The Annotated Digest of the International Criminal Court

The Annotated Digest of the International Criminal Court

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

The Annotated Digest of the International Criminal Court Volume 1

2004-2006

CYRIL LAUCCI

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

Printed on acid-free paper.

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

CONTENTS

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

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

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

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

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

FOREWORD BY HONORABLE JUDGE CLAUDE JORDA, PRESIDING JUDGE OF PRE-TRIAL CHAMBER I

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

Juge Claude Jorda La Haye

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

x

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

x

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

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

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

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

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

PRE-TRIAL CHAMBERS x

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

S1-PT-1

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

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

1

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

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

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a) L’État sur le territoire duquel le comportement en cause a eu lieu ou […]. b) l’Etat dont la personne accusée du crime est un ressortissant. 92. La Cour prend note des lieux où les crimes décrits par les Demandeurs auraient été commis : […] 93. La Chambre constate qu’au regard des déclarations des Demandeurs, les crimes ont été commis sur le territoire de la RDC. Dans la mesure où les critères de l’article 12-2 du Statut sont alternatifs, la Chambre considère que la Cour peut exercer sa compétence. Les crimes ayant été commis sur le territoire d’un Etat Partie, la détermination de la nationalité des personnes éventuellement accusées n’est pas nécessaire. La Chambre considère ainsi que la troisième condition est remplie. ————————— (70) Cf. Lettre de renvoi du 3 mars 2004, « Requête du Procureur aux fins de la prise de mesures en vertu de l’article 56 », 25 avril 2005, ICC-01/04-17-Conf., Annexe 1. (71)

Ibid.

(72)

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

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

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Statute; and the crime must meet one of the two alternative conditions described in article 12 of the Statute. 86. With regard to the first condition, crimes falling within the jurisdiction of the Court are set out in detail in articles 6, 7 and 8 of the Statute. It will be for the Chamber to analyse the statements of each Applicant in the light of these articles and to determine whether the crimes described can fall within the jurisdiction of the Court. 87. With regard to the second criterion, article 11 of the Statute stipulates that: 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3. 88. The Chamber notes that the Statute entered into force for the RDC on 1 July 2002, in conformity with article 126 (1) of the Statute, the RDC having ratified the Statute on 11 April 2002. 89. In order to determine whether the crimes alleged by the Applicants were committed after 1 July 2002, the Court takes note of the dates on which the crimes alleged by the Applicants were committed: […] 90. The Chamber notes from a reading of the Applicants’ statements that the crimes were committed after 1 July 2002; the second condition has therefore been met. 91. With regard to the third condition, article 12 (2) stipulates that: In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or […]; (b) The State of which the person accused of the crime is a national. 92. The Court takes note of the locations in which the crimes described by the Applicants were allegedly committed: […] 93. The Chamber notes that, in the light of the Applicants’ statements, the crimes were committed on the territory of the DRC. Given that the criteria laid down in article 12 (2) of the Statute are alternative, the Chamber finds that the Court may exercise its jurisdiction. As the crimes were committed on the territory of a State Party, it is unnecessary to determine the nationality of the persons who may be charged. The Chamber therefore finds that the third condition has been met. ————————— (70) Cf. letter of referral dated 3 March 2004. “Prosecutor’s Request for Measures under Article 56”, 25 April 2005, ICC-01/04-17-Conf., Annex 1. (71)

Ibid.

(72)

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

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT (73)

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

(74)

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

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

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

S2-PT-1

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

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

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

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

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

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S4-A-1

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

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

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

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

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

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

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

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(g)

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

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

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(ii) (iii)

(iv)

(v)

(vi)

(vii)

(viii)

(ix)

(x)

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

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

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(c)

11

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

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(iii) (iv)

(d)

(e)

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

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

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

PRE-TRIAL CHAMBERS x

Article 9: Elements of Crimes – Contextual and Specific Elements

S9-PT-1

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

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

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

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

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

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

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

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(b)

(c)

15

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

PRE-TRIAL CHAMBERS x

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

S13-PT-1

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

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

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

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

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

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

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

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

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

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

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(c)

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

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

S17-PT-1

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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(c)

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

PRE-TRIAL CHAMBERS x

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

S19-PT-1

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

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

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

x

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

S19-PT-2

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

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

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

APPEALS CHAMBER x

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

S19-A-1

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

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

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

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

PRE-TRIAL CHAMBERS x

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

S21-PT-1

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

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

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x

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

S21-PT-2

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

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

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

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

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

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

x

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

S21-PT-3

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

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

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

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

x

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

S21-PT-4

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

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

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

4

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

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x

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

S21-PT-5

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

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

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

S21-PT-6

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

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

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

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

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

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

S21-PT-7

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

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

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

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

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

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

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APPEALS CHAMBER x

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

S21-A-1

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

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

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

S21-A-2

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

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

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

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

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x

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

S21-A-3

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

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

x

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

S21-A-4

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

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

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

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

S21-A-5

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

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

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

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

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2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted. 3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

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

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

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

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(f)

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

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

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

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

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

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

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

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

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(c)

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

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

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

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

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

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

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

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

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

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

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

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

S38-PT-1

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

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

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PRESIDENCY x

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

S38-P-1

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

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

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

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

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

PRE-TRIAL CHAMBERS x

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

S39-PT-1

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

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

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

S39-PT-2

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

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

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

S39-PT-3

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

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

——— Official Translation Not Available ———

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

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

S39-PT-4

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

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

——— Official Translation Not Available ——— x

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

S39-PT-5

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

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

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

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

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

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

S41-PT-1

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

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

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

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

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

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

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

S41-PT-2

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

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

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PRESIDENCY x

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

S41-P-1

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

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

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

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

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

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

S43-PT-1

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

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

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

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

S43-PT-2

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

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

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

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

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

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

S43-PT-3

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

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

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

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

S44-PT-1

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

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

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

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

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

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

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

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

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(41)

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

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

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

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(c)

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

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

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

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

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

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

S50-PT-1

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

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

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

——— Official Translation Not Available ——— x

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

S50-PT-2

10

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

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

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

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

S50-PT-3

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

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

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

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

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

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

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

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

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

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

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

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

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(b)

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

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

S53-PT-1

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

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

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

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

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

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

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

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

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

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

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(45)

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

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

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

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

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

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

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(47)

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

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

S54-PT-2

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

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

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

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

S54-PT-3

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

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

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

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

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99

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

S54-PT-4

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

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

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

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

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

S54-PT-5

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

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

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

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

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

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

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

S56-PT-1

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

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

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

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

S56-PT-2

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

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

12

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

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

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

S56-PT-3

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

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

13

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

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

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

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

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(b)

(c)

(d)

(e)

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

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

S57-PT-1

15

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

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

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

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

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

S57-PT-2

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

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

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

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

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

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

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

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PRE-TRIAL CHAMBERS x

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

S58-PT-1

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

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

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

S58-PT-2

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

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

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

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

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

S58-PT-3

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

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

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

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

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

S58-PT-4

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

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

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

S58-PT-5

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

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

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

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

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

S58-PT-6

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

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

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

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

S58-PT-7

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

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

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

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

S58-PT-8

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

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

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

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

x

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

S58-PT-9

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

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

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

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

S58-PT-10

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

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

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

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

S58-PT-11

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

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

S58-PT-12

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

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

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

19

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

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

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

S58-PT-13

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

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

20

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

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

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

S58-PT-14

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

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

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

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

x

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

S58-PT-15

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

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

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

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

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

S58-PT-16

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

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

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

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

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

x

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

S58-PT-17

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

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

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

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

S58-PT-18

135

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

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

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

x

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

S58-PT-19

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

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

x

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

S58-PT-20

22

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

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

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

x

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

S58-PT-21

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

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

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

x

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

S58-PT-22

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

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of the Warrants of Arrest (PT), 13 October 2005, paras. 14-27: 14. NOTING that the Prosecutor affirmed in the Application for unsealing that the Office of the Prosecutor (the “OTP”) and the WVU had nearly completed implementation of the overall plan for the security of witnesses and victims in the field; and that, in the opinion of the Prosecutor, unsealing of the Warrants would become “a feasible and powerful means of garnering international attention and support for arrest efforts, thus further ensuring the protection of victims, potential witnesses and their families”; 15. NOTING the additional information received from the Prosecutor, in particular at the status conferences held on the 3r4 and the 6th day of October 2005, on measures implemented for the protection of victims and witnesses; and the Prosecutor's continuing assurance that unsealing of the Warrants would not affect the security of victims and witnesses in light of the measures implemented; 16. NOTING further the Prosecutor's submission that keeping the Warrants under seal is impairing the arrest efforts; 17. NOTING also the statements made by the VWU, in particular at the status conferences held on the 3rd and the 6th day of October 2005, as to the implementation of the overall plan for the security of witnesses and victims in the field and the trials and testing of the protective measures put in place; and its assessment that unsealing of the Warrants would have no significant impact on the overall plan for protective measures; 18. NOTING the statements made by the Prosecutor at the status conference of the 6th day of October regarding the publicity given to the issuance of arrest warrants for top leaders of the LRA; 19. NOTING the detailed attention required to ensure that all relevant documents of the proceedings are given the correct and appropriate treatment following the unsealing of the Warrants and other related documents; 20. BEING satisfied on the basis of the information provided by the OTP and the VWU that the overall plan in respect of the situation in Uganda for the security of witnesses and victims in the field has been completed and implemented; and that by the assessment and advice of the Prosecutor and the VWU this overall plan provides the necessary and adequate protective measures for all concerned at this stage; 21. BEING satisfied that unsealing the Warrants and other decisions, hearings and documents in accordance with this Decision would have no significant impact on the implementation of the overall plan for the security of victims and witnesses; 22. BEING concerned, however, about me unpredictability of the security environment in Uganda and the necessity to ensure to the fullest extent possible the safety and protection of victims and witnesses,) in particular through the redaction of relevant documents; 23. BEING convinced of the necessity to redact the warrants of arrest in the manner as attached to this Decision, and noting the Chamber's power to make such redaction pursuant to article 57, paragraph 3 (
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24. NOTING the Prosecutor's statements at the status conference held on the 3rd day of October 2005 that the OTP does not "plan [...] to continue investigating the past crimes", but intends to investigate future crimes of the LRA, including allegations of harbouring and supporting the LRA; and that OTP investigations and assessments of allegations made against the military forces of the Government of Uganda are ongoing; 25. RECALLING article 54, paragraph 1 (a), of the Statute, pursuant to which the Prosecutor shall "[i]n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so investigate incriminating and exonerating circumstances equally"; 26. NOTING article 53, paragraphs 2 and 3 of the Statute and rule 106 of the Rules; HAVING REGARD THERETO AND FOR THESE REASONS; THE CHAMBER HEREBY: 27. DECIDES to unseal the Warrant of Arrest for Joseph KONY, issued by the Chamber on the 8th day of July 2005, as amended on the 27th day of September 2005, and the Warrants of Arrest for Vincent OTTI, Raska LUKWIYA, Okot ODHIAMBO and Dominic ONGWEN, issued by the Chamber on the 8th day of July 2005, as well as the annexes to these warrants; and orders that the Warrants be made public in redacted form in the manner as attached to this Decision;

Article 59 – Arrest Proceedings in the Custodial State 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person's rights have been respected. 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such

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recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

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Article 59: Procedure upon arrest – Right to be informed at the time of arrest and in a language the accused understands of his rights under the Statute and Rules – Nature of the information

S59-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005, para. 37:23

37. ORDERS that the said RASKA LUKWIYA be advised at the time of his arrest, and in a language he fully understands and speaks, of his rights as set forth in the following provisions of the Statute and the Rules of Procedure and Evidence, the texts of which are annexed to the Warrant: - article 19, paragraph 2 (challenges to the jurisdiction of the Court or the admissibility of a case); - article 55, paragraph 2 (rights of persons during an investigation); - article 57 (functions and powers of the Pre-Trial Chamber); - article 59 (arrest proceedings in the custodial State); - article 60 (initial proceedings before the Court); - article 61 (confirmation of the charges before trial); - article 67 (rights of the accused); - rule 21 (assignment of legal assistance); - rule 112 (recording of questioning in particular cases); 23

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005, para. 39; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005, para. 37; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005, para. 49; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005, para. 49.

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- rule 117 (detention in the custodial State); - rule 118 (pre-trial detention at the seat of the Court); - rule 119 (conditional release); - rule 120 (instruments of restraint); - rule 121 (proceedings before the confirmation hearing); - rule 122 (proceedings at the confirmation hearing in the presence of the person charged); - rule 123 (measures to ensure the presence of the person concerned at the confirmation hearing); - rule 124 (waiver of the right to be present at the confirmation hearing); - rule 187 (translation of documents accompanying request for surrender);

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Article 59(2): “In accordance with the law of the State” – Jurisdiction of the Court over proceedings in the State of arrest – Limits: concerted action between the Court and national authorities or abuse of process – Definition of abuse of process: torture or serious mistreatment by national authorities of the custodial State – Potential consequences on the jurisdiction of the Court

S59-PT-2

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

CONSIDERING that in the Chamber's view, the words "in accordance with the law of the State" means that it is for national authorities to have primary jurisdiction for interpreting and applying national law(19); CONSIDERING however, that this does not prevent the Chamber from retaining a degree of jurisdiction over how the national authorities interpret and apply national law when such an interpretation and application relates to matters which, like those here, are referred directly back to that national law by the Statute (20); CONSIDERING that, pursuant to article 59(2) of the Statute, the competent DRC authorities were obliged to determine whether, in the execution of the Court's Cooperation Request, Thomas Lubanga Dyilo's rights were respected and the arrest was carried out with due regard for the proper process; CONSIDERING nevertheless that article 59 (2) of the Statute does not impose any obligation on the competent DRC authorities to review the lawfulness of the arrest and detention of Thomas Lubanga Dyilo prior to 14 March 2006 insofar as that detention was related solely to national proceedings in the DRC;

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CONSIDERING that according to the Report of the Registrar, signed by Thomas Lubanga Dyilo, the Registrar transmitted to the Procureur Général de la République the Court's Cooperation Request on 14 March 2006; (21) CONSIDERING that, prior to the transmission of the Court's Cooperation Request, Thomas Lubanga Dyilo was detained in relation to proceedings before the Congolese Military Courts; (22) and that therefore, according to articles 42 to 47 juncto 207 of the Congolese Code Judiciaire Militaire, the competent Congolese organ pursuant to article 59 (2) of the Statute was the Auditeur Général des Forces Armées de la République Démocratique du Congo or his representative before the Congolese Military Courts (Auditeur Militaire); CONSIDERING that on 14 March 2006 the Procureur Général de la République transmitted to the Auditeur Général des Forces Armées de la République Démocratique du Congo the Court's Cooperation Request for execution; (23) CONSIDERING that on 14 March 2006, execution of the Court's Cooperation Request by the DRC authorities was set into motion and, as a result, on 16 March 2006, Thomas Lubanga Dyilo was taken from the Centre Pénitentiaire et de Rééducation de Kinshasa and brought before the Premier Avocat Général des Forces Armées de la République Démocratique du Congo acting as the representative and under the instructions of the Auditeur Général des Forces Armées de la République Démocratique du Congo; (24) […] CONSIDERING therefore that in executing the Court's Cooperation Request, Thomas Luganga Dyilo was promptly brought before the Congolese national authority which, because he was being detained at that time in relation to national proceedings before the Congolese Military Courts, was competent under Congolese law to conduct the proceedings in the custodial State provided for in article 59 (2) of the Statute; and that, in the view of the Chamber, contrary to the Defence's claim, no material breach of article 59 (2) of the Statute can be found in the procedure followed by the competent Congolese national authorities during the execution of the Court's Cooperation Request; […] CONSIDERING that article 21 (3) of the Statute states that the "application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights"; and that, according to those standards, any violations of Thomas Lubanga Dyilo's rights in relation to his arrest and detention prior to 14 March 2006 will be examined by the Court only once it has been established that there has been concerted action between the Court and the DRC authorities (30); CONSIDERING however that whenever there is no concerted action between the Court and the authorities of the custodial State, the abuse of process doctrine constitutes an additional guarantee of the rights of the accused; (31) and that, to date, the application of this doctrine, which would require that the Court decline to exercise its jurisdiction in a particular case, (32) has been confined to instances of torture or serious mistreatment by national authorities of the custodial State in some way related to the process of arrest and transfer of the person to the relevant international criminal tribunal; (33)

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CONSIDERING, however, that in the course of the present proceedings under article 19 of the Statute, no issues has arisen to any alleged act of torture against or serious mistreatment of Thomas Lubanga Dyilo by the DRC national authorities prior to the transmission of the Court's Cooperation Request on 14 March 2006 to the said authorities; and that therefore the issue before the Chamber is to determine whether there was concerted action between the Court and the DRC authorities in connection with the arrest and detention of Thomas Lubanga Dyilo prior to 14 March 2006 (34); CONSIDERING that there is no evidence indicating that the arrest and detention of Thomas Lubanga Dyilo prior to the 14 March 2006 was the result of any concerted action between the Court and the DRC authorities; and that the Court will therefore not examine the lawfulness of the arrest and detention of Thomas Lubanga Dyilo by the DRC authorities prior to 14 March 2006; CONSIDERING therefore that no material breach of article 59 (2) of the Statute can be found in the procedure followed by the competent Congolese national authorities during the execution of the Court's Cooperation Request, and that there is no evidence indicating that the arrest and detention of Thomas Lubanga Dyilo prior to the 14 March 2006 was the result of any concerted action between the Court and the DRC authorities; CONSIDERING therefore that the Defence challenge to jurisdiction is unfounded; ————————— (19) ECHR, Klaus Altmann v/ France, Decision of 4 July 1984 on the admissibility of the application, application N°10689,1984, p.234. (20) ECHR, Winterwerp v/, The Netherlands, 24 October 1979, para. 46. (21) Report of the Registrar, annex 2, p. 1, and annex 5.5, p. 3. (22) Report of the Registrar, annex 5.5, p.l. (23) Report of the Registrar, annex 5.5, p. 3 and annex 5.6, p. 2. (24) Report of the Registrar, annex 5.5, p. 1. (30) See Stocké v Germany before the European Court of Human Rights, 11755/85 [1991] ECHR 25 (19 March 1991), para 51-54; ECHR, Klaus Altmann vs. France, Decision of 4 July 1984 on the admissibility of the application, application No. 10689, 1984, p. 234. Moreover, the International Criminal Tribunal for Rwanda has repeatedly stated that the Tribunal is not responsible for the illegal arrest and detention of the accused in the custodial State if the arrest and detention was not carried out at the behest of the Tribunal. See in particular the Semanza Case Appeals Chamber, 31 May 2000.,Case No. ICTR-97-20-A, para.79, where a distinction is made between the time Semanza was held at the request of the Rwandan authorities and the time he was held at the request of the ICTR. See also the Rwamakuba Case, Trial Chamber II, 12 December 2000, "Decision on the Defence Motion Concerning the Illegal Arrest and Illegal Detention of the Accused", Case No. ICTR-98-44-T, para.30 stating that, "[t]he Trial Chamber does therefore not consider that, from 2 August 1995 until 22 December 1995, when the Prosecutor notified the Namibian authorities of their knowledge that the accused was in their custody, the Tribunal was responsible for the accused's detention. The Tribunal having no jurisdiction over the conditions of that period of detention, any challenges in this respect are to be brought before the Namibian jurisdiction". (31) See Prosecutor v. Dragan Nikolic Case , "Decision on Interlocutory Appeal Concerning Legality of Arrest", 5 June 2003, Case No. IT-94-2-AR73, para. 30. See also Juvenal Kajelijeli vs. The Prosecutor, Case No. ICTR-98-44A-A, para. 206; and Prosecutor .vs. Slavko Dokmanovic, "Decision on the Motion for Release by the Accused", 22 October 1997, Case No IT-95-13a-PT, paras. 70-75.

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(32)

See Jean Bosco Barayagwisa vs The Prosecutor, Appeals Chamber, 3 November 1999, Case No. ICTR-97-19-AR72, paras. 74 - 77. See also Juvenal Kajelijeli vs. The Prosecutor, 23 May 2005, Case No. ICTR-98-44AA, para 206. (33) See Prosecutor vs. Dragan Nikolic Case , "Decision on Interlocutory Appeal Concerning Legality of Arrest", 5 June 2003, Case No. IT-94-2-AR73, para. 30. See also Juvenal Kajelijeli vs. The Prosecutor, Case No. ICTR-98-44A-A, para. 206; and Prosecutor vs. Slavko Dokmanovic, "Decision on the Motion for Release by the Accused", 22 October 1997, Case No IT-95-13a-PT, paras. 70-75. (34) ECHR, Stocké v/ Federal Republic of Germany, para 51-54; ECHR, Klaus Altmann v/ France, Decision of 4 July 1984 on the admissibility of the application, application N° 10689, 1984, p. 234.

APPEALS CHAMBER x

Article 59(2): “In accordance with the law of the State” – The Court has no jurisdiction to review proceedings before national courts – The task of the Court is to verify that the warrant of arrest is executed and that the rights of the indictee are respected

S59-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006, paras. 41-42:

41. The other complaint is that the Pre-Trial Chamber applied the wrong standard in reviewing the efficacy of the process leading to the arrest and surrender of the suspect, allegedly ignoring or paying inadequate attention to the supervisory role of the Pre-Trial Chamber under article 59 (2) of the Statute. (88) The appellant's argument is that the Pre-Trial Chamber is charged under this article to review the correctness of the decision of the Congolese authority to sanction the enforcement of the warrant of arrest. No such role is cast on the Court. 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, (89) 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. Article 99 (1) of the Statute lays down that the enforcement of the warrant must follow the process laid down by the law of the requested state. In this case, the Pre-Trial Chamber determined that the process followed accorded with Congolese law. There is nothing to contradict this statement in light of the fact that the suspect was in custody for crimes coming within the purview of the military authorities. The suspect was afforded an opportunity to voice his views before the judicial authority that examined the request for his surrender. Moreover, there is nothing to indicate that

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his arrest or appearance before the Congolese authority involved or entailed any violation of his rights. 42. The gravamen of the appellant's complaint, where the essence of the appellant's case lies, is that the Pre-Trial Chamber ignored breaches of his human rights prior to his appearance before the Court and the directions for the enforcement of the warrant of arrest.(90) Such violations should, in his submission, not be extricated from the legitimacy of the processes leading to his arrest and appearance before the Court on account of the part played by the prosecuting authority in their effectuation.(91) The Pre-Trial Chamber concluded in light of the material before it that there was no evidence to lend credence to the allegations of the appellant; a finding denuding his complaints respecting "concerted action" of any substance. (92) Nothing said before the Appeals Chamber reveals an error in this finding which cannot but be sustained. Contrary to the submission of the appellant, the material before the Pre-Trial Chamber did not justify any finding respecting the relationship between the Prosecutor and the DRC other than the one made. The process of bringing the appellant to justice has not been shown to be flawed in any way, nor are the findings of the Pre-Trial Chamber in this connection erroneous. Despite complaints of insufficient information about communications between the Prosecutor and the DRC, no steps were taken before the Pre-Trial Chamber for the elicitation of further information on the subject. The material before the Pre-Trial Chamber respecting communications between the Prosecutor and the DRC did not reveal any impropriety on the part of the former nor did the appellant point to any material casting doubt on the correctness of the Pre-Trial Chamber's appreciation of the matter. 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. It is worth reminding that the crimes for which Mr. Lubanga Dyilo was detained by the Congolese authority were separate and distinct from those which led to the issuance of the warrant for his arrest. ————————— (88) See third ground of appeal, Defence document, paragraphs 36 to 44. (89) See Prosecutor's document, paragraph 47. (90) See Defence document, first and fourth ground of appeal. (91) See Defence document, first and second ground of appeal. (92) See impugned decision, pages 10 and 11.

Article 60 – Initial Proceedings Before the Court 1. Upon 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 rights under this Statute, including the right to apply for interim release pending trial. 2. A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.

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3. The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person. Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require. 4. The 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. 5. If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.

PRE-TRIAL CHAMBERS x

Article 60(2): Initial application for interim release – Applicable criteria: fulfilment of criteria set forth in Article 58(1) for the issuance of a warrant of arrest (denied)

S60-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.5-7:

ATTENDU que l'article 60-2 du Statut dispose que « [l]a personne visée par un mandat d'arrêt peut demander sa mise en liberté provisoire en attendant d'être jugée. Si la Chambre préliminaire est convaincue que les conditions énoncées à l'article 58, paragraphe 1, sont réalisées, la personne est maintenue en détention. Sinon, la Chambre préliminaire la met en liberté, avec ou sans conditions », ATTENDU qu'aux termes de l'article 21-3 du Statut, l'application et l'interprétation du droit prévu à cet article doivent être compatibles avec les droits de l'homme internationalement reconnus, ATTENDU que les conditions énoncées à l'article 58-1 du Statut demeurent réalisées, dans la mesure où il existe toujours des motifs raisonnables de croire que Thomas Lubanga Dyilo a commis des crimes relevant de la compétence de la Cour et le maintien en détention de cette personne demeure nécessaire pour garantir que la personne comparaîtra ou qu'elle ne fera pas obstacle à l'enquête ou à la procédure devant la Cour, ou n'en compromettra le déroulement, ATTENDU en effet que la gravité des crimes imputés à Thomas Lubanga Dyilo entraîne un risque important qu'il souhaite se soustraire à la compétence de la Cour(10); que les principaux liens de Thomas Lubanga Dyilo demeurent en République Démocratique du Congo(11) ; et qu'il y a également des motifs raisonnables de croire que M. Thomas Lubanga Dyilo est Président de l'UPC depuis sa fondation le 15 septembre 2000, qu'au début ou à la mi-septembre 2002, M. Thomas Lubanga Dyilo a fondé les FPLC en tant qu'aile militaire de l'UPC et qu'il en est aussitôt devenu le commandant en chef, ce qui lui aurait permis dès lors d'établir de nombreux contacts sur les plans national et international qui lui permettrait aisément de se soustraire à la compétence de la Cour,

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ATTENDU également que Thomas Lubanga Dyilo connaît à présent l'identité de certains témoins; que l'Accusation mentionne que si Thomas Lubanga Dyilo était libéré et ainsi en mesure de communiquer avec l'extérieur en dehors de toute surveillance, il existerait des risques qu'il exerce directement ou indirectement avec l'aide d'autres personnes, des pressions sur les témoins, faisant ainsi obstacle ou compromettant le déroulement de la procédure devant la Cour (12) ; et qu'il apparaît que certains témoins ayant comparu lors des procès de membres de rang moyen ou élevé de l'UPC qui se sont tenus devant le Tribunal de grande instance de Bunia ont été tués ou menacés(13), […] PAR CES MOTIFS […] DECIDONS de rejeter la demande de mise en liberté provisoire de Thomas Lubanga Dyilo. ————————— (10) En ce sens, voir par exemple : Cour européenne des droits de l'homme, Affaire Tomasi c. France, Arrêt du 27 août 1992, requête n° 12850/87, par. 89 ; Cour européenne des droits de l'homme, Affaire Mansur c Turquie, Arrêt du 8 juin 1995, requête n° 16026/90, par. 52 (11) En ce sens, voir par exemple : Cour européenne des droits de l'homme, Affaire Van der Tang c. Espagne, Arrêt du 13 juillet 1995, requête n°19382/92, par. 60 ou Cour européenne des droits de l'homme, Affaire W c. Suisse, Arrêt du 26 janvier 1993, requête n° 14379/88, par. 33. (12) Réponse du Procureur à la demande de mise en liberté provisoire, par. 13. (13) Décision relative au mandat d'arrêt, par. 101.

——— Official Translation ——— CONSIDERING that article 60(2) of the Statute provides that “[a] person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.”; CONSIDERING that under article 21(3) of the Statute, the application and interpretation of law pursuant to this article must be consistent with internationally recognised human rights; CONSIDERING that the conditions set forth in article 58(1) of the Statute continue to be fulfilled in so far as there are still reasonable grounds to believe that Thomas Lubanga Dyilo hs committed crimes within the jurisdiction of the Court and that his detention remains necessary to ensure his appearance at tral or does not obstruct or endanger the investigation or the court proceedings; CONSIDERING that, because of the gravity of the crimes with which Thomas Lubanga Dyilo is charged, there is a substantial risk that he may wish to abscond from the jurisdiction of the Court;(10) that Thomas Lubanga Dyilo’s main ties are in the Democratic Republic of the Congo;(11) and that there are also reasonable grounds to believe that Mr Thomas Lubanga Dyilo has been the President of the UPC since it was founded on 15 September 2000, that at the beginning of or in mid-September 2002, Mr Thomas Lubanga Dyilo established the FPLC as the military wing of the

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UPC and that he immediately became its commander-in-chief which, in the circumstances, allowed him to establish numerous contacts nationally and internationally which would readily enable him to abscond from the jurisdiction of the Court; CONSIDERING also, that Thomas Lubanga Dyilo now knows the identities of certain witnesses; that the Prosecution states that if Thomas Lubanga Dyilo were to be released and were thus to be in a position to have completly unmonitored communications with the outside world, there would be a risk that he would, directly, or indirectly with the help of others, exert pressure on the witnesses, thus obstructing or endangering the court proceedings;(12) and that it appears that some witnesses, who appeared at the trials of middle- or high-ranking UPC members before the Tribunal de Grande Instance of Bunia, have been killed or threatened;(13) […] FOR THESE REASONS […] DECIDES to reject the application for the interim release of Thomas Lubanga Dyilo. ————————— (10) See for example: European Court of Human Rights, Tomasi v. France judgment of 27 August 1992, Application No. 12850/87, para. 89; European Court of Human Rights, Case of Mansur v. Turkey, Judgment of 8 June 1995, Application No. 16026/90, para. 52 (11) See for example: European Court of Human Rights, Van der Tang v. Spain judgment of 13 July 1995, Application No.19382/92, para. 60 or European Court of Human Rights, Case of W. v. Switzerland, Judgment of 26 January 1993, Application No. 14379/88, para. 33. (12) Prosecution’s Response to the Defence Request for Interim Release, para. 13. (13) Decision on the warrant of arrest, para. 101.

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Article 60(3): Obligation to periodically review the Chamber’s “ruling on the release or detention of the person” – Distinction between the “ruling on the release or detention of the person” and the original warrant of arrest – The obligation to periodically review runs from the decision on the initial request for interim release

S60-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.4-5:

ATTENDU que l'article 60-3 du Statut dispose que « [l]a Chambre préliminaire réexamine périodiquement sa décision de mise en liberté ou de maintien en détention [...] » et que la règle 118-2 du Règlement dispose que « [l]a Chambre préliminaire réexamine sa décision de mise en liberté ou de maintien en détention comme le prévoit le paragraphe 3 de l'article 60, au moins tous les 120 jours [...] »,

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ATTENDU en outre que les deux dispositions citées ci-dessus s'inscrivent à la suite de dispositions traitant spécifiquement des demandes de mise en liberté provisoire introduites après la remise à la Cour de la personne visée par un mandat d'arrêt, ATTENDU par conséquent que la décision de « [...] maintien en détention » visée à l'article 60-3 du Statut et à la règle 118-2 du Règlement ne saurait être confondue avec le mandat d'arrêt délivré en application de l'article 58 du Statut ordonnant la mise en détention initiale de Thomas Lubanga Dyilo, ATTENDU que la Requête constitue la première demande de mise en liberté provisoire de Thomas Lubanga Dyilo présentée par la Défense en vertu de l'article 60-2 du Statut ; qu'en conséquence, la Chambre n'a pas encore été amenée statuer sur la « mise en liberté ou le maintien en détention » de Thomas Lubanga Dyilo ; et que partant, on ne saurait parler de violation de l'article 60-3 du Statut et de la règle 118-2 du Règlement,

——— Official Translation ——— CONSIDERING that article 60(3) of the Statute provides that “[t]he Pre-Trial Chamber shall periodically review its ruling on the release or detention […]” and that rule 118(2) of the Rules provides that “[t]he Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days […]”; CONSIDERING, moreover, that the two abovementioned provisions appear after provisions which specifically deal with applications for interim release bought after the person subject to a warrant of arrest has been surrendered to the Court; CONSIDERING, therefore, that the ruling on “[…] detention” referred to in article 60(3) of the Statute and rule 118(2) of the Rules cannot be confused with the warrant of arrest issued pursuant to article 58 of the Statute ordering the initial dtention of Thomas Lubanga Dyilo; CONSIDERING that the Request constitutes the first application for Thomas Lubanga Dyilo’s interim release submitted by the Defece under article 60(2) of the Statute; that, as a result, the Chamber has not yet had to rule on the “release or detention” of Thomas Lubanga Dyilo, and that therefore it is not possible to speak of a violation of article 60(3) of the Statute and rule 118(2) of the Rules;

x

Article 60(4): Interim detention – Right not to be detained for an unreasonable period of time before trial – Applicable criteria: complexity of the case (release denied)

S60-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.7-8:

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ATTENDU en outre que, conformément aux droits de l'homme internationalement reconnus, toute personne arrêtée ou détenue a le droit d'être jugée dans un délai raisonnable ou libérée pendant la procédure(14), ATTENDU dès lors que la détention avant le procès ne saurait se prolonger de manière non raisonnable(15); que ce caractère raisonnable ne peut être déterminé in abstracto mais dépend des particularités de chaque affaire (16) ; et que pour déterminer le caractère raisonnable de cette détention, il importe notamment d'analyser la complexité de l'affaire(17), ATTENDU que la période de détention à considérer en l'espèce dans le cadre de l'application de l'article 60 du Statut a débuté le 16 mars 2006, date de la remise de Thomas Lubanga Dyilo à la Cour, ATTENDU que l'affaire portée devant la Cour est complexe, notamment parce que la grande majorité des éléments de preuve se trouvent à l'étranger (18) et que le volume des preuves soutenant l'accusation est important(19), ATTENDU, enfin, que les organes de la Cour ont agi avec célérité et qu'à aucun moment la procédure n'est demeurée inactive, ATTENDU que pour ces raisons et à ce stade de la procédure, la durée de détention de Thomas Lubanga Dyilo ne saurait être considérée comme non raisonnable, PAR CES MOTIFS […] DECIDONS de rejeter la demande de mise en liberté provisoire de Thomas Lubanga Dyilo. ————————— (14) Article 5 (3) (c) de la Convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales, article 7 (5) de la Convention interaméricaine des droits de l'homme, article 9 du Pacte international relatif aux droits civils et politiques. (15) Cour européenne des droits de l'homme, Affaire Wemhoff c Allemagne, Arrêt du 27 juin 1968, requête n°2122/64, « en droit », par. 5. (16) Voir Cour européenne des droits de l'homme, Affaire Stogmuller c. Autriche, Arrêt du 1er novembre 1969, requête n° 1602/62, « en droit », par. 4 ou Cour européenne des droits de l'homme, Affaire W. c Suisse, Arrêt du 26 janvier 1993, requête n°14379/88, par. 30. (17) Cour européenne des droits de l'homme, Affaire Van der Tang c Espagne, Arrêt du 13 juillet 1995, requête n°l9382/92, par. 75. (18) Commission Inter-Américaine des droits de l'homme, Affaire Guy Malary c. Haiti, affaire n° 11.335, rapport n° 78/02, 27 décembre 2002, par. 64. (19) Cour européenne des droits de l'homme, Affaire Contrada c Italie, Arrêt du 24 août 1998, par. 66 et 67 ; Cour interaméricaine des droits de l'homme, Affaire Génie Lacayo c Nicaragua, Arrêt du 29 janvier 1997, Série C N° 30, par. 78.

——— Official Translation ——— CONSIDERING, moreover, that, in accordance with internationally recognised human rights, everyone arrested or detained is entitled to trial within a reasonable time or to release pending trial;(14) CONSIDERING that since pre-trial detention cannot be extended to an unreasonable degree;(15) that reasonableness cannot be assessed in abstracto but depends on the particular features of each case;(16) and that to assess the

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reasonableness of the detention, it is particularly important to assess the complexity of the case;(17) CONSIDERING that, in the instant case, the period of detention to be considered under article 60 of the Statute started on 16 March 2006, the date of the surrender of Thomas Lubanga Dyilo to the Court; CONSIDERING that the case before the Court is complex, particularly because the vast majority of the evidence is abroad(18) and that the volume of evidence supporting the prosecution is huge; (19) CONSIDERING, finally, that the organs of the Court have acted swiftly and that at no moment were proceedings dormant; CONSIDERING that for these reasons and at this stage in the proceedings, the length of Thomas Lubanga Dyilo’s detention cannot be considered unreasonable; FOR THESE REASONS […] DECIDES to reject the application for the interim release of Thomas Lubanga Dyilo. ————————— (14) Article 5(3)(c) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 7(5) of the Inter-American Convention on Human Rights, article 9 of the International Covenant on Civil and Political Rights. (15) European Court of Human Rights, Wemhoff v. Germany judgment of 27 June 1968, Application No. 2122/64, “As to the Law”, para. 5. (16) See European Court of Human Rights, Stögmuler v. Austria judgment of 1 November 1969, Application No. 1602/62, “As to the Law”, para. 4 or European Court of Human Rights, W. v. Switzerland judgment of 26 January 1993, Application No.14379/88, para. 30. (17) European Court of Human Rights, Van der Tang v. Spain judgment of 13 July 1995, Application No.19382/92, para. 75. (18) Inter-American Commission on Human Rights, Guy Malary v. Haiti, Case No. 11.335, Report No. 78/02, 27 December 2002, para. 64. (19) European Court of Human Rights, Contrada v. Italy judgment of 24 August 1998, paras. 66 and 67; Inter-American Court of Human Rights, Genie Lacayo v. Nicaragua, Judgment of 29 January 1997, Series C No. 30, para. 78.

Article 61 – Confirmation of the Charges Before Trial 1. Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel. 2. The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has: (a) Waived his or her right to be present; or

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Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held. In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice. 3. Within a reasonable time before the hearing, the person shall: (a) Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial; and (b) Be informed of the evidence on which the Prosecutor intends to rely at the hearing. The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing. 4. Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal. 5. At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial. 6. At the hearing, the person may: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence. 7. The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall: (a) Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed; (b) Decline to confirm those charges in relation to which it has determined that there is insufficient evidence; (c) Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court. 8. Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence. 9. After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused,

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amend the charges. 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. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges. 10. Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor. 11. Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.

PRE-TRIAL CHAMBERS x

Article 61(3): Disclosures before Pre-Trial Chamber – Distinction between disclosure before the confirmation hearing and communication to the Pre-Trial Chamber of the evidence the parties intend to present at the confirmation hearing – Timetable fixed by the Chamber

S61-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 29-30:

CONSIDERING that the processes of (i) disclosure before the confirmation hearing and (ii) communication to the Pre-Trial Chamber of the evidence that the parties intend to present at the said hearing are distinct features of the Court's criminal procedure and fall under different provisions; CONSIDERING that the said process of disclosure will be conducted through two distinct procedures consisting of disclosure stricto sensu and inspection; […] CONSIDERING that the relevant rules on disclosure are a key tool in the Court's criminal procedure to ensure the fundamental right of any person to a fair and expeditious trial, and that they must be interpreted in a way consistent with, inter alia, the rights of the accused to be informed promptly and in detail of the nature, cause and content of the charges and to have adequate time and facilities to prepare the defence; […] DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […]

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[…] 29. Disclosure aims at providing the Defence with sufficient information on the Prosecution case and potentially exculpatory materials in order to place the Defence in a position to prepare adequately for the confirmation hearing. 30. Communication to the Pre-Trial Chamber of certain evidence before the confirmation hearing aims at placing the Pre-Trial Chamber in a position to properly organise and conduct the confirmation hearing. (64) ————————— (64) Brady, H., supra n. 25, p. 424.

x

Article 61(3): Disclosures before Pre-Trial Distinction between disclosures and inspections

S61-PT-2

Chamber

–

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras.77, 92:

CONSIDERING that the said process of disclosure will be conducted through two distinct procedures consisting of disclosure stricto sensu and inspection; CONSIDERING that, pursuant to article 67 (2) of the Statute and rules 76 and 79 of the Rules, disclosure stricto sensu requires the relevant party to provide directly to the other party copies of the evidence and materials subject to disclosure, whereas inspection, pursuant to rules 77 and 78, imposes on the relevant party the obligation (i) to allow the other party to inspect the relevant books, photographs, maps, and tangible objects, and (ii) to provide those copies requested during inspection; […] 77. Once the single judge has found that the disclosure process is inter partes, the question arises as to the time, manner and the scope of the Prosecution's obligations under articles 61 (3) and 67 (1) (a) and (b) and rules 76, 77 and 121 (3), (4) and (5) to disclose or to permit the Defence to inspect the evidence on which it intends to rely at the confirmation hearing or the materials obtained from or belonging to Thomas Lubanga Dyilo or which are otherwise material to the Defence's preparation for the confirmation hearing. […] 92. The single judge notes that article 61 (3) obliges the Prosecution to provide the Defence with a detailed description of the charges and to inform it of the evidence on which it intends to rely at the confirmation hearing within a reasonable period of time. In the view of the single judge, the content and time limits of the Prosecution's stricto sensu disclosure obligations under article 61 (3) of the statute are elaborated on by rule 121 (3), (4) and (5) of the Rules. The latter sets specific time limits (no later than 30 days and no later than 15 days before the date of the confirmation hearing) for the Prosecution to provide the Prosecution Charging Document and List of Evidence and the Prosecution Amended Charging Document and/or List of Evidence. These obligations must be discharged as set out above in paragraphs 59

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and 6024 and constitute, first and foremost, the Prosecution's obligation of stricto sensu disclosure to the extent that these documents will reveal to the Defence the key information about the Prosecution's case at the confirmation hearing. 111.4. Stricto Sensu Disclosure pursuant to Rule 76 of the Rules […]25 111.5. Inspection pursuant to Rule 77 of the Rules […]26

x

Article 61(3): Disclosures before Pre-Trial Chamber – Defence access to the full Prosecution file denied

S61-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 7, 10-15:

CONSIDERING that, as provided for in article 61 (7) of the Statute, the scope of the confirmation hearing is limited to determining whether sufficient evidence exists to establish substantial grounds to believe that a person has committed the crimes charged; CONSIDERING furthermore the arguments and reasons provided for in Annex I to this decision, which form an integral part thereof; FOR THESE REASONS DECIDE to reject the Defence request for full access to the entire Prosecution file of the investigation of the situation in the DRC in the case against Thomas Lubanga Dyilo; […] 7. In its filing of 6 April 2006, the Defence requested full access to the entire Prosecution file on the investigation of the situation in the Democratic Republic of the Congo ("the DRC") and on the case against Thomas Lubanga Dyilo.(17) […] […] 10. In the view of the single judge, the Defence position is not supported by a literal and contextual interpretation of articles 61 (3), 67 (1) (a) and (b) and 67 (2) of the Statute and rules 76, 77 and 121 (3) of the Rules. 11. According to a literal interpretation, these provisions do not impose on the Prosecution the obligation to disclose to the Defence, or to permit the Defence to

24

See R121-PT-14: Submission of a detailed description of the charges together with a list of the evidence the Prosecution intends to present – Timetable fixed by the Pre-Trial Chamber 25 See R76-PT-3. 26 See R77-PT-3.

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inspect, any material which the Prosecution does not intend to present at the confirmation hearing and which is neither potentially exculpatory nor material to Defence preparations for the confirmation hearing.(24) 12. According to their contextual interpretation, the provisions on the Prosecution's disclosure obligations regulate the extent, time, and manner in which the Defence can access some of the materials contained in the Prosecution file.(25) They are based on the premise that the criminal procedure before the International Criminal Court does not provide for full access by the Defence to the entire Prosecution file. In the single judge's opinion, to say otherwise would make those provisions meaningless. 13. Therefore, the objective of these provisions is not to give the Defence access to the entire Prosecution file, but to put the Defence in a position to adequately prepare for the confirmation hearing. As the single judge stated in her introductory remarks at the hearing on 24 April 2006, articles 61 (3), 67 (1) (a) and (b) and 67 (2) of the Statute enshrine some of the core rights that Thomas Lubanga Dyilo is entitled to for the purpose of the confirmation hearing.(26) 14. In this regard, the single judge disagrees with the Defence submission that anything short of full Defence access to the Prosecution's file would infringe upon Thomas Lubanga Dyilo's right to a fair trial. This submission, besides lacking support in interpretations by international human rights bodies of the right to a fair trial,(27) would lead to the conclusion that the right to a fair trial, as enshrined in article 14 of the ICCPR, article 6 (1) of the ECHR and article 8(1) of the IACHR, would be violated by jurisdictions as diverse as, for instance, the International Criminal Tribunal for the Former Yugoslavia ("the ICTY") (28) and a number of national jurisdictions(29) where disclosure provides a key tool to guarantee the right to a fair trial. 15. For these reasons, the single judge considers that the Defence request for full access to the entire Prosecution file of the DRC investigation and the case against Thomas Lubanga Dyilo is fundamentally contrary to the system of disclosure set out in the Statute and the Rules, and in particular in articles 61 (3), 67 (1) (a) and (b) and 67 (2) of the Statute and rules 76 and 77 of the Rules. ————————— (17) Defence's Observations, p. 8. (24) This does not apply to those materials obtained from Thomas Lubanga Dyilo or belonging to him. (25) Brady, H., Disclosure of Evidence, in Lee, R.S.: The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational publishers, 2001, p. 404. (26) ICC-01/04-01/06-T-4 EN, p. 5, lines 7 to 10. (27) The European Court of Human Rights in Edwards v. United Kingdom, Judgment of 16 December 1992, Application No. 13071/87, para. 36, held that "The Court considers that it is a requirement of fairness under paragraph 1 of Article 6 (article 6-1), indeed one which is recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused...." In Fourcher v. France, judgment of 18

March 1997, Application No. 22209/93, paras. 36 to 38, the European Court of Human Rights held that, pursuant to article 6 (1) and 6 (3) of the Convention, the Applicant was entitled to access the Prosecution's file. However, this conclusion was reached on the basis of (i) the specific circumstances of the case because the Applicant's conviction was solely based on the game warden's official report, which, according to article 537 of the French Code of Criminal Procedure, was good evidence in the absence of proof to the

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contrary, and therefore it was important for the Applicant to access his case file so as to challenge the official report concerning him, and (ii) a reversal of the French Cour de Cassation case-law concerning communication of documents from a file where the defendant has already been sent for trial. In this regard, the European Court of Human Rights pointed out that while the 15 March 1993 judgment of the Cour de Cassation affirmed that the European Convention did not require that the case file be made available to the defendant himself, the 12 June 1996 judgment of the Cour de Cassation stated in paragraph 21 that: "Everyone charged with a criminal offence thus has the right, under Article 6 para. 3 (article 6-3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, not to the immediate communication of the documents on the file but to the release, at his expense and, where appropriate, acting through his lawyer, of copies of the documents submitted to the court he has been summoned to appear before." (28) The right to a fair trial, and the corresponding obligation of the Chambers to ensure a fair trial, is enshrined in arts. 20 and 21 (2) of the ICTY Statute, and as the Appeals Chamber has expressly stated, the rules on disclosure in the ICTY Rules of Procedure and Evidence, and particularly rule 68 of the ICTY Rules of Procedure and Evidence on the Prosecution's obligation to disclose potentially exculpatory materials, are "essential for the conduct of fair trials before the Tribunal." (Prosecutor v. Radislav Krstic, Appeal Judgment, Case Num. IT-98-33-TA, 19 April 2004, para. 211). (29) For instance, in England and Wales, "the right of every accused to a fair trial is a basic or fundamental right. That means that under our unwritten constitution those rights are deserving of special protection by the courts. However, in our adversarial system, in which the police and prosecution control the investigatory process, an accused's right to fair disclosure is an inseparable part of his right to a fair trial. That is the framework m which the development of common law rules about disclosure by the Crown must be seen"( R. v Brown [1995] 1 Cr App R191, p. 198; see also R. v Ward, [1993], 96 Cr App R l, p. 67 ). In New Zealand, the Prosecution is compelled under common law to disclose material to the defence before trial where it is necessary to satisfy the Prosecution's duty of fairness in the conduct of the trial, which requires that "material evidence" information be disclosed. ( (R v. Mason [1976] 2 NZLR 122 (CA); see also R v Connell [1985] 2 NZLR 233 (CA)). In the United States, the Supreme Court has combined various constitutional standards to create "what might loosely be called the area of the constitutionally guaranteed access to evidence" (Arizona v. Youngblood, 488 U S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). Among them, particular emphasis has been placed on the so-called "Brady rule", according to which the Prosecution has a constitutional obligation (due process right to discovery of exculpatory evidence) to disclose exculpatory materials within its possession when that evidence might be material to the outcome of the case (Brady v Maryland, U.S. 83, 83 S.Ct 1194,10 L.Ed.2d 215 (1963)).

x

Article 61(3): Disclosures before Pre-Trial Chamber – Inter partes disclosures (by opposition to filings with the Registry) – Format of inter partes disclosures – Timetable fixed by the PreTrial Chamber – Record of inter partes disclosures

S61-PT-4

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

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May 2006 and Annex I, paras. 61-68, 73-76: DECIDE that prior to the confirmation hearing the process of disclosure of the evidence which the parties intend to use at that hearing and other materials which are potentially exculpatory or otherwise material to Defence preparations for the confirmation hearing, as governed by articles 61 (3), 67 (1) (a) and (b) and 67 (2) of the Statute and rules 76 to 83 of the Rules, is to be conducted inter partes between the Prosecution and the Defence; […] DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: 1- Inter partes disclosure of potentially exculpatory materials under article 67 (2) of the Statute shall commence as soon as this decision has been issued, and the first exchange shall take place before the status conference to address disclosure matters on 24 May 2006; […] 61. The question of whether the broader disclosure process should be inter partes or carried out via the Registry must be addressed, once it has been concluded that what needs to be communicated to the Pre-Trial Chamber by their filing in the record of the case is (i) the Prosecution Charging Document and List of Evidence and the Prosecution Amended Charging Document and/or List of Evidence, (ii) the Defence list of evidence provided for in rule 121 (6) of the Rules, and (iii) the actual evidence on which the parties intend to rely at the confirmation hearing. 62. From a literal perspective, the single judge agrees with the Prosecution and the Defence that the expression "all evidence disclosed between the Prosecution and the person" ("tous les moyens de preuve ayant fait l'objet d'un échange entre le Procureur et la personne concernée" in the French version and "todas las pruebas que el Fiscal haya puesto en conocimiento del imputado" in the Spanish version) in rule 121 (2) (c) of the Rules, which is the main provision on the communication of evidence to the Pre-Trial Chamber, refers to a previous inter partes exchange between the parties. Moreover, the single judge observes that a number of provisions dealing with the Prosecution and Defence disclosure obligations, such as article 67 (2) and rules 76 to 79 of the Rules, refer to a direct exchange between the parties. 63. In the view of the single judge, a contextual interpretation of the relevant provisions also leads to the conclusion that the disclosure process can only be inter partes and prior to any communication of evidence to the Pre-Trial Chamber through its filing in the record of the case. 64. In this regard, the single judge considers that disclosure via the Registry is not fully consistent either with the legal framework provided for in the Statute, the Rules, and the Regulations or the nature of the confirmation hearing, insofar as it would require filing (no matter whether the parties intend to rely on them at the hearing) all evidence and materials subject to disclosure in the record of the case,

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maintaining all such materials and evidence accessible to the Pre-Trial Chamber, and presenting them at the confirmation hearing, under rule 122 (1) of the Rules. 65. Consequently, in the view of the single judge, the consistency of the disclosure process and the need to safeguard the Court's unique criminal procedure require that disclosure be carried out inter partes with regard to (i) the evidence that subsequently must be communicated to the Pre-Trial Chamber by filing it in the record of the case, that is the evidence on which the parties intend to rely at the confirmation hearing; and (ii) the other materials that the Prosecution must disclose to the Defence before the confirmation hearing but that neither party intends to present at that hearing. 66. From a teleological perspective, the rules on disclosure seek to guarantee Thomas Lubanga Dyilo's right to a fair trial by ensuring that the Defence can properly prepare for the confirmation hearing. (69) The single judge concurs with both the Prosecution and the Defence that this overriding goal will be best achieved if the disclosure process takes place directly between the parties in order to ensure that it is expeditious and effective. Doing this will permit the Defence, as soon as possible before the confirmation hearing, to be in a position to decide on the scope of defence and to select the evidence on which it intends to rely at the hearing. 67. Concerning the format of the inter partes exchanges during the disclosure process, the single judge considers that the parties must make every effort to reach an agreement on the format in order to ensure that the ultimate purpose of the disclosure process is fulfilled. 68. In this regard, the single judge observes that both parties agree that the electronic format would be the most convenient if security and practical arrangements do not prevent Thomas Lubanga Dyilo from having unrestricted access to the electronic versions of the evidence and materials subject to exchange by the parties before the confirmation hearing.(70) Hence, the Registry must provide for these arrangements as soon as practicable or must inform the single judge of any obstacle to the implementation of the system at the latest at the status conference on 24 May 2006. […] 73. In respect of the materials which the Prosecution must disclose to the Defence under articles 67 (1) (b) and 67 (2) of the Statute and rule 77 of the Rules and which neither party intends to use at the confirmation hearing, the single judge considers that, given the key role that the exchange of these materials plays in guaranteeing Thomas Lubanga Dyilo's right to a fair trial, a record of the inter partes exchanges pursuant to these provisions must be filed by the Prosecution in the record of the case as soon as practicable after any such exchange has taken place. 74. The record relating to exchanges under article 67 (2) of the Statute must consist of "disclosure notes" signed by both parties, which must include a list of the items subject to any given act of disclosure under this provision and their reference numbers. 75. The record relating to exchanges pursuant to rule 77 of the Rules must consist of "inspection reports" signed by both parties, which must include a list of the items subject to inspection, their reference numbers and a brief account of how the act of

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inspection took place and whether the Defence received the copies which it requested during the inspection. 76. In the view of the single judge, the filing of "disclosure notes" and "inspection reports" is necessary for the Registry to ensure legal certainty as to which materials have been exchanged between the parties without infringing on the interest of the Defence to have access to such materials as soon as practicable. Furthermore, it will ensure consistency in the disclosure process by ensuring that, at the very least, a record of every item subject to such a process is part of the record of the case. ————————— (69) See supra n 27, 28 and 29. (70) ICC-01/04-01/06-T-4 EN, p. 54, lines 5 to 25 and p. 55, lines 1 to 23. See also, Defence Final Observations, pp 23 and 24.

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Article 61(3): Disclosures before Pre-Trial Chamber – E-Court protocol – Information that shall be given together with disclosed documents and statements

S61-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information in Electronic Version for their Presentation during the Confirmation Hearing (PT), 28 August 2006, pp. 5-8:27

DECIDE that, for the purpose of the confirmation hearing in the case of The Prosecutor v. Thomas Lubanga Dyilo, the E-Court Protocol for the presentation of evidence, material and witness information in electronic format shall contain the following: (i) the content of the Draft Protocol included in Annex I of the Submission; (ii) the following additional fields: a. in relation to the presentation of evidence and material, with the content defined for such fields in the version of the Draft Protocol as it stood on 15 May 2006: i. Author ii. Author Organization iii. Recipient iv. Parties v. Related to Witness

27

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Request for Extension of Time, Clarification and Provision of Information (PT), 1 September 2006.

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vi. Charge vii. Element of Alleged Crime viii. Incident ix. Element of Statement of Facts; and x. Mode of Participation b. in relation to witness information: i. Disclosure Date; ii. Charge; iii. Element of Alleged Crime; iv. Incident; v. Element of Statement of Facts; vi. Mode of Participation vii. Person/Witness from whom the Document Emanated DECIDE that the Prosecution must fill in all the above-mentioned fields for the purpose of the confirmation hearing in the case of The Prosecutor v. Thomas Lubanga Dyilo, DECIDE that, except for the fields “Charge”, “Elements of Crimes”, “Incident”, “Elements of Statements of Facts” and “Mode of Participation”, the Defence must fill in all the above-mentioned fields for the purpose of the confirmation hearing in the case of The Prosecutor v. Thomas Lubanga Dyilo; […] DECIDE that, in relation to the evidence on which the Defence intends to rely at the confirmation hearing, the Defence must fill in the above-mentioned additional fields only three working days before the commencement of the Confirmation Hearing as required by the Registry for technical reasons; DECIDE that, in relation to any tupe of names for which redactions have been authorised, such as inter alia those of witnesses, victims, authors of documents, entities which generated the documents or specific incidents, the above-mentioned additional fields shall be filled in with code numbers; DECIDE that, in relation to information other than names for whoch redactions have been authorised, the above-mentioned additional fields shall be filled in: (i) with the word “REDACTED” for any such information; or (ii) by not including any such information in those fields.

x

Article 61(3): Disclosures before Pre-Trial Chamber – Interim system of disclosure pending determination on the system of disclosure to be followed

S61-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

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163

No. ICC-01/04-01/06, Decision Requesting Observations of the Prosecution and the Duty Counsel for the Defence on the System of Disclosure and Establishing an Interim System of Disclosure (PT), 23 March 2006: CONSIDERING that the preservation of the evidence, the effectiveness of the disclosure process, the protection of victims and witnesses and the proper safeguarding of the rights of Mr Thomas Lubanga Dyilo require that the system of disclosure of the evidence that the prosecution and the defence intend to use at the confirmation hearing and the system of disclosure of the Exculpatory Evidence pursuant to article 67 (2) of the Statute be consistent; CONSIDERING that it is necessary to provide the prosecution and Duty Counsel for the Defence with the opportunity to present their observations on the most appropriate system of disclosure of (i) the evidence they intend to use at the confirmation hearing and (ii) the Exculpatory Evidence gathered by the prosecution before the confirmation hearing; CONSIDERING that, pending a decision on the system of disclosure which will ultimately be followed, it is necessary to establish an interim system of disclosure by which the prosecution may start disclosing to the defence (i) the Incriminating Evidence which the prosecution might have already decided to rely on at the confirmation hearing and (ii) the evidence currently in the possession or control of the prosecution which it might have already identified as Exculpatory Evidence; CONSIDERING that, pending a decision on the system of disclosure which will ultimately be followed, any disclosure of the Incriminating Evidence or the Exculpatory Evidence by the prosecution to the defence should be channeled through the Registry as the organ of the Court which, under rule 15 (1) of the Rules, is responsible for keeping "a database containing all the particulars of each case brought before the Court"; FOR THESE REASONS DECIDE that the prosecution and Duty Counsel for the Defence will have until 6 April at 16.00 hours to present their observations on what they consider the most appropriate system of disclosure of (a) the evidence which they intend to use at the confirmation hearing and (b) the Exculpatory Evidence gathered by the prosecution before the confirmation hearing, in view of: (i) The Statutory framework provided for in the Statute, the Rules, the Regulations of the Court and the Regulations; and (ii) The need to ensure the preservation of the evidence, the effectiveness of the disclosure process, the protection of victims and witnesses and the proper safeguarding of the rights of Mr Thomas Lubanga Dyilo; DECIDE that, pending a decision on the system of disclosure which will ultimately be followed, the interim system of disclosure set out below shall be followed in order to make it possible for the prosecution to start disclosing to the defence (a) the Incriminating Evidence which it might have already decided to rely on at the

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confirmation hearing; and (b) the evidence currently in the possession or control of the prosecution which it might have already identified as Exculpatory Evidence: (i) The prosecution shall file in the record of the case against Mr Thomas Lubanga Dyilo any Incriminating Evidence or Exculpatory Evidence which it intends to disclose to the defence; (ii) The prosecution shall include in each filing referred to in (i) above a list identifying all Incriminating Evidence or Exculpatory Evidence included in that filing and indicating whether any such evidence has been filed pursuant to either article 61 (3) (b) or article 67 (2) of the Statute; (iii) The Registrar shall assign a different reference number in the record of the case against Mr Thomas Lubanga Dyilo to each piece of Incriminating Evidence or Exculpatory Evidence filed by the prosecution; (iv) The Registrar shall ensure that the reference number makes it possible to determine immediately whether the relevant piece of evidence has been submitted by the prosecution pursuant to article 61 (3) (b) or article 67 (2) of the Statute; (v) The Registrar shall organise the index of the record of the case against Mr Thomas Lubanga Dyilo so as to set out in separate sections (a) all evidence submitted by the prosecution pursuant to article 61 (3) (b) of the Statute; and (b) all evidence submitted by the prosecution pursuant to article 67 (2) of the Statute; (vi) Whenever the prosecution makes a filing pursuant to (i) above, the Registrar shall ensure: a. That the standard notification of the prosecution's filing does not contain any attachment with the Incriminating Evidence or the Exculpatory Evidence submitted by the prosecution in that filing; b. That a list identifying each piece of Incriminating Evidence or Exculpatory Evidence included in the filing is notified as soon as practicable to the single judge and the Duty Counsel for the Defence; c. That the Duty Counsel for the Defence is given access as soon as practicable to each piece of Incriminating Evidence or Exculpatory Evidence included in that filing.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

x

165

Article 61(4): Confirmation hearing - Investigation shall be completed by the time of the confirmation hearing, except exceptional circumstances which may justify subsequent isolated acts of investigation28

S61-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 130-131:29

130. On the other hand, the single judge notes that article 61 (4) of the Statute is clear that prior to the confirmation hearing "the Prosecutor may continue the investigation and may amend or withdraw any charges". The single judge also notes that no other provision of the Statute or the Rules expressly confers upon the Prosecution the right to continue with the investigation after the confirmation hearing. Indeed, despite setting up a procedure for amendment or withdrawal of the charges after the confirmation hearing, article 61 (9) of the Statute does not extend the Prosecutor's power to investigate beyond the confirmation hearing. 131. Therefore, except for exceptional circumstances which might justify subsequent isolated acts of investigation, the investigation must be completed by the time the confirmation hearing starts […].

S61-PT-8

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras. 37-41:

37. The single judge would first emphasise that the finding challenged by the Prosecution refers solely to the temporal scope of the ongoing investigation of Thomas Lubanga Dyilo and does not mean that under all circumstances the Prosecution is prevented from conducting investigative steps after the confirmation hearing.(59)

28

This finding was subsequently reverted in the following Appeals Chamber Decision: Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 13 October 2006. See below S61-A-1. 29 See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, para. 39; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecution Amended Application Pursuant to Rule 81(2) (PT), 2 August 2006, p. 5.

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38. Contrary to what the Prosecution claims, the single judge considers that, apart from being supported by the literal, contextual and teleological interpretations of article 61 of the Statute,(60) the challenged finding presents the necessary flexibility because : (i) on the one hand, it prevents the Prosecution from routinely undertaking additional investigative steps to fill the gaps in the case against Thomas Lubanga Dyilo after the charges have been confirmed so that by the time the trial starts, the evidentiary nature of the case against which Thomas Lubanga Dyilo must prepare has substantially mutated to his detriment; and (ii) on the other hand, it anticipates that exceptional circumstances might justify additional investigative steps after the confirmation hearing, which is fully consistent with the possibility of amending the charges under article 61 (9) of the Statute. 39. The single judge deems that the issue of the temporal scope of the ongoing investigation into Thomas Luganga Dyilo is totally unrelated to the different standards of proof which the Prosecution must meet at the confirmation hearing and at trial. The fact that the Prosecution does not need to present all the evidence gathered during the investigation at the confirmation hearing does not mean that the Statute and the Rules provide for two different investigation stages: (i) before the confirmation hearing to gather enough evidence to meet the standard required for the confirmation of the charges and (ii) after the confirmation hearing to find additional evidence allowing the Prosecution to meet the "beyond reasonable doubt" standard at trial.(61) 40. Moreover, the single judge considers that the issue of the scope of the ongoing investigation of Thomas Lubanga Dyilo is totally unrelated to the Prosecution disclosure obligations under the Statute and the Rules. The fact that the investigation of Thomas Lubanga Dyilo must, in principle, be completed before the confirmation hearing does not mean that all incriminating evidence and potentially exculpatory materials must be disclosed prior to that hearing. On the contrary, what the Prosecution must disclose prior to the confirmation hearing is (i) the evidence on which the Prosecution intends to rely at that hearing; and (ii) the bulk of the materials which are potentially exculpatory within the scope of article 67 (2) of the Statute, which were obtained from or belong to Mr Thomas Lubanga Dyilo or which are otherwise material for the Defence's preparation of the confirmation hearing according to rule 77 of the Rules. (62) Hence, a second disclosure phase will necessarily take place after the confirmation hearing and prior to the commencement of the trial in accordance with article 64 of the Statute. 41. The Prosecution also challenges the finding of the single judge concerning the temporary nature of the redactions granted under rule 81 (2) of the Rules in order not to prejudice the ongoing investigation of Thomas Lubanga Dyilo.(63) The single judge deems that this finding goes hand in hand with the finding on the temporal scope of the investigation of Thomas Lubanga Dyilo. Considering that the investigation must, in principle, be concluded before the initiation of the confirmation hearing and that, as provided for in rule 121 (4) and (5) of the Rules, the Prosecution must file the Prosecution Amended Charging Document and/or List of Evidence 15 days before the hearing, the justification for any redaction pursuant to rule 81 (2) of the Rules does not longer exist once this time-limit has expired. ————————— (59) As shown by the references in paras. 32 and 68 of the Prosecution Motion, the Prosecution has obviously misinterpreted the finding of the single judge.

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(60)

This finding follows from the literal interpretation of paragraphs (4) and (9) of article 61 of the Statute because while the former explicitly states that the investigation may be continued before the confirmation hearing, the latter does not give the Prosecution such a power once the charges have been confirmed Furthermore, this finding is supported by a contextual interpretation of article 61 of the Statute in light of (i) the lack of any other statutory provision which explicitly extents the investigation of a given case beyond the confirmation hearing; and (ii) the structure of the Statute, which first regulates the investigation and the prosecution in Part 5 (including the investigative powers of the Prosecution provided for in article 54 of the Statute) and then in Part 6 regulates the proceedings after the charges have been confirmed This finding is also supported by the object and purpose of article 61 of the Statute, which seeks to prevent the Prosecution from routinely substantially mutating the evidentiary nature of the case against the defendant between the confirmation of the charges and initiation of the trial Such a mutation would be at odds with the procedural rights of the defendant to fully prepare for and participate in the confirmation hearing granted by article 61 of the Statute (61) Embracing the two-investigation-stage approach would have meant accepting a routine substantial mutation of the Prosecution's case from an evidentiary perspective after the charges are confirmed and before the initiation of the trial (62) See the explanation contained m Annex I to Decision on the Final System of Disclosure, paras. 116,117 and 124 to 131 See also the timetable on pages 6 to 9 of the Decision on the Postponement of the Confirmation Hearing and the provisional timetable on pages 7 to 13 of the Decision on the Final System of Disclosure (63) As stated on page 23 of the Decision, such redactions "shall not be maintained beyond the 15-day time limit provided for in rule 121 (4) and (5) of the Rules "

x

Article 61(5): Confirmation hearing – Information presented shall appear in the summary evidence submitted by the Prosecution – Probative value of summary evidence

S61-PT-9

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006, p.4:

CONSIDERING that, in relation to the summary evidence on which the Prosecution is authorised to rely at the confirmation hearing in the present decision, the Prosecution cannot at the confirmation hearing rely on any information which does not appear in the summary evidence, such as the identity, position and other identifying features of the relevant Prosecution witnesses; that, moreover, summary evidence - as opposed to redacted versions of witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews – is drafted by the Prosecution; and that these factors shall necessarily have an impact on the probative value of the summary evidence authorised in the present decision;

x

Article 61(5): Confirmation hearing – Presentation of evidence – Prosecutor’s discretion to call witnesses or to rely on their written statements

S61-PT-10

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of

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Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 95-99: 95. A literal interpretation of article 61 (5) in fine and 68 (5) of the Statute suggests that the Prosecution's right to rely at the confirmation hearing on witnesses' written evidence (either witness statements or summary evidence) instead of their oral testimony "shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial". 96. Furthermore, articles 61 (5) in fine and 68 (5) of the Statute must be interpreted in light of: a. article 61 (3) of the Statute and rule 121 (3) and (5) of the Rules, which require the Prosecution to disclose to the Defence the Prosecution Charging Document and List of Evidence and the Prosecution Amended Charging Document and/or List of Evidence, which, in principle, must include the names of any witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing; and b. articles 61 (6) (b) and 67 (1) (b) of the Statute, which grant Thomas Lubanga Dyilo the right to challenge evidence presented by the Prosecution at the confirmation hearing and adequate time and facilities to prepare for such a hearing. 97. Furthermore, in the view of the single judge, protection of the right to a fair hearing, pursuant to article 67 (1) of the Statute, in appropriate circumstances may require that the competent Chamber exceed the specific terms of article 67 of the Statute. This is clear from the express reference to "minimum guarantees" in the chapeau of article 67 (1) of the Statute.(96) It is also consistent with the interpretation of the European Court of Human Rights of the general right to a "fair hearing" with a view to filling some of the gaps in article 6 (3) of the European Convention on Human Rights and Fundamental Freedoms.(97) 98. Therefore, a contextual interpretation of articles 61 (5) in fine and 68 (5) of the Statute in light of article 61 (3) and (6) (b), the chapeau of article 67 (1), and article 67 (1) (b) of the Statute requires, in principle, that the Defence have access to nonredacted versions of the prior statements of any witness on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing. 99. A teleological interpretation of articles 61 (5) in fine and 68 (5) of the Statute suggests that they aim first and foremost to ensure the safety of Prosecution witnesses, and minimise the potentially traumatic effects of giving testimony in court by exempting witnesses from the requirement to do so twice, first before the Pre-Trial Chamber and again before the Trial Chamber; ————————— (96) Schabas, W A , An Introduction to the International Criminal Court, Cambridge University Press, 2002, pp. 98 and 99. (97) Harris, DJ., O'Boyle, M, and Warbrick, C, Law of the European Convention on Human Rights, Butterworths, 1995, pp. 202 to 203.

x

Article 61(5): Confirmation hearing – Presentation of witness evidence - Questioning of witnesses – Rule 140 is applicable

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

169

mutatis mutandis to Pre-Trial proceedings – Questions by Chamber – Re-examination is unwarranted

S61-PT-11

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p.3:

CONSIDERING, further, that rule 140(2) of the Rules falls under Chapter 6 entitled "Trial procedure", but that the Single judge is of the view that this rule also applies mutatis mutandis to pre-trial proceedings; CONSIDERING, therefore, that the Chamber may put questions to a witness before, during or after his or her examination by the Prosecution and the Defence and that, as a result, a re-examination is unwarranted at a confirmation hearing;

x

Article 61(5): Confirmation hearing – Presentation of witness evidence - Questioning of witnesses – Defence request to be provided with the list of questions the Prosecution intends to put to a witness prior to his appearance (denied)

S61-PT-12

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p.6:

CONSIDERING that, in the view of the Chamber, the Defence request to be provided with the list of questions that the Prosecution intends to put to the witness at the confirmation hearing prior to the testimony of the said witness has no basis in law in light of article 21 of the Statute;

x

Article 61(5): Confirmation hearing – Presentation of witness evidence – Time necessary for the preparation of crossexamination – Exceptional arrangements for the Defence to communicate with the person charged

S61-PT-13

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p.6:

CONSIDERING that, regarding the only witness who will be called by the Prosecution at the confirmation hearing and on whose evidence the Prosecution intends to rely, the Defence must have time to prepare for the examination of the witness after the witness is examined by the Prosecution;

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CONSIDERING that at a hearing held by the Chamber on 3 November 2006, the Registrar stated that exceptionally, for the duration of the confirmation hearing in this case, the Defence Team will be authorised to have access to Thomas Lubanga Dyilo after each session for 30 to 45 minutes, if the session concludes before 16:00 and/or every evening from 18:00 to 19:45 at the Detention Centre, as well as on Saturdays between 09:00 and 16:45 at the Detention Centre; (10) and that the Defence stated that the solution proposed by the Registry covers the Defence needs in relation to the preparation of the confirmation hearing; ————————— (10) ICC-01/04-01/06-T-29-EN, page 31.

x

Article 61(7): Limited scope of Pre-Trial Chamber’s confirmation of charges: determine whether sufficient evidence exist to establish substantial grounds to believe that the accused is criminally liable for the crimes alleged by the Prosecution

S61-PT-14

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 55-56:

55. Second, according to article 61 (7) of the Statute, at the confirmation hearing the Pre-Trial Chamber must determine "whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged." Therefore, the Pre-Trial Chamber is not a finder of truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued.(67) 56. In the opinion of the single judge, it is not the role of the Pre-Trial Chamber to find the truth concerning the guilt or innocence of Thomas Lubanga Dyilo, but to determine whether sufficient evidence exists to establish substantial grounds to believe that he is criminally liable for the crimes alleged by the Prosecution. (68) The single judge considers that it would be contrary to the role of the Pre-Trial Chamber to file in the record of the case and present at the confirmation hearing potentially exculpatory and other materials disclosed by the Prosecution before the hearing, if neither party intends to rely on those materials at that hearing. ————————— (67) Shibahara, K., Confirmation of the Charges before Trial, in: Triffterer, O., Commentary on the Rome Statute of the International Criminal Court, Nomos, 1999, p. 790. (68) Marchesiello, M., Proceedings before the Pre-Trial Chambers, in: Cassese, A., Gaeta, P. and Jones, J.R.W.D., The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, p. 1245.

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APPEALS CHAMBER x

Article 61(4): Confirmation hearing – The requirement that investigation shall be completed by the time of the confirmation hearing has no legal basis

S61-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006, para. (iii), 2, 49-56:

(iii) The decision of Pre-Trial Chamber I "that any redaction in the statements of witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing in order not to prejudice the ongoing investigation in the case against Thomas Lubanga Dyilo: (i) shall be temporary and (ii) shall not be maintained beyond the 15-day time limit provided for in rule 121 (4) and (5) of the Rules" is reversed. […] 2. The Prosecutor's investigation may be continued beyond the confirmation hearing. Such investigations may relate to alleged new crimes as well as to alleged crimes that are encompassed by the confirmation hearing. […] 49. In relation to the second ground of appeal, the Appeals Chamber determines that, for the reasons given below, the Pre-Trial Chamber erred in finding that the Prosecutor's investigation in respect of Mr. Lubanga Dyilo must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation. 50. 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" (impugned decision, paragraph 39) 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. As will be explained below, both readings are incompatible with the Statute. 51. The latter reading, which would prevent investigations of crimes not encompassed by the charges, would not be in line with the Statute for the following reason: a confirmation hearing 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.

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Furthermore, limiting the right of the Prosecutor to investigate other alleged crimes of the suspect would conflict with article 61 (9) of the Statute. This article 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. 52. Even if the Pre-Trial Chamber's finding is read as applying only to the investigation with respect to the specific and concrete crime with which the Prosecutor intends to charge the suspect, the finding is incorrect. Pursuant to article 54 (1) (a) of the Statute, the Prosecutor shall, "[i]n order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally." The duty to establish the truth is not 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. As the Prosecutor rightly pointed out, this indicates that the investigation does not have to stop before the confirmation hearing. 53. The Appeals Chamber is not persuaded by the Pre-Trial Chamber's interpretation of article 61(4) of the Statute. The Pre-Trial Chamber is correct in stating that while article 61(4) of the Statute mentions investigations before the confirmation hearing, nowhere in the Statute are post-confirmation hearing investigations mentioned. To give this omission as much importance as the Pre-Trial Chamber does, is, however, not warranted. Article 61 of the Statute describes the sequence of events in relation to the confirmation of the charges. Pursuant to article 61 (3) (a) of the Statute, the Prosecutor must provide the suspect with a copy of the document containing the charges "[w]ithin a reasonable time before the hearing." 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. Before the confirmation hearing, the Prosecutor may continue his investigation, amend or withdraw charges without the permission of the Pre-Trial Chamber. This flexibility of the Prosecutor is more limited after the confirmation of the charges with respect to the amendment, addition or withdrawal of charges: pursuant to article 61 (9) of the Statute the Prosecutor may amend the charges after their confirmation only with the permission of the Pre-Trial Chamber; in order to add additional charges or substitute charges with more serious charges, a new confirmation hearing must be held; withdrawal of charges after the commencement of the trial is only possible with the permission of the Trial Chamber. 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. Furthermore, as the Prosecutor has rightly pointed out in paragraph 17 of the document in support of the appeal, the possibility to amend the charges after their confirmation, albeit with the permission of the Pre-Trial Chamber, must necessarily mean that the investigation could continue after the confirmation of the charges. If it were otherwise the sole purpose of article 61 (9) of the Statute with respect to the

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amendment or withdrawal of confirmed charges would be to allow the Prosecutor to correct errors in the evaluation of evidence. 54. The Appeals Chamber notes that, ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing - a matter that the Prosecutor acknowledges (see document in support of the appeal, paragraph 14, referred to at paragraph 45 above). However, for the reasons stated above, this is not a requirement of the Statute. The Appeals Chamber accepts the argument of the Prosecutor that in certain circumstances to rule out further investigation after the confirmation hearing may deprive the Court of significant and relevant evidence, including potentially exonerating evidence - particularly in situations where the ongoing nature of the conflict results in more compelling evidence becoming available for the first time after the confirmation hearing (see document in support of the appeal, paragraphs 18 and 20, referred to at paragraph 46 above). 55. The Appeals Chamber also is not persuaded by the Pre-Trial Chamber's opinion expressed in paragraph 38 of the decision granting leave to appeal, which states inter alia that the Prosecutor must be prevented from "routinely undertaking additional investigative steps to fill the gaps in the case against Thomas Lubanga Dyilo after the charges have been confirmed so that by the time the trial starts, the evidentiary nature of the case against which Thomas Lubanga Dyilo must prepare has substantially mutated to his detriment". As the Prosecutor rightly has pointed out in paragraphs 21 and 22 of the document in support of the appeal, the Statute and Rules of Procedure and Evidence provide for mechanisms that ensure that the suspect can properly prepare for the trial even if the investigation of the crimes with which he is charged continues beyond the confirmation hearing. Notably, the obligation of the Prosecutor to disclose material and information does not end once the charges are confirmed. If the Prosecutor in the course of investigations post-confirmation hearing discovers further evidence on which he intends to rely at the trial or which is exonerating, the evidence must be disclosed to the suspect, as provided by the relevant provisions of the Statute and the Rules of Procedure and Evidence. Pursuant to article 64 (3) (c) of the Statute, the Trial Chamber shall "provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial." Thus, the rights of the defence to have adequate time and facilities for the preparation of the trial can be safeguarded even if the investigation continues beyond the confirmation of the charges. 56. The Appeals Chamber sees no merit in the argument advanced by Counsel for Mr. Lubanga Dyilo that, based on article 53 (2) of the Statute, the Prosecutor is under an obligation to conclude the investigation prior to moving before the PreTrial Chamber even to seek a warrant of arrest. Article 53 (2) of the Statute addresses a situation where the Prosecutor has concluded that there is no sufficient basis for a prosecution and therefore decides not to pursue the prosecution of the case any further. Steps leading towards prosecution, on the other hand, may be taken in the course of an ongoing investigation: pursuant to article 58 (1) of the Statute, a warrant of arrest may be issued "[a]t any time after the initiation of an investigation" as long as the Pre-Trial Chamber, on the basis of the Prosecutor's application, is satisfied inter alia that there are "reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court". The Pre-Trial Chamber may find "reasonable grounds to believe" even prior to the conclusion of investigations

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on the basis of the sufficiency of the evidence or other information submitted by the Prosecutor. Similarly, 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. If further investigations lead the Prosecutor to 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.

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Article 61(5): Confirmation hearing – Use of summary evidence by the Prosecution – The Prosecution can rely on summaries at the confirmation hearing without any further condition

S61-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 42-43:

42. Pursuant to article 61 (5), second sentence, of the Statute the Prosecutor at the confirmation hearing "may rely on documentary or summary evidence and need not call the witnesses expected to testify at trial." 43. 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.

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Article 61(5): Confirmation hearing – Use of summary evidence by the Prosecution – Summaries shall reveal the essence, substance and provenance of the evidence, notably the identity of the witness – Exception of article 68(5)

S61-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, Dissenting opinion of Judge Pikis, paras.4-8:

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4. Article 61 (3) (b) of the Statute imposes a duty upon the Prosecutor to inform the defence of the evidence on which he intends to rely at the confirmation hearing. The decision rests with him, subject to the duty cast by article 67 (2) of the Statute to necessarily disclose to the defence exculpatory evidence. The obligation to disclose conforms to the notion of a fair trial requiring the Prosecutor to apprise the defence of the evidence upon which the prosecution shall rely, a step necessary for the preparation of the defence of the person charged or the accused. The discharge of this duty is regulated by rules 76 and 77 of the Rules of Procedure and Evidence. 5. Article 61 (3) of the Statute gives expression to the rights of the accused under article 67 (1) (b) of the Statute requiring that he/she be afforded with "adequate time and facilities for the preparation of the defence", a right likewise assured to the person charged by virtue of rule 121 (1) of the Rules of Procedure and Evidence. 6. Non-disclosure disentitles the Prosecutor from relying on the evidence at the confirmation hearing, as article 61 (3) (b) of the Statute indicates, unless such a course is specifically authorized by the Statute or the Rules of Procedure and Evidence. The duty to disclose must be discharged the latest 30 days prior to the confirmation hearing (rule 121 (3) of the Rules of Procedure and Evidence) and exceptionally 15 days beforehand (rule 121 (4) of the Rules of Procedure and Evidence). 7. The Prosecutor is not bound to adduce before the Pre-Trial Chamber a witness' statement or a piece of documentary evidence in its entirety. Article 61 (5) of the Statute gives him/her the option to submit a summary instead. Such a summary must invariably reveal the essence and substance of the evidence. The summary must no doubt include reference to the provenance of a witness' statement, i.e. 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. The production of a summary of the statement of a witness itself or other evidence under article 61 (5) of the Statute rather than the statement of the witness itself is meant to provide a compendious way of laying the Prosecutor's case before the Pre-Trial Chamber. 8. By way of exception to the rule laid down in article 61 (3) (b) of the Statute, article 68 (5) empowers the Prosecutor to withhold disclosure of a witness' statement from the defence and provide him/her in lieu of it with a summary, if deemed necessary, and to the extent necessary, for the protection of witnesses where disclosure would gravely endanger their safety or that of their families. Such a summary may leave out even significant aspects of a statement or a documentary piece of evidence. Disclosure of such parts of the evidence may be withheld prior to the commencement of the trial but not afterwards.

Part 6 – The Trial Article 62 – Place of the Trial Unless otherwise decided, the place of the trial shall be the seat of the Court.

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Article 63 –Trial in the Presence of the Accused 1. The accused shall be present during the trial. 2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 64 – Functions and Powers of the Trial Chamber 1. The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence. 2. The 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. 3. Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall: (a) Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings; (b) Determine the language or languages to be used at trial; and (c) Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial. 4. The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division. 5. Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused. 6. In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary: (a) Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11; (b) Require the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute; (c) Provide for the protection of confidential information; (d) Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties; (e) Provide for the protection of the accused, witnesses and victims; and

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(f) Rule on any other relevant matters. 7. The trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article 68, or to protect confidential or sensitive information to be given in evidence. 8. (a) At 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. It shall afford him or her the opportunity to make an admission of guilt in accordance with article 65 or to plead not guilty. (b) At the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute. 9. The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence; and (b) Take all necessary steps to maintain order in the course of a hearing. 10. The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.

Article 65 – Proceedings on Admission of Guilt 1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether: (a) The accused understands the nature and consequences of the admission of guilt; (b) The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and (c) The admission of guilt is supported by the facts of the case that are contained in: (i) The charges brought by the Prosecutor and admitted by the accused; (ii) Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and (iii) Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused. 2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. 3. Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt as not having

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been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber. 4. Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may: (a) Request the Prosecutor to present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber. 5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.

