“Decision on Lubanga’s Request for Suspensive Effect”), including Dissenting Opinion of Judge Pikis, ICC-01/04-01/06-1290-Anx OA11, 13 May 2008.

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• Judgment on the Appeal of Mr Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC-01/04-01/06-1433 OA11, 11 July 2008 (“Judgment on Appeal against Oral Disclosure”). OA12: Prosecution Appeal against Release of the Accused • Reasons for the Decision on the Request of the Prosecutor for Suspensive Effect of his Appeal against the “Decision on the Release of Thomas Lubanga Dyilo”, ICC-01/04-01/06-1444 OA12, 22 July 2008 (“Decision on the Suspensive Effect of the Interim Release Appeal”), including Separate Opinion of Judge Pikis, ICC-01/04-01/06-1444-Anx OA12, 20 August 2008. • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled “Decision on the Release of Thomas Lubanga Dyilo”, ICC-01/04-01/06-1487 OA12, 21 October 2008 (“Judgment on the Release of Lubanga”). OA13: Prosecution Appeal against the Stay of Proceedings • Decision on the Re-filing of the Document in Support of the Appeal, ICC-01/04–01/06-1445 OA13, 22 July 2008 (“Decision on the Refiling of the Document in Support of the Appeal”). • Decision on the Participation of Victims in the Appeal, ICC-01/04-01/ 06-1453 OA13, 6 August 2008 (“Decision on the Participation of Victims in the Appeal”). • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled “Decision on the Consequences of Non-disclosure of Exculpatory Materials covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, Together with Certain Other Issues Raised at the Status Conference on 10 June 2008”, ICC-01/ 04-01/06-1486 OA13, 21 October 2008 (“Judgment on Article 54(3)(e)”). OA15 OA16: Prosecution and Defence Appeals against Decision under Regulation 55 • Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/ 06-2205 OA15 OA16, 8 December 2009 (“Judgment on the Regulation 55 Appeals”).

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OA17: Prosecution Appeal against Release • Decision on the Prosecutor’s Request to Give Suspensive Effect to the Appeal against Trial Chamber I’s Oral Decision to Release Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-2536 OA17, 23 July 2010 (“Decision on the Prosecutor’s Request for Suspensive Effect”). • Decision on the Participation of Victims in the Appeal against Trial Chamber I’s Oral Decision of 15 July 2010 to Release Thomas Lubanga Dyilo, ICC-01/04-01/06-2555 OA17, 17 August 2010 (“Decision on Victim Participation in the Appeal against the Release of Thomas Lubanga due to Stay Proceedings”). • Judgment on the Appeal of Prosecutor against the Oral Decision of Trial Chamber I of 15 July 2010 to release Thomas Lubanga Dyilo, ICC-01/04-01/06-2583 OA17, 8 October 2010 (“Judgment on the Release of Lubanga due to the Stay of Proceedings”). OA18: Prosecution Appeal against Second Decision on Stay Proceedings due to Abuse of Process • Decision on the Prosecutor’s Application for an Extension of Page Limit for his Document in Support of Appeal, ICC-01/04-01/06-2532 OA18, 22 July 2010 (“Decision on the Prosecutor’s Application for an Extension of the Page Limit”). • Decision on the “Observations de la Défense relatives à l’irrecevabilité du ‘Prosecution’s Document in Support of Appeal against Trial Chamber I’s Decision of 8 July to Stay the Proceedings for Abuse of Process’, daté du 26 juillet 2010”, ICC-01/04-01/06–2543 OA18, 30 July 2010 (“Decision on the Word Limit of the Prosecution’s Appeal Brief”). • Decision on the Participation of Victims in the Appeal against Trial Chamber I’s Decision to Stay the Proceedings, ICC-01/04-01/06-2556 OA18, 18 August 2010 (“Decision on Victim Participation in the Appeal on the Stay of Proceedings due to an Abuse of Process”). • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of the Time Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”, ICC-01/04-01/062582 OA18, 8 October 2010 (“Judgment on the Stay of Proceedings due to an Abuse of Process”).

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OA19: Appeal against “Decision on the Request by DRC-D01-WWW -0019 for Special Protective Measures Relating to his Asylum Application” • Decision on the “Urgent Request for Directions” of the Kingdom of the Netherlands of 17 August 2011, ICC-01/04-01/06-2799 OA19, 26 August 2011 (“Decision on the Netherlands’ Urgent Request for Directions”). OA20: Decision on Admissibility of the Registrar’s Submissions before the Appeals Chamber • Decision on the “Registrar’s Submissions under Regulation 24bis of the Regulations of the Court in Relation to Trial Chamber I’s Decision, ICC-01/04-01/06-2800” of 5 October 2011, ICC-01/04-01/06-2823 OA20, 21 November 2011 (“Decision on the Admissibility of the Registrar’s Submissions before the Appeals Chamber”). A: Judgment on Prosecution Appeal against Decision of Judgment Pursuant to Article 74 • Judgment on the Prosecutor’s Appeal against the Decision of Trial Chamber II entitled “Judgment Pursuant to Article 74 of the Statute”, ICC-01/04-02/12-271-Corr A, 7 April 2015 (“Judgment on the Prosecutor’s Appeal against the Judgment Pursuant to Article 74 of the Statute”). A A2 A3: Judgment on Appeal against Decision on Principles and Procedures regarding Reparations • Judgment on the Appeals against the “Decision Establishing the Principles and Procedures to be Applied to Reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2, ICC-01/04-01/06-3129, 3 March 2015 (“Judgment on the Principles of Reparations”). A A2 A3 OA21: Appeals of the Legal Representatives of Victims, OPCV and Defence against Decision on Reparations • Decision on the Admissibility of the Appeals against Trial Chamber I’s “Decision Establishing the Principles and Procedures to be Applied to Reparation” and directions on the further conduct of proceedings, ICC01/04-01/06-2953 A A2 A3 OA21, 14 December 2012 (“Decision on the Admissibility of the Appeals on the Principles of Reparations”).

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A3: Defence Appeal against Decision on the Principles and Procedures to be Applied to Reparations • Order on the Filing of a Reply under Regulation 60 of the Regulations of the Court, ICC-01/04-01/06-3030 A3, 24 May 2013 (“Order on the Filing of a Reply under Regulation 60”). A4 A5 A6: Defence and Prosecution Appeal against Decision on Sentence • Decision on the Participation of Victims in the Appeals against Trial Chamber I’s Conviction and Sentencing Decisions, ICC-01/ 04-01/06-2951 A4 A5 A6, 13 December 2012 (“Decision on Victim Participation in the Appeals against Conviction and Sentencing”). • Decision on the Request for an Extension of Time Filed by the Legal Representatives of Victims V02, ICC-01/04-01/06-2975, A4 A5 A6, 7 February 2013 (“Decision on the Legal Representative of Victims’ Request for an Extension of Time”). • Decision on the Request of the Registrar relating to the Transmission of Applications for Participation in the Appeal Proceedings and on Related Issues, ICC-01/04-01/06-3026 A4 A5 A6, 6 May 2013 (“Decision on the Registrar’s Request Relating to the Transmission of Applications for Participation”). • Decision on the Application by Child Soldiers International for Leave to Submit Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence, ICC-01/04-01/06-3044, A4 A5 A6, 16 August 2013 (“Decision on the Application by Child Soldiers International to Submit Observations”). • Decision on 32 Applications to Participate in the Proceedings, ICC-01/ 04-01/06-3045-Red2 A4 A5 A6, 27 August 2013 (“Decision on the 32 Applications by Victims for Participation”). • Decision on Requests for an Extension of the Time Limit, ICC-01/0401/06-3050 A4 A5 A6, 20 September 2013 (“Decision on the Requests for an Extension of the Time Limit”). • Decision on a/2922/11’s Application to Participate in the Appeals Proceedings, ICC-01/04-01/06-3052-Red A4 A5 A6, 3 October 2013 (“Decision on a/2922/11’s Application to Participate”). • Judgment on the Appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence Pursuant to Article 76 of the

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Statute”, ICC-01/04-01/06-3122 A4 A6, 1 December 2014 (“Judgment on the Appeals of the Prosecutor and Lubanga against the Sentencing Decision”). A5, A6: Defence Appeal against Judgment and Decision on Sentence • Decision on Prosecutor’s Request for an Extension of the Page Limit, ICC-01/04-01/06-2955 A5 A6, 17 December 2012 (“Decision on the Prosecutor’s Request for an Extension of the Page Limit”). • Directions under Regulation 62 of the Regulations of the Court, ICC01/04-01/06-2958 A5 A6, 21 December 2012 (“Directions under Regulation 62”). • Order on the Filing of a Reply under Regulation 60 of the Regulations of the Court, ICC-01/04-01/06-2982 A5 A6, 21 February 2013 (“Order on the Filing of a Reply under Regulation 60”). • Decision on the “Prosecution’s Request to Strike Thomas Lubanga’s Reply or, Alternatively, for Leave to Respond to its New Argument”, ICC-01/04-01/06-3002 A5 A6, 26 March 2013 (“Decision on the Prosecution’s Request to Strike Lubanga’s Reply”). • Decision on Mr Thomas Lubanga’s Request for Disclosure, ICC-01/ 04-01/06-3017 A5 A6, 11 April 2013 (“Decision on Lubanga’s Request for Disclosure”). • Decision on the Prosecutor’s Request for Non-disclosure in Relation to Document “OTP/DRC/COD-190/JCCD-pt”, ICC-01/04-01/06-3031 A5 A6, 27 May 2013 (“Decision on the Prosecutor’s Request for Nondisclosure”). • Decision and Order in Relation to the Request of 23 December 2013 filed by Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-3057-Corr A5 A6, 14 January 2014 (“Decision and Order in Relation to Lubanga’s Request”). A5: Defence Appeal against Judgment Pursuant to Article 74 • Decision on Mr Lubanga’s Request for an Extension of the Page Limit, ICC-01/04-01/06-2946 A5, 28 November 2012 (“Decision on Lubanga’s Request for an Extension of the Page Limit”). • Decision on the “Prosecution’s Urgent Request for an Extension of the Page Limit”, ICC-01/04-01/06-2965 A5, 1 February 2013 (“Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit”).

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• Judgment on Lubanga’s Appeal against Conviction, ICC-01/04-01/063121-Red A5, 1 December 2014 (“Judgment on Lubanga’s Appeal against Conviction”).

Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui, ICC-01/04-01/07 OA: Prosecution Appeal against First Decision Refusing Authorisation to Redact Witness Statements (Innocent Third Parties; and Locations of Interview and Staff Identities) • Decision on the “Prosecution’s Urgent Application for Extension of Time to File Document in Support for Appeal”, ICC-01/04-01/07-115 OA, 18 December 2007 (“Decision on Prosecution’s Urgent Application for Extension of Time”). • Decision on the Prosecution’s Request for Leave to Reply, ICC-01/0401/07-148 OA, 18 January 2008 (“Decision on the Prosecution’s Request for Leave to Reply”). • Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, ICC-01/ 04-01/07-475 OA, 13 May 2008 (“Judgment on the Prosecution’s Appeal against the First Redaction Decision”). OA2: Katanga’s Appeal against First Decision Authorising Redaction of Witness Statements (Prosecution Sources) • Decision on the “Defence Application for Extension of Time to File Document in Support of Appeal”, ICC-01/04-01/07-121 OA2, 21 December 2007 (“Decision on the Defence Application for an Extension of Time”). • Judgment on the Appeal of Mr Germain Katanga against the Decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, ICC-01/ 04-01/07-476 OA2, 13 May 2008 (“Judgment on Katanga’s Appeal against the First Redaction Decision”). OA3: Katanga’s Appeal against Decision on Defence Request Concerning Languages • Judgment on the Appeal of Mr Germain Katanga against the Decision of Pre-Trial Chamber I entitled “Decision on the Defence Request

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Concerning Languages”, ICC-01/04-01/07-522 OA3, 27 May 2008 (“Judgment on Katanga’s Language Appeal”). OA4: Ngudjolo’s Appeal against Decision on Interim Release • Judgment in the Appeal of Mr Mathieu Ngudjolo Chui of 27 March 2008 against the Decision of Pre-Trial Chamber I on the application of the Appellant for interim release, ICC-01/04-01/07-572 OA4, 9 June 2008 (“Judgment on Ngudjolo’s Interim Release Appeal”). OA5: Ngudjolo’s Appeal against Decision on the Redaction of Statements of Witnesses 4 and 9 (Victims of Other Crimes) • Judgment on the Appeal of Mr Mathieu Ngudjolo against the Decision of Pre-Trial Chamber I entitled “Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9”, ICC-01/04-01/07-521 OA5, 27 May 2008 (“Judgment on Ngudjolo’s Appeal against the Redaction of Statements of Witnesses 4 and 9”). OA6: Ngudjolo’s Appeal against Decision on Joining Cases • Judgment on the Appeal against the Decision on Joinder Rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui cases, ICC-01/04-01/07-573 OA6, 9 June 2008 (“Judgment on Ngudjolo’s Joinder Appeal”). OA7: Prosecution Appeal against Decision on Preventive Relocation of Witnesses • Reasons for the “Decision on the ‘Application for Extension of Time Limits Pursuant to Regulation 35 of the Regulations of the Court to Allow the Defence to Submit its Observations on the Prosecutor’s Appeal regarding the Decision on Evidentiary Scope of the Confirmation Hearing and Preventative Relocation’”, ICC-01/04-01/ 07-653 OA7, 27 June 2008 (“Reasons for the Extension of Time for the Preventive Relocation Response”). • Reasons for the “Decision on Victims and Witnesses Unit’s Considerations on the System of Witness Protection and the Practice of ‘Preventive Relocation’ and ‘Prosecution’s Request for Leave to File a Response to Victims and Witnesses Unit’s Considerations on the System of Witness Protection and the Practice of ‘Preventive

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Relocation’”, ICC-01/04-01/07-675 OA7, 11 July 2008 (“Reasons for the Decision on the VWU’s Considerations on Witness Protection and Preventive Relocation”), including Dissenting Opinion of Judge Pikis. • Judgment on the Appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules” of Pre-Trial Chamber I, ICC-01/04-01/07-776 OA7, 26 November 2008 (“Judgment on Preventive Relocation”). OA8: Defence Appeal on Admissibility of the Case • Directions on the Submission of Observations Pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence, ICC-01/04-01/07-1295 OA8, 10 July 2009 (“Directions on the Submission of Observations”). • Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the admissibility of the case, ICC-01/04-01/07-1497 OA8, 25 September 2009 (“Judgment on Katanga’s Appeal on the Admissibility of the Case”). OA9: Prosecution Appeal on Access to Monitored Contacts • Judgment on the Appeal of the Prosecutor against the “Decision on Request 1200 of the Prosecutor for Prohibition and Restrictive Measures against Mathieu Ngudjolo with Respect to Contacts Both Outside and Inside the Detention Centre”, ICC-01/04-01/07-1718 OA9, 9 December 2009 (“Judgment on Access to Monitored Information”), including the Dissenting Opinion of Judge Song, ICC01/04-01/07-1722 OA9, 16 December 2009. OA10: Katanga Defence Appeal on Unlawful Detention and Stay of Proceedings • Judgment on the Appeal of Mr Katanga against the Decision of Trial Chamber II of 20 November 2009 entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, ICC-01/04-01/072259 OA10, 12 July 2010 (“Judgment on the Unlawful Detention and Stay of Proceedings Appeal”), including the Dissenting Opinion of Judges Kourula and Trendafilova, ICC-01/04-01/07-2297 OA10, 28 July 2010.

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OA11: Katanga Defence Appeal on Modalities of Victim Participation at Trial • Decision on the Participation of Victims in the Appeal of Mr Katanga against the “Decision on the Modalities of Victim Participation at Trial”, ICC-01/04-01/07-2124 OA11, 24 May 2010 (“Decision on Victim Participation in the Appeal on the Modalities of Victim Participation at Trial”). • Judgment on the Appeal of Mr Katanga against the Decision of Trial Chamber II of 22 January 2010 entitled “Decision on the Modalities of Victim Participation at Trial”, ICC-01/04-01/07-2288 OA11, 16 July 2010 (“Judgment on the Modalities of Victim Participation at Trial”). OA12: Katanga Appeal on Request for Directions from the Kingdom of the Netherlands • Decision on the “Urgent Request for Directions” of the Kingdom of the Netherlands of 15 July 2011, ICC-01/04-01/07-3132 OA12, 26 August 2011 (“Decision on the Netherlands’ Urgent Request for Directions”). OA13: Katanga Appeal against Decision on Regulation 55 • Decision on the “Urgent Defence Application for Extension of Page Limit for its Document in Support of Appeal against Trial Chamber II’s Decision of 21 November 2012 on Regulation 55 (Decision 3319)”, ICC-01/04-01/07-3334 OA13, 8 January 2013 (“Decision on the Urgent Defence Application for an Extension of the Page Limit”). • Decision on the Request for Suspensive Effect of the Appeal against Trial Chamber II’s Decision on the Implementation of Regulation 55 of the Regulations of the Court, ICC-01/04-01/07-3344 OA13, 16 January 2013 (“Decision on the Request for Suspensive Effect on the Implementation of Regulation 55”). • Decision on the Application of Victims to Participate in the Appeal against Trial Chamber II’s Decision on the Implementation of Regulation 55 of the Regulations of the Court, ICC-01/04-01/07-3346 OA13, 17 January 2013 (“Decision on Victim Participation in the Appeal on Regulation 55 Implementation”). • Judgment on the Appeal of Mr Germain Katanga against the Decision of Trial Chamber II of 21 November 2012 entitled “Decision on the

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Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons”, ICC-1/04-01/073363 OA13, 27 March 2013 (“Judgment on Katanga’s Appeal on Regulation 55 Implementation”), including the Dissenting Opinion of Judge Tarfusser. OA14: Detained Witnesses’ Appeal against Decision on Interim Release • Decision on the Admissibility of the Appeal against the “Decision on the Application for Interim Release of Detained Witnesses DRC-D02-P0236, DRC-D02-P0228 and DRC-D02-P0350”, ICC01/04-01/07-3424 OA14, 20 January 2014 (“Decision on the Application for Interim Release of Detained Witnesses”), including the Dissenting Opinion of Judge Song, ICC-01/04-01/07-3424-Anx OA14, 20 January 2014.

Prosecutor v. Mathieu Ngudjolo Chui, ICC-01/04-02/12 A: Prosecution Appeal against Judgment Pursuant to Article 74 • Decision on the Request of the Prosecutor of 19 December 2012 for Suspensive Effect ICC-01/04-02/12-12 OA, 20 December 2012 (“Decision on the Prosecutor’s Request for Suspensive Effect”). • Decision on the Participation of Victims in the Appeal against Trial Chamber II’s “Jugement rendu en application de l’article 74 du Statut”, ICC-01/04-02/12-30 A, 6 March 2013 (“Decision on Participation of Victims in Judgment Appeal”). • Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit, ICC-01/04-02/12-34 A, 13 March 2013 (“Decision on the Prosecution’s Urgent Request for an Extension of the Page Limit”). • Decision on the Defence Request to Reply to the Registrar’s Observations Pursuant to Regulation 24bis of the Regulations of the Court (ICC-01/04-02/12-25 A), ICC-01/04-02/12-43 A, 20 March 2013 (“Decision on the Defence Request to Reply”). • Decision on Mr Ngudjolo’s Request for Translation and Suspension of the Time Limit, ICC-01/04-02/12-60 A, 11 April 2013 (“Decision on Defence Request for Translation and Suspension of Time Limit”). • Order on Mr Katanga’s Request to be Provided with the Prosecution’s Appeal Brief, ICC-01/04-02/12-61 A, 12 April 2013 (“Order on Katanga’s Request for the Prosecution’s Appeal Brief”).

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• Decision on “Urgent Application by Mathieu Ngudjolo’s Defence Seeking the Appeals Chamber’s Instructions on the Modalities of Preparation for the Appeals Procedure in View of Mathieu Ngudjolo’s Current Situation (Article 67 of the Rome Statute)”, ICC01/04-02/12-67 A, 24 April 2013 (“Decision on the Defence’s Urgent Application for Instructions”). • Decision on “Requête urgente en prorogation de délai et an levee de l’ex parte touchant au mémoire d’appel du Procureur”, ICC-01/04-02/ 12-71 A, 16 May 2013 (“Decision on the Victim’s Urgent Request for an Extension of Time and Reclassification of the Prosecution’s Document”). • Decision on Mr Ngudjolo’s Request to Order the Victims and Witnesses Unit to Execute and the Host State to Comply with the Acquittal Judgment of 18 December 2012 issued by Trial Chamber II of the International Criminal Court, ICC-01/04-02/12-74-Red A, 27 May 2013 (“Decision on Ngudjolo’s Request to Order the VWU and Host State to Comply with Acquittal Judgment”). • Decision on Mr Ngudjolo’s Chui’s Request for an Extension of Time, ICC-01/04-02/12-84 A, 7 June 2013 (“Decision on Ngudjolo’s Request for an Extension of Time”). • Decision on Mr Ngudjolo’s Second Request for Translation and Suspension of the Time Limit, ICC-01/04-02/12-130 A, 7 August 2013 (“Decision on Ngudjolo’s Second Request for Translation and Suspension of the Time Limit”). • Order on Reclassification of Documents, ICC-01/04-02/12-137 A, 17 September 2013 (“Order on the Reclassification of Documents”). • Decision on the Participation of Anonymous Victims in the Appeal and the Maintenance of Deceased Victims on the List of Participating Victims, ICC-01/04-02/12-140 A, 23 September 2013 (“Decision on the Participation of Anonymous Victims in the Appeal”). • Order on the Filing of Public Redacted Versions of Submissions by the Parties and Participants, ICC-01/04-02/12-143 A, 4 October 2013 (“Order on the Filing of Public Redacted Versions of the Submissions”). • Order on the Implementation of the Cooperation Agreement between the Court and the Democratic Republic of the Congo concluded Pursuant Article 93(7) of the Statute, ICC-01/04-02/12-158 A, 20 January 2014 (“Order on the Implementation of the Cooperation Agreement between the Court and the DRC”), including the

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Dissenting Opinion of Judge Song, ICC-01/04-02/12-158-Anx A, 20 January 2014. • Decision on Mr Ngudjolo’s Request for Review of the Registrar’s Decision regarding the Level of Remuneration during the Appeal Phase and Reimbursement of Fees, ICC-01/04-02/12-159 A, 11 February 2011 (“Decision on Ngudjolo’s Request for Review of the Level of Remuneration and Reimbursement of Fees”). • Scheduling Order for a Hearing before the Appeals Chamber, ICC-01/ 04-02/12-199 A, 18 September 2014 (“Scheduling Order for a Hearing before the Appeals Chamber”).

Prosecutor v. Bosco Ntaganda, ICC-01/04-02/06 OA: Ntaganda Appeal against Decision on Interim Release • Judgment on the Appeal of Mr Bosco Ntaganda against the Decision of Pre-Trial Chamber II of 18 November 2013 entitled “Decision on the Defence’s Application for Interim Release”, ICC-01/04-02/06-271-Red OA, 5 March 2014 (“Judgment on Ntaganda’s Interim Release Appeal”). OA2: Ntaganda Appeal against Decision on Jurisdiction • Judgment on the Appeal of Mr Bosco Ntaganda against the “Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, ICC-01/04-02/06-1225 OA2, 22 March 2016 (“Judgment on Ntaganda’s Appeal on the Jurisdiction of the Court in Respect of Counts 6 and 9”). OA3: Ntaganda Appeal against Decision on Disclosure • Judgment on the Appeal of Mr Bosco Ntaganda against the “Decision on Defence Requests Seeking Disclosure Orders and a Declaration of Prosecution Obligation to Record Contacts with Witnesses”, ICC-01/ 04-02/06-1330 OA3, 20 May 2016 (“Judgment on the Ntaganda Appeal against the Decision on Disclosure”). OA5: Ntaganda Appeal against Second Decision on Jurisdiction • Decision on Mr Ntaganda’s Request for Leave to Reply, ICC-01/04-02/ 06-1813 OA5, 3 March 2017 (“Decision on Ntaganda’s Request for Leave to Reply”).

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• Judgment on the Appeal of Mr Ntaganda against the “Second Decision on the Defence’s Challenge to the Jurisdiction of the Court in Respect of Counts 6 and 9”, ICC-01/04-02/06-1962 OA5, 15 June 2017 (“Judgment on Ntaganda’s Appeal on the Second Decision on the Jurisdiction of the Court in Respect of Counts 6 and 9”). OA6: Ntaganda Appeal against Decision on “No Case to Answer” Motion • Judgment on the Appeal of Mr Bosco Ntaganda against the “Decision on Defence Request for Leave to File a ‘No Case to Answer’ Motion”, ICC-01/04-02/06-2026 OA6, 5 September 2017 (“Judgment on Ntaganda’s ‘No Case to Answer’ Motion”).

Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10 OA: Defence Appeal against Decision on Interim Release • Judgment on the Appeal of Mr Callixte Mbarushimana against the Decision of Pre-Trial Chamber I of 19 May 2011 entitled “Decision on the Defence Request for Interim Release”, ICC-01/04-01/10-283 OA, 14 July 2011 (“Judgment on Mbarushimana’s Interim Release Appeal”). OA2: Defence Appeal against Decision on Interim Release • Decision on the Admissibility of the Appeal of Mr Callixte Mbarushimana against the Decision of Pre-Trial Chamber I of 28 July 2011 entitled “Decision on ‘Second Defence Request for Interim Release’”, ICC-01/ 04-01/10-438 OA2, 21 September 2011 (“Decision on the Admissibility of Mbarushimana’s Appeal on Interim Release”). OA3: Prosecution Direct Appeal against Confirmation Decision and Release of Accused • Reasons for “Decision on the Appeal of the Prosecutor of 19 December 2011 against the ‘Decision on the Confirmation of the Charges’ and, in the Alternative, against the ‘Decision on the Prosecution’s Request for Stay of Order to Release Callixte Mbarushimana’ and on the Victims’ Request for Participation” of 20 December 2011, ICC-01/04-01/10-483 OA3, 24 January 2012 (“Decision on the Prosecution’s Direct Appeal against the Confirmation Decision and Decision on the Request for Stay of Release”).

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OA4: Prosecution Interlocutory Appeal against Confirmation Decision • Decision on the “Prosecution’s Request for an Extension of the Page Limit for its Document in Support of Appeal against the ‘Decision on the Confirmation of Charges’ (ICC-01/04-01/10-465-Red)”, ICC-01/ 04-01/10-495 OA4, 7 March 2012 (“Decision on the Prosecution Request for an Extension of the Page Limit”). • Decision on Mr Mbarushimana’s Request for Time Extension, ICC-01/ 04-01/10-497 OA4, 9 March 2012 (“Decision on Mbarushimana’s Request for a Time Extension”). • Decision on the “Requête urgente aux fîns de reconsidération de la décision ICC-01/04-01/10 OA4, de protestation et de réserve”, ICC-01/ 04-01/10-505 OA4, 23 March 2012 (“Decision on the Defence Request for Reconsideration”). • Decision on the “Requête tendant à obtenir autorisation de participer à la procédure d’appel contre la ‘Décision relative à la confirmation des charges’ (ICC-01/04-01/10-465-Conf-Tfra)”, ICC-01/04-01/10-509 OA4, 2 April 2012 (“Decision on the Victims’ Request to Participate in the Appeal against the Confirmation Decision”), including the Separate Opinion of Judge Song. • Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the Confirmation of Charges”, ICC-01/04-01/10-514 OA4, 30 May 2012 (“Judgment on the Prosecutor’s Appeal against the Confirmation of Charges”), including the Separate Opinion of Judge Fernández.

Situation in Uganda, ICC-02/04 OA: Appeal by Ad Hoc Defence against Victim Participation • Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-148 OA, 22 July 2008 (“Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time”). • Decision on the Participation of Victims in the Appeal, ICC-02/04-164 OA, 27 October 2008 (“Decision on the Participation of Victims in the Appeal”).

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Prosecutor v. Kony et al., ICC-02/04-01/05 OA: Application for Suspensive Effect to Application for Extraordinary Review • Decision on the Prosecutor’s “Application for the Appeals Chamber to Give Suspensive Effect to Prosecutor’s Application for Extraordinary Review”, ICC-02/04-01/05-92, SL PT OA, 5 May 2008 (reclassified as public pursuant to decision ICC-02/04-01/05-266) (“Decision on Giving Suspensive Effect to the Application for Extraordinary Review”). OA2: Appeal by Ad Hoc Defence against Victim Participation • Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time, ICC-02/04-01/05-306 OA2, 22 July 2008 (“Decision on the Application by the Ad Hoc Counsel for the Defence for an Extension of Time”). • Decision on the Participation of Victims in the Appeal, ICC-02/04-01/ 05-324 OA2, 27 October 2008 (“Decision on the Participation of Victims in the Appeal”). • Judgment on the Appeals of the Defence against the Decisions entitled “Decision on Victims’ Applications for Participation a/0010/06, a/0064/ 06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06, a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/01, a/0102/06 to a/0104/06, a/0111/06, a/ 0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06” of Pre-Trial Chamber II, ICC-02/04-01/05-371 OA2, 23 February 2009 (“Judgment on the Defence Appeals against Victim Participation”). OA3: Appeal by Ad Hoc Defence against Admissibility • Judgment on the Appeal of the Defence against the “Decision on the Admissibility of the Case under Article 19(1) of the Statute” of 10 March 2009, ICC-02/04-01/05-408 OA3, 16 September 2009 (“Judgment on the Ad Hoc Defence’s Appeal on the Admissibility of the Case”).

Prosecutor v. Dominic Ongwen, ICC-02/04-01/15 OA3: Prosecution Appeal against Decision for Evidence Disclosure and Related Matters • Judgment on the Appeal of the Prosecutor against the Decision of PreTrial Chamber II entitled “Decision Setting the Regime for Evidence

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Disclosure and Other Related Matters”, ICC-02/04-01/15-251 OA3, 17 June 2015 (“Judgment on Appeal against Decision Setting Regime of Evidence Disclosure and Related Matters’’).

Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08 OA: Defence Appeal against Decision on Interim Release • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on Application for Interim Release”, ICC-01/05-01/08-323 OA, 16 December 2008 (“Judgment on Bemba’s Interim Release Appeal”). OA2: Prosecution Appeal on Conditional Release • Order on the Reclassification as Confidential of the Response to the Document in Support of the Appeal and on the Filing of a Public Redacted Version, ICC-01/05-01/08-498-RSC OA2, 2 September 2009 (“Order on Reclassification as Confidential and the Filing of a Public Redacted Version”). • Decision on the Request of the Prosecutor for Suspensive Effect, ICC01/05-01/08-499 OA2, 3 September 2009 (“Decision on the Request of the Prosecutor for Suspensive Effect”). • Reasons for the “Decision on the Participation of Victims in the Appeal against the ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’”, ICC-01/05-01/08-566 OA2, 20 October 2009 (“Decision on Victim Participation in Conditional Release Appeal”), including Dissenting Opinion of Judge Song, ICC-01/05-01/08-623 OA2, 27 November 2009. • Decision on the Application of 14 September 2009 for Participation as an Amicus Curiae, ICC-01/05-01/08-602 OA2, 9 November 2009 (“Decision on the Application for Participation as an Amicus Curiae”). • Judgment on the Appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the

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Italian Republic, and the Republic of South Africa”, ICC-01/05-01/08631-Red OA2, 2 December 2009 (“Judgment on Prosecution’s Conditional Release Appeal”). OA3: Defence Appeal against Admissibility of the Case • Decision on the Request of Mr Bemba to give Suspensive Effect to the Appeal against the “Decision on the Admissibility and Abuse of Process Challenges”, ICC-01/05-01/08-817 OA3, 9 July 2010 (“Decision on Bemba’s Request for Suspensive Effect”). • Decision on the Request for an Extension of the Time Limit, ICC-01/ 05-01/08-827 OA3, 15 July 2010 (“Decision on the Request for an Extension of the Time Limit”). • Decision on the Central African Republic’s Request for an Extension of the Time Limit, ICC-01/05-01/08-878 OA3, 8 September 2010 (“Decision on the Central African Republic’s Request for an Extension of the Time Limit”). • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 24 June 2010 entitled “Decision on the Admissibility and Abuse of Process Challenges”, ICC-01/05-01/08-962 OA3, 19 October 2010 (“Judgment on the Admissibility Appeal”). • Corrigendum to Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 24 June 2010 entitled “Decision on the Admissibility and Abuse of Process Challenges”, ICC-01/05-01/08-962-Corr OA3, 19 October 2010 (“Judgment on the Admissibility Appeal”). OA4: Defence Appeal against Renewed Detention • Decision on the Participation of Victims in the Appeal against the “Decision on the Review of the Detention of Mr Jean Pierre Bemba Gombo Pursuant to Rule 118(2) of the Rules of Procedure and Evidence” of Trial Chamber III, ICC-01/05-01/08-857 OA4, 18 August 2010 (“Decision on Victim Participation in Renewed Detention Appeal”). • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 28 July 2010 entitled “Decision on the Review of the Detention of Mr Jean-Pierre Bemba Gombo Pursuant to Rule 118(2) of the Rules of Procedure and Evidence”, ICC-01/05-01/ 08-1019 OA4, 19 November 2010 (“Judgment on the Review of Bemba’s Detention”).

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OA5 OA6: Prosecution and Defence Appeals against Decision on the Admission into Evidence of the Prosecution’s List of Evidence • Judgment on the Appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the Decision of Trial Chamber III entitled “Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence”, ICC-01/05-01/08-1386 OA5 OA6, 3 May 2011 (“Judgment on the Appeals against the Decision on the Admission of Evidence”). OA7: Defence Appeal against Decision on Provisional Release • Decision on the Participation of Victims in the Appeal against the “Decision on Applications for Provisional Release” of Trial Chamber III, ICC-01/05-01/08-1597 OA7, 14 July 2011 (“Decision on Victim Participation in the Provisional Release Appeal”), including Partly Dissenting Opinion of Judge Song, ICC-01/05-01/08-1619 OA7, 1 August 2011. • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 27 June 2011 entitled “Decision on Applications for Provisional Release”, ICC-01/05-01/08-1626Red OA7, 19 August 2011 (“Judgment on the Provisional Release Appeal”), including the Partly Dissenting Opinion of Judge Ušacka. OA8: Defence Appeal against Decision on Provisional Release • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 2 September 2011 entitled “Decision on the ‘Demande de mise en liberté de M. Jean-Pierre Bemba Gombo a fin d’accomplir ses devoirs civiques en République Démocratique du Congo’”, ICC-01/05-01/08-1722 OA8, 9 September 2011 (“Judgment on the Provisional Release Appeal”) ICC-01/05-01/08-1781. OA9: Defence Appeal against Decision on Provisional Release • Decision on “Application for Leave to Reply to the Office of the Prosecutor’s Response of 10 October 2011 to the Document in Support of the Defence Appeal”, ICC-01/05-01/08-1846 OA9, 17 October 2011 (“Decision on the Application for Leave to Reply”). • Decision on “Application of Legal Representative of Victims Mr Zarambaud Assingambi for Leave to Participate in the Appeals Proceedings Following the Defence Appeal of 21 September 2011”,

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ICC-01/05-01/08-1848-Red OA9, 19 October 2011 (“Decision on Victim Participation in the Provisional Release Appeal”). • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 26 September 2011 entitled “Decision on the Accused’s Application for Provisional Release in Light of the Appeals Chamber’s Judgment of 19 August 2011”, ICC-01/05-01/081937-Red2 OA9, 23 November 2011 (“Judgment on the Provisional Release Appeal”). OA10: Defence Appeal against Decision on Provisional Release • Decision on “Application of Legal Representative of Victims Mr Zarambaud Assingambi for Leave to Participate in the Appeals Proceedings Following the Defence Appeal of 9 January 2012 and Addendum of 10 January 2012”, ICC-01/05-01/08-2098 OA10, 1 February 2012 (“Decision on Victims’ Participation”), including the Dissenting Opinion of Judge Song. • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 6 January 2012 entitled “Decision on the Defence’s 28 December 2011 ‘Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo’”, ICC-01/05-01/082151-Red OA10, 5 March 2012 (“Judgment on the Provisional Release Appeal”). OA11: Defence Appeal against Decision on Provisional Release • Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 23 December 2014 entitled “Decision on ‘Defence Urgent Motion for Provisional Release’”, ICC-01/05-01/ 08-3249-Red OA11, 20 May 2015 (“Judgment on the Provisional Release Appeal”). • Decision on the Defence Request to File Additional Submissions, ICC01/05-01/08-3243 OA11, 9 February 2015 (“Decision on Bemba’s Request to File Additional Submissions”).