Article 66 – Presumption of Innocence 1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

PRE-TRIAL CHAMBERS x

Article 66: Presumption of innocence and necessity to protect victims – Prosecution’s full access to victims’ identity does not breach the presumption of innocence

S66-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006, pp. 5-7:

ATTENDU que la Chambre est d'avis que donner au Procureur accès aux demandes de participation complètes ne soulève pas une question relative à l'équité de la procédure eu égard aux devoirs et pouvoirs de ce dernier en matière d'enquêtes au sens de l'article 54 du Statut et notamment au fait qu'il « a égard aux intérêts et à la situation personnelle des victimes et des témoins », ATTENDU par ailleurs, que la Chambre considère que ne pas divulguer l'identité des demandeurs à la Défense n'est pas constitutive d'une atteinte à la présomption

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d'innocence reconnue à Thomas Lubanga Dyilo mais que cela constitue une mesure permettant aux demandeurs de faire une demande de participation tout en préservant leur sécurité et leur bien-être,

Article 67 – Rights of the Accused 1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; (b) 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; (c) To be tried without undue delay; (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it; (e) 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 conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute; (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; (g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence; (h) To make an unsworn oral or written statement in his or her defence; and (i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal. 2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she 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 prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

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Article 67(1): Right to a fair trial – Equality of arms

S67-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006, p. 7:

ATTENDU par ailleurs, que les critères d'appréciation de l'égalité des armes tiennent aux circonstances de l'affaire et à la situation de fait à l'origine de la saisine de la Chambre, ATTENDU que l'égalité des armes implique l'obligation d'offrir à chaque partie une possibilité raisonnable de présenter sa cause, y compris ses preuves dans des conditions qui ne la placent pas dans une situation de net désavantage par rapport à son adversaire(67) ; ATTENDU que la Chambre est d'avis que donner au Procureur accès aux demandes de participation complètes ne soulève pas une question relative à l'équité de la procédure eu égard aux devoirs et pouvoirs de ce dernier en matière d'enquêtes au sens de l'article 54 du Statut et notamment au fait qu'il « a égard aux intérêts et à la situation personnelle des victimes et des témoins », ————————— (67) CEDH, 27 octobre 1993, Dombo Beheer c. Pays-Bas, Série A, n°247.

——— Official Translation ——— CONSIDERING moreover that the criteria for assessing the equality of arms are based on the circumstances of the case and on thede facto situation which resulted in the matter originally being referred to the Chamber, CONSIDERING that equality of arms implies the obligation to provide each party with a reasonable opportunity to present his cas to the court, including evidence, in circumstances which do not place him at a substantial disadvantage vis-à-vis the opposing party (67); CONSIDERING that the Chamber is of the opinion that to grant the Prosecutor access to the full applications for participation des not raise an issue of the fairness of the proceedings in view of the obligations and powers of the Prosecutor in respect of nvestigations and within the meaning of article 54 of the Statute and in particular the fact that “[he] respects the interests and personal circumstances of victims and witnesses”, ————————— (67) CEDH, 27 October 1993, Dombo Beheer v. The Netherlands, Series A, no 274.

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Article 67(1) (a): Right to be informed promptly and in detail – Language which the accused fully understands and speaks –

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Order to prioritise documents in the language the accused understands

S67-PT-2

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

CONSIDERING that Mr Thomas Lubanga Dyilo has the right to access all documents filed in Annexes A, Al to A10, B, BI, B2, C and Cl to C10 to the Prosecution's Submission as well as the documents filed by the Prosecution pursuant to the present decision as soon as he is transferred to the premises of the Court in The Hague or as soon as practicable thereafter; CONSIDERING that from the two official languages of the Court, French is also one of the official languages of the DRC; that it appears from the Prosecution's Application for a warrant of arrest against Mr. Thomas Lubanga Dyilo that French is a language that he fully understands and speaks(5); and that it would be preferable, where a French version exist, to have available first the redaction of the French versions of the documents; ————————— (5) ICC-01/04-01/06-13-US-Exp, para. 66; and ICC-01/04-01/06-32-US-Exp-AnxA, para. 55.

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Article 67(1) (a): Right to be informed promptly and in detail – Language which the accused fully understands and speaks – Disclosure of evidence in a language, other than working languages, which the accused understands (admissible)

S67-PT-3

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

CONSIDERING that between 9 June and 23 August 2006, the Prosecution disclosed 18 video excerpts to the Defence; that, on 28 August 2006, the Prosecution included the said video excerpts in the Prosecution List of Evidence filed along with the Prosecution Charging Document; and that prior to the filing of the Defence Request on 2 November 2006, the Defence had not raised the issue of the lack of translation, nor it has requested a translation, of any of these video excerpts into one of the two working languages of the Court; CONSIDERING that the Defence now requests that the Chamber order that nine of the said 18 video excerpts be excluded from the list of evidence on which the Prosecution intends to rely at the confirmation hearing because these videos are partially or predominantly in Swahili;

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CONSIDERING that pursuant to article 61 (3) of the Statute, within a reasonable time before the hearing, Thomas Lubanga Dyilo must be provided with a copy of a document containing the charges on which the Prosecutor intends to bring him to trial and be informed of the evidence on which the Prosecutor intends to rely at the confirmation hearing; and that, pursuant to article 67 (1) of the Statute, in the determination of any charge, Thomas Lubanga Dyilo is inter alia entitled to be informed promptly and in detail of the nature, cause and content of the charge, in a language which he fully understands and speaks; CONSIDERING that the above-mentioned material was transmitted to the Defence between 9 June and 23 August 2006, and that Thomas Lubanga Dyilo fully understands and speaks Swahili; […] FOR THESE REASONS DECIDE, pursuant to article 69 (4) of the Statute, to declare inadmissible for the purpose of the confirmation hearing those video excerpts: (i) which are not translated into one of the working languages of the Court by Thursday 9 November 2006 at 9h30; and (ii) whose translation into one of the working languages of the Court is not made available to the Chamber and the Defence by the said time-limit;

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Article 67(1) (a): Right to be informed promptly and in detail – Includes right to obtain transcripts of hearing held under Article 58 and a copy of supporting materials

S67-PT-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Redacted Version of the Transcripts of the Hearing Held on 2 February 2006 and Certain Materials Presented During that Hearing (PT), 22 March 2006:

CONSIDERING that Mr Thomas Lubanga Dyilo has the right to access a redacted version of the hearing held ex parte and in closed session with the Prosecution on 2 February 2006 as soon as he is transferred to the premises of the Court in The Hague; CONSIDERING that Mr Thomas Lubanga Dyilo has the right to access as soon as he is transferred to the premises of the Court in The Hague those materials presented in the hearing held on 2 February 2006 and incorporated in the record of the case against him with the reference numbers ICC-01/04-01/06-18-US-Exp and ICC01/04-01/06-19-US-Exp; CONSIDERING that the said documents consist of the Statute of the Union des Patriots Congolais REDACTED; and that no redaction is needed in order to make these documents available to Mr Thomas Lubanga Dyilo as soon as he is transferred to the premises of the Court in The Hague;

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Article 67(1) (b): Right to have adequate facilities for the preparation of the defence – Accused’s unrestricted access to a computer in the Detention Unit for purpose of accessing evidence and materials

S67-PT-5

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

DECIDE that as soon as practicable after this decision has been issued, the Registry shall make the necessary arrangements to provide Thomas Lubanga Dyilo with unrestricted access to a computer terminal in the Detention Unit for the purpose of accessing the evidence and materials exchanged between the parties, and that any practical or security concerns shall be raised with the single judge at the latest at the status conference on 24 May 2006;

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Article 67(1) (f): Right to have free assistance of an interpreter and such translations “as are necessary to meet the requirements of fairness” – Limits – Charging document and list of evidence

S67-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Requests of the Defence of 3 and 4 July 2006 (PT), 4 August 2006, p.4-7:

CONSIDERING that Thomas Lubanga Dyilo fully understands and speaks French(9), which is one of the official working language of the Court; CONSIDERING that although rule 22(1) of the Rules requires only that Counsel for the Defence “have an excellent knowledge of and be fluent in at least one of the working languages of the Court”, the Defence has to date filed motions in French and in English, which are two working languages of the Court; CONSIDERING that article 67(1)(a), (c) and (f) of the Statute provides for the right of Thomas Lubanga Dyilo: (i) “to be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks”; (ii) “to be tried without delay”; and (iii) “to have, free of cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirement of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks”; CONSIDERING that rule 76(3) of the Rules is the only provision which expressly imposes upon the Prosecution a statutory obligation to provide the Defence with evidentiary materials in a language which Thomas Lubanga Dyilo fully understands and speaks;

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CONSIDERING that the European Court of Human Rights (“the ECHR”) ruled in the Leudicke Case that “the right, stated in article 6(3)(e) of the [European Convention on Human Rights](10), to the free assistance of an interpreter applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. Paragraph 3(e) signifies that a person “charged with a criminal offence” who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him […] in order to have the benefit of a fair trial”(11); CONSIDERING, however, the same Court ruled in the Kamasinski Case that the right to the free assistance of an interpreter for the translation or interpretation of court documents by determining that article 6(3)(e) European Convention on Human Rights “does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. The interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of events”;(12) CONSIDERING that the right set out in article 67(1)(a) of the Statute grants Thomas Lubanga Dyilo the right to be informed in detail of the nature, cause and contents of the charges against him(13) as opposed to granting him a general right to receive all documents from the Prosecution in a language he fully understands and speaks; that the Chamber is of the view that the detailed description of the charges together with a list of evidence (“the Charging Document and List of Evidence”) provided for in rule 121(3) of the Rules will adequately inform Thomas Lubanga Dyilo of the nature, cause and content of the charges against him; and that the rights of Thomas Lubanga Dyilo under article 67(1)(a) of the Statute would be duly guaranteed by the filing by the Prosecution in the record of the case against Thomas Lubanga Dyilo in a French version of the Charging Document and List of Evidence and, as the case may be, of the Amended Charging Document and List of Evidence within the time limits provided for in rule 121(3), (4) and (5) of the Rules; CONSIDERING, that by using the words “as are necessary to meet the requirements of fairness”, article 67(1)(f) of the Statute does not grant Thomas Lubanga Dyilo the right to have all procedural documents and all evidentiary materials disclosed by the Prosecution translated into a language that Thomas Lubanga Dyilo fully understands and speaks; and that this interpretation is fully consistent with the case law of the ECHR on this matter(14); […] CONSIDERING, nevertheless, that in the view of the Chamber, Thomas Lubanga Dyilo would greatly benefit from the permanent assistance of a French interpreter in order to facilitate his adequate knowledge of the evidentiary materials and procedural documents filed by the Prosecution, as well as his proper understanding of the decisions and orders of the Chamber pending their official written translations; […]

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DENY the request of the Defence to order the Prosecution to provide in French all documents that the Prosecution, pursuant to the Statute and the Rules, is obliged to disclose to the Defence for the purpose of the confirmation hearing; DENY the request of the defence to have all future deadlines in the proceedings to run from the date of receipt of the French version of the procedural documents by the Defence; ————————— (10) European Convention on Human Rights, Rome, 4 November 1950, Article 6(3)(e): “Everyone charged with a criminal offence has the following minimum rights: (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court”. (11) Case of Leudicke v. Germany [ECHR] Applications no. 6210/73; 7132/75 (1978), par. 48. (12) Case of Kamasinski v. Austria [ECHR] Application No. 9783/82, Judgment, 19 December 1989, par. 74. (13) See the following cases of the ICTY where a balance is made between the right to a fair and expeditious trial and the requests that all evidentiary materials be translated in a language which the accused fully understands and speaks: The Prosecutor v Mladen Naltetilić, Case No. IT-98-34, Decision on Defence’s Motion Concerning Translation of all Documents, 12 October 2001; and The Prosecutor v LJUBICIC, Case No. IT-00-41, Décision relative à la requête de la défense aux fins de la traduction de tous les documents, 20 novembre 202. (14) Case of Leudicke v. Germany [ECHR], Applications no. 6210/73; 7132/75 (1978), par. 48; Case of Kamasinski v. Austria [ECHR] Application No. 9783/82, Judgement, 19 December 1989, par. 74.

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Article 67(2): Disclosure of exculpatory evidence – “As soon as practicable” – Obligation runs from the surrender of the accused to the Court

S67-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Requesting Observations of the Prosecution and the Duty Counsel for the Defence on the System of Disclosure and Establishing an Interim System of Disclosure (PT), 23 March 2006:

CONSIDERING that, in addition to the prosecution's obligation to disclose to the defence within a reasonable period of time the Incriminating Evidence pursuant to article 61 (3) (b) of the Statute, the surrender of Mr Thomas Lubanga Dyilo to the Court on 17 March 2006 triggered the obligation of the prosecution under article 67 (2) of the Statute to disclose, as soon as practicable, to the defence "evidence in the Prosecutor's possession or control which he or she believes shows or intends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence" (the "Exculpatory Evidence");

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Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Disclosure record – Related course of action by the Prosecution – Disclosure of the whole exculpatory evidence in the possession or control of the Prosecution

S67-PT-8

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

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No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 118-119, 123-129, 131-133: DECIDE that, pursuant to article 67 (2) of the Statute, after each act of disclosure the Prosecution shall file in the record of the case against Thomas Lubanga Dyilo a disclosure note signed by both the Prosecution and the Defence which shall include a list of the items disclosed and their reference numbers; […] 2- As soon as the Prosecution has identified an item of potentially exculpatory material within the scope of article 67 (2) of the Statute, the Prosecution shall: (i) disclose it to the Defence; (ii) bring to the attention of the Chamber any delay in disclosure caused by the procedure under article 54 (3) (e), 72 or 93 of the Statute; or (iii) request an exception to the disclosure requirement under rule 81 of the Rules; 3- The parties shall make every effort to agree on the frequency of the exchanges with a view to ensuring that most of potentially exculpatory materials within the scope of article 67 (2) of the Statute in the current case against Thomas Lubanga Dyilo are disclosed as soon as practicable and no later than 2 June 2006; […] 118. In the view of the single judge, under rules 79 and 80 of the Rules, the Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends to rely at trial. However, because of its current knowledge of its case against Thomas Lubanga Dyilo, the Prosecution must be already in a position to identify most of the books, documents, photographs or other tangible objects in its possession or control which are material to the Defence's preparation. IV. Disclosure of Potentially Exculpatory Materials pursuant to article 67 (2) of the Statute 119. Under article 67 (2) of the Statute and rule 77 of the Rules, the Prosecution must disclose three types of materials to the Defence before the confirmation hearing even if it does not intend to rely on them at the hearing. In the view of the single judge, none of these materials can be considered evidence stricto sensu insofar as they will not, in principle, be presented at the confirmation hearing unless the Defence decides to propose them in its list of evidence pursuant to rule 121 (6) of the Rules. […] 123. In the view of the single judge, the scope of the Prosecution's obligation under article 67 (2) of the Statute does not depend on the evidence the Prosecution intends

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to use at the confirmation. Instead, it depends only on the charges against Thomas Lubanga Dyilo and the factual allegations which support them. Hence, the single judge considers that whenever new charges, or new factual allegations supporting the current charges, are alleged, the scope of the Prosecution's obligation to disclose potentially exculpatory materials will widen. 124. The single judge disagrees with the Prosecution's view that the bulk of the disclosure of potentially exculpatory materials must take place after the confirmation hearing. 125. Considering that the Prosecution acknowledges that, unless the charges are amended, the material scope of its obligation to disclose potentially exculpatory materials is the same before and after the confirmation hearing, the single judge is of the view that a literal interpretation of article 67 (2) of the Statute leaves no doubt as to the requirement for the Prosecution to discharge this obligation "as soon as practicable". The fact that, as a result of the Defence's decision not to reveal its defence before the confirmation hearing, the Prosecution might identify some materials as exculpatory after such a hearing can only be an exception and not the general rule. 126. Furthermore, in the view of the single judge, the period between the initial appearance of Thomas Lubanga Dyilo on 20 March 2006 and 27 June 2006, the date scheduled for the confirmation hearing, makes it fully practicable to disclose most of the potentially exculpatory materials in the Prosecution's possession or control before the confirmation hearing. 127. Moreover, although following the procedure provided for in articles 54 (3) (e), 72 or 93 of the Statute might delay disclosure of some potentially exculpatory materials, the single judge considers that (i) such instances can only amount to a fraction of the overall potentially exculpatory materials in the possession or control of the Prosecution; and (ii) the period between the initial appearance of Thomas Lubanga Dyilo and the above-scheduled date of the confirmation hearing enables the Prosecution to undertake the necessary efforts to undergo such a procedure and, if necessary, to file applications pursuant to rule 81 (4) of the Rules. 128. The contextual and teleological interpretations of article 67 (2) of the Statute lead to the same conclusion: the intention of articles 61 (3), 67 (1) (b) and 67 (2) of the Statute is that the Defence should be in a position to prepare adequately for the confirmation hearing as soon as practicable. This includes the decision on the scope of its defence and the selection of the evidence on which it intends to rely at the hearing. 129. The single judge considers that in order to achieve the above it is not only necessary that the Defence be informed within a reasonable time before the confirmation hearing of the case the Prosecution intends to make, but also that the Prosecution disclose the potentially exculpatory materials in its possession or control as soon as practicable before the hearing. Only at that point the Defence will be in a position to decide which of these materials it will present as evidence at the confirmation hearing. […]

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131. Therefore, except for exceptional circumstances which might justify subsequent isolated acts of investigation, the investigation must be completed by the time the confirmation hearing starts, and the Prosecution must be in possession or control of most, if not all, the potentially exculpatory materials which it must disclose under article 67 (2) of the Statute before the start of the confirmation hearing. 132. The single judge considers that the Prosecution's practice of not disclosing material which is both incriminating and potentially exculpatory runs contrary to the Prosecution's obligation to disclose the potentially exculpatory material in its possession or control as soon as practicable. 133. In the view of the single judge, the Prosecution might be obliged to disclose such material under two different sets of provisions of the Statute and the Rules. The fact that the Prosecution may not yet be obliged to disclose the evidence on which it intends to rely at the confirmation hearing – pursuant to the provisions regulating the Prosecution's obligations in this respect - has no impact on the Prosecution's obligation to disclose "as soon as practicable" any material which might fall within the ambit of article 67 (2) of the Statute. Were this not so, the fundamental guarantee offered to the Defence by this provision would be deprived of its content.

x

Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Definition of “exculpatory evidence”: includes information that may affect the credibility of Prosecution Witnesses

S67-PT-9

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials (PT), 2 November 2006, p. 3:

CONSIDERING that, as conceded by the Prosecution at the 2 November 2006 hearing, the information referred to in the First Defence Request may affect to the credibility of those witnesses on whom the Prosecution intends to rely at the confirmation hearing; and that, therefore, such information falls within the scope of article 67 (2) of the Statute;

x

Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Definition of “exculpatory evidence”: includes criminal records of Prosecution witnesses – If such information may lead to their identification, disclosure of a summary of criminal records

S67-PT-10

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials (PT), 2 November 2006, p. 3:

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CONSIDERING, however, that revealing all details of their criminal record may lead to the identification of those witnesses for which the Chamber has authorised, pursuant to rule 81 (4) of the Rules, the non-disclosure of their identity to the Defence; and that, therefore, in relation to such witnesses the Defence must be provided with a summary of their criminal record which shall (i) contain the main elements of their criminal record so as to allow the Defence to challenge the credibility of their statements; (ii) exclude those details that could lead to the identification of the relevant witnesses;

x

Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Definition of “exculpatory evidence”: includes information that Prosecution witnesses were initially interviewed with suspect status under Article 55(2)

S67-PT-11

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials (PT), 2 November 2006, p. 5:

ORDER the Prosecution to: - Inform the Chamber and the Defence by Friday 3 November 2006 at 15h00 who are the witnesses on whom the Prosecution intends to rely at the confirmation hearing and who were interviewed by the Prosecution with "suspect status" pursuant to article 55 (2) of the Statute - if the Chamber has authorised that the identity of the relevant witness(es) not be disclosed to the Defence, the Prosecution should refer to the code number used for such witnesses when providing the information required by the Final Decision on the E-Court Protocol;

x

Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Definition of “exculpatory evidence”: includes potentially exculpatory excerpts of witnesses’ statements on whose oral or written testimony the Prosecutor intends to rely at the confirmation hearing

S67-PT-12

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 36-38:

36. In the view of the single judge, the right of the Defence pursuant to article 67 (2) of the Statute to disclosure "as soon as practicable" of any potentially exculpatory excerpts contained in the statements of witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing:

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i. is closely linked to its right pursuant to article 67 (1) (b) of the Statute to have adequate time and facilities to prepare for the confirmation hearing; and ii. is of the utmost importance for effective exercise by the Defence of its right under article 61 (6) (b) of the Statute to challenge the evidence presented by the Prosecution at such a hearing; 37. Furthermore, the single judge considers that the right to a fair hearing provided for in the chapeau of article 67 (1) of the Statute, interpreted in accordance with internationally recognised human rights standards, permits the competent Chamber in appropriate circumstances to exceed the specific terms of article 67, as shown by the express reference to "minimum guarantees" in the chapeau of such provision. (25) 38. As a result, the single judge considers that interpretation of rule 81 (2) and (4) of the Rules "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" (26), and in particular in light of articles 61 (6) and 67 (1) and (2) of the Statute, leaves no room to authorise redaction of potentially exculpatory excerpts from the statements of witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing; (27) […] DECIDES that no redaction of potential exculpatory excerpts from the statements of witnesses on whom the Prosecution intends to rely at the confirmation hearing shall be granted pursuant to Applications under rule 81 (2) or (4) of the Rules; DECIDES that any redaction in the statements of witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing in order not to prejudice the ongoing investigation in the case against Thomas Lubanga Dyilo: (i) shall be temporary and (ii) shall not be maintained beyond the 15-day time limit provided for in rule 121 (4) and (5) of the Rules; ————————— (25) The Inter-American Court of Human Rights has advanced a similar practice in relation to article 8 of the American Convention on Human Rights. As the Court has held in its Advisory Opinion 11/90, 10 August 1990, para. 24, although this provision "[...] provides that every person has the right to a hearing, with due guarantees by a tribunal in both types of proceedings, it spells out in addition certain minimum guarantees for those accused of a criminal offense. Thus, the concept of a fair hearing in criminal proceedings also embraces, at the very least, those minimum guarantees. By labeling these guarantees as minimum guarantees the Convention assumes that other, additional guarantees may be necessary in specific circumstances to ensure a fair hearing." This interpretation is also consistent with the use made by the European Court of Human Rights of the general right to a "fair hearing" in order to fill some of the gaps in article 6 (3) of the European Convention on Human Rights and Fundamental Freedoms (See Harris, D.J., O'Boyle, M, and Warbrick, C, Law of the European Convention on Human Rights, Butterworths, 1995, pp. 202-203). (26) Article 31 (1) of the Vienna Convention on the Law of Treaties. (27) Not only in relation to potentially exculpatory excerpts included in the statements of the witnesses on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing, but with regard to the broader question of the Prosecution's obligation to disclose potentially exculpatory sensitive information, May, R. and Wierda, M., have stated that on the one hand, the "Prosecution is not relieved of its duty to disclose exculpatory

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material by rules concerning confidentiality or witness protection"; on the other hand, in exceptional circumstances some redactions of "irrelevant but sensitive portions of a document" can be authorised by the Chamber (May, R., Wierda, M., International Criminal Evidence. Transnational Publishers, 2002, p. 79).

x

Article 67(2): Disclosure of exculpatory evidence prior to the confirmation hearing – Definition of “exculpatory evidence”: includes sections of evidence struck inadmissible which could contain information of a potentially exculpatory nature or otherwise could be material for the Defence

S67-PT-13

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006, pp.6-7: 30

CONSIDERING, however, that, pursuant to article 67 (2) of the Statute and Rule 77 of the Rules, the Prosecution must as soon as practicable disclose to the Defence as filed in the Third Prosecution Application: (i) the part of the proposed summary evidence declared inadmissible in the present decision which could contain information of a potentially exculpatory nature or otherwise could be material for the Defence's preparation for the confirmation hearing; and (ii) those documents declared inadmissible in the present decision which could contain information of a potentially exculpatory nature or otherwise could be material for the Defence's preparation for the confirmation hearing;

APPEALS CHAMBER x

Article 67(1) (c): Right to be tried without undue delay – Expeditiousness is an attribute of fair trial – Applicability at all stages of the proceedings

S67-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006, para.11:

11. 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

30

See also, but on the basis of Rule 77, Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials, 2 November 2006, p. 4

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corresponding human rights, incorporated in the Statute by distinct provisions of it (article 64(2) and 67(1)) and article 21(3); making its interpretation and application subject to internationally recognized human rights. The expeditious conduct of the proceedings in one form or another constitutes an attribute of a fair trial.(13) 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. Breach of or deviation from the rules of a fair trial at the pre-trial stage of the proceedings may have implications on the proceedings and may affect the outcome of the trial. Purging the pre-trial process of errors consequential in the above sense is designed as a safeguard for the integrity of the proceedings. This is at the core of article 82(1)(d) of the Statute.

Article 68 – Protection of the Victims and Witnesses and their Participation in the Proceedings 1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness. 3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered 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. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6. 5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is

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not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

PRE-TRIAL CHAMBERS x

Article 68(1): Protection of victims – Measures of protection – Identification of members of Defence team – Return of documents – VWU training – Restricted contact with witnesses

S68-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses (PT), 19 September 2006:31

CONSIDERING that the recent deterioration of the security situation in some parts of the Democratic Republic of the Congo ("the DRC") has had an impact on the range of protective measures currently available to and feasible for witnesses on whom the Prosecution or the Defence intends to rely at the confirmation hearing; that, in these circumstances, it is necessary to adopt several general measures for the protection of Prosecution and Defence witnesses in the context of the proceedings leading to and during the confirmation hearing; and that, in the event the charges are confirmed, the said general measures could also be applicable in those proceedings leading to the commencement of the trial; CONSIDERING the submissions of the parties at the hearing on 29 August 2006, and in particular in relation to (i) the role of the Victims and Witness Unit in providing training and advice in all matters related to its areas of responsibility; (ii) the proper mechanism to contact witnesses accepted into the witness protection program run by the Victims and Witnesses Unit or on whom the other party intends to rely at the confirmation hearing; and (iii) the importance of enhancing cooperation in matters related to the protection of witnesses with the DRC, other States Parties, non-States Parties and intergovernmental organisations; CONSIDERING that at the hearing on 29 August 2006 the Defence had no objection to providing the Chamber with the names of the members of the Defence team who have access to non-public information and/or materials concerning those witnesses on whom the Prosecution or the Defence intend to rely at the confirmation hearing; and that, in the view of the Chamber, the adoption of this measure vis-à-vis the Prosecution will not be effective given the numerous persons that have access to such information and/or materials within the Office of the Prosecutor. FOR THESE REASONS

31

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

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ORDER: (i) the Defence to provide to the Pre-Trial Chamber a list of names of the members of the Defence team who have access to non-public information and/or materials concerning the witnesses on whom the Prosecution or the Defence intend to rely at the confirmation hearing; (ii) the Prosecution and the Defence to ensure that any member leaving the Prosecution and Defence teams returns to that team all non-public information and/or materials concerning those witnesses on whom the Prosecution and Defence intend to rely at the confirmation hearing; (iii) the Prosecution and the Defence to consult with, and to be trained by, the Victims and Witnesses Unit on all matters relating to that unit, and in particular in relation to (a) guidelines for investigators to minimise exposure to risk, and (b) measures available to ensure confidentiality, secure handling of documents and secure communications; (iv) the Registrar, acting under the authority of the President of the Court when so required under regulation 107 of the Regulations of the Court, to treat as a matter of urgency the negotiation of cooperation agreements and ad hoc arrangements on matters related to the protection of witnesses with the DRC, other States Parties and non-States Parties, MONUC and other intergovernmental organisations. These cooperation agreements and ad hoc arrangements shall in particular seek to enhance (a) national capacity to protect witnesses and (b) cooperation with the Court in order to protect witnesses working within their structures or accepted within their national witness protection programmes (which could include inter alia redeployment outside risk areas); DECIDE : (i) that all contact by the Prosecution and the Defence with witnesses on whom they intend to rely at the confirmation hearing and who have been accepted into the witness protection programme run by the Registry shall be arranged through the Victims and Witnesses Unit; (ii) that all contact by the Prosecution and the Defence with witnesses on whom the other party intends to rely at the confirmation hearing and who have been accepted into the witness protection programme run by the Victims and Witnesses Unit shall be (a) subject to the prior approval of the Chamber and (b) arranged through the Victims and Witnesses Unit; (iii) that all contact by the Prosecution and the Defence with witnesses on whom the other party intends to rely at the confirmation hearing, for whom non-disclosure of identity has not been granted and who are not part of the witness protection programme run by the Victims and Witnesses Unit, shall take place as follows: a. no prior authorisation of the Chamber shall be required; b. the party wishing to contact the witness shall inform the party which intends to rely on the relevant witness; c. the party which intends to rely on the relevant witness shall (i) ask the witness whether he/she agrees to be interviewed by the other party,

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and (ii) if the witness has no objection, give the other party the witness' contact details; d. the party wishing to contact the witness shall inform the party which intends to rely on the relevant witness of the time and place of any scheduled interview so as to allow the latter to be present at the beginning of the interview with the witness.

x

Article 68(1): Protection of victims – Measures of protection Victim applicants under Rule 89 – Redaction of application towards the Defence – Defence’s right to apply for leave to appeal redaction

S68-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Motion for Leave to Appeal (PT), 18 August 2006, pp.7-8:

CONSIDERING that, in the view of the Chamber, it is necessary to distinguish between: (i) the non-disclosure of the identity of the Applicants, pursuant to article 68 (1) of the Statute and rule 89 (1) of the Rules, during the application process; and (ii) the non-disclosure of the identity of the Applicants, pursuant to rules 87 and 88 of the Rules, once (a) they have been granted the status of victims of the case; and (b) the manner in which they will participate in the proceedings of the case to be held before the Chamber has been determined; CONSIDERING that, in the view of the Chamber, the procedure under article 68 (1) of the Statute and rule 89 (1) of the Rules in relation to the Applicants' requests for non-disclosure of their identity during the application process allows for a decision on such requests before notice of such requests is given to the Prosecution and the Defence; that this is because, during the application process, the Applicants have not yet been granted the procedural status of victim in the case against Thomas Lubanga Dyilo, which means that their entitlement to participate in this case remains uncertain; and that, given the particular circumstances of the Applicants, resorting to this procedure was necessary; CONSIDERING that this procedure did not prejudice the procedural rights of the Defence under rule 89 (1) of the Rules to reply to the Applications because the Defence, within the time limits provided for in rule 155 of the Rules, could have filed a motion requesting the lifting of all or part of the redactions and, in the alternative, leave to appeal against the Decision Establishing a Deadline; […]

x

Article 68(1): Protection of victims – Measures of protection Victim applicants under Rule 89 – Redaction of application towards the Defence - Prosecution provided with unredacted version on ground of its obligation of confidentiality, awareness

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of the situation of the applicants and obligation to protect victims under Article 68(1) – Restriction of contacts between organs of the Court and victims

S68-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (PT), 21 July 2005:32

CONSIDERING that according to rule 89, paragraph 1 of the Rules, the Prosecutor and the Defence are entitled to reply to any application for participation within the time limits set by the Pre-Trial Chamber; and that in order to place them in a position to effectively exercise this right the Registrar shall provide them a copy of any application for participation; CONSIDERING that the format in which the copy of any application for participation is to be transmitted to the Prosecutor and the Defence is "subject to the provisions of the Statute, in particular to article 68, paragraph 1"; and that article 68, paragraph 1 of the Statute mandates the Pre-Trial Chamber, as well as the other organs of the Court, to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of the victims without prejudicing or being inconsistent with the rights of the accused and a fair and impartial trial; CONSIDERING further that, according to article 57, paragraph 3 (c) of the Statute, one of the functions of the Pre-Trial Chamber is to provide, where necessary, for the 32

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing a Deadline for the Prosecution and the Defence to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/0401/06, Décision autorisant le Procureur et la Défense à déposer des observations sur les demandes des requérants a/0004/06 à a/0009/06 et a/0016/06 à 1/0046/06 et a/0047/06 à a/0052/06 dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo (Decision authorising the Prosecutor and the Defence to file observations on the applications of applicants a/0004/06 to a/0009/06, a/0016/06 to a/0046/06 and a/0047/06 to a/0052/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo) (PT), 4 August 2006 ; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative aux requêtes de la Défense et de l’Accusation concernant la prorogation de délai (Decision on the Defence and Prosecution Applications for Extension of Deadline) (PT), 16 août 2006 ; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Décision autorisant le dépôt d’observations sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06 et a/0071/06 (Decision authorising the filing of observations on the applications for participation in the proceedings a/0004/06 to a/0009/06, a/0016/06 to a/0063/06 and a/0071/06) (PT), 22 September 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Décision autorisant le dépôt d’observations sur les demandes de participation à la procédure a/0072/06 à a/0080/06 et a/0105/06 (Decision authorising the filing of observations on applications for participation in the proceedings a/0072/06 to a/0080/06 and a/0105/06) (PT), 29 September 2006.

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protection and privacy of the victims and witnesses; and that rule 86 of the Rules establishes as a general principle that the Pre-Trial Chamber in making any direction or order, as well as the other organs of the Court in performing their functions under the Statute and the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68 of the Statute; CONSIDERING, therefore, that when the security situation of an applicant so requires, the Pre-Trial Chamber may instruct the Registrar to transmit to the Prosecutor and the Defence a redacted copy of his or her application for participation having expunged any information that could lead to his or her identification, such as the applicant's identity and the place and time in which he or she was allegedly victimised; CONSIDERING however that the scope of the redactions cannot exceed what is strictly necessary in light of the applicant's security situation and must allow for a meaningful exercise by the Prosecution and the Defence of their right to reply to the application for participation; […] CONSIDERING that the Pre-Trial Chamber is satisfied that the Applicants are currently facing serious security risks in the DRC;(1) CONSIDERING that the Pre-Trial Chamber is satisfied that the Applicants' current circumstances require that the ad hoc counsel for the Defence be provided with a redacted copy of the applications after having expunged any information that could lead to their identification, including the Applicants' identity and the place and time in which they have allegedly been victimized; CONSIDERING that the proceedings concerning the DRC record are still at the stage of investigation of the situation; REDACTED; and that, therefore, under the current circumstances the scope of the redactions allows for a meaningful exercise by the ad hoc counsel for the Defence of his right to reply to the Applications and it is in no way prejudicial to, or inconsistent with, the rights of the accused and a fair and impartial trial; CONSIDERING that according to rule 5, paragraph 1 (b) and rule 6, paragraphs 1 and 2 of the Rules, the Prosecutor, the Deputy Prosecutors and all staff members of the Office of the Prosecutor are bound by the principle of confidentiality; that to date the Pre-Trial Chamber has no indication of any breach of such confidentiality obligations; and that according to article 68, paragraph 1 of the Statute, the Prosecutor is also under an obligation to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses; CONSIDERING further that the Prosecutor is already aware of the situation of many victims, including in particular that of the Applicants, and that there are no indications that the transmission of unredacted copies of the Applications to the Prosecutor will increase the security risks that they currently face; […] ORDERS the Registrar by 29 July 2005 to provide: (i) The Prosecutor with an unredacted copy of the Applications;

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(ii) The ad hoc Counsel for the Defence with a redacted copy of the Applications after having expunged any information that could reveal the identification of the Applicants, including the Applicants' identity, and the places and times of the events referred to in their statements; ORDERS all organs of the Court to abstain from any direct contact with the Applicants, and only to contact them through their legal representative REDACTED if strictly necessary. ————————— (1) REDACTED

x

Article 68(1): Protection of victims – Measures of protection Anonymity – Anonymous participation to the confirmation hearing (granted) - Consequences of anonymity on modalities of participation – Prohibition of anonymous accusations

S68-PT-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing) (PT), 22 September 2006:

ATTENDU qu'en l'espèce, les victimes a/0001/06 à a/0003/06 ont demandé avec insistance que leur identité demeure confidentielle dans le cadre des procedures aboutissant à l'audience de confirmation des charges ainsi qu'à cette audience, ATTENDU que la récente détérioration de la sécurité dans certaines régions de la République démocratique du Congo (RDC) a eu des répercussions sur l'éventail de mesures de protection actuellement disponibles et susceptibles d'être mises en oeuvre pour protéger les victimes a/0001/06 à a/0003/06, lesquelles sont particulièrement vulnérables et résident en RDC dans des zones à risque ; et que, dans ce contexte et après examen minutieux de chaque cas, la non-communication de l'identité de ces victimes à la Défense aux fins de l'audience de confirmation des charges demeure pour l'heure la seule mesure de protection disponible et susceptible d'être mise en oeuvre pour les protéger comme il se doit, ATTENDU que le Statut de Rome se distingue par l'importance qu'il accorde à la participation des victimes à la procédure, ATTENDU que dans les circonstances de l'espèce, les victimes concernées nepeuvent participer à la procédure de manière effective que si leur anonymat est préservé, ATTENDU, par conséquent, qu'il revient à la Chambre de déterminer des modalités de participation compatibles avec l'anonymat des victimes a/0001/06 à a/0003/06, ATTENDU qu'en principe, la participation anonyme des dites victimes à ce stade de la procédure devrait se limiter à i) un accès aux documents publics uniquement et ii) une présence aux audiences publiques uniquement ; mais que la Chambre se

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réservela possibilité de faire une exception à ce principe en cas de circonstances exceptionnelles, ATTENDU qu'en vertu de la règle 89-1 du Règlement, les victimes ont la possibilité de faire des déclarations au début et à la fin des audiences auxquelles elles sont conviées, ATTENDU que le Représentant légal des victimes a la possibilité de demander l'autorisation d'intervenir lors des sessions publiques de l'audience de confirmation des charges et que la Chambre se prononcera au cas par cas sur la base des principes établis dans la présente décision, ATTENDU cependant qu'il serait porté atteinte au principe fondamental interdisant les accusations anonymes s'il était permis aux victimes a/0001/06 à a/0003/06 d'ajouter quelque élément de fait ou de preuve que ce soit au dossier présenté à rencontre de Thomas Lubanga Dyilo par l'Accusation dans le document de notification des charges et l'inventaire des éléments de preuve; et que de l'avis de la Chambre, il s'ensuit que les victimes a/0001/06 à a/0003/06 ne sauraient interroger les témoins selon la procédure prévue à la règle 91-3 du Règlement, […] DÉCIDE que les Représentants des victimes participeront à l'audience de confirmation des charges selon les modalités exposées ci-dessous : i) A moins que la Chambre n'en décide autrement au vu de circonstances exceptionnelles, les Représentants des victimes a/0001/06 à a/0003/06 : a. recevront notification uniquement des documents publics contenus dans le dossier de l'affaire Le Procureur c. Thomas Lubanga Dyilo, b. n'assisteront qu'aux conférences de mise en état ou aux parties de ces conférences qui se tiendront en public, à commencer par la conférence de mise en état prévue pour le 26 septembre 2006 à 14 heures, c. n'assisteront qu'aux parties de l'audience de confirmation des charges qui se tiendront en public ; ii) Les représentants des victimes pourront : a. de présenter des observations au début et à la fin de l'audience de confirmation des charges ; b. demander lors des sessions publiques de l'audience de confirmation des charges l'autorisation d'intervenir, la Chambre statuant alors au cas par cas sur la base des principes établis dans la présente décision ; iii) Les représentants des victimes ne pourront pas d'ajouter quelque élément de fait ou de preuve; iv) Les représentants des victimes ne pourront pas interroger les témoins selon la procédure prévue à la règle 91-3 du Règlement ; DIT que c'est seulement si les victimes acceptent la communication de leur identité à la Défense, que la Chambre examinera la question de savoir si elles pourraient être

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autorisées à participer d'une autre manière dans la procédure qui se déroule devant la Chambre préliminaire dans l'affaire Le Procureur c/ Thomas Lubanga Dyilo.

——— Official Translation ——— CONSIDERING that in this case, victims a/0001/06 to a/0003/06 have insistently requested that their identities remain confidential during the proceedings leading to and at the confirmation hearing ; CONSIDERING that the recent deterioration in the security situation in certain regions of the Democratic Republic of the Congo (DRC) has had repercussions on the range of protective measures currently available and which might be implemented to protect victims a/0001/06 to a/0003/06 who are particularly vulnerable and live in risk areas of DRC; and that, in this context and following a meticulous examination of each case, non-disclosure of these victims’ identities to the Defence for the purpose of the confirmation hearing, remains at present the only protective measure available and which might be implemented to duly protect them; CONSIDERING that the Rome Statute is distinctive in the importance it affords to the participation of victims in proceedings; CONSIDERING that in the circumstances of the case, the victims concerned can participate in proceedings effectively only if their anonymity is preserved; CONSIDERING therefore that, the Chamber must determine which arrangements for participation are compatible with the anonymity of victims a/0001/06 to a/0003/06; CONSIDERING that, in principle, the anonymous participation of the said victims at the stage in proceedings should be limited to: i) access to the public documents only; and ii) presence at the public hearings only; but that Chamber retains the option to make an exception to this principle in the event of exceptional circumstances; CONSIDERING that under rule 89(1) of the Rules, it is possible for victims to make opening and closing statements at hearings to which they are invited; CONSIDERING that it is possible for the victims’ legal representatives to request leave to intervene during the public sessions of the confirmation hearing and that the Chamber will rule case-by-case and on the basis of the principles established in this decision; CONSIDERING, however, that the fundamental principle prohibiting anonymous accusations would be violated, if victims a/0001/06 to a/0003/06 were permitted to add any point of fact or any evidence at all to the Prosecution’s case-file presented against Thomas Lubanga Dyilo in the notification of charges document and the list of evidence; and that, in the opinion of the Chamber, victims a/0001/06 to a/0003/06 would therefore not be able to question the witnesses according to the procedure set out in rule 91(3) of the Rules; […] DECIDES that the Victims’ Representatives will participate in the confirmation hearing according to the arrangements set out below:

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i) Unless the Chamber decides otherwise in light of exceptional circumstances, the representatives of victims a/0001/06 to a/0003/06: a. will receive notification of the public documents contained in the record of the case The Prosecutor vs. Thomas Lubanga Dyilo; b. will attend only the status conferences or the parts of these conferences which are to be held in public, starting with the status conference scheduled for 14.00 on 26 September 2006; c. will attend only those parts of the confirmation hearing held in public; ii) The Victims’ Representatives may: a. make opening and closing statements at the confirmation hearing; b. request during the public sessions of the confirmation hearing, leave to intervene, in which case the Chamber will rule case-by-case and on the basis of the principles established in this decision; iii) The Victims’s Representatives will not be able to add any any point of fact or any evidence; iv) The Victims’ Representatives will not be able to question the witnesses according to the procedure set out in rule 91(3) of the Rules; STATES that only if the victims agree to the disclosure of their identities to the Defence, will the Chamber examine the issue of determining whether they could be granted leave to participate in another manner in the proceedings taking place before the Pre-Trial Chamber in the case The Prosecutor vs. Thomas Lubanga Dyilo.

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Article 68(1): Protection of victims – Link between Article 68(1) and Rules 87-89 – Prosecution’s full access to victims’ identity does not breach the presumption of innocence

S68-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006, pp. 5-7:

ATTENDU que la Chambre rappelle qu'il est nécessaire de faire la distinction entre (i) la non-divulgation de l'identité des Demandeurs au cours de la procédure de demande de participation, conformément à l'article 68-1 du Statut et à la règle 89-1 du Règlement et (ii) la non-divulgation de l'identité des Demandeurs, conformément aux règles 87 et 88 du Règlement, dès lors a) qu'ils se sont vu accorder la qualité de victimes dans l'affaire et b) que les modalités de leur participation auront été définies(65),

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ATTENDU que les règles 87 à 89 du Règlement émanent de l'article 68 (1) du Statut, ATTENDU que la règle 89 (1) fait spécifiquement référence aux demandes relatives à la participation des victimes à la procédure ; qu'en conséquence la non-divulgation à ce stade de la procédure de l'identité des Demandeurs à la Défense est une mesure décidée proprio motu par la Chambre en application de l'article 68 (1) du Statut et de la règle 89(1) du Règlement, ATTENDU par ailleurs que la règle 87 du Règlement n'est pas applicable aux requêtes ou demandes de mesures de protection vis-à-vis du Procureur ou de la Défense ; que les mesures visées par cette règle concernent, en principe, les mesures protection vis-à-vis du public, de la presse ou des agences d'information; qu'en conséquence la règle 87 (2) (a) impose que ces requêtes ou demandes ne soient pas présentées ex parte, ATTENDU que seules les modalités de participation et les mesures de protection accordées à des personnes dont la qualité de victimes autorisée à participer à la procédure a été reconnue, peuvent soulever, le cas échéant, une question de nature à affecter de manière appréciable le déroulement équitable et rapide de la procédure(66), […] ATTENDU que la Chambre est d'avis que donner au Procureur accès aux demandes de participation complètes ne soulève pas une question relative à l'équité de la procédure eu égard aux devoirs et pouvoirs de ce dernier en matière d'enquêtes au sens de l'article 54 du Statut et notamment au fait qu'il « a égard aux intérêts et à la situation personnelle des victimes et des témoins », ATTENDU par ailleurs, que la Chambre considère que ne pas divulguer l'identité des demandeurs à la Défense n'est pas constitutive d'une atteinte à la présomption d'innocence reconnue à Thomas Lubanga Dyilo mais que cela constitue une mesure permettant aux demandeurs de faire une demande de participation tout en préservant leur sécurité et leur bien-être, ————————— (65) ICC-01/04-01/06-338. (66) ICC-01/04-01/06-462, pages 6 et 7.

——— Official Translation ——— CONSIDERING that the Chamber recalls that it is necessary todistinguish between (i) the non-disclosure of the identity of the Applicants during the application for participation procedure, in accordance with article 68 (1) of the Statute and rule 89 (1) of the Rules and (ii) the non-disclosure of the identity of the Applicants in accordance with rules 87 and 88 of the Rules, once a) they have been granted the status of victim in the case and b) that the manner in which they will participate has been defined(65), CONSIDERING that rules 87 to 89 of the Rules derive from article 68 (1) of the Statute, CONSIDERING that rule 89 (1) specifically refers to the applications for the participation of victims in the proceedings and that, accordingly, the non-disclosure

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of the identity of the applicants to the Defence at this stage in the proceedings is a measure decided proprio motu by the Chamber in application of article 68 (1) of the Statute and rule 89 (1) of the Rules, CONSIDERING moreover that rule 87 of the Rules does not apply to requests or applications for protective measures vis-à-vis the Prosecutor or the Defence; that the measures covered by this rule in principle concern the protective measures vis-à-vis the public, the press or news agencies; and that consequently rule 87 (2) (a) requires that these applications or requests not be presented ex parte, CONSIDERING that only the arrangements for participation and the protection measures granted to persons whose status as victims authorised to participate in the proceedings has been recognised may raise, if applicable, an issue which might significantly affect the fair and expeditious conduct of the proceedings(66), […] CONSIDERING that the Chamber is of the opinion that to grant the Prosecutor access to the full applications for participation does not raise an issue of the fairness of the proceedings in view of the obligations and powers of the Prosecutor in respect of investigations and within the meaning of article 54 of the Statute and in particular the fact that “[he] respects the interests and personal circumstances of victims and witnesses”, CONSIDERING moreover that the Chamber holds that not disclosing the identity of the applicants to the Defence does not constitue an infringement of the presumption of innocence afforded to Thomas Lubanga Dyilo but constitutes a measure allowing the applicants to make an application for participation whilst protecting their security and well-being, ————————— (65) ICC-01/04-01/06-338. (66) ICC-01/04-01/06-462, pages 6 et 7.

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Article 68(1): Protection of witnesses – Measures of protection – Reclassification of a public decision as confidential and publication of a public redacted version

S68-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Reclassifying Document Number ICC-01/04-01/06-690, 9 November 2006, p. 2:

NOTING the “Decision on the Motion by the Defence to exclude anonymous hearsay testimony of the Prosecution witness”, issued by the single judge on 8 November 2006, and registered as public document ICC-01/04-01/06-690 in the record of the case of the Prosecutor vs Thomas Lubanga Dyilo; NOTING articles 57(3)(c) and 68(1) of the Statute; CONSIDERING that there is a need to reclassify the document INN-01/04-01/06690 as a confidential document and to publicise the public redacted version included in the Annex to the present decision ;

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Article 68(1): Protection of witnesses – Psychological well-being and dignity – Witness familiarisation is mandatory – Difference with witness proofing – Role of the Victims and Witnesses Unit

S68-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing (PT), 8 November 2006, paras. 14-15, 18-23, 27, 39:

14. […] On the one hand, the Prosecution explains that the practice of witness proofing "allows assisting the witness testifying with the full comprehension of the Court proceedings, its participants and their respective roles, freely and without fear"(18). This goal is accomplished through the following measures which, according to the Prosecution, are part of the practice of witness proofing: i. "To provide the witness with an opportunity to acquaint him/herself with the Prosecution's Trial Lawyer and other whom may examine the witness in Court; ii. To familiarise the witness with the Courtroom, the Participants to the Court proceedings and the Court proceedings; iii. To reassure the witness about his/her role in the Court proceedings; iv. To discuss matters that are related to the security and safety of the witness, in order to determine the necessity of applications for protective measures before the Court; v. To reinforce to the witness that he/she is under a strict legal obligation to tell the truth when testifying; vi. To explain the process of examination-in-chief, cross-examination and reexamination;" (19) 15. In the view of the Chamber, this first component of the definition of the practice of witness proofing advanced by the Prosecution aims at preparing the witness to give oral evidence before the Court in order to prevent being taken by surprise or being placed at a disadvantage due to ignorance of the Court's proceedings. The Chamber observes that this first component consists basically of a series of arrangements to familiarise the witnesses with the layout of the Court, the sequence of events that is likely to take place when the witness is giving testimony, and the different responsibilities of the various participants at the hearing. […] 18. Regarding the first component of the definition of the practice of witness proofing advanced by the Prosecution, the Chamber observes that those arrangements referred to in paragraphs 16 (i) to (vi) and 17 (i) of the Prosecution Information are generally referred to as "witness preparation" for giving oral testimony or "witness familiarisation" with the Court proceedings as opposed to "witness proofing".

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19. The rationale behind the practice of witness preparation or familiarization has been thoroughly explained by the Court of Appeal in R. v. Momodou [2005] EWCA Crim 177 (England and Wales) as follows: This principle does not preclude pre-trial arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balance appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pretrial visit to the court, are generally to be welcome. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness's own uncontaminated evidence [...]." (22) 20. In the view of the Chamber, there are several provisions of the Statute and Rules which, without being referred to as "witness preparation", "witness familiarisation" or "witness proofing", encompass the measures contained in paragraphs 16 (i) to (vi) of the Prosecution Information in order to assist the witness in the experience of giving oral evidence before the Court so as to prevent the witness from finding himself or herself in a disadvantageous position, or from being taken by surprise as a result of his or her ignorance of the process of giving oral testimony before the Court. 21. In this regard, the Chamber is particularly mindful of: i. article 57 (3) (c) of the Statute, which imposes on the Chamber the duty to provide, where necessary, for the protection of victims and witnesses; ii. article 68 (1) of the Statute which imposes upon the different organs of the Court within the scope of their competency, including the Chamber, the duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses; iii. rules 87 and 88 of the Rules, which provide for a series of measures for the protection of the safety, physical and psychological well-being, dignity and privacy of the witnesses, including measures to facilitate their testimony; 22. Moreover, the Chamber observes that article 43 (6) of the Statute imposes upon the Registrar the duty to set up a Victims and Witnesses Unit (" the VWU") within the Registry, which in consultation with the Office of the Prosecution, shall provide protective measures and security arrangements, counselling and other appropriate assistance for witnesses. Furthermore, rules 16 (2) and 17 (2) (b) of the Rules, when elaborating on the functions of the VWU, expressly state that, in accordance with the

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Statute and the Rules, and in consultation when appropriate with the Chamber, the Prosecution and the Defence, the said unit shall perform inter alia the following functions in relation to witnesses: i. Assisting witnesses when they are called to testify before the Court;(23) ii. Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings; (24) iii. Informing witnesses of their rights under the Statute and the Rules;(25) iv. Advising witnesses where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (26) v. Assisting witnesses in obtaining medical, psychological and other appropriate assistance; (27) and vi. Providing witnesses with adequate protective and security measures and formulating long-term and short-term plans for their protection; (28) 23. Hence, the Chamber considers that those measures included in paragraph 16 (i) to (vi) of the Prosecution Information are not only admissible in light of the abovementioned provisions of the Statute and the Rules, but are mandatory according to such provisions. Moreover, it is the view of the Chamber that labelling this practice as "witness proofing" is not suitable for the content of this practice, and that the expression "witness familiarisation" is more appropriate in this context. […] 27. Finally, from a teleological perspective, the Chamber considers that this approach will contribute to the full achievement of the object and purpose of the above-mentioned provisions, which is to ensure that the practice of "witness familiarisation" provides a thorough and objective preparation of witnesses for giving oral evidence before the Court. In the view of the Chamber, this would avoid from the outset any risk that witnesses may be confronted with one-side interpretations of the Statute and the Rules(30) and would make moot any allegation that the practice of "witness familiarisation" might be used to influence the testimony of the witnesses in some way. […] 39. As explained by the Bar Council of England and Wales in the most recent version of its "Guidance on witness preparation",(44) this provision cannot be read in isolation but must be read in light of the 2005 decision of the Court of Appeal in R v. Momodou, in which the Court of Appeal addressed at length the distinction between "witness coaching" and "witness familiarization". According to the Court of Appeal: "There is a dramatic distinction between witness training or coaching and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted [...] Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the

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witness may come even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be improved [...].” (45) ————————— (18) ICC-01/04-01/06-638-Conf, para. 17 (i). (19) ICC-01/04-01/06-638-Conf, para. 16 (i) to (vi). (22) R v. Momodou [2005] EWCA Crim 177, para. 62. (23) Rule 17(2) (b) (ii) of the Rules. (24) Rule 17 (2) (b) (iii) of the Rules. (25) Rule 16 (2) (a) of the Rules. (26) Rule 17 (2) (b) (i) of the Rules. (27) Rule 17 (2) (a) (iii) of the Rules. (28) Rules 17 (2) (a) (i) of the Rules. (30) For instance, the Chamber finds that rule 140 of the Rules does not use the expressions "examination-in-chief", "cross-examination" and "re-examination", which have a very technical and specific meaning in a number of national jurisdictions, and instead uses expressions such as "question the witness" or "examine the witness". Therefore, within the process of witness familiarisation, the VWU shall inform the witness of the process of its examination by the Prosecution and the Defence, as opposed to the process of "examinationin-chief", "cross-examination" and "re-examination" referred to by the Prosecution in paragraph 16 (vi) of the Prosecution Information. (45) R v Momodou [2005] EWCA Cnm 177, para. 61.

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Article 68(3): Participation of victims – Scope of victims’ right to participate - Dispositions of Article 68 are not limited to proceedings before the Trial Chamber – Right to participate to the different stages of the proceedings, including the investigation – “Personal interests” requirement

S68-PT-8

33

o Situation en République Démocratique du Congo, No. ICC-01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 25, 42, 45-46, 50-54, 57-64:33

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, paras. 46-47 ; Situation in the Democratic Republic of Congo,, No. ICC-01/04, Décision relative à la Requête des demandeurs a/0001/06 à a/0003/06 aux fins de pouvoir

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25. Le Bureau du Procureur, dans son mémoire, conteste l’applicabilité à ce stade de la procédure de l’article 68-3 du Statut pour les raisons suivantes. Il expose premièrement, qu’il n’y a pas à proprement parler de procédure au sens de l’article 68-3 du Statut durant la phase de l’enquête(27) car, d’un point de vue terminologique, le mot procédure ne couvre pas l’enquête concernant une situation (28). D’un point de vue contextuel, l’article 68 se trouve dans le chapitre VI du Statut, intitulé « Le procès »(29), et la règle 92 limite la participation des victimes aux stades de la procédure mentionnés aux dispositions 2 et 3 de cette règle(30). Deuxièmement, la participation des victimes au stade de l’enquête est inappropriée (31). Troisièmement, les demandeurs n’ont pas démontré que leurs intérêts personnels étaient concernés au stade de l’enquête(32). […] 42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le déroulement de la procédure devant la Chambre de première instance (45) et des articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). […] 45. La Chambre fait observer que l’article 68 s’intitule « Protection et participation au procès des victimes et des témoins ». La Chambre estime que le paragraphe premier de l’article 68, en imposant à la Cour une obligation générale de « prend[re] les mesures propres à protéger la sécurité, le bien-être physique et psychologique, la dignité et le respect de la vie privée des victimes et des témoins », vise en particulier le stade de l’enquête. La Chambre note également l’absence de toute exclusion expresse du stade de l’enquête du champ d’application du paragraphe 3 de l’article 68 sur la question de la participation des victimes. 46. Par conséquent, il est systématiquement conforme avec les dispositions susmentionnées d’interpréter l’expression « procédure » dans la version française et « proceedings » dans la version anglaise à l’article 68-3 du Statut comme incluant le stade de l’enquête concernant une situation et accordant ainsi aux victimes un droit d’accès général à la Cour à ce stade, aux conditions prévues par une telle disposition. Cette analyse est également compatible avec le fait que l’article 68-1 vise spécifiquement le stade de l’enquête. […] 50. L’interprétation de l’article 68-3 du Statut comme étant applicable au stade de l’enquête est également en conformité avec l’objet et le but du régime de participation des victimes mis en place par les auteurs du Statut, qui est le résultat d’un débat qui s’est déroulé dans le contexte de l’importance croissante accordée au rôle des victimes par le corpus international des droits de l’homme et le droit international humanitaire(49). 51. De l’avis de la Chambre, le Statut confère aux victimes une voix et un rôle indépendants dans la procédure devant la Cour. Cette indépendance doit pouvoir répondre aux observations du Procureur et du Conseil de la Défense ad hoc (Translation not available) (PT), 7 juillet 2006.

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s’exercer notamment à l’égard du Procureur de la Cour pénale internationale afin que les victimes puissent exprimer leurs intérêts. Ainsi que la Cour européenne l’a réitéré à plusieurs reprises, une victime qui participe à la procédure pénale ne peut être considérée comme « l’adversaire du ministère public, ni d’ailleurs nécessairement comme son alliée, leur rôle et leurs objectifs étant clairement distincts » (50). 52. En outre, la Chambre fait observer, s’agissant des systèmes dans lesquels les victimes sont autorisées à participer à la procédure pénale (51), que la Cour européenne des droits de l’homme a appliqué l’article 6-1 de la Convention européenne de sauvegarde des droits de l’homme aux victimes à partir du stade de l’enquête et avant même la confirmation des charges, particulièrement lorsque l’issue de la procédure pénale est déterminante pour obtenir réparation du préjudice subi(52). 53. La Cour interaméricaine des droits de l’homme est arrivée à la même conclusion dans l’affaire Blake(53), où elle a appliqué l’article 8-1 de la Convention interaméricaine des droits de l’homme aux victimes participant à la procédure pénale depuis le stade de l’enquête. En effet, la Cour interaméricaine a décidé qu’il ressortait clairement de l’article 8 de la Convention que les victimes de violations des droits de l’homme ou leurs proches ont la possibilité d’agir durant la procédure pénale, à partir du stade de l’enquête et avant la confirmation des charges(54), dans le but d’obtenir une clarification des faits et la punition des coupables, et ont la possibilité de solliciter réparation du préjudice subi(55). La Chambre estime que l’article 68-3 du Statut confère également aux victimes le droit de participer à la lutte contre l’impunité. 54. Ayant exposé ses arguments terminologique, contextuel et téléologique, la Chambre considère que l’article 68-3 est applicable au stade de l’enquête concernant une situation. […] 57. La Chambre estime que la participation des victimes au stade de l’enquête concernant une situation, en tant que telle, ne donne pas l’impression que l’enquête ne présente pas le niveau d’intégrité et d’objectivité requis, et n’est pas intrinsèquement contraire aux principes fondamentaux d’efficacité et de sécurité. 58. La Chambre considère que l’élément essentiel, s’agissant de déterminer les incidences négatives sur l’enquête alléguées par le Bureau du Procureur, est l’étendue de la participation d’une victime et non sa participation en tant que telle. 59. À cet égard, la Chambre estime que donner aux personnes ayant la qualité de victimes le droit d’exposer de façon générale leurs vues et préoccupations quant à l’enquête concernant une situation et de déposer des pièces devant la Chambre préliminaire ne peut pas avoir d’incidences négatives sur l’enquête. Ce droit procédural ne comprend pas l’accès au « dossier de l’enquête » et n’affecte pas la capacité du Procureur de mener son enquête conformément aux exigences du Statut et particulièrement de l’article 54-1-a. 60. Si la Chambre décide de donner aux victimes le droit de participer à des activités procédurales spécifiques, elle prendra en application des articles 56 et 57 du Statut, les mesures nécessaires pour préserver l’intégrité de la procédure (57).

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2. Le critère des « intérêts personnels » au sens de l’article 68-3 du Statut 61. La participation des victimes en vertu de l’article 68-3 du Statut peut seulement avoir lieu « [l]orsque les intérêts personnels des victimes sont concernés ». 62. La Chambre constate que ce critère ne se retrouve pas dans les autres dispositions donnant aux victimes des droits spécifiques de participation, tels que, par exemple, les articles 15-3 et 19-3 du Statut. Ces articles octroient aux victimes un droit spécifique de participation. La Chambre fait observer que le critère des « intérêts personnels », énoncé de manière expresse à l’article 68-3, constitue une condition supplémentaire que les victimes devront remplir, en plus de la qualité de victimes qui leur sera accordée. 63. La Chambre considère que les intérêts personnels des victimes sont concernés de manière générale au stade de l’enquête puisque la participation des victimes à ce stade permet de clarifier les faits, de sanctionner les responsables des crimes commis et de solliciter la réparation des préjudices subis. 64. Néanmoins, cette appréciation générale, liée à la portée de la requête qui est présentée à la Cour et qui vise toute la procédure se déroulant devant cette dernière, n’exclut pas une appréciation plus spécifique des intérêts personnels des victimes en fonction des requêtes qui seront présentées par les victimes conformément aux modalités de participation des victimes à la procédure, telles que présentées cidessous. Lorsque la Chambre est saisie, comme c’est le cas en l’espèce, d’une demande de participation au reste de la procédure, sans qu’aucune requête ni demande de mesures ne soit jointe à cette demande, la Chambre doit statuer sur ladite demande en prenant en compte le stade de la procédure à laquelle la demande est présentée et le fait que les intérêts personnels des victimes sont concernés par le déroulement de la procédure au stade auquel les victimes souhaitent participer. […] REJETTE les arguments du Procureur selon lesquels il n’y a pas à proprement parler de procédure au sens de l’article 68-3 du Statut durant la phase de l’enquête, la participation des victimes au stade de l’enquête est inappropriée et les demandeurs n’ont pas démontré que leurs intérêts personnels étaient concernés au stade de l’enquête ; ————————— (27) La Réponse de l’Accusation, par. 13. (28) Ibid., par. 13. (29) Ibid., par. 18. (30) Ibid., par. 16. (31) Ibid., par. 30. (32) Ibid., par. 23 et 26. (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut. (49) SCHABAS, W.A., An Introduction to the International Criminal Court, Cambridge, Cambridge University Press, 2e édition, 2004, p. 172. (50) Cour européenne des droits de l’homme, Affaire Berger c. France, « Arrêt », 3 décembre 2002, requête n° 48221/99, par. 38 ; Cour européenne des droits de l’homme, Grande Chambre, Affaire Perez c. France, « Arrêt », 12 février 2004, requête n° 47287/99, par. 68. (51) Les systèmes qui ne prévoient pas le droit pour les victimes de participer à la procédure pénale, se sont dotés d’autres mécanismes permettant leur accès à la justice. Par exemple, en Angleterre et au Pays de Galles, outre le droit des victimes à obtenir réparation en vertu du

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Criminal Injuries Compensation Act du 8 novembre 1995 (UK ST 1995 c 53 s1, amendé le 1 er juillet 1999), le Ministère de l’intérieur (Home Office) a publié le 18 octobre 2005 le Code of Practice for Victims (qui entrera en vigueur en avril 2006 et qui remplace la Victims Charter, laquelle avait été adoptée en 1991 et modifiée en 1996), un document qui, pour la première fois, confère aux victimes de crimes des droits devant la loi. Ce Code énonce les prestations que les victimes peuvent attendre du système de justice pénale, dont le droit d’être informées dans des délais précis de la progression de l’enquête portant sur les crimes commis à leur encontre (sections 5.9 à 5.12), le droit d’être informées de toute arrestation (sections 5.14 à 5.17) et de la progression des affaires portées en justice (sections 5.18 à 5.35 et chapitres VII et VIII). D’autre part, en Irlande, outre le droit des victimes à engager une procédure en réparation en vertu du Garda Siochana Compensation Act du 7 août 1941 (N° 19, tel que modifié le 21 février 1945), du Criminal Justice Act du 27 juillet 1993 (6/1993, sections 6 à 9), et du Non-Statutory Scheme of Compensation for Personal Injuries Criminally Inflicted (instauré en 1974 et modifié en 1986), la Charter for Victims of Crime, promulguée en 1999 par le Ministère de la justice, de l’égalité et de la réforme du droit, contient également des dispositions spécifiques visant à tenir les victimes informées de la suite donnée à leurs plaintes, de la progression des procédures pénales et de l’issue de celles-ci. (52) Cour européenne des droits de l’homme, Affaire Moreira de Azevedo c. Portugal, « Arrêt », 23 octobre 1990, série A n° 189 ; Cour européenne des droits de l’homme, Affaire Tomasi c. France, « Arrêt », 27 août 1992, série A n° 241-A ; Cour européenne des droits de l’homme, Affaire Acquaviva c. France, « Arrêt », 21 novembre 1995, série A n° 333-A ; Cour européenne des droits de l’homme, Affaire Selmouni c. France, « Arrêt », 28 juillet 1999, requête n° 25803/94 ; Cour européenne des droits de l’homme, Affaire Calvelli et Ciglio c. Italie, « Arrêt », 17 janvier 2002, requête n° 32967/96; Cour européenne des droits de l’homme, Grande Chambre, Affaire Perez c. France, « Arrêt », 12 février 2004, requête n° 47287/99 ; Cour européenne des droits de l’homme, Affaire Antunes Rocha c. Portugal, « Arrêt », 31 mai 2005, requête n° 64330/01. (53) Cour interaméricaine des droits de l’homme, Affaire Blake c. Guatemala, « Arrêt », 24 janvier 1998, Série C n° 36. La Cour interaméricaine a confirmé de manière constante cette jurisprudence par la suite : voir ALDANA-PINDELL R., An emerging universality of justiciable victims' rights in the criminal process to curtail impunity for state-sponsored crimes, Human Rights Quaterly, Volume 26, N° 3, août 2004, p. 605. (54) Cour interaméricaine des droits de l’homme, Affaire Blake c. Guatemala, « Arrêt », 24 janvier 1998, Série C n° 36, par. 97. (55) Cour interaméricaine des droits de l'homme, Affaire Villagrán-Morales et al. c. Guatemala, «Arrêt », 19 novembre 1999, Série C n° 63, par. 227. (57) Une telle responsabilité est conférée à la Chambre préliminaire par le Statut, en particulier par l’article 56-1-b du Statut.

——— Official Translation ——— 25. In its memorandum, the Office of the Prosecutor challenges the applicability of article 68 (3) of the Statute at this stage of proceedings on the following grounds. First, there are, strictly speaking, no proceedings within the meaning of article 68 (3) of the Statute during the investigation phase(27) because, from a terminological point of view, the word proceedings does not encompass the investigation of a situation.(28) In terms of context, article 68 is in Part 6 of the Statute, which is entitled “The Trial”,(29) and rule 92 confines the participation of victims to the stages mentioned in sub-rules 2 and 3 of that rule. (30) Second, the participation of victims at the investigation stage is inappropriate.(31) Third, the Applicants failed to show that their personal interests were affected at the investigation stage. (32) […]

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42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber (45) and articles establishing general principles applicable to the different stages of the proceedings before the Court. (46) […] 45. The Chamber observes that article 68 is entitled “Protection of the victims and witnesses and their participation in the proceedings”. The Chamber considers that paragraph 1 of article 68, which imposes on the Court a general obligation to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses”, refers in particular to the investigation stage. The Chamber also notes the absence of any explicit exclusion of the investigation stage from the scope of application of paragraph 3 of article 68 on the question of victims’ participation. 46. It is therefore systematically consistent with the above-mentioned provisions to interpret the term “procedure” in the French version and “proceedings” in the English version of article 68 (3) of the Statute as including the stage of investigation of a situation, and therefore as giving victims a general right of access to the Court at this stage, subject to the conditions laid down in that regard. This analysis is also consistent with the fact that article 68 (1) refers specifically to the investigation stage. […] 50. The interpretation of article 68 (3) as being applicable to the investigation stage is also consistent with the object and purpose of the victims participation regime established by the drafters of the Statue, which ensued from a debate that took place in the context of the growing emphasis placed on the role of victims by the international body of human rights law and by international humanitarian law. (49) 51. In the Chamber’s opinion, the Statute grants victims an independent voice and role in proceedings before the Court. It should be possible to exercise this independence, in particular, vis-à-vis the Prosecutor of the International Criminal Court so that victims can present their interests. As the European Court has affirmed on several occasions, victims participating in criminal proceedings cannot be regarded as “either the opponent – or for that matter necessarily the ally – of the prosecution, their roles and objectives being clearly different”. (50) 52. Furthermore, the Chamber notes, with regard to systems in which victims are authorised to participate in criminal proceedings, (51) that the European Court of Human Rights has applied article 6 (1) of the European Convention on Human Rights to victims from the investigation stage, even before confirmation of the charges, particularly where the outcome of the criminal proceedings is of decisive importance for obtaining reparations for the harm suffered. (52) 53. The Inter-American Court of Human Rights reached the same conclusion in the Blake case,(53) in which it applied article 8 (1) of the American Convention on Human Rights to victims participating in criminal proceedings from the investigation stage. The Inter-American Court decided that it was clear from the terms of article 8 of the Convention that victims of human rights violations or their relatives are entitled to take steps during criminal proceedings, from the

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investigation stage and prior to confirmation of the charges,(54) to have the facts clarified and the perpetrators prosecuted, and are entitled to request reparations for the harm suffered.(55) The Chamber considers that article 68 (3) of the Statute also gives victims the right to participate in the fight against impunity. 54. Having presented its terminological, contextual and teleological arguments, the Chamber finds that article 68 (3) is applicable to the stage of investigation of a situation. […] 57. The Chamber considers that the participation of victims during the stage of investigation of a situation does not per se jeopardise the appearance of integrity and objectivity of the investigation, nor is it inherently inconsistent with basic considerations of efficiency and security. 58. The Chamber believes that the core consideration, when it comes to determining the adverse impact on the investigation alleged by the Office of the Prosecutor, is the extent of the victim’s participation and not his or her participation as such. 59. In this regard, the Chamber considers that giving persons with the status of victims the right to present in general terms their views and concerns regarding the investigation of a situation and to submit material to the Pre-Trial Chamber cannot have an adverse impact on the investigation. This procedural right does not entail giving access to the “record of the investigation” nor does it affect the Prosecutor’s capacity to conduct the investigation in conformity with the requirements of the Statute and in particular article 54 (1) (a). 60. If the Chamber decides to give victims the right to participate in specific procedural activities, it will take such measures as are necessary, under articles 56 and 57 of the Statute, to preserve the integrity of the proceedings. (57) 2. The criterion of “personal interests” within the meaning of article 68 (3) of the Statute 61. Pursuant to article 68 (3) of the Statute, victims can participate only “[w]here the personal interests of the victims are affected”. 62. The Chamber notes that this criterion is not included in other provisions that give victims specific rights of participation, such as articles 15 (3) and 19 (3) of the Statute. These articles accord a specific right of participation to victims. The Chamber submits that the “personal interests” criterion expressly set out in article 68 (3) constitutes an additional criterion to be met by victims, over and above the victim status accorded to them. 63. The Chamber considers that 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. 64. However, this general assessment, pertaining to the scope of the application filed with the Court which relates to the whole of the proceedings before it, does not rule out the possibility of a more specific assessment of victims’ personal interests based on the applications filed by victims in accordance with the modalities of the participation of victims in the proceedings set out below. Where the Chamber is

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seized, as in the present case, of an application to participate in the remainder of the proceedings to which no application or request for relief is appended, the Chamber must rule on the request, taking into account the stage of the proceedings at which the application is filed and the fact that the personal interests of the victims are affected by the conduct of the proceedings during the stage in which the victims wish to participate. […] REJECTS the Prosecutor’s arguments to the effect that there are, strictly speaking, no proceedings within the meaning of article 68 (3) of the Statute during the investigation stage, that the participation of the victims at the investigation stage is inappropriate, and that the applicants failed to show that their personal interests were affected at the investigation stage; ————————— (27) The Prosecution’s reply, para. 13. (28) Ibid, para. 13. (29) Ibid, para. 18. (30) Ibid, para. 16. (31) Ibid, para. 30. (32) Ibid, paras. 23 and 26. (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute. (49) W.A. Schabas, An Introduction to the International Criminal Court, Cambridge, Cambridge University Press, 2nd edn, 2004, p. 172. (50) European Court of Human Rights, Berger v. France, “Judgment, 3 December 2002, Application No. 48221/99, para. 38; European Court of Human Rights, Grand Chamber, Perez v. France, “Judgment”, 12 February 2004, Application No. 47287/99, para. 68. (51) Systems under which victims are not entitled to participate in criminal proceedings have other arrangements for giving them access to justice. For example, in England and Wales, in addition to victims’ right to obtain reparations under the Criminal Injuries Compensation Act of 8 November 1995 (UK ST 1995 c 53 s l, amended on 1 July 1999), the Home Office published the Code of Practice for Victims of Crime on 18 October 2005 (which will enter into force in April 2006 and which replaces the Victims Charter, adopted in 1991 and amended in 1996), a document which accords victims of crimes rights before the law for the first time. The Code sets out the benefits that victims may expect from the criminal justice system, including the right to be notified within specific time limits of progress in the investigation of crimes committed against them (sections 5.9 to 5.12), the right to be notified of any arrest (sections 5.14 to 5.17) and the right to be informed of the status of cases before the courts (sections 5.18 to 5.35 and chapters VII and VIII). Moreover, in Ireland, in addition to victims’ right to institute proceedings for reparations under the Garda Siochana Compensation Act of 7 August 1941 (No. 19, as amended on 21 February 1945), the Criminal Justice Act of 27 July 1993 (6/1993, sections 6 to 9) and the Non-Statutory Scheme of Compensation for Personal Injuries Criminally Inflicted (introduced in 1974 and amended in 1986), the Charter for Victims of Crime, promulgated in 1999 by the Ministry of Justice, Equality and Law Reform, also contains specific provisions aimed at keeping victims informed of action taken on their complaints, on the status of criminal proceedings and on their outcome. (52) European Court of Human Rights, Moreira de Azevedo v. Portugal, “Judgment”, 23 October 1990, Series A No. 189; European Court of Human Rights, Tomasi v. France, “Judgment”, 27 August 1992, Series A No. 241-A; European Court of Human Rights, Acquaviva v. France, “Judgment”, 21 November 1995, Series A No. 333-A; European Court of Human Rights, Selmouni v. France, “Judgment”, 28 July 1999, Application No. 25803/94; European Court of Human Rights, Calvelli and Ciglio v. Italy, “Judgment”, 17 January 2002,

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Application No. 32967/96; European Court of Human Rights, Grand Chamber, Perez v. France, “Judgment”, 12 February 2004, Application No. 47287/99 ; European Court of Human Rights, Antunes Rocha v. Portugal, “Judgment”, 31 May 2005, Application No. 64330/01. (53 ) Inter-American Court of Human Rights, Blake v. Guatemala, “Judgment”, 24 January 1998, Series C No 36. The Inter-American Court consistently reaffirmed this case law subsequently: see R. Aldana-Pindell, ‘An emerging universality of justiciable victims' rights in the criminal process to curtail impunity for state-sponsored crimes’, Human Rights Quarterly, Vol. 26, No. 3, August 2004, p. 605. (54) Inter-American Court of Human Rights, Blake v. Guatemala, “Judgment”, 24 January 1998, Series C, No. 36, para. 97. (55) Inter-American Court of Human rights, Villagrán-Morales et al. v. Guatemala, “Judgment”, 19 November 1999, Series C No. 63, para. 227. (57) Such responsibility is entrusted to the Pre-Trial Chamber by the Statute, particularly article 56 (1) (b).

x

Article 68 (3): Participation of victims – Modalities of victims’ participation: right to be heard, to express views and concerns, to file submissions and to have them considered, to participate in chamber’s proprio motu measures under Articles 56 (3) and 57 (3) (C), to attend public hearings and other hearings related to their interests, to request the chamber to order specific measures, to be informed on the proceedings and to be notified public documents and other documents related to their interests

S68-PT-9

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 70-76 :34

70. En ce qui concerne les modalités de la participation des victimes à la procédure, la Chambre doit faire en sorte que les victimes participent à la procédure d’une manière qui n’est ni préjudiciable ni contraire aux droits de la Défense. La Chambre a dans la présente espèce pris la décision de désigner un conseil ad hoc pour représenter les intérêts de la Défense(64). 71. Étant donné le contenu fondamental du droit d’être entendu, envisagé par l’article 68-3 du Statut, les personnes ayant obtenu la qualité de victimes seront habilitées, nonobstant toute procédure spécifique ayant lieu dans le cadre d’une telle enquête, à être entendues par la Chambre pour exposer leurs vues et préoccupations et à déposer des pièces en relation avec l’enquête en cours concernant la situation en RDC. S’agissant de l’article 68-3, la Chambre estime qu’il impose une obligation à la Cour vis-à-vis des victimes. L’utilisation du présent de l’indicatif dans la version 34

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative à la demande de participation des victimes a/0001/06 à a/0003/06 à la conférence de mise en état du 24 août 2006 (Translation not available) (PT), 17 August 2006.

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française du texte (« la Cour permet »)(65) ne laisse aucun doute sur le fait qu’au droit d’accès des victimes à la Cour correspond une obligation positive à la charge de celle-ci de leur permettre d’exercer ce droit de manière concrète et effective. Par conséquent, il échoit à la Chambre la double obligation, d’une part, de permettre aux victimes d’exposer leurs vues et préoccupations, et d’autre part, de les examiner. 72. Le droit de présenter leurs vues et préoccupations et de déposer des pièces en relation avec l’enquête en cours est le résultat du fait que les intérêts personnels des victimes sont concernés dans la mesure où c’est à ce stade que les personnes alléguées responsables des crimes dont elles ont souffert devront être identifiées, étape préliminaire à leur mise en accusation. Le lien étroit entre les intérêts personnels des victimes et l’enquête est d’autant plus important dans le régime établi par le Statut de Rome, étant donné l’effet qu’une telle enquête peut avoir sur les futures ordonnances en réparation en vertu de l’article 75 du Statut. 73. Concernant les procédures spécifiques à l’enquête concernant la situation en RDC, la Chambre distingue trois cas de figure. Premièrement, lorsque des procédures spécifiques seront initiées par la Chambre préliminaire de sa propre initiative en vertu des articles 56-3 et 57-3-c du Statut(66), la Chambre décidera au moment où de telles procédures seront initiées si les personnes ayant la qualité de victimes peuvent y participer. Pour arriver à cette décision, elle prendra en compte les incidences que de telles procédures spécifiques pourraient avoir sur leurs intérêts personnels. 74. Deuxièmement, lorsque des procédures spécifiques seront initiées par le Bureau du Procureur ou par le conseil représentant les intérêts généraux de la Défense, la Chambre fera la distinction entre les procédures devant avoir lieu de manière confidentielle ou à huis clos et celles présentant un caractère public. Concernant ces dernières, les personnes possédant la qualité de victimes auront le droit d’y participer, à moins que la Chambre n’en décide autrement après avoir déterminé les incidences que de telles procédures pourraient avoir sur leurs intérêts personnels. S’agissant des autres procédures spécifiques devant rester confidentielles, les personnes possédant la qualité de victimes n’auront pas le droit d’y participer, à moins que la Chambre n’en décide autrement compte tenu des incidences de telles procédures sur leurs intérêts personnels. 75. Troisièmement, les personnes possédant la qualité de victimes auront également le droit de demander à la Chambre préliminaire, en vertu de l’article 68-3 du Statut, d’ordonner des procédures spécifiques. La Chambre se prononcera sur ces demandes au cas par cas après avoir évalué leurs incidences sur les intérêts personnels des demandeurs. 76. En outre, d’après la règle 92-5 du Règlement de procédure et de preuve, les demandeurs ont le droit d’être informés de toute procédure devant la Cour, et notamment de la date des audiences et de leur éventuel report, et de la date à laquelle les décisions seront rendues. Au surplus, eu égard à la règle ci-dessus mentionnée, les demandeurs sont informés des demandes, conclusions, requêtes et autres pièces relatives à ces procédures spécifiques, soit qu’elles présentent un caractère public, soit que les personnes ayant la qualité de victimes soient autorisées à participer. Par conséquent, pour le moment, il ne sera pas octroyé aux demandeurs l’accès à tout document non public figurant dans le dossier de la situation en RDC.

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[…] DÉCIDE que lesdites victimes, dans l’exercice de leurs droits procéduraux en vertu de l’article 68-3 du Statut, pourront, devant la Chambre préliminaire et en relation avec l’enquête en cours : a) présenter leurs vues et préoccupations ; b) déposer des pièces ; c) demander à la Chambre préliminaire d’ordonner des mesures spécifiques ; ORDONNE au Greffier de notifier au représentant légal de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, VPRS 6 la présente décision; DÉCIDE que pour le moment, il ne sera pas octroyé à VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 ou à leur représentant l’accès à tout document non public figurant dans le dossier de la situation en RDC ; ORDONNE au Greffier d'informer le représentant légal de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6, conformément aux paragraphes 73 à 76 inclus de la présente décision. ————————— (64) « Décision relative aux mesures de protection sollicitées par les demandeurs 01/04-1/dp à 01/04-6/dp », 22 juillet 2005, n° ICC-01/04-72-Conf, p.6. (65) La version anglaise est « The Court shall permit ». (66) La Chambre peut également déclencher d’autres procédures de sa propre initiative, par exemple en application de la règle 103 du Règlement.

——— Official Translation ——— 70. With regard to the modalities of the participation of victims in the proceedings, the Chamber must ensure that their participation is not prejudicial to or inconsistent with the rights of the Defence. In this instance, the Chamber decided to appoint an ad hoc counsel to represent the interests of the Defence. (64) 71. In the light of the core content of the right to be heard set out in article 68 (3) of the Statute, persons accorded the status of victims will be authorised, notwithstanding any specific proceedings being conducted in the framework of such an investigation, to be heard by the Chamber in order to present their views and concerns and to file documents pertaining to the current investigation of the situation in the DRC. With regard to article 68 (3), the Chamber considers that it imposes an obligation on the Court vis-à-vis victims. The use of the present tense in the French version of the text (“la Cour permet”)(65) makes it quite clear that the victims’ guaranteed right of access to the Court entails a positive obligation for the Court to enable them to exercise that right concretely and effectively. It follows that the Chamber has a dual obligation: on the one hand, to allow victims to present their views and concerns, and, on the other, to examine them. 72. The right to present their views and concerns and to file material pertaining to the ongoing investigation stems from the fact that the victims’ personal interests are affected because it is at this stage that the persons allegedly responsible for the crimes from which they suffered must be identified as a first step towards their indictment. The close link between the personal interests of the victims and the

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investigation is even more important in the regime established by the Rome Statute, given the effect that such an investigation can have on future orders for reparations pursuant to article 75 of the Statute. 73. With regard to specific proceedings relating to the investigation of the DRC situation, the Chamber has identified three scenarios. First, when specific proceedings are initiated proprio motu by the Pre-Trial Chamber under article 56 (3) and article 57 (3) (c) of the Statute,(66) the Chamber will decide at the time of initiation of such proceedings whether persons having the status of victims may participate in them. In reaching such a decision, the Chamber will take into account the impact that such specific proceedings could have on their personal interests. 74. Second, when specific proceedings are initiated by the Office of the Prosecutor or by counsel representing the general interests of the Defence, the Chamber will make a distinction between proceedings that must be conducted confidentially or in closed session and public proceedings. In the latter case, persons having the status of victims will be entitled to participate unless the Chamber decides otherwise after determining the impact that such proceedings might have on their personal interests. In the case of other specific proceedings that must remain confidential, persons having the status of victims will not be entitled to participate unless the Chamber decides otherwise in the light of the impact of such proceedings on their personal interests. 75. Third, persons having the status of victims will also be entitled to request the Pre-Trial Chamber, pursuant to article 68 (3) of the Statute, to order specific proceedings. The Chamber will rule on such applications on a case-by-case basis after assessing their impact on the personal interests of the applicants. 76. Furthermore, pursuant to rule 92 (5) of the Rules of Procedure and Evidence, applicants are entitled to be notified of proceedings before the Court, including the date of hearings and any postponement thereof, and the date of delivery of the decision. Pursuant to the same rule, applicants are also notified of requests, submissions, motions and other documents relating to such specific proceedings, where they are held in public or where persons having the status of victims are authorised to participate. Accordingly, the applicants will not be given access for the time being to any non-public document contained in the record of the situation in the DRC. […] DECIDES that the said victims, in exercising their procedural rights pursuant to article 68 (3) of the Statute, may, before the Pre-Trial Chamber and in connection with the current investigation: (a) Present their views and concerns; (b) File documents; (c) Request the Pre-Trial Chamber to order specific measures; ORDERS the Registrar to notify the legal representative of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 of the present decision;

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DECIDES that, for the time being, VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 or their representative shall not be given access to any non-public document contained in the record of the situation in the RDC; ORDERS the Registrar to notify the legal representative of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, in accordance with paragraphs 73 to 76 inclusive of the present decision. ————————— (64) “Decision on protective measures requested by Applicants 01/04-1/dp to 01/04-6/dp”, 22 July 2005, No. ICC-01/04-72-Conf, p. 6. (65) The English version reads “The Court shall permit”. (66) The Chamber may also initiate other proceedings proprio motu, for example in pursuance of rule 103 of the Rules.

S68-PT-10

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision Establishing a Deadline for Final Submissions on the NFI’s Additional Report (PT), 8 February 2006:35

CONSIDERING that the proceedings related to the NFI's examination have been conducted confidentially and that they do not have any impact on the personal interests of participants VPRS 1 to VPRS 6 because they refer to incidents wholly unrelated to those in which they were allegedly victimised. FOR THESE REASONS DECIDES to give 15 days to the Prosecution and to the Ad Hoc Counsel for the defence to present their final observations on the NFI’s Additional Report.

x

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

S68-PT-11

35

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the

Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, para. 48.

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Confirmation Hearing) (PT), 22 September 2006:36 ATTENDU que s'agissant de la requête formulée par les Représentants des victimes aux fins d'obtenir l'accès à l'ensemble du dossier de la situation, il convient de rappeler que l'ensemble des documents du dossier de la situation qui sont pertinents au regard de l'affaire concernant Thomas Lubanga Dyilo ont déjà été transférés au dossier de celle-ci, ATTENDU qu'en vertu de la règle 91-2 du Règlement, les Représentants des victimes ont le droit d'assister et de participer à toute la procédure, dans les conditions fixées par la Chambre, ATTENDU que l'audience de confirmation des charges est une étape essentielle de la procédure, qui a pour but de déterminer s'il existe des preuves suffisantes donnant des motifs substantiels de croire que Thomas Lubanga Dyilo a commis chacun des crimes présentés par le Procureur dans son document du 28 août 2006 (15), ATTENDU en conséquence que, sous réserve que leur intervention se limite au cadre fixé par les charges portées à l'encontre de Thomas Lubanga Dyilo, les victimes peuvent participer à cette audience de confirmation des charges en exposant leurs vues et préoccupations afin de contribuer utilement à la répression des crimes dont elles allèguent avoir souffert et de pouvoir, le cas échéant, obtenir ultérieurement réparation des préjudices subis, […] DÉCIDE que les Représentants des victimes participeront à l'audience de confirmation des charges selon les modalités exposées ci-dessous : i) A moins que la Chambre n'en décide autrement au vu de circonstances exceptionnelles, les Représentants des victimes a/0001/06 à a/0003/06 : a. recevront notification uniquement des documents publics contenus dans le dossier de l'affaire Le Procureur c. Thomas Lubanga Dyilo, b. n'assisteront qu'aux conférences de mise en état ou aux parties de ces conférences qui se tiendront en public, à commencer par la conférence de mise en état prévue pour le 26 septembre 2006 à 14 heures, c. n'assisteront qu'aux parties de l'audience de confirmation des charges qui se tiendront en public ; ii) Les représentants des victimes pourront : a. de présenter des observations au début et à la fin de l'audience de confirmation des charges ;

36

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006, p. 14.

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b. demander lors des sessions publiques de l'audience de confirmation des charges l'autorisation d'intervenir, la Chambre statuant alors au cas par cas sur la base des principes établis dans la présente décision ; iii) Les représentants des victimes ne pourront pas d'ajouter quelque élément de fait ou de preuve; iv) Les représentants des victimes ne pourront pas interroger les témoins selon la procédure prévue à la règle 91-3 du Règlement ; DIT que c'est seulement si les victimes acceptent la communication de leur identité à la Défense, que la Chambre examinera la question de savoir si elles pourraient être autorisées à participer d'une autre manière dans la procédure qui se déroule devant la Chambre préliminaire dans l'affaire Le Procureur c/ Thomas Lubanga Dyilo. ————————— (15) ICC-01/04-01/06-356.

——— Official Translation ——— CONSIDERING that as regards the application made by the Victims’ Representatives for access to the entire record of the situation, it should be recalled that all the documents in the record of the situation which are relevant to the case pertaining to Thomas Lubanga Dyilo have already been transferred to the record of the case; CONSIDERING that under rule 91(2) of the Rules, the Victims’ Representatives are entitled to attend and participate in the proceedings in accordance with the terms of the Chamber; CONSIDERING that the confirmation hearing is an essential stage of the proceedings and that its objective is to determine whether there is sufficient evidence providing substantial grounds for believing that Thomas Lubanga Dyilo committed each of the crimes presented by the Prosecutor in his document of 28 August 2006;(15) CONSIDERING as a consequence, that subject to their intervention being restricted to the scope determined by the charges brought against Thomas Lubanga Dyilo, the victims may participate in the confirmation hearing by presenting their views and concerns in order to help contribute to the prosecution of the crimes from which they allegedly have suffered and to, where relevant, subsequently be able to obtain reparations for the harm suffered; […] DECIDES that the Victims’ Representatives will participate in the confirmation hearing according to the arrangements set out below: i) Unless the Chamber decides otherwise in light of exceptional circumstances, the representatives of victims a/0001/06 to a/0003/06: a. will receive notification of the public documents contained in the record of the case The Prosecutor vs. Thomas Lubanga Dyilo; b. will attend only the status conferences or the parts of these conferences which are to be held in public, starting with the status conference scheduled for 14.00 on 26 September 2006;

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c. will attend only those parts of the confirmation hearing held in public; ii) The Victims’ Representatives may: a. make opening and closing statements at the confirmation hearing; b. request during the public sessions of the confirmation hearing, leave to intervene, in which case the Chamber will rule case-by-case and on the basis of the principles established in this decision; iii) The Victims’s Representatives will not be able to add any any point of fact or any evidence; iv) The Victims’ Representatives will not be able to question the witnesses according to the procedure set out in rule 91(3) of the Rules; STATES that only if the victims agree to the disclosure of their identities to the Defence, will the Chamber examine the issue of determining whether they could be granted leave to participate in another manner in the proceedings taking place before the Pre-Trial Chamber in the case The Prosecutor vs. Thomas Lubanga Dyilo. ————————— (15) ICC-01/04-01/06-356.

x

Article 68(3): Participation of victims – Participation rejected on the ground of risks for the victims

S68-PT-12

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006, p. 11:

ATTENDU par ailleurs, que la Chambre considère que l'exercice effectif des droits procéduraux découlant de la reconnaissance de la qualité de victimes autorisées à participer à la procédure requerrait des contacts successifs entre les dits Demandeurs et leurs Représentants légaux ; que la Chambre est d'avis que ces contacts successifs, bien que nécessaires pour l'exercice effectif de ces droits procéduraux et même s'ils sont organisés par l'Unité d'aide aux victimes et aux témoins, auraient pour conséquence d'augmenter sérieusement les risques encourus par les Demandeurs, ATTENDU que, dans ce contexte et après examen minutieux de chaque cas, la Chambre est d'avis que la reconnaissance aux Demandeurs a/0047/06 à a/0052/06 de la qualité de victimes autorisées à participer ne serait pas appropriée à ce stade particulier de la procédure, […]

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DÉCIDE que la qualité de victimes autorisées à participer à la procédure dans l'affaire Le Procureur c. Thomas Lubanga Dyilo ne peut être accordée aux Demandeurs a/0047/06, a/0048/06, a/0049/06, a/0050/06, a/0051/06 et a/0052/06 à ce stade particulier de la procédure;

——— Official Translation ——— CONSIDERING, furthermore, that the Chamber is of the opinion that the effective exercise of procedural rights arising from the granting of the status ofvictims with standing to participate in the proceedings would require repeated contacts between the applicants and their legal epresentatives; that the Chamber is of the opinion that such repeated contacts, although necessary for the effective exercise of the said procedural rights, even if organised by the Victims and Witnesses Unit, would have the effect of significantly increasing the risks to which the applicants are exposed; CONSIDERING that, in this context, and having carefully considered each case, the Chamber is of the opinion that granting Applicants a/0047/06 to a/0052/06 the status of victims with standing to participate would be inappropriate at this particular stage in the proceedings; […] DECIDES that the status of victims with standing to participate in the proceedings in the case of The Prosecutor v. Thomas Lubanga Dyilo cannot be granted to Applicants a/0047/06, a/0048/06, a/0049/06, a/0050/06, a/0051/06 and a/0052/06 at this particular stage of the proceedings;

x

Article 68(3): Participation of victims – No victims’ right to participate pending decision on their status of victims

S68-PT-13

o Situation en République Démocratique du Congo, No. ICC-01/04, Décision relative à la Requête des demandeurs a/0001/06 à a/0003/06 aux fins de pouvoir répondre aux observations du Procureur et du Conseil de la Défense ad hoc (Translation not available) (PT), 7 July 2006:37

ATTENDU qu'en application de l'article 68-3 du Statut, la Chambre considère que les victimes peuvent présenter leurs vues et préoccupations au stade de l'enquête dans la situation en République démocratique du Congo une fois que le statut de victime leur est reconnu par la Chambre(6), ATTENDU qu'en l'espèce, la décision de la Chambre relative aux Demandes de participation a/0001/06 à a/0003/06 est toujours pendante, PAR CES MOTIFS,

37

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative à la participation des victimes a/0001/06 à a/0003/06 à la conférence de mise en état du 5 septembre 06 (Decision on the application for participation of victims a/0001/06 to a/0003/06 in the status conference of 5 September 2006) (PT), 4 September 2006.

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DÉCIDE de rejeter la Requête. ————————— (6) Voir La Décision.

——— Official Translation Not Available ——— x

Article 68(5): Proceedings before the commencement of the trial – Confirmation hearing – Non-disclosure of witness identity and presentation of statements’ summaries – Witness’ option to consent to the disclosure of their identity to the Defence

S68-PT-14

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81(4) (PT), 15 September 2006, p. 9:

CONSIDERING the functions of the Chamber in respect of the protection of witnesses and the admission of evidence for the purpose of the confirmation hearing, as provided for in articles 57 (3)(c) and 68 (1) of the Statute and rules 81, 87 and 88 of the Rules; that according to article 69 (4) of the Statute, the Chamber may rule on the admissibility of the evidence on which the parties intend to rely at the confirmation hearing taking into account other factors in addition to relevance, probative value and prejudice to a fair trial or to a fair evaluation of the testimony of a witness; and that, in the view of the Chamber, in a scenario like the one described above, and considering the limited scope of the confirmation hearing, adequate protection of the witnesses on whom the parties intend to rely at the confirmation hearing is one of those additional factors; CONSIDERING that, under these conditions, the Chamber cannot authorise the disclosure to the Defence of the said witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews with the redactions proposed by the Prosecution; CONSIDERING, nevertheless, that articles 61 (5) and 68 (5) of the Statute and rule 81 (4) of the Rules allows the Prosecution to request the Chamber to authorise (i) the non-disclosure of the identity of certain witnesses on whom the Prosecution intends to rely at the confirmation hearing and (ii) the reliance on the summary evidence of their statements, the transcripts of their interviews and/or the investigators' notes and reports of their interviews; CONSIDERING that, unless the Prosecution assures the Chamber by 25 September 2006 at 10h00 that the said witnesses, or some of those witnesses, have freely consented to the immediate disclosure of their identities to the Defence after having been adequately informed of the risks for their security inherent to such disclosure, the Prosecution shall be able to rely on the said witnesses at the confirmation hearing only with the authorisation of the Chamber after it has examined the summaries proposed by the Prosecution in relation to their statements, transcripts of their interviews and/or the investigators' notes and reports of their interviews;

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APPEALS CHAMBER x

Article 68(1): Protective measures – Principle of proportionality: protective measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial

S68-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Jurisdiction on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, para. 34:

34. The principle of proportionality, on the other hand, is not explicitly referred to in the relevant provisions of the Statute and of the Rules of Procedure and Evidence, nor is it mentioned in the Impugned Decision. It may be said that the principle of proportionality is encompassed in the reference to the necessity of the protective measure in rule 81 (4) of the Rules of Procedure and Evidence as well as in the last sentence of article 68 (1) of the Statute, which provides that witness protection measures "shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial." Again, the lack of sufficient reasoning in the Impugned Decision makes it impossible for the Appeals Chamber to determine conclusively whether or not the Pre-Trial Chamber abided by the principle of proportionality.

x

Article 68(3): Participation of victims – Scope of victims’ right to participate – Appellate proceedings – Lack of clarity of Article 68(3) with respect to victims’ right to participate to appellate proceedings

S68-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Dissenting Opinion of Judge Pikis to the Order of the Appeals Chamber issued on 4 December 2006 (AC), 11 December 2006, paras. 2, 4:

2. The object of the order, as its tenor suggests, was to elicit whether the victims could participate in the appeal as of right, in addition to abbreviating the time within which the Prosecutor and victims may respond to the application of the appellant. If the victims had no such right, examination of any matter relevant to the filing of the response of victims would be superfluous. Article 68 (3) of the Statute defines the circumstances under which victims may participate in proceedings before the Court and foreshadows the nature and manner of their participation. [...] 4. The duty of the Appeals Chamber was to my comprehension to decide in the first place whether the victims were entitled to participate as of right in the appeal proceedings. […]Determination of the issue defined by the order of 24 November

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2006 was a necessary prerequisite to addressing any other matter concerning the participation of the victims in the proceedings. If they had no such right, the order of 4 December 2006 would be superfluous. To the extent, on the other hand, that the order may leave the impression that the victims have no right to participate in the absence of prior authorization by the Appeals Chamber, the order clouds the proceedings with uncertainty, a course unpropitious to the ends of justice.

x

Article 68(3): Participation of victims – Scope of victims’ right to participate – Appellate proceedings – The Appeals Chamber requests the parties, including the victims, to submit their views on the right of victims to participate in appellate proceedings

S68-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order of the Appeals Chamber (AC), 24 November 2006, paras. 1-3:38

In the appeal of Mr. Thomas Lubanga Dyilo of 20 October 2006 entitled "Defence Appeal Against 'Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo'" (ICC-01/04-01/06-594), Having before it the "Réponse des victimes a/0001/06, a/0002/06 et a/0003/06 à l'appel de la Défense concernant la Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo" registered on 16 November 2006 (ICC-01/0401/06-704) ("Victims' Response") and the "Defence Request for an Order Regarding Non-Compliance with the Time Limits" (ICC-01/04-01/06-708) registered on the same date ("Defence Request"), […] 1. The Prosecutor may file by 29 November 2006 a response to the Defence Request which may include submissions with regard to the right of victims a/0001/06 to a/0003/06 to participate in the appeal, the need, if any, of an application to that end and an order of the Appeals Chamber validating it, and the modalities for such participation. 2. The Defence may file by 29 November 2006 submissions on the right of victims a/0001/06 to a/0003/06 to participate in the appeal, the need, if any, of an application to that end and an order of the Appeals Chamber validating it, and the modalities for such participation. 3. Victims a/0001/06 to a/0003/06 may file by 29 November 2006 a response to the Defence Request which may include submissions with regard to their right to participate in the appeal, the need, if any, of an application to that end and an order of the Appeals Chamber validating it, and the modalities for such participation. 38

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order of the Appeals Chamber (AC), 4 December 2006, p. 2; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Dissenting Opinion of Judge Pikis to the Order of the Appeals Chamber issued on 4 December 2006 (AC), 11 December 2006.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

x

227

Article 68(3): Participation of victims – Scope of victims’ right to participate – Appellate proceedings – Victims’ right to participate to appellate proceedings recognized for one specific appeal

S68-A-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision of the Appeals Chamber (A), 12 December 2006, para. 3:

3. Victims a/0001/06, a/0002/06 and a/0003/06 are granted the right to participate in this appeal for the purpose of presenting their views and concerns respecting their personal interests in the issues raised on appeal; they may present their submissions by 15 December 2006; the Prosecutor and the Defence may thereafter file a response by 20 December 2006 to any submissions presented by Victims a/0001/06, a/0002/06 and a/0003/06.

x

Article 68(5): Use of summary evidence instead of the evidence itself is permissible – Article 68(5) applies to any proceedings conducted prior to trial, including the confirmation hearing – Disclosure of the summary only, without revealing the witness’ identity before the hearing

S68-A-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 45-46:

45. The use of summaries pursuant to article 68 (5) of the Statute affects the presentation of evidence by the Prosecutor at the confirmation hearing; the use of summaries as a protective measure also may have an impact on the obligation of the Prosecutor to disclose evidence prior to the confirmation hearing. Pursuant to rule 81 (4) of the Rules of Procedure and Evidence the Pre-Trial Chamber may authorise the non-disclosure of the identity of a witness. In the present case, the 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. 46. This approach by the Pre-Trial Chamber is, in principle, permissible under the Statute and the Rules of Procedure and Evidence. Article 68 (5) of the Statute expressly provides that the Prosecutor may submit a summary of evidence instead of the evidence itself for the purpose of any proceedings conducted prior to trial. This

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includes the presentation of the summaries at the confirmation hearing pursuant to article 61 (5) of the Statute.

x

Article 68(5): Use of summary evidence instead of the evidence itself shall not be “prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial” – No balancing exercise – Evidence material to the preparation of the Defence, including the identity of witnesses, shall be disclosed, with no exception

S68-A-6

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, Dissenting opinion of Judge Pikis, para.11:

11. Non-disclosure in the interest of the safety of witnesses and their families is subject to an important proviso. The non-disclosure should not be "prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial" as expressly written down in article 68 (5) of the Statute. The accused is prejudiced when deprived of knowledge of evidence necessary for making his/her defence. The defence rights of the suspect and the accused are defined by articles 55 (2) and 67 of the Statute, incorporating the fundamental human rights of the subject of judicial proceedings. Article 21 (3) of the Statute establishes that the Statute must be applied in accordance with internationally recognized human rights of which the aforesaid rights form part. Article 68 (5) of the Statute provides that measures taken in the interest of the safety of witnesses or their families, including non-disclosure of evidence "shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial." If non-disclosure of any part or aspect of the evidence prejudices the rights of the accused, it is not permissible. The prohibition of non-disclosure 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. The test for confirming charges is laid down in article 61 (7) of the Statute, "whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged." Its provisions have a direct bearing on the identification of the rights of the defence at the confirmation hearing.

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Article 69 - Evidence 1. Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness. 2. The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused. 3. The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. 4. 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, in accordance with the Rules of Procedure and Evidence. 5. The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. 6. The Court shall not require proof of facts of common knowledge but may take judicial notice of them. 7. Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. 8. When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State's national law.

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Article 69: Dispositions of Article 69 are not limited to proceedings before the Trial Chamber - Applicability to different stages of the proceedings, including the investigation

S69-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 42-44:

42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le déroulement de la procédure devant la Chambre de première instance (45) et des

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articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). 43. À cet égard, la Chambre observe que les articles 69 à 72 du Statut, qui figurent au chapitre VI, établissent des principes généraux applicables à différents stades de la procédure. L’article 69, qui porte sur la preuve, de même que les articles 70 et 71, qui portent sur les atteintes à l’administration de la justice ou les sanctions en cas d’inconduite à l’audience, concerne différents stades de la procédure. […] 44. La Chambre constate que ces articles sont d’application générale à différents stades de la procédure devant la Cour, y compris celui de l’enquête. ————————— (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut.

——— Official Translation ——— 42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber(45) and articles establishing general principles applicable to the different stages of the proceedings before the Court. (46) 43. In this regard, the Chamber observes that articles 69 to 72 of the Statute, which are located in Part 6, lay down general principles applicable to the different stages of the proceedings. Article 69, which deals with evidence, and articles 70 and 71, which deal with offences against the administration of justice and sanctions for misconduct before the Court, relate to different stages of the proceedings. […] 44. The Chamber notes that these articles are generally applicable to the different stages of the proceedings before the Court, including the investigation stage. ————————— (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute.

x

Article 69(4): Ruling on admissibility of evidence – “inter alia” – Other relevant factor: adequate protection of witnesses

S69-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81(4) (PT), 15 September 2006, pp.8-9:39

CONSIDERING the functions of the Chamber in respect of the protection of witnesses and the admission of evidence for the purpose of the confirmation hearing, as provided for in articles 57 (3)(c) and 68 (1) of the Statute and rules 81, 87 and 88 of the Rules; that according to article 69 (4) of the Statute, the Chamber may rule on the admissibility of the evidence on which the parties intend to rely at the 39

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006, p.3.

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confirmation hearing taking into account other factors in addition to relevance, probative value and prejudice to a fair trial or to a fair evaluation of the testimony of a witness; and that, in the view of the Chamber, in a scenario like the one described above, and considering the limited scope of the confirmation hearing, adequate protection of the witnesses on whom the parties intend to rely at the confirmation hearing is one of those additional factors; CONSIDERING that, under these conditions, the Chamber cannot authorise the disclosure to the Defence of the said witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews with the redactions proposed by the Prosecution;

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Article 69(4): Ruling on admissibility of evidence – “inter alia” – Other relevant factor: adequate protection of witnesses – Balancing the probative value of evidence against risks for the safety of witnesses (evidence struck inadmissible)

S69-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006, pp.5-6:

CONSIDERING that the Prosecution acknowledges that some of the summary evidence proposed by the Prosecution in the Third Prosecution Application will lead to the identification of four Prosecution witnesses; and that therefore it is the view of the single judge that authorising the use of summary evidence in relation to their statements and to the transcripts and investigators' notes and reports of their interviews would amount to defeating the purpose of using such summary evidence, that is to say to preserve the non-disclosure of their identity; CONSIDERING that, as provided for in the Decision, the Prosecution has not assured the Chamber that the said four Prosecution witnesses have freely consented to the immediate disclosure of their identities to the Defence after having been adequately informed of the risks to their security inherent to such disclosure; CONSIDERING therefore that, according to article 69 (4) of the Statute, the single judge must balance (i) the probative value that the Chamber could give to the summary evidence proposed by the Prosecution of these four witnesses, against (ii) the grave risks to their security that according to the Prosecution itself, and as the single judge has already found, are inherent to the disclosure of their identity to the Defence given the exceptional circumstances in the present case; CONSIDERING further that in balancing the two above-mentioned factors the single judge is mindful of the role of the confirmation hearing within the framework of the criminal procedure provided for in the Statute and the Rules, and in particular of the limited scope of the confirmation hearing; CONSIDERING that, in the view of the single judge, under the exceptional circumstances faced in the present case, and in light of the impact of the factors referred to above on the probative value of the summary evidence authorised in the present decision, the adequate protection of the four Prosecution witnesses must

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prevail; and that therefore in application of article 69 (4) of the Statute, the single judge considers (i) that, regardless of the format (unredacted versions, redacted versions or summary evidence), their statements, transcripts of their interviews and investigator's reports and notes of their interviews must be declared inadmissible for the purpose of the confirmation hearing; and (ii) that consequently the Prosecution cannot rely on them at the confirmation hearing;

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Article 69(4): Ruling on admissibility of evidence – “inter alia” – Other relevant factor: availability in one of the working languages of the Court

S69-PT-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence “Request to Exclude Video Evidence Which Has not Been Disclosed in one of the Working Languages” (PT), 7 November 2006, pp. 3-4:

CONSIDERING, however, that under no circumstances may evidence not translated into one of the working languages of the Court at the time of commencement of the confirmation hearing be admitted into evidence insofar as the Chamber must be in a position to fully understand the evidence on which the parties intend to rely at the hearing; and considering, therefore, that pursuant to article 69(4) of the Statute, video excerpts (i) which are not translated into one of the working language of the Court by Thursday 9 November 2006 at 9h30 and (ii) whose translation is not made available to the Chamber and the Defence by that time must be declared inadmissible; […] FOR THESE REASONS DECIDE, pursuant to article 69 (4) of the Statute, to declare inadmissible for the purpose of the confirmation hearing those video excerpts: (i) which are not translated into one of the working languages of the Court by Thursday 9 November 2006 at 9h30; and (ii) whose translation into one of the working languages of the Court is not made available to the Chamber and the Defence by the said time-limit;

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Article 69(4): Ruling on admissibility of evidence – “inter alia” – Other relevant factor: witness’ denial to answer questions on grounds of confidentiality pursuant to Rule 82(3)

S69-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Motion by the Defence to Exclude Hearsay Testimony of the

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Prosecution Witness (PT), 9 November 2006, pp. 7, 10: CONSIDERING, further, that, in application of article 69(4) of the Statute (16), “the Chamber may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness”; and that, according to rule 63(1) and (3), the Chamber shall have the authority to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69 of the Statute; CONSIDERING hence that if in application of rule 82(3) of the Rules, the Witness does not answer some of the questions posed to her, and in particular those concerning the sources of her information about events that she did not directly witness, the Chamber shall subsequently either (i) decide to declare inadmissible in whole or in part the testimony of the Witness or (ii) assess the weight given to her evidence in light of such a factor; (17) […] INFORM that if as a result of invoking rule 82(3) of the Rules, the Witness does not answer some of the questions posed by the Chamber or by the Defence, the Chamber shall subsequently either (i) decide to declare inadmissible in whole or in part the testimony of the Witness or (ii) assess the weight given to her evidence in light of such a factor. ————————— (16) This is reinforced by 64(9) and rule 63(2) of the Rules. (17) This approach is consistent with International human rights and criminal law jurisprudence. See Prosecutor v Mladen Naletilic & Vinko Martinovic, Case No. IT-98-34-T, Judgment of the Trial Chamber of 31 March 2003 para. 11, “The Chamber has accepted hearsay evidence as being generally admissible under the Rules. It has however taken into account that the weight or probative value to be afforded to hearsay evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined”; see also Prosecutor v. Aleksovski, Case No.:IT-95-14/1-AR, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, para 15, “… the probative value of hearsay statement will depend upon the context and character of the evidence in question. The absence of the opportunity to cross-examine the person who made the statements, and whether the hearsay is “first-hand” or more removed, are also relevant to the probative value of the evidence. The fact that the evidence is hearsay does not necessarily deprive it of probative value, but it is acknowledged that the weight or probative value to be afforded to that evidence will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay evidence”; See also Prosecutor v. Dusko Tadic, Case No. IT-94-1-T, Decision on Defence Motion on Hearsay, 5 August 1996 and Tadic Trial Judgement, para. 555; Prosecutor v. Tihomir Blaskic, Case No.: IT-95-14-T, Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, 26 January 1998; Prosecutor v Akayesu, Case No. ICTR-96-4-T-2, 2 September 1998; The Prosecutor v. Alfred Musema, ICTR Case No. 96-13-T, Judgement and Sentence, 27 January 2000 para. 56.

Article 70 – Offences against the Administration of Justice 1. The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:

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(a)

Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows is false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence; (d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties; (e) Retaliating against an official of the Court on account of duties performed by that or another official; (f) Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties. 2. The principles and procedures governing the Court's exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State. 3. In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both. 4. (a) Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals; (b) Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.

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Article 70: Dispositions of Article 70 are not limited to proceedings before the Trial Chamber - Applicability to different stages of the proceedings

S70-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 42-44:

42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le

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déroulement de la procédure devant la Chambre de première instance (45) et des articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). 43. À cet égard, la Chambre observe que les articles 69 à 72 du Statut, qui figurent au chapitre VI, établissent des principes généraux applicables à différents stades de la procédure. L’article 69, qui porte sur la preuve, de même que les articles 70 et 71, qui portent sur les atteintes à l’administration de la justice ou les sanctions en cas d’inconduite à l’audience, concerne différents stades de la procédure. […] 44. La Chambre constate que ces articles sont d’application générale à différents stades de la procédure devant la Cour, y compris celui de l’enquête. ————————— (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut.

——— Official Translation ——— 42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber (45) and articles establishing general principles applicable to the different stages of the proceedings before the Court. (46) 43. In this regard, the Chamber observes that articles 69 to 72 of the Statute, which are located in Part 6, lay down general principles applicable to the different stages of the proceedings. Article 69, which deals with evidence, and articles 70 and 71, which deal with offences against the administration of justice and sanctions for misconduct before the Court, relate to different stages of the proceedings. […] 44. The Chamber notes that these articles are generally applicable to the different stages of the proceedings before the Court, including the investigation stage. ————————— (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute.

Article 71 – Sanctions for Misconduct Before the Court 1. The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by 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. 2. The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.

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Article 71: Dispositions of Article 71 are not limited to proceedings before the Trial Chamber - Applicability to different stages of the proceedings

S71-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 42-44:

42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le déroulement de la procédure devant la Chambre de première instance (45) et des articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). 43. À cet égard, la Chambre observe que les articles 69 à 72 du Statut, qui figurent au chapitre VI, établissent des principes généraux applicables à différents stades de la procédure. L’article 69, qui porte sur la preuve, de même que les articles 70 et 71, qui portent sur les atteintes à l’administration de la justice ou les sanctions en cas d’inconduite à l’audience, concerne différents stades de la procédure. […] 44. La Chambre constate que ces articles sont d’application générale à différents stades de la procédure devant la Cour, y compris celui de l’enquête. ————————— (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut.

——— Official Translation ——— 42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber (45) and articles establishing general principles applicable to the different stages of the proceedings before the Court. (46) 43. In this regard, the Chamber observes that articles 69 to 72 of the Statute, which are located in Part 6, lay down general principles applicable to the different stages of the proceedings. Article 69, which deals with evidence, and articles 70 and 71, which deal with offences against the administration of justice and sanctions for misconduct before the Court, relate to different stages of the proceedings. […] 44. The Chamber notes that these articles are generally applicable to the different stages of the proceedings before the Court, including the investigation stage. ————————— (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute.

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Article 72 – Protection of National Security Information 1. This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue. 2. This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests. 3. Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73. 4. If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article. 5. If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include: (a) Modification or clarification of the request; (b) A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State; (c) Obtaining the information or evidence from a different source or in a different form; or (d) Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence. 6. Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests.

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7. Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions: (a) Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4: (i) The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte; (ii) If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and (iii) The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or (b) In all other circumstances: (i) Order disclosure; or (ii) To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances.

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Article 72: Dispositions of Article 72 are not limited to proceedings before the Trial Chamber - Applicability to different stages of the proceedings, including investigation

S72-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 42-44:

42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le déroulement de la procédure devant la Chambre de première instance (45) et des articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). 43. À cet égard, la Chambre observe que les articles 69 à 72 du Statut, qui figurent au chapitre VI, établissent des principes généraux applicables à différents stades de la procédure. L’article 69, qui porte sur la preuve, de même que les articles 70 et 71,

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qui portent sur les atteintes à l’administration de la justice ou les sanctions en cas d’inconduite à l’audience, concerne différents stades de la procédure. […] 44. La Chambre constate que ces articles sont d’application générale à différents stades de la procédure devant la Cour, y compris celui de l’enquête. ————————— (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut.

——— Official Translation ——— 42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber (45) and articles establishing general principles applicable to the different stages of the proceedings before the Court.(46) 43. In this regard, the Chamber observes that articles 69 to 72 of the Statute, which are located in Part 6, lay down general principles applicable to the different stages of the proceedings. Article 69, which deals with evidence, and articles 70 and 71, which deal with offences against the administration of justice and sanctions for misconduct before the Court, relate to different stages of the proceedings. […] 44. The Chamber notes that these articles are generally applicable to the different stages of the proceedings before the Court, including the investigation stage. ————————— (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute.

Article 73 – Third-Party Information or Documents If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.

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Article 73: Dispositions of Article 73 are not limited to proceedings before the Trial Chamber - Applicability to different stages of the proceedings, including investigation

S73-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for

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Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 42, 44 : 42. En ce qui concerne le premier argument, la Chambre observe que le chapitre VI du Statut, intitulé « Le procès », contient à la fois des articles concernant le déroulement de la procédure devant la Chambre de première instance(45) et des articles qui établissent des principes généraux applicables à différentes étapes de la procédure devant la Cour(46). […] 44. La Chambre constate que ces articles sont d’application générale à différents stades de la procédure devant la Cour, y compris celui de l’enquête. ————————— (45) Voir les articles 63, 64, 65, 74, 75 et 76 du Statut. (46) Voir les articles 69, 70, 71, 72 et 73 du Statut.

——— Official Translation ——— 42. With regard to the first argument, the Chamber observes that Part 6 of the Statute, entitled “The Trial”, contains both articles concerning the conduct of the proceedings before the Trial Chamber (45) and articles establishing general principles applicable to the different stages of the proceedings before the Court.(46) […] 44. The Chamber notes that these articles are generally applicable to the different stages of the proceedings before the Court, including the investigation stage. ————————— (45) See articles 63, 64, 65, 74, 75 and 76 of the Statute. (46) See articles 69, 70, 71, 72 and 73 of the Statute.

Article 74 – Requirements for the Decision 1. All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending. 2. The Trial Chamber's decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial. 3. The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges. 4. The deliberations of the Trial Chamber shall remain secret. 5. The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber's findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber's decision

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shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.

APPEALS CHAMBER x

Article 74(5): “Full and reasoned statement of the Trial Chamber’s findings” – Reasons of a decision should be comprehensible from the decision itself – Reversal of a decision which, though justified, lacks a sufficient reasoning

S74-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 33-34, 63:

33. The Appeals Chamber is not persuaded by the argument of the Prosecutor that the factual reasoning in the Impugned Decision was sufficient because the legal and factual basis for the authorisation of the redactions could be understood by reference to the applications of the Prosecutor that led to the Impugned Decision. The reasons for a decision should be comprehensible from the decision itself. 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. […] 34. The Appeals Chamber will not consider the other arguments of the Prosecutor, which address the question of whether the authorisation of the redactions was justified. This question must be distinguished from whether the reasoning in the Impugned Decision was sufficient: it may well be that there was good cause for the Pre-Trial Chamber to authorise the redactions. The question that arises under the first ground of appeal, however, is not whether the redactions were justified but whether the factual reasoning in the Impugned Decision was sufficient. […] 63. As to the second issue raised under the third ground of appeal, the Appeals Chamber, by majority, considers that in light of the insufficient reasoning in relation to the redactions authorised under rule 81 (2) of the Rules of Procedure and Evidence in the Impugned Decision, the Appeals Chamber is unable to determine conclusively whether information relevant to the sources of the Prosecutor covered by the Impugned Decision could be redacted pursuant to rule 81 of the Rules of Procedure and Evidence. Whether a source can be protected under these provisions has to be analysed on a case-by-case basis and cannot be decided in the abstract.

x

Article 74(5): “Full and reasoned statement of the Trial Chamber’s findings” – The ex parte nature of the motion does

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not exempt the Chamber to provide sufficient reasons for its decision

S74-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, para. 22:40

22. The Appeals Chamber is not convinced that the insufficiency of the reasoning is justified because of the ex parte character of the proceedings that led to the Impugned Decision. The ex parte character of the proceedings itself did not reduce the need for the Impugned Decision 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. If the provision of the full reasoning would have led to the identification of the witness in question or would otherwise have disclosed information that needed to be protected, the Pre-Trial Chamber could have considered whether the full reasoning should be provided in a decision marked confidential and ex parte, Prosecutor only, with a separate redacted version made available to the defence. Thus, the reasoning of the Pre-Trial Chamber at least could have been reviewed properly by the Appeals Chamber in case of an appeal. In such a situation, the reasoning that would not be made available to the defence should be kept to that which is strictly necessary.

x

Article 74(5): “Full and reasoned statement of the Trial Chamber’s findings” – Reasons for a decision filed separately on a later date

S74-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Appeals Chamber’s Decision on the “Prosecutor’s Request for an Extension of the Page Limit” (AC), 16 November 2006, para. 2:41

2. The reasons founding and supporting the decision of the Appeals Chamber will be given tomorrow, 17 November 2006.

40

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 14 December 2006, para. 33. 41 See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision of the Appeals Chamber (A), 12 December 2006, para. 4.

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243

Article 74(5): “Full and reasoned statement of the Trial Chamber’s findings” – Dissenting opinion filed separately on a later date

S74-A-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order of the Appeals Chamber (AC), 4 December 2006, p. 2:

Renders, by majority, Judge Pikis dissenting, the following […] […] Judge Pikis's reasons will be given shortly.

Article 75 –Reparations to Victims 1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.

Article 76 - Sentencing 1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. 2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.

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3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing. 4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Part 7 – Penalties Article 77 – Applicable Penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

2. In addition to imprisonment, the Court may order: (a) (b)

A fine under the criteria provided for in the Rules of Procedure and Evidence; A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

Article 78 – Determination of the Sentence 1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. 2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 3. When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

Article 79 – Trust Fund 1. A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. 2. The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.

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3. The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

Article 80 – Non-Prejudice to National Application of Penalties and National Laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

Part 8 – Appeal and Revision Article 81 – Appeal against Decisions of Acquittal or Conviction or against Sentence 1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, or (iii) Error of law; (b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds: (i) Procedural error, (ii) Error of fact, (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision. 2. (a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence; (b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83; (c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a). 3. (a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal; (b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the

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Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below; (c) In case of an acquittal, the accused shall be released immediately, subject to the following: (i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal; (ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence. 4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.

Article 82 – Appeal against Other Decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 2. A decision of the Pre-Trial Chamber under article 57, paragraph 3 (d), may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis. 3. An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence. 4. 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 appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.

PRE-TRIAL CHAMBERS x

Article 82(1) (a): Appeal of decision on jurisdiction and admissibility – No prior leave required

S82-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Application by the Duty Counsel for the Defence Dated 20 March 2006

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(PT), 22 March 2006: CONSIDERING that, according to article 82 (1) (a) of the Statute, "[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility"; and that therefore an appeal against the Decision on any matter concerning jurisdiction or admissibility can be filed directly with the Appeals Chamber without prior leave from Pre-Trial Chamber I; CONSIDERING that the Appeals Chamber is the competent Chamber of the Court to decide whether the defence may at this stage avail itself of the procedural remedy provided for in article 82 (1) (a) of the Statute to challenge any matter concerning jurisdiction or admissibility dealt with in the Decision, and that the Appeals Chamber is therefore the only competent Chamber of the Court which can rule on the Application by Duty Counsel for the extension of the five-day time limit provided for in rule 154 (1) of the Rules;

x

Article 82(1) (d): Interlocutory appeal – Obligation to raise concerns in accordance with procedural mechanisms – Failure to do so amounts to waiver – Inadmissibility of “Positions”

S82-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on the Prosecutor’s Position on Pre-Trial Chamber I’s 17 February 2005 Decision to Convene a Status Conference (PT), 9 March 2005:42

NOTING the "Prosecutor's Position on Pre-Trial Chamber I's 17 February 2005 Decision to Convene a Status Conference" (the "Prosecutor's Position"), filed on 8 March 2005, in which the Prosecutor expresses the view that he should have been entitled to make submissions and to be heard on the issue of whether the Pre-Trial Chamber has the authority to convene a status conference; CONSIDERING that the Prosecutor's concerns in relation to the convening of the status conference should have been raised in accordance with the procedural mechanism provided for in the Rome Statute (the "Statute"), the Rules of Procedure and Evidence (the "Rules") and the Regulations of the Court; CONSIDERING that article 82 paragraph (1) (d) of the Statute specifies the appropriate procedural remedy for the Prosecutor to raise his concerns; CONSIDERING that the Prosecutor has not availed himself of that procedural mechanism within the time-limits provided for in rule 155 of the Rules;

42

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision on the Prosecutor’s Application for Leave to Appeal (PTC), 14 March 2005; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, paras. 12, 21.

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CONSIDERING that, by failing to do so, the Prosecutor has waived his right to raise his concerns regarding the convening of the scheduled status conference; CONSIDERING therefore that there is no procedural basis for the filing of the Prosecutor's Position; […] FOR THESE REASONS DECLINES to consider the submissions made in the Prosecutor's Position and therefore REJECTS all requests set out in paragraph 29 therein;

S82-PT-3

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, paras. 13, 16:

13. The Chamber wishes to point out in this context that neither the Statute, nor the Rules of Procedure and Evidence (the "Rules") allow participants to communicate "positions" on Chamber decisions to the Chamber and to have them filed as part of the official record of proceedings. Participants in proceedings before the Court must comply with the procedures provided for in the Statute and the Rules when making submissions to the Chamber. They cannot freely choose the form in which they present their views to the Chamber. Compliance with procedural requirements is necessary, in order to preserve the integrity and transparency of Court proceedings. A "position" is not a procedural remedy under the Statute. If the Prosecutor wishes to make submissions to the Chamber, which shall be part of the official Court record, such submissions must be presented in the form of a proper judicial motion. […] 16. As set out above, there is no basis in the Statute, the Rules or the Regulations for a participant in the proceedings before the Court to submit a "position" aimed at instigating amendment or review of a Chamber's decision. Moreover, the Prosecutor's submissions make it clear that the elements substantiating such a "position" are in fact arguments put forward in support of the Prosecutor's motion for reconsideration.

x

Article 82(1) (d): Interlocutory appeal – Obligation to raise concerns in accordance with procedural mechanisms – No legal basis for “reconsideration” of decisions – Exception with respect to the protection of victims and witnesses

S82-PT-4

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05,

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Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, paras. 17-18, 20-24:43 17. The Prosecutor purports to have been denied an opportunity to provide his views as to the redactions of the warrants of arrest prior to the redactions being ordered by the Chamber and therefore asks the Chamber to "reconsider" the issue of redactions in the light of the information and remarks contained in the submissions dated the 18th day of October 2005. In submitting such a motion, the Prosecutor relies exclusively on decisions in which the ICTY and the ICTR had entertained reconsideration, apparently on the assumption that such decisions are of relevance in proceedings before this Court. Therefore, the Chamber considers it necessary and appropriate to determine (i) whether a "motion for reconsideration" is provided for in the Court's procedural framework and (ii) if not so provided, whether the admissibility of such motion might be inferred from the case law of the ad hoc tribunals. 18. The instruments governing the Court's procedure make no provision for such a broad remedy as an unqualified "motion for reconsideration". Review of decisions by the Court is only allowed under specific circumstances, explicitly provided in the Statute and the Rules. Suffice it to mention here article 15, paragraph 5, of the Statute, allowing the Prosecutor to request the Pre-Trial Chamber to review its denial of authorisation of the investigation, based on new facts or evidence regarding the same situation; article 19, paragraph 10, of the Statute, allowing the Prosecutor to request a review of a decision of inadmissibility of a case when satisfied "that new facts have arisen which negate the basis on which the case had been previously found inadmissible"; article 61, paragraph 8, of the Statute, allowing the Prosecutor to request the Chamber to confirm a charge which had originally not been confirmed, based upon additional evidence; rule 118, sub-rule 2, of the Rules, allowing the person concerned or the Prosecutor to request the Pre-Trial Chamber to review its ruling on the release or detention of such person; rule 125, sub-rule 3, of the Rules, allowing the Prosecutor to request the Chamber to review its decision not to hold a hearing on the confirmation of the charges in the absence of the person concerned; rule 135, sub-rule 4, of the Rules, allowing the prosecution and the defence to request a review of the determination that the accused is unfit to stand trial. Outside such specific instances, the only remedy of a general nature is the interlocutory appeal against decisions other than final decisions, as set forth in article 82, paragraph 1 (d) of the Statute (on which see infra, sub paragraph 20). […]

43 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration (PT), 23 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras. 10-12.

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20. As stated, outside the specific instances where the Statute and the Rules vest the right to seek review in one or more of the participants, the only remedy of a general nature is an interlocutory appeal against decisions other than final decisions, as set forth in article 82, paragraph 1 (d) of the Statute. In its "Decision on [the] Prosecutor's Application for Leave to Appeal in Part Pre-Trial Chamber II's Decision on the Prosecutor’s Applications for Warrants of Arrest Under Article 58", dated the 19th day of August 2005, this Chamber outlined the principles underlying this provision. It was pointed out that, within the Court's system, interlocutory appeals were meant as a restrictive remedy, as such admissible only under the limited and very specific circumstances stipulated in article 82, paragraph 1 (d), of the Statute(11), within a five-day time-limit and subject to the need for the appeal to be authorised by the Chamber having issued the decision (rule 155, sub-rule 1, of the Rules). 21. As made apparent by the title and content of his submissions dated the 18 th day of October 2005, the Prosecutor chose not to avail himself of the remedy set forth under article 82, paragraph 1 (d ), of the Statute, but instead to present his submissions in a different form. As stated above, this different form, whether presented under the heading of "position" or as a "motion for reconsideration", has no legal basis in the Court's procedural framework. The need for a participant to raise its concerns regarding a Chamber's decision "in accordance with the procedural mechanism provided for" in the Statute, the Rules and the Regulations, ie in accordance with article 82, paragraph 1 (d), of the Statute, has been highlighted in Pre-Trial Chamber I's decision dated the 9 th day of March 2005.(12) On that occasion, Pre-Trial Chamber I held that a participant's failure to avail itself of the proper procedural mechanism in compliance with all relevant rules would be tantamount to that participant waiving its right to have its concerns regarding a given decision considered by the Chamber(13). Such a result cannot be prevented by a mere statement by the participants claiming that no waiver was intended. 22. More specifically, the Chamber wishes to highlight that to entertain a motion for reconsideration in these specific circumstances would undermine the five-day timelimit set for leave to appeal under rule 155. In its "Decision on the Prosecutor's Motion for Clarification and Urgent Request for Variation of the Time-Limit Enshrined in Rule 155" dated the 18th day of July 2005 ("Decision on Clarification"), the Chamber has already held that this time-limit is not variable. (14) By raising his concerns in the form of a Position and Motion for Reconsideration and Clarification, the Prosecutor effectively proposes to create an opportunity to review a Chamber decision after the deadline stipulated in rule 155, sub-rule 1 of the Rules. It would seem that the Prosecutor seeks to introduce a procedure, whereby he would first request the Chamber to reconsider its decision, while then reserving his "right to seek appellate review, if necessary, in relation to any future decision made by the Chamber in relation to this matter".(15) To allow such a possibility of review would indeed “render the stipulated time-limit ineffective” (16) and create “procedural uncertainty … contrary to the objective of ensuring fair and expeditious proceedings”. (17) 23. It might be added that allowing the Prosecutor or any other participant in the proceedings to disregard the specific procedural basis of the Statute would inevitably result in defeating the Statute’s prescriptive approach towards remedies before the Court and thereby significantly disrupt the procedural mechanism as devised in the

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Court's constitutive instruments. In the view of the Chamber, such result would not only be contrary to the letter and spirit of the statutory texts, but would also result in weakening the predictability of proceedings before the Court and therefore lead to undesirable practical results. 24. In view of the above, the Chamber will not consider the submissions made in the context of the Prosecutor's motion for reconsideration; this is without prejudice to its functions and powers, in particular under article 57, paragraph 3 (c), of the Statute, taking into account the unpredictability of the security environment in Uganda and the need to ensure to the fullest extent possible the safety and protection of victims and witnesses. ————————— (11) See Decision on the Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Applications for Warrants of Arrest Under Article 58, 19 August 2005, para. 16. (12) Pre-Trial Chamber I, Decision on the Prosecutor’s Position on Pre-Trial Chamber I’s 17 February 2005 Decision to Convene a Status Conference, p.2. (13) Ibid., at 3. (14) See Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time-Limit enshrined in Rule 155, 15 July 2005, p. 7. (15) See Prosecutor’s Position and Motion for Reconsideration and Clarification, p.6, footnote 2. (16) See Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time-Limit Enshrined in Rule 155, p. 7. (17) Ibid.

x

Article 82(1) (d): Interlocutory appeal - Obligation to raise concerns in accordance with procedural mechanisms – Motions for clarification are not provided for in the Statute and Rules

S82-PT-5

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005 (Unsealed on 13 October 2005):44

NOTING that a procedure for a motion for clarification is not provided for in the Statute of the Court (the "Statute"), the Rules of Procedure and Evidence (the "Rules") or the Regulations; CONSIDERING that the points raised for clarification in the Prosecutor's motion are clearly addressed in the Decision and in the Requests, and that therefore the Decision and the Requests do not present a degree of vagueness that, according to 44

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, paras. 22, 25.

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existing international criminal practice, would allow the Chamber to entertain a motion for clarification; CONSIDERING it appropriate, as a response to the Prosecutor's motion and in the interests of the fair and expeditious conduct of the proceedings and the proper execution of the Decision and the Requests, that the Chamber confirms the determinations made in the Decision and in the Requests as they relate to the specific issues raised in the Prosecutor's motion;

x

Article 82(1) (d): Interlocutory appeal – Leave to Appeal – Applicable criteria – Generalities

S82-PT-6

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), para. 15-24, 35, 45, 52:45

15. The Chamber believes that any determination of the Prosecutor's application for leave to appeal must be guided by three principles, namely: (i) the restrictive character of the remedy provided for in article 82, paragraph 1 (d), of the Statute; (ii) the need for the applicant to satisfy the Chamber as to the existence of the specific requirements stipulated by this provision; and (iii) the irrelevance of or nonnecessity at this stage for the Chamber to address arguments relating to the merit or substance of the appeal. 16. Reference to the drafting history of article 82 is instructional as to the first principle. That history indicates that within the Court's system interlocutory appeals (ie, appeals against decisions other than final decisions) were meant to be admissible only under the limited and very specific circumstances stipulated in article 82, paragraph 1 (d), of the Statute. In particular, the Chamber notes from such drafting history that, during the preparatory process, a proposal according to which all 45

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, paras. 17, 19, 21-29, 44; Situation in the Democratic Republic of the Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras. 15-16; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Motion for Leave to Appeal (PT), 18 August 2006, pp. 5-6; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC01/04-01/06, Decision on Second Defence Motion for Leave to Appeal (PT), 28 September 2006, p. 4.

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"other" decisions (ie, other than final decisions) might be appealed (24), albeit with leave of the Chamber concerned, was defeated in favour of the current wording of article 82 of the Statute, which sets instead specific requirements for leave. Secondly, an almost identical provision governing interlocutory appeals appears in Rule 73 (B) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia ("ICTY") (25) and the International Criminal Tribunal for Rwanda ("ICTR")(26). Each of the ICTY and ICTR rules provides that the Trial Chamber "may" grant certification to appeal a motion "if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings".(27) While, in contrast to the ICC Statute, both the ICTY and the ICTR Rules of Procedure and Evidence vest discretion in the Trial Chamber (allowing the Trial Chamber to deny certification even when it is satisfied that the twofold requirement is met), article 82, paragraph l(d), of the Statute reflects a general trend to narrow the grounds for interlocutory appeals, and in particular to deviate from the concept that an issue is subject to interim appeal because of its "general importance to proceedings" or "in international law generally", as a previous formulation of the relevant rule in the ICTY Rules of Procedure and Evidence had allowed. (28) 17. The Chamber notes that a rather broad provision, similar to the earlier version of the ICTY rule, appears in the "Transitional Rules of Criminal Procedure" adopted by the United Nations Transitional Administration in East Timor in 2000. (29) However, the most recent international standard for interlocutory appeals, being that enacted for the Special Court for Sierra Leone ("SCSL"), reflects again the more restrictive approach. Rule 73 (B) of the Rules of Procedure and Evidence of the SCSL states that the Trial Chamber may give leave to interlocutory appeals only "in exceptional circumstances and to avoid irreparable prejudice to a party". (30) 18. Moreover, the case-law of the ICTR and the SCSL, which is especially relevant given the similarity of provisions set forth in the Tribunal and SCSL rules and in article 82, paragraph 1 (d), of the Statute, reinforces the view that leave for interlocutory appeals should be granted under limited circumstances. In the jurisprudence of the ICTR, interlocutory appeals under Rule 73 (B) have been described as "exceptional".(31) It was pointed out that these appeals should be "granted only sparingly"(32) or under circumstances which are "exceptional indeed".(33) In one decision, the ICTR Chamber recalled that the exceptional character of interlocutory appeals is "consistent with some important national jurisdictions around the world in which interlocutory appeals are not allowed in criminal cases, or allowed only in very limited circumstances".(34) The ICTR has also highlighted that the use of the term "significantly" in the wording of the provision is meant to confirm that certification is only to be granted on an exceptional basis, upon assessment of the circumstances which are peculiar to each case.(35) The SCSL adopted a similar approach in its jurisprudence. The Trial Chamber, noting the terms of Rule 73 (B) of the SCSL Rules, found that "it must apply an entirely new and considerably more restrictive test than the one applied by the ICTR and the ICTY"(36), noting that "this restriction is in line with the trend ... to tighten the test for granting leave in respect of interlocutory appeals in the interests of expeditiousness".(37)

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19. This case-law shows that in striking the balance between the convenience of deciding certain issues at an early stage of the proceedings, and the need to avoid possible delays and disruptions caused by recourse to interlocutory appeals, the provisions enshrined in the relevant rules of the ad hoc Tribunals, and in the ICC Statute, favour as a principle the deferral of appellate proceedings until final judgment, and limit interlocutory appeals to a few, strictly defined, exceptions. 20. Read against this background, it is also clear (see principle (ii) in paragraph 15 above) that article 82, paragraph 1 (d), of the Statute requires of the applicant for leave to appeal to establish and demonstrate that: a. the decision complained of involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; and b. an immediate resolution of such issue by the Appeals Chamber may "materially advance the proceedings". 21. As elaborated in the case-law of the ad hoc Tribunals and the SCSL, this means that the party applying for leave to appeal needs to demonstrate the existence of both the above requirements(38); and that failure by the applicant to establish the first of such requirements will exempt the Chamber from considering whether the second has been met. (39) It is also to be noted that the first requirement consists of two conditions: the issue on which the appeal is sought must significantly affect either the proceedings both in terms of fairness and in terms of expeditiousness (the "first limb") or the outcome of the trial (the "second limb"). As a result, the mere fact that an issue is of general interest or that, given its overall importance, could be raised in, or affect, future pre-trial or trial proceedings before the Court is not sufficient to warrant the granting of leave to appeal. (40) What the party seeking leave needs to demonstrate is that the issue at stake affects, first and foremost, the fairness and expeditiousness of the proceedings currently before the Chamber or the outcome of the related trial, as well as the impact (in terms of material advancement) of an immediate resolution of the issue on such proceedings. Failing such demonstration, leave to appeal cannot be granted, unless article 82, paragraph 1 (d), of the Statute is interpreted as allowing interlocutory appeals against any decision of a Chamber that touches upon a question of general importance for the Court. But, in the opinion of this Chamber, such an interpretation would be contrary to the letter and spirit of article 82, paragraph 1 (d) (see paragraph 16 above). 22. With respect to principle (iii) (see paragraph 15 above), the Chamber considers that the existence of the requirements set forth in article 82, paragraph 1 (d), of the Statute is the sole factor of relevance in determining whether leave should be granted or not. Accordingly, it is the view of the Chamber that the arguments on the merits or the substance of the appeal are more appropriately for consideration and examination before the Appeals Chamber if and when leave to appeal has been granted. As the ICTR Trial Chambers have noted, submission of arguments on the merits or the substance at an early stage must be considered "irrelevant and premature"(41); and revising generally the thrust of previous arguments without demonstrating relevant conditions for leave is not sufficient for the party to satisfy the requirements set forth in the rule(42). Along the same lines of reasoning, the ICTR also stated that "it is not the substance of the appeal which guides the Chamber in determining whether or not certification should be allowed", but only the two

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criteria set out in ICTR Rule 73 (B) (ie, the issue at stake must significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and an immediate resolution of the issue by the Appeals Chamber would materially advance the proceedings).(43) 23. These conclusions are particularly important with respect to the Prosecutor's application seeking leave to appeal from this Chamber. In requesting the Chamber to grant leave to appeal the Decision, the Prosecutor essentially submits arguments relating to the substance of the appeal, ie to the question of whether the Chamber has correctly interpreted the relevant provisions of the Statute and of the Rules concerning the making and transmission of the Requests. In this respect, as will follow from the Chamber's view indicated in the foregoing paragraphs, the Chamber considers that it would be inappropriate for the Chamber to examine arguments on the merit of the appeal in the context of the Prosecutor's application, unless those arguments are legally relevant and have a bearing on the criteria set out in article 82, paragraph 1 (d), of the Statute. IV. Specific requirements of article 82, paragraph 1 (d), of the Statute Absence of significant impact on the fair conduct of the proceedings 24. There can be little controversy about the two-fold nature of the first limb of the first requirement of article 82, paragraph l(d), of the Statute: it is necessary that the issue on which appeal is sought would significantly affect the proceedings both in terms of fairness and in terms of expeditiousness. (44) It is therefore necessary for the Chamber to assess whether the Prosecutor has satisfied the burden that he bears to demonstrate that the issue at stake affects the proceedings now before the Chamber in this two-fold manner. […] 35. Failure by the Prosecutor to demonstrate that the "fairness" tenet of the first limb of the first requirement of article 82 has been met would per se exonerate the Chamber from the need to assess the "expeditiousness" tenet of the same limb. Be that as it may, the Chamber considers it appropriate to state its views on the matter. In doing so, the Chamber wishes to emphasise that the Prosecutor also does not demonstrate how the issue on which appeal is sought would have a significant impact on the expeditiousness of the proceedings. […] 45. Having concluded that the first limb of the first requirement set forth in article 82, paragraph 1 (d), of the Statute is not satisfied, the Chamber needs to consider the alternative limb, ie whether the issue at stake would significantly affect the "outcome of the trial." […] 52. Having found that neither the first nor the second limb of the first requirement for leave to appeal is satisfied, it would not be necessary for the Chamber to address the second requirement of article 82, paragraph 1 (d), of the Statute, ie whether, in the opinion the Chamber, "an immediate resolution" of the issue at stake by the Appeals Chamber "may materially advance the proceedings". —————————

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See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Working Group on Procedural Matters, Proposal submitted by Kenya (Article 81, Appeal against interlocutory decisions), 3 July 1998, Doc. A/CONF. 183/C. 1/WGPM/L.46. (25) See Rule 73 (B) of the Rules of Procedure and Evidence of the ICTY, adopted on 11 February 1994, as amended on 11 February 2005, IT/32/Rev.34. (26) See Rule 73 (B) of the Rules of Procedure and Evidence of the ICTR, adopted on 29 June 1995, as amended on 21 May 2005. (27) Rule 73 (B) of the Rules of Procedure and Evidence of the ICTY reads: "Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification, if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings." (28) Former Rule 73 (D) of the Rules of Procedure and Evidence of the ICTY read as follows: "Decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave (i) if the impugned decision would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposition of the trial including post-judgment appeal; (ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally" (emphasis added). See ICTY, Rules of Procedure and Evidence, IT/32/Rev.22. (29) See Sections 23 and 27 of UNTAET Regulation No. 2000/30 (On Transitional Rules of Criminal Procedure), 25 September 2000, UNTAETYREG/2000/30. (30) Rule 73 (B) of the Rules of Procedure and Evidence of the SCSL reads in full: "Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as a stay of proceedings unless the Trial Chamber so orders". See Rules of Procedure and Evidence of the Special Court for Sierra Leone, As Amended at Sixth Plenary, 14 May 2005. (31) See ICTR, Prosecutor v Théoneste Bagosora et al., ICTR-98-41-T, Certification of Appeal Concerning Prosecution Investigation of Protected Defence Witnesses, 21 July 2005, para. 6; ICTR, Prosecutor v Casimir Bizimungu et al, ICTR-99-50-T, Decision on Prosper Mugiranzea's Motion for Leave to Appeal from the Trial Chamber's Decision of 3 November 2004, 24 February 2005, para. 8 (referring to the "exceptional nature" of such appeals); ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-97-21-T, Decision on Ntahobali's and Nyiramasuhuko's Motions For Certification To Appeal the "Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible", 18 March 2004, para. 14 ("exceptional circumstances"). See also ICTR, Prosecutor v Edouard Karemera, ICTR-98-44-T, Decision on the Defence Request For Certification Appeal the Decision on Accused Nzirorera's Motion For Inspection of Materials, 26 February 2004, para. 26 ("exceptional cases"); ICTR, Prosecutor v Ndayambaje et al., ICTR-98-42-T, Decision on Prosecutor's Motion for Certification to Appeal the Decision of the Trial Chamber Dated 30 November 2004 on the Prosecution Motion For Disclosure of Evidence of the Defence, 4 February 2005, para. 11 ("very limited circumstances"). (32) See the submission of the Prosecution in ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision 24 February 2005, para. 4. (33) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 15. (34) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 14. (35) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 16. (36) See SCSL, Prosecutor v Alex Tamba Brima et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions

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for Joinder, SCSL-2004-16-PT, 13 February 2004, para. 15; SCSL, Prosecutor v Issa Hassan Sesay et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, SCSL-2004-15-PT, 13 February 2004, para. 12. (37) SCSL, Prosecutor v Issa Hassan Sesay et al, Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution Motions for Joinder, SCSL-2004-15-PT, 13 February 2004, para. 12. (38) See ICTY, Prosecutor v Slobodan Milosevic, IT-02-54-T, Decision on Prosecution Motion for Certification of Trial Chamber Decision on Prosecution Motion for Voir Dire Proceeding, 20 June 2005, para. 2 ("cumulative criteria"); ICTY, Prosecutor v Slobodan Milosevic, IT-0254-T, Decision on Prosecutor's Application for Certification Under Rule 73 (B) Concerning Rule 70, 29 August 2002 ("two cumulative criteria"). See also SCSL, Prosecutor v Alex Tamba Brima et al., SCSL-2004-16-PT, Decision 13 February 2004, para.13; SCSL, Prosecutor v Issa Hassan Sesay et al, SCSL-2004-15-PT, Decision 13 February 2004, para. 10. (39) See ICTR, Prosecutor v Bizimungu et al.,ICTR-00-56-T, Decision on Sagahutu's Request for Certification to Appeal the Decision Dated 13 May 2005 Dismissing Applicant's Request for Exclusion of Witnesses LMC, DX, BB, GS, CJ, and GFO, 9 June 2005, para. 18; ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-97-21-T, Decision 18 March 2004, paras. 23 and 24. (40) See with respect to Rule 73 (B) of the Rules of Procedure and Evidence also ICTY, Prosecutor v Slobodan, Contempt Proceedings Against Kosta Bulatovic, IT-02-54-T-R77.4, Order on Defence Motion Seeking Reconsideration of Order on Contempt Concerning Witness Kosta Bulatovic and Alternatively Motion Requesting Certification, 3 May 2005 ("[E]ven when an important point of law is raised, such as in this case, the effect of Rule 73 (B) is to preclude certification unless the party seeking clarification establishes that both conditions are satisfied"). (41) See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-9721-T, Decision 18 March 2004, para. 20. (42) See ICTR, Prosecutor v Ndayambaje et al, ICTR-98-42-T, Decision 4 February 2005, para. 12. (43) See ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision on Prosper Mugiranza's Motion for Leave to Appeal, 24 February 2005, para. 9. (44) See ICTY, Prosecutor v Slobodan Milosevic, IT-02-54-T, Decision 29 August 2002; See ICTR, Prosecutor v Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, ICTR-97-21-T, Decision 18 March 2004, para. 22.

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Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – Burden of proof that the criteria are fulfilled – Irrelevance of submissions on appeal grounds

S82-PT-7

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, para. 30:

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30. La présente Chambre estime, s'agissant de l'application de l'article 82-1-d du Statut, que le requérant doit démontrer que les conditions énoncées dans cet article sont remplies, et que toute considération relative au fond de la question doit être écartée. La Chambre observe à cet égard que le requérant considère lui aussi qu'il « n'est pas nécessaire de discuter du fond de l'appel dans une requête sollicitant l'autorisation d'interjeter appel(36) ». ————————— (36) Requête du Procureur, para. 8.

——— Official Translation ——— 30. With regard to the application of article 82 (1) (d) of the Statute it is the view of this Chamber that the applicant must demonstrate that the conditions stipulated in this article have been met, and that any considerations relating to the merit or substance of the appeal must be dismissed. In this respect the Chamber notes that the applicant too considers that “an application for leave to appeal need not discuss the merits of the appeal”.(36) ————————— (36) Prosecutor’s Application, para. 8.

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Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – Chamber’s finding that the criteria are met, notwithstanding the applicant’s submissions

S82-PT-8

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras. 31-34, 42-45, 54-57:

31. This notwithstanding, for the reasons set out below, the single judge considers that, regardless of the position embraced in the Decision, the determination of the criteria to be met for granting applications for protection purposes for non-disclosure prior to the confirmation hearing of the identity of those witnesses on which the Prosecution intends to rely at that hearing would significantly affect both the fair and the expeditious conduct of the proceedings in the case against Thomas Lubanga Dyilo. Moreover, in the opinion of the single judge an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings in such a case. 32. In the view of the single judge, this issue is directly related to the fairness of the proceedings insofar as non-disclosure could affect the ability of the Defence to fully challenge the evidence of the relevant Prosecution witnesses and has an impact on the rights of the Defence pursuant to articles 61 (3) and (6) (b) and 67 (1) of the Statute. 33. The single judge also considers that this issue is directly related to expeditious conduct of the proceedings insofar as it is intimately connected to process of seeking and implementing other less restrictive measures for protection of those witnesses on which the Prosecution intends to rely at confirmation hearing.

the the the the

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34. Furthermore, the single judge holds that an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings in the case against Thomas Lubanga Dyilo insofar as (i) the Prosecution has repeatedly informed the Chamber that it intends to file further applications under article 68 of the Statute and rule 81 (4) of the Rules; and (ii) according to the 24 May 2006 Decision on the Postponement of the Confirmation Hearing and the Adjustment of the Time Table Set in the Decision on the Final System of Disclosure (the "Decision on the Postponement of the Confirmation Hearing")(54), any such application in relation to the witnesses included in the Prosecution Charging Document and List of Evidence shall be made as soon as practicable and no later than the 28 August 2006. (55) […] 42. This notwithstanding, for the reasons set out below, the single judge considers that, regardless of the position embraced by the Decision, the determination of the temporal scope of the ongoing investigation of Thomas Lubanga Dyilo and the consequent temporary nature of the redactions granted under rule 81 (2) of the Rules so as not to prejudice the investigation would significantly affect the fair and expeditious conduct of the proceedings in the case against Thomas Lubanga Dyilo. Furthermore, in the opinion of the single judge an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings of the case. 43. In this regard, the single judge considers that this issue is directly related to the fairness of the proceedings insofar as the substantial mutation between the confirmation hearing and the commencement of the trial of the evidentiary nature of the case against Mr Thomas Lubanga Dyilo as a result of routine investigative steps taken by the Prosecution to fill the gaps of the case against him is at stake. 44. The single judge also considers that this issue is directly related to the expeditious conduct of the proceedings of the case against Thomas Lubanga Dyilo, particularly if the Prosecution is allowed to undertake all sorts of routine investigative steps after the charges against Thomas Lubanga Dyilo have been confirmed. 45. Moreover, in view of the fact that the confirmation hearing has been rescheduled for 28 September 2006, and that, in its planning, the Prosecution must therefore take into consideration that the ongoing investigation of Thomas Lubanga Dyilo must be, in principle, brought to an end accordingly, the single judge is of the view that an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings of the case. […] 54. This notwithstanding, for the reasons set out below, the single judge considers that, regardless of the position embraced by the Decision, the determination of the regime encompassed by the term ex parte in the context of applications under rule 81 (2) and (4) of the Rules, is an issue which would significantly affect both the fair and the expeditious conduct of the proceedings in the case against Thomas Lubanga Dyilo. Moreover, in the opinion of the single judge, an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings in such a case.

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55. In the view of the single judge, this question is directly related to the fairness of the proceedings, insofar as what is at stake is the Defence procedural right to be aware and, as far as possible, to have a say in the disposition of the Prosecution motions seeking to restrict the disclosure prior to the confirmation hearing of evidence and materials, to which, as a general rule according to the Statute and the Rules, the Defence is entitled to have access. 56. The single judge also considers that this issue is directly related to the expeditious conduct of the proceedings because, as shown by the abovementioned jurisprudence of the European Court of Human Rights, (77) the regime encompassed by the term ex parte is connected to the shaping of a regime under which the Defence can get notice and participate as far as possible in the decision-making process of the Prosecution applications. 57. Moreover, considering that the Prosecution has repeatedly informed the Chamber of its intention to file further applications under rule 81 (2) and (4) of the Rules(78) and considering that the Decision on the Postponement of the Conformation Hearing establishes several deadlines for making such applications, (79) it is the view of the single judge that an immediate resolution of this issue by the Appeals Chamber may materially advance the proceedings in the case against Thomas Lubanga Dyilo. ————————— (54) ICC-01/04-01/06-126. (55) Ibid, p 8 (77) Jasper v United Kingdom, supra foonote 71, paras 52 to 58 See also, the jurisprudence cited in footnotes 9 to 13 of the Decision (78) In addition, on 19 June 2006, the Prosecution filed the "Prosecution's Application pursuant to Rule 81 (2)", in which the Prosecution requests the Chamber to authorise redactions in several additional witness statements (ICC-01/04-01/06-153-Conf, and ex parte annexes) (79) Decision on the Postponement of the Confirmation Hearing, pp 6 to 8.

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Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – No leave to appeal on issues not dealt with in the impugned decision

S82-PT-9

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, para. 25:

25. As a result, the Prosecution's characterisation of the Decision as being of a "quasi-legislative" nature has no factual basis.(42) Hence, due to the fact that no leave to appeal can be granted for an issue which is not dealt with in the Decision, there is thus no need to analyse whether the above-mentioned issue meets any of the two cumulative criteria provided for in article 82 (l)(d) of the Statute. ————————— (42) The Prosecution Motion, para 53.

S82-PT-10

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

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No. ICC-01/04-01/06, Decision on the Defence Motion for Leave to Appeal (PT), 18 August 2006, pp. 7-10: CONSIDERING that, according to the "Judgement on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal" ("the Appeals Chamber Judgement") (22), issued by the Appeals Chamber on 13 July 2006: (i) "only an issue may form the subject-matter of an appealable decision;" (23) (ii) "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";(24) (iii) "not every issue may constitute the subject of an appeal",(25) but "it must be one apt to 'significantly affect', i.e. in a material way, either a) 'the fair and expeditious conduct of the proceedings' or b) 'the outcome of the trial'"(26); and (iv) "identification of an issue having the attributes adumbrated above does not automatically qualify it as the subject of an appeal" insofar as "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"(27); CONSIDERING that, in the view of the Chamber, it is necessary to distinguish between: (i) the non-disclosure of the identity of the Applicants, pursuant to article 68 (1) of the Statute and rule 89 (1) of the Rules, during the application process; and (ii) the non-disclosure of the identity of the Applicants, pursuant to rules 87 and 88 of the Rules, once (a) they have been granted the status of victims of the case; and (b) the manner in which they will participate in the proceedings of the case to be held before the Chamber has been determined; CONSIDERING that, in the view of the Chamber, the procedure under article 68 (1) of the Statute and rule 89 (1) of the Rules in relation to the Applicants' requests for non-disclosure of their identity during the application process allows for a decision on such requests before notice of such requests is given to the Prosecution and the Defence; that this is because, during the application process, the Applicants have not yet been granted the procedural status of victim in the case against Thomas Lubanga Dyilo, which means that their entitlement to participate in this case remains uncertain; and that, given the particular circumstances of the Applicants, resorting to this procedure was necessary; CONSIDERING that this procedure did not prejudice the procedural rights of the Defence under rule 89 (1) of the Rules to reply to the Applications because the Defence, within the time limits provided for in rule 155 of the Rules, could have filed a motion requesting the lifting of all or part of the redactions and, in the alternative, leave to appeal against the Decision Establishing a Deadline; that,

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neither after the issuance of the Decision Establishing a Deadline nor after the receipt of the redacted versions of the Applications, did the Defence do so; and that the Defence first raised the issue in its "Conclusions de la défense quant à la demande de participation à la procedure des requérants a/0001/06" filed on 14 June 2006(28). CONSIDERING therefore that the issues of non-disclosure of the identity of the Applicants during the application process and the subsequent transmission to the Defence of redacted versions of the Applications were not dealt with in the Decision because such they were the subject of the Decision Establishing a Deadline; CONSIDERING that, according to the notification records kept by the Registry, the Defence received a copy of the redacted version of all three Applications well before the expiration of the time-limit set by the single judge for the Defence to reply; (29) CONSIDERING that the Decision was the last step of the application process; that it granted the Applicants only the procedural status of victim in the case against Thomas Lubanga Dyilo; and that the Decision did not address the modalities of participation in the proceedings leading to the confirmation hearing and during the hearing; CONSIDERING therefore that the protective measure of non-disclosure of the identity of the Applicants in force throughout the application process was also in force when the Decision was issued; and that, for this reason, the Defence was provided only with a redacted version of the Decision, which did not however prejudice it in respect of its submission of the Defence Request; CONSIDERING further that the issue of non-disclosure of the identity of the Applicants after the issuance of the Decision and prior to the confirmation hearing was not dealt with in the Decision; and that, therefore, the Applicants are in error when they allege that the Chamber has already endorsed the principle of nondisclosure of identity prior to the confirmation hearing of those granted the procedural status of victim in the case against Thomas Lubanga Dyilo; (30) ————————— (22) ICC-01/'04-168. (23) The Appeals Chamber Judgement, para. 9. (24) The Appeals Chamber Judgement, para. 9. (25) The Appeals Chamber Judgement, para. 9. (26) The Appeals Chamber Judgement, para. 10. (27) The Appeals Chamber Judgement, para. 14. (28) ICC-01/04-01/06-151-Conf. (29) Court Management-Court Records electronic notification to Mr Flamme on 2 and 5 June 2006 and notification by way of DHL delivery, sent on 2 June 2006 and received and signed for on 6 June 2006. (30) The Applicants' Response, para. 6.

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263

Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – Criteria are cumulative

S82-PT-11

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on the Prosecutor’s Application for Leave to Appeal (PT), 14 March 2005:46

CONSIDERING that according to article 82 of the Statute and in order to be granted leave to appeal by Pre-Trial Chamber I, the Prosecutor must demonstrate that the Challenged Decision involves an issue (1) that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and (2) for which, in the opinion of the Pre-Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings; […] CONSIDERING that, in these circumstances, the Prosecutor has not shown that the Challenged Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial; CONSIDERING therefore that the first criterion set out in article 82 paragraph (1) (d) of the Statute has not been met and that it is not necessary for PreTrial Chamber I to consider further whether the Prosecution's Application raises a question whose immediate resolution by the Appeals Chamber may materially advance the proceedings.

x

Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – “Fairness”

S82-PT-12

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), paras. 30-31:

30. Fairness is closely linked to the concept of "equality of arms", or of balance(48), between the parties during the proceedings(49). As commonly understood, it concerns the ability of a party to a proceeding to adequately make its case, with a view to influencing the outcome of the proceedings in its favour. (50) From the experience of the ad hoc tribunals, it appears in fact that the question of the possible impact of the issue on which interlocutory appeals is sought on the fairness of the proceedings is usually raised at a stage of the trial when both the Prosecutor and the defense have

46 Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (PT), 31 mars 2006, para. 61.

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made their respective cases before the Chamber. In the instant situation, the Chamber is dealing with "ex parte" proceedings involving only the Prosecutor. 31. The Chamber recognises that the requirement of fairness exists for all participants in the proceedings and therefore also operates to the benefit of the Prosecutor.(51) In this connection, the Chamber notes that fairness vis-à-vis the Prosecutor has been preserved in the course of these proceedings. Specifically, the Prosecutor was heard on the point of the preparation and transmission of the Requests prior to the decision of the Chamber; and the Registrar, whilst entrusted with the task of transmitting the Requests, was specifically instructed in the Decision and in the Requests and is therefore mandated not to act unless upon prior consultation with the Prosecutor, with any disagreement or difficulty arising in the process having to be submitted to the Chamber. The purpose underlying this mechanism is precisely to ensure that cooperation is fruitful by allowing the point of view of the Prosecutor to be taken into account. ————————— (48) See generally Salvatore Zappalà, The Rights of the Accused, in Cassese-Gaeta-Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (Oxford, 2000), 1319, at 1328. (49) See Anne-Marie La Rosa, Juridictions pénales internationales La procédure et la preuve (Paris, Presses Universitaires de France, 2003), at 221, noting that issues liable to affect fairness of the proceedings are those which are "relatives à l'égalité des armes, aux composantes du droit à une procédure équitable ou à des questions probatoires". (50) See ICTY, Appeals Chamber, Prosecutor v Dusko Tadic, IT-94-1-A, Judgment of 15 July 1999, para. 48 ("[EJquality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case"); ICTR, Appeals Chamber, The Prosecutor v Clement Kayishema and Obed Ruzmdana, ICTR-95-1-A, Judgment of 1 June 2001, para. 70. See also European Court of Human Rights, Dombo Beheer BV v The Netherlands, Judgment of 27 October 1993, Series A, No. 274, para. 33 ("[T]he requirement of 'equality of arms', in the sense of a 'fair balance' between the parties, applies in principle ... to criminal cases ...'Equality of arms' 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 opponent"). (51) See with respect to the principle of "equality of arms" also Zappalà, The Rights of the Accused, in Cassese-Gaeta-Jones (eds.), The Rome Statute of the International Criminal Court, cit., at 1330.

x

Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – “Significant impact on the expeditiousness of proceedings”

S82-PT-13

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), para. 36:

36. Such impact is commonly understood in the case-law of the ad hoc Tribunals as existing whenever failure to provide for an immediate resolution of the issue at stake

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by the Appeals Chamber would entail the risk that lengthy and costly trial activities are nullified at a later stage, following the decision of first instance by the Trial Chamber(53). ————————— (53) See ICTR, The Prosecutor v Théoneste Bagosora et al., ICTR-98-41-T, Decision 11 September 2003, para. 9.

x

Article 82(1) (d): Interlocutory appeal– Leave to appeal – Applicable criteria – “Significant impact on the outcome of the trial”

S82-PT-14

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), paras. 48-51:

48. The Prosecutor's reading of the requirement of the potential impact of the issue on the outcome of the trial appears to be excessively broad in the context of article 82, paragraph 1 (d), of the Statute. Not every issue that may influence the course of the proceedings in general terms is or can be regarded as an issue likely to affect the outcome of the trial within the meaning of this article and as understood in the caselaw of the ad hoc Tribunals applying the corresponding common Rule 73 (B). It is only those issues that are bound to specifically affect the decision of the trial in favour of or against the accused(57), ie issues having a bearing on the determination of his or her guilt or innocence and therefore on the Trial Chamber's decision to convict or to acquit, which are of relevance in this context. 49. The Chamber does not exclude that this requirement may be invoked at this early stage of the proceedings. In such cases, however, the Chamber is still required to assess the potential impact of the issue at stake for a future trial. More specifically, the Chamber must assess whether an issue merits immediate resolution by the Appeals Chamber at this stage of the proceedings because its impact would later compromise the outcome, ie the very result of the trial as clarified above. 50. From this perspective, the Chamber is not convinced that the issue that forms the subject of the Prosecutor's application for leave to appeal falls within this category. The prospect of "success or failure in the arrest effort alone" does not affect the "outcome of the trial" in the proper sense. The issue raised in the Prosecutor's application might, at most, have an impact on the phase between the issuance of the warrant and the arrest and surrender of a person to the Court, which does not in itself affect the position of that person in respect of the substantive charges made against him or her. The transmission of the Warrants and the Requests is a technical procedure for international cooperation for the arrest of a person. It does not, however, by itself affect the very "outcome of the trial". 51. The Chamber notes in this respect that not every issue that may have an impact on proceedings, no matter how limited or circumscribed in time or scope, can be

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construed as an issue significantly affecting the outcome of the trial for the purposes of an interlocutory appeal. Such an interpretation would run counter to the very objective underlying the first requirement of article 82, paragraph l(d), of the Statute and to the restrictive regime of interlocutory appeals as a whole. ————————— (57) See ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision on Bicamumpaka's Request Pursuant to Rule 73 For Certification to Appeal the 1 December 2004 "Decision on the Motion of Bicamumpaka and Mugenzi for Disclosure of Relevant Material", Decision 4 February 2005, para. 26 ("Examples of 'significant' issues within the meaning of Rule 73 (B) include those that affect the rights of the Accused to a fair trial or, upon which a decision whether or not to certify an appeal may lead to a different result at the end of the trial")

x

Article 82(1) (d): Interlocutory appeal – Leave to appeal – Applicable criteria – “Immediate resolution by the Appeals Chamber may materially advance the proceedings”

S82-PT-15

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005), paras. 54-55:

54. The Chamber is aware that the Trial Chambers of the ad hoc Tribunals have in some instances interpreted the reference to the impact of the issue on which appeal is sought as encompassing not only the specific proceedings or trial during which the issue arose, but also other proceedings or trials being held or to be held in the future.(58) However, it should be noted that such reference is usually made in addition to and not in replacement of the necessary reference to an existing impact on the current proceedings. The Chamber already highlighted that the rule previously in force in the ad hoc Tribunals allowed leave to be granted on the mere basis that the issue was of general relevance to "international law".(59) The difference between that previous rule and the provision now appearing in both the ICC Statute and in the current version of the rules of the ad hoc Tribunals consists of the need to show a specific link between the immediate resolution of the issue at stake and the impact on the current proceedings. In the opinion of the Chamber, the potential impact on future proceedings may at most be invoked as an additional argument in support of the alleged significant impact on the current proceedings, which remains an essential condition to be met for the purpose of the leave to appeal. 55. The Chamber is also not convinced that the fact that an issue is new and has never been the subject of the scrutiny by the Appeals Chamber necessarily constitutes a ground for admitting interlocutory appeals. The Court will face novel issues on an ongoing basis throughout its first proceedings. To claim that the novelty of an issue as such warrants the grant of the leave to appeal pursuant to article 82, paragraph 1 (d), of the Statute would essentially deprive its provisions of any meaningful content. The argument must therefore be dismissed.