Prosecutor v. Bemba, Kilolo, Mangenda, Babala & Arido, ICC-01/05-01/13 OA2: Bemba et al. Appeal in Relation to Interim Release (Kilolo) • Judgment on the Appeal of Mr Aimé Kilolo Musamba against the Decision of Pre-Trial Chamber II of 14 March 2014 entitled

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“Decision on the ‘Demande de mise en liberte provisoire de Maitre Aimé Kilolo Musamba’”, ICC-01/05-01/13-558 OA2, 11 July 2014 (“Judgment on Kilolo’s Appeal for Interim Release”). OA3: Bemba et al. Appeal in Relation to Interim Release (Babala) • Judgment on the Appeal of Mr Fidèle Babala Wandu against the Decision of Pre-Trial Chamber II of 14 March 2014 entitled “Decision on the ‘Requete urgente de la Defense sollicitant la mise en liberte provisoire de monsieur Fidèle Babala Wandu’”, ICC-01/0501/13-559 OA3, 11 July 2014 (“Judgment on Babala’s Appeal for Interim Release”). OA4: Bemba et al. Appeal in Relation to Release (Mangenda) • Judgment on the Appeal of Mr Jean-Jacques Mangenda Kabongo against the Decision of Pre-Trial Chamber II of 17 March 2014 entitled “Decision on the ‘Requete de mise en Liberte’ Submitted by the Defence for Jean-Jacques Mangenda”, ICC-01/05-01/13-560 OA4, 11 July 2014 (“Judgment on Mangenda’s Appeal for Interim Release”). OA5, OA6, OA7, OA8, OA9: Appeals against Interim Release in Relation to Bemba, Kilolo, Mangenda, Babala & Arido • Judgment on the Appeals against Pre-Trial Chamber II’s Decisions regarding Interim Release in Relation to Aimé Kilolo Musamba, JeanJacques Mangenda, Fidèle Babala Wandu, and Narcisse Arido and Order for Reclassification, ICC-01/05-01/13-969 OA5 OA6 OA7 OA8 OA9, 29 May 2015 (“Judgment on the Interim Release Appeals in Relation to Kilolo, Mangenda, Babala & Arido”). OA10: Prosecution Appeal against Bemba’s Request for Provisional Release • Judgment on the Appeal of the Prosecutor against the Decision of PreTrial Chamber II of 23 January 2015 entitled “Decision on ‘Mr Bemba’s Request for Provisional Release’”, ICC-01/05-01/13-970 OA10, 29 May 2015 (“Judgment on the Provisional Release Appeal”). OA12: Defence Appeal against Decision on the Freezing of Assets • Decision on the “Requête en appel de la défense de monsieur Aimé Kilolo Musamba contre la décision de la Chambre de première instance

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VII du 17 novembre 2015”, ICC-01/05-01/13-1533 OA12, 23 December 2015 (“Decision on the Admissibility of Kilolo’s Appeal against the Decision on the Freezing of Assets”). OA13: Mangenda’s Appeal against Decision Rejecting Compensation • Judgment on Mr Mangenda’s Appeal against the “Decision on Request for Compensation for Unlawful Detention”, ICC-01/05-01/13-1964 OA13, 8 August 2016 (“Judgment on Mangenda’s Appeal on Compensation for Unlawful Detention”).

Situation in Darfur, Sudan, ICC-02/05 OA OA2 OA3: One Appeal by Prosecution and Two Appeals by OPCD on Victim Participation in the Situation • Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of PreTrial Chamber I of 3 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 6 December 2007, ICC-02/05-177 OA OA2 OA3, 2 February 2009 (“Darfur Judgment on Victim Participation in the Investigation Stage of the Proceedings”).1

Prosecutor v. Al Bashir, ICC-02/05-01/09 OA: Prosecution Appeal against Decision Refusing Arrest Warrant for Genocide • Decision on the Applications by Victims a/0443/09 to a/0450/09 to Participate in the Appeal against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir” and on the request for an extension of time, ICC-02/05-01/0948 OA, 23 October 2009 (“Decision on Victim Participation in Al Bashir Arrest Warrant Appeal”). • Reasons for “Decision on the Application of 20 July 2009 for Participation under Rule 103 of the Rules of Procedure and Evidence 1

This judgment consists of a verbatim reproduction of Situation in DRC, Judgment on Victim Participation in the Investigation Stage of the Proceedings, ICC-01/04-556 OA4 OA5 OA6, 19 December 2008 and is therefore not separately digested.

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and on the Application of 24 August 2009 for Leave to Reply”, ICC-02/ 05-01/09-51 OA, 9 November 2009 (“Decision on Amicus Curiae Participation in the Al Bashir Arrest Warrant Appeal”). • Decision on the Second Application by Victims a/0443/09 to a/ 0450/09 to Participate in the Appeal against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09-70 OA, 28 January 2010 (“Second Decision on Victim Participation in Al Bashir Arrest Warrant Appeal”). • Judgment on the Appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09-73 OA, 3 February 2010 (“Judgment on Al Bashir Arrest Warrant Appeal”).

Prosecutor v. Banda & Jerbo, ICC-02/05-03/09 OA: Prosecution Appeal on the Appointment of Defence Counsel • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber IV of 30 June 2011 entitled “Decision on the Prosecution’s Request to Invalidate the Appointment of Counsel to the Defence”, ICC-02/05-03/09-252 OA, 11 November 2011 (“Judgment on the Appointment of Defence Counsel”). OA2: Prosecution Appeal on Trial Chamber’s Order to Produce Additional Statements in Cases under Rule 112 • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber IV of 12 September 2011 entitled “Reasons for the Order on Translation of Witness Statements (ICC-02/05-03/09199) and Additional Instructions on Translation”, ICC-02/05-03/ 09-295 OA2, 17 February 2012 (“Judgment on Rules 111 and 112”). OA4: Defence Appeal for Disclosure • Decision on the Participation of Victims in the Appeal, ICC-02/05-03/ 09-470 OA4, 6 May 2013 (“Decision on the Participation of Victims in the Appeal”), including the Separate Opinion of Judge Song, ICC-02/ 05-03/09-470-Anx OA4, 10 May 2013.

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• Judgment on the Appeal of Mr Abdallah Banda Abakaer Nourain and Mr Saleh Mohammed Jerbo Jamus against the Decision of Trial Chamber IV of 23 January 2013 entitled “Decision on the Defence’s Request for Disclosure of Documents in the Possession of the Office of the Prosecutor”, ICC-02/05-03/09-501 OA4, 28 August 2013 (“Judgment on the Defence Appeal for the Disclosure of Documents”).

Prosecutor v. Banda, ICC-02/05-03/09 OA5: Banda Appeal against Issuance of Arrest Warrant • Judgment on the Appeal of Mr Abdallah Banda Abakaer Nourain against Trial Chamber IV’s Issuance of a Warrant of Arrest, ICC-02/ 05-03/09-632-Red, 3 March 2015 (“Judgment on the Abdallah Banda Arrest Warrant Appeal”).

Situation in Kenya, ICC-01/09 OA: Kenya Appeal against Decision on Request for Assistance • Decision on the Admissibility of the “Appeal of the Government of Kenya against the ‘Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence’”, ICC-01/09-78 OA, 10 August 2011 (“Decision on the Admissibility of Kenya’s Appeal and Leave to Reply”). OA2: Request by David Nyekorach-Matsanga to Disqualify the Prosecutor • Decision on the Request for Disqualification of the Prosecutor in the Investigation against Mr David Nyekorach-Matsanga, ICC-01/09-96Red OA2, 11 July 2012 (“Decision on the Request for Disqualification of the Prosecutor in the Investigation”). • Decision on the Request for Reconsideration of the Decision on the Request for the Disqualification of the Prosecutor in the Investigation against Mr David Nyekorach-Matsanga, ICC-01/09-111 OA2, 22 April 2013 (“Decision on the Request for Reconsideration of the Request to Disqualify the Prosecutor”).

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Prosecutor v. Ruto, Kosgey & Sang, ICC-01/09-01/11 OA: Kenya Appeal against Admissibility of the Case • Decision on the “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility”, ICC-01/09-01/11-234 OA, 28 July 2011 (“Decision on Kenya’s Filing of an Updated Investigation Report”). • Decision on Application for Leave to Reply on behalf of the Government of Kenya for Leave to Reply to the “Prosecution’s Response to the ‘Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2) (b) of the Statute’”, ICC-01/09-01/11-239 OA, 1 August 2011 (“Decision on Kenya’s Application for Leave to Reply to the Prosecution’s Response”). • Decision on the “Request for an Oral Hearing Pursuant to Rule 156(3)”, ICC-01/09-01/11-271 OA, 17 August 2011 (“Decision on the Request for an Oral Hearing”). • Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-01/11-307 OA, 30 August 2011 (“Judgment on Kenya’s Appeal on the Admissibility of the Case”), including Dissenting Opinion of Judge Ušacka, ICC-01/09-01/11-336 OA, 20 September 2011. OA2: Appeal by Gesicho on Amicus Curiae Status • Decision on the “Appeal against the Single Judge’s Decision on the ‘Request by Ms Moraa Gesicho to Appear as Amicus Curiae’”, ICC-01/09-01/11-270 OA2, 17 August 2011 (“Decision on the Admissibility of Gesicho’s Appeal on Her Request to Appear as Amicus Curiae”). OA3 OA4: Defence Appeal on Jurisdiction • Decision on the “Observations on the ‘Directions on the Submission of Observations Pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’”, ICC-01/09-01/11-390 OA3 OA4, 20 February 2012 (“Decision on the OPCV Request to Participate in the Defence Appeal on Jurisdiction”).

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• Decision on the Requests of Mr Ruto and Mr Sang for Suspensive Effect, ICC-01/09-01/11-391 OA3 OA4, 29 February 2012 (“Decision on Ruto and Sang’s Requests for Suspensive Effect”). • Decision on the “Application of the Victims’ Representative Pursuant to Article 83 of the Regulations”, ICC-01/09-01/11-409 OA3 OA4, 23 April 2012 (“Decision on the Victims’ Representative’s Application Pursuant to Regulation 83”). • Decision on the Appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, ICC-01/0901/11-414 OA3 OA4, 24 May 2012 (“Decision on the Defence Appeals against the Confirmation of Charges”). OA5: Prosecution Appeal on Ruto’s Request for Excusal • Decision on the Appeal of the Prosecutor against the Decision of Trial Chamber V(a) entitled “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, ICC-01/09-01/11-862 OA5, 20 August 2013 (“Decision on the Request for Suspensive Effect”). • Decision on the Requests for Leave to Submit Observations under Rule 103 of the Rules of Procedure and Evidence, ICC-01/09-01/11-942 OA5, 13 September 2013 (“Decision on the Requests for Leave to Submit Observations under Rule 103”), including the Dissenting Opinion of Judge Ušacka, ICC-01/09-01/11-942-Anx OA5, 13 September 2013. • Second Decision on the Requests for Leave to Submit Observations under Rule 103 of the Rules of Procedure and Evidence, ICC-01/09-01/ 11-988 OA5, 25 September 2013 (“Second Decision on the Requests for Leave to Submit Observations under Rule 103”). • Decision on Mr Ruto’s Request for Reconsideration of the “Decision on the Request for Suspensive Effect”, ICC-01/09-01/11-993-Red OA5, 27 September 2013 (“Decision on Ruto’s Request for Reconsideration of the Decision on Suspensive Effect”). • Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, OA5, 25 October 2013 (“Judgment on Ruto’s Request for Excusal from Continuous Presence at Trial”), including the Joint Separate Opinion

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index of d igested decisions

of Judges Kourula & Ušacka, ICC-01/09-01/11-1066-Anx OA5, 25 October 2013. OA6: Prosecution’s Appeal against Decision on Amendment of Charges • Decision on the Prosecutor’s Appeal against the “Decision on the Prosecution’s Request to Amend the Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute”, ICC-01/09-01/111123 OA6, 13 December 2013 (“Decision on the Prosecutor’s Appeal to Amend the Charges”), including the Dissenting Opinion of Judge Ušacka, ICC-01/09-01/11-1123-Anx OA6, 13 December 2013.