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————————— (58) See ICTY, Prosecutor v Mile Mrksic, IT-95-13/1-PT, Decision Granting Certification to Appeal, 29 May 2003; ICTY, Prosecutor v Slobodan Milosevic, IT-02-54-T, Decision on Prosecution's Application for Certification Under Rule 73 (B) Concerning the Evidence of an Investigator, 20 June 2002; ICTR, Prosecutor v Casimir Bizimungu et al., ICTR-99-50-T, Decision on Bicamumpaka's Request Pursuant to Rule 73 For Certification to Appeal, 4 February 2005, para. 29. (59) See above (fn 28) former Rule 73 (D) of the Rules of Procedure and Evidence of the ICTY.

x

Article 82(1) (d): Interlocutory appeal – Leave to appeal – Partial leave on specific grounds

S82-PT-16

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Second Defence Motion for Leave to Appeal (PT), 28 September 2006, pp. 14-15:

GRANT the Defence Request for Leave to Appeal in relation to the following issues: (i) whether the Decision lacked factual reasoning in light of the fact that it was issued during ex parte proceedings for non-disclosure of identity if Prosecution witnesses under rule 81(4) of the Rules; (ii) whether the principle of necessity and proportionality was appropriately applied in deciding on the non-disclosure of identity of some Prosecution witnesses for the purpose of the confirmation hearing; (iii) whether the use at the confirmation hearing of summary evidence in relation to the Prosecution witnesses for which non-disclosure of identity has been granted is permissible under the Court’s applicable law; REJECT the Defence Request for Leave to Appeal in relation to the other issues for which leave to appeal is sought.

APPEALS CHAMBER x

Article 82: Appeal – Res Judicata – Appeals on issues determined in previous decisions without appeal – Situation where the reasoning in the impugned decision overlaps with a previous decision on a different issue which was not appealed (appeal admitted)

S82-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Prosecutor’s Appeal against the Decision of Pre-Trial Chamber I Entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule

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81(2) and (4) of the Rules of Procedure and Evidence” (A), 13 October 2006, paras. 20-23, and Dis. Op. of Judge Georghios M. Pikis, paras. 16-20: 20. In respect of the first two grounds of appeal raised by the Prosecutor, Counsel for Mr. Lubanga Dyilo submits that the issues raised under these grounds already were decided upon in the Pre-Trial Chamber decision on the final system of disclosure of 15 May 2006. Counsel for Mr. Lubanga Dyilo notes that the Prosecutor did not apply for leave to appeal that decision. For that reason, Counsel for Mr. Lubanga Dyilo argues, the issues raised under the first two grounds of appeal have become final and the Appeals Chamber thus may not reverse them because this would be in conflict with the principle of res judicata ("chose jugée") and could lead to contradictory decisions (see response to the document in support of the appeal, paragraphs 7, 13 and 14). In respect of the issue raised by the Prosecutor under his first ground of appeal, Counsel for Mr. Lubanga Dyilo refers in particular to paragraph 101 of annex I of the decision on the final system of disclosure; in respect of the issue raised under the second ground of appeal, Counsel for Mr. Lubanga Dyilo refers in particular to paragraphs 130 and 131 of annex I of the decision on the final system of disclosure. 21. For the reasons given below, the Appeals Chamber rejects the argument by Counsel for Mr. Lubanga Dyilo that the Appeals Chamber may not reverse the issues raised under the first two grounds of appeal because they have final effect. The Prosecutor is not precluded from raising the issues in the present appeal. 22. This follows from the following consideration: the decision of Pre-Trial Chamber I of 15 May 2006 addressed the final system of disclosure for the purposes of the confirmation hearing; it did not address the question of how the Pre-Trial Chamber would dispose of applications to restrict disclosure under rule 81 (2) and (4) of the Rules of Procedure and Evidence. This latter question was addressed in the impugned decision. In particular, the Pre-Trial Chamber made the following decisions in the impugned decision that provide the basis for the first and second grounds of appeal: […] 23. None of the above decisions appear in the decision on the final system of disclosure. It therefore would not have been possible for the Prosecutor to have brought any appeal in relation to them prior to their determination in the impugned decision. 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. Dis. Op. of Judge Georghios M. Pikis 16. […] 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. Judgment- and decision-making within the judicial process are institutionally associated with finality. The court brings judgment to bear on the resolution of the issues arising before it. The very notion of a "decision" made in judicial proceedings imports determination of a matter at issue. (28)

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17. 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. (29) So, we have subject-matter estoppel(30) in relation to the cause itself and issue estoppel(31) with regard to interim determinations. A fortiori, the same applies to interlocutory decisions given in the process of litigation. Res judicata is foremost a principle of civil litigation. The rule against double jeopardy in criminal proceedings serves the same purpose. Moreover, the determination of an issue arising in the cause of criminal proceedings will likewise seal the fate of the issue within the context of the cause. Any attempt to re-litigate the issue would derail the proceedings off their course. And as such it will be stopped. In essence, subjectmatter and issue estoppel in the above sense have their place in criminal proceedings too.(32) 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. 18. In the Romano-Germanic system of law, a corresponding principle applies not necessarily under the same name (33) or subject to rules identical to those of the English common law. There too, an issue finally disposed of in judicial proceedings cannot be revisited.(34) And the same applies to civil as well as criminal proceedings where the concept of ne bis in idem is deeply rooted.(35) The European Court of Justice acknowledged chose jugée - res judicata as an important principle of law interwoven with legal certainty.(36) 19. In either 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. 20. In her decision of 15 May 2006, the single judge did not dispose of proceedings founded under rule 81 (2) and (4) of the Rules of Procedure and Evidence pending before her. Non-disclosure of witness statements is an exception to the rule (see rule 76 (1) of the Rules of Procedure and Evidence). A question of non-disclosure can only arise upon an application of the Prosecutor made under rule 81 (2) and (4) of the Rules of Procedure and Evidence. Hence, the single judge was in no way impeded or precluded from addressing proceedings arising under the provisions of rule 81 (2) and (4) of the Rules of Procedure and Evidence. Statements in the decision of 15 May 2006 bearing on the interpretation and application of rule 81 (2) and (4) of the Rules of Procedure and Evidence are nothing other than dicta not directed at resolving a matter arising under rule 81 (2) and (4) of the Rules of Procedure and Evidence. Hence, the issues addressed by the single judge in the decision under appeal were not determined by her decision of 15 May 2006. Therefore, res judicata cannot be erected under any circumstances as a barrier to the exploration and range of application of the provisions of rule 81 (2) and (4) of the Rules of Procedure and Evidence. ————————— (28) See Garner B. A. (Editor in chief) "Black's Law Dictionary" (Eighth Edition, Thomsen West, 2004), page 436. (29) See Andrews N. "English Civil Procedure" (Oxford, 2003), paragraphs 40.10 to 40.30. (30) Also referred to as "cause of action estoppel", "claim preclusion". In the United States, res judicata is referred to only as "claim preclusion", a concept distinct from "issue preclusion"

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(see Friedenthal J. H., Kane M. K, Miller A R. "Civil Procedure" (Third Edition, St. Paul, Minn., 1999), paragraph 14.2). (31) Also referred to as "collateral estoppel", "issue preclusion". (32) See Barnett P. "Res Judicata, Estoppel, And Foreign Judgments" (Oxford, 2001), paragraph 1.19. (33) Examples are France: "chose jugée" and Germany: "Rechtskraft". (34) See Encyclopédie Dalloz, "Répertoire de droit pénal et de procédure pénale, Tome II, ChDén, Chose Jugée", (1967), paragraphs 11 to 13; Meyer-Gossner L, "Strafprozessordnung" (47th Edition, Beck, München, 2004), Einl., paragraphs 163 to 189. (35) See Encyclopédie Dalloz, "Répertoire de droit pénal et de procédure pénale, Tome II, ChDén, Chose Jugée", (1967), paragraph 5; Meyer-Gossner L, "Strafbrozessordnung" (47th Edition, Beck, München, 2004) Einl., paragraph 171. (36) European Court of Justice, Case 234/04 Rosmarie Kapferer v. Schlank & Schick GmbH, Judgment, 16 March 2006, paragraph 20, available in • Westlaw: "In that regard, attention should be drawn to the importance, both for the Community legal order and national legal systems, of the principle of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question [...]"; Case C224/01, Gerhard Köhler v. Republik Osterreich, Judgment, 30 September 2003, paragraph 38, available in: Westlaw; Case C-126/97, Eco Swiss China Time Ltdv. Benetton International NV, Judgment, 1 June 1999, paragraphs 46 and 47, available in: Westlaw.

x

Article 82(1) (a): Appeal on admissibility – No referral of the appeal to the Pre-Trial Chamber

S82-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / in the Alternative, Discontinuance of Appeal (A), 6 September 2006, para. 9:

9. Article 19 (6) of the Statute has two parts. The first part specifies which Chamber may hear challenges with respect to the admissibility of a case or the jurisdiction of the Court. Such challenges may be raised inter alia by a person in the position of the appellant who is under arrest (see article 19 (2) of the Statute). The second part of article 19 (6) of the Statute confers a right to appeal decisions with respect to admissibility or jurisdiction. 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.

x

Article 82(1) (d): Interlocutory appeal – Generalities – Right to appeal

S82-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March

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2006 Decision Denying Leave to Appeal (A), 13 July 2006, paras.8-20:47 8. Evidently, article 82(1)(d) of the statute has two components. The first concerns the prerequisites for the definition of an appealable issue and the second criteria by reference to which the Pre-Trial Chamber may state such an issue for consideration by the Appeals Chamber. (a) The first component 9. 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 a disagreement or conflicting opinion. There may be disagreement or conflict of views on the law applicable for the resolution of a matter arising for determination in the judicial process. This conflict of opinion does not define an appealable subject. 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. 10. Not every issue may constitute the subject of an appeal. It must be one apt to “significantly affect”, i.e. in a material way, either a) “the fair and expeditious conduct of the proceedings” or b) “the outcome of the trial”. The issue must be one likely to have repercussions on either of the above two elements of justice. 11. 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 rights, incorporated in the Statute by distinct provisions of it (article 64(2) and 67(1)) and article 21(3); making its interpretation and application subject to internationally recognized human rights. The expeditious conduct of the proceedings in one form or another constitutes an attribute of a fair trial. (13) 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. Breach of or deviation from the rules of a fair trial at the pre-trial stage of the proceedings may have implications on the proceedings and may affect the outcome of the trial. Purging the pre-trial process 47

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Motion for Leave to Appeal (PT), 18 August 2006, pp. 6-7; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Second Defence Motion for Leave to Appeal (PT), 28 September 2006, pp. 4-5; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 13 October 2006, Dis. Op. of Judge Georghios M. Pikis, para. 22; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Third Defence Motion for Leave to Appeal (PT), 4 October 2006, pp.5-6; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006, p.5.

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of errors consequential in the above sense is designed as a safeguard for the integrity of the proceedings. This is at the core of article 82(1)(d) of the Statute. 12. The term “proceedings” as encountered in the first part of article 82(1)(d) is not confined to the proceedings in hand but extends to proceedings prior and subsequent thereto. 13. 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 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. (b) The second component 14. Identification of an issue having the attributes adumbrated above does not automatically qualify it as the subject of an appeal. 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. 15. A crucial word in the second leg of article 82(1)(d) is “advance”; a term having a number of nuances depending on the context in which it is used. Here, the context is judicial proceedings. The word cannot be associated with the expeditiousness of the proceedings, one of the prerequisites for defining a appealable issue. The meaning conveyed by “advance” in the latter part of sub-paragraph (d) is “move forward” (14); by ensuring that the proceedings follow the right course. Removing doubts about the correctness of a decision or mapping a course of action along the right lines provides a safety net for the integrity of the proceedings. 16. A wrong decision on an issue in the context of article 82(1)(d) of the Statute unless soon remedied on appeal will be a setback to the proceedings in that it will leave a decision fraught with error to cloud or unravel the judicial process. In those circumstances the proceedings will not be advanced but on the contrary they will be set back. 17. 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. 18. Lastly, the 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). 19. Put in a nutshell, the 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.

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2. The right to appeal under Article 82(1)(d) of the Statute 20. Article 82(1)(d) of the Statute does not confer a right to appeal interlocutory or intermediate decisions of either Pre-Trial or the Trial Chamber. A right to appeal arises only if the Pre-Trial or Trial Chamber is of the opinion that any such decision must receive the immediate attention of the Appeals Chamber. This opinion constitutes the definitive element for the genesis of a right to appeal. In essence, the Pre-Trial or Trial Chamber is vested with power to state, or more accurately still, to certify the existence of an appealable issue. By the plain terms of article 82(1)(d) of the Statute, a Pre-Trial or Trial Chamber may certify such a decision on its own accord. If it fails to address the appealability of an issue it may do so on the application of any party to the proceedings. 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. ————————— (13) Article 14 of the International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI), U.N. document A/6316 (1966) entered into force 23 March 0976, 999 United Nations Treaty Series 171, reads: “1. […] In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law […] 2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. 3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] (c) To be tried without undue delay;” Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), European Treaty Series No. 5, reads: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Article 7(1)(d) of the African Charter on Human and Peoples’ Rights, signed on 27 June 1981, entered into force on 21 October 1986 reads: “I. Every individual shall have the right ti have his cause heard, This comprises: “d. The right to be tried within a reasonable time by an impartial court or tribunal.” The American Convention on Human Rights, “Pact of San José, Costa Rica”, signed on 22 November 1969, entered into force on 18 July 1978, 1144 United Nations Treaty Series 17955, provides under the heading “Article 8. Right to a Fair Trial” in paragraph 1: “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal […]” (14) Brown L. (Editor in chief), The Shorter Oxford English Dictionary, Oxford University Press, 2002, Fifth Edition, Volume 1, A-M, at page 31. The French term “progresser” applied in article 82(1)(d) of the Statute means according to Larousse de poche 2006, Larousse 2005 Paris, at page 649: “Faire des progrès, aller de l’avant”.

x

Article 82(1) (d): Interlocutory appeal – Object of appeal – “an issue” – Grounds of appeal which go beyond the issues covered in the impugned decision (dismissal)

S82-A-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under

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Rule 81” (A), 14 December 2006, paras.61-62: 61. In relation to the first issue, the Appeals Chamber, by majority, considers that the arguments of the appellant are framed too broadly for the present appeal. The Impugned Decision did not address generally under what conditions the Prosecutor may conclude agreements with information sources, nor was there any reason to do so. Rather, the Impugned Decision inter alia authorised the disclosure of witness statements and other documents with redactions in a situation where the sources of the Prosecutor had requested the non-disclosure of their identities to the defence at this stage of the proceedings. Thus, any agreements that the Prosecutor might have concluded with information sources or any conditions on cooperation that such sources might have imposed would only be relevant for the present appeal if the PreTrial Chamber considered them as binding for the purposes of authorisation of disclosure with redactions. 62. There is no indication that the Pre-Trial Chamber considered itself bound by any agreements between the Prosecutor and his sources or a request by such sources for nondisclosure. As the Prosecutor correctly notes, the Pre-Trial Chamber considered that there was a need to authorise redactions in order to protect the identities of sources of the Prosecutor because such disclosure may prejudice further investigations. That the Pre-Trial Chamber, in coming to this conclusion, took into account requests for non-disclosure by the sources of the Prosecutor is not per se impermissible.

x

Article 82(1) (d): Interlocutory appeal – Review of denial of leave to appeal

S82-A-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006, paras.21-22, 25-32, 34-42:

21. The Prosecutor submitted that the absence of provision in subparagraph (d) of paragraph (1) of article 82 of the Statute or any other section of the law for the review of a negative decision for the statement of an appealable issue is not conclusive. Reconciling with the absence of review mechanism as suggested would deprive the Appeals Chamber of its statutory role and position as the final arbiter of the applicable law in a wide spectrum of judicial action.(15) Disowning such a power would, in the Prosecutor’s submission, entail abdication of duty on the part of the Appeals Chamber.(16) 22. In his contention, the absence of mechanism for review of negative decisions under consideration cannot be regarded as anything other than a lacuna in the law. (17) As such, it must be remedied by the general principles of law finding application in such a situation provided for the instant case by article 21(1)(c) of the Statute. (18) […] 25. The Prosecutor asserts that a review of the principles of law finding application in many countries to the Romano-Germanic system of law, and many countries adhering to the common law system of law and in some countries practising the

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“Islamic Law Jurisdictions”, as the Prosecutor termed it,(19) establish a uniform pattern of reviewability of decisions of an hierarchically lower court disallowing an appeal to a higher court.(20) The Prosecutor broadened his submission to include a general right to appeal any decision of a first instance court.(21) In these proceedings the Appeals Chamber is only concerned with decisions of the character falling within article 82(1)(d) of the Statute. 26. To begin the Prosecutor referred the Appeals Chamber to the relevant law finding application in fourteen countries belonging to the Romano-Germanic system of justice (Argentina, Chile, Ecuador, El Salvador, Finland, Germany, Mexico, Portugal, Spain, Guatemala, Honduras, Nicaragua, Panama and Uruguay) exemplifying in his view a practice recognizing competence to the appeals court to review decisions disallowing an appeal.(22) A right to do so is conferred by statutory law, often referred to as a “complaint motion”.(23) It may be noted parenthetically that none of the countries referred to acknowledge, as may be discerned from the Prosecutor’s submission, an inherent power to the court of appeal to review decisions of a subordinate court disallowing an appeal. In all countries the right to review decisions of such a nature is vested in the hierarchically higher courts as the court of appeal by statutory adjectival law. 27. That the legislation of the countries above reflects a uniform rule finding application in all States having the Romano-Germanic system of justice, the Appeals Chamber cannot confirm.(24) An instance to the contrary is France, where the process review of decisions denying a right to appeal is unknown, as acknowledged by the Prosecutor himself.(25) No such power exists in Germany either with regard to decisions akin to decisions envisioned by article 82(1)(d) of the Statute. (26) In the countries cited above, where power to review decisions ruling out an appeal is provided for, the modalities for the exercise of this right differ and in large measure vary from country to country. 28. The citations of the Prosecutor with regard to countries adhering to the common law system of justice (The United States, The United Kingdom, Canada, Sierra Leone, Australia) are on the one hand confined as in the case of the RomanoGermanic systems of law to statutory provisions allowing for a decision by the hierarchically higher court to grant “special leave” to hear an appeal (27) and on the other hand to the jurisdiction of an hierarchically higher court to grant writs of certiorari and mandamus.(28) These writs derive from England evolved in the context of the common law, acknowledging power to the High Court a branch of the Supreme Court to oversee the exercise of judicial functions by inferior courts, (29) i.e. courts of limited jurisdiction, with a view to ensuring that they operate within the bounds of their jurisdiction and observe fundamental norms of justice. (30) The parameters of the jurisdiction in the countries cited by the Prosecutor do not always coincide with English prototype. What they share in common is the corrective character of the jurisdiction. 29. Any parallelism between “complaint motions” and the writs of certiorari and mandamus is deceptive. In the case of certiorari there is jurisdiction to quash a decision of an inferior court inter alia or an error of law manifest on the record of the proceedings. (31) Mandamus is an ancillary remedy conferring power upon a higher court to order an inferior court to do what it is law-bound to do.(32) Nowadays the above writs find application in England and Wales under the umbrella of judicial

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review.(33) Attention must be drawn to the fact that in England and Wales the writs are only available to oversee and correct the judicial process of inferior courts; a species of supervisory jurisdiction exercised by the High Court.(34) No jurisdiction to issue the aforesaid writs exists or is acknowledged as a means of overseeing the course of the judicial process in the case of first instance higher courts, such as the High Court of Justice if England and Wales, a tier of justice of the Supreme Court (35) of England and Wales. 30. The Pre-Trial and Trial Chambers of the International Criminal Court are in no way inferior courts in the sense that inferior courts are perceived and classified in England and Wales. Hence, any comparison between them and inferior courts under English law is misleading. 31. The three countries cited(36) by the Prosecutor adhering to Islamic law (Malaysia, Singapore and the Philippines) have no uniform rules with regard to review of lower courts’ decisions not permitting an appeal by a higher court. (37) 32. It 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. The Appeals Chamber concludes that the Prosecutor’s submission in this respect is ill-founded. A greater obstacle still in the way of the Prosecutor invoking article 21(1)(c) of the Statute is that it finds no application in the case under review. […] 34. Interpreting article 82(1)(d) of the statute in this sense and spirit, it emerges as an undisputed fact that it does not in terms confer power or competence on the Appeals Chamber to review a decision not stating a subject for appeal. 35. Article 82 is included in Part 8 of the Statute dealing with appeals and matters incidental thereto. The decisions that are subject to appeal are enumerated in articles 81 and 82 of the Statute. There is nothing in Part 8 to suggest that a right to appeal arises except as provided thereunder. Another corollary is that the 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. (42) 36. Article 82(1)(d) of the Statute confers a right of appeal against interlocutory or intermediate decisions of either the Pre-Trial or the Trial Chamber. 37. The self-evidence purpose of the Statute is to make internationally punishable the heinous crimes specified therein in accordance with the principles and the procedure institutionalized thereby. As far as it may be gathered, nothing is left out with respect to the question under consideration otherwise expected from the tenor of the Statute. 38. Like every other article of the Statute, article 82 must be interpreted and applied in accordance with internationally recognized human rights, as declared in article 21(3) of the Statute. Is a right to appeal against every decision of a hierarchically subordinate court to a court of appeal, or specifically an interlocutory decision of a criminal court to the court of appeal, acknowledged by universally recognized human rights norms? The answer is negative. 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. This is reflected in

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article 14(5) of the International Covenant on Civil and Political Rights and many regional conventions and treaties giving effect to universally recognized human rights norms.(43) This right is assured to the accused under article 81 of the Statute. 39. 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. No gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent. 40. The interpretation accorded hereinabove to subparagraph (d) of paragraph 1 of article 82 of the Statute and article 82 generally is confirmed by the travaux préparatoires that establish as laid down in article 32 of the Vienna Convention on the Law of 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. The travaux préparatoires reveal that a specific suggestion made by the Kenyan delegation to the Committee of the Whole at the 1998 United Nations Diplomatic Conference of Plenipotentiaries designed in essence to give effect to the right claimed by the Prosecutor was turned down. The suggestion was: “Other decisions may be appealed with the leave of the Chamber concerned and in the event of refusal such refusal may be appealed.” (44) The dismissal of the suggestion rules out any possibility that the content of article 82(1)(d) of the Statute was anything other than deliberate.(45) 41. The travaux préparatoires confirm that article 82(1)(d) of the Statute reflects what was intended by its makers. 42. The application of the Prosecutor is ill-founded and the subject set for consideration non-justiciable. Inevitably, it must be dismissed and so the Appeals Chamber adjudges. ————————— (15) Application of the Prosecutor, paragraph 12. (16) Application of the Prosecutor, paragraph 14. (17) Application of the Prosecutor, paragraph 13. (18) Application of the Prosecutor, paragraph 13. (19) Application of the Prosecutor, page 19 (before paragraph 27). (20) Application of the Prosecutor, paragraphs 30 to 32. (21) See e.g. the Prosecutor’s submission relating to Germany (Application of the Prosecutor, paragraph 24(f)). (22) Application of the Prosecutor, paragraphs 22 to 25. (23) Application of the Prosecutor, paragraphs 23 and 24. (24) The national provisions cited by the Prosecutor do not clarify whether they refer to appeals from decisions that bear comparison to article 82(1)(d) of the Statute nor does he refer to the legal requisites for the definition of an appealable issue. (25) See page 11, footnote 25 of the document in support of the appeal. (26) The interlocutory appeals in criminal proceedings provided for in the German Criminal Procedure Code (available in English translation at http://www.iuscomp.org/gla/statutes/StPO.htm (last accessed on 10 July 2006)) do not foresee certification or leave to appeal by a hierarchically lower court (see sections 304 to 311a of the German Criminal Procedure Code). The legal provisions cited by the Prosecutor in the

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document in support of the appeal concern appeals against final and not in interlocutor decisions. (27) United Kingdoms and related commonwealth jurisdictions: The Prosecutor referred to a legal provision empowering the Privy Council to grant “special leave”; Sierra Leone: The Prosecutor did likewise respecting the powers of the Supreme Court; Canada: The Prosecutor referred to a legal provision empowering the Supreme Court to hear appeals with respect to final or other judgments of the Federal Court of Appeal or of the highest courts of final resort “whether or not leave to appeal […] has been refused […]”. (28) United States: The Prosecutor referred to 28 United states Code § 1254 that allows the supreme Court of the United States to review cases in the court of appeals “(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree” available at http://www4.law.cornell.edu/uscode/html/uscode28/use_see_28_00001254----000.html (last accessed on 9 July 2006); Australia: The Prosecutor referred to the writ of certiorari; a power conferred upon the Federal Court. (29) See Murphy P. (Editor in chief), Blackstone’s Criminal Practice 2006, Oxford University Press 2005, D27.19; see also Supreme Court Act 1981, section 29-(3) in: Richardson P.J. (Editor), Archbold, Criminal Pleading, Evidence and Practice, London, Sweet & Maxwell 2005, Chapter 7-4. (30) See Lord Mackay of Clashfern (Editor in chief), Halsbury’s Laws of England, Fourth Edition, 2001 Reissue, 1(1) Administrative Law, Admiralty, para. 59. (31) See Murphy P. (Editor in chief), Blackstone’s Criminal Practice 2006, Oxford University Press 2005, D27.20 – D27.23; the relevant case in the context under consideration is Regina v. Blackfriars Crown Court, ex parte Sunworld Ltd [2000] The All England Law Reports, 837, available in Westlaw. (32) See Murphy P. (Editor in chief), Blackstone’s Criminal Practice 2006, Oxford University Press 2005, D27-24; Lord Mackay of Clashfern (Editor in chief), Halsbury’s Laws of England, Fourth Edition, 2001 Reissue, 1(1) Administrative Law, Admiralty, para. 58; Richardson P.J. (Editor), Archbold, Criminal Pleading, Evidence and Practice, London, Sweet & Maxwell 2005, Chapter 7-4 and 7-5. (33) See Murphy P. (Editor in chief), Blackstone’s Criminal Practice 2006, Oxford University Press 2005, D27-19. (34) See Richardson P.J. (Editor), Archbold, Criminal Pleading, Evidence and Practice, London, Sweet & Maxwell 2005, Chapter 7-4. (35) See the Supreme Court Act 1981, section 1(1) (cited in Murphy P. (Editor in chief), Blackstone’s Criminal Practice 2006, Oxford University Press 2005, D2.1): “The Supreme Court of England and Wales shall consist of the Court of Appeal, the High Court of Justice and the Crown court, each having such jurisdiction as is conferred on it by or under this or any other Act”. (36) Application of the Prosecutor, paragraphs 27 to 29. (37) In the Case of the Philippines it can be inferred that the provisions of the law cited by the Prosecutor incorporate in terms and in substance common law jurisdiction to grant writs of certiorari and mandamus. (42) See rules 150, 154 and 155 of the rules of Procedure and Evidence. (43) Article 14(5) of the International Covenant on Civil and Political Rights, General Assembly Resolution Treaty Series 171, reads: “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.” Article 8(2)(h) of the American Convention on Human Rights, “Pact of San José, Costa Rica”, signed on 22 November 1969, entered into force on 18 July 1978, 1144 United Nations Treaty Series 17955, reads: “2. Every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the minimum guarantees: […] h. the right to appeal the judgment to a higher court.” Article 2(1) of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (22 November 1984), European Treaty Series No. 5, reads: “1. Everyone convicted of a criminal offence by a

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tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised shall be governed by law.”. (44) See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Committee of the Whole, Working Group on Procedural Matters, Porposal submitted by Kenya (Article 81, Appeals against interlocutory decisions), 3 July 1998, Document A/Conf.183/C.1/WGPM/L.46 in United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June17 July 1998, Official Records Volume III Reports and other Documents (Document A/CONF.183/13 (Vol. III), page 321. (45) See the only other proposal to the Committee of the Whole made on this specific issue by the Canadian delegation of 3 June 1998 (Document A/CONF.183/C.1/WGPM/L.47)(in: United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, Official Records Volume III Reports and other documents (Document A/CONF.183/13 (Vol. III), page 321)) under the heading “Appeal against interlocutory decisions”: “(e) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution of the Appeals Chamber may materially advance the trial.”. The Report of the Preparatory Committee on the Establishment of an International Criminal court (Document A/CONF.183/2) dated 14 April 1998 that was the basis for discussion at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court contained the following text (apparently based upon a proposal by the United States delegation of 18 March 1998): “Either party may appeal any of the following interlocutory decisions in accordance with the Rules of Procedure and Evidence […] (e) When the majority of the members of a Trial Chamber shall be of the opinion that the order involves a controlling issue as to which there is a substantial ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate conclusion of the trial and a majority of the judges of the appellate chamber, at their discretion, agree to hear the appeal.”

Article 83 – Proceedings on Appeal 1. For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber. 2. If the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber. 3. For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment. 3. If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part 7. 4. The judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall

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contain the views of the majority and the minority, but a judge may deliver a separate or dissenting opinion on a question of law. 5. The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.

APPEALS CHAMBER x

Article 83: Article 83 does not apply to Article 82(1) (d) interlocutory appeals – Applicability to Article 81 appeals against decisions of acquittal, conviction or sentence

S83-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006, paras. 13, 15-18:

13. The Appeals Chamber rejects the argument by Counsel for Mr. Lubanga Dyilo that the Prosecutor's appeal is inadmissible for purported failure to comply with article 83 (2) of the Statute. The appeal cannot be declared inadmissible on that basis because, for the reasons set out below, article 83 (2) of the Statute does not apply to appeals brought from the Pre-Trial Chamber under article 82 (1) (d) of the Statute. […] 15. Article 83 (2) (b) refers to the Appeals Chamber having the power to [o]rder a new trial before a different Trial Chamber" (emphasis added). The final paragraph of the provision refers to the ability of the Appeals Chamber to remand a factual issue to the original Trial Chamber for it to determine; and the final sentence of that paragraph makes specific provision for circumstances where "the decision or sentence" has been appealed "only by the person convicted, or the Prosecutor on that person's behalf'. These provisions lead to the conclusion that article 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, and which involve "an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings". 16. Other provisions of article 83 support this conclusion. Article 83 (1) refers to the Appeals Chamber having all the powers of the Trial Chamber, "[f]or the purposes of proceedings under article 81 and this article". No reference is made to article 82 (1) (d). In addition, article 83 (3) concerns appeals against sentence; and article 83 (5) provides for the Appeals Chamber to be able to deliver its judgment in the absence of "the person acquitted or convicted" (emphasis added). Once again, those provisions deal with matters that have occurred following the conclusion of the trial.

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They do not apply to decisions taken during the course of the proceedings, with which article 82 (1) (d) is concerned. 17. Furthermore, the Appeals Chamber refers to the provisions of rule 158 (1) of the Rules of Procedure and Evidence […]. 18. […] The adoption of rule 158 would not have been necessary if article 83(2) had been intended to apply to appeals brought under article 82(l)(d) of the Statute.

x

Article 83(4) (as applicable to interlocutory appeals pursuant to Rule 158(2)): Judgment rendered by a majority of Judges – Judgment signed by the Presiding Judge only o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006:

S83-A-2

The Appeals Chamber of the International Criminal Court, […] After deliberation, by majority, Judge Pikis dissenting, Delivers the following

JUDGMENT […] Judge Pikis appends a dissenting opinion to this judgment. Done in both English and French, the English version being authoritative. Judge Sang-Hyun Song Presiding Judge Dated this 13th day of October 2006.

Article 84 – Revision of Conviction or Sentence 1. The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused's death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person's behalf, may apply to the Appeals Chamber to revise the final judgement of conviction or sentence on the grounds that: (a) New evidence has been discovered that:

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(i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict; (b) It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified; (c) One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under article 46. 2. The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgement should be revised.

Article 85 – Compensation to an Arrested or Convicted Person 1. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her. 3. In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.

Part 9 – International Cooperation and Judicial Assistance Article 86 – General Obligation to Cooperate States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

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Article 87 – Requests for Cooperation: General Provisions 1. (a)

The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence. (b) When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization. 2. Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence. 3. The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request. 4. In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families. 5. (a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis. (b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council. 6. The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate. 7. Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

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Article 87(4): Request for Cooperation in the Enforcement of Protective Measures for Victims and Witnesses

S87-PT-1

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

NOTING the Prosecutor's request for appropriate protective measures under article 87, paragraph 4, of the Statute; CONSIDERING the request for such protective measures to be proper and justified in the circumstances described in the Prosecutor's application, as further clarified during the hearings held on the 16th day of June 2005 and on the 21st day of June 2005; NOTING the statements made by the Prosecutor during the hearings held on the 16th day of June 2005 and on the 21st day of June 2005 and noting, in particular, that the implementation of the Prosecutor's overall plan for the security of witnesses and victims in the field, as being developed in cooperation with the Victims and Witnesses Unit, is still ongoing and is yet to be completed; CONSIDERING that there is a need for the Chamber to be properly and regularly informed of steps being taken to develop and implement security measures in the field, with a view to the exercise of its functions and responsibilities for the protection and privacy of victims and witnesses; […] DECIDES, without prejudice to the responsibilities of the Prosecutor under the Statute, that any measures, including relocation and measures related to the protection of information, as may be necessary or appropriate to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families, and in particular of those mentioned in the Prosecutor's application, be taken pursuant to articles 68 and 87, paragraph 4, of the Statute and in accordance with the terms of the Requests; DECIDES also that, without prejudice to the responsibilities of the Prosecutor under the Statute, any other measures which may be necessary or appropriate to prevent the disclosure of the identity or whereabouts of any victims, potential witnesses and their families, in particular of those mentioned in the Prosecutor's application, be taken in accordance with the terms of the Requests; REQUESTS the Prosecutor, in consultation and cooperation with the Registrar and the Victims and Witnesses Unit, to inform the Chamber on a periodic and regular basis as to developments concerning the implementation of protective and security measures in the field;

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Article 88 – Availability of Procedures under National Law States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.

Article 89 – Surrender of Persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility. 3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

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Article 89(1): Request for arrest and surrender – “The Court”Authority responsible for transmitting the request to the requested State (Registrar) – Exceptionally, the Prosecutor may be authorised to substitute the Registrar if specific and compelling circumstances so require

S89-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Under Seal Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 8 July 2005 (Unsealed on 13 October 2005):48

NOTING the Prosecutor's request that the Office of the Prosecutor be permitted to transmit the Warrants and the requests for arrest and surrender relating thereto (the "Requests") to the relevant States parties and States not party to the Statute, and the reasons and concerns submitted by the Prosecutor in support of his request; NOTING that the Prosecutor invokes rule 176, sub-rule 2, of the Rules of Procedure and Evidence (the "Rules") as the basis for his request to transmit the Warrants and the Requests; NOTING the reasons and concerns submitted by the Prosecutor during the hearing held before the Chamber on the 16th day of June 2005, in support of his request to transmit the Warrants and the Requests; NOTING the authorities cited during the hearing held on the 16th day of June 2005 and submitted by the Prosecutor on the 17th day of June 2005, and having examined such authorities; NOTING that articles 87 and 89 of the Statute provide, respectively, that a request for cooperation may be made and that a request for arrest and surrender may be transmitted by the "Court"; CONSIDERING that, pursuant to article 87 of the Statute, the Chamber, as one of the judicial organs of the Court, may make a request for cooperation and for arrest and surrender; NOTING that article 89 of the Statute needs to be read in connection with rule 176, sub-rule 2, of the Rules, which provides explicitly that the Registrar of the Court (the "Registrar") "shall transmit" the requests for cooperation "made by the Chambers" and shall receive the responses, information and documents from requested States; NOTING that rule 176, sub-rule 2, of the Rules also provides explicitly for a separate and distinct procedure, by which the Office of the Prosecutor "shall 48

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005 (Unsealed on 13 October 2005).

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transmit" the requests for cooperation "made by the Prosecutor" and shall receive the responses, information and documents from requested States; CONSIDERING the Requests issued by the Chamber as a result of the Prosecutor's application to be "made by the Chambers" within the meaning of rule 176, subrule 2, of the Rules; NOTING also the tenor of other provisions of the Court's instruments, including rule 184 of the Rules, by which the requested State shall immediately inform the Registrar when the person sought by the Court is available for surrender and shall surrender the person by the date and in the manner agreed upon between the authorities of the requested State and the Registrar; and regulation 111 of the Regulations, which entrusts the Registrar with the transmission of a request for arrest and surrender in accordance with article 89, paragraph 1, of the Statute; CONSIDERING that the literal meaning and purpose of rule 176, sub-rule 2, of the Rules, as evident also from its drafting history, is to establish two separate and distinct procedures involving, on the one hand, the Registrar in the discharge of his responsibilities with respect to requests for cooperation made by the Chambers; and, on the other hand, the Prosecutor, in respect of the requests for cooperation made by the Prosecutor, in line with the Prosecutor's powers under articles 42 and 54 of the Statute; CONSIDERING that the above reading of rule 176, sub-rule 2, of the Rules, in connection with article 89, paragraph 1, of the Statute, does not deprive any of these provisions of meaningful content, but rather clarifies their scope in relation to the specific functions and responsibilities of the Prosecutor under articles 42 and 54 of the Statute; NOTING that under rule 176, sub-rule 2, of the Rules, the Registrar also has a role in informing the Chamber of the responses, information and documents received from requested States; CONSIDERING that, unlike Rule 55 (D) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, referred to by the Prosecutor in his submissions, rule 176, sub-rule 2, of the Rules is not explicit as to any discretion of the Chamber regarding the organ to be entrusted with the transmission of the requests for cooperation and the receipt of the responses thereto; CONSIDERING that the Chamber, in the exercise of its functions under the Statute, does not exclude the possibility of allocating to the Prosecutor, under specific and compelling circumstances, the transmission of a particular request for cooperation, or warrant of arrest, and the receipt of responses thereto; CONSIDERING, however, that such specific and compelling circumstances are not established in the Prosecutor's application; NOTING that the Prosecutor stated during the hearing held on the 16th day of June 2005 that it is not the "current intention" of his Office "to make the arrest warrants public or to seek their immediate transmission"; CONSIDERING that the main reason submitted by the Prosecutor in support of his request and further elaborated upon during the hearing held on the 16th day of June 2005 appears to be the Prosecutor's wish to exercise discretion as to the timing and

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manner of the disclosure of the Warrants, with a view to determining "the moment at which the disclosure is optimal"; CONSIDERING that, under the relevant provisions of the Statute and of the Rules, the necessity for the issuance of a warrant and for its transmission must be justified on the basis of circumstances and evidence existing at the time of the application, and is not dependant or conditional on future circumstances; CONSIDERING that the other concerns highlighted by the Prosecutor may be properly addressed by way of consultation and close cooperation between the Registrar and the Prosecutor, in accordance with the terms specified in the Requests, to ensure proper coordination with relevant entities and State authorities and thereby maximise the prospects for arrest while minimising the risk of threats or retaliatory attacks against witnesses and victims; CONSIDERING, in these circumstances, that the Registrar is the competent and appropriate organ of the Court to transmit the Warrants and the Requests; […] REJECTS the Prosecutor's request to transmit the Warrants and the Requests to the relevant States; DECIDES that the Warrants and the Requests, as well as the enclosed documentation as required by article 91, paragraph 2, of the Statute, be transmitted by the Registrar to the relevant States, in accordance with the terms set out in the Requests; DECIDES, for the purposes of the Requests, to authorise disclosure to the Registrar of the Prosecutor's application, this decision, the Warrants and the Requests;

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Article 89(1): Request for arrest and surrender – “The Court”Authority responsible for transmitting the request to the requested State (Registrar) – No exception

S89-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), para.103, 107-122:

103. The Prosecution requests in paragraph 217 of the Prosecution’s Application that it be authorized to make and transmit the cooperation request for arrest and surrender of Mr Thomas Lubanga Dyilo to the relevant State authorities. […] 107. At the outset, the Chamber observes that:

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[…] The Prosecution does not dispute that the Pre-Trial Chamber has the authority to make a request for cooperation seeking arrest and surrender, in addition to [issuing the warrant of arrest], and that in those circumstances the Registry would be the appropriate organ of the Court to transmit that request under Rule 176(2) of the Rules of Procedure and Evidence.(129) 108. In the Chamber’s view, the Prosecution is requesting that the Chamber authorise it to make and transmit the cooperation request for arrest and surrender to the relevant national authorities because it is the organ of the Court best positioned to secure its effective execution. 109. The Chamber considers that, although articles 58(5) and 89(1) of the Statute use the generic term “Court”, they must be interpreted within the context of the provisions regulating the procedural activities taking place at the stage of issuance of a warrant of arrest and at the stage of execution of a cooperation request for arrest and surrender once the relevant person has been arrested by the requested State. 110. First, the Chamber observes that at this stage, according to article 58(1) and (6) of the Statute, the Pre-Trial Chamber is the only organ of the Court which is competent to issue and amend warrants of arrest. 111. Second, the Chamber notes that, according to rule 117(2) of the Rules under the heading “Detention in the custodial State”, as soon as the relevant person is arrested in the requested State he may address the Pre-Trial Chamber “for the appointment if counsel to assist with the proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request”. 112. Third, the Chamber observes that, according to article 59(5) of the Statute, and rule 117(4) of the Rules, the Pre-Trial Chamber is the competent organ of the Court to be notified of any request for interim release made by the arrested person to the national authorities of the requested State. The Chamber also notes that, according to the said provisions, the Pre-Trial Chamber is also the competent organ of the Court to make recommendations on such requests to the competent authority if the requested State. 113. Fourth, the Chamber observes that, according to article 59(6) of the Statute and rule 117(5) of the Rules, the Pre-Trial Chamber is the competent organ of the Court to request periodic reports on the status of the interim release of the relevant person in the requested State pending surrender to the Court. 114. Fifth, the Chamber notes that, according to rule 117(3) of the Rules under the heading “Detention in the custodial State”, any challenge made by the arrested person pending surrender to the Court as to whether the warrant of arrest was properly issued in accordance with article 58(1)(a) and (b), of the Statute must be made to, and decided upon by, the Pre-Trial Chamber. 115. Sixth, the Chamber observes that according to article 89(2) of the Statute “the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility”, and according to article 19 of the Statute, the only competent organ to make a determination of the admissibility of the case at this stage is the Pre-Trial Chamber.

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116. Seventh, the Chamber notes that, according to rule 184 of the Rules, the requested State shall inform the Registrar of the fact that the person sought is available for surrender, and the Registry shall be the competent organ of the Court to make arrangements for surrender of the person to the Court. 117. Hence, in the Chamber’s view, since the Pre-Trial Chamber is the only competent organ of the Court (1) to issue and amend a warrant of arrest, (2) to deal with the national authorities of the requested State concerning any incident which might affect the surrender of the person to the Court once such person has been arrested and (3) in a position to thoroughly follow up on the execution of cooperation requests for both arrest and surrender of the relevant person, the PreTrial Chamber, assisted by the Registry in accordance with rule 176(2) and rule 184 of the Rules, must be regarded as the only organ of the Court competent to make and transmit a cooperation request for arrest and surrender. 118. The Chamber recalls the decision of Pre-Trial Chamber II of 12 July 2005 stating that: […] unlike rule 55(D) of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia, referred to by the Prosecutor in his submissions, rule 176, sub-rule 2, of the Rules is not explicit as to any discretion of the Chamber regarding the organ to be entrusted with the transmission of the requests for cooperation and the receipt of the responses thereto. (130) 119. In the context of the present Prosecution’s Application, the Chamber considers that it need not decide whether the Statute and the Rules leave any room for the Chamber to authorise the Prosecution to transmit a particular cooperation request for arrest and surrender in case of “specific and compelling circumstances.” (131) In this regard, the Chamber considers that, since Mr Thomas Lubanga Dyilo is currently being detained in the Centre Pénitentiaire et de Rééducation de Kinshasa, no specific and compelling circumstances exist. 120. The Chamber takes note of the Prosecution’s assertion that it is the sole organ of the Court privy to the full set of relevant information and therefore best able to ensure that all aspects of providing security to both victims and witnesses and to its staff are fully considered, and that it has built certain relationships in the DRC that would facilitate the execution of the cooperation request for the arrest and surrender of Mr Thomas Lubanga Dyilo. 121. In this regard, the Chamber considers that it is necessary for the protection and privacy of witnesses and victims within the meaning if article 57(3)(c), of the Statute that the Prosecution, insofar as it is not prevented from doing so by its confidentiality obligations, transmit to the Pre-Trial Chamber and the Registrar as soon as practicable any information related to the potential risks that the transmission of the cooperation request for the arrest and surrender of Mr Thomas Lubanga Dyilo may cause to victims and witnesses. 122. Furthermore, the Chamber considers that it would be beneficial for the expeditious execution of the cooperation request fir arrest and surrender of Mr Thomas Lubanga Dyilo that the Prosecution, insofar as it is not prevented from doing so by its confidentiality obligations, transmit as soon as practicable to the PreTrial Chamber and to the Registrar any information that, in the Prosecution’s view,

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would facilitate the expeditious execution by the DRC authorities of such a cooperation request. ————————— (129) Prosecution’s Application, para. 210. (130) “Decision on the Prosecution’s Application for Warrants of Arrest under Article 58”, 12 July 2005, No. ICC-02/04-01/05-1US-Exp, p. 6. (131) Pre-Trial Chamber II answered this question in the affirmative on p. 6 of its “Decision on the Prosecution’s Application for Warrants of Arrest under article 58”, 12 July 2005, No. ICC-02/04-01/05-1-US-Exp.

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Article 89(3): Request for Transit – Order of the Pre-Trial Chamber to the Registrar to Issue a Request for Transit

S89-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Demande d’arrestation et de remise de M. Thomas Lubanga Dyilo adressée à la République Démocratique du Congo (Translation not available) (PT), 24 February 2006 (made public on 20 March 2006) :

ORDONNE au Greffier de la Cour d'établir et de présenter, le cas échéant, toute demande de transit, du type prévu à l'article 89-3 du Statut qui pourrait être nécessaire pour assurer la bonne exécution de la présente demande d'arrestation et de remise,

——— Official Translation Not Available ——— Article 90 – Competing Requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact. 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if: (a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1. 3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.

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4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. 5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. 6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State. 7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.

Article 91 – Contents of Request for Arrest and Surrender 1. A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by:

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(a)

Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A copy of the warrant of arrest; and (c) Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court. 3. In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by: (a) A copy of any warrant of arrest for that person; (b) A copy of the judgement of conviction; (c) Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and (d) If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served. 4. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

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Article 91(2): Content of Request for Arrest and Surrender: identifying and locating information, copy of the warrant of arrest, copy of the relevant dispositions of the Statute and Rules in a language the arrested person understands (Rule 117(1)), other documents required by the requested State, reminder on confidentiality (Article 87(3)) and protection of victims and witnesses (Article 87(4)), requested State’s duty to inform on potential ne bis in idem challenges under Article 89(2) or request for interim release (Article 59(3)), problems impeding, preventing (Article 97) or delaying (Article 89(4)) the execution of the request, Accused’s availability for surrender (Rule 184(1)) – Order for confidentiality of the request

S91-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Demande d’arrestation et de remise de M. Thomas Lubanga Dyilo adressée à la République Démocratique du Congo (Translation not available) (PT), 24 February 2006 (made public on 20 March 2006) :

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DEMANDE, sur la base du mandat d'arrêt joint en annexe, à la République démocratique du Congo (« l'État requis »), d'arrêter et de remettre à la Cour M. Thomas Lubanga Dyilo, présumé être un ressortissant de la République démocratique du Congo, né le 29 décembre 1960 à Jiba, dans le secteur d'Utcha du territoire du Djugu situé dans le district d'Ituri de la Province orientale (République démocratique du Congo), fils de M. Mathias Njabu et de Mme Rosalie Nyango, marié à une certaine Mme Matckosi et père de six enfants, présumé être le fondateur de l'UPC et des FPLC, présumé avoir été commandant en chef des FPLC, présumé être l'actuel président de l'UPC, et qui, selon les dernières informations disponibles, est détenu au Centre pénitentiaire et de rééducation de Kinshasa, DEMANDE à l'État requis d'assurer la sécurité de Thomas Lubanga Dyilo jusqu'à sa remise définitive au Greffier de la Cour, DEMANDE à l'État requis, conformément à l'article 87-3 du Statut, de respecter le caractère confidentiel de la présente demande d'arrestation et de remise ainsi que des pièces qui y sont jointes, sauf dans la mesure où leur divulgation est nécessaire pour donner suite à cette demande, DEMANDE à l'État requis, conformément à l'article 87-4 du Statut, que tout renseignement qui lui est communiqué en application de la présente demande soit communiqué et traité de telle sorte que soient préservés la sécurité et le bien-être physique ou psychologique des victimes, des témoins potentiels et de leurs familles, DEMANDE à l'État requis d'informer la Cour de toute demande présentée par M. Thomas Lubanga Dyilo devant une juridiction nationale en vertu des articles 59-3 ou 89-2 du Statut, DEMANDE à l'État requis d'aviser la Cour, conformément à l'article 91-4 du Statut, de tout document, déclaration ou renseignement, autre que le mandat d'arrêt et les photographies jointes en annexe à ce mandat, qui pourrait être nécessaire à l'Etat requis pour procéder à la remise, DEMANDE à l'État requis d'informer la Cour de toute difficulté qui pourrait gêner ou empêcher l'exécution de la présente demande conformément à l'article 97 du Statut, ou qui pourrait la retarder comme prévu à l'article 89-4 du Statut ; DEMANDE que l'État requis, une fois qu'il aura ordonné la remise de M. Thomas Lubanga Dyilo, livre ce dernier à la Cour aussitôt que possible, DEMANDE à l'État requis d'informer immédiatement le Greffier de la Cour lorsque M. Thomas Lubanga Dyilo pourra lui être remis conformément à la règle 184 du Règlement de procédure et de preuve, ORDONNE au Greffier de la Cour de joindre à la présente demande, lors de sa transmission à l'État requis, conformément aux articles 87 et 91 du Statut, à la règle 187 du Règlement de procédure et de preuve ainsi qu'à la norme 111 du Règlement de la Cour, les documents suivants en langue française, langue choisie par l'État requis lors de sa ratification du Statut : i) Copie du mandat d'arrêt délivré le 10 février 2006 contre M. Thomas Lubanga Dyilo, à laquelle des photographies de l'intéressé seront jointes en annexe ;

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ii) Copie de la décision prise par la Chambre le 10 février 2006 concernant la recevabilité de l'affaire contre M. Thomas Lubanga Dyilo, qui figure en Annexe I de la décision prise par la Chambre le 24 février 2006 ; iii) Copie des dispositions pertinentes du Statut et du Règlement de procédure et de preuve dans une langue que M. Thomas Lubanga Dyilo comprend et parle parfaitement ; iv) Tout autre document qui peut être exigé par l'État requis, conformément à l'article 91-2 du Statut, pour procéder à la remise ; ORDONNE au Greffier de la Cour de s'assurer que M. Thomas Lubanga Dyilo reçoive copie du mandat d'arrêt délivré par la Chambre le 10 février 2006 en application de l'article 58 du Statut, ainsi que copie des dispositions pertinentes du Statut et du Règlement de procédure et de preuve dans une langue qu'il comprend et parle parfaitement, ORDONNE au Greffier de la Cour de s'assurer qu'au moment de son arrestation, M. Thomas Lubanga Dyilo soit informé dans une langue qu'il comprend et parle parfaitement des droits que lui reconnaissent les articles 19, 20, 59, 60, 67 et 89 du Statut ainsi que les règles 21 et 117 à 119 du Règlement de procédure et de preuve, […] ORDONNE au Greffier de la Cour d'informer rapidement la Chambre de toute difficulté rencontrée dans l'exécution de la présente demande, afin qu'elle prenne le cas échéant les mesures nécessaires, ORDONNE que la présente demande demeure sous scellés jusqu'à ce que la Chambre en décide autrement.

——— Official Translation Not Available ——— Article 92 – Provisional Arrest 1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime; (c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and (d) A statement that a request for surrender of the person sought will follow.

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3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to theCourt as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.

Article 93 – Other Forms of Cooperation 1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents; (j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. 2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. 3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations,

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consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. 4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. 5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. 6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial. 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i) The person freely gives his or her informed consent to the transfer; and (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request. (ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.

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10.(a)

(b)

(c)

The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (i) The assistance provided under subparagraph (a) shall include, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i) a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.

Article 94 – Postponement of Execution of a Request in Respect of Ongoing Investigation or Prosecution 1. If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions. 2. If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j).

Article 95 – Postponement of Execution of a Request in Respect of an Admissibility Challenge Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.

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Article 96 – Contents of Request for other Forms of Assistance under Article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request; (d) The reasons for and details of any procedure or requirement to be followed; (e) Such information as may be required under the law of the requested State in order to execute the request; and (f) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.

Article 97 - Consultations Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia: (a) Insufficient information to execute the request; (b) In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or (c) The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State.

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Article 98 – Cooperation with Respect to Waiver of Immunity and Consent to Surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Article 99 – Execution of Requests under Articles 93 and 96 1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process. 2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently. 3. Replies from the requested State shall be transmitted in their original language and form. 4. Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter. 5. Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article.

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Article 100 - Costs 1. The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court: (a) Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody; (b) Costs of translation, interpretation and transcription; (c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; (d) Costs of any expert opinion or report requested by the Court; (e) Costs associated with the transport of a person being surrendered to the Court by a custodial State; and (f) Following consultations, any extraordinary costs that may result from the execution of a request. 2. The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution.

Article 101 – Rule of Speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered. 2. The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so.

Article 102 – Use of Terms For the purposes of this Statute: (a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.

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Part 10 – Enforcement Article 103 – Role of States in Enforcement of Sentences of Imprisonment 1. (a)

A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. (b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part. (c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation. 2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110. (b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1. 3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following: (a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence; (b) The application of widely accepted international treaty standards governing the treatment of prisoners; (c) The views of the sentenced person; (d) The nationality of the sentenced person; (e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement. 4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104 – Change in Designation of State of Enforcement 1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.

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2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105 – Enforcement of the Sentence 1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it. 2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106 – Supervision of Enforcement of Sentences and Conditions of Imprisonment 1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners. 2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement. 3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 107 – Transfer of the Person upon Completion of Sentence 1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. 2. If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court. 3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.

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Article 108 – Limitation on the Prosecution or Punishment of Other Offences 1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person's delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement. 2. The Court shall decide the matter after having heard the views of the sentenced person. 3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.

Article 109 – Enforcement of Fines and Forfeiture Measures 1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law. 2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties. 3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

Article 110 – Review by the Court Concerning Reduction of Sentence 1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court. 2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person. 3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. 4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or

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(c)

Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence. 5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.

Article 111 - Escape If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.

Part 11 – Assembly of States Parties Article 112 – Assembly of States Parties 1. An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. 2. The Assembly shall: (a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission; (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto; (d) Consider and decide the budget for the Court; (e) Decide whether to alter, in accordance with article 36, the number of judges; (f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to noncooperation; (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence. 3. (a) The Assembly shall have a Bureau consisting of a President, two VicePresidents and 18 members elected by the Assembly for three-year terms. (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world.

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(c)

The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities. 4. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. 5. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. 6. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties. 7. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute: (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting; (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting. 8. A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party. 9. The Assembly shall adopt its own rules of procedure. 10. The official and working languages of the Assembly shall be those of the General Assembly of the United Nations.

Part 12 – Financing Article 113 – Financial Regulations Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.

Article 114 – Payment of Expenses Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court.

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Article 115 – Funds of the Court and of the Assembly of States Parties The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources: (a) Assessed contributions made by States Parties; (b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.

Article 116 – Voluntary Contributions Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.

Article 117 – Assessment of Contributions The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.

Article 118 – Annual Audit The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.

Part 13 – Final Clauses Article 119 – Settlement of Disputes 1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute,including referral to the International Court of Justice in conformity with the Statute of that Court.

Article 120 - Reservations No reservations may be made to this Statute.

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Article 121 - Amendments 1. After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties. 2. No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants. 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a twothirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory. 6. If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment. 7. The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.

Article 122 – Amendments to Provisions of an Institutional Nature 1. Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly. 2. Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a twothirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference.

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Article 123 – Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.

Article 124 – Transitional Provision Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

Article 125 – Signature, Ratification, Acceptance, Approval or Accession 1. This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000. 2. This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations. 3. This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 126 – Entry into Force 1. This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

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2. For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 127 - Withdrawal 1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date. 2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

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Article 127(2): “Criminal investigations and proceedings” – Difference between investigations and proceedings

S127-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 29-38 :

29. Le Bureau du Procureur avance que le Statut, et en particulier son article 127 (33), opère une distinction entre les termes « enquête » et « procédure »(34). Par conséquent, le Bureau du Procureur « considère qu’il n’existe pas de “procédure” aux termes de l’article 68-3 du Statut durant le stade de l’enquête » puisque « le Statut et le Règlement de procédure et de preuve établissent une distinction claire entre “enquête” et “procédure” ». 30. La Chambre fait observer que les expressions « proceedings »(35) ou « la procédure »(36) sont utilisées à de nombreuses reprises dans les versions anglaise et française du Statut(37). L’article 127 du Statut, auquel le Bureau du Procureur se réfère à titre d’exemple, est l’unique article du Statut dans lequel une distinction semble être faite entre les notions d’enquête et de procédure. Par ailleurs, cet article est situé au dernier chapitre du Statut qui ne vise pas la procédure devant la Cour mais les clauses finales.

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31. De plus, la version française de l’article 127 du Statut ne reprend pas l’expression générique « la procédure » telle qu’utilisée à l’article 68-3 mais emploie le terme spécifique de « procédures pénales » qui n’est jamais utilisée auparavant dans le Statut. Eu égard à la spécificité terminologique employée dans cet article et à son emplacement, la Chambre estime qu’un principe général d’interprétation du Statut dans son entier ne peut être déduit sur le fondement de ce seul exemple. 32. En outre, la Chambre fait observer que, dans un certain nombre de cas, les expressions « proceedings » et « la procédure » semblent comprendre la phase d’enquête. La Chambre constate que dans le chapitre II du Statut, intitulé « Compétence, recevabilité et droit applicable », l’article 17, aussi bien dans la version anglaise que dans la version française, utilise à plusieurs reprises, aux paragraphes 2 et 3, l’expression « la procédure », qui semble couvrir la phase d’enquête mentionnée de manière expresse au paragraphe premier de ce même article(38). 33. Au chapitre V du Statut, intitulé « Enquête et poursuites », l’expression « procédure » est utilisée pour la première fois à l’article 54-3-e concernant la possibilité que le Procureur consente à ne divulguer « à aucun stade de la procédure » les renseignements obtenus sous la condition qu’ils demeurent confidentiels. La Chambre considère que cette expression vise de manière claire le stade de l’enquête, puisque les questions touchant à la divulgation peuvent se poser lors du déroulement de celle-ci(39) et que l’engagement du Procureur de ne pas divulguer les renseignements obtenus sous la condition qu’ils demeurent confidentiels doit s’appliquer au stade de l’enquête, à moins que l’engagement du Procureur n’ait perdu son utilité. 34. L’expression « la procédure » est également utilisée aux articles 56-1-b et 56-2 du Statut en ce qui concerne le rôle de la Chambre préliminaire dans le cas où l’occasion d’obtenir des renseignements ne se présenterait plus. Il semble alors très difficile d’opposer les notions d’enquête et de procédure. 35. S’agissant du Règlement de procédure et de preuve, le Procureur avance qu’une distinction peut être faite entre « enquête » et « procédure » dans deux exemples : à la règle 49-1 et à la règle 111. La Chambre fait observer que la version française de ces règles diffère de leur version anglaise et ne contient pas exactement la même opposition entre « enquête » et « procédure ». La version française de la règle 111 reprend les termes employés dans le titre même du chapitre V du Règlement en parlant « d’une enquête ou de poursuites », tandis que la règle 49 parle « des enquêtes ou des procédures » au pluriel. La Chambre fait observer par ailleurs que la règle qui suit (à savoir la règle 50) utilise à trois reprises l’expression « procédure », à la fois dans son titre et aux paragraphes 4 et 6. En ce qui concerne la règle 111, là encore, la règle qui suit (à savoir la règle 112), qui vise manifestement les interrogatoires au stade de l’enquête, utilise à deux reprises le terme « procédure » (règles 112-4 et 112-5). 36. La Chambre note que l’expression « proceedings » dans la version anglaise du Règlement ou « la procédure » dans sa version française est utilisée à plus de 120 reprises. 37. Le chapitre 4 du Règlement, intitulé « Dispositions applicables aux diverses phases de la procédure » précède les chapitres intitulés « Enquête et poursuites »,

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« Le procès », « Les peines » puis « Appel et révision », constituant une progression logique dans la procédure devant la Cour. La Chambre constate également que la règle 89, intitulée « Demandes relatives à la participation des victimes à la procédure », située dans la section III du chapitre 4 ci-dessus mentionné, contient des dispositions(40) qui sont applicables au stade de l’enquête. En outre, la section IV de ce chapitre, intitulée « Dispositions diverses »(41), concerne également la phase d’enquête. Par ailleurs, la règle 103 intitulée « Amicus curiae et autres formes de déposition », qui concerne « n’importe quelle phase de la procédure » et « toute chambre de la Cour », a déjà été appliquée par la Chambre lors de la phase de l’enquête en RDC(42). 38. Au vu de ce qui précède, la Chambre considère que l’expression « proceedings » n’exclut pas nécessairement le stade de l’enquête concernant une situation. Au contraire, dans un certain nombre de dispositions, l’expression « la procédure » inclut le stade de l’enquête concernant une situation. ————————— (33) L’article 127 du Statut se trouve au chapitre XIII, intitulé « Clauses finales ». (34) La Réponse de l’Accusation, par. 13. (35) Le mot « proceedings » apparaît plus de 40 fois dans la version anglaise du Statut. (36) Le mot « procédure » apparaît plus de 50 fois dans la version française du Statut. (37) En français, le mot est utilisé au singulier et quelquefois au pluriel. Les versions anglaise et française ne coïncident pas entièrement en ce qui concerne la terminologie utilisée dans ce domaine. (38) Aux articles 19-11 et 20-3 du Statut, les versions française et anglaise se réfèrent à la procédure qui semble comprendre le stade de l’enquête. Dans le même sens, voir l’article 17 du Statut. (39) Par exemple, lorsque le Procureur informe la Chambre préliminaire conformément à l’article 56-1 du Statut ou lorsque le Procureur dépose une requête conformément aux articles 57-3-a ou 57-3-d du Statut. (40) Des dispositions telles que la définition des victimes (règle 85) et le principe général posé par la règle 86 du Règlement. (41) La règle 100-2 Règlement est applicable à tout moment « [après] l’ouverture d’une enquête ». Les règles 101 et 102 Règlement du sont des principes généraux qui s’appliquent à la phase d’enquête. (42) « Décision invitant certains représentants d’ONG à présenter des observations sur la protection des victimes et des organisations des droits de l’homme actives dans l’est de la République démocratique du Congo (règle 103) », 14 juin 2005, n° ICC-01/04-37-Conf.

——— Official Translation ——— 29. The Office of the Prosecutor argues that the Statute, particularly article 127, (33) makes a distinction between the terms “investigation” and “proceedings”. (34) The Office of the Prosecutor therefore “considers that there are no ‘proceedings’ pursuant to article 68 (3) of the Statute during the investigation stage” since “both the Statute and the RPE make a clear distinction between ‘investigation’ and ‘proceedings’”. 30. The Chamber observes that the terms “proceedings” (35) and “la procédure”(36) are used repeatedly in the English and French versions of the Statute. (37) Article 127 of the Statute, which the Office of the Prosecutor cites as an example, is the only article of the Statute in which a distinction appears to be made between the notions of investigation and proceedings. Moreover, the article is in the last part of the Statute, which does not deal with proceedings before the Court but contains the final clauses.

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31. Furthermore, the French version of article 127 of the Statute does not employ the generic term “la procédure” as used in article 68 (3) but “procédures pénales”, which does not occur elsewhere in the Statute up to that point. Given the specificity of the terminology used in this article and its location, the Chamber considers that a general principle of interpretation of the Statute as a whole cannot be inferred from this single example. 32. Moreover, the Chamber observes that in a number of instances the terms “proceedings” and “la procédure” seem to include the investigation stage. The Chamber notes that in Part 2 of the Statute, entitled “Jurisdiction, Admissibility and Applicable Law”, both the English and French versions of article 17 use the term “proceedings” several times in paragraphs 2 and 3 in a manner that seems to cover the investigation stage, which is expressly mentioned in paragraph 1 of the same article. (38) 33. In Part 5 of the Statute entitled “Investigation and Prosecution”, the term “proceedings” is used for the first time in article 54 (3) (e) regarding the possibility of the Prosecutor’s agreeing not to disclose “at any stage of the proceedings” information obtained on the condition of confidentiality. The Chamber considers that this term clearly refers to the investigation stage, since issues of disclosure may arise in the course of the investigation(39) and the Prosecutor’s undertaking not to disclose information obtained on condition of confidentiality must be applied at the investigation stage, unless the Prosecutor’s undertaking no longer serves any purpose. 34. The term “la procédure” is also used in article 56 (1) (b) and (2) of the Statute concerning the role of the Pre-Trial Chamber in the case of a unique investigative opportunity. It would seem very difficult in such circumstances to draw a distinction between the notions of investigation and proceedings. 35. Turning to the Rules of Procedure and Evidence, the Prosecutor argues that a distinction may be made between “investigation” and “proceedings” in two instances: rule 49 (1) and rule 111. The Chamber notes that the French version of these rules differs from the English version and does not contain exactly the same distinction between “investigation” and “proceedings”. The French version of rule 111 uses the same terms as the title of Chapter 5 of the Rules in the phrase “d’une enquête ou de poursuites”, whereas rule 49 refers to “des enquêtes ou des procédures” in the plural. The Chamber notes also that the rule that follows (rule 50) uses the term “procédure” three times, in the title and in sub-rules 4 and 6. Again, the rule that follows rule 111 (rule 112), which clearly refers to questioning during the investigation stage, uses the term “procédure” twice (rule 112 (4) and (5)). 36. The Chamber notes that the term “proceedings” in the English version of the Rules and the term “la procédure” in the French version are used over 120 times. 37. Chapter 4 of the Rules entitled “Provisions relating to various stages of the proceedings” precedes the chapters entitled “Investigation and prosecution”, “Trial procedure”, “Penalties” and “Appeal and revision”, reflecting a logical progression in the proceedings before the Court. The Chamber also notes that rule 89 entitled “Applications for participation of victims in the proceedings”, in Section III of Chapter 4 mentioned above, contains provisions(40) that are applicable to the investigation stage. Moreover, Section IV of the chapter, entitled “Miscellaneous

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provisions”,(41) also relates to the investigation stage. Furthermore, rule 103 entitled “Amicus curiae and other forms of submission”, which relates to “any stage of the proceedings” and any chamber of the Court, has already been applied by the Chamber to the investigation stage regarding the DRC. (42) 38. In the light of the foregoing, the Chamber considers that the term “proceedings” does not necessarily exclude the stage of investigation of a situation. On the contrary, a number of provisions include the stage of investigation of a situation within the meaning of the term “la procédure”. ————————— (33) Article 127 of the Statute is in Part 13, which is entitled « Final Clauses ». (34) The Prosecution’s Reply, para. 13. (35) The word “proceedings” occurs over 40 times in the English version of the Statute. (36) The word “procédure” occurs over 50 times in the French version of the Statute. (37) In French the word is used in the singular and sometimes in the plural. The English and French versions are not entirely consistent as regards the terminology used in this area. (38) In articles 19 (11) and 20 (3) of the Statute, the French and English versions refer to proceedings which seem to include the investigation stage. See also article 17 of the Statute in this regard. (39) For example, when the Prosecutor informs the Pre-Trial Chamber pursuant to article 56 (1) of the Statute or when the Prosecutor files an application pursuant to article 57 (3) (a) or (d) of the Statute. (40) Provisions such as the definition of victims (rule 85) and the general principle set out in rule 86 of the Rules. (41) Rule 100 (2) is applicable at any time “after the initiation of an investigation”. Rules 101 and 102 are general principles applicable to the investigation stage. (42) “Decision inviting certain NGO representatives to submit observations on the protection of victims and of human rights organisations active in the east of the Democratic Republic of Congo (Rule 103)”, 14 June 2005, No. ICC-01/04-37-Conf-tEN.

Article 128 – Authentic Texts The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the SecretaryGeneral of the United Nations, who shall send certified copies thereof to all States.

PRE-TRIAL CHAMBERS x

Article 128: Equal authenticity of different versions (English and French) – Comparison between different versions on an equal basis – Interpretation of the Statute in the light of English and French versions

S128-PT-1

o Situation in the Democratic Republoc of Congo, No. ICC-01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 30-32:

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30. La Chambre fait observer que les expressions « proceedings »(35) ou « la procédure »(36) sont utilisées à de nombreuses reprises dans les versions

anglaise et française du Statut(37). […] 31. De plus, la version française de l’article 127 du Statut ne reprend pas l’expression générique « la procédure » telle qu’utilisée à l’article 68-3 mais emploie le terme spécifique de « procédures pénales » qui n’est jamais utilisée auparavant dans le Statut.[…] 32. En outre, la Chambre fait observer que, dans un certain nombre de cas, les expressions « proceedings » et « la procédure » semblent comprendre la phase d’enquête. La Chambre constate que dans le chapitre II du Statut, intitulé « Compétence, recevabilité et droit applicable », l’article 17, aussi bien dans la version anglaise que dans la version française, utilise à plusieurs reprises, aux paragraphes 2 et 3, l’expression « la procédure », qui semble couvrir la phase d’enquête mentionnée de manière expresse au paragraphe premier de ce même article (38). ————————— (35) Le mot « proceedings » apparaît plus de 40 fois dans la version anglaise du Statut. (36) Le mot « procédure » apparaît plus de 50 fois dans la version française du Statut. (37) En français, le mot est utilisé au singulier et quelquefois au pluriel. Les versions anglaise et française ne coïncident pas entièrement en ce qui concerne la terminologie utilisée dans ce domaine. (38) Aux articles 19-11 et 20-3 du Statut, les versions française et anglaise se réfèrent à la procédure qui semble comprendre le stade de l’enquête. Dans le même sens, voir l’article 17 du Statut.

——— Official Translation ——— 30. The Chamber observes that the terms “proceedings” (35) and “la procédure”(36) are used repeatedly in the English and French versions of the Statute. (37) Article 127 of the Statute, which the Office of the Prosecutor cites as an example, is the only article of the Statute in which a distinction appears to be made between the notions of investigation and proceedings. Moreover, the article is in the last part of the Statute, which does not deal with proceedings before the Court but contains the final clauses. 31. Furthermore, the French version of article 127 of the Statute does not employ the generic term “la procédure” as used in article 68 (3) but “procédures pénales”, which does not occur elsewhere in the Statute up to that point. Given the specificity of the terminology used in this article and its location, the Chamber considers that a general principle of interpretation of the Statute as a whole cannot be inferred from this single example. 32. Moreover, the Chamber observes that in a number of instances the terms “proceedings” and “la procédure” seem to include the investigation stage. The Chamber notes that in Part 2 of the Statute, entitled “Jurisdiction, Admissibility and Applicable Law”, both the English and French versions of article 17 use the term “proceedings” several times in paragraphs 2 and 3 in a manner that seems to cover the investigation stage, which is expressly mentioned in paragraph 1 of the same article. (38) ————————— (36) The word “procédure” occurs over 50 times in the French version of the Statute.

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In French the word is used in the singular and sometimes in the plural. The English and French versions are not entirely consistent as regards the terminology used in this area. (38) In articles 19 (11) and 20 (3) of the Statute, the French and English versions refer to proceedings which seem to include the investigation stage. See also article 17 of the Statute in this regard.

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RULES OF PROCEDURE AND EVIDENCE Chapter 1 – General Provisions Rule 1 – Use of Terms In the present document: “article” refers to articles of the Rome Statute; “Chamber” refers to a Chamber of the Court; “Part” refers to the Parts of the Rome Statute; “Presiding Judge” refers to the Presiding Judge of a Chamber; “the President” refers to the President of the Court; “the Regulations” refers to the Regulations of the Court; “the Rules” refers to the Rules of Procedure and Evidence.

Rule 2 – Authentic Texts The Rules have been adopted in the official languages of the Court established by article 50, paragraph 1. All texts are equally authentic.

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Rule 2: Equal authenticity of different versions (English and French) – Comparison between different versions on an equal basis – Interpretation of the Rules in the light of English and French versions

R2-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 35-36:

35. S’agissant du Règlement de procédure et de preuve, le Procureur avance qu’une distinction peut être faite entre « enquête » et « procédure » dans deux exemples : à la règle 49-1 et à la règle 111. La Chambre fait observer que la version française de ces règles diffère de leur version anglaise et ne contient pas exactement la même opposition entre « enquête » et « procédure ». La version française de la règle 111 reprend les termes employés dans le titre même du chapitre V du Règlement en parlant « d’une enquête ou de poursuites », tandis que la règle 49 parle « des enquêtes ou des procédures » au pluriel. […]

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36. La Chambre note que l’expression « proceedings » dans la version anglaise du Règlement ou « la procédure » dans sa version française est utilisée à plus de 120 reprises.

——— Official Translation ——— 35. Turning to the Rules of Procedure and Evidence, the Prosecutor argues that a distinction may be made between “investigation” and “proceedings” in two instances: rule 49 (1) and rule 111. The Chamber notes that the French version of these rules differs from the English version and does not contain exactly the same distinction between “investigation” and “proceedings”. The French version of rule 111 uses the same terms as the title of Chapter 5 of the Rules in the phrase “d’une enquête ou de poursuites”, whereas rule 49 refers to “des enquêtes ou des procédures” in the plural. […] 36. The Chamber notes that the term “proceedings” in the English version of the Rules and the term “la procédure” in the French version are used over 120 times.

Rule 3 - Amendments 1. Amendments to the rules that are proposed in accordance with article 51, paragraph 2, shall be forwarded to the President of the Bureau of the Assembly of States Parties. 2. The President of the Bureau of the Assembly of States Parties shall ensure that all proposed amendments are translated into the official languages of the Court and are transmitted to the States Parties. 3. The procedure described in sub-rules 1 and 2 shall also apply to the provisional rules referred to in article 51, paragraph 3.

Chapter 2 – Composition and Administration of the Court Section I – General Provisions Relating to the Composition and Administration of the Court Rule 4 – Plenary Sessions 1. The judges shall meet in plenary session not later than two months after their election. At that first session, after having made their solemn undertaking, in conformity with rule 5, the judges shall: (a) Elect the President and Vice-Presidents; (b) Assign judges to divisions. 2. The judges shall meet subsequently in plenary session at least once a year to exercise their functions under the Statute, the Rules and the Regulations and, if necessary, in special plenary sessions convened by the President on his or her own motion or at the request of one half of the judges. 3. The quorum for each plenary session shall be two-thirds of the judges.

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4. Unless otherwise provided in the Statute or the Rules, the decisions of the plenary sessions shall be taken by the majority of the judges present. In the event of an equality of votes, the President, or the judge acting in the place of the President, shall have a casting vote. 5. The Regulations shall be adopted as soon as possible in plenary sessions.

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Rule 4(2): Special plenary session convened on request of judges of the Pre-trial division despite the President’s view that there is no basis to refer to the Plenary

R4-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case (PT), 27 October 2006, pp.2-3 and Annex, paras. 5, 24:

CONSIDERING that on 20 October 2006 all the judges of the Pre-Trial Division requested that the President of the Court convene a special plenary in order to deal with the matters raised in the Prosecutor's Application and in the Defence Response; Annex: 5. The Presidency, by Internal Memorandum of 26 January 2006 entitled "Decision of the Presidency on the Memorandum of the Prosecutor of 9 January 2006" (hereinafter "Decision"), declined to grant the Prosecutor's request for relief, by noting that it neither had the competence to deal with the matter itself, nor did it find any basis on which to refer the matter to the Plenary (see Annex 5).[…] […] 24. The President of the Pre-Trial Division, on behalf of the Judges of Pre-Trial Chambers I and II, therefore forwards the matter to the President of the International Criminal Court, in order for the latter to convene, on the basis of Rule 4 (2) of the Rules of Procedure and Evidence, a special plenary session to examine and, as appropriate, to determine Whether in light of the foregoing and the procedural history set out above, the "Application[s]" of the Prosecutor of 31 August 2006 and the "Réponse" by the Defence Counsel of 5 October 2006 amount to a request for disqualification of the Judges of Pre-Trial Chambers I and II under Article 41 (2) of the Statute, or to a "question as to the disqualification of a judge" within the meaning of Article 41 (2) of the Statute, and if so, to decide on the matter.

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PRESIDENCY x

Rule 4(2): Special plenary session – Convening by the President on his own motion – Lack of ground to convene a plenary session (denied)

R4-P-1

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

The Request specified that the plenary be convened on an urgent basis due to the forthcoming confirmation of charges hearing before Pre-Trial Chamber I in the case against Thomas Lubanga Dyilo, scheduled for 9 November 2006. According to the Request, a plenary was requested in order to: - Determine whether the Prosecutor’s applications of 31 August 2006, to separate the Senior Legal Adviser from rendering legal advice in the cases before Pre-Trial Chambers I and II (“the Application(s)”), and the Response of the Defence of 4 October 2006 before Pre-Trial Chamber I, joining the Prosecutor’s application, amounted: - to a request for the disqualification of the judges of those Chambers; or - to a “question as to the the disqualification of a judge” within the meaning of article 41(2) of the Statute. - And, if so, decide on the matter. […] Since the Request was not made by one-half of the judges, it was for me, as the President of the Court, to consider whether to convene the plenary proprio motu, in accordance with rule 4(2). In so doing, and in the light of the importance of the matter, I decided to consult the judges of the Court with respect to the Request. Consequently, I called a meeting of the judges on 4 November 2006. Prior to the meeting, the judges of Pre-Trial Chambers I and II, as well as yourself in your capacity as the President of the PreTrial Division, informed me individually that none of you would attend the meeting, generally on the ground of inappropriateness. The remaining eleven judges, including myself, attended the meeting. We did not enter into the merits of the Request or touch upon the principles relevant to disqualification. The unanimous view of the judges attending the meeting was that the Applications and the Response did not amount to a request for the disqualification of any judge; rather, they were a request to separate the Senior Legal

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Adviser of the Pre-Trial Division from rendering legal advice regarding the cases before Pre-Trial Chambers I and II. The judges further opined that, absent any request for disqualification, there were no grounds to call a meeting of judges in accordance with the Statute, to address the issue of disqualification. For the reasons set out above, I would like to inform you that I have decided not to convene a plenary as per the Request.

Rule 5 – Solemn Undertaking under Article 45 1. As provided in article 45, before exercising their functions under the Statute, the following solemn undertakings shall be made: (a) In the case of a judge: “I solemnly undertake that I will perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.”; (b) In the case of the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court: “I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.” 2. The undertaking, signed by the person making it and witnessed by the President or a Vice-President of the Bureau of the Assembly of States Parties, shall be filed with the Registry and kept in the records of the Court.

Rule 6 – Solemn Undertaking by the Staff of the Office of the Prosecutor, the Registry, Interpreters and Translators 1. Upon commencing employment, every staff member of the Office of the Prosecutor and the Registry shall make the following undertaking: “I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.”; The undertaking, signed by the person making it and witnessed, as appropriate, by the Prosecutor, the Deputy Prosecutor, the Registrar or the Deputy Registrar, shall be filed with the Registry and kept in the records of the Court. 2. Before performing any duties, an interpreter or a translator shall make the following undertaking: “I solemnly declare that I will perform my duties faithfully, impartially and with full respect for the duty of confidentiality.”;

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The undertaking, signed by the person making it and witnessed by the President of the Court or his or her representative, shall be filed with the Registry and kept in the records of the Court.

Rule 7- Single Judge under Article 39, Paragraph 2 (b) (iii) 1. Whenever the Pre-Trial Chamber designates a judge as a single judge in accordance with article 39, paragraph 2 (b) (iii), it shall do so on the basis of objective pre-established criteria. 2. The designated judge shall make the appropriate decisions on those questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules. 3. The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber.

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Rule 7(3): Subsequent decision to have functions of a single judge exercised by the full chamber

R7-PT-1

o Situation in the Uganda, No. ICC-02/04, Under Seal – Ex Parte - Decision on the Exercise of Functions by the Full Chamber in Relation to an Application by the Prosecutor under Article 58 (PT), 18 May 2005 (made public on 13 October 2005):

NOTING the provisions of article 39, paragraph 2 (b) (iii), article 57, paragraph 2 (b) of the Statute, rule 7, sub-rule 2 of the Rules of Procedure and Evidence (the "Rules"); and in particular rule 7, sub-rule 3 of the Rules, pursuant to which the PreTrial Chamber, on its own motion, may decide that the functions of the single judge be exercised by the full Chamber; CONSIDERING that the context of the Prosecutor's application and the overall circumstances of the assigned situation make it appropriate for the Chamber to function as a full Chamber; HEREBY: 1. Decides that the functions of the single judge be exercised by the full Pre-Trial Chamber II with respect to all aspects of the Prosecutor's application;

Rule 8 – Code of Professional Conduct 1. The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor. In the preparation of the proposal, the Registrar shall conduct the consultations in accordance with rule 20, sub-rule 3.

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2. The draft Code shall then be transmitted to the Assembly of States Parties, for the purpose of adoption, according to article 112, paragraph 7. 3. The Code shall contain procedures for its amendment.

Section II – The Office of the Prosecutor Rule 9 – Operation of the Office of the Prosecutor In discharging his or her responsibility for the management and administration of the Office of the Prosecutor, the Prosecutor shall put in place regulations to govern the operation of the Office. In preparing or amending these regulations, the Prosecutor shall consult with the Registrar on any matters that may affect the operation of the Registry.

Rule 10 – Retention of Information and Evidence The Prosecutor shall be responsible for the retention, storage and security of information and physical evidence obtained in the course of the investigations by his or her Office.

Rule 11 – Delegation of the Prosecutor’s Functions Except for the inherent powers of the Prosecutor set forth in the Statute, inter alia, those described in articles 15 and 53, the Prosecutor or a Deputy Prosecutor may authorize staff members of the Office of the Prosecutor, other than those referred to in article 44, paragraph 4, to represent him or her in the exercise of his or her functions.

Section III – The Registry Subsection 1 – General Provisions Relating to the Registry Rule 12 – Qualifications and Election of the Registrar and the Deputy Registrar 1. As soon as it is elected, the Presidency shall establish a list of candidates who satisfy the criteria laid down in article 43, paragraph 3, and shall transmit the list to the Assembly of States Parties with a request for any recommendations. 2. Upon receipt of any recommendations from the Assembly of States Parties, the President shall, without delay, transmit the list together with the recommendations to the plenary session. 3. As provided for in article 43, paragraph 4, the Court, meeting in plenary session, shall, as soon as possible, elect the Registrar by an absolute majority, taking into account any recommendations by the Assembly of States Parties. In the event that no candidate obtains an absolute majority on the first ballot, successive ballots shall be held until one candidate obtains an absolute majority.