Prosecutor v. Ruto & Sang, ICC-01/09-01/11 OA7 OA8: Appeal by Ruto & Sang on Prosecution’s Application for Witness Summonses • Judgment on the Appeals of William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Trial Chamber V(A) of 17 April 2014 entitled “Decision on Prosecutor’s Application for Witness Summonses and Resulting Request for State Party Cooperation”, ICC-01/09-01/11-1598 OA7 OA8, 9 October 2014 (“Judgment on Ruto’s and Sang’s Appeals against the Prosecution’s Application for Witness Summonses”). OA10: Appeal by Ruto & Sang on Prosecution’s Request for Admission of Prior Recorded Testimony • Judgment on the Appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the Decision of Trial Chamber V(A) of 19 August 2015 entitled “Decision on Prosecution Request for Admission of Prior Recorded Testimony”, ICC-01/09-01/11-2024 OA10, 12 February 2016 (“Judgment on the Decision on the Admission of Prior Recorded Testimony under Rule 68”).

Prosecutor v. Muthaura, Kenyatta & Ali, ICC-01/09-02/11 OA: Kenya Appeal against Admissibility • Decision on the “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s

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Decision on Admissibility”, ICC-01/09-02/11-202 OA, 28 July 2011, (“Decision on Kenya’s Filing of an Updated Investigation Report”). • Decision on the Application on behalf of the Government of Kenya for Leave to Reply to the “Prosecution’s Response to the ‘Appeal of the Government of Kenya against the Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’”, ICC-01/09-02/11-206 OA, 1 August 2011 (“Decision on Kenya’s Application for Leave to Reply to the Prosecution’s Response”). • Decision on the “Request for an Oral Hearing Pursuant to Rule 156(3)”, ICC-01/09-02/11-251 OA, 17 August 2011 (“Decision on the Request for an Oral Hearing”). • Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2) (b) of the Statute”, ICC-01/09-02/11-274 OA, 30 August 2011 (“Judgment on Kenya’s Appeal on the Admissibility of the Case”), including the Dissenting Opinion of Judge Ušacka, ICC-01/09-02/ 11-342 OA, 20 September 2011. OA2: Appeal by Gesicho on Amicus Curiae Status • Decision on the “Appeal against the Single Judge’s Decision on the ‘Request by Ms Moraa Gesicho to Appear as Amicus Curiae’”, ICC-01/09-02/11-250 OA2, 17 August 2011 (“Decision on the Admissibility of Gesicho’s Appeal on Her Request to Appear as Amicus Curiae”). OA3: Prosecution Appeal on the Appointment of Defence Counsel • Judgment on the Appeal of the Prosecutor against the Decision of PreTrial Chamber II dated 20 July 2011 entitled “Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence”, ICC-01/09-02/11-365 OA3, 10 November 2011 (“Judgment on the Appointment of Defence Counsel”). OA4: Defence Appeal on Jurisdiction • Decision on the “Observations on the ‘Directions on the Submission of Observations Pursuant to Article 19(3) of the Rome Statute and Rule 59(3) of the Rules of Procedure and Evidence’”, ICC-01/09-02/11-400

672

•

•

• •

i nd e x of di g e s t e d d e c i s i o n s

OA4, 20 February 2012 (“Decision on the OPCV Request to Participate in the Defence Appeal on Jurisdiction”). Decision on the Request of Mr Kenyatta and Mr Muthaura for Suspensive Effect, ICC-01/09-02/11-401 OA4, 29 February 2012 (“Decision on Kenyatta and Muthaura’s Requests for Suspensive Effect during their Jurisdiction Appeal”). Decision on the “Notification Regarding the Legal Representation of Participating Victims in the Appeal Proceedings”, ICC-01/09-02/ 11-416 OA4, 23 April 2012 (“Decision on the Legal Representation of Victims Participating in Appeals Proceedings”). Decision on the “Request to Make Oral Submissions on Jurisdiction under Rule 156(3)”, ICC-01/09-02/11-421 OA4, 1 May 2012 (“Decision on the Request to Make Oral Submissions”). Decision on the Appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the Decision of Pre-Trial Chamber II of 23 January 2012 entitled “Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute”, ICC-01/09-02/11-425 OA4, 24 May 2012 (“Decision on the Defence Appeal against the Confirmation of Charges”).

OA5: Prosecutor’s Appeal in relation to State Non-compliance: Article 87(7) • Judgment on the Prosecutor’s Appeal against Trial Chamber V(B)’s “Decision on Prosecution’s Application for a Finding of Noncompliance under Article 87(7) of the Statute”, ICC-01/09-02/11-1032 OA5, 19 August 2015 (“Judgment on the Prosecutor’s Appeal on Noncompliance under Article 87(7)”).

Situation in Libya, ICC-01/11 Prosecutor v. Gaddafi & Al-Senussi, ICC-01/11-01/11 OA: Amicus Curiae Appeal by Hosseinioun • Decision on the Admissibility of the “Appeal against Decision on Application Under Rule 103” of Ms Mishana Hosseinioun of 7 February 2012, ICC-01/11-01/11-74 OA, 9 March 2011 (“Decision on the Admissibility of the Amicus Curiae Appeal”).

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OA2: Libya Appeal on the Surrender of Saif Al-Islam Gaddafi • Decision on “Government of Libya’s Appeal against the ‘Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi’” of 10 April 2012, ICC-01/11-01/11-126 OA2, 25 April 2012 (“Decision on the Libya Appeal for the Postponement of the Surrender of Saif AlIslam Gaddafi”). OA3: Gaddafi Appeal to Disqualify the Prosecutor • Decision on the Request for Disqualification of the Prosecutor, ICC-01/ 11-01/11-175 OA3, 12 June 2012 (“Decision on the Request for Disqualification of the Prosecutor”). OA4: Libya Appeal for Suspensive Effect • Decision on the Request for Suspensive Effect and Related Issues, ICC01/11-01/11-387 OA4, 18 July 2013 (“Decision on Suspensive Effect”). • Decision on the “Application on behalf of Mishana Hosseinioun for Leave to Submit Observations to the Appeals Chamber Pursuant to Rule 103”, ICC-01/11-01/11-404 OA4, 15 August 2013 (“Decision on Hosseinioun’s Application to Submit Observations”). • Decision on the OPCV’s Request to File Observations on the Observations of Ms Mishana Hosseinioun, ICC-01/11-01/11-415 OA4, 23 August 2013 (“Decision on the OPCV’s Request to File Observations”). • Decision on the Libyan Government’s Request to File Further Submissions, ICC-01/11-01/11-442 OA4, 12 September 2013 (“Decision on the Libyan Government’s Request to File Further Submissions”). • Decision on the “Request for an Immediate Finding of Non-compliance and Referral to the United Nations Security Council”, ICC-01/11-01/ 11-446 OA4, 17 September 2013 (“Decision on the Request for an Immediate Finding of Non-compliance”). OA6: Defence Appeal against Admissibility of the Case • Decision on the Request for Suspensive Effect and the Request to Rule a Consolidated Reply, ICC-01/11-01/11-480 OA6, 22 November 2013 (“Decision on the Request for Suspensive Effect”). • Judgment on the Appeal of Libya against the Decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the Admissibility of

674

i n dex of di ges t ed dec isi ons

the Case against Saif Al-Islam Gaddafi”, ICC-01/11-01/11-547-Red OA4, 21 May 2014 (“Judgment on Libya’s Appeal on the Admissibility of the Case against Saif Gaddafi”). • Judgment on the Appeal of Mr Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the Admissibility of the Case against Abdullah AlSenussi”, ICC-01/11-01/11-565 OA6, 24 July 2014 (“Judgment on AlSenussi’s Appeal on the Admissibility of the Case”).

Situation in the Republic of Côte d’Ivoire, ICC-02/11 Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11 OA: Defence Appeal on Interim Release • Decision on the “Requête aux fins de suspension des délais prévus par la Règle 154(1) du Règlement de procédure et de preuve et par la Norme 64(5) du Règlement de la Cour jusqu’à la fin dec vacances judiciaires, fixée au lundi 6 août 2012”, ICC-02/11-01/11-189 OA, 19 July 2012 (“Decision on Gbagbo’s Request to Suspend Time Limits”). • Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I of 13 July 2012 entitled “Decision on the ‘Requête de la Défense demandant la mise en liberté provisoire du president Gbagbo’”, ICC-02/11-01/11-278-Red OA, 26 October 2012 (“Judgment on Interim Release”), including the Dissenting Opinions of Judges Ušacka and Kourula. OA2: Defence Appeal on Jurisdiction and Stay of Proceedings • Directions on the Submissions of Observations, ICC-02/11-01/11-236 OA2, 31 August 2012 (“Directions on the Submissions of Observations”). • Decision on Requests related to Page Limits and Reclassification of Documents, ICC-02/11-01/11-266 OA2, 16 October 2012 (“Decision on Requests related to Page Limits and Reclassification of Documents”). • Decision further to the “Directions on the Submissions of Observations” issued on 31 August 2012 and on the Clarification Request of Mr Gbagbo, ICC-02/11-01/11-268 OA2, 18 October 2012 (“Decision Further to the Directions on the Submissions of Observations”).

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• Judgment on the Appeal of Mr Laurent Koudou Gbagbo against the Decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings, ICC-02/11-01/11-321 OA2, 12 December 2012 (“Judgment on Gbagbo’s Appeal on Jurisdiction and Stay of the Proceedings”). OA3: OPCV Appeal for Access to Confidential Filings • Decision on the “Requests in Relation to the ‘Decision on the Review of Laurent Gbagbo’s Detention Pursuant to Article 60(3) of the Rome Statute’”, ICC-02/11-01/11-304 OA3, 23 November 2012 (“Decision on Detention Pursuant to Article 60(3)”). OA4: Defence Appeal on Detention • Decision on the “Requête aux fins de prorogation des délais déterminés par la Norme 64(5) du Règlement, de façon à ce qu’íls courent à partir de la rentrée judiciaire, fixée au lundi 12 août 2013”, ICC-02/11-01/11458-Red OA4, 18 July 2013 (“Decision on Defence Request for Time Extension Pursuant to Regulation 64(5)”). • Decision on the “Requête aux fins d’augmentation du nombre de pages autorisé que comprendra le document à l’appui de la ‘Third Decision on the Review of Laurent Gbagbo’s Detention Pursuant to Article 60(3) of the Rome Statute’ (ICC-02/11-01/11-459-Conf)”, ICC-02/11-01/11481 OA4, 16 August 2013 (“Decision on Gbagbo’s Request for an Extension of the Page Limit”). • Decision on the Application by Victim for Participation in the Appeal, ICC-02/11-01/11-491 OA4, 27 August 2013 (“Decision on Victim Participation in the Interim Release Appeal”), including the Separate Opinion of Judge Song, ICC-02/11-01/11-491-Anx OA4, 27 August 2013. • Judgment on the Appeal of Mr Laurent Gbagbo against the Decision of Pre-Trial Chamber I of 11 July 2013 entitled “Third Decision on the Review of Laurent Gbagbo’s Detention Pursuant to Article 60(3) of the Rome Statute”, ICC-02/11-01/11-548-Red OA4, 29 October 2013 (“Judgment on Gbagbo’s Appeal against the Third Review Decision on his Detention”), including the Separate Opinion of Judge Kourula, ICC-02/11-01/11-548-Anx1 OA4, 29 October 2013 and the Dissenting Opinion of Judge Ušacka, ICC-02/11-01/11-548-Anx2 OA4, 29 October 2013.

676

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OA5: Prosecution Appeal against Decision Adjourning Confirmation of Charges Hearing • Decision on the “Prosecution’s Request for an Extension of the Page Limit for the Prosecution’s Appeal against the ‘Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute’”, ICC-02/11-01/11-471 OA5, 7 August 2013 (“Decision on the Extension of the Page Limit for the Prosecution’s Appeal”). • Decision on Mr Gbagbo’s Request for Translation and an Extension of Time for the Filing of a Response to the Document in Support of the Appeal, ICC-02/11-01/11-489 OA5, 22 August 2013 (“Decision on Gbagbo’s Request for Translation and an Extension of Time”). • Decision on the Participation of Victims in the Prosecutor’s Appeal against the “Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute”, ICC-02/ 11-01/11-492 OA5, 29 August 2013 (“Decision on Victim Participation in the Prosecutor’s Appeal”), including the Separate Opinion of Judge Song, ICC-02/11-01/11-492-Anx OA5, 29 August 2013. • Decision on the “Request for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence”, ICC-02/11-01/11-516 OA5, 1 October 2013 (“Decision on Robinson et al.’s Request to Submit Amicus Curiae Observations”). • Decision on the “Request for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence”, ICC-02/11-01/11-517 OA5, 1 October 2013 (“Decision on Zwart and Knoops’ Request to Submit Amicus Curiae Observations”). • Decision on the “Request by the Common Legal Representative for Leave to Present Observations on Submission under Rule 103 of the Rules of Procedure and Evidence to be Filed by Mr Darryl Robinson, Ms Margaret de Guzman, Mr Charles Jalloh and Mr Robert Cryer”, ICC-02/11-01/11-533 OA5, 9 October 2013 (“Decision on the Common Legal Representative’s Request to Submit Observations”). • Judgment on the Appeal of the Prosecutor against the Decision of PreTrial Chamber I of 3 June 2013 entitled “Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute”, ICC-02/11-01/11-572 OA5, 16 December 2013 (“Judgment on the Adjournment of the Confirmation of Charges Hearing”).