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4. If the need for a Deputy Registrar arises, the Registrar may make a recommendation to the President to that effect. The President shall convene a plenary session to decide on the matter. If the Court, meeting in plenary session, decides by an absolute majority that a Deputy Registrar is to be elected, the Registrar shall submit a list of candidates to the Court. 5. The Deputy Registrar shall be elected by the Court, meeting in plenary session, in the same manner as the Registrar.

Rule 13 – Functions of the Registry 1. Without prejudice to the authority of the Office of the Prosecutor under the Statute to receive, obtain and provide information and to establish channels of communication for this purpose, the Registrar shall serve as the channel of communication of the Court. 2. The Registrar shall also be responsible for the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State.

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Rule 13(1): Role of the Registry - “Channel of communication of the Court” – Order to send a cooperation request to the United Nations

R13-PT-1

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

ORDER the Registrar to: (i) immediately send a cooperation request to the United Nations in order to obtain notes of those interviews of MONUC officials with witnesses DRC-OTP-WWWW-0008 and DRC-OTP-WWWW-0011 referred to in pages 3 and 4 of the Defence Request; (ii) request to the United Nations that the said cooperation request be treated in a confidential manner and that an answer be provided as soon as practicable and no later than 23 November 2006; (iii) immediately transmit a copy of this decision to the Representative of the Secretary General of the United Nations that has been authorised to assist witness Kristine Peduto during her testimony;

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Rule 13(1): Role of the Registry – “Channel of communication of the Court” - Role of the Registry in relation to disclosures: “Provider of full faith and credit of the proceedings before the Court and record keeper”

R13-PT-2

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

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ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 69-70, 76, 137: 69. The single judge considers that the fact that the disclosure process takes place among the parties does not mean that the Registry plays no role in such a process. On the contrary, the Registry must also perform during the disclosure process its unique functions as provider of full faith and credit of the proceedings before the Court and record keeper. 70. Concerning the evidence on which the parties intend to rely at the confirmation hearing, the Registry plays its role as a result of the mandatory filing of such evidence in the record of the case pursuant to rules 121 (2) and 122 (1) of the Rules. […] 76. In the view of the single judge, the filing of "disclosure notes" and "inspection reports" is necessary for the Registry to ensure legal certainty as to which materials have been exchanged between the parties without infringing on the interest of the Defence to have access to such materials as soon as practicable. Furthermore, it will ensure consistency in the disclosure process by ensuring that, at the very least, a record of every item subject to such a process is part of the record of the case. […] 137. The single judge considers that the inspection of the evidence on which the parties intend to rely at the confirmation hearing pursuant to rules 77 and 78 could be facilitated if the parties agree: (i) to gain access to the relevant evidence via the Registry after the proposing party has filed it in the record of the case; or, at the very least, (ii) to obtain from the Registry, rather than from the proposing party, the electronic copies (or photographs in the case of tangible objects) of the relevant evidence after inspection and after such evidence has been filed in the record of the case. However, in the view of the single judge, this practice, which will closely mirror the interim disclosure system, must be agreed by the parties and cannot be imposed on them by the single judge.

Rule 14 – Operation of the Registry 1. In discharging his or her responsibility for the organization and management of the Registry, the Registrar shall put in place regulations to govern the operation of the Registry. In preparing or amending these regulations, the Registrar shall consult with the Prosecutor on any matters which may affect the operation of the Office of the Prosecutor. The regulations shall be approved by the Presidency. 2. The regulations shall provide for defence counsel to have access to appropriate and reasonable administrative assistance from the Registry.

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Rule 14(1): Regulations of the Registry – Regulations 14 and 24 – Classification of documents – Difference between “confidential”, “under seal” and “ex parte” documents

R14-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Decision Reclassifying Certain Documents in the Record of the Situation in the Democratic Republic of the Congo (PT), 21 April 2006:

NOTING articles 57 (3) (c), 67 (1) and 68 (1) of the Rome Statute (the "Statute"), rules 87 and 88 of the Rules of Procedure and Evidence (the "Rules"), and regulations 14 and 24 (4) of the Regulations of the Registry (the "Regulations"); CONSIDERING the multiplicity of persons and entities entitled to participate in some of the proceedings concerning the investigation into the situation in the DRC; CONSIDERING that the level of confidentiality of many of the documents currently in the record of the situation in the DRC was determined solely by taking into consideration the persons and/or entities participating in the specific proceedings at which the relevant document was produced; CONSIDERING that this approach only guarantees the confidentiality of the documents if a separate sub-folder for each set of related proceedings is created within the record of the situation in the DRC; and that, according to the Registrar, it is not feasible to create separate sub-folders within the record of the situation in the DRC; (10) CONSIDERING, that, in determining the level of confidentiality of any document in the record of the situation in the DRC, it is necessary to take into account the multiplicity of persons and entities entitled to participate in some of the proceedings concerning the investigation of the situation in the DRC; CONSIDERING, therefore, that it is necessary to reclassify a number of documents in the record of the situation in the DRC; CONSIDERING furthermore that, according to regulation 14 of the Regulations, "[d]ocuments, material, orders and decisions maybe classified as follows: (a) Public: available to the public; (b) Confidential: not to be disclosed to the public; or (c) Under seal: confidential; accessible and known only to a limited number of persons. Each organ and/or participant shall compile and maintain a list of persons who have had access to each document, material, order or decision under seal." CONSIDERING that, according to regulation 24 (4) of the Regulations, "[w]here proceedings are held without notification of one or more of the participants, or where they do not have an opportunity to voice their arguments, documents, material and orders shall be filed ex parte. The words 'EX PARTE' shall be inserted on the cover page in capital letters and the recipients other than the Chamber shall be specified after the phrase 'only available to'."

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CONSIDERING, therefore, that, although the Prosecution refers to the levels of confidentiality provided for in the Regulations, it defines the various levels of confidentiality of its filings in a way which differs from regulations 14 and 24 (4) of the Regulations. CONSIDERING that, unless Pre-Trial Chamber I expressly orders, as it did in its decision of 17 January 2006, the classification of a document as either "under seal" or "confidential" does not deny access to any person or entity entitled to participate in any of the proceedings concerning the investigation of the situation in the DRC; and that the difference between classifying a document as "under seal" or "confidential" relates only to the use of different handling codes; CONSIDERING that in order to prevent one or more persons or entities entitled to participate in any of the proceedings concerning the investigation of the situation in the DRC from accessing a document filed in the record of the situation in the DRC, it is necessary to insert the words "EX PARTE" on the cover page in capital letters and to specify the recipients other than the Chamber after the phrase "only available to"; ————————— (10) ICC-01/04-01/06-T-2-US-EXP-EN, p. 42, lines 1 to 25 and p. 45, lines 2 to 4.

R14-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 14, 21-23:

14. The single judge notes that, in the framework of the Statute and the Rules, the notion of ex parte proceedings may involve the following two alternative meanings, as expressed in rule 24 (4) of the Regulations of the Registry: i. proceedings where the Prosecution, the Defence, or any other participant (or a combination thereof), while aware that such proceedings exist, have no opportunity to voice their arguments, documents, material, and orders; or ii. proceedings where the Prosecution, the Defence, or any other participant (or a combination thereof) are not notified and thus unaware of their existence. […] 21. The single judge notes that the only express mention of under-seal motions in the Statute and the Rules can be found in rules 87 and 88 of the Rules dealing with protective and special measures. 22. The single judge also notes that, according to regulation 14 (c) of the Regulations of the Registry, the expression "under seal" means "confidential; accessible and known only to a limited number. Each organ and/or participant shall compile and maintain a list of persons that had access to each document, material, order or decision under seal."

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23. In this regard, the single judge has already stated in her Decision Reclassifying Certain Documents in the Record of the DRC Situation(15), that "the classification of a document as either 'under seal' or 'confidential' does not deny access to any person or entity entitled to participate in the proceedings...and that the difference between classifying a document as 'under seal' or 'confidential' relates only to the use of different handling codes."(16) ————————— (15) "Decision Reclassifying Certain Documents in the Record of the Situation in the Democratic Republic of the Congo", issued by Judge Sylvia Steiner acting as single judge on 21 April 2006, ICC-01/04-140. (16) Ibid, p. 5.

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Rule 14(2): Assistance to the Defence – Access to and training in appropriate software

R14-PT-3

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

DECIDE that as soon as practicable after this decision has been issued, the Registry shall make the necessary arrangements to provide the Defence with access to and training in the software necessary to facilitate (i) inter partes exchanges between the Prosecution and the Defence, and (ii) subsequent filings in the record of the case in accordance with the Draft Protocol for the Presentation of Evidence;

Rule 15 - Records 1. The Registrar shall keep a database containing all the particulars of each case brought before the Court, subject to any order of a judge or Chamber providing for the non-disclosure of any document or information, and to the protection of sensitive personal data. Information on the database shall be available to the public in the working languages of the Court. 2. The Registrar shall also maintain the other records of the Court.

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Rule 15: Necessity to safeguard legal certainty – All applications and responses shall be filed in the record of the case

R15-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp.3, 6:

CONSIDERING that, despite the inter partes nature of the disclosure process, in order to have legal certainty of the content of the requests of the Defence for materials and of the responses of the Prosecution, a copy of any such request and

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response made since the issuance of the present decision must be filed in the record of the case of the Prosecutor vs Thomas Lubanga Dyilo; […] ORDER the Defence to file in the record of the case a copy of any request for materials made to the Prosecution since the issuance of the present decision; ORDER the Prosecution to file in the record of the case a copy of any response to any request for materials made by the Defence after the issuance of the present decision;

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Rule 15(1): Records of situation/case – Records of a situation that are related to an Accused in a case shall also be part of the records of the case – Protection of victims and witnesses Redactions and adjustments in respective records and index of records

R15-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning Pre-Trial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006 (made public on 17 March 2006):49

CONSIDERING that a number of documents currently in the record of the situation in the Democratic Republic of the Congo (DRC) are directly related to the case against Mr Thomas Lubanga Dyilo; and that it is necessary for the protection of victims and witnesses and the preservation of evidence in the ongoing investigation of the situation in the DRC that Mr Thomas Lubanga Dyilo have access only to the redacted index of the record of the situation in the DRC and the public documents therein contained unless otherwise provided by the Chamber upon a motivated request by him; CONSIDERING that those documents in the record of the situation in the DRC directly related to the case against Mr Thomas Lubanga Dyilo should also be part of the record of the case against Mr Thomas Lubanga Dyilo; […] DECIDES to include in Annex I of this decision, which shall remain under seal until otherwise provided by the Chamber, a formatted version of the Decision in which: 49

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Concerning the Incorporation of Certain Documents into the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 16 March 2006 (made public on 21 March 2006); Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request to Unlimited Access to the Entire File of the Situation in the Democratic Republic of Congo (PT), 17 May 2006.

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(i) Parts of the Decision have been removed and all parts relevant to the case against Mr Thomas Lubanga Dyilo retained; (ii) All information concerning the identity and current whereabouts of the six witnesses whose statements were cited in the Decision is redacted; (iii) Purely linguistic modifications necessary in view of the level of confidentiality of the proceedings are incorporated. DECIDES that all documents currently in the record of the situation in the DRC remain there; that Mr Thomas Lubanga Dyilo shall have access only to the redacted index of the record of the situation in the DRC and to any public document contained therein; and that Mr Thomas Lubanga Dyilo shall not have access to nonpublic documents in the record of the situation in the DRC unless otherwise provided by the Chamber upon a motivated request by him. DECIDES that the Registrar shall include in the record of the case against Mr Thomas Lubanga Dyilo the following documents, including certain transcripts and materials presented at the hearing of 2 February 2006, containing the reference numbers of the original documents in the record of the situation in the DRC: […] DECIDES that the above-mentioned documents shall be incorporated into the record of the case against Mr Thomas Lubanga Dyilo; and that a reference number in the record of the case against Mr Thomas Lubanga Dyilo shall be given to all of the above-mentioned documents. DECIDES that all of the above-mentioned documents in the record of the case against Mr Thomas Lubanga Dyilo shall remain under seal until otherwise provided by the Chamber. DECIDES that those above-mentioned documents which in the record of the situation in the DRC are marked ex parte, Prosecution only, shall also be marked ex parte, Prosecution only in the record of the case against Mr Thomas Lubanga Dyilo. REQUESTS the Registrar to remove the decisions with the quotes […] from the record of the case against Mr Thomas Lubanga Dyilo and to incorporate it into the record of the situation in the DRC. REQUESTS the Prosecutor accordingly to prepare a formatted version of the following documents in line with Annex I of the present decision […]. INSTRUCTS the Registrar accordingly to redact: (i) The index of the record of the situation in the DRC; and (ii) The index of the record of the case against Mr Thomas Lubanga Dyilo.

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Rule 15(1): Contents of situation/case file – Obligation to file documents related to a situation/case in the appropriate file

R15-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Ordonnance (Order) (PT), 5 April 2005:

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VU la lettre datée du 31 mars 2005, adressée par le Procureur au Président de la Chambre préliminaire I, présentant les réponses du Procureur aux questions posées par les juges au cours de la Conférence de mise en état (les « Réponses aux questions »), ATTENDU que le Procureur n'a pas déposé les Réponses aux questions dans le dossier de la situation en RDC, ATTENDU que les Réponses aux questions font, en l'espèce, partie intégrante de la Conférence de mise en état, ATTENDU, en conséquence, que les Réponses aux questions doivent figurer dans le dossier de la situation en RDC, eu égard notamment aux intérêts des futurs participants à la procédure, PAR CES MOTIFS, ORDONNE au Procureur de déposer dans le dossier de la situation en RDC les Réponses aux questions en tant que document confidentiel.

——— Official Translation ——— NOTING the Prosecutor's letter of 31 March 2005 addressed to the President ot PreTrial Chamber 1 with the Prosecutor's answers to the judges' questions during the Status Conference (the "Answers to the Questions") ; CONSIDERING that the Prosecutor did not file the Answers to the Questions in the record of the situation in the DRC; CONSIDERING that in this instance the Answers to the Questions represent an integral part of the Status Conference; CONSIDERING that the Answers to the Questions must consequently be included in the record of the situation in the DRC, particularly with a view to the interests of future participants in the proceedings; FOR THESE REASONS; ORDERS the Prosecutor to file the Answers to the Questions as a confidential document in the record of the situation in the DRC.

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Rule 15(1): Typographical errors in a decision – Corrigendum

R15-PT-4

50

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Rectifying Typographical Errors in the Decision of 24 February 2006 (PT), 6 March 2006 (made public on 20 March 2006):50

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Rectifying Typographical or Other Formal Errors of the Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 22 May 2006.

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CONSIDERING that there are certain typographical errors in the Decision which are suitable for rectification without altering the content of the Decision; CONSIDERING that it is necessary to make the following corrections to the Decision: […] FOR THESE REASONS, ORDERS the Registrar to file a corrected version of the Decision based on the abovementioned list of corrections;

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Rule 15(1): Confidential records – Order to unseal and make available to the public documents that were previously filed under seal – Order to unseal documents as to their existence and title only

R15-PT-5

o Situation in Uganda, No. ICC-02/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision to Unseal Further Documents of the Record (PT), 9 March 2006:51

CONSIDERING that the sealing of the documents listed below, whether in entirety or as to their existence only, is no longer necessary and that their unsealing does not create any threat to the safety and security of victims and witnesses; […] DECIDES to unseal the following documents and orders that the same be made public: […] DECIDES to unseal, as to their existence and title only, the following documents: […]

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Rule 15(1): Order providing non-disclosure of a document – Quotation in public documents of confidential or ex parte documents – Remedy: removal of the public document from public record and redaction

R15-PT-6

51

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on the Prosecutor’s Position on Pre-Trial Chamber I’s 17 February 2005 Decision to Convene a

See also Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision on the Prosecutor’s Application for Unsealing of the Warrants of Arrest (PT), 13 October 2005, para. 28-30; Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Décision sur la Requête du Procureur datée du 3 juillet 2006 aux fins de levée des scellés (Translation not available) (PT), 6 July 2006.

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Status Conference (PT), 9 March 2005:52 NOTING furthermore that, in particular in paragraphs 5 to 7 of the Prosecutor's Position, filed by the Prosecutor as a public document, the Prosecutor discusses the content of and quotes parts of documents that were filed by Pre-Trial Chamber I on either a confidential basis or ex parte to be made available to the Prosecutor only; […] REQUESTS the Registrar to remove from the public record the Prosecutor's Position and treat it as ex parte to be made available to the Prosecutor only, and INVITES the Prosecutor to redact, for the purpose of the public record in the situation of the Democratic Republic of Congo, the sections of the Prosecutor's Position which discuss the content of and quote parts of confidential documents.

Subsection 2 – Victims and Witnesses Unit Rule 16 – Responsibilities of the Registrar Relating to Victims and Witnesses 1. In relation to victims, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Providing notice or notification to victims or their legal representatives; (b) Assisting them in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings in accordance with rules 89 to 91; (c) Assisting them in participating in the different phases of the proceedings in accordance with rules 89 to 91; (d) Taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the proceedings. 2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules: (a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit; (b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality.

52

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Reclassifying Document Number ICC-01/04-01/06-690, 9 November 2006, p. 2.

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3. For the fulfilment of his or her functions, the Registrar may keep a special register for victims who have expressed their intention to participate in relation to a specific case. 4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential.

Rule 17 – Functions of the Unit 1. The Victims and Witnesses Unit shall exercise its functions in accordance with article 43, paragraph 6. 2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate: (a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances: (i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection; (ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures; (iii) Assisting them in obtaining medical, psychological and other appropriate assistance; (iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality; (v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate; (vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule; (b) With respect to witnesses: (i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (ii) Assisting them when they are called to testify before the Court; (iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings. 3. In performing its functions, the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. In order to facilitate the participation and protection of children as witnesses, the Unit may assign, as appropriate, and with the agreement of the parents or the legal guardian, a childsupport person to assist a child through all stages of the proceedings.

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

R17-PT-1

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

14. […] On the one hand, the Prosecution explains that the practice of witnessproofing "allows assisting the witness testifying with the full comprehension of the Court proceedings, its participants and their respective roles, freely and without fear"(18). This goal is accomplished through the following measures which, according to the Prosecution, are part of the practice of witness proofing: i. "To provide the witness with an opportunity to acquaint him/herself with the Prosecution's Trial Lawyer and other whom may examine the witness in Court; ii. To familiarise the witness with the Courtroom, the Participants to the Court proceedings and the Court proceedings; iii. To reassure the witness about his/her role in the Court proceedings; iv. To discuss matters that are related to the security and safety of the witness, in order to determine the necessity of applications for protective measures before the Court; v. To reinforce to the witness that he/she is under a strict legal obligation to tell the truth when testifying; vi. To explain the process of examination-in-chief, cross-examination and reexamination;" (19) 15. In the view of the Chamber, this first component of the definition of the practice of witness proofing advanced by the Prosecution aims at preparing the witness to give oral evidence before the Court in order to prevent being taken by surprise or being placed at a disadvantage due to ignorance of the Court's proceedings. The Chamber observes that this first component consists basically of a series of arrangements to familiarise the witnesses with the layout of the Court, the sequence of events that is likely to take place when the witness is giving testimony, and the different responsibilities of the various participants at the hearing. […] 20. In the view of the Chamber, there are several provisions of the Statute and Rules which, without being referred to as "witness preparation", "witness familiarisation" or "witness proofing", encompass the measures contained in paragraphs 16 (i) to (vi) of the Prosecution Information in order to assist the witness in the experience of giving oral evidence before the Court so as to prevent the witness from finding himself or herself in a disadvantageous position, or from being taken by surprise as a

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result of his or her ignorance of the process of giving oral testimony before the Court. 21. In this regard, the Chamber is particularly mindful of: i. article 57 (3) (c) of the Statute, which imposes on the Chamber the duty to provide, where necessary, for the protection of victims and witnesses; ii. article 68 (1) of the Statute which imposes upon the different organs of the Court within the scope of their competency, including the Chamber, the duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses; iii. rules 87 and 88 of the Rules, which provide for a series of measures for the protection of the safety, physical and psychological well-being, dignity and privacy of the witnesses, including measures to facilitate their testimony; 22. Moreover, the Chamber observes that article 43 (6) of the Statute imposes upon the Registrar the duty to set up a Victims and Witnesses Unit (" the VWU") within the Registry, which in consultation with the Office of the Prosecution, shall provide protective measures and security arrangements, counselling and other appropriate assistance for witnesses. Furthermore, rules 16 (2) and 17 (2) (b) of the Rules, when elaborating on the functions of the VWU, expressly state that, in accordance with the Statute and the Rules, and in consultation when appropriate with the Chamber, the Prosecution and the Defence, the said unit shall perform inter alia the following functions in relation to witnesses: i. Assisting witnesses when they are called to testify before the Court;(23) ii. Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings; (24) iii. Informing witnesses of their rights under the Statute and the Rules;(25) iv. Advising witnesses where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony; (26) v. Assisting witnesses in obtaining medical, psychological and other appropriate assistance; (27) and vi. Providing witnesses with adequate protective and security measures and formulating long-term and short-term plans for their protection; (28) 23. Hence, the Chamber considers that those measures included in paragraph 16 (i) to (vi) of the Prosecution Information are not only admissible in light of the abovementioned provisions of the Statute and the Rules, but are mandatory according to such provisions. Moreover, it is the view of the Chamber that labelling this practice as "witness proofing" is not suitable for the content of this practice, and that the expression "witness familiarisation" is more appropriate in this context.

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24. Moreover, the Chamber finds that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony. 25. The Chamber considers that this approach, in addition to being supported by the literal interpretation of the relevant provisions of the Statute and the Rules, is also warranted by the systematic and teleological interpretation of such provisions. 26. From a systematic perspective, the attribution of the practice of witness familiarisation to the VWU is consistent with the principle that witnesses to a crime are the property neither of the Prosecution nor of the Defence and that they should therefore not be considered as witnesses of either party, but as witnesses of the Court. In this regard, the Chamber recalls that this principle underpins several decisions taken by the Chamber in the proceedings leading to the confirmation hearing in the present case. (29) [...] FOR THESE REASONS ORDERS the Victims and Witnesses Unit to proceed with the practice of witness familiarisation for the only witness currently scheduled to testify at the confirmation hearing by adopting inter alia the following measures in the two days prior to her testimony before the Chamber: i. assisting the witness to fully understand the Court proceedings, its participants and their respective roles; ii. reassuring the witness about her role in proceedings before the Court; iii. ensuring that the witness clearly understands that she is under a strict legal obligation to tell the truth when testifying; iv. explaining to the witness the process of examination first by the Prosecution and subsequently by the Defence; v. discussing matters that are related to the security and safety of the witness in order to determine the necessity of applications for protective measures before the Court; and vi. making arrangements with the Prosecution in order to provide the witness with an opportunity to acquaint herself with the Prosecution's Trial Lawyer and others who may examine the witness in Court; ————————— (18) ICC-01/04-01/06-638-Conf, para. 17 (i). (19) ICC-01/04-01/06-638-Conf, para. 16 (i) to (vi). (23) Rule 17(2) (b) (ii) of the Rules. (24) Rule 17 (2) (b) (iii) of the Rules. (25) Rule 16 (2) (a) of the Rules. (26) Rule 17 (2) (b) (i) of the Rules. (27) Rule 17 (2) (a) (iii) of the Rules. (28) Rules 17 (2) (a) (i) of the Rules.

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(29)

See, for instance, the system according to which the Prosecution and the Defence may contact, prior to the confirmation hearing, the witnesses on which the other party intends to rely at the hearing. This system was established in the "Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses", issued by the single judge on 19 September 2006 (ICC-01/04-01/06-447).

Rule 18 – Responsibilities of the Unit For the efficient and effective performance of its work, the Victims and Witnesses Unit shall: (a)

Ensure that the staff in the Unit maintain confidentiality at all times;

(b)

While recognizing the specific interests of the Office of the Prosecutor, the defence and the witnesses, respect the interests of the witness, including, where necessary, by maintaining an appropriate separation of the services provided to the prosecution and defence witnesses, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers;

(c)

Have administrative and technical assistance available for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, during all stages of the proceedings and thereafter, as reasonably appropriate;

(d)

Ensure training of its staff with respect to victims’ and witnesses’ security, integrity and dignity, including matters related to gender and cultural sensitivity;

(e)

Where appropriate, cooperate governmental organizations.

with

intergovernmental

and

non-

Rule 19 – Expertise in the Unit In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas: (a) Witness protection and security; (b) Legal and administrative matters, including areas of humanitarian and criminal law; (c) Logistics administration; (d) Psychology in criminal proceedings; (e) Gender and cultural diversity; (f) Children, in particular traumatized children; (g) Elderly persons, in particular in connection with armed conflict and exile trauma; (h) Persons with disabilities; (i) Social work and counselling; (j) Health care;

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Interpretation and translation.

Subsection 3 – Counsel for the Defence Rule 20 – Responsibilities of the Registrar Relating to the Rights of the Defence 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, the Registrar shall, inter alia: (a) Facilitate the protection of confidentiality, as defined in article 67, paragraph 1 (b); (b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence; (c) Assist arrested persons, persons to whom article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel; (d) Advise the Prosecutor and the Chambers, as necessary, on relevant defencerelated issues; (e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence; (f) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules. 2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel. 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.

Rule 21 – Assignment of Legal Assistance 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, subrule 3.

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2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list. 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances. 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity. 5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.

Rule 22 – Appointment and Qualifications of Counsel for the Defence 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise. 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity. 3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties.

Section IV – Situations that May Affect the Functioning of the Court Subsection 1 – Removal from Office and Disciplinary Measures Rule 23 – General Principle A judge, the Prosecutor, a Deputy Prosecutor, the Registrar and a Deputy Registrar shall be removed from office or shall be subject to disciplinary measures in such cases and with such guarantees as are established in the Statute and the Rules.

Rule 24 – Definition of Serious Misconduct and Serious Breach of Duty 1. For the purposes of article 46, paragraph 1 (a), serious misconduct shall be constituted by conduct that: (a) If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper

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administration of justice before the Court or the proper internal functioning of the Court, such as: (i) Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person; (ii) Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office; (iii) Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or (b) If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court. 2. For the purposes of article 46, paragraph 1 (a), a “serious breach of duty” occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person: (a) Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so; (b) Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers.

Rule 25 – Definition of Misconduct of a Less Serious Nature 1. For the purposes of article 47, misconduct of a less serious nature shall be constituted by conduct that: (a) If it occurs in the course of official duties, causes or is likely to cause harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as: (i) Interfering in the exercise of the functions of a person referred to in article 47; (ii) Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority; (iii) Failing to enforce the disciplinary measures to which the Registrar or a Deputy Registrar and other officers of the Court are subject when a judge knows or should know of a serious breach of duty on their part; or (b) If it occurs outside the course of official duties, causes or is likely to cause harm to the standing of the Court. 2. Nothing in this rule precludes the possibility of the conduct set out in sub-rule 1 (a) constituting “serious misconduct” or “serious breach of duty” for the purposes of article 46, paragraph 1 (a).

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Rule 26 – Receipt of Complaints 1. For the purposes of article 46, paragraph 1, and article 47, any complaint concerning any conduct defined under rules 24 and 25 shall include the grounds on which it is based, the identity of the complainant and, if available, any relevant evidence. The complaint shall remain confidential. 2. All complaints shall be transmitted to the Presidency, which may also initiate proceedings on its own motion, and which shall, pursuant to the Regulations, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. The Presidency shall be assisted in this task by one or more judges, appointed on the basis of automatic rotation, in accordance with the Regulations.

Rule 27 – Common Provisions on the Rights of the Defence 1. In any case in which removal from office under article 46 or disciplinary measures under article 47 is under consideration, the person concerned shall be so informed in a written statement. 2. The person concerned shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her. 3. The person may be represented by counsel during the process established under this rule.

Rule 28 – Suspension from Duty Where an allegation against a person who is the subject of a complaint is of a sufficiently serious nature, the person may be suspended from duty pending the final decision of the competent organ.

Rule 29 – Procedure in the Event of a Request for Removal from Office 1. In the case of a judge, the Registrar or a Deputy Registrar, the question of removal from office shall be put to a vote at a plenary session. 2. The Presidency shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation adopted in the case of a judge, and any decision adopted in the case of the Registrar or a Deputy Registrar. 3. The Prosecutor shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation he or she makes in the case of a Deputy Prosecutor. 4. Where the conduct is found not to amount to serious misconduct or a serious breach of duty, it may be decided in accordance with article 47 that the person concerned has engaged in misconduct of a less serious nature and a disciplinary measure imposed.

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Rule 30 – Procedure in the Event of a Request for Disciplinary Measures 1. In the case of a judge, the Registrar or a Deputy Registrar, any decision to impose a disciplinary measure shall be taken by the Presidency. 2. In the case of the Prosecutor, any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties. 3. In the case of a Deputy Prosecutor: (a) Any decision to give a reprimand shall be taken by the Prosecutor; (b) Any decision to impose a pecuniary sanction shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor. 4. Reprimands shall be recorded in writing and shall be transmitted to the President of the Bureau of the Assembly of States Parties.

Rule 31 – Removal from Office Once removal from office has been pronounced, it shall take effect immediately. The person concerned shall cease to form part of the Court, including for unfinished cases in which he or she was taking part.

Rule 32 – Disciplinary Measures The disciplinary measures that may be imposed are: (a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned.

Subsection 2 – Excusing, Disqualification, Death and Resignation Rule 33 – Excusing of a Judge, the Prosecutor or a Deputy Prosecutor 1. A judge, the Prosecutor or a Deputy Prosecutor seeking to be excused from his or her functions shall make a request in writing to the Presidency, setting out the grounds upon which he or she should be excused. 2. The Presidency shall treat the request as confidential and shall not make public the reasons for its decision without the consent of the person concerned.

Rule 34 – Disqualification of a Judge, the Prosecutor or a Deputy Prosecutor 1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following:

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(a)

Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties; (b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party; (c) Performance of functions, prior to taking office, during which he or she could be expected to have formed an opinion on the case in question, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned; (d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned. 2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions. 3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber.

Rule 35 – Duty of a Judge, the Prosecutor or a Deputy Prosecutor to Request to Be Excused Where a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused and shall not wait for a request for disqualification to be made in accordance with article 41, paragraph 2, or article 42, paragraph 7, and rule 34. The request shall be made and the Presidency shall deal with it in accordance with rule 33.

Rule 36 – Death of a Judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties of the death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar.

Rule 37 – Resignation of a Judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall communicate to the Presidency, in writing, his or her decision to resign. The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties.

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2. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall endeavour to give notice of the date on which his or her resignation will take effect at least six months in advance. Before the resignation of a judge takes effect, he or she shall make every effort to discharge his or her outstanding responsibilities.

Subsection 3 – Replacements and Alternate Judges Rule 38 – Replacements 1. A judge may be replaced for objective and justified reasons, inter alia: (a) Resignation; (b) Accepted excuse; (c) Disqualification; (d) Removal from office; (e) Death. 2. Replacement shall take place in accordance with the pre-established procedure in the Statute, the Rules and the Regulations.

Rule 39 – Alternate Judges Where an alternate judge has been assigned by the Presidency to a Trial Chamber pursuant to article 74, paragraph 1, he or she shall sit through all proceedings and deliberations of the case, but may not take any part therein and shall not exercise any of the functions of the members of the Trial Chamber hearing the case, unless and until he or she is required to replace a member of the Trial Chamber if that member is unable to continue attending. Alternate judges shall be designated in accordance with a procedure pre-established by the Court.

Section V – Publication, Languages and Translation Rule 40 – Publication of Decisions in Official Languages of the Court 1. For the purposes of article 50, paragraph 1, the following decisions shall be considered as resolving fundamental issues: (a) All decisions of the Appeals Division; (b) All decisions of the Court on its jurisdiction or on the admissibility of a case pursuant to articles 17, 18, 19 and 20; (c) All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76; (d) All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d). 2. Decisions on confirmation of charges under article 61, paragraph 7, and on offences against the administration of justice under article 70, paragraph 3, shall be published in all the official languages of the Court when the Presidency determines that they resolve fundamental issues.

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3. The Presidency may decide to publish other decisions in all the official languages when such decisions concern major issues relating to the interpretation or the implementation of the Statute or concern a major issue of general interest.

Rule 41 – Working Languages of the Court 1. For the purposes of article 50, paragraph 2, the Presidency shall authorize the use of an official language of the Court as a working language when: (a) That language is understood and spoken by the majority of those involved in a case before the Court and any of the participants in the proceedings so requests; or (b) The Prosecutor and the defence so request. 2. The Presidency may authorize the use of an official language of the Court as a working language if it considers that it would facilitate the efficiency of the proceedings.

Rule 42- Translation and Interpretation Services The Court shall arrange for the translation and interpretation services necessary to ensure the implementation of its obligations under the Statute and the Rules.

Rule 43 – Procedure Applicable to the Publication of Documents of the Court The Court shall ensure that all documents subject to publication in accordance with the Statute and the Rules respect the duty to protect the confidentiality of the proceedings and the security of victims and witnesses.

Chapter 3 – Jurisdiction and Admissibility Section I – Declarations and Referrals Relating to Articles 11, 12, 13 and 14 Rule 44 – Declaration Provided for in Article 12, Paragraph 3 1. The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3. 2. When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the

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situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply.

Rule 45 – Referral of a Situation to the Prosecutor A referral of a situation to the Prosecutor shall be in writing.

Section II – Initiation of Investigations under Article 15 Rule 46 – Information Provided to the Prosecutor under Article 15, Paragraphs 1 and 2 Where information is submitted under article 15, paragraph 1, or where oral or written testimony is received pursuant to article 15, paragraph 2, at the seat of the Court, the Prosecutor shall protect the confidentiality of such information and testimony or take any other necessary measures, pursuant to his or her duties under the Statute.

Rule 47 – Testimony under Article 15, Paragraph 6 1. The provisions of rules 111 and 112 shall apply, mutatis mutandis, to testimony received by the Prosecutor pursuant to article 15, paragraph 2. 2. When the Prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently, he or she may request the PreTrial Chamber to take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to appoint a counsel or a judge from the Pre-Trial Chamber to be present during the taking of the testimony in order to protect the rights of the defence. If the testimony is subsequently presented in the proceedings, its admissibility shall be governed by article 69, paragraph 4, and given such weight as determined by the relevant Chamber.

Rule 48 – Determination of Reasonable Basis to Proceed with an Investigation under Article 15, Paragraph 3 In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in article 53, paragraph 1 (a) to (c).

Rule 49 – Decision and Notice under Article 15, Paragraph 6 1. Where a decision under article 15, paragraph 6, is taken, the Prosecutor shall promptly ensure that notice is provided, including reasons for his or her decision, in a manner that prevents any danger to the safety, well-being and privacy of those who provided information to him or her under article 15, paragraphs 1 and 2, or the integrity of investigations or proceedings.

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2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence.

Rule 50 – Procedure for Authorization by the Pre-Trial Chamber of the Commencement of the Investigation 1. When the Prosecutor intends to seek authorization from the Pre-Trial Chamber to initiate an investigation pursuant to article 15, paragraph 3, the Prosecutor shall inform victims, known to him or her or to the Victims and Witnesses Unit, or their legal representatives, unless the Prosecutor decides that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. The Prosecutor may also give notice by general means in order to reach groups of victims if he or she determines in the particular circumstances of the case that such notice could not pose a danger to the integrity and effective conduct of the investigation or to the security and well-being of victims and witnesses. In performing these functions, the Prosecutor may seek the assistance of the Victims and Witnesses Unit as appropriate. 2. A request for authorization by the Prosecutor shall be in writing. 3. Following information given in accordance with sub-rule 1, victims may make representations in writing to the Pre-Trial Chamber within such time limit as set forth in the Regulations. 4. The Pre-Trial Chamber, in deciding on the procedure to be followed, may request additional information from the Prosecutor and from any of the victims who have made representations, and, if it considers it appropriate, may hold a hearing. 5. The Pre-Trial Chamber shall issue its decision, including its reasons, as to whether to authorize the commencement of the investigation in accordance with article 15, paragraph 4, with respect to all or any part of the request by the Prosecutor. The Chamber shall give notice of the decision to victims who have made representations. 6. The above procedure shall also apply to a new request to the Pre-Trial Chamber pursuant to article 15, paragraph 5.

Section III – Challenges and Preliminary Rulings under Articles 17, 18 and 19 Rule 51 – Information Provided under Article 17 In considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia, information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted.

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Rule 52 – Notification Provided for in Article 18, Paragraph 1 1. Subject to the limitations provided for in article 18, paragraph 1, the notification shall contain information about the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2. 2. A State may request additional information from the Prosecutor to assist it in the application of article 18, paragraph 2. Such a request shall not affect the one-month time limit provided for in article 18, paragraph 2, and shall be responded to by the Prosecutor on an expedited basis.

Rule 53 – Deferral Provided for in Article 18, Paragraph 2 When a State requests a deferral pursuant to article 18, paragraph 2, that State shall make this request in writing and provide information concerning its investigation, taking into account article 18, paragraph 2. The Prosecutor may request additional information from that State.

Rule 54 – Application by the Prosecutor under Article 18, Paragraph 2 1. An application submitted by the Prosecutor to the Pre-Trial Chamber in accordance with article 18, paragraph 2, shall be in writing and shall contain the basis for the application. The information provided by the State under rule 53 shall be communicated by the Prosecutor to the Pre-Trial Chamber. 2. The Prosecutor shall inform that State in writing when he or she makes an application to the Pre-Trial Chamber under article 18, paragraph 2, and shall include in the notice a summary of the basis of the application.

Rule 55 – Proceedings Concerning Article 18, Paragraph 2 1. The Pre-Trial Chamber shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. 2. The Pre-Trial Chamber shall examine the Prosecutor’s application and any observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2, and shall consider the factors in article 17 in deciding whether to authorize an investigation. 3. The decision and the basis for the decision of the Pre-Trial Chamber shall be communicated as soon as possible to the Prosecutor and to the State that requested a deferral of an investigation.

Rule 56 – Application by the Prosecutor Following Review under Article 18, Paragraph 3 1. Following a review by the Prosecutor as set forth in article 18, paragraph 3, the Prosecutor may apply to the Pre-Trial Chamber for authorization in accordance with

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article 18, paragraph 2. The application to the Pre-Trial Chamber shall be in writing and shall contain the basis for the application. 2. Any further information provided by the State under article 18, paragraph 5, shall be communicated by the Prosecutor to the Pre-Trial Chamber. 3. The proceedings shall be conducted in accordance with rules 54, sub-rule 2, and 55.

Rule 57 – Provisional Measures under Article 18, Paragraph 6 An application to the Pre-Trial Chamber by the Prosecutor in the circumstances provided for in article 18, paragraph 6, shall be considered ex parte and in camera. The Pre-Trial Chamber shall rule on the application on an expedited basis.

Rule 58 – Proceedings under Article 19 1. A request or application made under article 19 shall be in writing and contain the basis for it. 2. When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first. 3. The Court shall transmit a request or application received under sub-rule 2 to the Prosecutor and to 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. 4. The Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admissibility.

Rule 59 – Participation in Proceedings under Article 19, Paragraph 3 1. For the purpose of article 19, paragraph 3, the Registrar shall inform the following of any question or challenge of jurisdiction or admissibility which has arisen pursuant to article 19, paragraphs 1, 2 and 3: (a) Those who have referred a situation pursuant to article 13; (b) The victims who have already communicated with the Court in relation to that case or their legal representatives. 2. The Registrar shall provide those referred to in sub-rule 1, in a manner consistent with the duty of the Court regarding the confidentiality of information, the protection of any person and the preservation of evidence, with a summary of the

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grounds on which the jurisdiction of the Court or the admissibility of the case has been challenged. 3. Those receiving the information, as provided for in sub-rule 1, may make representation in writing to the competent Chamber within such time limit as it considers appropriate.

Rule 60 – Competent Organ to Receive Challenges If a challenge to the jurisdiction of the Court or to the admissibility of a case is made after a confirmation of the charges but before the constitution or designation of the Trial Chamber, it shall be addressed to the Presidency, which shall refer it to the Trial Chamber as soon as the latter is constituted or designated in accordance with rule 130.

Rule 61 – Provisional Measures under Article 19, Paragraph 8 When the Prosecutor makes application to the competent Chamber in the circumstances provided for in article 19, paragraph 8, rule 57 shall apply.

Rule 62 – Proceedings under Article 190, Paragraph 10 1. If the Prosecutor makes a request under article 19, paragraph 10, he or she shall make the request to the Chamber that made the latest ruling on admissibility. The provisions of rules 58, 59 and 61 shall be applicable. 2. The State or States whose challenge to admissibility under article 19, paragraph 2, provoked the decision of inadmissibility provided for in article 19, paragraph 10, shall be notified of the request of the Prosecutor and shall be given a time limit within which to make representations.

Chapter 4 – Provisions Relating to Various Stages of the Proceedings Section I - Evidence Rule 63 – General Provisions Relating to Evidence 1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers. 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69. 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7.

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4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence. 5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21.

Rule 64 – Procedure Relating to the Relevance or Admissibility of Evidence 1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court. 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1. 3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber.

Rule 65 – Compellability of Witnesses 1. A witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules, in particular rules 73, 74 and 75. 2. Rule 171 applies to a witness appearing before the Court who is compellable to provide testimony under sub-rule 1.

Rule 66 – Solemn Undertaking 1. Except as described in sub-rule 2, every witness shall, in accordance with article 69, paragraph 1, make the following solemn undertaking before testifying: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth.” 2. A person under the age of 18 or a person whose judgement has been impaired and who, in the opinion of the Chamber, does not understand the nature of a solemn undertaking may be allowed to testify without this solemn undertaking if the Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth. 3. Before testifying, the witness shall be informed of the offence defined in article 70, paragraph 1 (a).

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Rule 67 – Live Testimony by Means of Audio or Video-Link Technology 1. In accordance with article 69, paragraph 2, a Chamber may allow a witness to give viva voce (oral) testimony before the Chamber by means of audio or video technology, provided that such technology permits the witness to be examined by the Prosecutor, the defence, and by the Chamber itself, at the time that the witness so testifies. 2. The examination of a witness under this rule shall be conducted in accordance with the relevant rules of this chapter. 3. The Chamber, with the assistance of the Registry, shall ensure that the venue chosen for the conduct of the audio or video-link testimony is conducive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness.

Rule 68 – Prior Recorded Testimony When the Pre-Trial Chamber has not taken measures under article 56, the Trial Chamber may, in accordance with article 69, paragraph 2, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, provided that: (a) If the witness who gave the previously recorded testimony is not present before the Trial Chamber, both the Prosecutor and the defence had the opportunity to examine the witness during the recording; or (b) If the witness who gave the previously recorded testimony is present before the Trial Chamber, he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.

Rule 69 – Agreements as to Evidence The Prosecutor and the defence may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness or other evidence is not contested and, accordingly, a Chamber may consider such alleged fact as being proven, unless the Chamber is of the opinion that a more complete presentation of the alleged facts is required in the interests of justice, in particular the interests of the victims.

Rule 70 – Principles of Evidence in Cases of Sexual Violence In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles: (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim.s ability to give voluntary and genuine consent;

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Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent; Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence; Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.

Rule 71 – Evidence of Other Sexual Conduct In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.

Rule 72 – In Camera Procedure to Consider Relevance or Admissibility of Evidence 1. Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case. 2. In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim. 3. Where the Chamber determines that the evidence referred to in sub-rule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70.

Rule 73 – Privileged Comunications and Information 1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless: (a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.

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2. Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that: (a) Communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure; (b) Confidentiality is essential to the nature and type of relationship between the person and the confidant; and (c) Recognition of the privilege would further the objectives of the Statute and the Rules. 3. In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion. 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless: (a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or (b) Such information, documents or other evidence is contained in public statements and documents of ICRC. 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees. 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court.s and ICRC’s functions.

Rule 74 – Self-Incrimination by a Witness 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony. 2. Where the Court determines that an assurance with respect to self-incrimination should be provided to a particular witness, it shall provide the assurances under sub-

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rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e). 3. (a) A witness may object to making any statement that might tend to incriminate him or her. (b) Where the witness has attended after receiving an assurance under subrule 2, the Court may require the witness to answer the question or questions. (c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions: (i) Will be kept confidential and will not be disclosed to the public or any State; and (ii) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71. 4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness. 5. In determining whether to require the witness to answer, the Chamber shall consider: (a) The importance of the anticipated evidence; (b) Whether the witness would be providing unique evidence; (c) The nature of the possible incrimination, if known; and (d) The sufficiency of the protections for the witness, in the particular circumstances. 6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters. 7. In order to give effect to the assurance, the Chamber shall: (a) Order that the evidence of the witness be given in camera; (b) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71; (c) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b); (d) Order the sealing of any record of the proceedings; and (e) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed. 8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness.

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9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of self-incrimination before the witness testifies and the Chamber may take the measures outlined in sub-rule 7. 10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule.

Rule 75 – Incrimination by Family Members 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement. 2. In evaluating the testimony of a witness, a Chamber may take into account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer.

Section II – Disclosure Rule 76 – Pre-Trial Disclosure Relating to Prosecution Witnesses 1. The Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. This shall be done sufficiently in advance to enable the adequate preparation of the defence. 2. The Prosecutor shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses. 3. The statements of prosecution witnesses shall be made available in original and in a language which the accused fully understands and speaks. 4. This rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82.

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Rule 76: Inter partes nature of disclosure proceedings – Necessity to file a copy of requests and responses in order to ensure legal certainty

R76-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp. 3,6:

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CONSIDERING that, despite the inter partes nature of the disclosure process, in order to have legal certainty of the content of the requests of the Defence for materials and of the responses of the Prosecution, a copy of any such request and response made since the issuance of the present decision must be filed in the record of the case of the Prosecutor vs Thomas Lubanga Dyilo; […] ORDER the Defence to file in the record of the case a copy of any request for materials made to the Prosecution since the issuance of the present decision; ORDER the Prosecution to file in the record of the case a copy of any response to any request for materials made by the Defence after the issuance of the present decision;

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Rule 76(1): Scope of disclosure – Definition of “Prior statements”

R76-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, p. 4:

CONSIDERING that in the view of the single judge the notion of "prior statements" in rule 76 of the Rules includes statements taken by entities other than the Prosecution; that rule 76 of the Rules does not limit the Prosecution's disclosure obligations to prior statements "in the possession or control of the Prosecutor"; and that, therefore, the Prosecution is under an obligation to make its utmost effort to obtain the prior statements of those witnesses on whom the Prosecution intends to rely at the confirmation hearing which have been taken by other entities;

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Rule 76(1): Scope of disclosure – No distinction between witnesses the Prosecution intends to call to testify and those whose statements the Prosecution intends to rely on – Related course of action by the Prosecution

R76-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 93-94, 100-106:

DECIDE that, pursuant to rule 76 of the Rules, and unless the single judge authorises otherwise under rule 81 of the Rules, the Prosecution must disclose to the Defence the names and the statements of the witnesses on which it intends to rely at the confirmation hearing, regardless of whether the Prosecution intends to call them to testify or to rely on their redacted statements, non-redacted statements, or a written summary of the evidence contained in those statements. […]

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7- As soon as the Prosecution decides to rely on a given witness at the confirmation hearing, the Prosecution shall: (i) transmit, pursuant to rule 76 of the Rules, to the Defence the name of that witness and copies of his or her statements in the original and in a language that Thomas Lubanga Dyilo fully understands and speaks; or (ii) request authorisation under rule 81 not to provide the name of that witness to the Defence and to provide the Defence with redacted versions of his or her statements; 8- Subject to a determination under rule 81 of the Rules, the Prosecution, pursuant to rule 76 of the Rules, shall disclose to the Defence no later than 2 June 2006 the names and the statements of the witnesses on whom the Prosecution intends to rely at the confirmation hearing according to the document filed pursuant to rule 121 (3) of the Rules; 9- As soon as practicable after the full or the redacted versions of the statements have been transmitted to the Defence pursuant to rule 76 of the Rules, the Prosecution shall file in the record of the case against Thomas Lubanga Dyilo: (i) the original statements which, if so authorised by the single judge pursuant to rule 81 of the Rules, shall be filed ex parte, only available to the Prosecution; (ii) the redacted versions of the statements, if previous authorisation has been granted by the single judge, pursuant to rule 81 of the Rules; (iii) a copy of the statements in a language that Thomas Lubanga Dyilo fully understands and speaks, which may be submitted in a redacted version if so authorised by the single judge, pursuant to rule 81 of the Rules; and (iv) an electronic copy of the statements under (i), (ii) and (iii) above, including such details required by the Draft Protocol for the Presentation of Evidence; […] 111.4. Stricto Sensu Disclosure pursuant to Rule 76 of the Rules 93. Rule 76 (1) of the Rules imposes on the Prosecution the obligation to "provide the defence the names of the witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses". Furthermore, according to rule 76 (1) of the Rules, the Prosecution "shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses." 94. Regarding the Prosecution's obligation of disclosure to the Defence, the single judge does not agree with the distinction the Prosecution draws between the names and statements of certain types of witnesses. That is: (i) witnesses that it intends to call to testify, and (ii) those on which it intends to rely at the confirmation hearing by way of non-redacted or redacted versions of their statements or summaries thereof. In the view of the single judge, a number of reasons explain why the

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Prosecution's disclosure obligation, under rule 76 of the Rules, extends to all witnesses on whom the Prosecution intends to rely at the confirmation hearing. This holds true regardless of whether the Prosecution (i) intends to call them to testify or (ii) to rely on the non-redacted or redacted versions of their statements, or summaries thereof. […] 100. Hence, in the view of the single judge, although rule 76 (1) of the Rules expressly refers to "witnesses whom the Prosecutor intends to call to testify", it can only be considered to cover any witness on whose written or oral testimony the Prosecution intends to rely at the confirmation hearing(98) in light of: (i) article 61 (3), (5) and (6), the chapeau of article 67 (1), and articles 67(1) (b) and 68 (5) of the Statute ; and (ii) the fact that rule 77 of the Rules includes the evidence on which the Prosecution intends to rely at the confirmation hearing other than the names and statements of the Prosecution's witnesses. (99) 101. The single judge considers that, as a general rule, statements must be disclosed to the Defence in full. Any restriction on disclosure to the Defence of the names or portions, or both, of the statements of the witnesses on which the Prosecution intends to rely at the confirmation hearing must be authorised by the single judge under the procedure provided for in rule 81 of the Rules. 102. In the view of the single judge, a literal interpretation of rule 76 (1), (2) and (3) leads to the conclusion that the Prosecution's obligation to disclose under rule 76 consists of "providing" the Defence with the names and statements of the Prosecution's witnesses both "in original and in a language which the accused fully understands and speaks". 103. Under rule 76, the Prosecution has the obligation only to provide the Defence with "copies" of the relevant statements and not the originals. However, as previously mentioned, the originals must be filed by the Prosecution in the record of the case as soon as practicable after copies have been provided to the Defence as part of the process for communicating to the Pre-Trial Chamber the evidence which the Prosecution intends to use at the confirmation hearing. Upon request, and subject to any ruling under rule 81 of the Rules, the Registry must ensure that the Defence and any natural or legal entity that might in the future be granted the procedural status of victim in the case have access to them. 104. On the issue of timing, rule 76 (1) of the Rules provides that the Prosecution must disclose the statements of the witnesses on which it intends to rely at the confirmation hearing "sufficiently in advance to enable the adequate preparation of the defence". In the view of the single judge, the time limit provided for in rule 76 is a concrete application of the broader right enshrined in article 67 (1) (b) "to have adequate time [...] for the preparation of the defence", which both the Prosecution and the Defence have agreed also applies to the confirmation hearing. 105. However, the single judge also recalls that article 61 (4) of the Statute provides that the Prosecution may continue the investigation until the start of the confirmation hearing. Accordingly, the mandatory time limit for the Prosecution to decide on which evidence it intends to rely at the confirmation hearing and to provide the

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Defence with the Prosecution Charging Document and List of Evidence is no later than 30 days before the date of the hearing, this being extended to no later than 15 days before the date of the hearing in cases of "new evidence" or amended charges. 106. The single judge considers therefore that in order to satisfy the interest of the Defence to be informed as soon and as fully as possible of the Prosecution's case to be presented at the confirmation hearing, the Prosecution must proceed according to paragraphs 7, 8 and 9 of the timetable set out in the disposition of this Decision. ————————— (98) In a different context, such as the ICTY, where the Defence is not expected to participate before an indictment is confirmed, it has been highlighted that the obligation to disclose witnesses statements "is intended to assist the Defence in its understanding of the case against the accused (...) and should be provided to the Defence as far in advance of the trial as possible, even if it means that statements are disclosed sequentially or that some of the witnesses whose statements are disclosed are never called (May, R and Wierde, M., International Criminal Evidence. Transnational Publishers, 2002, p. 75). (99) At the hearing on 24 April 2006, the parties agreed that rule 76 of the Rules deals with disclosure of statements of the Prosecution witnesses, whereas rule 77 of the Rules refers to inspection of books, maps, photographs and other tangible objects on which the Prosecution intends to rely at the confirmation hearing. See ICC-01/04-01/06-T-4 EN, p. 57, lines 12 to 16 and p. 60, lines 16 to 22.

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Rule 76(1): Scope of disclosure – Information given by witnesses to NGOs does not amount to “prior statement” under Rule 76(1)

R76-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials, 2 November 2006, pp.3-4:

CONSIDERING that in the view of the Chamber the information given by the witnesses on whom the Prosecution intends to rely at the confirmation hearing to certain NGOs does not amount to a "prior statement" in the sense of rule 76 (1) of the Rules of Procedure and Evidence;

Rule 77- Inspection of Material in Possession or Control of the Prosecutor The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.

PRE-TRIAL CHAMBERS x

Rule 77: Scope of inspection – “In the possession or control of the Prosecutor” – Inspection of materials which, though

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material for the Defence, are not in the possession of the Prosecutor (denied)

R77-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp.4-5:

CONSIDERING, however, that the Defence Request for Materials does not refer to "prior statements" within the meaning of rule 76 of the Rules because: (i) it refers to notes taken by certain journalists, non-govermental organisations and MONUC officials of their interviews with witnesses included in the Prosecution Amended List of Evidence as filed on 20 October 2006; and (ii) the relevant witnesses did not have an opportunity to re-read such notes and did not sign them; CONSIDERING that, insofar as such notes refer to interviews with witnesses included in the Prosecution Amended List of Evidence as filed on 20 October 2006, the Chamber considers that they could be material for the Defence's preparation of the confirmation hearing; CONSIDERING however that the said notes do not fall within the scope of article 67 (2) of the Statute or rule 77 of the Rules because, as required by the said provisions, they are not "in the possession or control of the Prosecutor";

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Rule 77: Scope of inspection – NGO reports referring to Prosecution witnesses (granted)

R77-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request for Disclosure of Exculpatory Materials, 2 November 2006, p. 4:

CONSIDERING, nevertheless, that in the view of the Chamber, the Prosecution must give access to the Defence, pursuant to rule 77 of the Rules, to those NGO reports within the possession or control of the Prosecution which refer by name as one of the sources of the said reports to any of the witnesses (i) on whom the Prosecution intends to rely at the confirmation hearing; and (ii) whose identity has been revealed to the Defence;

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Rule 77: Modalities of inspection - Inspection record – Related course of action by the Prosecution

R77-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 107-118:

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DECIDE that, pursuant to rule 77 of the Rules, the Defence shall inspect evidence and materials in the possession or control of the Prosecution on the premises of the Prosecution at a time and in a manner agreed by the parties; that, at the request of the Defence during inspection, the Prosecution shall provide to the Defence electronic copies, or electronic photographs in the case of tangible objects, of all evidence or material subject to inspection; and that as soon as practicable after each act of inspection the Prosecution shall file an inspection report, signed by both parties, which shall include a list of the items inspected, their reference numbers and a brief account of how inspection took place, including the fact that the Defence received the electronic copies or photographs requested; […] 4- As soon as the Prosecution has identified the evidence it intends to use at the confirmation hearing, or other materials referred to in rule 77 of the Rules, and which must be subject to inspection pursuant to such a rule: (i) the Defence shall be permitted to inspect such evidence and materials; or (ii) the Prosecution shall: a) request, under rule 81 of the Rules, an exception to the requirement to allow inspection of evidence and materials under rule 77; or b) in case of materials that the Prosecution does not intend to use at the confirmation hearing, bring to the attention of the Chamber any delay in inspection caused by the procedure under article 54 (3) (e), 72 or 93 of the Statute; 5- Subject to a determination under rule 81, the Prosecution shall allow the Defence to inspect no later than 2 June 2006 the evidence which is subject to inspection under rule 77 of the Rules and which the Prosecution has indicated in the document filed pursuant to rule 121 (3) of the Rules that it intends to use at the confirmation hearing; 6- The parties shall make every effort to agree on the frequency of inspection under rule 77 of the Rules with a view to ensuring that the Defence is allowed to inspect as soon as practicable and no later than 2 June 2006 most of the materials obtained from or belonging to Thomas Lubanga Dyilo or material to the Defence preparation; […] 111.5. Inspection pursuant to Rule 77 of the Rules 107. In the view of the single judge, rule 77 of the Rules covers evidence, other than the statements of the Prosecution's witnesses, on which the Prosecution intends to rely at the confirmation hearing. It also covers those materials in the possession or control of the Prosecution that were obtained from or belong to Thomas Lubanga Dyilo or are otherwise material to the Defence's preparation for the confirmation hearing. 108. The single judge considers that a literal interpretation of rules 76 and 77 of the Rules shows that while rule 76 requires the Prosecution to "provide" the Defence with the names and copies of the prior statements of the Prosecution witnesses,

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rule 77 requires the Prosecution only to "permit the defence to inspect" the evidence and materials covered by this rule. 109. Furthermore, the single judge considers that the inclusion of these two provisions in Chapter 4, Section II, "Disclosure", on the "provisions related to various stages of the proceedings" of the Rules is fully consistent with the fact that the disclosure process is carried out by recourse to two different modalities, that is, stricto sensu disclosure and inspection. 110. The distinction between these two modalities is hardly new, as it can be traced back, inter alia, to Rule 66 (A) and (B) of the Rules and Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia and to several national jurisdictions.(100) 111. In the view of the single judge, the Prosecution has defined its obligation as narrowly as possible under rule 77 of the Rules by asserting that its obligation is limited to giving access to the Defence to the relevant evidence or materials on the premises of the Office of the Prosecutor. 112. However, the single judge considers that other interpretations of rule 77 of the Rules, which are as reasonable as the one embraced by the Prosecution from a literal approach, are far more consistent with the key role of the disclosure process, which is to guarantee Thomas Lubanga Dyilo's right to a fair trial and to ensure that the Defence has adequate time and facilities to prepare for the confirmation hearing. 113. The single judge considers that the Prosecution's obligation "to permit the Defence to inspect" is two-fold. On the one hand, the Prosecution must permit the Defence to carry out an inspection on the premises of the Office of the Prosecution of the originals of the books, documents, photographs and tangible objects in its possession or control and on which it intends to rely at the confirmation hearing or which are material to the Defence's preparation for the confirmation hearing or which were obtained from or belong to Thomas Lubanga Dyilo. 114. On the other hand, during or immediately after inspection, upon request of the Defence, the Prosecution must provide it with an electronic copy of any book, document and photograph, or an electronic photograph of any tangible object which is subject to inspection. 115. In addition, as soon as practicable after the Prosecution has discharged its inspection obligation vis-à-vis the Defence, it must, as previously stated in paragraphs 44 to 47, file in the record of the case the originals and an electronic copy (or an electronic photograph in the case of tangible objects) of those items which it intends to introduce into evidence at the confirmation hearing. 116. With regard to the timing of the inspection, the single judge notes that rule 77 of the Rules, unlike rule 76, does not provide for any specific time-limit. However, the single judge considers that both rules 76 and 77 seek to satisfy the ultimate interest of the Defence to be informed as soon and as fully as possible of the Prosecution's case to be presented at the confirmation hearing. On the issue of materials which the Prosecution does not intend to present at the confirmation hearing, rule 77 of the Rules, like article 67 (1) (b) of the Statute, seeks to ensure that the Defence is in a position to prepare adequately for the confirmation hearing.

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117. Accordingly, the single judge holds that as soon as it decides to rely on any book, document, photograph or tangible object at the confirmation hearing, the Prosecution must permit the Defence to inspect them in accordance with paragraphs 4 and 5 of the timetable set out in the disposition of this Decision. In relation to materials on which it does not intend to rely at the confirmation hearing, the Prosecution must proceed in accordance with paragraphs 4 and 6 of the timetable. 118. In the view of the single judge, under rules 79 and 80 of the Rules, the Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends to rely at trial. However, because of its current knowledge of its case against Thomas Lubanga Dyilo, the Prosecution must be already in a position to identify most of the books, documents, photographs or other tangible objects in its possession or control which are material to the Defence's preparation. ————————— (100) For instance, in relation to the law on disclosure in England and Wales, the distinction between these two modalities has been explained in the following terms: "The A-G's Guidelines [Attorney General Guidelines] stated that if the used material to be made available to the defence did not exceed about 50 pages, disclosure should be by way of provision of a copy If the material exceeded 50 pages, the defence solicitor should be given an opportunity to inspect it at a convenient police station or at the office of the prosecuting solicitor . The procedure adopted by the CPS [Crown Prosecution Services] in most cases is to provide copies of statements and records of interviews together with a schedule which lists the document held by the police. If the defence wishes to examine the documents, they may do so at the police station; and if they require copies of certain documents, then, provided the request is reasonable, it will be complied with in accordance paragraph 5 of the Guidelines." (Niblett, J , Disclosure m Criminal Proceedings, Blackstone Press Limited, 2004, p 105).

Rule 78 – Inspection of Material in Possession of the Defence The defence shall permit the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial.

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Rule 78: Modalities of inspection – Inspection record – Timetable fixed by the Pre-Trial Chamber

R78-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 134-135, 137-139:

DECIDE that, pursuant to rule 78 of the Rules, the Prosecutor shall inspect the evidence on which the Defence intends to rely at the confirmation hearing at a location and time and in a manner agreed by the parties; that, at the request of the Prosecution during inspection, the Defence shall provide to the Prosecution electronic copies or photographs of all evidence or material inspected; and that, as

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soon as practicable after inspection, the Defence shall file in the record of the case against Thomas Lubanga Dyilo the evidence subject to inspection in the same manner as prescribed above for filing the evidence on which the Prosecution intends to rely at the confirmation hearing; […] DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […] 16- Subject to a determination under rule 81 of the Rules, the Defence shall as soon as practicable after 12 June 2006 and no later than 20 June 2006 allow the Prosecution, pursuant to rule 78 of the Rules, to inspect the books, documents, photographs and any tangible objects which the Defence intends to present at the confirmation hearing; […] 134. Rule 78 states that the Defence is obliged "to permit the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing." The single judge finds that, save for the question of timing and the absence of any need for the Defence to file inspection reports in the record of the case, the system of inspection provided for under rule 78 of the Rules must follow the system described in 111.5 for inspection under rule 77 of the Rules. 135. The single judge considers that, because rule 78 of the Rules mirrors the content of rule 77 of the Rules, the obligation of the Defence under Rule 78 of the Rules does not extend to the witness statements on which the Defence intends to rely at the confirmation hearing. […] 137. The single judge considers that the inspection of the evidence on which the parties intend to rely at the confirmation hearing pursuant to rules 77 and 78 could be facilitated if the parties agree: (i) to gain access to the relevant evidence via the Registry after the proposing party has filed it in the record of the case; or, at the very least, (ii) to obtain from the Registry, rather than from the proposing party, the electronic copies (or photographs in the case of tangible objects) of the relevant evidence after inspection and after such evidence has been filed in the record of the case. However, in the view of the single judge, this practice, which will closely mirror the interim disclosure system, must be agreed by the parties and cannot be imposed on them by the single judge. 138. As for the timing of the inspection, the single judge notes that according to rule 121 (6) of the Rules, if the Defence "intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing." Moreover, the Defence "shall

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provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor." 139. Therefore, in the view of the single judge, the Defence is obliged only to permit the Prosecution to inspect any book, document, photograph or tangible object on which the Defence intends to rely at the confirmation hearing as soon as practicable after the Defence has filed its list of evidence as provided for in rule 121 (6) of the Rules.

Rule 79 – Disclosure by the Defence 1. The defence shall notify the Prosecutor of its intent to: (a) Raise the existence of an alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; or (b) Raise a ground for excluding criminal responsibility provided for in article 31, paragraph 1, in which case the notification shall specify the names of witnesses and any other evidence upon which the accused intends to rely to establish the ground. 2. With due regard to time limits set forth in other rules, notification under subrule 1 shall be given sufficiently in advance to enable the Prosecutor to prepare adequately and to respond. The Chamber dealing with the matter may grant the Prosecutor an adjournment to address the issue raised by the defence. 3. Failure of the defence to provide notice under this rule shall not limit its right to raise matters dealt with in sub-rule 1 and to present evidence. 4. This rule does not prevent a Chamber from ordering disclosure of any other evidence.

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Rule 79(1): Defence’s intent to raise defence of alibi or ground for excluding criminal responsibility under Article 31(1) – Notice to the Prosecution – No need to reveal before the confirmation hearing

R79-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 118, 140:

118. In the view of the single judge, under rules 79 and 80 of the Rules, the Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends to rely at trial. […] […]

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140. Finally, the single judge considers that, insofar as the Defence has not yet raised the existence of an alibi under rule 79 of the Rules, nor any of the defences provided for under article 31 (1) of the Statute, there is no need to address in this Decision the questions of the scope, timing and format of the Defence disclosure obligation under rule 79 of the Rules.

Rule 80 – Procedures for Raising a Ground for Excluding Criminal Responsibility under Article 31, paragraph 3 1. The defence shall give notice to both the Trial Chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31, paragraph 3. This shall be done sufficiently in advance of the commencement of the trial to enable the Prosecutor to prepare adequately for trial. 2. Following notice given under sub-rule 1, the Trial Chamber shall hear both the Prosecutor and the defence before deciding whether the defence can raise a ground for excluding criminal responsibility. 3. If the defence is permitted to raise the ground, the Trial Chamber may grant the Prosecutor an adjournment to address that ground.

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Rule 80(1): Defence’s intent to raise ground for excluding criminal responsibility under Article 31(3) – Notice to the Prosecution – No need to reveal it before the confirmation hearing

R80-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, para. 118:

118. In the view of the single judge, under rules 79 and 80 of the Rules, the Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends to rely at trial. […]

Rule 81 – Restrictions on Disclosure 1. Reports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure. 2. Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex

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parte basis by the Chamber. However, the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 3. Where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, such information shall not be disclosed, except in accordance with those articles. When the disclosure of such information may create a risk to the safety of the witness, the Court shall take measures to inform the witness in advance. 4. The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial. 5. Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused. 6. Where material or information is in the possession or control of the defence which is subject to disclosure, it may be withheld in circumstances similar to those which would allow the Prosecutor to rely on article 68, paragraph 5, and a summary thereof submitted instead. Such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the Prosecutor.

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Rule 81: Restrictions on disclosure – Redactions – Redaction of documents shall be expressly authorised by the Chamber before their disclosure – No ex officio redaction by the Prosecution – Redactions are the exception and not the rule

R81-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Practice to Provide to the Defence Redacted Versions of Evidence and Materials Without Authorisation by the Chamber (PT), 25 August 2006, p. 3-4:53

CONSIDERING that, as established in the Decision on the Final System of Disclosure, a core component of the right to a fair trial enshrined in article 67(1) of

53

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information in Electronic Version for their Presentation during the Confirmation Hearing (PT), 28 August 2006, pp. 3-4.

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the statute is timely access of the Defence to the evidence and materials referred to in article 61(3)(b) and 67(2) of the Statute and rules 76 and 77 of the Rules; CONSIDERING therefore that pursuant to article 61(3)(b), 61(6), and 67(1) and 67(2) of the Statute and rules 76 and 77 of the Rules, the Defence has the right to access unredacted versions of (i) the evidence on which the Prosecution intends to rely at the confirmation hearing and (ii) the materials in the possession or control of the Prosecution which are potentially exculpatory, have been obtained or belonged to Thomas Lubanga Dyilo or are otherwise material to the Defence preparation for the confirmation hearing; CONSIDERING further that the Chamber is the ultimate guarantor of the Defence’s timely access to the said evidence and materials because it is the ultimate guarantor of the respect for all other aspects of Thomas Lubanga Dyilo’s right to a fair trial; and that, for this reason, redactions in the said evidence and materials are the exception and not the general rule, are permissible on a case-by-case basis and are subject to the approval of the Chamber; CONSIDERING that the Prosecution proposes that when the Defence receives the unauthorised redacted versions of the said documents and materials, the Defence should submit a motion showing good cause for lifting the redactions in any given specific document; CONSIDERING that, in the view of the single judge, such proposal is contrary to Thomas Lubanga Dyilo’s right to a fair trial as enshrined in the Statute and the Rules because it amounts to an unpermissible shift of the burden of proof from the Prosecution – which must convince the Chamber of the need to authorise any redactions – to the Defence. FOR THESE REASONS DECIDE that the Prosecution shall cease disclosing redacted documents to the Defence without previous authorisation by the Chamber;

R81-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81 (PT), 20 September 2006:

CONSIDERING that at the ex parte hearing of 1 September 2006, the Prosecution informed the Single Judge that: (i) it has not included in the Fifth Prosecution Request of 29 August 2006 two documents which the Prosecution has disclosed to the Defence in a redacted form without the previous authorisation of the Chamber, and (ii) that the reason for that exclusion is that the provider of the document, pursuant to article 54 (3) (c) of the Statute, required the redactions as a condition to consenting to the use of the document as evidence at the confirmation hearing; and that the Prosecution must continue doing its utmost to obtain the agreement of the provider on the transmission to the Defence of the unredacted version of the said two documents; […]

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GIVE the Prosecution until 25 September 2006 to obtain the consent of the provider to disclose to the Defence the unredacted version of the two documents not included in the Fifth Prosecution Request of 29 August 2006; and if that consent cannot be secured by 25 September 2006, give the Prosecution, in compliance with the "Decision on the Prosecution practice to provide to the Defence redacted versions of evidence and materials without authorisation by the Chamber", until 25 September 2006 to file the said two documents as disclosed to the Defence in order for the Chamber to decide whether to authorise the redactions;

R81-PT-3

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

CONSIDERING that at the status conference on 26 September 2006, the Prosecution stated that, in addition to the documents attached to the Prosecution Request, it has, pursuant to article 67(2) of the Statute, disclosed other documents with certain redactions required by the provider of the documents under article 54(3)(e) of the Statute and without prior authorization of the Chamber; CONSIDERING that at the status conference on 26 September 2006, the Prosecution stated that it had not yet obtained the consent of the provider to disclose to the Defence some article 54(3)(e) documents which the Prosecution had identified as falling within article 67(2) of the Statute or rule 77 of the Rules; FOR THESE REASONS AUTHORISE the Prosecution to disclose immediately to the Defence the documents […] with the redactions proposed by the Prosecution in those annexes; ORDER the Prosecution to do its utmost prior to the confirmation hearing to: (i) obtain the consent of the providers to disclose to the Defence in an unredacted form those article 54(3)(e) documents already identified by the Prosecution as falling within the scope of article 67(2) of the Statute or rule 77 of the Rules; (ii) obtain the agreement of the providers on the transmission to the Defence of the unredacted versions of those documents already disclosed to the Defence in a redacted form at the request of the providers and without the prior authorization of the Chamber; […]

x

Rule 81: Applications for restriction on disclosure – Ex parte applications shall remain exceptional – Applicable criteria – Minimum information provided to excluded parties – Defence can also make Rule 81 ex parte applications

R81-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General

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Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 9-20:54 9. However, a few provisions of the Statute and the Rules expressly provide for ex parte proceedings in the absence of the Defence, in particular, rule 81 (2) of the Rules makes ex parte proceedings mandatory in relation to Prosecution applications to restrict disclosure in order not to prejudice further or ongoing investigations; 10. On the other hand, rule 81 (4) of the Rules establishes that when a request is made to restrict disclosure pursuant to this rule, "the Chamber dealing with the matter shall [...] take steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families". 11. In the view of the single judge, absent any express prohibition, recourse to ex parte proceedings in the absence of the Defence is one such measure, particularly in light of the fact that ex parte proceedings are expressly provided for matters of national security information under article 72 of the Statute, and protection of victims and witnesses under article 68 of the Statute and rule 88 of the Rules. 12. However, in the view of the single judge, ex parte proceedings are the exception and not the general rule as shown by the legal regime concerning the protection of victims and witnesses, according to which: i. any motion or request under rule 87 (2) (a) of the Rules "shall not be submitted ex parte"; ii. rule 88 (3) of the Rules only provides a contrario for the possibility of filing an ex parte motion or request under rule 88 of the Rules; and iii. rule 88 (2) of the Rules establishes that only if necessary may the competent Chamber hold an ex parte hearing of a request under rule 88 of the Rules. 13. Hence, the single judge considers that, insofar as ex parte proceedings in the absence of the Defence constitute a restriction on the rights of the Defence, ex parte proceedings under rule 81 (4) of the Statute shall only be permitted subject to the Prosecution showing in its application that: i. it serves a sufficiently important objective; ii. it is necessary in the sense that no lesser measure could suffice to achieve a similar result; and iii. the prejudice to the Defence interest in playing a more active role in the proceedings must be proportional to the benefit derived from such a measure.(10)

54

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Motion Concerning the Ex Parte Hearing of 2 May 2006 (PT), 22 May 2006.

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14. The single judge notes that, in the framework of the Statute and the Rules, the notion of ex parte proceedings may involve the following two alternative meanings, as expressed in rule 24 (4) of the Regulations of the Registry: i. proceedings where the Prosecution, the Defence, or any other participant (or a combination thereof), while aware that such proceedings exist, have no opportunity to voice their arguments, documents, material, and orders; or ii. proceedings where the Prosecution, the Defence, or any other participant (or a combination thereof) are not notified and thus unaware of their existence. 15. The single judge also notes that the meaning of the expression ex parte, as mentioned above, is far from new, but has indeed been embraced by legal provisions and case law in jurisdictions in which disclosure forms a key feature of criminal procedure.(11) The European Court of Human Rights has considered that this framework is consistent with article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms(12) 16. In this regard, the single judge, in her oral decision issued at the hearing on 26 April 2006, pointed out that "it is the Chamber's view that it is the prevention of Defence's access to the specific content of any proceeding under rules 81 and 82 of the Rules, as opposed to depriving the Defence from any knowledge of the fact that such proceedings exist, what can really contribute to the protection of victims and witnesses, the preservation of ongoing investigations and the protection of the confidentiality of the information".(13) 17. In the view of the single judge, the criteria referred to above, whereby a less restrictive measure is to be preferred if it produces a similar result, along with the rationale behind her oral decision of 26 April 2006 together lead to the conclusion that the Defence must: i. be informed of the existence and legal basis of any Prosecution ex parte application under rule 81 (2) or (4) of the Rules; ii. be allowed the opportunity to present submissions on (i) the general scope of the provisions that constitute the legal basis of the Prosecution's ex parte application; and (ii) any other general matter which in the view of the Defence could have an impact on the disposition of the Prosecution application; iii. be provided, at the very least, with a redacted version of any decision taken by the Chamber in any ex parte proceedings under rule 81 (2) or (4) of the Rules held in the absence of the Defence. 18. The single judge considers, however, that the Defence is not entitled to obtain a redacted version of any document filed ex parte, or of transcripts of any hearing held ex parte, pursuant to rule 81 (2) and (4) because the very meaning of ex parte excludes any opportunity for the Defence to present arguments, documents, materials or orders in relation to the specific content of the Prosecution ex parte application.

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19. The single judge considers that this interpretation is fully consistent with the jurisprudence of the European Court of Human Rights, according to which, where the Defence was given notice of an ex parte Prosecution Application for leave not to disclose certain materials in its possession on public interest immunity grounds and had an opportunity to inform the Trial Chamber of the main lines of defence, the Court was satisfied that "the defence were kept informed and permitted to make submissions and participate in the above decision-making process as far as possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds."(14) 20. The single judge notes that the Defence may also file applications under rule 81 (4) of the Rules for ex parte proceedings in the absence of the Prosecution, and considers that recourse to ex parte proceedings in the absence of the Prosecution pursuant to rule 81 (4) of the Rules should be subject mutatis mutandis to the same principles set out above. […] DECIDES that for the purpose of the confirmation hearing: (i) all future Prosecution applications under rule 81 (2) shall be filed inter partes so as to notify the Defence of the existence of the application and its legal basis; (ii) to the extent necessary, any such application shall be accompanied by an ex parte annex containing the specific details of the application; (iii) the proceedings related to any Prosecution application under rule 81 (2) shall be conducted ex parte with the Prosecution, and that the Defence shall not be provided with redacted versions of any document filed, or of the transcripts of any hearing held, during such ex parte proceedings; (iv) the Defence shall have five days after the filing of the application to make submissions on (i) the scope of the provision(s) under which the application has been brought; and (ii) any other general matter which in the view of the Defence could have an impact on the disposition of the Prosecution's application; (v) that, at the very least, a redacted version of any Chamber decision in proceedings relating to any Prosecution application under rule 81 (2) of the Rules shall be communicated to the Defence; […] DECIDES that for the purpose of the confirmation hearing: (i) all future applications by the Prosecution or the Defence to restrict disclosure under rule 81 (4) of the Rules shall be filed inter partes so as to notify the other party of the existence of the application, its legal basis, and of any request for ex parte proceedings that might be contained in such an application; (ii) to the extent necessary, any such application shall be accompanied by an ex parte annex containing specific details of the application and of the request for ex parte proceedings;

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(iii) a decision to conduct ex parte the proceedings relating to an application under rule 81 (4) shall be subject to the applicant showing that: (i) it serves a sufficiently important objective; (ii) it is necessary in the sense that no less restrictive measure could suffice to achieve a similar result; and (iii) the prejudice to the interest of the other party in playing a more active role in the proceedings must be proportional to the benefit derived from conducting them ex parte; (iv) at the very least, a redacted version of the Chamber decision on any request for ex parte proceedings shall be communicated to the other party; (v) if the proceedings under rule 81 (4) of the Rules are to be conducted ex parte, then the other party shall not be provided with a redacted version of any document filed, or of the transcripts of any hearing held, during such ex parte proceedings; (vi) if the proceedings under rule 81 (4) of the Rules are to be conducted ex parte, then the other party shall have five days after the decision on the ex parte nature of the proceedings to make submissions on: (i) the scope of the provisions under which the application has been brought; and (ii) any other general matter which in its view could have an impact on the disposition of the application;[…] ————————— (10) The European Court of Human Rights has embraced the requirements of necessity and proportionality. For instance, in Silver v. the United Kingdom, Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; and 7136/75, "Judgment", 25 March 1983, the Court elaborated on the standard that the restriction must be "necessary in a democratic society" for one of the purposes provided for in the relevant provision (a standard that can be found inter alia in article 8 (2) of the Convention on the right to respect for private and family life and in article 11 (2) on the right to freedom of assembly and association). The Court held at para. 97 that "[...] the phrase 'necessary in a democratic society' means that, to be compatible with the Convention, the interference must, inter alia, correspond to a 'pressing social need' and be 'proportionate to the legitimate aim pursued'" and that "those paragraphs of Articles of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted." The Human Rights Committee, in relation to restrictions of fundamental rights expressly provided for in the International Covenant on Civil and Political Rights, as it is the case in article 12 (3) in relation to the right to liberty of movement and freedom to choose one's residence, has also stressed that the requirements of necessity and proportionality must be met (General Comment No. 27, Freedom of Movement (Art. 12), CCPR/21/Rev.l/Add.9, 2 November 1999, para. 16). The ICTY Appeals Chamber, in its "Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence's Counsel", The Prosecution v. Slobodan Milosevic, Case No. IT-02-54-AR73.7, 1 November 2004, when analysing the restriction on the defendant's right to represent himself as a result of the Trial Chamber's decision to impose counsel, held at para. 17, on the basis of the case law of a number of national jurisdictions (including 50 Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing, 1 A.C. 69 (1998) (United Kingdom Privy Council); McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003) (United States Supreme Court); and Edmonton Journal v. Alberta, 1989 CarswellAlta 198 (Canadian Supreme Court )): "[...] When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided

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by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of 'a sufficiently important objective,' and must 'impair the right... no more than is necessary to accomplish the objective.'" Furthermore, in this same decision (para. 17 in fine), the Appeals Chamber, referring specifically to paragraph 13 of the Appeals Chamber "Decision on Fatmir Limaj's Request for Provisional Release" (Case No. IT-03-66-AR65, 31 October 2003), underscored with approval that "[...] the ICTY itself has been guided by a 'general principle of proportionality' in assessing defendants' suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is '(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.'" (11) For instance, in England and Wales, the Court of Appeals in R. v Davis, Johnson and Rowe [1993], 1 W.L.R. 613, at p. 617: i. held that, although ex parte applications limited the rights of the Defence, in rare but serious cases the public interest justifies resorting to them in order to protect sensitive information; and ii. set out a specific procedure for Prosecution ex parte applications to seek exceptions on its disclosure obligations from the Court on the basis of public interest immunity. According to this procedure, the Prosecution had to give notice to the Defence of any ex parte application unless revealing the existence of such an application would reveal "the nature of the evidence" for which the Prosecution requested authorization not to disclose. Subsequently, in R v. Keane, the Court of Appeal emphasised that the ex parte procedure outlined in R. v. Davis, Johnson and Rowe should be used in exceptional cases because it was "contrary to the general principle of open justice in criminal trials" ( See R v. Keane [1994], 1 W. L. R., 746, at p. 750). (12) In Jasper v United Kingdom, "Judgment", 16 February 2000, Application No. 27052/95, paras. 52 et sea, the fact that the Defence was notified of the fact that the Prosecution made an ex parte application to the trial judge to withhold material in its possession on the grounds of public interest immunity (although such notification did not specify the category of material that the Prosecution sought to withhold) was one of the key factors in the finding of the European Court of Human Rights "[...] that, as far as possible, the decision-making procedure complied with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused." (13) Transcript of the Hearing Held on 26 April 2006, ICC-01-04-01-06-T-5-CONF-EN, p. 6, lines 5 to 10. (14) Jasper v United Kingdom, supra footnote 12, para. 55.

R81-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras. 48-53:

48. The single judge underscores that the issue of the regime encompassed by the term ex parte in the context of applications under rule 81 (2) and (4) of the Rules was raised by the fact that the Prosecution made several ex parte filings, including the Prosecution Application and the Prosecution Supplemental Brief, (69) with the aim to not only prevent the Defence from responding to the content of such filings but to also deprive the Defence of any knowledge about the existence of such filings.(70) 49. To date, neither the European Court of Human Rights nor the Inter-American Court of Human Rights has affirmed the consistency of "secret" applications for non-disclosure and related proceedings with internationally human rights standards.