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Prosecutor v. Simone Gbagbo, ICC-02/11-01/12 OA: Côte d’Ivoire Appeal on Admissibility of the Case • Judgment on the Appeal of Côte d’Ivoire against the Decision of PreTrial Chamber I of 11 December 2014 entitled “Decision on Côte d’Ivoire’s Challenge to the Admissibility of the Case against Simone Gbagbo”, ICC-02/11-01/12-75-Red OA, 27 May 2015 (“Judgment on the Admissibility Appeal”).

Prosecutor v. Laurent Gbagbo & Charles Blé Goudé, ICC-02/11-01/15 OA6: Decision on Request for Victims to Participate in any Interlocutory Appeal • Reasons for the “Decision on the ‘Request for the Recognition of the Right of Victims Authorized to Participate in the Case to Automatically Participate in any Interlocutory Appeal Arising from the Case and, in the Alternative, Application to Participate in the Interlocutory Appeal against the Ninth Decision on Mr Gbagbo’s Detention ICC-02/11-01/ 15-134-Red3’”, ICC-02/11-01/15-172 OA6, 31 July 2015 (“Reasons for the Authorisation of Victim Participation in Interlocutory Appeals”). • Judgment on the Appeal of Mr Laurent Gbagbo against the Decision of Trial Chamber I of 8 July 2015 entitled “Ninth Decision on the Review of Mr Laurent Gbagbo’s Detention Pursuant to Article 60(3) of the Statute”, ICC-02/11-01/15-208 OA6, 8 September 2015 (“Judgment on Gbagbo’s Appeal against the Ninth Review Decision on his Detention”). OA7: Gbagbo’s Appeal against Decision on Giving Notice Pursuant to Regulation 55(2) • Judgment on the Appeal of Mr Laurent Gbagbo against the Decision of Trial Chamber I entitled “Decision Giving Notice Pursuant to Regulation 55(2) of the Regulations of the Court”, ICC-02/11-01/15369 OA7, 18 December 2015 (“Judgment on Gbagbo’s Appeal on Giving Notice Pursuant to Regulation 55(2)”). • Decision on Mr Laurent Gbagbo’s Request for Leave to Reply, ICC-02/ 11-01/15-284 OA7, 9 October 2015 (“Decision on Gbagbo’s Request for Leave to Reply”).

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OA8: Gbagbo & Blé Goudé’s Appeal against Decision Admitting Evidence under Rule 68 • Judgment on the Appeals of Mr Laurent Gbagbo and Mr Charles Blé Goudé against the Decision of Trial Chamber I of 9 June 2016 entitled “Decision on the Prosecutor’s Application to Introduce Prior Recorded Testimony under Rule 68(2)(b) and 68(3)”, ICC-02/11-01/15-744 OA8, 1 November 2016 (“Judgment on the Gbagbo and Blé Goudé Appeals against the Decision on Rule 68(2)(b) and 68(3)”). OA13: Gbagbo’s Notice of Appeal against Decision on Gbagbo’s Detention • Decision on Mr Laurent Gbagbo’s Notice of Appeal, ICC-02/11-01/151047 OA13, 5 October 2017 (“Decision on Gbagbo’s Notice of Appeal”), including the Dissenting Opinion of Judge Morrison, ICC-02/11-01/151047-Anx OA14, 5 October 2017.

Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic & the Kingdom of Cambodia, ICC-01/13 OA: Prosecution Appeal against the Request of the Union of the Comoros to Review Decision not to Initiate an Investigation • Decision on the Admissibility of the Prosecutor’s Appeal against the “Decision on the Request of the Union of the Comoros to Review the Prosecutor’s Decision not to Initiate an Investigation”, ICC-01/13-51 OA, 6 November 2015 (“Decision on the Admissibility of the Prosecutor’s Appeal against the Review of the Prosecutor’s Decision not to Initiate an Investigation”).

Situation in [REDACTED], ICC-01/16 • Judgment on the Appeal of the Prosecutor against the Decision of [REDACTED] ICC-ACRed-01/16, 15 February 2016 (“Judgment on the Prosecutor’s Appeal on the Freezing of Assets”).

GENERAL INDEX

absconding of suspects, 150, 153–4 absence of Accused from trial, 272, 315–18, 337–42 of case managers, 634 of defence counsels, 629–30 abuse of power/authority, 361, 372 as aggravating circumstance, 348–9, 372–3 abuse of process stay of proceedings for, 296–302 acceptance of jurisdiction by declaration, 87–9 accessory liability, 466–7 accountability for reparations, 379–86, 397 accused admissibility challenges by, 73 appeals on whether to stand trial, 422–3 disclosure obligations of, 275 excusal from trial of, 315–18, 337–42 language proficiency of assessment of, 6–7 and fair trial rights, 287–90 time extensions due to deficiencies in, 632 rights of to be informed of charges, 179, 192 to defence counsel, 57–8 seniority of and decision to prosecute, 7 acquittals appeals against, 556 ad hoc counsels, 19, 65–6 ad hoc tribunals influence on ICC, 471–3

additional submissions in interlocutory appeals, 563–6 adjudication within context obligation, 34 administrative detention, 281 admissibility of cases, 73 appellate review of, 18, 67–8, 71, 490–2, 523–32 criteria for, 71–80, 89–106 procedures for, 80–3, 106–17 standards of review, 558 victim participation in, 410 and State investigations and prosecutions, 55–6, 76 admissibility of evidence victims’ rights to challenge, 442–3 admissibility of filings legal basis requirement for, 622 adversarial hearings right to, 277 Advisory Committee on Legal Texts, 12 age of child soldiers and culpability for enlisting/ conscription of child soldiers, 460–1 aggravating circumstances, 347–9, 355, 360, 361–4, 372–3 Aluoch, Judge, 261–4 amici curiae participation, 598–600, 604–10 ancillary proceedings appellate review of, 540–1 annexes of documents formal requirements for, 623

679

680

general index

apparent bias, 260–1 of judges assessment of, 261–4 appearance at trial. see also absence: of Accused from trial detention of suspects to ensure, 149–55 appellate review/appeals, xxix, 358–61, 487–9, 517–18 of admissibility of cases, 71 admission of additional evidence in, 509–13, 580–3 grounds for, 496–500, 545–60 interlocutory appeals, xxx–xxxii, 489–96, 519–44 jurisdiction in, 487–9, 516, 519, 523–32 proceedings, 560–71, 597–8 oral hearings, 505–7, 568–70 replies and responses in, 571 remedies available in, 507–8, 571–80 of reparation orders, 393, 394, 541–4 victim participation in, 411 victims’ rights to, 457, 495–6 of sentencing decisions, 368–73 standards of review, 500–3, 551–60 suspensive effects in, 513–15, 583–96 victim participation in, 407–11, 443–56 applicable law ICC Appeals Chamber on, 3–6, 25–8 applications for amici curiae participation, 608–10 for arrest warrants, 131, 133 ex parte, 616 for extensions of page limits, 635–9 for extensions of time limits, 625–35 for interim release from detention disclosure rules for, 209, 223–5 appointment of defence counsel, 58 arguments abstract and unsubstantiated, 633 armed forces/group war crimes committed against members of same, 474–7, 483–5

arrest warrants, 131–5, 144–58 admissibility challenges at stage of, 108–10 applications for, 131, 133 prerequisites for, 197 ASP (Assembly of States Parties) referral of non-cooperation with ICC by States to, 125–9 assets of convicted persons and reparations, 381, 395–6 powers to request freezing and forfeiture of, 120–3 asylum claims by detained witnesses, 84–5, 124–5 Batros, Ben, xx Bensouda, Fatou, xxxi burden of proof in admissibility challenges, 81–3, 112–13 of guilt, 273–5 in reparation appeals, 386, 393–4 “but/for” test, 385 case managers absence of, 634 Cassese, Antonio, xxx causation standard for reparations liability, 382–5, 390 certainty about occurrence of crime, 470–1, 479–81 changed circumstances, 170–3 changes to legal characterisation of facts, 10, 312–15, 327–37 timing of, 314–15, 332–6 charges, 179–82, 189–92, see also confirmation of charges hearings amendment of, 183–4, 192–6 in domestic cases and admissibility challenges, 76–8 notification of right to, 267–70, 284–6 recharacterisation of legal facts in, 314

g e n er a l in d e x child soldiers definition of, 86 war crime of enlisting/conscription of, 360, 459–64, 471 children ICC’s prosecution of crimes against, xxv, 360 clarification of charges, 180 of decisions, 611 coaching of witnesses, 304 Code of Professional Conduct for Counsel, 20 and legal representation of victims, 428–9 application of, 59–61 collective reparations, 386–7, 394–5, 397 common plan, 471 and co-perpetration, 470–3, 478, 479 common purpose liability, 473–4, 481 compensation, 376–7 complementarity principle in ICC Statute, 103, 104–5 completion strategies of international criminal tribunals, 7 complexity of cases as exceptional circumstance, 637–8 conditional release from detention of suspects, 141–2, 162–6 on health grounds, 156–7 conditional stay of proceedings, 301–2 conduct assessment of in admissibility challenges, 76–8, 91–5 in sentencing, 367 confidential information/documents defence counsels being privy to and conflicts of interests, 19–21, 60–2 filing of, 600–1, 612–15 knowledge of, 557 to protect victims and witnesses, 209–11 confidentiality agreements by Prosecution

681

and disclosure obligations, 213–14, 239–42 confirmation decisions on charges, 179–82, 191–2 specificity requirements for, 268–9 confirmation of charges hearings, 136, 184–9, 196–204, 205, 225, 226, 238 victim participation in, 421 conflicts of interests of defence counsels, 19–21, 58–65 conscription. see also child soldiers definition of, 461–2 consistency in sentencing, 357 contempt of court. see offences against the administration of justice context obligation to adjudicate within, 34 control over crime and co-perpetration, 465–6 effective/overall control test, 9 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), 134 convicted persons reparation orders directed against, 379–82, 396 cooperation of States with ICC, 118–20 forms of, 120–5 non-compliance with obligations, 125–30 co-perpetration, 189, 464–73, 477–81 corrigenda formal requirements for, 623–4 counsels. see defence counsels culpability, 353 for aggravating circumstances, 363–4 sentence must be reflection of, 369 customary international law and ICC Statute interpretation, 28–9 declaration of acceptance of jurisdiction, 87–9