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50. On the contrary, what the European Court of Human Rights has endorsed to date is a regime encompassed by the term ex parte in which "the Defence were kept informed and permitted to make submissions and participate in the above decisionmaking process as far as possible without revealing to them the material which the prosecution sought to keep secret on public interests grounds". (71) This is in addition to the acknowledgement that the ex parte proceedings constitute a restriction on the rights of the Defence, and, therefore, resorting to them is limited to those cases in which the requirements of necessity and proportionality are met. (72) 51. Moreover, as the single judge already stated in the bench decision issued at the hearing of 26 April 2006, "[...] it is the prevention of Defence's access to the specific content of any proceeding under rules 81 and 82 of the Rules, as opposed to depriving the Defence from any knowledge of the fact that such proceedings exist, what can really contribute to the protection of victims and witnesses, the preservation of ongoing investigations and the protection of the confidentiality of the information."(73) 52. This also seems to have been the Prosecution approach when it filed a public redacted version, as opposed to a redacted version for the Defence only, of its 7 June 2006 Submission of Information on the Prosecution's Efforts to Obtain the Consent of the Information Provider to Disclose to the Defence an Item of Potentially Exculpatory Material (the "7 June 2006 Prosecution Submission").(74) The single judge points out that notice of the relationship of this matter, which is also the subject of the 19 April 2006 Prosecution Filing, with the Prosecution confidentiality obligations under article 54 (3)(e) of the Statute had been previously given to the Defence only.(75) Indeed, the single judge underscores that the Defence was given notice of the existence of this matter despite the strong opposition of the Prosecution at the in camera hearing on 2 May 2006. (76) 53. In this regard, the single judge observes that the 7 June 2006 Prosecution Submission seems to indicate a change of approach insofar as it now sees no danger in giving notice not only to the Defence but also to the public of the existence and a full explanation of the current status of a matter related to its confidentiality obligations under article 54 (3) (e) of the Statute. ————————— (69) In this regard, the single judge underscores that, in its initial statement at the in camera heanng on 2 May 2006, the Prosecution emphasised REDACTED (70) As the Prosecution stated in its initial statement at the in camera hearing on 2 May 2006 (ICC-01-04-01-06-T-6-Exp-EN, p. 5, lines 23 to 25 and p 6, lines 1 to 6) REDACTED (71) Jasper v United Kingdom, "Judgment", 16 February 2000, Application No 27052/95, para 55 (72) The Decision, footnotes 10 and 12 (73) Transcript of the hearing held on 26 April 2006, ICC-01-04-01-06-T-5-CONF-EN, p 5, line 25 and p. 6, lines 1 to 10 (74) ICC-01/04-01/06-142 (75) The 26 April 2006 Decision was issued on the bench by the single judge in closed session In addition, the public redacted version of the "Decision on the Prosecution Filing of 19 April 2006 and Application of 24 April 2006", issued by the single judge on 22 May 2006, redacted all references to the fact that the 19 April 2006 Prosecution Filing was related to the Prosecution's confidentiality obligations under article 54 (3) (e) of the Statute (76) As the Prosecution indicated at the tn camera hearing of 2 May 2006 (ICC-01-04-01-06-T6-Exp-EN, p 8, lines 12 to 21) REDACTED

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x

Rule 81: Applications for restriction on disclosure – “Under seal” applications are not permitted under Rule 81(2) – “Under seal” applications are admitted under Rule 81(4) if related to protection of victims and witnesses and “confidential” classification is insufficient – Minimum level of publicity

R81-PT-6

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 24-27:

24. Hence, in the view of the single judge, while "under-seal" applications are not permitted pursuant to rule 81 (2) of the Rules, those pursuant to rule 81 (4) must be confined to applications relating to protection of victims and witnesses when exceptional circumstances exist that make the classification of the parties' applications as "confidential" insufficient; 25. Furthermore, the single judge considers that the principle of publicity of proceedings, as enshrined in article 67 (1) of the Statute, rule 15 of the Rules, and regulation 8 of the Regulations, requires, (17) at the very least, some type of publicity of all decisions and orders of the Chamber by way of posting on the web site of the Court: (i) a non-redacted version of such decisions and orders; (ii) a redacted version; or (iii) a general announcement of their existence without going into detail.(18) 26. In the view of the single judge, this obligation also covers those decisions taken in "confidential" or "under seal" proceedings pursuant to rule 81 (2) and (4) of the Rules, no matter whether they are also ex parte. 27. However, the single judge considers that, upon good cause being shown by the party initiating "confidential" or "under-seal" proceedings pursuant to rule 81 (2) or (4) of the Rules, the publicity of a given order or decision of the Chamber can be postponed until the reason for the postponement no longer exists;(19) […] DECIDES that for the purpose of the confirmation hearing: […] (vi) in principle, any Chamber decision in proceedings relating to any Prosecution application under rule 81 (2) of the Rules shall be publicised by posting on the official web site of the Court: (i) a redacted version of any such decision; or (ii) if the sensitivity of the information so requires, a general announcement of the decision. DECIDES that for the purpose of the confirmation hearing: […] (vii) at the very least, a redacted version of any Chamber decision in proceedings relating to any application under rule 81 (4) of the Rules shall be communicated to the other party;

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(viii) in principle, any Chamber decision in proceedings relating to applications under rule 81 (4) of the Rules shall be publicised in the manner referred to above concerning decisions on applications under rule 81 (2) of the Rules. […] DECIDES that the publicity of any Chamber order or decision may be postponed if good cause is shown by the party initiating "confidential" or "under-seal" proceedings pursuant to rule 81 (2) or (4) until the reason for postponement no longer exists; ————————— (17) The European Court of Human Rights has emphasised consistently that the publicity of the proceedings is an important guarantee of the fairness of the trial insofar as it offers protection against arbitrary decisions. Moreover, according to the Court, it builds confidence by allowing the public to see the administration of justice (see inter alia Pretto and others v Italy, Application No. 7984/77, "Judgment", 8 December 1983, para. 21; and B and P v United Kingdom, Application No. 36337/97 and 35947/97, "Judgment", 24 April 2001, para. 36). However, Article 6 (1) in fine distinguishes between the publicity of judicial bodies' decisions and that of proceedings, so that while decisions are not subject to exceptions, the proceedings are subject to certain exceptions "in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." (see particularly B and P v United Kingdom, Application No. 36337/97 and 35947/97, "Judgment", 24 April 2001, paras. 37, 47 and 49). Article 8 (5) of the American Convention on Human Rights also enshrines the principle of publicity in criminal proceedings by establishing that "criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice." The Inter-American Commission on Human Rights (Annual Report 1992-3, Chapter IV (right to a fair trial), Section G (final observations)), in applying this provision to the secret courts established in Colombia to prevent attacks upon the judiciary at a time of emergency but subsequently maintained as part of ordinary legislation during preliminary proceedings, has held: "Although secret trials are intended to serve a good purpose, i.e., to protect the safety and lives of the judges, they nonetheless seriously violate the guarantees of due process and increase the margin for judicial error to the point that those people who are tried in secret are in danger of becoming victims of a miscarriage of justice. The Commission urges the Government of Colombia to continue to seek ways to reconcile the twofold and not conflicting objectives of guaranteeing fully the lives and safety of judges, without diminishing the guarantees of due process." (18) To date, all decisions taken by Pre-Trial Chamber I in the context of the investigation of the DRC situation and the case against Thomas Lubanga Dyilo have been publicised on the web site of the Court in one of the three ways mentioned above. (19) For instance, all documents relating to issuing a warrant of arrest for Thomas Lubanga Dyilo were not publicised on the web site of the Court until Thomas Lubanga Dyilo was transferred to the premises of the Court in The Hague.

x

Rule 81: Redaction of documents – Leave to redact – Applicable criteria: protection of witnesses in risk areas, evidence given under condition of confidentiality, internal notes (granted) – Denied redactions: irrelevant document

R81-PT-7

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

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ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81 (PT), 20 September 2006: CONSIDERING that the only restrictions to the disclosure obligations of the Prosecution and Defence expressly provided for in the Statute and the Rules are those in rules 81 and 82 of the Rules; CONSIDERING that, according to rule 81 (1) of the Rules, "reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure"; CONSIDERING that, according to rule 81 (2) of the Rules, so as not to prejudice further or ongoing investigations, the single judge may authorise the non-disclosure of materials or information to the Defence which in principle the Prosecution is required to disclose in accordance with its disclosure obligations; and that none of redactions proposed by the Prosecution under rule 81 (2) of the Rules is based on the need to protect information related to the ongoing investigation in the current case against Thomas Lubanga Dyilo; CONSIDERING that according to rule 81(4) of the Rules, the single judge shall "take the necessary steps to ensure confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial"; and that the notion of "witness" in rule 81 (4) of the Rules must be understood as including not only those witnesses on whom the Prosecution intends to rely at the confirmation hearing but also those on whom the Prosecution may decide to rely at trial if the charges against Thomas Lubanga Dyilo are confirmed; CONSIDERING that all the Prosecution requests and all amended requests refer to documents and to statements and transcripts of the interviews of witnesses on whom the Prosecution intends to rely at the confirmation hearing; and that most of them were taking in the context of the investigation of the Prosecution of the DRC situation and prior to the unsealing of the warrant of arrest for Thomas Lubanga Dyilo; CONSIDERING the "Recommendations of the Registrar on Protective Measures for Prosecution Witnesses" (20) according to which the longer the time between the disclosure of the identity of the witnesses and the time when the witnesses are to testify, the greater the danger is for the witnesses(21), and that, in the view of the Registrar, among other protective measures, the non-disclosure of the identity of some of the witnesses prior to the commencement of the trial is a protective measure that could minimise the risk to the safety of the relevant witness; CONSIDERING that there is a need to authorise several redactions in several of the documents, witness statements and transcripts of witness interviews contained in the Prosecution requests and amended requests so as: (i) not to prejudice further investigations, which inter alia includes protecting the identity of:

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a. Prosecution sources when the relevant organisation has expressly requested that its identity not be revealed to the Defence at this stage of the proceedings, and when the person supplying the document to such an organisation or the contact person(s) of such organization in the DRC currently resides in a risk area; b. Prosecution sources when the individual who transmitted the document to the Prosecution currently resides in a area of risk; c. Persons who are believed not to be Prosecution sources, are referred to in handwritten notes which are not part of the content of the relevant documents, and are currently leaving, or many be currently leaving, in areas of risk; (ii) to protect the identities of certain witnesses on whom the Prosecution intends to rely at the confirmation hearing; (iii) to protect the identities of the other witnesses on whom the Prosecution may decide to rely at trial in the present case if the charges against Thomas Lubanga Dyilo are confirmed; and/or (iv) to protect the identity of alleged victims of the crimes which are part of the present case against Thomas Lubanga Dyilo; CONSIDERING that none of the redactions authorised in the present decision seem to affect any potentially exculpatory information; CONSIDERING that the Prosecution proposed redactions to certain documents on which it intends to rely at the confirmation hearing, on the one hand, are necessary for the preservation of further investigations and/or the protection of victims and Prosecution witnesses, and, on the other hand, make the document at face value wholly irrelevant in the present case, which is confined to the alleged enlistment, conscription and active use in military operation of children under the age of fifteen; and that there is therefore no need to authorise any redaction to the said documents because, according to article 69 (4) of the Statute, they cannot be admitted into evidence for the purpose of the confirmation hearing; CONSIDERING further that, without prior adequate disclosure to Thomas Lubanga Dyilo, the Prosecution cannot rely on those parts of the documents, witness statements and transcripts of witness interviews for which redactions are authorised in the present decision; and that the probative value of the unredacted parts of the said documents, witness statements and transcripts of witness interviews may be diminished as a result of the redactions proposed by the Prosecution and authorised by the Chamber; […] FOR THESE REASONS DECIDE to authorise the redactions proposed by the Prosecution to: […] DECIDE to authorise the redactions proposed by the Prosecution to the documents contained in: (i) […] insofar as (i) the Prosecution states that these documents are incriminating evidence; (ii) the redactions cover only information which identifies the Prosecution

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source; (iii) the Prosecution source is an organisation which has expressly requested that its identity not be revealed to the Defence at this stage of the proceedings; and (iv) the person supplying the document to that organisation or being the contact person(s) of such organization in the DRC currently resides in a risk area; (ii) […] because (i) the Prosecution has stated that they constitute incriminating evidence; (ii) the documents constitute a compilation of newspaper articles which are in the public domain; (iii) the proposed redactions do not affect the content of the documents because they cover only the name of the individual who transmitted those documents to the Prosecution; and (iv) the individual is currently living in a risk area; (iii) […] because (i) the Prosecution states that the document constitutes incriminating evidence; and (ii) the redactions are limited to references to the names and telephone numbers of certain persons which are not part of the content of the documents; (iii) the relevant persons are believed not to have transmitted the documents to the Prosecution; and (iv) there are grounds to believe that those persons may be residing in risk areas. (iv) […] because (i) the Prosecution states that the document constitutes incriminating evidence; and (ii) the redactions are limited to the initials and identifying information of Prosecution witnesses who are believed to be currently located in risk areas; (v) […] because (i) the Prosecution states that the document constitutes incriminating evidence; and (ii) the redactions are limited to the names and identifying information of alleged victims of crimes included in the present case against Thomas Lubanga Dyilo who are believed to be currently located in risk areas; (vi) […] because (i) the Prosecution states that the document constitutes incriminating evidence; and (ii) the redactions are limited to: a. the names and identifying information of alleged victims of crimes included in the present case against Thomas Lubanga Dyilo who are believed to be currently located in risk areas; and b. identifying information of the Prosecution source which is an organisation which has expressly requested that its identity not be revealed to the Defence at this stage of the proceedings and the person(s) supplying the document to that organisation or being the contact person(s) of such organization in the DRC currently resides in a risk area; (vii) […] because (i) the Prosecution does not intend to rely in any of these documents at the confirmation hearing; (ii) in the view of the single judge, none of the documents seem to have any potentially exculpatory information, and thus the proposed redactions to such documents do not affect any potentially exculpatory information; and (iii) the redactions are limited to: a. the Prosecution source, which is an organisation which has expressly requested that its identity not be revealed to the Defence at this stage of the proceedings, and the person supplying the document

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383

to that organisation or being the contact person(s) of such organization in the DRC currently resides in a risk area; b. the Prosecution source, which are individuals who transmitted those documents to the Prosecution and are currently living in a risk area; or c. the initials and identifying information of Prosecution witnesses who are believed to be currently located in risk areas; (viii) […] because they affect only one handwritten note by a member of the Prosecution made for organisational purposes; DECIDE to authorise the Prosecution's proposed redactions to the initials and identifying information of Prosecution witnesses in the following documents, which are not referred to in the Prosecution List of Evidence, under the condition that by Monday 25 September 2006 the Prosecution informs the Chamber and the Defence whether it intends to rely on such documents at the confirmation hearing:[…] ORDER the Prosecution to (i) disclose immediately to the Defence redacted versions of those witness statements, investigators' reports of witness interviews and documents for which redactions are authorised in the present decision; and (ii) in relation to the said statements, reports and documents on which the Prosecution intends to rely at the confirmation hearing, to comply with the Decision on the Final System of Disclosure and with the Final Decision on the E-Court Protocol by 25 September 2006; DECIDE not to authorise any redaction in the documents included in […] because all redactions which the Prosecution initially proposed for these documents have been subsequently withdrawn by the Prosecution; DECIDE not to admit into evidence for the purpose of the confirmation hearing the documents contained in the following annexes: (i) […]because the REDACTED of unknown persons under the age of eighteen are wholly irrelevant at face value in the present case, which is confined to the alleged enlistment, conscription and active use in military operations of children under the age of fifteen; (22) (ii) The article "L'UPC de Lubanga se livre aux actes de cannibalisme REDACTED " contained in […]because such an article is wholly irrelevant at face value in the present case, which is confined to the alleged enlistment, conscription and active use in military operations of children under the age of fifteen; ————————— (20) ICC-01/04-01/06-204-US-Exp (21) See also for example Recommendation No.R (97) 13 adopted by the Committee of Ministers of the Council of Europe on 17 September 1997 stating that the following measures could be adopted to ensure a "balance in democratic society between the prevention of disorder or crime and the safeguarding of the right of the accused to a fair trial : (...) Revealing the identity of witnesses at the latest possible stage of the proceedings and/or releasing only selected details". (22) The Prosecution has insisted on the redaction of the names of the relevant persons, the REDACTED do not specify the age of the said persons and the reliance on codes to proof the age of those persons is incompatible with the prohibition against relying on redacted information at the confirmation hearing.

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CYRIL LAUCCI

x

Rule 81(2): Redaction of documents – Leave to redact – Applicable criteria: consistency

R81-PT-8

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Inviting the Prosecution to Revise Proposed Redactions in Relation to the Prosecution Amended Application Pursuant to Rule 81(2) of the Rules of Procedure and Evidence (PT), 31 July 2006:55

NOTING the “Prosecution’s Amended Application pursuant to Rule 81(2) with Further Details” (“the Prosecution’s Amended Application”) (3), filed by the Prosecution on 18 July 2006, in which the Prosecution amended the redactions for which it seeks authorisation from the single judge; (4) NOTING rule 81(2) of the Rules; CONSIDERING the importance of consistency in any redaction that might be authorised by the single judge pursuant to rule 81(2) of the Rules; FOR THESE REASONS DECIDES to invite the Prosecution to revise the redactions proposed inter alia in the following paragraphs of the witness statements attached to the Prosecution Amended Application […] ————————— (3) ICC-01/04-01/06-198-Conf-Exp-AnnA. (4) The Prosecution Amended Application, paras. 11 to 16. Rule 81(2): Redaction of documents – Leave to redact – Applicable criteria – Potentially exculpatory documents and contextual elements cannot be redacted

R81-PT-9

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Amended Application Pursuant to Rule 81(2) (PT), 2 August 2006:

CONSIDERING further that several redactions requested in the Prosecution Application and in the Prosecution Amended Application cannot be authorised because the single judge considers that they affect to excerpts that (i) could be seen as potentially exculpatory, or

55 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution’s Request for Redactions (PT), 1 September 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Inviting the Prosecution to Revise Proposed Redactions Under Rule 81 (PT), 15 September 2006.

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385

(ii) do not identify the nature of the incidents which the Prosecution is currently investigating and which at the same time could be relevant for determining the contextual elements of the crimes contained in the arrest warrant against Thomas Lubanga Dyilo.

x

Rule 81(2): Redaction of documents – Leave to redact – Redactions authorised not to prejudice ongoing or further investigations are temporary by nature – Limit of investigations

R81-PT-10

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 39-41:56

39. The single judge considers that, according to article 61 (4) and (9) of the Statute, and as provided for in the Decision on the Final System of Disclosure, the investigation in the current case must be brought to an end by the time the confirmation hearing starts, barring exceptional circumstances that might justify later isolated acts of investigation; (28) 40. Furthermore, in the view of the single judge, the Prosecution, according to rule 121 (4) and (5) of the Rules, must (i) provide the Defence with the Prosecution's Amended Charging Document and/or List of Evidence fifteen days before the confirmation hearing and (ii) file such document in the record of the case. (29) 41. Hence, according to the single judge, any redaction authorised to protect information related to the ongoing investigation in the current case against Thomas Lubanga Dyilo can only be temporary. ————————— (28) Annex I to the Decision on the Final System of Disclosure, paras. 130 and 131. (29) Ibid, para. 59.

x

Rule 81(2): Redaction of documents – Leave to redact – Distinction between “further” and “ongoing” investigations

R81-PT-11

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Third Defence Motion for Leave to Appeal (PT), 4 October 2006, pp.8-9:

CONSIDERING that the Second Issue is two-fold; that, in relation to the first part of the Second Issue, the Defence bases its requests on the allegation that the Decision relies on an interpretation of the term "ongoing investigations" which

56

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecution Amended Application Pursuant to Rule 81(2) (PT), 2 August 2006, p. 5.

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appears more expansive than the interpretation of that term in the Decision on the Final System of Disclosure and in the Decision Establishing General Principles; CONSIDERING that rule 81 (2) of the Rules refers not only to "ongoing investigations" but also to "further investigations"; that, as it is highlighted in the Prosecution Response,(31) according to the Decision, "none of the redactions proposed by the Prosecution under rule 81 (2) of the Rules is based on the need to protect information related to the ongoing investigation in the current case against Thomas Lubanga Dyilo"; and that therefore the Decision does not involve the issue raised by the Defence in the first part of the Second Issue; ————————— (31) Prosecution Response, para. 24.

R81-PT-12

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Application of 5 October 2006 (PT), 5 October 2006, pp.3-4:

CONSIDERING that, accordingly, the Prosecution has withdrawn all the proposed redactions to the said statements based on rule 81(4) of the Rules; that none of the redactions for which authorisation is sought in the Prosecution Application of 5 October 2006 is based on the need to protect information related to the ongoing investigation in the current case against Thomas Lubanga Dyilo; and that, therefore, the Prosecution requests the authorisation of the Chamber for redactions so as not prejudice the Prosecution’s further investigations into crimes within the jurisdiction of the Court allegedly committed in the territory of the Democratic Republic of the Congo (“the DRC”) after 1 July 2002; CONSIDERING that the redactions to the two statements referred to above proposed by the Prosecution in the Prosecution Application of 5 October 2006 are consistent with the redactions authorized by the single judge in the Second Decision on Prosecution Rule 81 Motions so as not to prejudice the Prosecution’s further investigations; CONSIDERING that, for the reasons stated in the Second Decision on Prosecution Rule 81 Motions, there is a need to authorize the redactions to the two abovementioned statements by the Prosecution in the Prosecution Application of 5 October 2006 in order not to prejudice the Prosecution’s further investigations;

x

Rule 81(2): Applications for restriction on disclosure – Time limit for applications

R81-PT-13

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

DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the

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387

subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […] 12-Requests, under rule 81 of the Rules, for exceptions to disclosure concerning evidence included in the Prosecution's Charging Document and List of Evidence shall not be made after 29 May 2006; […] 15- Requests for exceptions to disclosure, under rule 81 of the Rules, concerning evidence included in the Defence's List of Evidence shall not be made after 12 June 2006;

x

Rule 81(2): Applications for restriction on disclosure – Ex parte hearing – Attendance by the Legal representatives for victims – Adoption of an agenda

R81-PT-14

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Agenda of the Hearing of 1 September 2006 (PT), 30 August 2006:57

NOTING that an ex parte hearing has been scheduled for Thursday 31 August 2006 at 11.00 hours ( “the hearing”) to deal with all five Prosecution requests; NOTING articles 57 (3) (c), 61 (3) (b), 67 (2) and 68 (1) of the Rome Statute (“the Statute”) and rules 76 to 83 of the Rules; CONSIDERING the extremely large amount of materials to be dealt with at the hearing and that providing an agenda in advance to the Prosecution and the Victims and Witnesses Unit will permit them to prepare better for the hearing; FOR THESE REASONS DECIDE to re-schedule the ex parte hearing with the Prosecution and the Victims and Witnesses Unit for Friday 1 September 2006 at 10h00; DECIDE that the agenda of the hearing of 1 September 2006 shall be as provided for in Annex I to this Decision;

57

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening an Ex Parte Hearing for 3 October 2006 (PT), 29 September 2006.

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CYRIL LAUCCI

x

Rule 81(4): Applications for restriction on disclosure – Applications for leave not to disclose the identity of Prosecution witnesses for the purpose of confirmation hearing – Applicable criteria

R81-PT-15

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, paras. 29-35:58

29. The single judge notes that (i) article 68 of the Statute and rule 81 (4) of the Rules provide for non-disclosure of identity as a plausible protective measure for Prosecution and Defence witnesses at the confirmation hearing, and (ii) this measure can only be authorised by the Chamber pursuant to rule 81 (4) of the Rules to ensure their security and that of their families. 30. The single judge is mindful that non-disclosure of the identity of witnesses on whom the Prosecution intends to rely at the confirmation hearing (i) could affect the ability of the Defence to fully challenge the evidence and credibility of those witnesses; and (ii) has an impact on the rights of the Defence pursuant to articles 61 (3) and (6) (b) and 67 (1) (b) of the Statute.(21) 31. Hence, in the view of the single judge, non-disclosure of the identity of witnesses on whom the Prosecution intends to rely at the confirmation hearing can be authorised only exceptionally when, due to the particular circumstances surrounding a given witness, non-disclosure of identity is still warranted because less restrictive protective measures have been sought from the Victims and Witnesses Unit but were considered infeasible or insufficient; (22) 32. The single judge considers that this interpretation is fully consistent with the jurisprudence of the European Court of Human Rights, according to which, although restrictions on disclosure of relevant evidence might be permissible in certain cases as a result of weighting the rights of the accused against competing interests: (i) "Only such measures restricting rights of the defence which are strictly necessary are permissible under Article 6 § I"; (23) and (ii) "In order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by procedures followed by the judicial authorities".(24) 33. Moreover, the single judge highlights that, according to article 61 (5) of the Statute, the Prosecution at the confirmation hearing "shall support each charge with 58

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Filing of 19 April 2006 and Application of 24 April 2006 (PT), 22 May 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecution Request for Access to the Registry Recommendations (PT), 31 July 2006.

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sufficient evidence to establish substantial grounds to believe that the person committed the crime charged". 34. Hence, in the view of the single judge, the Prosecution need not present at the confirmation hearing all incriminating evidence that might be in its possession, particularly that on which the Prosecution states that it places lesser reliance; 35. As a result, according to the single judge, applications for leave not to disclose the identity of Prosecution witnesses under rule 81 (4) of the Rules should be made on an exceptional basis. […] DECIDES that, for the purpose of the confirmation hearing, any restriction on disclosure to the Defence of the names and/or portions of the statements of the witnesses on whom the Prosecution intends to rely at the confirmation hearing must be authorised by the Chamber pursuant to rule 81 (4) of the Rules upon evaluating the exceptionality of the request and the infeasibility or insufficiency of less restrictive protective measures; DECIDES that any Prosecution request pursuant to article 68 of the Statute and rule 81 (4) of the Rules for non-disclosure of the identity of Prosecution witnesses at the confirmation hearing to ensure their safety or that of their families shall be granted only if : (i) the Prosecution has first sought protective measures from the Victims and Witnesses Unit concerning the relevant witness; and (ii) the Prosecution shows that, due to exceptional circumstances surrounding the relevant witness, non-disclosure of identity remains necessary due to infeasibility of protective measures sought or insufficiency of protective measures adopted within the framework of the protection program of the Victims and Witnesses Unit as a result of the Prosecution request. DECIDES that non-disclosure of identity of Prosecution witnesses for the purpose of the confirmation hearing shall not be granted under rule 81 (2) or (4) of the Rules except to ensure the safety of Prosecution witnesses and their families and under the conditions set out in this decision. ————————— (21) The European Court of Human Rights has also highlighted this point. For instance, in Kostovski v The Netherlands, Application No. 11454/85, "Judgment", 20 November 1989, the applicant's allegation was based on the use as evidence, by the Utrecht District Court and the Amsterdam Court of Appeal, of reports of statements made by two anonymous persons. The European Court of Human Rights acknowledged in that case at para. 42: "[...] If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable. Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author's reliability or cast doubt on his credibility. The dangers inherent in such a situation are obvious." (22) This interpretation is consistent with the framework set out by the European Court of Human Rights. The Court held in Kostovski v The Netherlands, supra footnote 21, para. 44 that: "[...] Although the growth in organised crime doubtless demands the introduction of

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appropriate measures, the Government's submissions appear to the Court to lay insufficient weight on what the applicant's counsel described as 'the interest of everybody in a civilised society in a controllable and fair judicial procedure'. The right to a fair administration of justice holds so prominent a place in a democratic society (see Delcourt, "Judgment", 17 January 1970, Series A no. 11, p. 15, § 25) that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6 (art. 6)." The Inter-American Court of Human Rights has been particularly strict on this matter. In the case of Bamaca-Velazquez, "Judgment", 25 November 2000, the Court held at para. 103: "In this respect, the Court considers that the videotape with the testimony of Nery Angel Urizar Garcia, contributed by the Commission as documentary evidence, lacks autonomous value, and the testimony that it contains cannot be admitted as it has not complied with the requirements for validity, such as the appearance of the witness before Court, his identification, swearing in, monitoring by the State and the possibility of questioning by the judge." See also para. 29 of the concurring opinion of Judge Garcia Ramirez in the case of Bamaca-Velazquez. (23) Jasper v. United Kingdom, supra footnote 12, para. 52. See also Van Mechelen and Others v The Netherlands, "Judgment", 23 April 1997, Application No. 21.363/93; 21364/93; 21427/93; and 22056/93, para. 58. (24) Jasper v. United Kingdom, see supra footnote 12, para. 52. See also Doorson v The Netherlands, "Judgment", 26 March 1996, Application No. 20524/92, para. 72; Van Mechelen and Others v The Netherlands, see supra footnote 23, para. 54; and Artner v. Austria, Application No. 13161/87, "Judgment", 28 August 1992, paras. 20-24.

x

Rule 81(4): Applications for restriction on disclosure – Applications for leave not to disclose the identity of Prosecution witnesses for the purpose of confirmation hearing – Assessment of the VWU is a pre-requisite to Prosecutor’s motion – VWU’s assessment shall be communicated ex parte to the Prosecutor

R81-PT-16

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Request for Access to the Registry Recommendations (PT), 31 July 2006:59

CONSIDERING that, according to the Decision Establishing General Principles, the assessment of the VWU on the feasibility and sufficiency of the available protective measures for a given witness is a procedural pre-requisite for the Prosecution’s filing, pursuant to rule 81(4) of the Rules, of a motion for the nondisclosure of the identity of that witness for the purpose of the confirmation hearing;

59

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Urgent Request for Ex Parte Hearing (PT), 18 August 2006, pp. 2-3; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC01/04-01/06, Decision Concerning the Compliance by the Prosecution with the Pre-requisites to File Rule 81(4) Motions (PT), 5 September 2006.

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CONSIDERING that the Registry Recommendations contain the assessment of the feasibility and sufficiency of the available protective measures for the REDACTED; CONSIDERING therefore that the Prosecution must have access to the Registry Recommendations in order to be in a position to file a motion REDACTED pursuant to rule 81(4) of the Rules; and that if the Prosecution decides to file any such motion, in its submission in support of the motion, it may address the assessment of the VWU concerning the relevant witness(es) contained in the Registry Recommendations; CONSIDERING further that in order to ensure legal certainty concerning the fact that the Prosecution has requested the assessment of the VWU on the feasibility and sufficiency of the available measures for a given witness and that the VWU has made such an assessment, it is necessary that, in the future, both the request of the Prosecution and the assessment of the VWU be filed in the record of the case against Thomas Lubanga Dyilo; CONSIDERING further that, according to the Decision Establishing General Principles, the Defence should be made aware of the existence of the Registry Recommendations on a separate filing; FOR THESE REASONS DECIDE to grant the request of the Prosecution and to reclassify the Registry Recommendations as under seal and ex parte only available to the Prosecution. INSTRUCT the Registry to notify the Registry Recommendations to the Prosecution. INSTRUCT the Registry to make a separate filing in order to give notice of the existence of the Registry Recommendations to the Defence. Rule 81(4): Application for restricted disclosure – Situation where proposed redactions are not sufficient to guarantee witnesses’ safety – Non-disclosure of witness identity and reliance on statements summary at the confirmation hearing

R81-PT-17

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81(4) (PT), 15 September 2006, pp.7-9:60

CONSIDERING that the ultimate purpose of the redactions proposed by the Prosecution is to preserve the non-disclosure of the identity of those witnesses on whom the Prosecution intends to rely at the confirmation hearing because (i) their safety, or that of their families, could be gravely endangered were their identities to be revealed to the Defence at this stage; and (ii) no other protective measure that could significantly minimise such a danger is currently available and feasible;

60

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006, pp.4-5.

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CONSIDERING that the recent deterioration of the security situation in some parts of the Democratic Republic of the Congo ("the DRC") has had an impact on the range of protective measures currently available to and feasible for witnesses on whom the Prosecution or the Defence intends to rely at the confirmation hearing; and that, in this scenario, and after having carefully examined each individual case, nondisclosure of identity vis-à-vis the Defence for the purpose of the confirmation hearing is currently the only available and feasible measure for the necessary protection of many Prosecution witnesses; CONSIDERING, however, that after having thoroughly examined all the witness statements, transcripts of witness interviews and documents for which authorisation for redactions has been requested by the Prosecution under rule 81 (4) of the Rules, the Chamber has found that, even if heavily redacted, the unredacted parts of certain witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews would lead to the identification of the relevant Prosecution witnesses; CONSIDERING that the Prosecution proposal of delaying the transmission to the Defence of the redacted versions of the said witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews until a few days before the commencement of the confirmation hearing (i) would be prejudicial to the Defence's preparation of the confirmation hearing due to the number of witness statements and transcripts of witness interviews involved; and (ii) would be an inadequate solution should the charges be confirmed because the identity of the relevant witnesses would be disclosed a long time prior to their being called to testify at trial; CONSIDERING therefore that authorising the redactions proposed by the Prosecution in relation to the said witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews would amount to defeating the purpose of such redactions, that is to preserve the non-disclosure of the identity of the relevant witnesses; […] CONSIDERING that, under these conditions, the Chamber cannot authorise the disclosure to the Defence of the said witness statements, transcripts of witness interviews and investigators' notes and reports of witness interviews with the redactions proposed by the Prosecution; CONSIDERING, nevertheless, that articles 61 (5) and 68 (5) of the Statute and rule 81 (4) of the Rules allows the Prosecution to request the Chamber to authorise (i) the non-disclosure of the identity of certain witnesses on whom the Prosecution intends to rely at the confirmation hearing and (ii) the reliance on the summary evidence of their statements, the transcripts of their interviews and/or the investigators' notes and reports of their interviews; CONSIDERING that, unless the Prosecution assures the Chamber by 25 September 2006 at 10h00 that the said witnesses, or some of those witnesses, have freely consented to the immediate disclosure of their identities to the Defence after having been adequately informed of the risks for their security inherent to such disclosure, the Prosecution shall be able to rely on the said witnesses at the confirmation hearing only with the authorisation of the Chamber after it has examined the

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summaries proposed by the Prosecution in relation to their statements, transcripts of their interviews and/or the investigators' notes and reports of their interviews;

x

Rule 81(5): Materials not disclosed to the Defence for reason of redaction shall be immediately disclosed if the reasons justifying their redactions do not exist anymore

R81-PT-18

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp.3-4:

CONSIDERING that in relation to two of the videos requested by the Defence and referred to in paragraph 4 (i) of the Prosecution Application, redacted commentaries by one witness have been disclosed by the Prosecution to the Defence; that, according to the Prosecution, the only reason why these two videos have not been disclosed to the Defence are the redactions contained in page 4 of ICC-01/04-01/06710-Conf-Exp-Anxl and in page 3 of ICC-01/04-01/06-Conf-Exp-Anx2; and that in the view of the Chamber such redactions can be lifted and the videos can be immediately disclosed in full to the Defence; CONSIDERING that, according to the Prosecution, the only reason why the video referred to in paragraph 4 (ii) of the Prosecution Application has not been disclosed to the Defence, is that redactions have been authorised under rule 81 (2) of the Rules in paragraph 16 of the statement of witness DRC-OTP-WWWW-0014; CONSIDERING that in the Prosecution Application, the Prosecution states that "in light of the Defence Request and in this particular context only, the Prosecution is not opposed to lifting the redactions in paragraph 16 only"; and that, in this context, it is the view of the Chamber, that such redactions can be lifted and the relevant video can be immediately disclosed to the Defence;

APPEALS CHAMBER x

Rule 81: Applications for restriction on disclosure – Ex parte applications shall remain exceptional – Applicable criteria – Minimum information provided to excluded parties – Defence can also make Rule 81 ex parte applications

R81-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006, paras. (iv)-(v), 3, 65-67, 75-77:

(iv) The decision of Pre-Trial Chamber I "that all future Prosecution applications under rule 81 (2) shall be filed inter partes so as to notify the Defence of the

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existence of the application and its legal basis" as well as the related decisions under (ii) to (vi) on pages 19 and 20 of the impugned decision are reversed. (v) The decision of Pre-Trial Chamber I "that all future applications by the Prosecution or the Defence to restrict disclosure under rule 81 (4) of the Rules shall be filed inter partes so as to notify the other party of the existence of the application, its legal basis, and of any request for ex parte proceedings that might be contained in such an application" as well as the related decisions under (ii) to (viii) on pages 20 to 22 of the impugned decision are reversed. […] 3. A Pre-Trial Chamber acts erroneously in deciding how it will exercise its discretion with respect to maintaining future applications pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence ex parte if the Chamber does not provide for a degree of flexibility for deciding, on a case-by-case basis, whether and to what extent the application be maintained ex parte. […] 65. In relation to the third ground of appeal, the Appeals Chamber determines that, for the reasons explained below, the decision by the Pre-Trial Chamber that whenever an application pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence is filed ex parte, the other participant must be made aware in an inter partes filing of the fact that such an application was filed as well as of its legal basis and, with respect to an application under rule 81 (4), of any request for ex parte proceedings that might be contained in such an application is erroneous to the extent that it does not provide for any exception. 66. This decision by the Pre-Trial Chamber must be seen in light of 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. The decision of the Pre-Trial Chamber that is the object of the third ground of appeal is an anticipated and general exercise by the Pre-Trial Chamber of this discretion. 67. The decision of the Pre-Trial Chamber that is the object of the third ground of appeal does not provide for any flexibility. The Pre-Trial Chamber's approach that 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 is, in principle, unobjectionable. 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. By making a decision that does not allow for any degree of flexibility, the Pre-Trial Chamber precluded proper handling of such cases. […] 75. In respect of the Prosecutor's third ground of appeal, the Appeals Chamber has determined that the Pre-Trial Chamber's decision that whenever an application for measures pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence is filed ex parte, the other participant in an inter partes filing must be made aware of the existence of the application as well as its legal basis and, with regard to an

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application under rule 81 (4), of any request for ex parte proceedings that might be contained in such an application is erroneous to the extent that the decision does not provide for any exception. The Appeals Chamber determines that it is appropriate to reverse the Pre-Trial Chamber's decision with respect to ex parte applications completely. This follows from the following consideration: the Pre-Trial Chamber's decision that is the object of the third ground of appeal is an anticipated exercise of the Pre-Trial Chamber's discretion. If the Appeals Chamber would amend the decision to allow for more flexibility, it would exercise discretion in the Pre-Trial Chamber's stead, which, in the present case, would not be appropriate, not least because the discretion was exercised in the abstract. 76. The Pre-Trial Chamber's decision is reversed also to the extent that it concerns applications by Mr. Lubanga Dyilo pursuant to rule 81 (4) of the Rules of Procedure and Evidence. 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. 77. As the decision of the Pre-Trial Chamber that whenever an application for ex parte proceedings pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence is filed, the other participant must be made aware in an inter partes filing of the fact that such an application was made as well as its legal basis is reversed, the related decisions by the Pre-Trial Chamber under (ii) to (vi) on pages 19 and 20 of the impugned decision in respect of applications pursuant to rule 81 (2) of the Rules of Procedure and Evidence and the related decisions under (ii) to (viii) on pages 20 to 22 of the impugned decision in respect of applications pursuant to rule 81 (4) of the Rules of Procedure and Evidence are reversed as well.

x

Rule 81(2): Decisions authorising redactions shall be reasoned – Criteria for authorising redactions: (i) endangerment of the witness or his or her family resulting from the disclosure; (ii) necessity of the protective measure; (iii) prejudice to the rights of the accused and a fair and impartial trial caused by the redaction

R81-A-2

61

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 1, 18, 20-23:61

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 14 December 2006, paras. 1, 28, 30-32, 63.

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1. A decision authorising the non-disclosure of the identities of witnesses of the Prosecutor to the defence has to state sufficiently the reasons upon which the PreTrial Chamber based its decision. […] 18. In relation to the first ground of appeal and for the reasons set out below, the Appeals Chamber determines that the Pre-Trial Chamber erred in not providing sufficient reasoning for its finding that the identities of the witnesses covered by the Impugned Decision should not be divulged to the appellant unless the relevant witnesses consented freely to the immediate disclosure of their identities. […] 20. Decisions of a Pre-Trial Chamber authorising the non-disclosure to the defence of the identity of a witness of the Prosecutor must be supported by sufficient reasoning. 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. The Statute and the Rules of Procedure and Evidence emphasise in various places the importance of sufficient reasoning (by way of example, see, in the context of evidentiary matters, rule 64 (2) of the Rules of Procedure and Evidence, which requires a Chamber to "give reasons for any rulings it makes"). The Appeals Chamber notes in this context the judgment in the case of Hadjianastassiou v. Greece (application number 12945/87) of 16 December 1992, where the European Court of Human Rights held in paragraph 32 of its judgment that as part of the fair trial guarantees of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 as amended by Protocol 11 (213 United Nations Treaty Series 221 et seq., registration no. 2889; hereinafter: "European Convention on Human Rights"), courts are required to "indicate with sufficient clarity the grounds on which they based their decision." The European Court of Human Rights went on to state that "[i]t is this, inter alia, which makes it possible for the accused to exercise usefully the rights of appeal available to him." The cases of the European Court of Human Rights cited by the Prosecutor in the footnotes to paragraphs 19 to 21 of the Response to the Document in Support of the Appeal, although not relating to criminal proceedings, also confirm the importance of a reasoned decision for the right to a fair trial. Similarly, the Appeals Chamber of the ICTY has held that the right to a reasoned decision is an element of the right to a fair trial and that only on the basis of a reasoned decision will proper appellate review be possible (see Prosecutor v. Momir Nikolic, "Judgement on Sentencing Appeal", 8 March 2006, Case No. IT-02-60/1-A, paragraph 96; Prosecutor v. Dragoljub Kunarac et al, "Judgement", 12 June 2002, Case No. IT-96-23 & 23/1-A, paragraph 41). In paragraph 11 of its "Decision on Interlocutory Appeal from Trial Chamber Decision Granting Nebojsa Pavkovic's Provisional Release" of 1 November 2005 in the case of Prosecutor v. Milutinovic et al (Case No. IT-05-87-AR65.1), the Appeals Chamber of the ICTY held that "as a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision". Although in the present case the right of the appellant to appeal the Impugned Decision was conditional on the granting of leave by the Pre-Trial Chamber pursuant to

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article 82 (1) (d) of the Statute and rule 155 (1) of the Rules of Procedure and Evidence, the analysis by the European Court of Human Rights and by the Appeals Chamber of the ICTY in the cases referred to above applies with similar force to the case at hand. 21. The Impugned Decision fails to address properly three 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 PreTrial 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). With respect to the endangerment of the witnesses or members of their families, the reasoning of the Pre-Trial Chamber does not provide any indication as to why the Pre-Trial Chamber expected that the security of witnesses or their families may be endangered if the witnesses' identities were disclosed to the appellant. Furthermore, the Pre-Trial Chamber did not indicate which of the facts before it led it to reach such a conclusion. In relation to the necessity of the nondisclosure of the identities of the witnesses, the Pre-Trial Chamber only made a general statement that the security situation in some parts of the Democratic Republic of the Congo had an impact on the availability and feasibility of protective measures, without clarifying the factors which it considered relevant for the protection of witnesses. Thus, the appellant has no knowledge of the facts relied upon by the Pre-Trial Chamber for its decision and how the Chamber applied rule 81 (4) of the Rules of Procedure and Evidence to the facts. 22. The Appeals Chamber is not convinced that the insufficiency of the reasoning is justified because of the ex parte character of the proceedings that led to the Impugned Decision. The ex parte character of the proceedings itself did not reduce the need for the Impugned Decision 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. If the provision of the full reasoning would have led to the identification of the witness in question or would otherwise have disclosed information that needed to be protected, the Pre-Trial Chamber could have considered whether the full reasoning should be provided in a decision marked confidential and ex parte, Prosecutor only, with a separate redacted version made available to the defence. Thus, the reasoning of the Pre-Trial Chamber at least could have been reviewed properly by the Appeals Chamber in case of an appeal. In such a situation, the reasoning that would not be made available to the defence should be kept to that which is strictly necessary. 23. 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. As has been explained in the preceding paragraphs, the Impugned Decision failed to provide sufficient reasoning in relation to three important elements of a decision authorising the non-disclosure of the identity of a witness pursuant to rule 81 (4) of the Rules of Procedure and

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Evidence. At a minimum, the Pre-Trial Chamber must provide reasoning to support its findings on these aspects irrespective of the phase of the proceedings.

x

Rule 81(2): Restriction to disclosure in order to avoid prejudicing further or ongoing investigations – Redaction of documents - The Prosecution may rely, at the confirmation hearing, on unredacted portions of redacted documents – Difference between confirmation hearing and trial: lower threshold of evidence

R81-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 2, 43-47, Dissenting opinion of Judge Pikis, paras. 14-18:

2. At the confirmation hearing, the Prosecutor, in principle, may rely on the unredacted parts of witness statements and other documents even if they were disclosed to the defence prior to the hearing with redactions authorised pursuant to rule 81 (2) of the Rules of Procedure and Evidence. […] 43. In relation to the second ground of appeal and for the reasons stated below, the Appeals Chamber determines that in principle, the Prosecutor at the confirmation hearing may rely on unredacted parts of witness statements and other documents that contain redactions pursuant to rule 81 (2) of the Rules of Procedure and Evidence. 44. Decisive for the second ground of appeal is the interpretation of the last sentence of rule 81 (2) of the Rules of Procedure and Evidence, which provides that where non-disclosure has been authorised pursuant to rule 81 (2) of the Rules of Procedure and Evidence "... the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused." 45. According to the appellant, the last sentence of rule 81 (2) of the Rules of Procedure and Evidence precludes the Prosecutor under all circumstances from presenting at the confirmation hearing witness statements or other documents that were disclosed to the defence prior to the hearing with redactions authorised pursuant to that provision. The Appeals Chamber, by majority, is not persuaded by the interpretation of the appellant of the last sentence of rule 81 (2) of the Rules of Procedure and Evidence. As the Prosecutor correctly notes, this interpretation neglects that the pertinent words in that sentence are "such material or information", referring to the material or information for which non-disclosure has been authorised by the Pre-Trial Chamber in order not to prejudice the investigations of the Prosecutor. Such authorisation may cover, depending on the circumstances of the

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case, the entire witness statement or document, or parts thereof. The Appeals Chamber, by majority, agrees with the Prosecutor that rule 81 (2) of the Rules of Procedure and Evidence "does not dictate ... that redactions and/or disclosure must be determined inflexibly by the 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" (see Response to the Document in Support of the Appeal, paragraph 42). 46. 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. 47. The Appeals Chamber, by majority, is not persuaded by the argument of the appellant that even information that is completely unrelated to the charges is necessarily essential to the defence. The appellant submits that such information may be important inter alia to test the credibility of a witness. At the confirmation hearing, the suspect has the right to challenge the evidence presented by the Prosecutor (article 61 (6) (b) of the Statute). As a corollary to this right, the suspect has a right to be informed, prior to the hearing, of the evidence on which the Prosecutor intends to rely (article 61 (3) (b) of the Statute). The right to challenge the evidence, however, 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. Dis. Op. of Judge Georghios M. Pikis 14. Rule 81 (2) refers to the non-disclosure of a statement in order to avert prejudice to further or ongoing investigations. It does not refer to nor does it authorize partial disclosure or the disclosure of a statement in a redacted (1) form. 15. Once non-disclosure of evidence is allowed, its production is prohibited unless timely prior disclosure is made to the defence. To my mind, rule 81 (2) of the Rules of Procedure and Evidence does not authorize the disclosure of a witness' statement in a redacted statement or a summary thereof under any circumstances. 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. 16. 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

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detraction from its content. Rule 81 (2) of the RPE makes no provision for partial disclosure of a set piece of evidence or information. Unambiguously, it provides that where disclosure of evidence or information is likely to prejudice further or ongoing investigations, the court may authorize its non-disclosure. There is no halfway house allowing the disclosure of parts of the evidence or information through a process of redaction of its content. The price of non-disclosure is prohibition of the use of the evidence in court proceedings, a fetter that may subsequently be removed by adequate prior disclosure. […] 17. What is stated in relation to the second equally applies to the third issue. Nondisclosure of evidence imports prohibition of its use at the confirmation hearing. Hence, the authorization of non-disclosure cannot embarrass the defence. Consequently, no privilege is conferred on the Prosecutor. 18. On the other hand, if the Prosecutor decides to rely on the evidence at a stage subsequent to the authorization of non-disclosure, he may do so on condition of timely prior disclosure to the defence. Where this occurs no conceivable damage can be inflicted on or suffered by the defence as full knowledge of the evidence will be gained in time for the preparation of their case. ————————— (1) "Redaction" is a term of art in a legal context, as may be discerned from Black's Law Dictionary (8th Edition, 2004 West, St. Paul, Minnesota.): "The careful editing of a document, esp. to remove confidential references or offensive material [...]"

x

Rule 81(2): Restrictions on disclosure – Rule 81 is not applicable to confidential information under Article 54(3) (f)

R81-A-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, Dissenting opinion of Judge Pikis, para.12:

12. Confidential information for the purposes of rule 81 (4) of the Rules of Procedure and Evidence is information so classified by articles 54, 72 and 93 of the Statute. The Statute prohibits the disclosure and use of information classified as confidential under the Statute. Such exceptions as there may be are specified in the corresponding articles of the Statute. Article 54 (3) (f) of the Statute imposes a total ban on the use of every piece of information coming within its purview. Aside from the above categories of evidence, there is no right to withhold disclosure of evidence and information on grounds of confidentiality either under sub-rule 2 or sub-rule 4 of rule 81 of the Rules of Procedure and Evidence.

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401

Rule 81(4): Restrictions on disclosure – Exceptional nature Case-by-case approach – A Pre-Trial Chamber has no competence to pre-determine the merits of future applications

R81-A-5

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006, paras. (i), 1, 34-39, 57, 67 and Dis. Op. of Judge Georghios M. Pikis, paras. 23-30:62

(i) The decision of Pre-Trial Chamber I "that, for the purpose of the confirmation hearing, any restriction on disclosure to the Defence of the names and/or portions of the statements of the witnesses on whom the Prosecution intends to rely at the confirmation hearing must be authorised by the Chamber pursuant to rule 81 (4) of the Rules upon evaluating the exceptionality of the request and the infeasibility or insufficiency of less restrictive protective measures" is confirmed. […] 1. Non-disclosure to the person in respect of whom a confirmation hearing is held of the identity of the witnesses on whom the Prosecutor intends to rely at the confirmation hearing or portions of prior statements made by these witnesses is an exception to the general rule that the identity of such witnesses and their prior statements are to be disclosed. A Pre-Trial Chamber, when considering a request by the Prosecutor for such non-disclosure pursuant to rule 81 (4) of the Rules of Procedure and Evidence, will take into account all relevant factors and will carefully appraise the Prosecutor's request on a case-by-case basis. […] […] 34. It is not incorrect, as the Prosecutor claims, to state that non-disclosure of the identity of the witnesses on whom the Prosecutor intends to rely at the confirmation hearing is an exception. Pursuant to rule 76 (1), first sentence, of the Rules of Procedure and Evidence, "[t]he Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses." Rule 76 is part of Chapter 4 of the Rules of Procedure and Evidence, entitled "Provisions relating to various stages of the proceedings," which indicates that rule 76 is applicable to the confirmation hearing as well. This interpretation is consistent with article 61 (3) (b) of the Statute, which provides that the person in respect of whom a confirmation hearing is held "[b]e informed of the evidence on which the Prosecutor intends to rely at the hearing." 62

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, para. 33.

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35. 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, which states that "[t]his rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for I n the Statute and rules 81 and 82." Thus, reference is made to witness protection pursuant to rule 81 (4) of the Rules of Procedure and Evidence. 36. Considering the non-disclosure of the names of witnesses and portions of witness statements to be an exception to the general rule of disclosure does not, as the Prosecutor claims, establish an overly rigid system in favour of one of the competing interests. In evaluating an application for non-disclosure of the identity of witnesses or of portions of witness statements, a Pre-Trial Chamber will 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 non-disclosure 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-bycase evaluation. 37. On the basis of this reading of the Pre-Trial Chamber's decision, the Pre-Trial Chamber was also correct in deciding that the non-disclosure 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. Such evaluation has to be made on a case- by-case basis. The Statute and the Rules of Procedure and Evidence place much importance on disclosure to the defence, as is evidenced not only by article 61 (3) (b) of the Statute and rule 76 (1) of the Rules of Procedure and Evidence, but also, for example, by rule 81 (2), third sentence, and rule 81 (5) of the Rules of Procedure and Evidence. Rule 81 (4) of the Rules of Procedure and Evidence itself points in that direction by requiring the Chambers to take the "necessary steps to ensure the confidentiality of information". The use of the word "necessary" emphasises the importance of witness protection and the obligation of the Chamber in that respect; at the same time, it emphasises that protective measures should restrict the rights of the suspect or accused only as far as necessary. 38. The Appeals Chamber is not convinced by the Prosecutor's argument that the Pre-Trial Chamber's decision, as explained in the preceding paragraphs, could have detrimental consequences for the Court's operation because it would force the Court to concentrate its witness protection efforts prior to the confirmation hearing stage. The Pre-Trial Chamber's decision on the exceptionality of non-disclosure must be read as an elaboration, in the manner explained above, of rule 81 of the Rules of Procedure and Evidence and does not lead to greater or lesser witness protection than what the Rules of Procedure an d Evidence provide for in any event. 39. It should be noted in this context that the Pre-Trial Chamber's decision that disclosure is the rule and non-disclosure is the exception cannot but be upheld

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because it can and should be read as allowing for a case-by-case evaluation of the merits of all future applications, as has been set out above. If the decision were read as not allowing for such a case-by-case evaluation, the Pre-Trial Chamber would have acted outside of its competence and jurisdiction. Pursuant to article 61 (3) in finem of the Statute, a Pre-Trial Chamber "may issue orders regarding the disclosure of information for the purposes of the [confirmation] hearing." Furthermore, it is the duty of the Pre-Trial Chamber pursuant to rule 121 (2) (b) of the Rules of Procedure and Evidence to hold status conferences "to ensure that disclosure takes place under satisfactory conditions." These provisions 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 predetermine 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. […] 57. […] As has been explained in paragraph 39 above, a Pre-Trial Chamber does not have the competence to pre-determine the merits of future applications made under rule 81 (2) of the Rules of Procedure and Evidence. In the absence of any specific application, the Appeals Chamber therefore will not consider the matter any further. […] 67. The decision of the Pre-Trial Chamber that is the object of the third ground of appeal does not provide for any flexibility. The Pre-Trial Chamber's approach that 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 is, in principle, unobjectionable. 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. By making a decision that does not allow for any degree of flexibility, the Pre-Trial Chamber precluded proper handling of such cases. Dis. Op. of Judge Georghios M. Pikis 23. The general principles governing the application of rule 81 (2) and (4) of the Rules of Procedure and Evidence, the theme of the decision, constitute the subject of the appeal. The principles were evolved outside the framework of resolution of a matter at issue and without hearing the parties on the establishment of such principles. The question is further complicated by the fact that the principles enunciated were meant to pre-empt determination of pending and future proceedings and more than that any proceedings under rule 81 (2) and (4) of the Rules of Procedure and Evidence. The course taken is judicially unorthodox. 24. The exercise of judicial power is premised on the jurisdiction of a court. The jurisdiction of a court extends to the determination of the matter at issue and matters incidental thereto; the hallmark of the exercise of judicial power. And through such a determination the imprint of the judicial power is attached to the solution of the

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problem, the contest and everything that goes with it. Outside this course, a court operates in a vacuum, transcending the object and purpose of judicial power. 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. The law applicable is elicited by reference to the facts defining the issue before the court and then only to the extent necessary to resolve it. Theoretical legal exercises have no part in the judicial process. 25. The principles adopted by the decision under review were not established for the purpose of resolving an issue before the single judge but in the abstract as the springboard for the resolution of pending or issues likely to arise in the process. Every Chamber of the International Criminal Court is competent to deal with every issue amenable to the jurisdiction of the particular branch of the Court for the purpose of resolving, subject to appeal, where a right to that end is conferred, finally the cause before it or any issue arising for determination intermediately thereto. In the exercise of this duty, the Chamber will no doubt explore the law in order to identify the principle(s) applicable to the particular facts of the case with a view to its just resolution. Even in that context the court will not extend the inquiry beyond what is required for the solution of the problem before it. It is no part of the judicial function to enunciate the principles applicable in any given area of law (adjectival or substantive) or to determine the law applicable to pending or anticipated proceedings outside the adjudicative process for the resolution of extant issues definitive of the course of judicial proceedings. 26. The last sentence of Article 61 (3) of the Statute empowers the Pre-Trial Chamber to issue orders affecting the disclosure of information for the purposes of the confirmation hearing. In exercise of this power, the single judge issued the orders deemed necessary in her decision of 15 May 2006. A motion for nondisclosure in any form can only be addressed in the context of an application to that end (rule 81 (2) and (4) of the Rules of Procedure and Evidence). It is beyond the jurisdiction of the Pre-Trial Chamber to forestall a decision of such a matter by the establishment or evolvement of general principles pre-defining the position of the court on the resolution of an issue in the cause. That the Defence favoured such a course is of no consequence; no one can authorize judicial deliberation outside the context of a matter at issue. 27. The conclusion to which I am driven is that the decision of the Pre-Trial Chamber referred to the Appeals Chamber with a view to appellate adjudication is not the offspring of the judicial process as it was not designed to nor did it resolve a matter or issue pending before the single judge. The decision did not dispose of an issue in the judicial cause and as such it lacked the attributes of judicial determination. A judgment of a court is intended and serves the purpose of determining a cause or matter pending before it.(38) Yet, the decision given in this case can be made the subject of an appeal under article 82 (1) (d) of the Statute, because of its implications on future proceedings. As noted in the judgment of the Appeals Chamber in Situation in the Democratic Republic of the Congo "Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal" (39), the impact of a decision on future proceedings before the Court is a factor to be duly evaluated in

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setting down an issue for appellate consideration. And the decision under appeal was meant to prejudge pending and anticipated proceedings. 28. The appellate process is not confined to the review of decisions emanating from the proper exercise of judicial power but extends to any decision originating from the exercise or purported exercise of judicial power. (40) In the latter case, there are more cogent reasons still for the exercise of appellate jurisdiction. The Appeals Chamber can set the judicial process aright, a principal object of appellate jurisdiction. 29. And the question arises what should be done with the decision under appeal? The issues raised for consideration by the Appeals Chamber are an integral part of the general principles evolved in the decision under review. To review them on appeal would involve the Appeals Chamber in the same process as the single judge got herself into, i.e. engagement 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 prejudge the law applicable to pending and future proceedings. 30. The issues raised for consideration are an inextricable part of the general principles evolved by the single judge. That she refused to state the propriety of establishing general principles as a distinct issue for consideration on appeal does not alter the character of the issues raised or the nature of the decision taken. The Appeals Chamber is seized of an appeal for the review of a decision and issues arising therein dealing with general principles given outside the context of the jurisdiction of the Pre-Trial Chamber. Rule 158 (1) of the Rules of Procedure and Evidence confers power upon the Appeals Chamber to reverse a decision, the subject-matter of an appeal. To "reverse" signifies the following of a course opposite to that taken. In the context of judicial proceedings, the word bears a special meaning, a term of art, importing power to "set aside, revoke, annul" (41), "overturn"(42) a decision.(43)The reverse course entails the annulment of the decision, which can be achieved by revoking the decision made. This is the order I would make.

————————— (38)

Gamer B. A. (Editor in chief), "Black's Law Dictionary" (Eighth Edition, Thomsen West, 2004), pages 436, 858. (39) 13 July 2006 (ICC-01/04-168). (40) Aspects of the subject under review are discussed in the English case R v. Longworth (HL) [2006] l All ER 887. (41) Brown L. (Editor in chief), The Shorter Oxford English Dictionary (Oxford University Press, 2002, Fifth Edition) Volume 2, N-Z, page 2566. (42) Garner B. A. (Editor in chief), Black's Law Dictionary (Eighth Edition, Thomson West, 2004), page 1344. (43) The term used in the French text of the Statute is "infirmer" meaning according to Cornu G. (Editor), "Vocabulaire juridique" (Paris, Fourth Edition, 2003), page 468, "[Déformation ou annulation partielle ou totale, par le juge d'appel, de la décision qui lui est déférée".

x

Rule 81(4): Restrictions on disclosure – Exceptional nature – Principle of necessity: less restrictive measures shall be preferred if they are sufficient and feasible – Principle of proportionality: protective measures shall not be prejudicial to

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or inconsistent with the rights of the accused and a fair and impartial trial

R81-A-6

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 32-34:

32. In relation to the second ground of appeal, the Appeals Chamber considers that for the reasons set out below, it is not in a position properly to review the correctness or otherwise of the application of the principle of necessity and proportionality in the Impugned Decision. 33. […] Thus, if less restrictive protective measures are sufficient and feasible, a Chamber must choose those measures over more restrictive measures. As has been explained above in relation to the first ground of appeal, the Impugned Decision lacks sufficient reasoning in respect of the necessity of the non-disclosure of the identities of the witnesses. In the absence of such reasoning, the Appeals Chamber in the present case is not in a position to determine whether the Pre-Trial Chamber properly abided by the principle of necessity. 34. The principle of proportionality, on the other hand, is not explicitly referred to in the relevant provisions of the Statute and of the Rules of Procedure and Evidence, nor is it mentioned in the Impugned Decision. It may be said that the principle of proportionality is encompassed in the reference to the necessity of the protective measure in rule 81 (4) of the Rules of Procedure and Evidence as well as in the last sentence of article 68 (1) of the Statute, which provides that witness protection measures "shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial." Again, the lack of sufficient reasoning in the Impugned Decision makes it impossible for the Appeals Chamber to determine conclusively whether or not the Pre-Trial Chamber abided by the principle of proportionality.

x

Rule 81(4): Restrictions on disclosure – No basis for requiring that the applicant seeks protective measures from the Victims and Witnesses Unit before applying for non-disclosure

R81-A-7

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the 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” (A), 13 October 2006, paras. (ii), 1, 33, 40:

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407

(ii) The decision of Pre-Trial Chamber I "that any Prosecution request pursuant to article 68 of the Statute and rule 81 (4) of the Rules for non-disclosure of the identity of Prosecution witnesses at the confirmation hearing to ensure their safety or that of their families shall be granted only if: (i) the Prosecution has first sought protective measures from the Victims and Witnesses Unit concerning the relevant witness; and (ii) the Prosecution shows that, due to exceptional circumstances surrounding the relevant witness, non-disclosure of identity remains necessary due to infeasibility of protective measures sought or insufficiency of protective measures adopted within the framework of the protection program of the Victims and Witnesses Unit as a result of the Prosecution request" is reversed. […] 1. […] A mandatory application by the Prosecutor to the Victims and Witnesses Unit for protective measures prior to a request to the Pre-Trial Chamber for nondisclosure of the identity of witnesses on whom the Prosecutor intends to rely at the confirmation hearing is not prescribed by the Statute or the Rules of Procedure and Evidence. […] 33. In respect of the first ground of appeal, the Appeals Chamber determines that for the reasons given below, the Pre-Trial Chamber's decision was wrong in law to the extent that it made a prior application by the Prosecutor to the Victims and Witnesses Unit for witness protection measures a prerequisite for an application for non-disclosure of the identity of a witness pursuant to rule 81 (4) of the Rules of Procedure and Evidence. […] 40. To the extent that the Pre-Trial Chamber ruled in its impugned decision that the Prosecutor must seek protective measures from the Victims and Witnesses Unit concerning the relevant witness before requesting non-disclosure of the witness's identity from the Pre-Trial Chamber, the Pre-Trial Chamber erred in law. There is no basis for such a requirement in the Statute, the Rules of Procedure and Evidence, or the Regulations of the Court. Although it may be useful for the Prosecutor in many situations to seek protective measures from the Victims and Witnesses Unit before making a request for non-disclosure to the Pre-Trial Chamber, it would be overly formalistic to require such a prior request to the Victims and Witnesses Unit. In situations where it is clear to the Prosecutor that there is no alternative but to seek non-disclosure of the witness identity, a prior application to the Victims and Witnesses Unit would serve no purpose and potentially could delay the proceedings.

x

Rule 81(5): Presentation of summary evidence instead of the evidence itself – Also applicable to confirmation hearing - The Prosecution may rely on summary evidence without disclosing the identity of the witness to the Defence – Difference between confirmation hearing and trial

R81-A-8

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr.

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Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 2, 47-51: 2. The presentation by the Prosecutor of summaries of witness statements and other documents at the confirmation hearing is permissible even if the identities of the relevant witnesses have not been disclosed to the defence prior to the hearing, 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. […] 47. The Appeals Chamber is not persuaded by the argument of the appellant that pursuant to rule 81 (5) of the Rules of Procedure and Evidence, the Prosecutor may only rely on the summaries at the confirmation hearing if the underlying statements and other documents have been disclosed to the defence prior to the confirmation hearing. […] 48. Thus, rule 81 (5) of the Rules of Procedure and Evidence 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. 49. The Appeals Chamber is not persuaded by reliance of the appellant on the jurisprudence of the ICTY that the use of summaries is impermissible. As the Prosecutor rightly notes in paragraph 46 of the Response to the Document in Support of the Appeal, the jurisprudence cited by the appellant addresses the use of summaries at trial and not at a confirmation hearing. More importantly, article 61 (5) of the Statute expressly provides for the use of summaries at the confirmation hearing. 50. Furthermore, the presentation of summaries at the confirmation hearing without disclosure of the identities of the relevant witnesses to the defence, as envisaged by the Pre-Trial Chamber, is not per se prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (article 68 (1), fourth sentence, and (5), second sentence, of the Statute). The use of summaries as envisaged by the Impugned Decision 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. In this context, the Appeals Chamber notes the jurisprudence of the European Court of Human Rights on the use of anonymous witnesses, in particular the case of Doorson v. The Netherlands (application no. 20524/92), where the European Court of Human Rights held in paragraph 72 of its judgment of 20 February 1996 that:

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"The maintenance of the anonymity of the witnesses [in a criminal trial] presented the defence with difficulties which criminal proceedings should not normally involve. Nevertheless, no violation of Article 6 para. 1 taken together with Article 6 para. 3 (d) ... of the [European] Convention [on Human Rights] can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities..." 51. The Appeals Chamber considers that this analysis of the European Court of Human Rights is relevant for the present appeal as well: where 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. In cases like the present case, the Pre-Trial Chamber will have to take into account inter alia that the ability of the defence to challenge the evidence presented by the Prosecutor at the confirmation hearing is impaired not only by the use of anonymous witnesses but also by the use of summaries without disclosure to the defence of the underlying witness statements and other documents.

Rule 82 – Restrictions on Disclosure of Material and Information Protected under Article 54, paragraph 3 (e) 1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused. 2. If the Prosecutor introduces material or information protected under article 54, paragraph 3 (e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance. 3. If the Prosecutor calls a witness to introduce in evidence any material or information which has been protected under article 54, paragraph 3 (e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality. 4. The right of the accused to challenge evidence which has been protected under article 54, paragraph 3 (e), shall remain unaffected subject only to the limitations contained in sub-rules 2 and 3. 5. A Chamber dealing with the matter may order, upon application by the defence, that, in the interests of justice, material or information in the possession of the accused, which has been provided to the accused under the same conditions as set

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forth in article 54, paragraph 3 (e), and which is to be introduced into evidence, shall be subject mutatis mutandis to sub-rules 1, 2 and 3.

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

R82-PT-1

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

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

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CONSIDERING further that the portion of the UN letter requesting that certain restrictions be imposed on the testimony of REDACTED as reiterated by the Prosecution in its submission in “Further Information on the UN position in respect of the Examination of the Witness REDACTED” reads as follows: “the Prosecutor, when examining REDACTED in her capacity as a witness before the Pre-Trial Chamber, shall not ask any questions the answering of which would require that she divulge: - the identity of persons, groups or organizations that provided information either to her or to the United Nations on the condition that their identities remain confidential and not disclosed; - information provided either to her or the United Nations in confidence by a third party the disclosure of which would place the personal safety of that third party or of his or her family members at risk; - information the disclosure of which would place the personal safety of any current or former member of MONUC or any member of the personnel of the United Nations at risk.”; CONSIDERING that, while the UN letter expressly prevents the Prosecution from posing questions to the Witness that fall within one of the three above-mentioned grounds, the Defence and the Chamber are not in principle precluded from posing any question to the Witness; CONSIDERING, however, that, in the view of the Chamber, the three grounds contained in the UN letter fall within the scope of the notion of “grounds of confidentiality” in rule 82(3) of the Rules; and that therefore if the Witness objects to answer a question on any of the said grounds, “the Chamber may not compel that witness to answer”; […] CONSIDERING hence that if in application of rule 82(3) of the Rules, the Witness does not answer some of the questions posed to her, and in particular those concerning the sources of her information about events that she did not directly witness, the Chamber shall subsequently either (i) decide to declare inadmissible in whole or in part the testimony of the Witness or (ii) assess the weight given to her evidence in light of such a factor; (17) CONSIDERING that the Defence Request for an order to prohibit the Prosecution from eliciting any evidence that the Witness herself has not witnessed is only based on a Defence assumption, that is to say the Defence belief that in application of rule 82(3) of the Rules the Witness will not answer any question concerning her sources of information about those events that she did not directly witness; […] REJECTS the request of the Defence for an order of the Chamber prior to the testimony of the Witness to prohibit the Prosecution from eliciting any evidence that the Witness herself has not witnessed;

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

Rule 83 – Ruling on Exculpatory Evidence under Article 67, Paragraph 2 The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2.

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Rule 84 – Disclosure and Additional Evidence for Trial In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.

Section III – Victims and Witnesses Subsection 1 – Definition and General Principle Relating to Victims Rule 85 – Definition of Victims For the purposes of the Statute and the Rules of Procedure and Evidence: (a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

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Rule 85: Definition of victims – Victims admitted with respect to a situation may not be recognized as victims with respect to a case within that particular situation

R85-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 66-68:63

66. En conséquence de cette distinction, la Chambre estime que, durant le stade de l’enquête concernant une situation, la qualité de victime sera accordée aux

63

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure présentées par les Demandeurs VPRS 1 à VPRS 6 dans l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case The Prosecutor v. Thomas Lubanga Dyilo) (PT), 29 June 2006.

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demandeurs qui semblent correspondre à la définition des victimes énoncée à la règle 85 du Règlement de procédure et de preuve en relation avec la situation en question. Puis, au stade de l’affaire, la qualité de victime ne pourra être accordée qu’aux demandeurs qui semblent correspondre à la définition des victimes énoncée à la règle 85 en relation avec l’affaire pertinente. 67. La Chambre constate que d’après la norme 86-2-g du Règlement de la Cour, au moment où une personne physique ou juridique présente une demande pour obtenir la qualité de victime, cette personne fournit, dans la mesure du possible, « tout renseignement indiquant à quel stade de la procédure la victime souhaite participer »(61). Par conséquent, aussi longtemps que toute personne physique ou juridique demandant la qualité de victime en relation avec une situation demande également de se voir accorder la qualité de victime dans toute affaire découlant de l’enquête d’une telle situation, la Chambre, dès qu’une telle affaire existe, prend automatiquement en compte cette seconde demande sans qu’il soit nécessaire de présenter un second formulaire(62). 68. En ce qui concerne les demandes dont il est question en l’espèce, la Chambre fait observer que, pour l’instant, aucune affaire n’a encore été initiée par la délivrance d’un mandat d’arrêt ou d’une citation à comparaître par la Chambre en vertu de l’article 58 du Statut découlant de l’enquête en cours concernant la situation sur le territoire de la RDC depuis le 1er juillet 2002. Par conséquent, à ce stade, la Chambre peut uniquement accorder la qualité de victime en relation avec la situation en RDC. Les demandeurs ayant sollicité de se voir accorder la qualité de victime « au stade de l’enquête, du procès ou de la condamnation » (63), la Chambre, une fois qu’une affaire découlera de l’enquête concernant la situation en RDC, examinera automatiquement la question de savoir si les demandeurs semblent correspondre à la définition des victimes prévue par la règle 85 du Règlement en relation avec une telle affaire. […] OCTROIE le statut de victime à VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6, leur permettant de participer à la procédure au stade de l’enquête dans la situation en RDC ; ————————— (61) Voir également le formulaire de demande approuvé par la Présidence conformément à la norme 23 du Règlement de la Cour. (62) Le dépôt d’une demande distincte sera nécessaire uniquement pour obtenir la qualité procédurale de victime pour la procédure de réparation en vertu des règles 94 et 99 du Règlement et de la norme 88 du Règlement de la Cour. (63) Demande de participation de VPRS-1 (ICC-01/04-25CONF-Exp-tEN), p. 3 ; Demande de participation de VPRS-2 (ICC-01/04-26CONF-Exp-tEN), p. 3 ; Demande de participation de VPRS-3 (ICC-01/04-27CONFExp-tEN), p. 3 ; Demande de participation de VPRS-4 (ICC01/04-28CONF-Exp-tEN), p. 3 ; Demande de participation de VPRS-5 (ICC-01/04-29CONFExp-tEN), p. 3 ; et Demande de participation de VPRS-6 (ICC-01/04-30CONF-Exp-tEN), p. 3.

——— Official Translation ——— 66. In the light of this distinction, the Chamber considers that, during the stage of investigation of a situation, the status of victim will be accorded to applicants who seem to meet the definition of victims set out in rule 85 of the Rules of Procedure

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and Evidence in relation to the situation in question. At the case stage, the status of victim will be accorded only to applicants who seem to meet the definition of victims set out in rule 85 in relation to the relevant case. 67. The Chamber notes that, according to regulation 86 (2) (g) of the Regulations of the Court, when a natural or legal person makes an application to be accorded the status of victim, the applicant is required to provide, to the extent possible, “[i]nformation on the stage of the proceedings in which the victim wishes to participate”.(61) It follows that where any natural or legal person applying for the status of victim in respect of a situation also requests to be accorded the status of victim in any case ensuing from the investigation of such a situation, the Chamber automatically takes this second request into account as soon as such a case exists, so that it is unnecessary to file a second application.(62) 68. With regard to the applications currently under consideration, the Chamber notes that, for the time being, no case has been initiated through the issuance of a warrant of arrest or a summons to appear by the Chamber under article 58 of the Statute in the light of the investigation of the situation in the territory of the DRC under way since 1 July 2002. At this stage, therefore, the Chamber can accord the status of victim only in connection with the situation in the DRC. As the applicants have applied to be accorded the status of victim “at the investigation, trial or sentencing stage”,(63) once a case ensues from the investigation of the DRC situation, the Chamber will automatically address the question of whether the applicants seem to meet the definition of victims set out in rule 85 of the Rules in connection with such a case. […] ACCORDS the status of victim to VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, allowing them to participate in the proceedings at the stage of investigation of the situation in the DRC; ————————— (61) See also the application form approved by the Presidency pursuant to regulation 23 of the Regulations of the Court. (62) The filing of a separate application will be necessary only to obtain the procedural status of victim for reparation proceedings pursuant to rules 94 and 99 of the Rules and regulation 88 of the Regulations of the Court. (63) Application for participation of VPRS-1 (ICC-01/04-25CONF-Exp-tEN), p. 3; Application for participation of VPRS-2 (ICC-01/04-26CONF-Exp-tEN), p. 3; Application for participation of VPRS-3 (ICC-01/04-27CONFExp-tEN), p. 3; Application for participation of VPRS-4 (ICC-01/04-28CONF-Exp-tEN), p. 3; Application for participation of VPRS-5 (ICC01/04-29CONF-Exp-tEN), p. 3; and Application for participation of VPRS-6 (ICC-01/0430CONF-Exp-tEN), p. 3.

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Rule 85: Definition of victims – Victims admitted with respect to a situation may not be recognized as victims with respect to a case within that particular situation – Burden of proof of the direct link between the harm suffered and the crimes alleged in the warrant of arrest (Participation denied)

R85-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No.

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ICC-01/04-01/06, Décision sur les demandes de participation à la procédure présentées par les Demandeurs VPRS 1 à VPRS 6 dans l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case The Prosecutor v. Thomas Lubanga Dyilo) (PT), 29 June 2006: ATTENDU qu'au stade de l'affaire, les Demandeurs doivent démontrer qu'un lien de causalité suffisant existe entre le préjudice qu'ils ont subi et les crimes dont il y a des motifs raisonnables de croire que Thomas Lubanga Dyilo est responsable pénalement et pour la commission desquels la Chambre a délivré un mandat d'arrêt, […] ATTENDU que la Chambre considère que les Demandeurs VPRS 2, VPRS 3 et VPRS 6 n'ont démontré aucun lien de causalité entre le préjudice qu'ils ont subi et les crimes contenus dans le mandat d'arrêt à l'encontre de Thomas Lubanga Dyilo [expurgé]. ATTENDU que la Chambre considère que le lien de causalité exigé par la règle 85 du Règlement au stade de l'affaire est démontré dès lors que la victime, ainsi que, le cas échéant, la famille proche ou les personnes à charge de cette victime directe (24), apportent suffisamment d'éléments permettant d'établir qu'elle a subi un préjudice directement lié aux crimes contenus dans le mandat d'arrêt ou qu'elle a subi un préjudice en intervenant pour venir en aide aux victimes directes de l'affaire ou pour empêcher que ces dernières ne deviennent victimes à raison de la commission de ces crimes(25), ATTENDU que les Demandeurs VPRS 1, VPRS4 et VPRS5 n'ont pas apporté d'éléments suffisants permettant à la Chambre de considérer qu'il y a des motifs raisonnables de croire que le préjudice qu'ils ont subi est directement lié aux crimes contenus dans le mandat d'arrêt à l'encontre de Thomas Lubanga Dyilo ou qu'ils ont subi un préjudice en intervenant pour venir en aide aux victimes directes de l'affaire ou pour empêcher que ces dernières ne deviennent victimes à raison de la commission de ces crimes, PAR CES MOTIFS, REJETTE la demande du Représentant légal des Demandeurs de ne pas examiner dès à présent la qualité des Demandeurs par rapport à l'affaire Le Procureur c. Thomas Lubanga Dyilo, DÉCIDE que la qualité de victimes autorisées à participer à l'affaire Le Procureur c. Thomas Lubanga Dyilo ne peut être reconnue à VPRS 2, VPRS 3 et VPRS 6, ces derniers n'ayant démontré aucun lien de causalité entre le préjudice qu'ils ont subi et les crimes contenus dans le mandat d'arrêt à l'encontre de Thomas Lubanga Dyilo, [expurgé], DÉCIDE qu'en l'état, la qualité de victimes autorisées à participer à l'affaire Le Procureur c. Thomas Lubanga Dyilo ne peut être reconnue à VPRS 1, VPRS 4 et VPRS 5,

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RAPPELLE que tout Demandeur dont la demande a été rejetée peut en déposer une nouvelle à une phase ultérieure de la procédure, en vertu de la règle 89-2 du Règlement, ————————— (24) Voir la « Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d'abus de pouvoir », Assemblée générale des Nations Unies, résolution 40/34, 29 novembre 1985, 40e session, Document des Nations Unies A/RES/40/34. Voir également les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international relatif aux droits de l'homme et de violations graves du droit international humanitaire », Commission des droits de l'homme, résolution 2005/35, 19 avril 2005. Inter-American Court of Human Rights, Case of Velasquez Rodriguez v. Honduras. Judgment of July 29, 1988, para 127-139 ; InterAmerican Court of Human Rights, Case of Fairén-Garbi and Solfs-Corrales v. Honduras. Judgment of March 15, 1989, para 130-136; Inter-American Court of Human Rights, Case of the "Street Children" v. Guatemala. (Villagrân-Morales et al.) Judgment of November 19, 1999, para 174-177 ; Inter-American Court of Human Rights, Case of the "Panel Bianca" v. Guatemala. (Paniagua-Morales et al.). Reparations, Judgment of May 25, 2001 ; InterAmerican Court of Human Rights, Case of the "Panel Bianca" v. Guatemala. (PaniaguaMorales et al.). Reparations, Public Hearing Declaration before the Court, August 11, 2000. pp 144-175. (25) Voir la « Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d'abus de pouvoir », Assemblée générale des Nations Unies, résolution 40/34, 29 novembre 1985, 40e session, Document des Nations Unies A/RES/40/34. Voir également les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international relatif aux droits de l'homme et de violations graves du droit international humanitaire », Commission des droits de l'homme, résolution 2005/35, 19 avril 2005.

——— Official Translation ——— CONSIDERING that at the case stage, the Applicants must demonstrate that a sufficient causal link exists between the harm they have suffered and the crimes for which there are reasonable grounds to believe that Thomas Lubanga Dyilo bears criminal responsibility and for which the Chamber has issued an arrest warrant; […] CONSIDERING that the Chamber considers that Applicants VPRS 2, VPRS 3 and VPRS 6 have not demonstrated any causal link between the harm they suffered and the crimes contained in the arrest warrant against Thomas Lubanga Dyilo, [REDACTED]; CONSIDERING that the Chamber considers that the causal link required by rule 85 of the Rules at the case stage, is substantiated when the victim, and where applicable, close family or dependants,24 provides sufficient evidence to allow it to be established that the victim has suffered harm directly linked to the crimes contained in the arrest warrant or that the victim has suffered harm whilst intervening to help direct victims of the case or to prevent the latter from becoming victims because of the commission of these crimes;25 CONSIDERING that applicants VPRS 1, VPRS 4 and VPRS 5 have not provided sufficient evidence to allow the Chamber to consider that there are reasonable grounds for believing that the harm they have suffered is directly linked to the crimes contained in the arrest warrant against Thomas Lubanga Dyilo or that they

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have suffered harm by intervening to help direct victims in the case or to prevent the latter from becoming victims because of the commission of these crimes; FOR THESE REASONS REJECTS the request of the Applicants’ Legal Representative not to examine at once the status of the Applicants in relation to the case The Prosecutor v. Thomas Lubanga Dyilo; DECIDES that VPRS 2, VPRS 3 and VPRS 6 cannot be granted the status of victims authorised to participate in the case The Prosecutor v. Thomas Lubanga Dyilo as they have not demonstrated any causal link between the harm they suffered and the crimes contained in the arrest warrant against Thomas Lubanga Dyilo, [REDACTED]; DECIDES that as matters now stand the status of victim authorised to participate in the case The Prosecutor v. Thomas Lubanga Dyilo cannot be granted to VPRS 1, VPRS 4 and VPRS 5; REMINDS all applicants whose application has been rejected, that they may file a new application later in the proceedings under rule 89 (2) of the Rules; ————————— (24) See the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, United Nations General Assembly, resolution 40/34, 29 November 1985, 40th session, United Nations Document A/RES/40/34. See also “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”, Human Rights Commission, resolution 2005/35, 19 April 2005; Inter-American Court of Human Rights, Case of Velásquez Rodriguez v. Honduras, Judgment of July 29 1988, paras 127-139; Inter-American Court of Human Rights, Case of Fairén-Garbi and Solis-Corrales v. Honduras. Judgment of March 15, 1989, paras 130-136; Inter-American Court of Human Rights, Case of the "Street Children" v. Guatemala. (Villagrän-Morales et al.) Judgment of November 19, 1999, paras 174-177; Inter-American Court of Human Rights, Case of the "Panel Bianca" v. Guatemala. (Paniagua-Morales et al.). Reparations, Judgment of May 25, 2001; Inter-American Court of Human Rights, Case of the "Panel Bianca" v. Guatemala. (Paniagua-Morales et al.). Reparations, Public Hearing Declaration before the Court, August 11, 2000. pp 144-175. (25 ) See the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, United Nations General Assembly, resolution 40/34, 29 November 1985, 40th session, United Nations Document A/RES/40/34. See also “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”, Human Rights Commission, resolution 2005/35, 19 April 2005.

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Rule 85(a): Definition of victims – Applicable criteria – Scope of examination – Non-exhaustive and non-definitive assessment of the criteria

R85-PT-3

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

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VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 79-101, 130:64 79. La règle 85-a énonce quatre critères nécessaires à la reconnaissance de la qualité de victime : la victime doit être une personne physique ; elle doit avoir subi un préjudice ; le crime dont découle le préjudice doit relever de la compétence de la Cour ; et il doit exister un lien de causalité entre le crime et le préjudice. Ainsi la Chambre devra-t-elle répondre à quatre questions principales : - Les Demandeurs sont-ils des personnes physiques ? - Ont-ils subi un préjudice ? - Les crimes allégués par les Demandeurs relèvent-ils de la compétence de la Cour ? - Y a-t-il un lien de causalité entre ces crimes et le préjudice subi par les Demandeurs ? a) Le critère de la « personne physique » 80. Le sens ordinaire qui doit être donné à l’expression « personne physique », telle qu’elle apparaît dans la règle 85-a, est, en français le suivant : un « être humain tel qu’il est considéré par le droit ; la personne humaine prise comme sujet de droit, par opposition à la personne morale(67) » ou encore, en anglais, « a human being » (68). Est donc personne physique toute personne qui n’est pas une personne morale(69). b) La notion de préjudice 81. Le terme « préjudice » n’est défini ni dans le Statut ni dans le Règlement. En l’absence de toute définition, la Chambre doit procéder à une interprétation au cas par cas de ce terme, laquelle doit être effectuée en conformité avec l’article 21-3 du Statut, selon lequel « l’application et l’interprétation du droit prévues au présent article doivent être compatibles avec les droits de l’homme internationalement reconnus ». 82. S’agissant plus particulièrement de la détermination du préjudice subi par les victimes, la Chambre préliminaire I observe que la présente décision n’a pas pour but d’établir de manière définitive le préjudice subi par les victimes, qui sera, le cas échéant, déterminé ultérieurement par la Chambre de première instance, dans le cadre d’une affaire. La Chambre préliminaire I considère par ailleurs, que la détermination d’un seul préjudice suffit, à ce stade, pour établir le statut de victime. c) Les crimes relèvent-ils de la compétence de la Cour ? […]65 64

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006, p. 8-9. 65 Voir paras. 83-93 sous S1-PT-1.

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d) Le lien de causalité entre les crimes relevant de la compétence de la Cour et le préjudice subi 94. Le quatrième critère énoncé par la règle 85-a, indiqué par les termes « du fait de », est celui du lien de causalité qui doit exister entre un crime relevant de la compétence de la Cour et le préjudice subi par les Demandeurs. Aussi la Chambre estime-t-elle qu’il est nécessaire d’établir qu’il y a des motifs de croire que le préjudice subi est le résultat de la commission des crimes relevant de la compétence de la Cour. Néanmoins, la Chambre considère qu’il n’est pas nécessaire que la nature exacte du lien de causalité, et l’identité de la ou des personne(s) responsable(s) de ces crimes, soient déterminées de manière plus approfondie à ce stade. 2. Méthode d’examen 95. La Chambre doit définir un critère d’examen qui lui permettra d’établir la charge de la preuve pour les futures victimes et leurs représentants légaux. La Chambre se réserve la possibilité de rejeter les demandes de participation qu’elle considérera infondées ou incomplètes. 96. À l’avenir, la Chambre se réserve le droit de demander des informations supplémentaires aux victimes et leurs représentants légaux, en se fondant sur la déclaration de chacune des demandes. La Chambre se réserve également le droit de demander l’aide du Greffe relativement aux informations contenues dans les déclarations des Demandeurs. Pour ce faire, la Chambre doit informer le Greffe de la nature de cette assistance dans une décision distincte de la présente. a) Critère d’examen 97. La Chambre doit définir un critère d’examen pour déterminer si les Demandeurs peuvent se voir reconnaître le statut de victime. Or, ni le Statut, ni le Règlement ne prévoient de critère d’appréciation. La Chambre considère que, eu égard au stade actuel de la procédure, à savoir celui de l’enquête dans la situation, il est raisonnable de fixer un seuil d’examen relativement bas. 98. Afin de déterminer ce critère d’appréciation, la Chambre emprunte le critère existant au même stade de la procédure, à savoir celui de l’enquête, mais appliqué aux droits procéduraux d’autre personne que les victimes. En effet, la Chambre constate que le critère utilisé au stade de la situation pour octroyer des droits procéduraux dans le cadre d’une enquête, à savoir l’article 55-2 du Statut, est celui des « motifs de croire ». Par ailleurs, la Chambre observe que, dès la délivrance d’un mandat d’arrêt, le critère d’examen est plus restrictif. En effet, l’article 58-1-a du Statut mentionne que la Chambre délivre un mandat d’arrêt si elle est convaincue « qu’il y a des motifs raisonnables de croire » que la personne visée a commis un crime. Dans le même sens, lors de la confirmation des charges, le critère utilisé par l’article 61-7 du Statut, pour déterminer si les charges doivent être éventuellement confirmées est d’autant plus restrictif. La Chambre détermine en effet qu’il existe des preuves suffisantes « donnant des motifs substantiels de croire » que la personne a commis un crime. 99. La Chambre est d’avis que les termes « motifs de croire » constituent le critère le moins exigeant au stade préliminaire de la procédure devant la Cour. Eu égard au pouvoir d’appréciation laissé à la Chambre par le Statut et le Règlement, elle

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considère qu’un tel critère peut être également appliqué aux droits procéduraux dont bénéficient les victimes. Ainsi, la Chambre conclut qu’au stade de la situation, le statut de victime peut être octroyé aux seuls demandeurs dont elle a des « motifs de croire » qu’ils remplissent les critères énoncés à la règle 85-a du Règlement. 100. La Chambre considère ainsi que le critère utilisé est une évaluation non exhaustive et non définitive des critères de la règle 85 susmentionnés. Les Demandeurs doivent ainsi démontrer qu’il y a des motifs de croire qu’ils ont subi un préjudice du fait d’un crime relevant de la compétence de la Cour, lequel aurait été commis dans les limites temporelles et géographiques de la situation considérée (75). b) Étapes de l’examen 101. Dans son évaluation des demandes de participation, la Chambre analysera tout d’abord chacune des déclarations des Demandeurs. Elle appréciera ensuite les arguments présentés par le conseil ad hoc de la Défense et par le Procureur. La Chambre aura également recours à d’autres sources telles que des rapports officiels des Nations Unies. Il s’agira alors, non pas d’évaluer la crédibilité de la déclaration ni d’effectuer un travail de corroboration stricto sensu, mais de vérifier si le récit des événements fait par la victime concorde avec des rapports officiels (notamment ceux de l’Organisation des Nations Unies). La Chambre pourra alors déterminer s’il y a des « motifs de croire » que les critères de la règle 85-a du Règlement sont remplis. La Chambre souligne qu’il est à la charge des victimes et de leurs représentants légaux de lui fournir les informations nécessaires à l’appui de leur demande. […] 130. La Chambre prend note des arguments avancés par la Défense tout en rappelant que la méthode utilisée ici est une évaluation non exhaustive et non définitive des critères de la règle 85-a du Règlement. ————————— (67) CORNU G., Vocabulaire juridique, Paris, Quadrige/PUF, 2003, p. 653. (68) Le Black’s Law Dictionary fait mention de la définition suivante : « So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition ». Voir John Salmond, Jurisprudence 318 (Glanville L. Williams ed., 10th ed. 1947) in GARNER B. A., Black’s Law Dictionary, St. Paul. Minnesota, West Group, 2004, p. 1178. (69) Voir la définition de la personne morale donnée par le dictionnaire Le nouveau PETIT ROBERT : « groupement de personnes ou établissement titulaire d’un patrimoine collectif et doté de droits et d’obligations, mais n’ayant pas d’existence corporelle », Le nouveau PETIT ROBERT, Dictionnaire alphabétique et analogique de la langue, Paris, Dictionnaires Le Robert, 2003, p. 1913. La personne morale peut également être définit comme un « groupement doté, sous certaines conditions, d’une personnalité juridique plus ou moins complète ; [un] sujet de droit fictif qui, sous l’aptitude commune à être titulaire de droit et d’obligation, est soumis à un régime variable, notamment selon qu’il s’agit d’une personne morale de droit privé ou d’une personne morale de droit public », CORNU G., Vocabulaire juridique, Paris, Quadrige/PUF, 2003, p. 653. Voir enfin les synonymes de la personne morale donnés par le Black’s Law Dictionary : « fictitious person ; juristic person ; legal person ; moral person », ainsi que la definition qu’il en donne : une « artificial person », c’est à dire « [a]n entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the purpose of legal reasoning is treated

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more or less as a human being », GARNER B. A., Black’s Law Dictionary, St. Paul. Minnesota, West Group, 1999, p. 1162. (75)

La Réponse de l’Accusation, par. 7-b : C’est à cela que l’Accusation se réfère lorsqu’elle évoque une interprétation plus large de la notion de victime en affirmant : « Si l’on choisit une interprétation plus large, une personne doit être considérée comme victime lorsqu’elle est reliée à l’ensemble de la situation relevant de la compétence de la Cour, quelles que soient la portée de l’enquête ou les affaires qui seront portées devant elle ».

——— Official Translation ——— 79. Rule 85, sub-rule (a), establishes four criteria that have to be met in order to obtain the status of victim: the victim must be a natural person; he or she must have suffered harm; the crime from which the harm ensued must fall within the jurisdiction of the Court; and there must be a causal link between the crime and the harm suffered. Accordingly, the Chamber must answer four main questions: - Are the Applicants natural persons? - Have they suffered harm? - Do the crimes alleged by the Applicants fall within the jurisdiction of the Court? - Is there a causal link between these crimes and the harm suffered by the Applicants? (a) The “natural person” criterion 80. The ordinary meaning of the term “natural person”, as it appears in rule 85 (a), is in French “[un] être humain tel qu’il est consideréré par le droit; la personne humaine prise comme sujet de droit, par opposition à la personne morale”, (67) or, in English, “a human being”.(68) A natural person is thus any person who is not a legal person.(69) (b) The notion of harm 81. The term “harm” is not defined either in the Statute or in the Rules. In the absence of a definition, the Chamber must interpret the term on a case-by-case basis in the light of article 21 (3) of the Statue, according to which “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights”. 82. With regard to the more specific question of determining the harm suffered by the victims, Pre-Trial Chamber I notes that the purpose of this decision is not to make a definitive determination of the harm suffered by the victims, as this will be determined subsequently, where appropriate, by the Trial Chamber in the context of a case. Pre-Trial Chamber I considers, moreover, that the determination of a single instance of harm suffered is sufficient, at this stage, to establish the status of victim. (c) Do the crimes fall within the jurisdiction of the Court? […]66

66

See paras. 83-93 in S1-PT-1.

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(d) The causal link between the crimes falling within the jurisdiction of the Court and the harm suffered 94. The fourth criterion laid down in rule 85 (a), reflected in the words “as a result of”, is that of the causal link that must exist between a crime falling within the jurisdiction of the Court and the harm suffered by the Applicants. The Chamber therefore considers it necessary to establish that there are grounds to believe that the harm suffered is the result of the commission of crimes falling within the jurisdiction of the Court. However, the Chamber considers that it is not necessary to determine in any great detail at this stage the precise nature of the causal link and the identity of the person(s) responsible for the crimes. 2. Method of examination 95. The Chamber must define an examination criterion that will enable it to establish the burden of proof for future victims and their legal representatives. The Chamber reserves the right to reject applications for participation that it deems to be unfounded or incomplete. 96. The Chamber reserves the right in future to request additional information from victims and their legal representatives, basing itself on the statement in each application. The Chamber also reserves the right to request the Registry’s assistance in respect of the information contained in the Applicants’ statements. To that end, the Chamber will have to inform the Registry of the nature of this assistance in a separate decision from the present one. (a) Examination criterion 97. The Chamber must define an examination criterion to determine whether the Applicants may be accorded the status of victim. However, no criterion for making such an assessment is to be found either in the Statute or in the Rules. The Chamber considers that, having regard to the present stage of the proceedings, i.e. that of investigation of the situation, it is reasonable to set a relatively low threshold. 98. To define this assessment criterion, the Chamber will borrow the criterion that exists at the same stage of the proceedings, i.e. the investigation stage, but which is applicable to the procedural rights of a person other than the victims. Thus, the Chamber finds that the criterion used at the situation stage to accord procedural rights in the context of an investigation, i.e. article 55(2) of the Statute, is that of “grounds to believe”. Moreover, the Chamber notes that as soon as a warrant of arrest is issued, the examination criterion is more restrictive. Thus, according to article 58 (1) (a) of the Statute, the Chamber shall issue a warrant of arrest if it is satisfied that “[t]here are reasonable grounds to believe” that the person concerned has committed a crime. Similarly, at the stage of confirmation of the charges, the criterion used by article 61 (7) of the Statute to determine whether the charges should be confirmed is even more restrictive. The Chamber determines whether there is sufficient evidence “to establish substantial grounds to believe” that the person committed a crime. 99. The Chamber is of the opinion that the term “grounds to believe” constitutes the least demanding criterion at the preliminary stage of the proceedings before the Court. In view of the discretion accorded to the Chamber by the Statute and the Rules, it considers that such a criterion may also be applicable to the procedural

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rights enjoyed by victims. The Chamber therefore concludes that at the situation stage, the status of victim may be accorded only to applicants in respect of whom it has “grounds to believe” that they meet the criteria set forth in rule 85 (a) of the Rules. 100. The Chamber accordingly considers that the criterion used is a non-exhaustive and non-definitive assessment of the above-mentioned criteria laid down in rule 85. Thus, the Applicants must demonstrate that there are grounds to believe that they have suffered harm as a result of a crime within the jurisdiction of the Court, such crime having allegedly been committed within the temporal and territorial limits of the relevant situation.(75) (b) Stages of the examination 101. In assessing the applications for participation, the Chamber will first examine each Applicant’s statement. It will then consider the arguments presented by ad hoc Defence counsel and the Prosecutor. The Chamber will draw on other sources such as official United Nations reports. The next step will not consist in assessing the credibility of the statement or engaging in a process of corroboration stricto sensu but rather in checking whether the victim’s account of the events is consistent with official reports (particularly United Nations reports). The Chamber can then assess whether there are “grounds to believe” that the criteria laid down in rule 85 (a) of the Rules have been met. The Chamber stresses that it is for the victims and their legal representatives to furnish the requisite information in support of their application. […] 130. The Chamber takes note of the arguments of the Defence but points out that the method used here is a non-exhaustive and non-definitive assessment of the criteria laid down in rule 85 (a) of the Rules. [….] ————————— (67) G. Cornu, Vocabulaire juridique, Paris, Quadrige/PUF, 2003, p.653. (68) Black’s Law Dictionary gives the following definition: “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is capable is a person, whether a human being or not and not being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives the legal recognition.” See John Salmond, Jurisprudence 318 (Glanville L. Williams ed., 10th edn 1947), cited in B. A. Garner, Black’ s Law Dictionary, St. Paul, Minnesota, West Group, 2004, p. 1178. (69) See the definition of “personne morale” [legal person] given by the dictionary Le nouveau PETIT ROBERT : “groupement de personnes ou établissement titulaire d’un patrimoine collectif et doté de droits et d’obligations, mais n’ayant pas d’existence corporelle”, Le nouveau PETIT ROBERT, Dictionnaire alphabétique et analogique de la langue, Paris, Dictionnaires Le Robert, 2003, p. 1913. A “personne morale” may also be defined as a “groupement doté, sous certaines conditions, d’une personnalité juridique plus ou moins complète ; [un] sujet de droit fictif qui, sous l’aptitude commune à être titulaire de droit et d’obligation, est soumis à un régime variable, notamment selon qu’il s’agit d’une personne morale de droit privé ou d’une personne morale de droit public”, G. Cornu Vocabulaire juridique, Paris, Quadrige/PUF, 2003, p. 653. See also the synonyms of legal persongiven by Black’s Law Dictionary : “fictitious person; juristic person; legal person; moral person”, and its definition of an “artificial person”: “an entity, such as a corporation, created by law and given certain legal rights and duties of a human being; a being, real or imaginary, who for the

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purpose of legal reasoning is treated more or less as a human being”, B. A. Garner, Black’s Law Dictionary, St. Paul, Minnesota, West Group, 1999, p. 1162. (75) The Prosecution’s reply, para. 7 (b): This is what the Prosecution refers to as a broader interpretation of the notion of victim when it states: “A broader interpretation is that a person is a ‘victim’ when related to the whole situation which is within the jurisdiction of the Court, no matter what the scope of the investigation or what cases are brought before the Court.”

x

Rule 85(a): Definition of victims – Applicable criteria – “Harm” – Admitted harms: emotional suffering related to the loss of family members, enslavement and detention or torture, economic loss, physical suffering – Test: grounds to believe that a person has suffered harm

R85-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 114-117, 129-132, 144-147, 171-173:67

114. S’agissant du préjudice subi, VPRS 1 considère que le préjudice le plus important est la perte de son mari, de ses EXPURGÉ filles ainsi que de ses neveux, et que ces décès successifs constituent un choc insurmontable pour elle. Elle estime avoir également subi un préjudice en raison de l’incendie de sa maison et du pillage de ses biens. 115. Pour ce qui est de l’évaluation du préjudice, la Chambre note que la « Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d’abus de pouvoir », adoptée en 1985 par l’Assemblée générale des Nations Unies » (« la Déclaration de 1985 ») (84), et que les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international relatif aux droits de l’homme et de violations graves du droit international humanitaire » adoptés par la Commission des droits de l’homme (« les Principes de 2005 ») (85), reconnaissent la « souffrance morale » et la « perte matérielle » comme formes de préjudice (86). 116. Par ailleurs, la Chambre se réfère à la Cour interaméricaine et à la Cour européenne qui ont, à de nombreuses reprises dans leur jurisprudence, octroyé une réparation pour le dommage subi dû à une souffrance morale ou à des pertes matérielles(87). La Chambre note à cet égard que dans l’arrêt Ayder et autres c. Turquie du 8 janvier 2004(88), la Cour européenne a accordé une compensation au titre du dommage matériel du fait de la destruction d’habitation. En outre, dans l’arrêt Keenan c. Royaume-Uni du 3 avril 2001(89), la Cour européenne a octroyé une réparation à la victime au titre du dommage moral à cause de l’angoisse et de la détresse éprouvées en raison des conditions dans lesquelles son fils avait été détenu. La Chambre constate que conformément aux droits de l’homme internationalement

67

See also Para. 159-162 and 181-183 of the same Decision.

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reconnus, la souffrance morale et la perte matérielle constituent un préjudice au sens de la règle 85 du Règlement. 117. La Chambre considère donc qu’il y a des motifs de croire que VPRS 1 a subi un préjudice qui, à ce stade, peut être qualifié de souffrance morale liée à la perte des membres de sa famille. La Chambre considère également que VPRS 1 a subi un préjudice qui peut être qualifié de perte matérielle en raison du pillage et de l’incendie de sa maison. […] 129. S’agissant du préjudice subi, VPRS 2 indique qu’il a perdu EXPURGÉ membres de sa famille et que sur le plan matériel, il a perdu tous ses biens de même que sa maison. EXPURGÉ. Le conseil ad hoc de la Défense fait valoir que la déclaration de VPRS 2 est vague et n’indique pas son degré de parenté avec les personnes décédées, même si les termes « fils » et « sœur » y sont utilisés. Il indique qu’en Afrique, on peut appeler « père », « mère », « frère » ou « sœur » des personnes avec lesquelles aucun lien biologique n’existe et que dans ce contexte, la Chambre devrait exiger davantage de précisions sur le sens de l’expression « membre de la famille ». Il soutient également que le nombre de personnes décédées n’est pas mentionné, même approximativement. 130. La Chambre prend note des arguments avancés par la Défense tout en rappelant que la méthode utilisée ici est une évaluation non exhaustive et non définitive des critères de la règle 85-a du Règlement. Par ailleurs, la Chambre observe que VPRS 2 a déclaré avoir perdu EXPURGÉ membres de sa famille qu’il énumère comme étant notamment : son fils et EXPURGÉ sœurs. 131. Pour ce qui est de l’évaluation du préjudice, la Chambre prend note de la Déclaration de 1985 ainsi que des Principes de 2005, reconnaissant la « souffrance morale » et la « perte matérielle » comme formes de préjudice (96). Par ailleurs, la Chambre renvoie de nouveau aux arrêts de la Cour européenne et de la Cour interaméricaine qu’elle avait cités dans le cadre de l’évaluation du préjudice subi par VPRS 1(97). 132. La Chambre considère donc qu’il y a des motifs de croire que VPRS 2 a subi un préjudice qui, à ce stade, peut être qualifié de souffrance morale liée à la perte de membres de sa famille, en particulier son fils et EXPURGÉ sœurs, et de perte matérielle causée notamment par l’incendie de ses maisons. […] 144. Concernant le préjudice subi, VPRS 3 considère avoir subi un préjudice très important en raison de son enlèvement et de sa réduction en esclavage. Il indique avoir dû marcher en transportant de lourds fardeaux, sans manger ni boire, parcourant environ 500 kilomètres. Il ajoute que ses pieds ont gonflé à cause de la fatigue. 145. Pour ce qui est de l’évaluation du préjudice, la Chambre prend note de la Déclaration de 1985 ainsi que des Principes de 2005, reconnaissant la « souffrance morale » et la « souffrance physique » comme formes de préjudice(101). 146. La Chambre observe également que la Cour interaméricaine et la Cour européenne ont octroyé réparation pour le dommage subi dû à une souffrance morale

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ou une souffrance physique(102). Par ailleurs, la Chambre note que dans l’arrêt Velasquez Rodriguez c. Honduras du 29 juillet 1998(103), la Cour interaméricaine a considéré que la détention prolongée dans certaines conditions constituait une atteinte à l’intégrité physique et morale, et donc un préjudice. 147. La Chambre considère donc qu’il y a des motifs de croire que VPRS 3 a subi un préjudice qui, à ce stade, peut être qualifié notamment de souffrance morale et de souffrance physique liées à sa réduction en esclavage et à sa détention. […] 171. Concernant le préjudice subi, VPRS 5 fait valoir qu’il a été torturé et considère que sa détention était illégale. Il indique également qu’il est tombé très souvent malade depuis cette détention et qu’il a perdu sa maison et de nombreux biens du fait des pillages. 172. Pour ce qui est de l’évaluation du préjudice, la Chambre prend note de la Déclaration de 1985 ainsi que des Principes de 2005, reconnaissant la « souffrance morale », la « souffrance physique » et la « perte matérielle » comme formes de préjudice(123). Par ailleurs, la Chambre renvoie de nouveau aux arrêts de la Cour interaméricaine et de la Cour européenne qu’elle avait cités dans le cadre des évaluations du préjudice subi par VPRS 1 et VPRS 3, énonçant que la souffrance morale, la souffrance physique et les pertes matérielles constituent un préjudice (124). De plus, dans l’arrêt Selmouni c. France du 29 juillet 1999(125), la Cour européenne a considéré que la torture constituait une atteinte à l’intégrité physique et morale, et donc un préjudice. 173. La Chambre considère donc qu’il y a des motifs de croire que VPRS 5 a subi un préjudice qui, à ce stade, peut être qualifié de souffrances morales et physiques liées à sa détention et aux tortures qu’il a subies. La Chambre considère également que VPRS 5 a subi un préjudice qui peut être qualifié de perte matérielle causée par le pillage de ses biens et la destruction de sa maison. ————————— (84) Assemblée générale, résolution 40/34, 29 novembre 1985, 40 e session, Document des Nations Unies A/RES/40/34. (85) Commission des droits de l’homme, résolution 2005/35, 19 avril 2005. Voir Commission des droits de l’homme, rapport sur la 61ème session : « Projets de résolution et de décision qu’il est recommandé au Conseil économique et social d’adopter et résolutions et décisions adoptées par la Commission à sa 61 ème session », 14 mars-22 avril 2005, Document des Nations Unies E/2005/23 (Part.I), E/CN.4/2005/134 (Part I), p.140 à 147. (86) Assemblée générale, résolution 40/34, voir supra, par. 1 ; Commission des droits de l’homme, résolution 2005/35, voir supra, Annexe, par. 8. (87) Concernant la souffrance morale, voir notamment : Cour européenne des droits de l’homme, Affaire Aksoy c. Turquie, « Arrêt », 18 décembre 1996, requête n° 21987/93, par. 113 ; Cour européenne des droits de l’homme, Affaire Selmouni c. France, « Arrêt », 28 juillet 1999, requête n° 25803/94, par. 123 ; Cour interaméricaine des droits de l’homme, Affaire Aloeboetoe et al. c. Suriname, « Jugement / Réparations (article 63-1) », 10 septembre 1993, Série C N° 15, par. 52 ; Cour interaméricaine des droits de l’homme, Affaire Neira Alegría et al. c. Pérou, « Jugement / Réparations (article 63-1) », 19 septembre 1996, Série C, N° 29, par. 57. Concernant les pertes matérielles, voir notamment : Cour européenne des droits de l’homme, Affaire Ayder et autres c. Turquie, « Arrêt », 8 janvier 2004, requête n° 23656/94, par. 141 et suiv. ; Cour interaméricaine des droits de l’homme, Affaire El Amparo c. Venezuela, « Jugement / Réparations (article 63-1) », 14 septembre 1996, Série C, N° 28, par. 28 à 63 inclus.

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(88)

Cour européenne des droits de l’homme, Affaire Ayder et autres c. Turquie, « Arrêt », 8 janvier 2004, requête n° 23656/94, par. 10 et 141 et suiv. (89) Cour européenne des droits de l’homme, Affaire Keenan c. Royaume-Uni, « Arrêt », 3 avril 2001, Requête n° 27229/95, par. 138. (96) Voir évaluation du préjudice subi par VPRS 1, par. 115-116. (97)

Ibid.

(101)

Voir évaluation du préjudice subi par VPRS 1, par. 115-116. Concernant la souffrance morale, voir notamment : Cour interaméricaine des droits de l’homme, Affaire Neira Alegría et al. c. Pérou, « Jugement / Réparations (article 63-1) », 19 septembre 1996, Série C, N° 29, par. 56 ; Cour interaméricaine des droits de l’homme, Affaire Garrido and Baigorria c. Argentine, « Jugement / Réparations (article 63-1) », 27 août 1998, Série C, N° 39, par. 49 ; Cour européenne des droits de l’homme, Affaire Olsson c. Suède, « Arrêt », 24 mars 1988, requête n° 10465/83, par. 102. Concernant la souffrance physique, voir notamment : Cour européenne des droits de l’homme, Affaire X et Y c. Pays-Bas, « Arrêt », 26 mars 1985, requête n° 8978/80, par. 22 ; Cour européenne des droits de l’homme, Affaire Y. F. c. Turquie, « Arrêt », 22 juillet 2003, requête n° 24209/94, par. 33. (103) Cour interaméricaine des droits de l’homme, Affaire Velasquez Rodriguez c. Honduras, « Arrêt », 29 juillet 1988, Série C, n° 4, par. 156, 175 et 187. (123) Voir évaluation du préjudice subi par VPRS 3, par. 145-146. (124) Voir évaluation du préjudice subi par VPRS 1, par. 115-116. (125) Cour européenne des droits de l’homme, Affaire Selmouni c. France, « Arrêt », 28 juillet 1999, requête n° 25803/94, par. 123. (102)

——— Official Translation ——— 114. With respect to harm suffered, VPRS 1 considers that the greatest harm she suffered was the loss of her husband, her REDACTED daughters and her nephews, and that the shock caused by these successive deaths has been insurmountable. She also considers that she suffered harm from the burning of her house and the looting of her property. 115. For the purpose of assessing the harm suffered, the Chamber notes that the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, adopted in 1985 by the United Nations General Assembly (the “1985 Declaration”), (84) and the “Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law”, adopted by the Commission on Human Rights(85) (the “2005 Principles”), recognise “emotional suffering” and “economic loss” as forms of harm.(86) 116. Furthermore, the Chamber refers to the Inter-American Court of Human Rights and the European Court of Human Rights, which in their case law have repeatedly awarded reparations for harm due to emotional suffering or economic loss. (87) The Chamber notes in this connection that the European Court of Human Rights, in its judgment of 8 January 2004 in the Ayder and Others v. Turkey case,(88) awarded pecuniary damages in respect of the destruction of housing. Moreover, in its judgment in the Keenan v. the United Kingdom case of 3 April 2001,(89) the European Court awarded the victim non-pecuniary damages for the anguish and distress she had suffered on account of the conditions in which her son had been detained. The Chamber notes that, in accordance with internationally recognised human rights, emotional suffering and economic loss constitute harm within the meaning of rule 85 of the Rules.

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117. The Chamber therefore considers that there are grounds to believe that VPRS 1 suffered harm that may be characterised at this stage as emotional suffering related to the loss of family members. The Chamber further considers that VPRS 1 suffered harm that may be characterised as economic loss on account of the looting and burning of her house. […] 129. With regard to the harm suffered, VPRS 2 states that he lost REDACTED family members and, in material terms, all his property and his house. REDACTED. Ad hoc Defence counsel argues that the statement by VPRS 2 is vague and fails to indicate his degree of relationship with the deceased persons, although the terms “son” and “sister” are used. He points out that in Africa one may call a person “father”, “mother”, “brother” or “sister” without having any biological tie with the person concerned, and that the Chamber should demand to know exactly what the term “family member” means in this context. He further points out that the number of persons who died is not even roughly specified. 130. The Chamber takes note of the arguments of the Defence but points out that the method used here is a non-exhaustive and non-definitive assessment of the criteria laid down in rule 85 (a) of the Rules. The Chamber also notes that VPRS 2 stated that he had lost REDACTED family members and specified that they included his son and REDACTED sisters. 131. In assessing the harm suffered, the Chamber takes note of the 1985 Declaration and the 2005 Principles recognising “emotional suffering” and “economic loss” as forms of harm. (96) The Chamber also draws attention again to the judgments of the European Court and the Inter-American Court that it mentioned in connection with the assessment of the harm suffered by VPRS 1.(97) 132. The Chamber therefore considers that there are grounds to believe that VPRS 2 suffered harm that may be characterised at this stage as mental suffering linked to the loss of family members, particularly his son and REDACTED sisters, and economic loss due, in particular, to the burning of his houses. […] 144. With regard to the harm suffered, VPRS 3 considers that he suffered severe harm as a result of his abduction and enslavement. He claims he had to walk for some 500 kilometres carrying a heavy load without eating or drinking. He adds that his feet were swollen from exhaustion. 145. In assessing the harm suffered, the Chamber takes note of the 1985 Declaration and the 2005 Principles recognising “emotional suffering” and “physical suffering” as forms of harm.(101) 146. The Chamber also notes that the Inter-American Court and the European Court have awarded reparations for harm due to emotional suffering or physical suffering.(102) The Chamber further notes that in its Velásquez Rodríguez v. Honduras of 29 July 1998,(103) the Inter-American Court held that prolonged detention in specific circumstances was detrimental to physical and moral integrity, and hence a form of harm.

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147. The Chamber therefore considers that there are grounds to believe that VPRS 3 suffered harm that may be characterised at this stage as emotional suffering and physical suffering related to his enslavement and detention. […] 171. With regard to the harm suffered, VPRS 5 states that he was tortured and considers that his detention was unlawful. He also states that he has frequently fallen ill since his detention and that he has lost his house and a substantial amount of looted property. 172. In assessing the harm suffered, the Chamber takes note of the 1985 Declaration and the 2005 Principles recognising “emotional suffering”, “physical suffering” and “economic loss” as forms of harm.(123) Furthermore, the Chamber again refers to the judgments of the Inter-American Court and the European Court that it cited when assessing the harm suffered by VPRS 1 and VPRS 3, which hold that emotional suffering, physical suffering and economic loss constitute harm.(124) Moreover, in its judgment in the Selmouni v. France case of 29 July 1999,(125) the European Court held that torture was an assault on a person’s physical and moral integrity and hence constituted harm. 173. The Chamber therefore considers that there are grounds to believe that VPRS 5 suffered harm that may be characterised at this stage as emotional and physical suffering related to his detention and the torture he suffered. The Chamber also considers that VPRS 5 suffered harm that may be characterised as economic loss as a result of the looting of his property and the destruction of his house. ————————— (84) General Assembly resolution 40/34, 29 November 1985, fortieth session, United Nations document A/RES/40/34. (85) Commission on Human Rights, resolution 2005/35, 19 April 2005. See Commission on Human Rights, report on the sixty-first session: “Draft resolution and draft decisions recommended for adoption by the Economic and Social Council, and the resolutions and decisions adopted by the Commission at its sixty-first session”, 14 March – 22 April 2005, United Nations document, E/2005/23 (Part I), E/CN.4/2005/134 (Part I), pp. 136-142. (86) General Assembly resolution 40/34, see above, para. 1 ; Commission on Human Rights, resolution 2005/35, see above, annex, para. 8. (87) With regard to emotional suffering, see in particular: European Court of Human Rights, Aksoy v. Turkey, “Judgment”, 18 December 1996, Application No. 21987/93, para. 113; European Court of Human Rights Selmouni v. France, “Judgment”, 28 July 1999, Application No. 25803/94, para. 123; Inter-American Court of Human Rights, Aloeboetoe et al. v. Suriname, “Judgment/Reparations (Art. 63(1))”, 10 September 1993, Series C No. 15, para. 52; Inter-American Court of Human Rights, Neira Alegría et al. v. Peru, “Judgment/Reparations (Art. 63(1)”, 19 September 1996, Series C No. 29, para. 57. With regard to economic loss, see in particular: European Court of Human Rights, Ayder and Others v. Turkey, “Judgment”, 8 January 2004, Application No. 23656/94, paras. 141ff; InterAmerican Court of Human Rights, El Amparo v. Venezuela, “Judgment/Reparations (Art. 63 (1))”, 14 September 1996, Series C No. 28, paras. 28 to 63. (88) European Court of Human Rights, Ayder and Others v. Turkey, “Judgment”, 8 January 2004, Application No. 23656/94, paras. 10 and 141ff. (89) European Court of Human Rights, Keenan v. the United Kingdom, “Judgment”, 3 April 2001, Application No. 27229/95, para. 138. (96) See the assessment of harm suffered by VPRS 1, paras. 115.116. (97) Ibid. (101) See the assessment of harm suffered by VPRS 1, paras. 115-116.

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(102)

With regard to emotional suffering, see in particular: Inter-American Court of Human Rights, Neira Alegría et al. v. Peru, “Judgment/Reparations (Art. 63 (1))”, 19 September 1996, Series C No. 29, para. 56; Inter-American Court of Human Rights, Garrido and Baigorria v. Argentina, “Judgment/Reparations (Art. 63 (1))”, 27 August 1998, Series C No. 39, para. 49; European Court of Human Rights, Olsson v. Sweden, “Judgment”, 24 March 1988, Application No. 10465/83, para. 102. With regard to physical suffering, see in particular: European Court of Human Rights, X and Y v. the Netherlands, “Judgment”, 26 March 1985, Application No. 8978/80, para. 22; European Court of Human Rights, Y.F. v. Turkey, “Judgment”, 22 July 2003, Application No. 24209/94, para. 33. (103) Inter-American Court of Human Rights, Velásquez Rodríguez v. Honduras, “Judgment”, 29 July 1988, Series C No. 4, paras. 156, 175 and 187. (123) See the assessment of harm suffered by VPRS 3, paras. 145-146. (124) See the assessment of harm suffered by VPRS 1, paras. 115-116. (125) European Court of Human Rights, Selmouni v. France, “Judgment”, 28 July 1999, Application no. 25803/94, para. 123.

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Rule 85(a): Definition of victims – Applicable criteria – “Harm” – Admitted harms: mental and physical suffering as a consequence of enrolment as child soldier

R85-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006, p. 12:

ATTENDU qu'en l'espèce, la Chambre considère qu'il y a des motifs raisonnables de croire que le Demandeur a/0105/06 a subi un préjudice qui peut être qualifié de préjudice moral(89) et physique(90) du fait de son enrôlement dans les milices de l'UPC ; que le demandeur a apporté suffisamment d'éléments permettant à la Chambre de considérer qu'il y a des motifs raisonnables de croire qu'il a subi un préjudice du fait de crimes mentionnés dans le mandat d'arrêt délivré à l'encontre de Thomas Lubanga Dyilo et qu'il doit se voir reconnaître la qualité de victime dans l'affaire Le Procureur c. Thomas Lubanga Dyilo, ———————— (89) ICC-01/04-101, par. 115 et 116. (90) ICC-01/04-101, par. 146.

——— Official Translation ——— CONSIDERING that in this case, the Chamber is of the opinion that there are reasonable grounds to believe that Applicant a/0105/06 suffered harm that may be characterised as emotional(89) and physical suffering(90) due to his enlistment in the UPC militia; that the applicant has provided sufficient evidence to satisfy the Chamber that there are reasonable grounds to believe that he suffered harm as a

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result the crimes set forth in the warrant of arrest issued against Thomas Lubanga Dyilo and that he should be granted victim status in the case of The Prosecutor v. Thomas Lubanga Dyilo; ————————— (89) ICC-01/04-101, paras. 115 and 116. (90 ICC-01/04-101, para. 146.

x

Rule 85(a): Definition of victims – Applicable criteria – “Commission of any crime within the jurisdiction of the Court” – Limited assessment under Rule 85 – Identification of some possible charges

R85-PT-6

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras.118-119, 122-123:68

118. La troisième question posée à la Chambre est celle de savoir s’il y a eu ou non commission d’un crime relevant de la compétence de la Cour. Comme indiqué précédemment(90), la Chambre concentrera son analyse sur la compétence ratione materiae de la Cour au regard des événements précités. 119. La déclaration de VPRS 1 fait état, notamment, de pillages ainsi que d’une attaque EXPURGÉ, effectuée à grande échelle par des miliciens EXPURGÉ qui « s’en prenaient très sauvagement à toute personne n’appartenant pas à leur ethnie ». Cette déclaration semble concorder avec les conclusions figurant dans les rapports rédigés par certains organes de l’ONU. […] […] 122. La Chambre prend note du commentaire du conseil ad hoc de la Défense selon lequel la déclaration de VPRS 1 n’indique ni les circonstances de la mort des membres de sa famille autres que son mari ni le nombre de ces morts, même sommairement. Il ajoute que VPRS 1 se déclare à la fois victime et témoin mais qu’elle n’a pas assisté aux faits qu’elle expose. 123. La Chambre constate que les crimes relatés par VPRS 1 et qui semblent avoir été commis sont : le meurtre de son mari, le meurtre de EXPURGÉ filles et EXPURGÉ neveux, le pillage de ses biens et la destruction de sa maison. La Chambre constate que VPRS 1, dans sa déclaration, fait une description similaire des évènements pertinents cités dans les rapports susmentionnés, en l’occurrence : du lieu (EXPURGÉ), de la date (EXPURGÉ 2002), de l’ethnie visée par les crimes (EXPURGÉ), du fait que des miliciens étaient à l’origine de l’attaque et du type d’actes perpétrés (meurtre et pillage). La Chambre prend note de l’argument du conseil ad hoc de la Défense susmentionné mais estime, sous réserve d’un réexamen

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See also Para. 134, 148-152, 163-166, 174-175 and 184-185 of the same Decision.

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de la question en vertu de la règle 91-1 du Règlement et compte tenu des informations disponibles, qu’il y a des motifs de croire que les crimes rapportés dans la déclaration de VPRS 1 relèvent de la compétence de la Cour en vertu des articles 6 à 8 du Statut, notamment, des articles 7-1-a et/ou 7-1-h, 8-2-c-i et/ou 8-2-e-i et/ou 8-2-e-v. ————————— (90) Voir la section c) « les crimes relèvent-ils de la compétence de la Cour », par. 83-93.

——— Official Translation ——— 118. The third question that the Chamber must address is whether or not a crime within the jurisdiction of the Court was committed. As indicated above, (90) the Chamber will focus on the Court’s jurisdiction ratione materiae in respect of the above-mentioned events. 119. VPRS 1’s statement refers, in particular, to looting and a large-scale attack REDACTED by REDACTED militia, who “brutally attacked anyone not belonging to their ethnic group”. The statement seems to be consistent with the conclusions of reports drawn up by certain United Nations bodies. […] […] 122. The Chamber takes note of ad hoc Defence counsel’s comment to the effect that VPRS 1’s statement does not indicate, even in passing, the circumstances of the death of the members of her family, except for her husband, or the number who died. He adds that although VPRS 1 claims to be both a victim and a witness, she was not present when the facts she reports occurred. 123. The Chamber notes that the crimes reported by VPRS 1, which appear to have been committed, are: the murder of her husband, the murder of REDACTED daughters and REDACTED nephews, the looting of her property and the destruction of her house. The Chamber notes that in her statement VPRS 1 gives a similar description of the relevant events mentioned in the above-mentioned reports, that is to say: the place (REDACTED), the date (REDACTED 2002), the ethnic group targeted by the crimes (REDACTED), the fact that militias carried out the attack and the type of acts perpetrated (murder and looting). The Chamber notes the abovementioned argument of ad hoc Defence counsel but considers that, subject to reexamination of the matter under rule 91 (1) of the Rules and taking into account available information, there are grounds to believe that the crimes reported in the statement by VPRS 1 fall within the jurisdiction of the Court pursuant to articles 6 to 8 of the Statute, in particular articles 7 (1) (a) and/or 7 (1) (h), 8 (2) (c) (i) and/or 8 (2) (e) (i) and/or 8 (2) (e) (v). ————————— (90) See section (c), “Do the crimes fall within the jurisdiction of the Court?”, paras. 83–93.

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Rule 85(a): Definition of victims – Applicable criteria – “as a result of” – Admission of causality between the commission of a crime within the jurisdiction of the Court and harm suffered without further reasoning – “grounds to believe”

R85-PT-7

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la

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Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, para.124 :69 124. En outre, la Chambre est d’avis qu’il y a des motifs de croire que VPRS 1 a subi un préjudice du fait de la commission desdits crimes.

——— Official Translation ——— 124. The Chamber also considers that there are grounds to believe that VPRS 1 suffered harm as a result of the commission of those crimes.

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Rule 85(a): Definition of victims – Applicable criteria – “as a result of” – Reasonable grounds to believe in a direct link between the harm suffered and the crimes charged in the warrant of arrest

R85-PT-8

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c/ Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of Congo) (PT), 28 July 2006:70

ATTENDU que dans la « Décision sur les demandes de participation à la procédure présentées par les Demandeurs VPRS 1à VPRS 6 dans l’affaire Le Procureur c. Thomas Lubanga Dyilo » (22), rendue par la chambre le 22 juin 2006, celle-ci a considéré qu’au stade de l’affaire, les Demandeurs doivent démontrer qu’un lien de causalité suffisant existe entre le préjudice qu’ils ont subi et les crimes dont il y a des motifs raisonnables de croire que Thomas Lubanga Dyilo est responsable pénalement et pour la commission desquels la Chambre a délivré un mandat d’arrêt ; que le lien de causalité exigé par la règle 85 du Règlement au stade de l’affaire est démontré dès lors que la victime, ainsi que, le cas échéant, la famille proche ou les personnes à charge de cette victime directe(23), apportent suffisamment d’éléments permettant d’établir qu’elle a subi un préjudice directement lié aux crimes exposés dans le mandat d’arrêt ou qu’elle a subi un préjudice en intervenant pour venir en

69

See also Para. 135, 153, 167, 176 and 186 of the same Decision. Situation en République Démocratique du Congo, No. ICC-01/04, Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (PT), 31 juillet 2006.

70

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aide aux victimes directes de l’affaire ou pour empêcher que ces dernières ne deviennent victimes du fait de la commission de ces crimes(24),  ATTENDU que la Chambre considère qu’elle dispose d’éléments suffisants permettant d’établir le lien de parenté entre le Demandeur a/0001/06 et ceux qu’elle représente, eu égard aux documents figurant en annexe de la présente demande (25), à savoir l’attestation de naissance de [expurgé], une photo, une attestation de sortie d’un groupe armé au nom de [expurgé] et la carte d’identité nationale de [expurgé], ATTENDU qu’en l’espèce, la Chambre considère qu’il y a des motifs raisonnables de croire que le Demandeur a/0001/06 et ceux qu’elle représente ont subi un préjudice moral(26) du fait de l’enrôlement de ces derniers dans les milices de l’UPC ; qu’il y a des motifs raisonnables de croire que les deux enfants représentés par le Demandeur a/0001/06 ont subi un préjudice physique(27) du fait de leur enrôlement dans les milices de l’UPC ;que ces trois personnes ont apporté suffisamment d’éléments permettant à la Chambre de considérer qu’il y a des motifs raisonnables de croire qu’elles sont victimes de crimes mentionnés dans le mandat d’arrêt délivré à l’encontre de Thomas Lubanga Dyilo et qu’elles doivent se voir reconnaître la qualité de victimes dans l’affaire Le Procureur c. Thomas Lubanga Dyilo, […] ATTENDU qu’en l’espèce, la Chambre considère qu’il y a des motifs raisonnables de croire que le Demandeur a/0002/06 et son fils mineur [expurgé], né à [expurgé] le [expurgé], dont il est le représentant légal, ont subi un préjudice moral(29) du fait de l’enrôlement de ce dernier dans les milices de l’UPC ; qu’il y a des motifs raisonnables de croire que l’enfant représenté par le Demandeur a/0002/06 a subi un préjudice physique(30) du fait de son enrôlement dans les milices de l’UPC ; que le Demandeur a/0002/06 a apporté suffisamment d’éléments permettant à la Chambre de considérer qu’il y a des motifs raisonnables de croire qu’il est, ainsi que la personne qu’il représente, victime de crimes mentionnés dans le mandat d’arrêt délivré à l’encontre de Thomas Lubanga Dyilo et qu’ils doivent se voir reconnaître la qualité de victimes dans l’affaire Le Procureur c. Thomas Lubanga Dyilo, […] ATTENDU que la Chambre considère que le Demandeur a/0003/06 agit en son nom propre, que la mention faite par Me Luc Walleyn et Me Franck Mulenda, Représentants légaux du Demandeur, selon laquelle ce dernier agit également au nom de son épouse, ne peut être prise en considération dans la mesure où aucune autorisation expresse n’a été jointe par l’intéressé, ATTENDU qu’en l’espèce, la Chambre considère qu’il y a des motifs raisonnables de croire que le Demandeur a/0003/06 a subi un préjudice moral (32) du fait de l’enrôlement de son fils dans les milices de l’UPC ; qu’il y a des motifs raisonnables de croire que cet enfant a été victime de la pratique de l’UPC consistant à recruter des jeunes dans la ville de [expurgé] pour renforcer ses effectifs ; que le Demandeur a/0002/06 a apporté suffisamment d’éléments permettant à la Chambre de considérer qu’il y a des motifs raisonnables de croire qu’il est victime de crimes mentionnés dans le mandat d’arrêt délivré à l’encontre de Thomas Lubanga Dyilo et qu’il doit se voir reconnaître la qualité de victime dans l’affaire Le Procureur c. Thomas Lubanga Dyilo,

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[…] ATTENDU que les victimes relatent d’autres crimes sans lien avec l’affaire Le Procureur c. Thomas Lubanga Dyilo et que, toutefois, la Chambre considère que les demandeurs pourront participer à la procédure dans le cadre de l’enquête relative à la situation en RDC après avoir démontré qu’il y a des motifs de croire qu’ils ont subi un préjudice du fait de la commission de ces crimes si ceux-ci relèvent de la compétence de la Cour, […] ATTENDU que la Chambre considère, s’agissant du préjudice subi par le Demandeur a/0001/06 et ceux qu’elle représente du fait de l’assassinat de son fils par les membres de l’APC, qu’il y a des motifs de croire qu’ils ont subi un préjudice qui, à ce stade, peut être qualifié de souffrance morale liée à la perte d’un membre de leur famille(35) ; que la Chambre constate que le Demandeur a/0001/06 fait, dans sa déclaration, une description similaire et sous réserve de toute déclaration ultérieure(36) et que le crime relaté par le Demandeur a/0001/06 entre dans le champ de compétence de la Cour en vertu des articles 6 à 8 du Statut, notamment de l’article 7-1-a du Statut, ATTENDU que la Chambre considère qu’elle ne dispose pas d’éléments suffisants permettant de déterminer que la mort de l’époux du demandeur a/0001/06 est un préjudice dû à la commission d’un crime relevant de la compétence de la Cour, ATTENDU que la Chambre considère, s’agissant du préjudice subi par le Demandeur a/0002/06 et celui qu’il représente du fait de l’assassinat de sa femme et de leur fils de [expurgé] pendant des combats entre le FNI et le RFPI et l’UPDF, qu’il y a des motifs de croire qu’ils ont subi un préjudice qui, à ce stade, peut être qualifié de souffrance morale liée à la perte de membres de leur famille(37) ; que la Chambre constate que le Demandeur a/0002/06 fait, dans sa déclaration, une description similaire des événements pertinents en l’état des renseignements dont elle dispose et sous réserve de toute décision ultérieure(38) ; et que le crime relaté par le Demandeur a/0002/06 entre dans le champ de compétence de la Cour, en vertu des articles 6 à 8 du Statut, notamment de l’article 7-1-a du Statut, ATTENDU que la Chambre considère, s’agissant du préjudice subi par le Demandeur a/0003/06 du fait de l’assassinat de son fils le [expurgé]2003 à la suite d’une attaque de l’UPC menée dans le quartier [expurgé], qu’il y a des motifs de croire qu’il a subi un préjudice qui, à ce stade, peut être qualifié de souffrance morale liée à la perte d’un membre de sa famille (39) ; que la Chambre constate que le Demandeur a/0003/06 fait, dans sa déclaration, une description similaire des événements pertinents en l’état des renseignements dont elle dispose et sous réserve de toute décision ultérieure(40) ; et que le crime relaté par le Demandeur a/0003/06 entre dans le champ de compétence de la Cour, en vertu des articles 6 à 8 du Statut, notamment de l’article 7-1-a du Statut, ————————— (22) ICC-01/04-01/06-172. (23) ICC-01/04-01/06-172. Voir la “Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d’abus de pouvoir », Assemblée Générale des Nations Unies, résolution 40/34, 29 novembre 1985, 40e session, Document des Nations Unies A/RES/40/34. Voir également les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international

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relatif aux droits de l’homme et de violations graves du droit international humanitaire », Commission des droits de l’homme, résolution 2005/35, 19 avril 2005. Cour interaméricaine des droits de l’homme, Affaire Velásquez Rodriguez c. Honduras. Arrêt du 29 juillet 1988, par. 127 à 139; Cour interaméricaine des droits de l’homme, Affaire Fairén-Garbi et SolísCorrales c. Honduras. Arrêt du 15 mars 1989, par. 130 à 136; Cour interaméricaine des droits de l’homme, Affaire des “Enfants de la rue” (Villagrán-Morales et consorts c. Guatemala), Arrêt du 19 novembre 1999, par. 174 à 177 ; Cour interaméricaine des droits de l’homme, Affaire « Panel Blanca » c. Guatemala (Paniagua-Morales et consorts). Réparations, Arrêt du 25 mai 2001 ; Cour interaméricaine des droits de l’homme, Affaire « Panel Blanca » c. Guatemala (Paniagua-Morales et consorts). Réparations, Déclaration en audience publique devant la Cour, 11 août 2000, p. 144 à 175. (24) Voir la “Déclaration des principes fondamentaux de justice relatifs aux victimes de la criminalité et aux victimes d’abus de pouvoir », Assemblée Générale des Nations Unies, résolution 40/34, 29 novembre 1985, 40 e session, Document des Nations Unies A/RES/40/34. Voir également les « Principes fondamentaux et directives concernant le droit à un recours et à réparation des victimes de violations flagrantes du droit international relatif aux droits de l’homme et de violations graves du droit international humanitaire », Commission des droits de l’homme, résolution 2005/35, 19 avril 2005. (25) ICC-01/04-01/06-98-Conf-Exp, 11 mai 2006, voir l’attestation de naissance d’un des enfants du demandeur et de l’attestation de sortie d’un groupe armé pour le second (p. 26 et 29 de la demande de participation à la procédure a/0001/06). (26) ICC-01/04-101, par. 115 et 116. (27) ICC-01/04-101, par. 146. (29) ICC-01/04-101, par. 115 et 116. (30) ICC-01/04-101, par. 146. (32) ICC-01/04-101, par. 115 et 116. (35) ICC-01/04-101. (36) « République démocratique du Congo. Au bord du précipice : aggravation de la situation des droits humains et de la situation humanitaire en Ituri », Rapport Amnesty International, mars 2003, document public, Index AI : AFR 62/006/2003. (37) ICC-01/04-101. (38) Institut d’études de sécurité, Programme africain d’analyse de la sécurité, « Situation Report. Tension in Ituri : An Update on the Democratic Republic of the Congo », 25 avril 2003, p. 3. (39) ICC-01/04-101. (40) Conseil de sécurité, « Quatorzième rapport du Secrétaire général sur la Mission de l’Organisation des Nations Unies en République Démocratique du Congo », 17 novembre 2003, Document des Nations Unies S/2003/1098, par. 3.

——— Official Translation ——— CONSIDERING that in the “Decision on the Application for Participation in the Proceedings of VPRS1 to VPRS6 in the case of The Prosecutor v. Thomas Lubanga Dyilo”(22), which was rendered by the Chamber on 22 June 2006, the Chamber held that at this stage in the case, the Applicants must demonstrate that there is a sufficient causal link between the harm they suffered and the crimes for which there are reasonable grounds to believe that Thomas Lubanga Dyilo is criminally responsible and for whose commission the Chamber issued an arrest warrant; that the causal link required by rule 85 of the Rules with regard to the stage of the case is demonstrated once the victim, and, if applicable, the immediate family or dependents of that victim(23), provide sufficient evidence to establish that that person has suffered harm directly linked to the crimes set out in the arrest warrant or that that person has suffered harm by intervening to assist the direct victims in the case

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or to prevent these victims from becoming victims as a result of these crimes being committed(24); CONSIDERING that the Chamber holds that it has sufficient evidence to allow it to establish the family link between Applicant a/0001/06 and the persons she represents, with regard to the documents annexed to the present application(25), that is, the birth certificate of [redacted], a photograph, a certificate of demobilisation from an armed group in the name of [redacted] and [redacted]’s national identity card; CONSIDERING that in the particular circumstances the Chamber holds that there are reasonable grounds to believe that Applicant a/0001/06 and those that she represents have suffered emotional suffering(26) as a result of the latter being enrolled into the UPC militias; that there are reasonable grounds to believe that the two children represented by Applicant a/0001/06 have suffered physical harm(27) as a result of their enlistment in the UPC militias; that these three persons have provided sufficient evidence to allow the Chamber to hold that there are reasonable grounds to believe that they are victims of the crimes listed in the arrest warrant issued against Thomas Lubanga Dyilo and that they must be granted the status of victim in the case of The Prosecutor v. Thomas Lubanga Dyilo; […] CONSIDERING that in this case the Chamber holds that there are reasonable grounds to believe that Applicant a/0002/06 and his minor son, [redacted], born in [redacted], on [redacted], and for whom he is the legal representative, have endured emotional suffering(29) as a result of the latter’s enlistment into the UPC militias; that there are reasonable grounds to believe that the child represented by Applicant a/0002/06 has endured physical suffering(30) as a result of his enlistment in the UPC militias; that Applicant a/0002/06 has provided sufficient evidence to enable the Chamber to hold that there are reasonable grounds to believe that he, and the person he represents, are the victims of the crimes listed in the arrest warrant issued against Thomas Lubanga Dyilo and that they must be recognise as victims in the case of The Prosecutor v. Thomas Lubanga Dyilo; […] CONSIDERING that the Chamber holds that Applicant a/0003/06 is acting on his own behalf, that the statement by Mr Luc Walleyn and Mr Franck Wulenda, who are the Applicant’s Legal Representatives, which states that the Applicant is also acting on his wife’s behalf, cannot be taken into consideration as no express authorisation has been appended by the Applicant; CONSIDERING that in these particular circumstances the Chamber holds that there are reasonable grounds to believe that Applicant a/0003/06 has endured emotional suffering(32) as a result of his son being enrolled in the UPC militias; that there are reasonable grounds to believe that the child was a victim of the UPC practice of recruiting youths in the town of [redacted] in order to boost its numbers; that Applicant a/0003/06 has provided sufficient evidence to allow the Chamber to hold that there are reasonable grounds to believe that he is a victim of the crimes mentioned in the arrest warrant issued against Thomas Lubanga Dyilo and that he must be granted the status of victim in the case of The Prosecutor v. Thomas Lubanga Dyilo;

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[…] CONSIDERING that the Chamber holds that with regard to the harm suffered by Applicant a/0001/06 and those she represents as a result of the murder of her son by a member of the APC; that there are reasons to believe that they have suffered harm which at this stage can be characterised as emotional suffering related to the loss of a family member(35); that the Chamber notes that in her statement Applicant a/0001/06 presents a similar description of the relevant facts in the light of the information at its disposal and subject to any subsequent decision(36) and that the crime recounted by Applicant a/0001/06 falls within the jurisdiction of the Court pursuant to articles 6 to 8 of the Statute, and in particular article 7 (1) (a) of the Statute; CONSIDERING that the Chamber holds that it does not have sufficient information to determine that the death of the husband of Applicant a/0001/06 constitutes harm caused by the commission of a crime which falls within the jurisdiction of the Court; CONSIDERING that the Chamber holds, with regard to the harm suffered by Applicant a/0002/06 and the person he represents as a result of the murder of his wife and of his son aged two during the fighting between the FI, FRPI and UPDF; that there are grounds to believe that they have suffered harm which at this stage can be characterised as emotional suffering related to the loss of their family members(37); that the Chamber notes that in his statement Applicant a/0002/06 provides a similar description of the relevant events in the light of the information it has at its disposal and subject to ny subsequent decision(38) and that the crime recounted by Applicant a/0002/06 falls within the jurisdiction of the Court pursuant to articles 6 to 8 of the Statute, in particular article 7 (1) (a) of the Statute; CONSIDERING that the Chamber holds that with regard to the harm suffered by Applicant a/0003/06 as a result of his son’s murder on [redacted] 2003 following a UPC attack in the [redacted] district in Bunia, that there are grounds to believe that he has experienced suffering which, at this stage, may be characterised as emotional suffering related to the death of his family member(39); that the Chamber holds that in his statement Applicant a/0003/06 provides a similar description of the relevant events in the light of the information at its disposal and subject to any subsequent decision(40); and that the crime recounted by Applicant a/0003/06 falls within the jurisdiction of the Court pursuant to articles 6 to 8 of the Statute, in particular article 7 (1) (a) of the Statute; ————————— (22) ICC-01/04-01/06-172. (23) ICC-01/04-01/06-172. See the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” United Nations General Assembly, resolution 40/34, 29 November 1985, 40th Session, United Nations Document A/RES/40/34. See also 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", Office of the High Commissioner for Human Rights, resolution 2005/35, 19 April 2005. Inter-American Court of Human Rights, Case of Velásquez Rodriguez c. Honduras, Decree of 29 July 1988, para. 127 to 139; Inter-American Court of Human Rights, Case of Fairén-Garbi and Solis-Corrales c. Honduras, Decree of 15 March 1989 para. 130 to 136; Inter-American Court of Human Rights, Case of the “Street children” (VillagránMorales et consorts, c. Guatemala), Decree of 19 November 1999, para 174-177; InterAmerican Court of Human Rights, Case of “Panel Blanca” c. Guatemala (Paniagua-Morales

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et consorts), Reparations, Decree of 25 May 2001; Inter-American Court of Human Rights Case of “Panel Blanca” c. Guatemala (Paniagua-Morales et consorts), Reparations, statement in a public hearing before the Court, 11 August 2000, p. 144 to 175. (24) See the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power” United Nations General Assembly, resolution 40/34, 29 November 1985, 40 th Session, United Nations Document A/RES/40/34. See also 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", Office of the High Commissioner for Human Rights, resolution 2005/35, 19 April 2005. (25) ICC-01/04-01/06-98-Conf-Exp, 11 May 2006, see the birth certificate for one of the applicant’s children and the certificate of demobilisation from an armed group for the other child (p. 26 and 29 of the application for participation in the proceedings). (26) ICC-01/04-101, paras. 115 and 116 (27) ICC-01/04-101, para. 146 (29) ICC-01/04-101, paras. 115 and 116. (30) ICC-01/04-101, para.146 (32) ICC-01/04-101, paras. 115 and 116 (35) ICC-01/04-101 (36) Democratic Republic of Congo. On the precipice: The deepening human rights and humanitarian crisis in Ituri, Amnesty International report, March 2003, public document, AI Index: AFR 62/006/2003 (37) ICC-01/04-101 (38) Institute for Security Studies, African security analysis programme, “Situation report: Tension in Ituri: An Update on the Democratic Republic of the Congo”, 25 April 2003, p. 3 (39) ICC-01/04-101 (40) United Nations Security Council, “Fourteenth report of the Secretary-General on the United Nations Organization Mission in the Democratic Republic of the Congo”, 17 November 2003, United Nations document S/2003/1098, para. 3.

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Rule 85(a): Definition of victims – Applicable criteria – “Grounds to believe” standard

R85-PT-9

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, paras. 56, 58-59:

56. Enfin, à titre de troisième argument, le Procureur avance qu'en utilisant le critère des « motifs de croire » pour déterminer le statut de victimes des demandeurs, la Chambre préliminaire I a préjugé la question de savoir si les crimes en question avaient été commis(69). […] 58. De l'avis de la Chambre, la règle 85 du Règlement étant applicable, la définition d'un critère, permettant d'évaluer la reconnaissance de la qualité de victime au stade

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de l'enquête dans une situation, était nécessaire. Le critère des « motifs de croire » a été tiré de l'article 55-2 du Statut, et ce pour deux raisons. Premièrement, l'article 55-2 s'applique au stade de l'enquête dans une situation, à la différence des articles 58 et 61 du Statut, qui s'appliquent au stade de l'affaire. En effet, les demandes de participation ont été déposées dans le cadre de l'enquête dans la situation en RDC. La Chambre note que la Décision ne porte que sur la participation des victimes au stade de l'enquête dans la situation en RDC. Deuxièmement, le critère des « motifs de croire » est le critère le moins exigeant. En effet, on peut constater dans les articles 58 et 61 du Statut que les critères deviennent plus stricts lorsque l'on passe d'une phase de la procédure à l'autre. 59. En outre, le Procureur présente comme argument qu'en utilisant le critère des « motifs de croire » la Chambre a préjugé de la commission de crimes relevant de la compétence de la Cour et que la Décision porte atteinte à l'équité de la procédure. La Chambre rappelle que dans la Décision, elle a estimé, s'agissant de crimes relatés par chacun des six Demandeurs, que « sous réserve d'un réexamen de la question en vertu de la règle 91-1 du Règlement et compte tenu des informations disponibles, [...] il y a des motifs de croire que ces crimes relèvent de la compétence de la Cour en vertu des articles 6 à 8 du Statut [...](74) ». La conclusion de la Chambre peut donc être soumise à réexamen en fonction des informations dont elle disposera ultérieurement dans la procédure. A cet égard, la Chambre note que le système mis en place par le Statut aux articles 55, 58 et 61 impose qu'une chambre préliminaire statue sur l'existence de motifs de croire, de motifs raisonnables de croire puis de motifs substantiels de croire que la personne a commis un crime relevant de la compétence de la Cour. Si l'on suivait le raisonnement présenté par le Procureur, la délivrance d'un mandat d'arrêt ou d'une citation à comparaître constituerait également un préjugement par rapport à la décision sur la confirmation des charges et porterait donc atteinte à l'équité de la procédure. Il apparaît donc que l'argument présenté par le Procureur est contraire au système prévu par le Statut lui-même. ———————— (69) Requête du Procureur, par. 13, et 23 à 28. (74) Décision, par. 123,134,152,166,175 et 185.

——— Official Translation ——— 56. Lastly, as a third argument, the Prosecutor claims that by using the “grounds to believe” test to arrive at the determination that the applicants qualify as Victims, Pre-Trial Chamber I prejudged the issue of whether the crimes in question had been committed.(69) […] 58. The Chamber considers that, given the applicability of rule 85 of the Rules, a test enabling a victim status assessment to be made at the investigation stage of a situation needed to be defined. The “grounds to believe” test was drawn from article 55 (2) of the Statute for two reasons. Firstly, article 55 (2) is applicable to the investigation stage of a situation, in contrast to articles 58 and 61 of the Statute which are applicable at the case stage. The applications for participation have been submitted in connection with the investigation in the DRC situation. The Chamber notes that the Decision deals only with the participation of the Victims at the investigation phase in the DRC situation. Secondly, the “grounds to believe” test is

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the least rigorous test. It may be noted that in articles 58 and 61 the tests become stricter as one moves from one stage of the proceedings to the next. 59. The Prosecutor further argues that by using the “grounds to believe” test the Chamber prejudged the commission of crimes falling within the jurisdiction of the Court and that the Decision is detrimental to the fairness of the proceedings. The Chamber recalls that, in relation to the crimes reported by each of the six Applicants, it found in the Decision that “subject to re-examination of the matter under rule 91 (1) of the Rules and taking into account available information, there are grounds to believe that these crimes fall within the jurisdiction of the Court pursuant to articles 6 to 8 of the Statute.”(74) The Chamber’s finding may therefore be reexamined on the basis of the information available to it later on in the proceedings. In this connection, the Chamber notes that the system established by the Statute under articles 55, 58 and 61 requires that a preliminary chamber rule on the existence of grounds to believe, reasonable grounds to believe and substantial grounds to believe that a person committed a crime falling within the jurisdiction of the court. Were one to adopt the Prosecutor’s line of reasoning, the issuance of a warrant of arrest or summons to appear would also constitute a prejudgement with respect to a decision on the confirmation of charges and would therefore be detrimental to the fairness of the proceedings. The Prosecutor’s argument thus appears to run counter to the system provided by the Statute itself. ————————— (69) Prosecutor’s Application, paras. 13 and 23 to 28. (74) Decision, paras. 123, 134, 152, 166, 175 and 185.

Rule 86 – General Principle A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence.

Subsection 2 – Protection of Victims and Witnesses Rule 87 – Protective Measures 1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure. 2. A motion or request under sub-rule 1 shall be governed by rule 134, provided that: (a) Such a motion or request shall not be submitted ex parte;

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(b)

A request by a witness or by a victim or his or her legal representative, if any, shall be served on both the Prosecutor and the defence, each of whom shall have the opportunity to respond; (c) A motion or request affecting a particular witness or a particular victim shall be served on that witness or victim or his or her legal representative, if any, in addition to the other party, each of whom shall have the opportunity to respond; (d) When the Chamber proceeds on its own motion, notice and opportunity to respond shall be given to the Prosecutor and the defence, and to any witness or any victim or his or her legal representative, if any, who would be affected by such protective measure; and (e) A motion or request may be filed under seal, and, if so filed, shall remain sealed until otherwise ordered by a Chamber. Responses to motions or requests filed under seal shall also be filed under seal. 3. A Chamber may, on a motion or request under sub-rule 1, hold a hearing, which shall be conducted in camera, to determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness by ordering, inter alia: (a) That the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could lead to his or her identification, be expunged from the public records of the Chamber; (b) That the Prosecutor, the defence or any other participant in the proceedings be prohibited from disclosing such information to a third party; (c) That testimony be presented by electronic or other special means, including the use of technical means enabling the alteration of pictures or voice, the use of audio-visual technology, in particular videoconferencing and closedcircuit television, and the exclusive use of the sound media; (d) That a pseudonym be used for a victim, a witness or other person at risk on account of testimony given by a witness; or (e) That a Chamber conduct part of its proceedings in camera.

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Rule 87: Protective measures under Rule 87 are not applicable to requests for protection towards the parties – Motions cannot be ex parte

R87-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006, pp. 5-7:

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ATTENDU que les règles 87 à 89 du Règlement émanent de l'article 68 (1) du Statut, […] ATTENDU par ailleurs que la règle 87 du Règlement n'est pas applicable aux requêtes ou demandes de mesures de protection vis-à-vis du Procureur ou de la Défense ; que les mesures visées par cette règle concernent, en principe, les mesures protection vis-à-vis du public, de la presse ou des agences d'information; qu'en conséquence la règle 87 (2) (a) impose que ces requêtes ou demandes ne soient pas présentées ex parte,

——— Official Translation ——— CONSIDERING that rules 87 to 89 of the Rules derive from article 68 (1) of the Statute, […] CONSIDERING moreover that rule 87 of the Rules does not apply to requests or applications for protective measures vis-à-vis the Prosecutor or the Defence ; that the measures covered by this rule in principle concern the protective measures vis-à-vis the public, the press or news agencies ; and that consequently rule 87 (2) (a) requires that these applications or requests not be presented ex parte,

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Rule 87(2) (e): Requests filed under seal – Further order to unseal documents

R87-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning the Reclassification of the Redacted Versions of Documents ICC-01/04-01/06-32-US-Exp and ICC-01/04-01/06-32Conf-AnxC as Public (PT), 19 April 2006:

NOTING the "Decision to Unseal and Reclassify Certain Additional Documents in the Record of the Case against Mr Thomas Lubanga Dyilo" (the "Decision"), (1) issued by Judge Sylvia Steiner acting as single judge of Pre-Trial Chamber I, by which: (i) it was noted that the Prosecution filed documents ICC-01/0401/06-39-US-AnxA and ICC-01/04-01/06-39-US-AnxD, which are redacted versions for the Defence of documents ICC-01/04-01/06-32US-Exp and ICC-01/04-01/06-32-Conf-AnxC; (ii) a decision was taken to reclassify documents ICC-01/04-01/06-39USAnxA and ICC-01/04-01/06-39-US-AnxD as confidential; (iii) the Prosecution was requested to make any further redactions it deemed necessary to make both documents accessible to the public;(2) […]

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NOTING articles 57 (3) (c), 67 (1) and 68 (1) of the Rome Statute (the "Statute") and rules 87 and 88 of the Rules of Procedure and Evidence (the "Rules"); CONSIDERING that there is no reason for documents ICC-01/04-01/06-39-ConfAnxA and ICC-01/04-01/06-39-Conf-AnxD to remain confidential; FOR THESE REASONS DECIDE to reclassify documents ICC-01/04-01/06-39-Conf-AnxA and ICC-01/0401/06-39-Conf-AnxD as public. ————————— (1) ICC-01/04-01/06-46. (2) Idem, pp. 5 and 6.

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Rule 87(3) (d): Protective measures: use of pseudonyms to identify witnesses – Application to a confirmation hearing

R87-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, pp. 6-8:

CONSIDERING that neither the Prosecution nor the Defence raised any objection to the fact that under rule 87(3)(d) of the Rules, pseudonyms may be used for all witnesses appearing or referred to in public session at the confirmation hearing(11), with the exception of the Prosecution's witness who will testify before the Court; and that the Victims and Witnesses Unit supported the adoption of this measure; (12) […] DECIDE that for the purpose of the discussion of the evidence in public session.during the confirmation hearing: (i) all witnesses on which the Prosecution or the Defence intend to rely at the confirmation hearing and who are not going to testify before the Chamber shall be given a pseudonym; (ii) the pseudonyms given to those witnesses for which non-disclosure of identity vis-à-vis the Defence has been granted shall be the code number used by the Prosecution in compliance with the Final Decision on the Ecourt Protocol; (iii) the Registry shall immediately assign pseudonyms to those other witnesses who are not going to testify at the confirmation hearing and whose identity has already been revealed to the Defence; ————————— (11) ICC-01/04-01/06-T-29-EN, page 43. (12) [missing footnote]

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Rule 88 – Special Measures 1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure. 2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness. 3. For inter partes motions or requests filed under this rule, the provisions of rule 87, sub-rules 2 (b) to (d), shall apply mutatis mutandis. 4. A motion or request filed under this rule may be filed under seal, and if so filed shall remain sealed until otherwise ordered by a Chamber. Any responses to inter partes motions or requests filed under seal shall also be filed under seal. 5. Taking into consideration that violations of the privacy of a witness or victim may create risk to his or her security, a Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence.

Subsection 3 – Participation of Victims in the Proceedings Rule 89 – Application for Participation of Victims in the Proceedings 1. In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber. Subject to the provisions of the Statute, in particular article 68, paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements. 2. The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled. A victim whose application has been rejected may file a new application later in the proceedings. 3. An application referred to in this rule may also be made by a person acting with the consent of the victim, or a person acting on behalf of a victim, in the case of a victim who is a child or, when necessary, a victim who is disabled.

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4. Where there are a number of applications, the Chamber may consider the applications in such a manner as to ensure the effectiveness of the proceedings and may issue one decision.

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Rule 89(1): Application for participation of victims in the proceedings – Need for an application – The request for participation shall be explicit

R89-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006, p. 8:

ATTENDU que la Chambre considère, à l'exception des Demandeurs a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/06 et a/0062/06, que les Demandeurs sollicitent la reconnaissance de la qualité de victimes autorisées à participer à la procédure au stade de l'enquête dans la situation en République démocratique du Congo (« RDC ») et de l'affaire Le Procureur c. Thomas Lubanga Dyilo, ATTENDU que le défaut de la mention explicite dans les demandes a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/06 et a/0062/06, de la volonté de participer au stade de la phase préliminaire ne permet pas à la Chambre de procéder à l'examen de ces Demandes de participation, ATTENDU néanmoins que la Chambre examinera les Demandes ultérieurement si les Demandeurs a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/06 et a/0062/06 en font la demande expresse,

——— Official Translation ——— CONSIDERING that the Chamber is of the opinion that, with the exception of Applicants a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/0 and a/0062/06, the applicants are seeking the status of victims with standing to participate in the proceedings at the investigation stage in the Situation in the Democratic Republic of the Congo (“the DRC”) and in the case of The Prosecutor v. Thomas Lubanga Dyilo; CONSIDERING that because of the lack of an explicit indication of the intention to participate at the pre-trial stage in applications a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/06 and a/0062/06, the Chamber cannot consider these application for participation;

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CONSIDERING, however, that the Chamber will consider the applications in due course should Applicants a/0008/06, a/0009/06, a/0019/06, a/0044/06, a/0053/06 and a/0062/06 so expressly request;

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Rule 89(1): Application for participation of victims in the proceedings – Right of the Prosecutor and the Defence to reply the application – Time limit to reply

R89-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (PT), 21 July 2005:71

CONSIDERING that according to rule 89, paragraph 1 of the Rules, the Prosecutor and the Defence are entitled to reply to any application for participation within the time limits set by the Pre-Trial Chamber; and that in order to place them in a position to effectively exercise this right the Registrar shall provide them a copy of any application for participation; […] CONSIDERING, therefore, that when the security situation of an applicant so requires, the Pre-Trial Chamber may instruct the Registrar to transmit to the Prosecutor and the Defence a redacted copy of his or her application for participation having expunged any information that could lead to his or her identification, such as the applicant's identity and the place and time in which he or she was allegedly victimised; CONSIDERING however that the scope of the redactions cannot exceed what is strictly necessary in light of the applicant's security situation and must allow for a meaningful exercise by the Prosecution and the Defence of their right to reply to the application for participation; […]

71

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06, Décision autorisant le Procureur et la Défense à déposer des observations au sujet du statut de victime des demandeurs VPRS 1 à VPRS 6 dans le cadre de l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Translation not available) (PT), 28 March 2006 ; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, para. 50; Situation in the Democratic Republic of the Congo, No. ICC01/04, Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing a Deadline for the Prosecution and the Defence to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006.

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CONSIDERING that the proceedings concerning the DRC record are still at the stage of investigation of the situation; REDACTED; and that, therefore, under the current circumstances the scope of the redactions allows for a meaningful exercise by the ad hoc counsel for the Defence of his right to reply to the Applications and it is in no way prejudicial to, or inconsistent with, the rights of the accused and a fair and impartial trial; […] ORDERS the Registrar by 29 July 2005 to provide: (i) The Prosecutor with an unredacted copy of the Applications; (ii) The ad hoc Counsel for the Defence with a redacted copy of the Applications after having expunged any information that could reveal the identification of the Applicants, including the Applicants' identity, and the places and times of the events referred to in their statements; GIVES the Prosecutor and the ad hoc Counsel for the Defence until the 15 August 2005 to reply to the Applications;

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

R89-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 104-105 :

104. La Chambre note que selon le conseil ad hoc de la Défense, la FIDH est sans qualité pour « poser un acte quelconque au nom des Victimes(79) », dans la mesure où elle n’est pas une personne physique au sens de la disposition 3 de la règle 89 et que les Demandeurs ne sont ni des invalides ni des enfants. À cet égard, la Chambre considère tout d’abord qu’à la disposition 3 de la règle 89, le terme « personne » s’entend à la fois des personnes physiques et des personnes morales, puisque lorsque le Statut et le Règlement font une distinction entre personnes physiques et personnes morales, celle-ci est, en général, expressément mentionnée(80). Par conséquent, dans le contexte de la règle 89, il apparaît que le terme « personne » n’exclut pas les « personnes morales ». La Chambre conclut donc que les demandes de participation peuvent être introduites par la FIDH. 105. Concernant le deuxième volet de l’argument du conseil ad hoc de la Défense, selon lequel les Demandeurs ne sont ni des invalides ni des enfants au sens de la règle 89-3, la Chambre remarque que cette disposition fait état de deux situations. Dans le premier cas, il s’agit de la situation selon laquelle la demande d’une victime peut être introduite par une autre personne après avoir obtenu son consentement. Le second cas permet à une personne légalement autorisée, d’agir au nom d’une victime, sans avoir préalablement obtenu le consentement de cette dernière, lorsque cette victime est un enfant ou une personne invalide et l’obtention du consentement

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est impossible. La Chambre constate que toutes les demandes ont été déposées avec le consentement des victimes concernées, et donc conformément à la première situation énoncée à la disposition 3 de la règle 89. ————————— (79) « Réponse du Conseil ad hoc de la défense aux demandes de participation des victimes à la procédure enregistrées sous les numéros 01/04 – 01/d.p. ; 01/04 – 02/d.p. ; 01/04 – 03/d.p. ; 01/04 – 04/d.p. ; 01/04–05/d.p. ; 01/04 – 06/d.p. », 11 août 2005, n° ICC-01/04-81-Conf, par. 28. (80) À cet effet, voir par exemple l’article 25-1 du Statut ou la règle 85-a du Règlement.

——— Official Translation ——— 104. The Chamber notes that, according to ad hoc Defence counsel, the FIDH has no standing to “file any document on behalf of the victims” (79) inasmuch as it is not a natural person within the meaning of rule 89, sub-rule 3, and the Applicants are neither disabled nor children. In this regard, the Chamber considers first that the term “person” in rule 89, sub-rule 3, refers to both natural and legal persons because when the Statute and the Rules make a distinction between natural and legal persons, they generally mention this distinction explicitly.(80) It follows that the term “person” in the context of rule 89 does not seem to rule out “legal persons”. The Chamber therefore concludes that the applications for participation may be filed by the FIDH. 105. With regard to the second component of ad hoc Defence counsel’s argument to the effect that the Applicants are neither disabled nor children within the meaning of rule 89 (3), the Chamber notes that this provision refers to two circumstances. In the first case, it refers to the circumstance in which a victim’s application may be made by another person who has obtained the victim’s consent. In the second case, it refers to the circumstance in which a legally authorised person is allowed to act on behalf of a victim without having first obtained his or her consent, where the victim is a child or a disabled person and obtaining consent is impossible. The Chamber notes that all the applications were filed with the consent of the victims concerned, hence in conformity with the first circumstance referred to in rule 89 (3). ————————— (79)

“Response by ad hoc defence counsel to the applications for participation by victims in the proceedings registered under Nos. 01/04-01/d.p.; 01/04-02/d.p.; 01/04-03/d.p.; 01/04-04/d.p.; 01/04-05-d.p.; 01/04-06-d.p.”, 11 August 2005, No. ICC-01/04-81-Conf, para. 28. (80) See, for example, article 25 (1) of the Statute or Rule 85 (a) of the Rules.

Rule 90 – Legal Representatives for Victims 1. A victim shall be free to choose a legal representative. 2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives.

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3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives. 4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented and that any conflict of interest is avoided. 5. A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance. 6. A legal representative of a victim or victims shall have the qualifications set forth in rule 22, sub-rule 1.

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Rule 90: Legal representative for victims – Compulsory intermediary between victims and organs of the Court

R90-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (PT), 21 July 2005:72

ORDERS all organs of the Court to abstain from any direct contact with the Applicants, and only to contact them through their legal representative REDACTED if strictly necessary.

Rule 91 – Participation of Legal Representatives in the Proceedings 1. A Chamber may modify a previous ruling under rule 89. 2. A legal representative of a victim shall be entitled to attend and participate in the proceedings in accordance with the terms of the ruling of the Chamber and any modification thereof given under rules 89 and 90. This shall include participation in hearings unless, in the circumstances of the case, the Chamber concerned is of the view that the representative’s intervention should be confined to written observations or submissions. The Prosecutor and the defence shall be allowed to reply to any oral or written observation by the legal representative for victims. 3. (a) When a legal representative attends and participates in accordance with this rule, and wishes to question a witness, including questioning under rules 67 and 68, an expert or the accused, the legal representative must make 72

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing a Deadline for the Prosecution and the Defence to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006.

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application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor and, if appropriate, the defence, who shall be allowed to make observations within a time limit set by the Chamber. (b) The Chamber shall then issue a ruling on the request, taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial and in order to give effect to article 68, paragraph 3. The ruling may include directions on the manner and order of the questions and the production of documents in accordance with the powers of the Chamber under article 64. The Chamber may, if it considers it appropriate, put the question to the witness, expert or accused on behalf of the victim’s legal representative. 4. For a hearing limited to reparations under article 75, the restrictions on questioning by the legal representative set forth in sub-rule 2 shall not apply. In that case, the legal representative may, with the permission of the Chamber concerned, question witnesses, experts and the person concerned.

Rule 92 – Notification to Victims and their Legal Representatives 1. This rule on notification to victims and their legal representatives shall apply to all proceedings before the Court, except in proceedings provided for in Part 2. 2. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims concerning the decision of the Prosecutor not to initiate an investigation or not to prosecute pursuant to article 53. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the situation or case in question. The Chamber may order the measures outlined in sub-rule 8 if it considers it appropriate in the particular circumstances. 3. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims regarding its decision to hold a hearing to confirm charges pursuant to article 61. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the case in question. 4. When a notification for participation as provided for in sub-rules 2 and 3 has been given, any subsequent notification as referred to in sub-rules 5 and 6 shall only be provided to victims or their legal representatives who may participate in the proceedings in accordance with a ruling of the Chamber pursuant to rule 89 and any modification thereof. 5. In a manner consistent with the ruling made under rules 89 to 91, victims or their legal representatives participating in proceedings shall, in respect of those proceedings, be notified by the Registrar in a timely manner of: (a) Proceedings before the Court, including the date of hearings and any postponements thereof, and the date of delivery of the decision;

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(b)

Requests, submissions, motions and other documents relating to such requests, submissions or motions. 6. Where victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings. 7. Notifications as referred to in sub-rules 5 and 6 shall be in writing or, where written notification is not possible, in any other form as appropriate. The Registry shall keep a record of all notifications. Where necessary, the Registrar may seek the cooperation of States Parties in accordance with article 93, paragraph 1 (d) and (l). 8. For notification as referred to in sub-rule 3 and otherwise at the request of a Chamber, the Registrar shall take necessary measures to give adequate publicity to the proceedings. In doing so, the Registrar may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations.