682

g e n e r a l in d e x

declaration of compliance requirement for filings, 622–3 defence disclosure obligations of, 215–16 information material to and Prosecution disclosure obligations, 208–9, 214–25 permissibility of non-disclosure, 196, 209–13, 225–37 right of accused to strategy of, 295–6 right of the accused to present, 276–9 right to adequate time and facilities for preparation of, 270–1, 284–6 defence counsels, 19–21, 56–71, see also legal representation absence of, 629–30 appointment of, 628 illness of, 629 immunities of, 303 inability to take instructions, 630 payment for, 16 defendants rights of. see also fair trial rights failure to respect, 51–5 defining elements of the case, 76 delays in decisions on extension of time limits, 632 detention of suspects, 132–3, 134–44, 149–55, 156–7, 158–78 administrative, 281 appeals against, 492–3, 532–4 obligation to deduct time spent in, 366–7, 373 review of, 139–41, 168–73 of witnesses appeals against, 493, 528–9, 535–6 asylum claims by, 84–5 transfer to give testimony of, 124–5 deterrent effect of prosecution by ICC, 105–6 disclosure obligations of accused, 275 of Defence, 275 of Prosecution, 205–9, 214–25 exceptions, 196, 209–14, 225–37

disclosure process, 13, 33–4 discontinuance of proceedings interlocutory appeals, 567–8 discretionary powers of accused to present case, 295–6 of Appeals Chamber to accept amici curiae participation, 604–5 to grant conditional release, 141–2, 162–3 to initiate admissibility reviews, 80–1 of Prosecutor to prosecute, 45 to refer non-cooperation, 125–9 of Trial Chamber appellate review of, 553–4 in sentencing, 349–65, 369 to review NCTA motions, 318–19, 343–5 to rule on relevance or admissibility of evidence, 321–2 discrimination as aggravating factor, 362 disqualification of the Prosecutor, 50–6 documents confidential filing of, 600–1, 612–15 filing of, 616–18 annexes, 623 corrigenda, 623–4 formatting requirements, 601–2, 621–3 non-compliance with formal requirements for, 624–5 page limits, 603–4, 625–35 time limits, 603–4, 618–20 domestic cases and ICC arrest warrants, 157–8 pending admissibility challenges at ICC, 117 similarity with ICC cases assessment of, 76–8 double counting rule against, 372–3 duty counsels at ICC, 19, 65

general index ECtHR (European Court of Human Rights) on “no case to answer” procedure, 344 on reasonable suspicion, 145 on rights to disclosure, 223–4 effective control test (ICJ) application of, 9 effective remedy rights to of detained witnesses, 84–5 Elements of Crimes on enlisting/conscription of child soldiers, 460 emergency situations protection of witnesses in, 250–1 equal justice principle, 357 equality of arms principle and disclosure of information, 222 and fair trial rights, 256, 277 errors, appeals on, 571–7 errors of fact, 498–9, 501, 545–6, 547–9, 551–3, 555–6 errors of law, 499, 501–2, 545–6, 549–50, 551–3, 556–7 procedural errors, 497–8, 502–3, 532, 545–7, 551–3, 557 essential contribution to crimes and co-perpetration, 464–5, 468–9, 470, 477–9 ethnicities targeted for genocide, 421 European Convention on Human Rights, 134 evidence. see also burden of proof admission of, 278, 310–12, 320–5, 510 additional evidence in appeals, 509–13, 580–3 evaluation/appraisal of, 138 in appellate reviews, 554 at confirmation of charges hearings, 187–9, 198–9, 201–4 for necessity of arrest, 148–9 rules at confirmation hearings, 186–9, 196, 197, 199–200

683

summaries of as protective measure, 232–3 suspects’ challenging of at arrest warrant stage, 136–7 taking of, 123 victims’ rights to presentation and challenging of, 406–7, 421–2, 433–43 ex parte applications, 616 exceptional circumstances for allowing extensions of page limits, 637–8 excusal from trial of accused, 315–18, 337–42 excusal of judges, 263–4 exonerating information disclosure of, 207–8, 219–20, 226 expeditiousness of trials appeal proceedings, 570 rights to, 256, 276, 282–3, 290–1 expression of “views and concerns” victim participation limited to, 425–6 extensions of page and time limits for filing of documents, 603–4 factual allegations in charges, 190–1 fair trial rights, 5, 39, 253–9, 279–84 and admissibility of cases, 99–101 and appellate review, 538–9 and language proficiency, 287–90 and “no case to answer” motions, 344 right not to be compelled to testify, to confess guilt and to remain silent, 275–6, 286–7 right to adequate time and facilities for defence preparation, 270–1, 284–6 right to be heard, 157, 293 right to be present at trial, 271–3 right to defence strategy, 295–6 right to disclosure, 206–9, 214–25, 275 right to examine witnesses, call witnesses and present a defence, 276–9

684

g e n e r a l in d ex

fair trial rights (cont.) right to expeditious trial, 256, 276, 282–3, 290–1 right to impartiality of hearings, 259–65 right to legal representation, 271–3, 291–2 right to notification of charges, 267–70, 284–6 right to presumption of innocence, 273–5 right to public hearing/public judgment, 265–6 right to reasoned decision, 12, 35–7, 293–5 violations of and recharacterisations of legal facts, 313 stay of proceedings resulting from, 296–302 Fernandez, Judge, 473–4 excusal of, 263–4 filings of confidential documents, 600–1, 612–15 formal requirements for, 616–18 annexes, 623 corrigenda, 623–4 formatting requirements, 621–3 non-compliance with, 624–5 time limits, 618–20 inability to, 628 final appeals, xxxii oral hearings in, 506, 569 victim participation in, 455–6 Friman, Håkan, xxxiii Gallmetzer, Reinhold, xx general principles of law application of, 3–5 genocidal intent establishment of, 146 genocide ethnicities targeted for, 421 good cause demonstration, 633 for extension of time limits, 626, 627–35

good faith applied to ICC Statute interpretation, 2 mistakes made in, 629 gravity of crimes and admissibility of cases, 80, 81, 101–3, 107, 110 and necessity of detention of suspects, 150, 151–2 and sentencing, 353–6, 370 determination of, 353 of non-cooperation of States with ICC assessment of, 128 of offences against the administration of justice, 305–6 Guariglia, Fabricio, xx guilt burden of proof of, 273–5 right not to confess, 275–6 harm assessment of, 389 direct vs. indirect, 401–2, 414–17 emotional, 401 link with charges and victim participation, 405–6 proximate causes of, 383–5 specification/definition of in reparations orders, 388–92, 397–8 heard, right to be, 157 denial of, 293 hearings adversarial right to, 277 public right to, 265–6 hostilities use of children to participate in, 462–4, see also child soldiers human rights. see also international human rights law to effective remedy of detained witnesses, 84–5 humanitarian circumstances release of suspects on grounds of, 178

general index hypothetical interests safeguarding of, 633–4 ICJ (International Court of Justice) effective control test by, 9 ICTY (International Criminal Tribunal for the Former Yugoslavia) on abuse of power, 349 Appeals Chamber, xxx international criminal law development by, xxix jurisprudence ICC influenced by, 2, 7–9, 471–3, 501, 512 on “no case to answer” procedure, 343 illness of defence counsels, 629 immunities of defence counsels, 303 impartiality of hearings/Prosecutor, 45 rights to, 259–65 imprisonment, 347, see also detention impunity Rome Statute’s aim of ending of, 2–3, 23 in dubio pro reo principle Appeals Chamber interpretation of, 31–2 indefinite extensions of time limits, 634 indefinite stay of proceedings, 301–2 indigence establishment of, 381 indirect harm, 401–2, 414–17 individual circumstances, 366 individual criminal responsibility common purpose liability, 473–4, 481 co-perpetration, 189, 464–73, 477–81 for reparations, 379–86, 397 individual reparations, 386–7, 394–5, 397 individualisation of sentencing, 356–8, 371–2 information. see also confidential information/documents

685

disclosure obligations of Prosecution, 205–9 exceptions, 196, 209–14, 225–37 innocence, presumption of failure to respect, 51–5 right to, 273–5 inspection of information material by the Defence, 208–9, 220–3 intention and co-perpetration, 470–3 interests of justice assessment of, 21 interim release from detention, 135–7, 150, 154, 158–62 disclosure rules for applications for, 209, 223–5 on health grounds, 156–7 interlocutory appeals, xxx–xxxii, 489–96, 519–44 discontinuance of, 567–8 oral hearings in, 505–6 proceedings, 563–8 oral hearings, 568 remedies available in, 507–8 standing in, 561–2 victim participation in, 443–55 international crimes seriousness of, 151 international criminal law development ICC’s role in, xxiii–xxv, xxx–xxxii ICTY’s role in, xxix international criminal tribunals influence on ICC Appeals Chamber of, 7–9, 28–30 international human rights law application by ICC Appeals Chamber of, 5, 27, 99–101, 132–3, 161 inadmissibility of evidence obtained in violation of, 278 international humanitarian law development ICC’s role in, xxiv protection against member of same armed force/group, 474–7, 483–5

686

g e n e r a l in d ex

international law, customary and ICC Statute interpretation, 28–9 investigations of ICC, 16–18 absence of victim participation rights in, 404–5, 430–1 obstruction or endangerment by suspects of, 155 on offences against the administration of justice, 304–5 withholding information for protection of, 211–13, 233–9 by States and admissibility challenges, 75–8, 79–80, 81–3, 89–91, 95–8, 107–8 joint criminal enterprise liability, 467 Jones, John R. W. D, xxxiii judges assessment of apparent bias of, 261–4 judgments, public right to, 265–6 judicial functions of ICC Appeals Chamber, 12–14, 32–40 judicial orders binding nature of, 14, 38–9 jurisdiction of ICC Appeals Chamber on, 67–71, 83–7 challenges to, 69, 71, 72 appellate review of, 490–2 at confirmation hearings, 198 of Appeals Chamber, 16, 487–9, 516, 519, 523–32 jurisprudence of ICC Appeals Chamber as reference source, xxiv of ICTY ICC influenced by, 2, 471–3, 501, 512 of international criminal tribunals influence on ICC Appeals Chamber of, 7–9, 28–30 justice, interests of assessment of, 21

Kenya admissibility challenges by, 74 Kourula, Judge, 340–2 language proficiency of accused, 578 and fair trial rights, 287–90 assessment of, 6–7 deficiencies in, 632 language requirements for notification of charges, 269–70 legal basis requirement for admissibility of filings, 622 legal certainty in fair trial rights, 281–2 legal characterisations of facts Trial Chamber’s powers to modify, 312–15, 326–37 legal charges. see charges legal representation. see also defence counsels right of accused to, 272–3, 291–2 of victims, 428–30, 451–2 liability common purpose liability, 473–4, 481 co-perpetration, 189, 464–73, 477–81 joint criminal enterprise, 467 for reparations, 379–86, 397 life sentences, 347–8 material to the preparation of the Defence and disclosure of information, 220–3 matter jurisdiction (ratione materiae), 69 challenges to, 85–7 medical condition of suspects and conditional/interim release possibilities, 156–7 mental element of crimes/mens rea and co-perpetration, 470–3, 479 misconduct before the Court, 306–8 mitigating circumstances, 356, 364–5, 373

g e n e r a l in d ex monitored information Prosecutor’s access to, 49–50 Mugwanya, George, xxi necessity of arrest of suspects, 146–9 of detention of suspects, 149–55 Nehrlich, V., xxx nexus requirement for war crimes, 485–6 no case to answer (NCTA) motions, 318–19, 343–5 non-compliance with ICC Statute by States, 119, 125–30 with Regulations of the Court remedies/sanctions for, 624–5 notification of charges right to, 267–70, 284–6 problems with, 631 numerus clausus system for appealable decisions, 489 objectivity obligation of Prosecutor, 46 offences against the administration of justice, 303–6, 307–8 OPCD (Office of Public Counsel), 66 oral hearings in appeal proceedings, 505–7, 568–70 orality principle, 320 exceptions, 320–5 ordering liability for, 471–3 organisational policy existence of and ICC jurisdiction, 85, 198 overall control test (ICTY) application of, 8 Ozaki, Judge, 263 page limits applications for extensions of, 635–9 breaches of, 621 parties to appeals, 503–5, 543–4, 560–2 payment of legal assistance, 430

687

permanent stay of proceedings, 301–2 personal interests of victims requirement for participation in proceedings, 402–3, 412, 417–23 personal jurisdiction (ratione personae), 70 persons admissibility challenges by, 111–16 in custody transfer to give testimony, 124–5 Pikis, Judge, 277 preliminary issues consideration of, 562–3 Pre-Trial Chamber powers of to review evidence, 201–4 pre-trial phases/proceedings disclosure of witness statements in, 206–7, 216–18 duration of, 185 replies in, 610–11 prevention of crime ICC’s role in, 105–6 procedural errors appeals against, 497–8, 545–7 in admissibility cases, 532 standard of review in, 502–3, 551–3, 557 procedural rights abuse of, 71 proceedings, 404, see also stay of proceedings, victims, participation in proceedings of admissibility participatory rights of suspects in, 111–12 ancillary appellate review of, 540–1 appeals, 560–71, 597–8 replies and responses in, 571, 609–10 conduct of, 309 extension of time limits not allowed to derail, 626 impartiality of, 259–65 non-compliance, 129–30 on reparations, 542–3

688

g e n e r a l in d e x

proceedings (cont.) related competing deadlines and workload resulting from, 630–1 replies in, 610–11 revision additional evidence presented in, 583 stand alone appellate review of, 540–1 time of, 106–7 proportionality principle and fair trial rights, 283–4 in sentencing, 352, 359, 369–70 proprio motu reviews of admissibility, 108–10 prosecution by States and admissibility of cases, 96–8 Prosecution/Prosecutor, xxiii appeals against acquittals by, 556 burden of proof of guilt on, 273–5 disclosure obligations of, 205–9, 214–25 exceptions, 213–14, 225–37 evidence presentation by at confirmation of charges hearings, 186–7 fair trial rights of, 254 impartiality of, 45, 264–5 legal characterisations of facts by, 312 non-compliance with orders of a Chamber, 299–301 powers of investigative, 16–18, 43–56, 304–5 to protect victims and witnesses, 247–8 to request postponement of trial, 194–6 to withdraw or amend charges, 183–4, 193 protection of identities of, 237 protective measures to secure assets for reparations, 395–6 proximate causes of harm, 383–5 public hearings/public judgments right to, 265–6

public holidays extension of time limits due to, 632–3 Pugliatti, Lorenzo, xxxiii questioning records of, 325–6 Raimondo, F., 4, 5 rape. see also sexual and gender-based crimes as war crime, 87 reasonable suspicion/reasonable grounds to believe standard, 134, 145–6, 161–2 for issuance of arrest warrants, 197 reasonableness of extension requests, 638–9 ICTY standard of, 501 reasoned decisions right to, 12, 35–7, 293–5 reconsideration of decisions, 611–12 redactions permissibility of, 209–13, 225–37 Registrar/Registry, 248–9 appellate review of decisions of, 16, 42–3 authority of, 14–16 obligations of, 41, 274 powers of, 40–1 rehabilitation, 377–8 release from detention appeals against decisions on, 492–3, 534–5 and personal interests of victims, 422–3 denial of release, 558–9 conditional, 141–2 on health grounds, 156–7 humanitarian circumstances, 178 interim release, 135–7, 150, 154, 158–62, 209, 223–5 periodic review of ruling on, 166–73 requests for, 143–4 relocation of witnesses, 249–52 remedies on appeal, 507–8, 571–80

g en e r a l in d e x for non-compliance with regulations of the Court, 624–5 reparations, 374–5, 378 compensation, 376–7 individual vs. collective, 386–7, 394–5, 397 orders/decisions on appellate review of, 393, 394, 411, 495–6, 541–4, 594–6 mandatory elements of, 378–93, 396–8 rehabilitation, 377–8 restitution, 376 securing assets for, 381, 395–6 for unfair proceedings, 280 victim participation in proceedings on, 411, 456–8 replies in appeal proceedings, 571 interlocutory appeals, 563–5, 566 to amici curiae submissions, 609–10 in pre-trial and trial proceedings, 610–11 res judicata principle, 37–8 responses in appeal proceedings, 571 restitution, 376 re-trials prohibition of, 80 reviews of detention of suspects, 139–41, 168–73 revision proceedings additional evidence presented in, 583 RoC (Regulations of the Court), 9–12, 30–1 non-compliance with remedies or sanctions for, 624–5 on admission of additional evidence in appeals, 509–13 on appeal procedures, 571 on changes to legal characterisations of facts, 2, 10, 312–15, 327–37 on grounds for appeal, 500, 550–1 on questioning of witnesses and presentation of evidence, 278

689

on replies, 610–11 on representation before the Court by Registrar, 15 on time limits, 598 regulation 20, 265 regulation 24, 15–16, 610–11 regulation 35, 598 regulation 43, 278 regulation 52, 189 regulation 55, 2, 9–11, 30–1, 184, 193, 276, 312–15, 327–37 regulation 55(2), 10 regulation 59, 571 regulation 60, 571 regulation 61, 500, 550–1 regulation 62, 509–13, 580–3 Rome Statute (ICC Statute) article 8(2), 482–3 article 21(3), 296–7 article 52, 9–11 article 54(3)(e), 213–14, 239–42 article 58, 131–5, 144–58 article 60, 131–3, 134–44, 158–78 article 61 (3), 267 article 63(1), 315–18, 337–42 article 64(2), 253 article 64(8), 267 article 67, 257–9, 276 article 67(1), 265–6, 267, 269–73, 275, 276–9, 284–6 article 67(2), 241–2 article 68(1), 245, 247–8, 252 article 68(3), 399–400 article 68(5), 232–3 article 69(2), 311–12 article 69(4), 310–12 article 70, 303–6 article 71, 306–8 article 78(1), 350, 353–6, 370–1 article 81, 487, 489, 503–5, 520 article 82, 489, 503–5, 520–3 article 82(1)(a), 490–2, 523–32 article 82(1)(b), 492–3, 532–6 article 82(1)(d), 494–5, 536–41 article 82(4), 495–6, 541–4 article 87, 125–9 interpretation by Appeals Chamber of, xxvii, xxxi

690

ge n e ral ind ex

Rome Statute (ICC Statute) (cont.) and international human rights law, 132 applicable law, 3–6, 25–8 customary and conventional international law, 28–9 general principles of law, 1–3, 21–5 travaux préparatoires, 6–7, 28 on abuse of process, 296–7 on admissibility of cases, 79–81, 103–5 on admission of evidence, 310–12 on appellate review, 487–97, 503–5, 520–30, 545 on cooperation duties of States, 119–20 on enlisting/conscription of child soldiers, 460 on excusal of accused from presence at trial, 315–18, 337–42 on fair trial rights, 253, 257–9, 265–6, 267, 269–73, 275, 276–9, 284–6 on misconduct before the Court, 306–8 on offences against the administration of justice, 303–6 on protection of victims and witnesses, 245, 247–8, 252 on reparations, 375 on sentencing, 350, 370–1 on victim participation, 399–400, 426–7, 428 on war crimes, 482–3 routine functioning of the Court, 11–12 Rules of Procedure and Evidence, 9 on admissibility challenges, 113–15 on admission of evidence, 321, 324–5 on amici curiae participation, 598 on appeals, 545, 569–70 on confirmation hearings, 225 on information disclosure, 206–7 on sentencing, 350–1, 353–6, 370–1 on victim definition, 401–2, 413–17 on victim participation, 427 rule 64(1), 324–5 rule 68, 321 rule 76, 216–18, 225

rule 77, 208–9, 220–3, 240 rule 81(2), 211–13, 233–9 rule 81(4), 209–11, 225–33 rule 85, 401–2, 413–17 rule 93, 427 rule 103, 598 rules 111 and 112, 325–6 rule 143, 427–8 rule 145, 350–1, 353–6, 370–1 rules 154 and 155, 569–70 same case investigated domestically assessment of, 91–5 same person/same conduct assessment of, 91–5 self-referrals, 68, 69 sentences/sentencing, 346–9 appellate review of, 368–9 discretionary power of judges in, 349–65 sexual and gender-based crimes prosecution of, xxv, 389–92, 482 protection of members of armed forces/groups against, 474–7 victims of, 492 sexual slavery as war crime, 87 silent right of accused to remain, 275–6, 286–7 social alarm criterion, 102 Song, Judge, 355, 407–8, 460 stand alone proceedings appellate review of, 540–1 standards of review, 551 for appellate review, 551–60 of admissibility challenges, 558 of errors of fact, 501 of errors of law, 501–2 of procedural errors, 502–3, 551–3, 557 standing to appeal decisions, 503–5 interlocutory appeals, 561–2 on release, 493 to request disqualification of the Prosecutor, 50

ge n e ral i nde x States admissibility challenges by, 111–16 burden of proof, 81–3, 112–13 cooperation with ICC, 118–20 forms of, 120–5 non-compliance with obligations of, 125–30 investigations/prosecutions by and admissibility challenges, 74–8, 79–80, 81–3, 89–91, 95–8, 107–8 unwillingness or inability to, 73–4, 78–9, 98–101 statutory sentencing factors, 350–2 stay of proceedings, 515 and detention of suspects, 143, 176–8 appeals on, 6, 39, 559–60, 579, 593–4 and personal interests of victims, 422–3 for denial of fairness or abuse of process, 296–302 substantial likelihood test to establish liability, 471–3 substantially the same conduct test, 91–5 substantive law Appeals Chamber on, 459 sui generis motions time limits of, 619–20 summaries of evidence at confirmation of charges hearings, 186–7, 200–1 permissibility of, 237–9 as protective measure, 232–3 summary decisions, 570 summons to appear, 131–5, 158 suspects absconding of, 150, 153–4 admissibility challenges by, 73, 111–12 arrest of, 146–9 detention of, 132–3, 134–44, 149–55, 156–7, 158–78 administrative, 281 appeals against decisions on, 492–3, 532–6 obstruction or endangerment of investigations by, 155

691

rights of. see fair trial rights suspensive effects in appeals, 513–15, 583–96 technical problems extensions of time applications due to, 629 temporal jurisdiction (ratione temporis), 70, 83 territorial jurisdiction (ratione loci), 70 testimony by video-conference, 124 right not to be compelled to give, 275–6 transfer of persons in custody to give, 124–5 TFV (Trust Fund for Victims), 379, 380 tasks of, 388 thresholds for confirmation of charges, 184, 196, 238 time limits applications for extensions of, 598, 625–35 for filing documents, 603–4, 618–20 for victim participation applications, 448 passage of not constituting a changed circumstance, 140 period between first appearance and confirmation of charges, 185 of the proceedings, 106–7 spent in detention obligation to deduct upon sentencing, 366–7, 373 timing of admissibility challenges, 115–16 of applications for victims participation, 423–4 of changes to legal characterisation of facts, 314–15, 332–6 travaux préparatoires and ICC Statute interpretation, 6–7, 28

692

g e n e r a l in d e x

Trial Chamber admission of evidence by, 310–12 discretionary powers of in sentencing, 349–65, 369 to review NCTA motions, 318–19, 343–5 to rule on relevance or admissibility of evidence, 321–2 powers of to modify legal characterisations of facts, 312–15, 326–37 review of confidentiality agreements by, 241–2 review of reparation appeals by, 394 sentencing decisions of, 369–73 trials, 309, 319 postponement of powers of Prosecutor to request, 194–6 presence of accused at excusal from, 315–18, 337–42 right to, 271–3 replies in, 610–11 victim participation in, 407, 431–43 unfair proceedings remedy for, 280 United Nations Security Council (UNSC) referral of non-cooperation with ICC by States to, 125–9 unreasonable detention protection against, 142–3, 174–6 unwillingness or inability of States to investigate/prosecute and admissibility challenges, 73–4, 78–9, 98–101 Ušacka, Judge on absence of accused from trial, 340–2 on Kenya admissibility appeals, 114–15 recusal request on, 264 victims, 401–2, 413–17 eligibility for reparations of, 398 evidentiary rights of, 406–7, 421–2, 433–43

legal representation of, 428–30, 451–2 of sexual and gender-based crimes, 492 participation in proceedings of, xxiv, 399–405, 411–30 at admissibility challenges, 117 and amici curiae participation, 606 at appeals, 407–11, 443–56 applications for, 411–13, 423–4 at confirmation hearings, 421 in investigations, 430–1 reparations proceedings, 456–8 at trials, 407, 431–43 protection of, 243–7 confidentiality of information for, 209–11 Prosecutor’s powers, 247–8 reparation appeals by, 393, 543–4 and burden of proof, 386 video-conferences testimony by, 124 Vienna Convention on the Law of Treaties (VCLT) and Rome Statute interpretation, 1–3, 6, 21–2 virtual certainty about occurrence of crime, 470–1, 479–81 voluntary surrender to Court, 152 VWU (Victims and Witnesses Unit), 245–6 protection of identities of staff of, 237 responsibilities of, 247, 248–9 war crimes, 87 enlisting/conscription of child soldiers, 360, 459–64 gravity of, 102 ICC Statute on, 482–3 against members of same armed forces or group, 474–7, 483–5 rape, 87 witnesses coaching of, 304 credibility of pre-trial evaluation of, 188

g e n e r a l in d ex detention of appeals against, 493, 528–9, 535–6 asylum claims by, 84–5 transfer in order to give testimony by, 124–5 ICC’s powers to require attendance of, 123–4 influencing of, 155 protection of, 243–7

693

confidentiality of information for, 209–11, 236–7 Prosecutor’s powers, 247–8 right of the accused to examine and call, 276–9 statements by introduction of, 186 pre-trial disclosure rules on, 206–7, 216–18, 225–33