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Rule 92: Rule 92 does not affect the scope of victims’ participation under Article 68

R92-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 48-49:

48. La Chambre considère que, dans le cadre du régime susmentionné de participation des victimes, le paragraphe 2 de la règle 92 est une règle de notification de la « décision du Procureur de ne pas ouvrir d’enquête ou de ne pas engager de poursuites en vertu de l’article 53 ». De plus, la Chambre note que la règle 92-2 mentionne in fine l’éventualité que « [l]a Cour peut ordonner les mesures prévues dans la disposition 8 […] si les circonstances de l’espèce l’y engagent » en demandant au Greffier de prendre les mesures nécessaires pour assurer une publicité adéquate à la procédure. La Chambre note également que la règle 92-3 est une règle de notification d’une « décision de tenir une audience de confirmation des charges en application de l’article 61 ». 49. La Chambre conclut que la règle 92 est une règle de notification et qu’elle ne peut limiter la participation des victimes aux stades mentionnés aux dispositions 2 et 3 de cette règle.

——— Official Translation ——— 48. The Chamber considers that, in the context of the above-mentioned regime governing victims’ participation, sub-rule 2 of rule 92 is a rule concerning notification of the Prosecutor’s “decision not to investigate or to prosecute under Article 53”. Moreover, the Chamber notes that rule 92 (2) refers in fine to the eventuality that “[t]he Chamber may order the measures outlined in sub-rule 8 if it considers it appropriate in the particular circumstances” by requesting the Registrar

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to take necessary measures to give adequate publicity to the proceedings. The Chamber also notes that rule 92 (3) is a rule concerning notification of a “decision to hold a hearing to confirm charges pursuant to article 61”. 49. The Chamber concludes that rule 92 is a notification rule and that it cannot limit the participation of victims to the stages mentioned in sub-rules 2 and 3 of the rule.

Rule 93 – Views of Victims or their Legal Representatives A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue, inter alia, in relation to issues referred to in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate.

Subsection 4 – Reparations to Victims Rule 94 – Procedure upon Request 1. A victim.s request for reparations under article 75 shall be made in writing and filed with the Registrar. It shall contain the following particulars: (a) The identity and address of the claimant; (b) A description of the injury, loss or harm; (c) The location and date of the incident and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the injury, loss or harm; (d) Where restitution of assets, property or other tangible items is sought, a description of them; (e) Claims for compensation; (f) Claims for rehabilitation and other forms of remedy; (g) To the extent possible, any relevant supporting documentation, including names and addresses of witnesses. 2. At commencement of the trial and subject to any protective measures, the Court shall ask the Registrar to provide notification of the request to the person or persons named in the request or identified in the charges and, to the extent possible, to any interested persons or any interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3.

Rule 95 – Procedure on the Motion of the Court 1. In cases where the Court intends to proceed on its own motion pursuant to article 75, paragraph 1, it shall ask the Registrar to provide notification of its intention to the person or persons against whom the Court is considering making a determination, and, to the extent possible, to victims, interested persons and interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3. 2. If, as a result of notification under sub-rule 1:

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A victim makes a request for reparations, that request will be determined as if it had been brought under rule 94; A victim requests that the Court does not make an order for reparations, the Court shall not proceed to make an individual order in respect of that victim.

Rule 96 – Publication of Reparation Proceedings 1. Without prejudice to any other rules on notification of proceedings, the Registrar shall, insofar as practicable, notify the victims or their legal representatives and the person or persons concerned. The Registrar shall also, having regard to any information provided by the Prosecutor, take all the necessary measures to give adequate publicity of the reparation proceedings before the Court, to the extent possible, to other victims, interested persons and interested States. 2. In taking the measures described in sub-rule 1, the Court may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations in order to give publicity, as widely as possible and by all possible means, to the reparation proceedings before the Court.

Rule 97 – Assessment of Reparations 1. Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both. 2. At the request of victims or their legal representatives, or at the request of the convicted person, or on its own motion, the Court may appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts. 3. In all cases, the Court shall respect the rights of victims and the convicted person.

Rule 98 – Trust Fund 1. Individual awards for reparations shall be made directly against a convicted person. 2. The Court may order that an award for reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim. The award for reparations thus deposited in the Trust Fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible. 3. The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.

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4. Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund. 5. Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79.

Rule 99 – Cooperation and Protective Measures for the Purpose of Forfeiture under Articles 57, Paragraph 3(e), and 75, Paragraph 4 1. The Pre-Trial Chamber, pursuant to article 57, paragraph 3 (e), or the Trial Chamber, pursuant to article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be requested. 2. Notice is not required unless the Court determines, in the particular circumstances of the case, that notification could not jeopardize the effectiveness of the measures requested. In the latter case, the Registrar shall provide notification of the proceedings to the person against whom a request is made and so far as is possible to any interested persons or interested States. 3. If an order is made without prior notification, the relevant Chamber shall request the Registrar, as soon as is consistent with the effectiveness of the measures requested, to notify those against whom a request is made and, to the extent possible, to any interested persons or any interested States and invite them to make observations as to whether the order should be revoked or otherwise modified. 4. The Court may make orders as to the timing and conduct of any proceedings necessary to determine these issues.

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Rule 99(1): Protective measures for the purpose of forfeiture – Cooperation request to all States Parties to identify, trace and freeze or seize property and assets together with request for provisional arrest and surrender should be issued together with request for arrest and surrender - Prosecution’s failure to act – Proprio motu issuance by the Pre-Trial Chamber

R99-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning PreTrial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006), paras. 139-141:

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139. In the Chamber’s view, cooperation requests pursuant to articles 57(3)(e) and 93(1)(k) of the Statute for the taking of protective measures to secure the enforcement of future reparation awards should be transmitted simultaneously with cooperation requests for arrest and surrender if the warrants of arrest are not issued under seal. 140. However, in the present case, the warrant of arrest for Mr Thomas Lubanga Dyilo is issued under seal. Therefore, save for the DRC, the Registrar shall wait for further instructions from the Chamber after a decision to unseal the warrant of arrest for Mr Thomas Lubanga Dyilo is made before transmitting cooperation requests to the States Parties in order for the latter to identify, trace, and freeze or seize the property and assets belonging to Mr Thomas Lubanga Dyilo at the earliest opportunity, without prejudice to the rights of third parties. 141. In this regard, the Chamber notes that the Prosecution has made no application to this effect.(143) Therefore, in requesting measures under article 57(3)(e) of the Statute, the Chamber will act proprio motu, as provided for in rule 99(1) of the Rules. However, the Chamber is of the view that, as the organ of the Court primarily in charge of the investigation of the DRC situation, the Prosecution should take this matter into consideration in view of future applications for a warrant of arrest or a summons to appear. It is the Chamber’s view that the effectiveness of the reparation system would greatly benefit from the Prosecution’s due consideration of this matter during the investigation stage. ————————— (143) The Chamber notes, however, that at the hearing of 2 February 2006, the Prosecution affirmed that the Prosecution is paying attention to these matters in the course of its investigation (Transcripts of the Hearing of 2 February 2006, p. 86, lines 7 and 8).

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Rule 99(1): Cooperation requests to identify, trace and freeze or seize property and assets should be issued together with requests for arrest and surrender – Details – Under seal requests

R99-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. 01/04-01/06, Demande adressée à la République Démocratique du Congo en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo (Translation not available) (PT), 9 March 2006 (made public on 20 March 2006):

VU les articles 57-3-e, 75, 87, 93-1-k, 96 et 97 du Statut et la règle 99-1 du Règlement de procédure et de preuve, ATTENDU qu'au moment de la transmission de la demande d'arrestation et de remise à l'Etat requis par le Greffier de la Cour, sera joint à ladite demande un dossier contenant les documents prévus à l'article 91 du Statut et à la norme 111 du Règlement de la Cour, ATTENDU que l'identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo est nécessaire dans l'intérêt supérieur des victimes pour garantir que, dans l'hypothèse où M. Thomas Lubanga Dyilo serait jugé

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coupable des crimes qui lui sont reprochés, lesdites victimes puissent, en application de l'article 75 du Statut, obtenir réparation des préjudices qui peuvent leur avoir été causés, ATTENDU que le Procureur a indiqué à la Chambre qu'il dispose d'informations selon lesquelles M. Thomas Lubanga Dyilo posséderait une maison à Bunia, un véhicule de marque Land-Cruiser Toyota, ainsi que des biens à Goma et qu'il a par ailleurs indiqué que les fonds d'une compagnie aérienne locale pourraient en réalité appartenir à M. Thomas Lubanga Dyilo, ATTENDU que le paragraphe 15 de la résolution 1596 du Conseil de sécurité de l'Organisation des Nations Unies(1), indique que « [...] tous les États devront [...] geler immédiatement les fonds, autres avoirs financiers et ressources économiques se trouvant sur leur territoire à compter de l'adoption de la présente résolution, qui sont en la possession ou sous le contrôle direct ou indirect des personnes que le Comité [des sanctions] aura identifiées conformément à l'article 13 ci-dessus, ou qui sont détenus par des entités ou contrôlés directement ou indirectement par toute personne agissant pour le compte ou sur les ordres de celles-ci [...]», ATTENDU que la « Liste des personnes et entités auxquelles s'appliquent les mesures visées aux paragraphes 13 et 15 de la résolution 1596 (2005) », selon laquelle le Comité des Sanctions identifie M. Thomas Lubanga Dyilo comme une des personnes visées par ladite résolution(2), PAR CES MOTIFS, DEMANDE à l'État requis de prendre, conformément aux procédures prévues par sa législation nationale, toutes les mesures nécessaires afin d'identifier, localiser, geler et saisir les biens et avoirs de M. Thomas Lubanga Dyilo qui se trouvent sur son territoire, y compris ses biens meubles ou immeubles, ses comptes bancaires ou ses parts sociales, sous réserve des droits des tiers de bonne foi, DEMANDE à l'État requis, conformément à l'article 87-3 du Statut, de respecter le caractère confidentiel de la présente demande sauf dans la mesure où sa divulgation serait nécessaire pour y donner suite, DEMANDE à l'État requis, conformément à l'article 96-3 du Statut, d'informer la Cour de tout renseignement supplémentaire qui lui serait nécessaire, le cas échéant, pour donner suite à la présente demande, DEMANDE à l'État requis de communiquer le cas échéant à la Chambre les nom et adresse de tout administrateur provisoire éventuellement désigné conformément à la loi congolaise pour gérer, pendant le déroulement de la procédure devant la Cour, les biens et avoirs de M. Thomas Lubanga Dyilo qui auraient été gelés ou saisis, DEMANDE à l'État requis d'informer la Cour, conformément à l'article 97 du Statut, de toute difficulté qui pourrait gêner ou empêcher l'exécution de la présente demande, ORDONNE au Greffier de la Cour de transmettre la présente demande à l'État requis en langue française, langue choisie par cet État en application de l'article 87 du Statut lors de sa ratification du Statut, ORDONNE que la présente demande demeure sous scellés jusqu'à ce que la Chambre en décide autrement.

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————————— (1) Document ONU S/RES/1596 (2005). (2) Comité des sanctions du Conseil de sécurité établie par la résolution 1533 (2004) concernant la République démocratique du Congo, La liste des personnes et entités auxquelles s'appliquent les mesures visées aux paragraphes 13 et 15 de la résolution 1596 (2005). Cette liste peut être consultée sur le site Internet de l'Organisation des Nations Unies à l'adresse suivante: http.//www.un.org/french/docs/sc/committees/DRCTemplateFr.htm

——— Official Translation Not Available ——— Section IV – Miscellaneous Provisions Rule 100 – Place of the Proceedings 1. In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State. 2. An application or recommendation changing the place where the Court sits may be filed at any time after the initiation of an investigation, either by the Prosecutor, the defence or by a majority of the judges of the Court. Such an application or recommendation shall be addressed to the Presidency. It shall be made in writing and specify in which State the Court would sit. The Presidency shall satisfy itself of the views of the relevant Chamber. 3. The Presidency shall consult the State where the Court intends to sit. If that State agrees that the Court can sit in that State, then the decision to sit in a State other than the host State shall be taken by the judges, in plenary session, by a two-thirds majority.

Rule 101 – Time Limits 1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims. 2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court.

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Rule 101(1): Discretion of the Court to set time limits – Does not apply to time limits expressly set forth in the Statute or Rules

R101-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005

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(Unsealed on 13 October 2005): NOTING that the Prosecutor invokes rule 101, sub-rule 1, of the Rules as the basis of his request for variation; CONSIDERING that rule 101, sub-rule 1 of the Rules, concerns the criteria for time-limits to be set by order of the Court, and cannot be interpreted as conferring upon the Chamber any specific power to vary the time-limits set forth in the Statute or the Rules;

Rule 102 – Communications Other than in Writing Where a person is unable, due to a disability or illiteracy, to make a written request, application, observation or other communication to the Court, the person may make such request, application, observation or communication in audio, video or other electronic form.

Rule 103 – Amicus Curiae and Other Forms of Submissions 1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate. 2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-rule 1. 3. A written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations.

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Rule 103: Persons assisting the Court (other than victims and witnesses) are not entitled to protective measures under the ICC system but may be provided protection by the Prosecution

R103-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, REDACTED Decision on the Requests (PT), 5 August 2005:

CONSIDERING in addition that, in the framework of the proceedings at hand under rule 103 of the Rules, the Chamber cannot decide in abstracto on the question of whether local actors assisting any organ of the Court at its specific request are legally entitled to protective measures under the Rome Statute ("the Statute"), the Rules and the Regulations of the Court ("the Regulations") in the event of threats linked to such assistance; CONSIDERING, however, that the Prosecutor would be prepared to provide for the protection of local actors assisting either the Prosecutor or the Court at his specific request whenever concrete threats are linked to such assistance, even if such

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local actors were not legally entitled to protective measures under the Statute, the Rules and the Regulations;(2) and that it would be desirable for all organs of the Court to have a consistent approach to the issue of protection of local actors assisting any organ of the Court at its specific request; FOR THESE REASONS DECIDES to reject the above-mentioned requests REDACTED ———————— (2) REDACTED

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Rule 103(1): Proprio motu invitation to representatives of international organisations to make submissions on protection of victims and preservation of evidence in a situation on which the Prosecutor is investigating

R103-PT-2

o Situation in Darfur, Sudan, No. ICC-02/54, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence (PT), 24 July 2006:

NOTING the third report of the Prosecutor (“the Third Report”) to the UNSC dated 14 June 2006, whereby the Prosecutor informs the UNSC (i) that his office has selected several incidents for further investigation and analysis; (ii) that it does not appear that the national authorities have investigated or prosecuted, or are investigating or prosecuting, cases that are or will be the focus of his office; (iii) that the continuing insecurity in Darfur is prohibitive of effective investigations inside Darfur, particularly in light of the absence of a functioning and sustainable system for the protection of victims and witnesses; and (iv) that unconditional cooperation will be essential to complete the investigation and identify those most responsible for crimes committed in Darfur in an expeditious manner; […] CONSIDERING that, in view of the latest report of the Prosecutor to the UNSC and of the recent developments in the situation in Darfur, Sudan, the protection of victims is paramount; CONSIDERING that inviting representatives of organisations to submit observations on current and specific issues related to the protection of victims and to the preservation of evidence would contribute specifically to realizing the objective mentioned above in the present situation; CONSIDERING that rule 103(1) of the Rules provides for the Chamber to invite any State, organisation or person to submit any observation on any issue that the Chamber deems appropriate when it is desirable for the proper administration of justice, and that rule 103(2) expressly gives the Prosecution and the Defence the opportunity to respond; FOR THESE REASONS DECIDES to invite: (i) Louise Arbour, High Commissioner of the Office of the United Nations High Commissioner for Human Rights and Antonio Cassese, Chairperson of the International Commission of Inquiry on Darfur,

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Sudan, to submit in writing their observations on issues concerning the protection of victims and the preservation of evidence in Darfur, Sudan within 45 days of the notification of the present decision; (ii) the Prosecutor and/or his representatives as well as the ad hoc Counsel for the Defence to provide a written response to the observations submitted by the organisations within 10 days of the notification of the said observations;

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Rule 103(1): Application for leave to appear as amicus curiae before the Court – Relevance of the application to the case – Denial in the specific case where applied and proprio motu leave to appear in another situation

R103-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Request pursuant to Rule 103(1) of the Statute (PT), 26 September 2006:

NOTING the "Request Submitted pursuant to Rule 103 (1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Article 61 Confirmation Proceedings (with Confidential Annex 2)" ("the Request"), (1) filed by the Women's Initiatives for Gender Justice ("the Women's Initiatives") on 8 September 2006, in which they apply for leave to submit observations as amicus curiae in the confirmation proceedings pursuant to article 61 of the Rome Statute ("the Statute") in the case against Thomas Lubanga Dyilo; […] NOTING articles 57 and 61 of the Statute and rule 103 of the Rules of Procedure and Evidence ("the Rules"); CONSIDERING that the subject-matter of the Request is the alleged gender based crimes committed in the territory of Democratic Republic of the Congo ("the DRC") after 1 July 2002; (5) CONSIDERING that the letter from the Women's Initiatives to the Prosecution contained in Annex I to the Request states that (i) "the absence of charges for gender crimes against Thomas Lubanga Dyilo at this stage is undeniably due to ineffective investigations conducted by your office which were limited in scope, poorly directed and displayed a lack of commitment to gather the relevant information and evidence to enable gender based crimes to be brought against the first indictee at the ICC"; (6) and (ii) in be view of the Women's Initiative, "it is not too late for the OTP to correct its current investigatory oversight of these crimes and urges you to immediately open investigations into gender based crimes and pursue the leads and incidents outlined for you in the enclosed report;" (7) CONSIDERING that the present case against Thomas Lubanga Dyilo is confined to the alleged enlistment, conscription and active use in military operations of children under the age of fifteen; and that, therefore, the Request has no link with the present case;

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CONSIDERING that, in the view of the Chamber, the subject-matter of the Request can be dealt with only in relation to the ongoing investigation into the DRC situation and not as part of the proceedings in the present case against Thomas Lubanga Dyilo; FOR THESE REASONS DECIDES not to grant leave to the Women's Initiative for Gender Justice to submit observations under rule 103 of the Rules in the proceedings in the present case against Thomas Lubanga Dyilo; INVITES the Women's Initiatives to re-file their request for leave to submit observations in the record of the DRC situation. ————————— (1) ICC-01/04-01/06-403. (5) See in particular ICC-01/04-0 l/06-403-Conf-Anx2, "Rape and Sexual Violence in Ituri, in the Oriental Province of the Democratic Republic of the Congo." (6) ICC-01/04-01/06-403-Anxl-Corr, pp. 6 and 7. (7) ICC-01/04-01/06-403-Anxl-Corr, p. 7.

Chapter 5 – Investigation and Prosecution Section I – Decision of the Prosecutor Regarding the Initiation of an Investigation under Article 53, Paragraphs 1 and 2 Rule 104 – Evaluation of Information by the Prosecutor 1. In acting pursuant to article 53, paragraph 1, the Prosecutor shall, in evaluating the information made available to him or her, analyse the seriousness of the information received. 2. For the purposes of sub-rule 1, the Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental and non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. The procedure set out in rule 47 shall apply to the receiving of such testimony.

Rule 105 – Notification of a Decision by the Prosecutor Not to Initiate an Investigation 1. When the Prosecutor decides not to initiate an investigation under article 53, paragraph 1, he or she shall promptly inform in writing the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. When the Prosecutor decides not to submit to the Pre-Trial Chamber a request for authorization of an investigation, rule 49 shall apply. 3. The notification referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion.

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4. In case the Prosecutor decides not to investigate solely on the basis of article 53, paragraph 1 (c), he or she shall inform in writing the Pre-Trial Chamber promptly after making that decision. 5. The notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion.

Rule 106 – Notification of a Decision by the Prosecutor Not to Prosecute 1. When the Prosecutor decides that there is not a sufficient basis for prosecution under article 53, paragraph 2, he or she shall promptly inform in writing the PreTrial Chamber, together with the State or States that referred a situation under article 14, or the Security Council in respect of a situation covered by article 13, paragraph (b). 2. The notifications referred to in sub-rule 1 shall contain the conclusion of the Prosecutor and, having regard to article 68, paragraph 1, the reasons for the conclusion.

Section II – Procedure under Article 53, Paragraph 3 Rule 107 – Request for Review under Article 53, Paragraph 3(a) 1. A request under article 53, paragraph 3, for a review of a decision by the Prosecutor not to initiate an investigation or not to prosecute shall be made in writing, and be supported with reasons, within 90 days following the notification given under rule 105 or 106. 2. The Pre-Trial Chamber may request the Prosecutor to transmit the information or documents in his or her possession, or summaries thereof, that the Chamber considers necessary for the conduct of the review. 3. The Pre-Trial Chamber shall take such measures as are necessary under articles 54, 72 and 93 to protect the information and documents referred to in subrule 2 and, under article 68, paragraph 5, to protect the safety of witnesses and victims and members of their families. 4. When a State or the Security Council makes a request referred to in sub-rule 1, the Pre-Trial Chamber may seek further observations from them. 5. Where an issue of jurisdiction or admissibility of the case is raised, rule 59 shall apply.

Rule 108 – Decision of the Pre-Trial Chamber under Article 53, Paragraph 3(a) 1. A decision of the Pre-Trial Chamber under article 53, paragraph 3 (a), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review.

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2. Where the Pre-Trial Chamber requests the Prosecutor to review, in whole or in part, his or her decision not to initiate an investigation or not to prosecute, the Prosecutor shall reconsider that decision as soon as possible. 3. Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.

Rule 109 – Review by the Pre-Trial Chamber under Article 53, Paragraph 3(b) 1. Within 180 days following a notification given under rule 105 or 106, the PreTrial Chamber may on its own initiative decide to review a decision of the Prosecutor taken solely under article 53, paragraph 1 (c) or 2 (c). The Pre-Trial Chamber shall inform the Prosecutor of its intention to review his or her decision and shall establish a time limit within which the Prosecutor may submit observations and other material. 2. In cases where a request has been submitted to the Pre-Trial Chamber by a State or by the Security Council, they shall also be informed and may submit observations in accordance with rule 107.

Rule 110 – Decision by the Pre-Trial Chamber under Article 53, Paragraph 3(b) 1. A decision by the Pre-Trial Chamber to confirm or not to confirm a decision taken by the Prosecutor solely under article 53, paragraph 1 (c) or 2 (c), must be concurred in by a majority of its judges and shall contain reasons. It shall be communicated to all those who participated in the review. 2. When the Pre-Trial Chamber does not confirm the decision by the Prosecutor referred to in sub-rule 1, he or she shall proceed with the investigation or prosecution.

Section III – Collection of Evidence Rule 111 – Record of Questioning in General 1. A record shall be made of formal statements made by any person who is questioned in connection with an investigation or with proceedings. The record shall be signed by the person who records and conducts the questioning and by the person who is questioned and his or her counsel, if present, and, where applicable, the Prosecutor or the judge who is present. The record shall note the date, time and place of, and all persons present during the questioning. It shall also be noted when someone has not signed the record as well as the reasons therefor. 2. When the Prosecutor or national authorities question a person, due regard shall be given to article 55. When a person is informed of his or her rights under article 55,

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paragraph 2, the fact that this information has been provided shall be noted in the record.

Rule 112 – Recording of Questioning in Particular Cases 1. Whenever the Prosecutor questions a person to whom article 55, paragraph 2, applies, or for whom a warrant of arrest or a summons to appear has been issued under article 58, paragraph 7, the questioning shall be audio- or video-recorded, in accordance with the following procedure: (a) The person questioned shall be informed, in a language he or she fully understands and speaks, that the questioning is to be audio- or videorecorded, and that the person concerned may object if he or she so wishes. The fact that this information has been provided and the response given by the person concerned shall be noted in the record. The person may, before replying, speak in private with his or her counsel, if present. If the person questioned refuses to be audio- or video-recorded, the procedure in rule 111 shall be followed; (b) A waiver of the right to be questioned in the presence of counsel shall be recorded in writing and, if possible, be audio- or video-recorded; (c) In the event of an interruption in the course of questioning, the fact and the time of the interruption shall be recorded before the audio- or videorecording ends as well as the time of resumption of the questioning; (d) At the conclusion of the questioning, the person questioned shall be offered the opportunity to clarify anything he or she has said and to add anything he or she may wish. The time of conclusion of the questioning shall be noted; (e) The tape shall be transcribed as soon as practicable after the conclusion of the questioning and a copy of the transcript supplied to the person questioned together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes; (f) The original tape or one of the original tapes shall be sealed in the presence of the person questioned and his or her counsel, if present, under the signature of the Prosecutor and the person questioned and the counsel, if present. 2. The Prosecutor shall make every reasonable effort to record the questioning in accordance with sub-rule 1. As an exception, a person may be questioned without the questioning being audio- or video-recorded where the circumstances prevent such recording taking place. In this case, the reasons for not recording the questioning shall be stated in writing and the procedure in rule 111 shall be followed. 3. When, pursuant to sub-rule 1 (a) or 2, the questioning is not audio- or videorecorded, the person questioned shall be provided with a copy of his or her statement. 4. The Prosecutor may choose to follow the procedure in this rule when questioning other persons than those mentioned in sub-rule 1, in particular where the use of such procedures could assist in reducing any subsequent traumatization of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence. The Prosecutor may make an application to the relevant Chamber.

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5. The Pre-Trial Chamber may, in pursuance of article 56, paragraph 2, order that the procedure in this rule be applied to the questioning of any person.

Rule 113 – Collection of Information Regarding the State of Health of the Person Concerned 1. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor, the person concerned or his or her counsel, order that a person having the rights in article 55, paragraph 2, be given a medical, psychological or psychiatric examination. In making its determination, the Pre-Trial Chamber shall consider the nature and purpose of the examination and whether the person consents to the examination. 2. The Pre-Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Pre-Trial Chamber at the request of a party.

Rule 114 – Unique Investigative Opportunity under Article 56 1. Upon being advised by the Prosecutor in accordance with article 56, paragraph 1 (a), the Pre-Trial Chamber shall hold consultations without delay with the Prosecutor and, subject to the provisions of article 56, paragraph 1 (c), with the person who has been arrested or who has appeared before the Court pursuant to summons and his or her counsel, in order to determine the measures to be taken and the modalities of their implementation, which may include measures to ensure that the right to communicate under article 67, paragraph 1 (b), is protected. 2. A decision of the Pre-Trial Chamber to take measures pursuant to article 56, paragraph 3, must be concurred in by a majority of its judges after consultations with the Prosecutor. During the consultations, the Prosecutor may advise the Pre-Trial Chamber that intended measures could jeopardize the proper conduct of the investigation.

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Rule 114(1): Need to hold a consultation to determine measures to be taken under Article 56 - Ex parte consultation

R114-PT-1

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

CONSIDERING that there is a unique investigative opportunity within the terms of article 56 (1) (a) of the Statute; CONSIDERING therefore that, according to rule 114 (1), the Pre-Trial Chamber shall hold consultations without delay with the Prosecutor; FOR THESE REASONS,

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DECIDES to convene an ex parte consultation with the Prosecutor to be held by way of a hearing in closed session on 21 April 2005 at 3.30 p.m. in Courtroom I in order to determine the measures to be taken and the modalities of their implementation.

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Rule 114(1): Need for a further consultation on Article 56 measures - Agenda

R114-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision to Hold Consultation (PT), 5 October 2005:

CONSIDERING that the Prosecution submits that a significant part of the NFI Report was written in Dutch;(5) that some portions of the report are handwritten and not legible; (6) and that “in light of the particularities of the NFI Report, the Prosecution is not in a position to at this stage provide the Pre-Trial chamber or the NFI with a full set of observations and questions”; (7) CONSIDERING that the NFI states that "the Expert report has been made fully available to the Registrar, in one of the working languages of the Court, English" (8); and that only the forms, which the investigators filled in order to ensure the quality of the research, are written in Dutch(9); CONSIDERING that indeed pages 131 to 317(inclusive) of the document entitled "Report of the Netherlands Forensic Institute (2005.05.02.089)" are written in Dutch and some portions are handwritten; FOR THESE REASONS, DECIDES to convene consultation with the Prosecution and the ad hoc Counsel for the Defence in closed session on Tuesday 11 October 2005 at 2.30 p.m. in Courtroom I; SETS the following agenda for the said hearing: […] ————————— (5) The Prosecution's Observations, paragraph 3. (6) The Prosecution's Observations, paragraph 3. (7) The Prosecution's Observations, paragraph 6. (8) The NFI's Correspondence, page 2. (9) The NFI's Correspondence, page 2.

Rule 115 – Collection of Evidence in the Territory of a State Party under Article 57, Paragraph 3(d) 1. Where the Prosecutor considers that article 57, paragraph 3 (d), applies, the Prosecutor may submit a written request to the Pre-Trial Chamber for authorization to take certain measures in the territory of the State Party in question. After a submission of such a request, the Pre-Trial Chamber shall, whenever possible, inform and invite views from the State Party concerned. 2. In arriving at its determination as to whether the request is well founded, the PreTrial Chamber shall take into account any views expressed by the State Party

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concerned. The Pre-Trial Chamber may, on its own initiative or at the request of the Prosecutor or the State Party concerned, decide to hold a hearing. 3. An authorization under article 57, paragraph 3 (d), shall be issued in the form of an order and shall state the reasons, based on the criteria set forth in that paragraph. The order may specify procedures to be followed in carrying out such collection of evidence.

Rule 116 – Collection of Evidence at the Request of the Defence under Article 57, Paragraph 3(b) 1. The Pre-Trial Chamber shall issue an order or seek cooperation under article 57, paragraph 3 (b), where it is satisfied: (a) That such an order would facilitate the collection of evidence that may be material to the proper determination of the issues being adjudicated, or to the proper preparation of the person.s defence; and (b) In a case of cooperation under Part 9, that sufficient information to comply with article 96, paragraph 2, has been provided. 2. Before taking a decision whether to issue an order or seek cooperation under article 57, paragraph 3 (b), the Pre-Trial Chamber may seek the views of the Prosecutor.

Section IV – Procedures in Respect of Restriction and Deprivation of Liberty Rule 117 – Detention in the Custodial State 1. The Court shall take measures to ensure that it is informed of the arrest of a person in response to a request made by the Court under article 89 or 92. Once so informed, the Court shall ensure that the person receives a copy of the arrest warrant issued by the Pre-Trial Chamber under article 58 and any relevant provisions of the Statute. The documents shall be made available in a language that the person fully understands and speaks. 2. At any time after arrest, the person may make a request to the Pre-Trial Chamber for the appointment of counsel to assist with proceedings before the Court and the Pre-Trial Chamber shall take a decision on such request. 3. A challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay. 4. When the competent authority of the custodial State notifies the Pre-Trial Chamber that a request for release has been made by the person arrested, in accordance with article 59, paragraph 5, the Pre-Trial Chamber shall provide its recommendations within any time limit set by the custodial State. 5. When the Pre-Trial Chamber is informed that the person has been granted interim release by the competent authority of the custodial State, the Pre-Trial Chamber

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shall inform the custodial State how and when it would like to receive periodic reports on the status of the interim release.

Rule 118 – Pre-Trial Detention at the Seat of the Court 1. If the person surrendered to the Court makes an initial request for interim release pending trial, either upon first appearance in accordance with rule 121 or subsequently, the Pre-Trial Chamber shall decide upon the request without delay, after seeking the views of the Prosecutor. 2. The Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days and may do so at any time on the request of the person or the Prosecutor. 3. After the first appearance, a request for interim release must be made in writing. The Prosecutor shall be given notice of such a request. The Pre-Trial Chamber shall decide after having received observations in writing of the Prosecutor and the detained person. The Pre-Trial Chamber may decide to hold a hearing, at the request of the Prosecutor or the detained person or on its own initiative. A hearing must be held at least once every year.

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Rule 118(2): Obligation to periodically review the Chamber’s “ruling on the release or detention” runs from the decision on the initial request for interim release

R118-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.4-5:

ATTENDU que l'article 60-3 du Statut dispose que « [l]a Chambre préliminaire réexamine périodiquement sa décision de mise en liberté ou de maintien en détention [...] » et que la règle 118-2 du Règlement dispose que « [l]a Chambre préliminaire réexamine sa décision de mise en liberté ou de maintien en détention comme le prévoit le paragraphe 3 de l'article 60, au moins tous les 120 jours [...] », ATTENDU en outre que les deux dispositions citées ci-dessus s'inscrivent à la suite de dispositions traitant spécifiquement des demandes de mise en liberté provisoire introduites après la remise à la Cour de la personne visée par un mandat d'arrêt, ATTENDU par conséquent que la décision de « [...] maintien en détention » visée à l'article 60-3 du Statut et à la règle 118-2 du Règlement ne saurait être confondue avec le mandat d'arrêt délivré en application de l'article 58 du Statut ordonnant la mise en détention initiale de Thomas Lubanga Dyilo, ATTENDU que la Requête constitue la première demande de mise en liberté provisoire de Thomas Lubanga Dyilo présentée par la Défense en vertu de l'article 60-2 du Statut ; qu'en conséquence, la Chambre n'a pas encore été amenée

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statuer sur la « mise en liberté ou le maintien en détention » de Thomas Lubanga Dyilo ; et que partant, on ne saurait parler de violation de l'article 60-3 du Statut et de la règle 118-2 du Règlement,

——— Official Translation ——— CONSIDERING that article 60(3) of the Statute provides that “[t]he Pre-Trial Chamber shall periodically review its ruling on the release or detention […]” and that rule 118(2) of the Rules provides that “[t]he Pre-Trial Chamber shall review its ruling on the release or detention of a person in accordance with article 60, paragraph 3, at least every 120 days […]”; CONSIDERING, moreover, that the two abovementioned provisions appear after provisions which specifically deal with applications for interim release bought after the person subject to a warrant of arrest has been surrendered to the Court; CONSIDERING, therefore, that the ruling on “[…] detention” referred to in article 60(3) of the Statute and rule 118(2) of the Rules cannot be confused with the warrant of arrest issued pursuant to article 58 of the Statute ordering the initial detention of Thomas Lubanga Dyilo; CONSIDERING that the Request constitutes the first application for Thomas Lubanga Dyilo’s interim release submitted by the Defece under article 60(2) of the Statute; that, as a result, the Chamber has not yet had to rule on the “release or detention” of Thomas Lubanga Dyilo, and that therefore it is not possible to speak of a violation of article 60(3) of the Statute and rule 118(2) of the Rules;

Rule 119 – Conditional Release 1. The Pre-Trial Chamber may set one or more conditions restricting liberty, including the following: (a) The person must not travel beyond territorial limits set by the Pre-Trial Chamber without the explicit agreement of the Chamber; (b) The person must not go to certain places or associate with certain persons as specified by the Pre-Trial Chamber; (c) The person must not contact directly or indirectly victims or witnesses; (d) The person must not engage in certain professional activities; (e) The person must reside at a particular address as specified by the Pre-Trial Chamber; (f) The person must respond when summoned by an authority or qualified person designated by the Pre-Trial Chamber; (g) The person must post bond or provide real or personal security or surety, for which the amount and the schedule and mode of payment shall be determined by the Pre-Trial Chamber; (h) The person must supply the Registrar with all identity documents, particularly his or her passport. 2. At the request of the person concerned or the Prosecutor or on its own initiative, the Pre-Trial Chamber may at any time decide to amend the conditions set pursuant to sub-rule 1.

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3. Before imposing or amending any conditions restricting liberty, the Pre-Trial Chamber shall seek the views of the Prosecutor, the person concerned, any relevant State and victims that have communicated with the Court in that case and whom the Chamber considers could be at risk as a result of a release or conditions imposed. 4. If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person. 5. When the Pre-Trial Chamber issues a summons to appear pursuant to article 58, paragraph 7, and intends to set conditions restricting liberty, it shall ascertain the relevant provisions of the national law of the State receiving the summons. In a manner that is in keeping with the national law of the State receiving the summons, the Pre-Trial Chamber shall proceed in accordance with sub-rules 1, 2 and 3. If the Pre-Trial Chamber receives information that the person concerned has failed to comply with conditions imposed, it shall proceed in accordance with sub-rule 4.

Rule 120 – Instruments of Restraint Personal instruments of restraint shall not be used except as a precaution against escape, for the protection of the person in the custody of the Court and others or for other security reasons, and shall be removed when the person appears before a Chamber.

Section V – Proceedings with Regard to the Confirmation of Charges under Article 61 Rule 121 – Proceedings Before the Confirmation Hearing 1. A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67. At this first appearance, the Pre-Trial Chamber shall set the date on which it intends to hold a hearing to confirm the charges. It shall ensure that this date, and any postponements under sub-rule 7, are made public. 2. In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: (a) The person concerned may be assisted or represented by the counsel of his or her choice or by a counsel assigned to him or her; (b) The Pre-Trial Chamber shall hold status conferences to ensure that disclosure takes place under satisfactory conditions. For each case, a judge of the Pre-Trial Chamber shall be appointed to organize such status conferences, on his or her own motion, or at the request of the Prosecutor or the person;

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(c)

All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the PreTrial Chamber. 3. The 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. 4. Where the Prosecutor intends to amend the charges pursuant to article 61, paragraph 4, he or she shall notify the Pre-Trial Chamber and the person no later than 15 days before the date of the hearing of the amended charges together with a list of evidence that the Prosecutor intends to bring in support of those charges at the hearing. 5. Where the Prosecutor intends to present new evidence at the hearing, he or she shall provide the Pre-Trial Chamber and the person with a list of that evidence no later than 15 days before the date of the hearing. 6. If the person intends to present evidence under article 61, paragraph 6, he or she shall provide a list of that evidence to the Pre-Trial Chamber no later than 15 days before the date of the hearing. The Pre-Trial Chamber shall transmit the list to the Prosecutor without delay. The person shall provide a list of evidence that he or she intends to present in response to any amended charges or a new list of evidence provided by the Prosecutor. 7. The Prosecutor or the person may ask the Pre-Trial Chamber to postpone the date of the confirmation hearing. The Pre-Trial Chamber may also, on its own motion, decide to postpone the hearing. 8. The Pre-Trial Chamber shall not take into consideration charges and evidence presented after the time limit, or any extension thereof, has expired. 9. The Prosecutor and the person may lodge written submissions with the Pre-Trial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing. A copy of these submissions shall be transmitted immediately to the Prosecutor or the person, as the case may be. 10. The Registry shall create and maintain a full and accurate record of all proceedings before the Pre-Trial Chamber, including all documents transmitted to the Chamber pursuant to this rule. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the person and victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.

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Rule 121: Proceedings before the confirmation hearing – Completion of the phase leading to the confirmation hearing

R121-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Application of 5 October 2006 (PT), 5 October 2006,

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pp.5-6: CONSIDERING, in this regard, that on 16 March 2006 Thomas Lubanga Dyilo was served with the arrest warrant for him and with a redacted version of the Decision of the Chamber to issue such a warrant; that immediately after Thomas Lubanga Dyilo was surrendered to the seat of the Court in The Hague, he was given access to a redacted version of the materials presented by the Prosecution in support of the application for the issuance of an arrest warrant for Thomas Lubanga Dyilo; that before 28 August 2006, the Defence had access to many documents on which the Prosecution intends to rely at the confirmation hearing; that on 28 August 2006, the Defence had access to the Prosecution Charging Document and List of Evidence, as well as to the identities and unredacted statements of a number of Prosecution witnesses and many additional unredacted documents on which the Prosecution intends to rely at the confirmation hearing; that ever since 28 August 2006, the Defence has been receiving access to the remainder of the evidence on which the Prosecution intends to rely at the confirmation hearing further to the single judge’s rulings on the Prosecution Rule 81 Motions; and that by 9 October 2006 at the latest, the Defence will have access to all the evidence on which the Prosecution intends to rely at the confirmation hearing according to the Prosecution Charging Document and List of Evidence, with the particulars provided in the Final Decision on the Draft Protocol; CONSIDERING therefore that, in the view of the single judge, this stage of the proceedings leading to the confirmation hearing is finalized with the present decision;

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Rule 121: Proceedings before the confirmation hearing – No ground for requesting the Prosecution to provide legal arguments before the confirmation hearing

R121-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence’s Request of 16 October 2006 (PT), 20 October 2006, pp.2-4:

NOTING the "Defence's Request for an Order of the Pre-Trial Chamber to the Prosecution to provide legal argument to the Defence in advance of the confirmation hearing and for a variation of the time limit" ("the Defence Second Request") (4) filed on 16 October 2006 in which it reiterates its First Request that the Chamber order the Prosecution to provide the following information to the Defence at least twenty days before the confirmation hearing: 1) A copy of the skeleton legal argument that will be used by the Prosecution; 2) A list of any cases, laws, conventions, books or articles cited by the Prosecution; 3) Copies of any cases, laws, conventions, books or articles cited by the Prosecution (including the section referred to and the entire decision or case to verify the context in which it is used);

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[…] NOTING articles 61, of the Rome Statute of the International Criminal Court ("the statute") and rule 121 and 122 (1) of the Rules of Evidence and Procedure ("the Rules"); CONSIDERING that the two Requests for legal argument by the Defence are not recognized by any of the laws of the ICC; CONSIDERING that the hearing of 26 October 2006 to determine how the confirmation hearing is to be conducted is the appropriate forum to discuss the Defence request to file legal and factual submissions in written form after the confirmation hearing; ————————— (4) ICC-01/04-01/06-452.

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Rule 121(1): Surrender of the accused – Right to appear promptly upon arriving at the Court

R121-PT-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Scheduling the First Appearance of Mr. Thomas Lubanga Dyilo (PT), 17 March 2006:

NOTING the information provided by the Registrar confirming the arrest of Mr Thomas Lubanga Dyilo and his surrender to the officials of the Court and that Mr Thomas Lubanga Dyilo is currently under the custody of officials of the Court; NOTING articles 60 (1) and 67 of the Rome Statute (the "Statute") and rule 121 (1) of the Rules of Procedure and Evidence (the "Rules"); CONSIDERING that Mr Thomas Lubanga Dyilo shall appear before the Pre-Trial Chamber promptly upon arriving at the Court; FOR THESE REASONS DECIDE to hold a public hearing on Monday 20 March 2006 at 16.00 hours in which Thomas Lubanga Dyilo shall appear before Pre-Trial I in the presence of the Prosecutor.

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Rule 121(1): Proceedings between the initial appearance of the accused and the hearing on confirmation of charges – Right of the accused to participate – Exception of ex parte proceedings, i.e. under Rule 81

R121-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, para. 8-9:

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8. According to article 61 (1) and 2 (a) of the Statute, Thomas Lubanga Dyilo has the right to be present at the confirmation hearing. This right extends, in principle, to all proceedings from the initial appearance to the confirmation hearing; (9) 9. However, a few provisions of the Statute and the Rules expressly provide for ex parte proceedings in the absence of the Defence, in particular, rule 81 (2) of the Rules makes ex parte proceedings mandatory in relation to Prosecution applications to restrict disclosure in order not to prejudice further or ongoing investigations; ————————— (9) According to article 6 (1) of the European Convention on Human Rights and Fundamental Freedoms, "in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". In interpreting the stages of criminal proceedings to which this article applies, the European Court has held that it applies throughout the entirety of the proceedings (see particularly Phillips v United Kingdom, Application No. 41087/98, "Judgment", 5 September 2001, para. 39). The single judge also takes note of the "Decision of Trial Chamber I on the Applications of the Prosecutor Dated 24 June and 20 August 1996 in respect of Protection of witnesses", The Prosecutor v Tihomir Blaskic, ICTY Case No. IT-95-14-T, 2 October 1996, on the Prosecution's application for ex parte proceedings concerning the Prosecution's request to be relieved from the obligation to disclose all or any part of certain witness statements that it was required to disclose to the Defence under Rule 66 (A) of the ICTY Rules of Procedure and Evidence. In deciding the Prosecution's application, Trial Chamber I rejected the Prosecution's submission that the right to be present at one's trial does not include the right to be present at every aspect of the trial. According to Trial Chamber I, the right to be present at one's trial "includes every one of its stages, commences from the time the indictment is served, and must be respected both during the preliminary proceedings and the trial itself before the appropriate court."

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Rule 121(2): Disclosures before the confirmation hearing – Guiding principles of interpretation of regulations related to disclosure

R121-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 2-6:

2. The single judge refers to the general principle of interpretation set out in article 21 (3) of the Statute, according to which "the application and the interpretation of law pursuant to this article must be consistent with internationally recognized human rights". 3. Interpretation of the relevant provisions of the Statute and the Rules, and in particular those relating to the disclosure procedure, must fully respect Thomas Lubanga Dyilo's right to a fair trial as enshrined in article 14 (1) of the International Covenant of Civil and Political Rights,(12) article 6 (1) of the European Convention for the Protection of Human Rights and Individual Freedoms, (13) and article 8 (1) of the American Convention on Human Rights.(14) 4. Furthermore, the single judge considers that the need to safeguard the uniqueness of the criminal procedure of the International Criminal Court ("the Court") is one of

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the primary considerations in contextual interpretation of the relevant provisions. It can be met by addressing possible tensions among those provisions so as to ensure consistency, and full expression to the meaning of each. 5. The single judge also considers that the final system of disclosure must satisfy the minimum guarantees provided for in article 67 of the Statute, among them (i) the right of the Defence to know as soon and as fully as possible the evidence the Prosecution intends to rely on at the confirmation hearing, and about potentially exculpatory and other materials that may assist the Defence in preparing for the confirmation hearing, and (ii) adequate time and facilities to prepare the defence. 6. Finally, as the single judge highlighted in her decisions of 23 and 27 March 2006,(15) and as the Prosecution, the Defence and the Registry have pointed out in their respective observations,(16) a number of other factors must be taken into consideration in interpreting the relevant provisions on disclosure and communication to the Pre-Trial Chamber. These include: (i) effectiveness of the disclosure process; (ii) protection of victims and witnesses; (iii) confidentiality of certain information; (iv) preservation of the evidence; and (v) guarantee that those granted procedural status of victim in the case against Thomas Lubanga Dyilo are in a position adequately to exercise the relevant procedural rights under the Statute and the Rules. ————————— (12) As it has been highlighted, "[t]he right to a fair trial and equality before the Courts have historically been regarded as fundamental rules of law" (Joseph, S., Schultz, ]., Castan, M, The International Covenant on Civil and Political Rights, Oxford University Press, 2004, p. 390). In this regard, the Human Rights Committee has highlighted that "the second sentence of article 14, paragraph 1, provides that 'everyone shall be entitled to a fair and public hearing'. Paragraph 3 of the article elaborates on the requirements of a 'fair hearing' in regard to the determination of criminal charges. However, the requirements of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by paragraph (TN: réf. missing)" (Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI \GEN\1 \Rev.l at 14 (1994), para. 5). (13) On the other hand, the European Court of Human Rights has repeatedly highlighted "the prominent place held in a democratic society by the right to a fair trial" See, for instance, the case of Airey v. Ireland, "Judgment", 9 October 1979, Application No. 6289/73, para. 24; and the case of the "Belgian Linguistic" "Judgment", Application number 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/6423, July 1968 paras. 3 and 4. (14) As the Inter-American Commission on Human Rights ("IACHR") has pointed out in relation to the rights embraced in articles 8 (1) and 25 (1) of the Convention, "The principles established in these articles -the right to judicial protection and to judicial guarantees— rank as fundamental rights within our Convention, because they protect individuals in their complex relationship with the state. Consequently, enforcement of these principles cannot be confined to a mere formal verification of procedural requirements" (IACRH, Report No. 74/90, Case 9850 (Argentina), 4 October 1990, para. 17). (15) First Decision on Disclosure, p. 5; Second Decision on Disclosure, p. 5. (16) "Prosecution's Observations on Disclosure" ("the Prosecution's Observations"), filed by the Prosecution on 6 April 2006, ICC-01/04-01/06-66, pp. 11 to 15.; "Obseruations de la défense concernant le système de divulgation, requis par les décisions du 23 et 27 mars 2006" (Defence Observations), filed by Duty Counsel for the Defence on 6 April 2006, ICC-01/0401/06-68, pp. 4 and 5; "Prosecution's Final Observations on Disclosure" ("the Prosecution's Final Observations"), filed by the Prosecution on 2 May 2006, ICC-01/04-01/06, 91, paras. 12

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and 13; and "Observations of the Defence relating to the system of disclosure in view of the Confirmation Hearing" (the Defence's Final Observations), filed by the Defence on 2 May 2006, ICC-01/04-01/06, 92, pp. 8, 9, 15, 16 and 18.

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Rule 121(2): Disclosures before the confirmation hearing – Hearing on disclosure system

R121-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening a Hearing on the System of Disclosure for the Purpose of the Confirmation Hearing (PT), 7 April 2006:

CONSIDERING the concerns raised by the Prosecution(9) and the Duty Counsel for the Defence(10) with regard to the interim system of disclosure; CONSIDERING the need for a hearing to further address the matters which were the subject of the observations requested in the First Decision on Disclosure and the Second Decision on Disclosure; ————————— (9) The Prosecution's Observations, pp. 11- 15. (10) The Duty Counsel's Observations, pp. 4-5.

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Rule 121(2): Disclosures before the confirmation hearing – Hearing on disclosure system – Joint request to be provided with an agenda for the hearing in advance

R121-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Agenda of the Hearing of 24 April 2006 (PT), 19 April 2006:

NOTING the "Joint Request of the Prosecution and Duty Counsel for the Defence for Distribution of the Agenda for the Hearing of 24 April 2006 Three Working Days Prior to the Hearing" (3) (the "Joint Request"), filed by the Prosecution and Duty Counsel for the Defence on 12 April 2006, in which the parties request that the agenda of the hearing be distributed by 19 April 2006 in order to be "fully prepared to assist the Pre-Trial Chamber in its decision" in light of the fact that such a decision "is likely to set the future disclosure standards for the Court" (4); […] CONSIDERING the complexity of the questions to be dealt with at the hearing of 24 April 2006, as demonstrated by the lengthy negotiation process in the Working Group on Rules of Procedure and Evidence of the Preparatory Commission for the International Criminal Court(6); CONSIDERING that proper preparation of the parties is necessary for the purposes of the hearing of 24 April 2006; FOR THESE REASONS DECIDE to grant the Joint Request.

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DECIDE that the agenda of the hearing of 24 April 2006 shall be as provided for below. DECIDE that the Prosecution and the Defence shall address all items of the agenda unless otherwise expressly provided for in the agenda. ————————— (3) ICC-01/04-01/06-76 (4) Idem, p. 5. (6) Brady, H., Disclosure of Evidence, in Lee, R The International Criminal Court: Elements of the Crimes and Procedure and Evidence, pp. 403- 423, pp. 403-407.

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Rule 121(2) (b): Disclosures before the confirmation hearing – Timetable for disclosures fixed by the Pre-Trial Chamber – Scheduling of a status conference on disclosure

R121-PT-8

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

DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: 1- Inter partes disclosure of potentially exculpatory materials under article 67 (2) of the Statute shall commence as soon as this decision has been issued, and the first exchange shall take place before the status conference to address disclosure matters on 24 May 2006; […] 10- A status conference on the process of disclosure shall be held on 24 May 2006 at 11.00 hours; […] 13- On 5 June 2006 at 14.00 hours a status conference shall be held to address the disclosure process and the filing in the record of the case the evidence the parties intend to use at the confirmation hearing; […] 18-A status conference to address the disclosure process and the filing in the record of the case of the evidence which the parties intend to use at the confirmation hearing shall be held on 16 June 2006 at 14.00 hours;

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Rule 121(2) (c): Record of the case for confirmation hearing – Interpretation of “All evidence” – Filing obligations apply to both the Prosecution and the Defence

R121-PT-9

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 40-43:

40. With respect to materials and evidence other than the document containing the charges and the parties' lists of evidence, the relevant part of rule 121 (2) of the Rules states as follows: In accordance with article 61, paragraph 3, the Pre-Trial Chamber shall take the necessary decisions regarding disclosure between the Prosecutor and the person in respect of whom a warrant of arrest or a summons to appear has been issued. During disclosure: [...] (c) All evidence disclosed between the Prosecutor and the person for the purposes of the confirmation hearing shall be communicated to the Pre-Trial Chamber. 41. According to its literal interpretation, rule 121 (2) of the Rules expressly refers to evidence under article 61 (3) of the Statute, which is the evidence on which the Prosecution intends to rely at the confirmation hearing. The single judge therefore considers that the reference to "all evidence" in paragraph (c) of rule 121 (2) of the Rules must be understood as all evidence on which the Prosecution intends to rely at the confirmation hearing. 42. According to its contextual interpretation, rule 121 (2) of the Rules must be interpreted in light of rule 122 (1) of the Rules, which also requires that the evidence on which the Defence intends to rely at the confirmation hearing be filed in the record of the case before the hearing commences. 43. Indeed, rule 122 (1) of the Rules grants the Presiding Judge of the Pre-Trial Chamber authority to decide at the beginning of the confirmation hearing how "he or she intends the evidence contained in the record of the proceedings to be presented." Therefore, in the view of the single judge, what needs to be communicated to the Pre-Trial Chamber prior to the commencement of the confirmation hearing is the evidence that must be presented at such a hearing.

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Rule 121(2) (c): Record of the case for confirmation hearing – Interpretation of “All evidence” – Communication to the PreTrial Chamber is limited to evidence on which the parties intend to rely at the confirmation hearing

R121-PT-10

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT),

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15 May 2006, Annex I, paras. 50-58, 61: 50. The question arises as to whether, in addition to the evidence on which the parties intend to rely, any other materials that the Prosecution must disclose to the Defence before the confirmation hearing must also be presented and therefore need to be previously filed in the record of the case. These would include e.g. potentially exculpatory materials (article 67 (2) of the Statute) or those otherwise material for the Defence's preparation for the confirmation hearing (article 67 (1) (b) of the Statute and rule 77 of the Rules). 51. In the view of the single judge, this question must be answered in the negative for a number of reasons. 52. First, according to article 61 (5), (6) and (7) of the Statute, at the confirmation hearing, "the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged". The Defence then "may: (a) object to the charges; (b) challenge the evidence presented by the Prosecutor; and (c) present evidence" Finally, the PreTrial Chamber, "on the basis of the hearing", shall confirm the charges, decline to confirm the charges or "adjourn the hearing and request the Prosecutor to consider: (i) providing further evidence or conducting further investigation with respect to a particular charge; or (ii) amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court." 53. Furthermore, rule 79 of the Rules makes it clear that the Defence may raise any alibi or any other defence, under article 31 (1) of the Statute, either at the confirmation hearing or at the trial. Likewise, under article 61 (5) of the Statute and rule 121 (6) of the Rules, the Defence need not present any evidence at the confirmation hearing. Hence, while articles 67 (1) (b) and 67 (2) of the Statute and rule 77 of the Rules impose on the Prosecution the obligation to disclose to the Defence before the confirmation hearing those materials that are potentially exculpatory or are otherwise material for the Defence's preparation for the confirmation hearing, the Defence need not rely on those materials at the confirmation hearing if it considers that this option will be advantageous to its success at trial. 54. In the view of the single judge, if all materials disclosed by the Prosecution before the confirmation hearing, on which neither party intends to rely, were filed in the record of the case and presented thereat, the nature of the confirmation hearing would be significantly altered and the right of the Defence to decide whether to rely on such materials at the hearing would be infringed on. 55. Second, according to article 61 (7) of the Statute, at the confirmation hearing the Pre-Trial Chamber must determine "whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged." Therefore, the Pre-Trial Chamber is not a finder of truth in relation to the guilt or innocence of the person against whom a warrant of arrest or a summons to appear has been issued.(67) 56. In the opinion of the single judge, it is not the role of the Pre-Trial Chamber to find the truth concerning the guilt or innocence of Thomas Lubanga Dyilo, but to determine whether sufficient evidence exists to establish substantial grounds to believe that he is criminally liable for the crimes alleged by the Prosecution.(68) The

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single judge considers that it would be contrary to the role of the Pre-Trial Chamber to file in the record of the case and present at the confirmation hearing potentially exculpatory and other materials disclosed by the Prosecution before the hearing, if neither party intends to rely on those materials at that hearing. 57. Third, according to their teleological interpretation, rules 121 (2) and 122 (1) of the Rules serve several purposes. These include enabling the Pre-Trial Chamber to properly organise and conduct the confirmation hearing; ensuring that the parties will have access to the evidence to be presented at the confirmation hearing before it commences, regardless of problems arising during the disclosure process; and enabling the victims to properly exercise their procedural rights during that hearing. In the view of the single judge, these goals will be achieved if, following the literal and contextual interpretation of rules 121 (2) and 122 (1) of the Rules referred to above, only the evidence on which the parties intend to rely at the confirmation hearing is communicated to the Pre-Trial Chamber by filing it in the record of the case. 58. Fourth, release from the obligation to communicate to the Pre-Trial Chamber all materials disclosed by the Prosecution to the Defence before the confirmation hearing, and which neither party intends to use at the hearing, is fully consistent with internationally recognised standards regarding the right to a fair trial. In the view of the single judge, under the Court's criminal procedure, to be consistent with those standards what matters is that the Defence can access and analyse the materials far enough in advance to be in a position to decide whether to rely on them at the confirmation hearing. […] 61. The question of whether the broader disclosure process should be inter partes or carried out via the Registry must be addressed, once it has been concluded that what needs to be communicated to the Pre-Trial Chamber by their filing in the record of the case is (i) the Prosecution Charging Document and List of Evidence and the Prosecution Amended Charging Document and/or List of Evidence, (ii) the Defence list of evidence provided for in rule 121 (6) of the Rules, and (iii) the actual evidence on which the parties intend to rely at the confirmation hearing. ————————— (67) Shibahara, K., Confirmation of the Charges before Trial, in: Triffterer, O., Commentary on the Rome Statute of the International Criminal Court, Nomos, 1999, p. 790. (68) Marchesiello, M., Proceedings before the Pre-Trial Chambers, in: Cassese, A., Gaeta, P. and Jones, J.R.W.D., The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, p. 1245.

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Rule 121(2) (c): Record of the case for confirmation hearing – Format of filing: evidence shall be filed in its original format and electronic form

R121-PT-11

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 37, 44-47, 49:

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DECIDE that, pursuant to article 61 (3) of the Statute and rule 121 (2) (c) of the Rules, the Prosecution shall communicate to the Pre-Trial Chamber the evidence on which it intends to rely at the confirmation hearing as soon as practicable after it has been subject to disclosure under rule 76 or to inspection under rule 77 of the Rules; and that such communication shall take place by filing in the record of the case against Thomas Lubanga Dyilo the original and electronic copies, or electronic photographs in the case of tangible objects, of the relevant evidence containing the details required by the Draft Protocol on the Presentation of Evidence as it stands on 15 May 2006; […] 37. Under these circumstances, the single judge considers that both parties are obliged, pursuant to rules 121 (2) (c) and 122 (1) of the Rules, to file the original statements, books, documents, photographs and tangible objects in the record of the case. It will then be the responsibility of the Registry, as the record keeper of the Court, to maintain the evidence in its original format, so that the parties shall only have to address matters relating to the chain of custody arising from events prior to the filing of the relevant evidence. […] 44. As to the format in which the parties must file the evidence on which they intend to rely at the confirmation hearing, the single judge has already concluded that the evidence must be submitted in its original format. 45. The single judge also notes that, under regulation 26 (3) and (4) of the Regulations, whenever possible documents must be filed electronically and evidence other than live testimony must be presented electronically. For these purposes, the Court has purchased software (which is already available to the Prosecution and can be made available to the Defence in the coming days) and prepared a Draft Protocol on the Presentation of Evidence (which requires specific details for each item of evidence to be presented electronically in court, including those relating to the format of the documents, image quality, the numbering system, required metadata and responsibility for the transmission of viruses). 46. Moreover, the single judge also takes note of the willingness shown by the parties to work with this system.(66) 47. Hence, in the view of the single judge, in addition to the originals, the parties must file in the record of the case electronic copies (or electronic photographs for tangible objects) of the evidence on which they intend to rely at the confirmation hearing containing the particulars provided for in the Draft Protocol on the Presentation of Evidence. The single judge considers that, pending approval of the Final Protocol on the Presentation of Evidence, and given the fact that the confirmation hearing has been scheduled for 27 June 2006, the draft protocol, as it stands on 15 May 2006, shall apply in the present case. […] 49. Moreover, in the view of the single judge, a ruling under rule 81 of the Rules may require that some of the originals of the evidence on which the parties intend to rely at the confirmation hearing be filed ex parte, such as full witness statements if

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either party is authorised to disclose to the other only redacted versions of those statements. ————————— (66) ICC-01/04-01/06-T-4 EN, p. 54, lines 5 to 25 and p. 55, lines 1 to 23. See also, Defence Final observations, pp. 23 and 24.

x

Rule 121(2) (c): Record of the case for confirmation hearing – Confidentiality of evidence: provisional filing of evidence as confidential until further determination by the Pre-Trial Chamber

R121-PT-12

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, para. 48:

DECIDE that, subject to a determination under rule 81 of the Rules, the Prosecution and Defence filings of the evidence they intend to present at the confirmation hearing shall be classified as confidential; […] 48. Regarding the confidentiality of the parties' filings, the single judge agrees with the Prosecution that these should be classified as confidential for the time being. Subsequently, once all the evidence that the parties intend to rely on has been filed, the last status conference before the confirmation hearing will address with the parties the matters of reclassifying some of the filings and publicity of the confirmation hearing.

x

Rule 121(2) (c): Record of the case for confirmation hearing – Timeframe for filing evidence on which the parties intend to rely at the confirmation hearing: as soon as practicable after having exchanged its content with the other party

R121-PT-13

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras. 70-72:

70. Concerning the evidence on which the parties intend to rely at the confirmation hearing, the Registry plays its role as a result of the mandatory filing of such evidence in the record of the case pursuant to rules 121 (2) and 122 (1) of the Rules. 71. The single judge observes that these rules do not establish any specific time limit for the parties to file such evidence but merely set out that this must be done before the start of the confirmation hearing. Furthermore, in the view of the single judge, any such filing may occur only after the relevant party has decided to rely on a given

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

485

piece of evidence and has exchanged the content of that evidence with the other party. 72. However, the single judge does not agree with the Prosecution's position that the parties are obliged to make such filings only after the disclosure process has been completed. In the opinion of the single judge, the interrelation between the disclosure process and the system for communicating evidence to the Pre-Trial Chamber, and the fulfilment of the various objectives of the latter system, require that, as submitted by the Defence, the parties file in the record of the case any piece of evidence on which they intend to rely at the confirmation hearing as soon as practicable after having exchanged its content with the other party.

x

Rule 121(3): Submission of a detailed description of the charges together with a list of the evidence the Prosecution intends to present – Timetable fixed by the Pre-Trial Chamber

R121-PT-14

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 59-60:

DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […] 11-On 29 May 2006, the Prosecution shall make available to the Defence and file in the record of the case against Thomas Lubanga Dyilo, pursuant to rule 121 (3) of the Rules, a comprehensive document ("the Prosecution's Charging Document and List of Evidence") containing a detailed description of the changes together with the list of evidence which the Prosecution intends to present at the hearing. The Prosecution shall ensure that it is organised so that: (i) each item of evidence is linked to the factual statement it intends to prove; and (ii) each factual statement is linked to a specific element of the crime, a mode of liability or both; […] 59. In the view of the single judge, in order better to guarantee Thomas Lubanga Dyilo's right to a fair trial, the Prosecution must not only discharge its disclosure obligations promptly but also communicate the documents containing the charges and lists of evidence (the "Prosecution Charging Document and List of Evidence" and the "Prosecution Amended Charging Document and/or List of Evidence"), pursuant to rule 121 (3), (4) and (5) of the Rules, so that the Defence can learn as soon and as fully as possible about the Prosecution's case at the confirmation hearing. This can best be achieved by organising the Prosecution Charging

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Document and List of Evidence and the Prosecution Amended Charging Document and/or List of Evidence so that (i) each item of evidence is linked to the factual statement it intends to prove, and (ii) each factual statement is linked to the specific element of the crime or mode of liability, or both, with which Thomas Lubanga Dyilo has been charged. 60. In the view of the single judge, this interpretation of rule 121 (3), (4) and (5) of the Statute not only falls within the boundaries of the literal and contextual interpretation of that rule, but it is strongly supported by its teleological interpretation insofar as it will place the Pre-Trial Chamber in the best position to properly organise and conduct the confirmation hearing and will help the Defence and the victims of the case to better understand the scope and intricacies of the Prosecution case at the confirmation hearing.

x

Rule 121(3)-(5): Submission of the Prosecution list of evidence – Inadmissibility of evidence that is not translated in one of the working languages of the Court by the time the Prosecution list of evidence is filed

R121-PT-15

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence “Request to Exclude Video Evidence Which Has not Been Disclosed in one of the Working Languages” (PT), 7 November 2006, pp. 3-4:

CONSIDERING further that, in principle, in order for the Court to conduct its business effectively, the Prosecution must be prepared to provide the evidence on which it intends to rely at the confirmation hearing in one of the working languages of the Court by the time it is required to file the Prosecution List of Evidence and the Prosecution Amended List of Evidence in accordance with rule 121 (3), (4) and (5) of the Rules; FOR THESE REASONS DECIDE, pursuant to article 69 (4) of the Statute, to declare inadmissible for the purpose of the confirmation hearing those video excerpts: (i) which are not translated into one of the working languages of the Court by Thursday 9 November 2006 at 9h30; and (ii) whose translation into one of the working languages of the Court is not made available to the Chamber and the Defence by the said time-limit;

x

Rule 121(6): Submission of a Defence list of evidence – Requirement that the Prosecution completes the disclosure of exculpatory evidence before completion of the Defence list – Expedited procedure

R121-PT-16

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

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

487

ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening a Hearing on the Defence Request for Order to Disclosure Exculpatory Materials, 1st November 2006: NOTING the “Request for Order to Disclose Exculpatory Materials” (“the Defence Request”),(1) filed by the Defence on 1 November 2006, in which the Defence requests the Chamber: (i) to order the Prosecution to immediately disclose the requested materials; and (ii) amend the deadline for filing the list of Defence evidence in relation to any materials which are received from the Prosecution after 2 November 2006; […] CONSIDERING that, if the Chamber decides to order the Prosecution to disclose to the Defence any of the materials referred to in the Defence Request, the Defence must have the possibility to add to its list of evidence, any of the materials transmitted by the Prosecution pursuant to the said order, after the Defence has received them from the Prosecution; FOR THESE REASONS DECIDE to convene a hearing on the Defence Request with the Prosecution, the Defence and the representatives of the Victims and Witnesses Unit to be held in closed session on Thursday 2 November 2006 at 9h00. […] DECIDE that: (i)

the 2 November 2006 deadline for the filing of the Defence List of Additional Evidence shall not be applicable to those materials referred to in the Defence Request;

(ii)

if necessary, a new deadline in relation to the said materials shall be established in the decision on the Defence Request that shall be issued after the hearing.

————————— (1) ICC-01/04-01/06-633-Conf.

x

Rule 121(6): Submission of a Defence list of evidence – Timetable fixed by the Pre-Trial Chamber – Need for the Defence to be disclosed Prosecution evidence first

R121-PT-17

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

DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the

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evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […] 14-The Defence shall have until 12 June 2006 to file, pursuant to rule 121 (6) of the Rules, the list of evidence ("the Defence List of Evidence") it intends to present at the confirmation hearing in light of the Prosecution's Charging Document and List of Evidence filed on 29 May 2006;

R121-PT-18

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Deadline of 12 September 2006 and the Defence Deadline of 12 September 2006 (PT), 7 September 2006:

CONSIDERING that, by the 12 September 2006, the Defence will not yet have access to an important part of the evidence contained in the Prosecution Charging Document and List of Evidence; and that, under these conditions, maintaining the 12 September deadline for the Filing of the Defence List of Evidence will be contrary to the rights of Thomas Lubanga Dyilo to a fair trial; DECIDES that the Prosecution has until 12 September 2006 to file: (i) a document containing the amended charges, if any, together with the list of evidence that the Prosecution intends to bring in support of those charges at the hearing; (ii) a list of the new evidence, if any, on which the Prosecution intends to rely at the confirmation hearing ("the Prosecution List of Additional Evidence"); (iii) any request for leave to make redactions in any evidence on which the Prosecution intends to rely at the confirmation hearing and which was not included in the Prosecution Charging Document and List of evidence filed on 28 August 2006; DECIDES to suspend the 12 September 2006 time limit for the filing of the Defence List of Evidence; DECIDES that at the status conference on 19 September 2006 at 1400 the following matters will be dealt with, in addition to those matters related to the inter partes disclosure process and the process of filing with the Registry the evidence on which the parties intend to rely at the confirmation hearing: (i) the new deadline for the presentation of the Defence List of Evidence; and (ii) the consequences of this new deadline for the starting date of the confirmation hearing.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

x

489

Rule 121(6): Presentation of evidence by the Defence – Disclosure of Defence evidence three working days before the confirmation hearing

R121-PT-19

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information in Electronic Version for their Presentation during the Confirmation Hearing (PT), 28 August 2006, pp. 4-5:73

CONSIDERING that, according to the rule 121(6) of the Rules, the Defence is only obliged to file its list of evidence 15 days before the commencement of the confirmation hearing; that according to the Final Decision on Disclosure and the Decision on the Postponement, the Defence has until 18 September 2005, that is 9 days before the confirmation hearing, to disclose to the Prosecution the evidence other than witness statements contained in the Defence list of evidence; that the Final Decision on Disclosure and the Decision on the Postponement do not establish a deadline for the Defence to disclose to the Prosecution the statements of the witnesses on which it intends to rely at the confirmation hearing other than at the commencement of the confirmation hearing; and that according to the Final Decision on Disclosure and the Decision on Postponement, the filing of originals and electronic versions of the evidence on which the Defence intends to rely at the confirmation hearing takes place after they have been disclosed to the Prosecution; CONSIDERING, however, that according to regulation 52(2) of the RoR, an electronic copy of the evidence on which the Defence intends to rely at the confirmation hearing shall be provided, at least three full working days before the confirmation hearing; and that, in the view of the single judge, such an electronic version must contain the particulars required by the E-Court Protocol;

x

Rule 121(3)-(6): Prosecution and Defence lists of evidence – Any evidence referred to in the lists shall be admitted into evidence at the confirmation hearing, unless ruled inadmissible – The Chamber may rely on evidence whether or not it is presented at the confirmation hearing

R121-PT-20

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p. 5:

73 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision to Give Access to the Prosecution to the Evidence Included in the Defence List of Evidence Filed on 2 November 2006 (PT), 8 November 2006.

490

CYRIL LAUCCI

CONSIDERING that any evidence referred to in the Prosecution List of Evidence filed on 20 October 2006 and in the Defence List of Evidence filed on 2 November 2006 and in the Defence Additional List of Evidence filed on 7 November 2006 shall be admitted into evidence for the purpose of the confirmation hearing, unless it is expressly ruled inadmissible by the Chamber upon a challenge by the Prosecution or the Defence, as the case may be; CONSIDERING, further, that the Chamber may rely on any evidence admitted for the purpose of the confirmation hearing whether or not the party proposing such evidence presents it at the confirmation hearing as long as the other party had the opportunity to respond to it at the hearing;

x

Rule 121(7): Application for postponement of confirmation hearing – Ground: protection of victims and witnesses and Defence’s right to have adequate time to prepare (granted)

R121-PT-21

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Postponement of the Confirmation Hearing and the Adjustment of the Timetable Set in the Decision on the Final System of Disclosure (PT), 24 May 2006:

NOTING the "Prosecution's Request pursuant to Rule 121 (7) for Postponement of the Date of the Confirmation Hearing" ("the Prosecution's Request), (7) filed by the Prosecution on 22 May 2006, in which the Prosecution requests to re-schedule the confirmation hearing once the protective measures referred to in the Prosecution Submission are fully implemented "for a date at least 30 days thereafter"; (8) […] CONSIDERING that, according to the Prosecution, the Defence must have access to the identities and the unredacted versions of the statements of the witnesses referred to in the Prosecution's Submission and the Prosecution's Request because otherwise "it will not be in a position to adequately consider the evidence of these witnesses";(12) CONSIDERING that the witnesses referred to in the Prosecution's Submission require that their identities and unredacted versions of their statements be only disclosed to the Defence after the protection measures sought by the Prosecution have been fully implemented;(13) and that, according to the Victims and Witnesses Unit, the protection measures sought by the Prosecution for the witnesses referred to in the Prosecution's Submission can only be fully implemented towards the end of August 2006 and after thorough evaluation of their necessity by the Unit; (14) CONSIDERING that the single judge agrees with the Prosecution in that the identities of the said witnesses must be included in the Prosecution Charging Document and List of Evidence that the Prosecution must filed 30 days before the confirmation hearing pursuant to rule 121 (3) of the Rules; […]

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

491

CONSIDERING, that, in compliance with the Decision Establishing General Principles, the Prosecution has indicated that it intends to seek from the Victims and Witnesses Unit protection measures in relation to a number of other witnesses on which the Prosecution intends to rely at the confirmation hearing; (16) CONSIDERING that, according to articles 61 (3) and (6) and 67 of the Statute the Defence must have adequate time to prepare for the confirmation hearing in order to be in a position to effectively exercise its right to challenge the evidence presented by the Prosecution at such a hearing; CONSIDERING that although the Defence does not "see any grounds, certainly not coming from the Prosecutor, to request for a postponement of the confirmation hearing"(17), there is substantial amount of work which the Defence team will have to do in order to prepare the Defence; and that it is impossible for two persons in the Defence team who are already occupied with drafting motions, requests and submissions to take on that task by themselves(18). FOR THESE REASONS DECIDE to postpone the confirmation hearing until Thursday 28 September 2006; DECIDE that the disclosure process for the purpose of the confirmation hearing on 28 September 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable:[…] ————————— (7) ICC-01/04-01/06-113-Conf-Exp and ICC-01/04-01/06-114-Conf. (8) Ibid., para. 14. (12) The Prosecution's Request, para. 9. (13) ICC-01/04-01/06-T-7-EXPNODEF-EN, Realtime Transcript, page 4678, lines 1-9. (14) ICC-01/04-01/06-T-7-EXPNODEF-EN, Realtime Transcript, page 4689, lines 15-17, page 4691, lines 12-14 and page 4694, lines 6-13. (16) ICC-01/04-01/06-T-7-EXPNODEF-EN, Realtime Transcript, page 4698, lines 1-12. (17) ICC-01/04-01/06-T-8-EN, Realtime Transcript, afternoon session, page 4675, lines 6-8. (18) ICC-01/04-01/06-T-8-EN, Realtime Transcript, afternoon session, page 4686, lines 15-23.

x

Rule 121(7): Proprio motu postponement of the confirmation hearing – Delays in the disclosure of evidence – Defence’s right to have adequate time to prepare

R121-PT-22

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur le report de l’audience de confirmation des charges (Decision on the Postponement of the Confirmation Hearing) (PT), 20 September 2006:

VU les articles 61, 67, 68 du Statut et les Règles 121 et 122 du Règlement, ATTENDU que la Défense a reçu notification de l'état détaillé des charges et de l'inventaire des preuves du Procureur en date du 28 août 2006 (10),

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CYRIL LAUCCI

ATTENDU qu'une partie des éléments de preuve sur lesquels le Procureur entend se fonder à l'audience de confirmation des charges n'est pas encore accessible à la Défense, ATTENDU que la Chambre est d'avis, en vue du bon exercice des droits de la Défense, et notamment en vue de sa préparation pour l'audience de confirmation des charges, que ladite audience doit être reportée, ATTENDU que sur un tel report, une consultation des participants est opportune et ce, lors de la conférence de mise en état en date du 26 septembre, PAR CES MOTIFS, DECIDE de reporter l'audience de confirmation des charges à une date qui sera communiquée ultérieurement aux parties, DECIDE que la conférence de mise en état en date du 26 septembre aura notamment pour objectif de consulter les participants sur la date de l'audience de confirmation des charges, ————————— (10) ICC-01/06-01/04-356.

——— Official Translation ——— NOTING articles 61, 67 and 68 of the Statute and rules 121 and 122 of the Rules; CONSIDERING that the Defence received notification of the Prosecutor’s detailed list of charges and the list of evidence on 28 August 2006(10); CONSIDERING that part of the evidence on which the Prosecutor intends to rely at the confirmation hearing is not yet accessible to the defence; CONSIDERING that the Chamber is of the opinion that the hearing must be postponed to allow the Defence to properly exercise its rights, in particular with regard to its preparation for the confirmation hearing,; CONSIDERING that in respect of that postponement, a consultation of the parties during the status conference of 26 September is appropriate; FOR THESE REASONS DECIDES to postpone the confirmation hearing to a date to be communicated to the parties; DECIDES that the purpose of the status conference of 26 September will, inter alia, be to consult the parties on the date of the confirmation hearing; ————————— (10) ICC-01/06-01/04-356.

x

Rule 121(9): Written submissions on points of fact and law – The Representatives of Victims may also lodge such submissions within the same time limit and without enlarging upon the evidence or facts in the case

R121-PT-23

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

493

No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p. 4: CONSIDERING, further, that, pursuant to rule 121(9) of the Rules, "the Prosecution and the person may lodge written submissions with the Pre-Trial Chamber, on points of fact and on law, including grounds for excluding criminal responsibility set forth in article 31, paragraph 1, no later than three days before the date of the hearing"; CONSIDERING that, pursuant to the Decision of 22 September 2006, the Legal Representatives of the Victims may make opening and closing statements at the confirmation hearing, in which they may not enlarge upon the evidence or facts in the case of The Prosecutor v. Thomas Lubanga Dyilo; CONSIDERING, therefore, that the Legal Representatives of the Victims may address any points of law, including the legal characterisation of the modes of liability with which the Prosecution has charged Thomas Lubanga Dyilo under article 25 of the Statute;

Rule 122 – Proceedings at the Confirmation Hearing in the Presence of the Person Charged 1. The Presiding Judge of the Pre-Trial Chamber shall ask the officer of the Registry assisting the Chamber to read out the charges as presented by the Prosecutor. The Presiding Judge shall determine how the hearing is to be conducted and, in particular, may establish the order and the conditions under which he or she intends the evidence contained in the record of the proceedings to be presented. 2. If a question or challenge concerning jurisdiction or admissibility arises, rule 58 applies. 3. Before hearing the matter on the merits, the Presiding Judge of the Pre-Trial Chamber shall ask the Prosecutor and the person whether they intend to raise objections or make observations concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing. 4. At no subsequent point may the objections and observations made under subrule 3 be raised or made again in the confirmation or trial proceedings. 5. If objections or observations referred to in sub-rule 3 are presented, the Presiding Judge of the Pre-Trial Chamber shall invite those referred to in sub-rule 3 to present their arguments, in the order which he or she shall establish. The person shall have the right to reply. 6. If the objections raised or observations made are those referred to in sub-rule 3, the Pre-Trial Chamber shall decide whether to join the issue raised with the examination of the charges and the evidence, or to separate them, in which case it shall adjourn the confirmation hearing and render a decision on the issues raised. 7. During the hearing on the merits, the Prosecutor and the person shall present their arguments in accordance with article 61, paragraphs 5 and 6. 8. The Pre-Trial Chamber shall permit the Prosecutor and the person, in that order, to make final observations.

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9. Subject to the provisions of article 61, article 69 shall apply mutatis mutandis at the confirmation hearing.

PRE-TRIAL CHAMBERS x

Rule 122(1): Power of the Presiding Judge of the Pre-Trial Chamber to determine how the confirmation hearing is to be conducted – Broad discretion of the Presiding Judge

R122-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p.3:

CONSIDERING that, pursuant to rule 122(1) of the Rules, "the presiding judge shall determine how the hearing is to be conducted (...)"; CONSIDERING that this rule confers broad discretion on the Presiding judge to determine how a confirmation hearing is to be conducted, including inter alia, how a witness shall be examined;

x

Rule 122(1): Power of the Presiding Judge of the Pre-Trial Chamber to determine how the confirmation hearing is to be conducted – Designation of a single judge for the duration of the hearing

R122-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Replacement of the Single Judge (PT), 5 October 2006, pp.2-3:

CONSIDERING that pursuant to Rule 122 (1) of the Rules, it is the function of the Presiding Judge of the Chamber to determine how the confirmation hearing shall be conducted; FOR THESE REASONS, DECIDES to designate Judge Claude Jorda as single judge for the case against Thomas Lubanga Dyilo in the situation of the DRC, responsible, under article 57 (2) of the Statute, for exercising the functions of the Chamber in that case, and in particular those relating to Rule 122 (1) of the Rules, from Friday 6 October 2006 until the end of the confirmation hearing.

x

Rule 122(1): Power of the Presiding Judge of the Pre-Trial Chamber to determine how the confirmation hearing is to be conducted – Request for information in advance on the way the confirmation hearing will be conducted (Dismissed)

R122-PT-3

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

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

495

ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, p.4: ATTENDU […] que concernant la réponse à la troisième, cinquième et sixième question de la Défense relative aux modalités de déroulement de l'audience de confirmation des charges, une audience est prévue le 26 octobre 2006 pour entendre les participants sur les modalités de déroulement de l'audience de confirmation des charges afin de permettre au juge président de déterminer ces modalités en application de la règle 122-1 du Règlement ; […]

——— Official Translation ——— CONSIDERING […] that with respect to the Defence’s third, fifth and sixth points relating to arrangements for the holding of the confirmation hearing, a hearing is scheduled for 26 October 2006 at which participants will be heard on the arrangements for the holding of the confirmation hearing in order to allow the Presiding Judge to assess these arrangements pursuant to rule 122(1) of the Rules; […]

x

Rule 122(1): Power of the Presiding Judge of the Pre-Trial Chamber to determine how the confirmation hearing is to be conducted – Submission in advance of the list of issues concerning jurisdiction, admissibility and the proper conduct of the proceedings the parties intend to raise pursuant to Rule 122(2) and (3)

R122-PT-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Concerning List of Issues on Jurisdiction, Admissibility and Proper Conduct of the Proceedings (PT), 7 November 2006, pp. 2-3:

CONSIDERING that both the Prosecution and the Defence have advised the Chamber that, due to the issues that shall likely be raised pursuant to rule 122 (2) and (3) of the Rules, the discussion on such issues will require the allocation of more time than the hour and a half provided for in the schedule proposed by the Chamber; CONSIDERING, therefore, that in order to properly determine pursuant to rule 122 (1) of the Rules how the hearing is to be conducted during the first two days of the confirmation hearing, it is necessary to obtain, prior to the commencement of the hearing, the list of those issues of jurisdiction, admissibility or concerning the proper conduct of the proceedings leading to the confirmation hearing that Prosecution and Defence intend to raise pursuant to rules 122 (2) and (3) of the Rules; FOR THESE REASONS,

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REQUESTS the Prosecution and the Defence to file by Wednesday 8 November 2006 at 14h00 the list of those issues of jurisdiction, admissibility or concerning the proper conduct of the proceedings prior to the confirmation hearing that they intend to raise pursuant to rules 122 (2) and (3) of the Rules;

x

Rule 122(1): Power of the Presiding Judge of the Pre-Trial Chamber to determine how the confirmation hearing is to be conducted – Confirmation hearing shall start with submissions of the Parties under Rule 122(2) and (3)

R122-PT-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Request to Postpone the Confirmation Hearing (PT), 8 November 2006, pp. 3-4:

DECIDES that the confirmation hearing shall start, as currently scheduled, on 9 November 2006 at 9.30 hours. DECIDES that: (i) pursuant to rule 122 (2) and (3) of the Rules, the Prosecution and the Defence shall have in the time allocated to them for 9 November 2006 as provided for in Annex I to the Decision the opportunity to: i. to raise a question or make a challenge concerning jurisdiction or admissibility; ii. to raise objections or make observations concerning issues related to the proper conduct of the proceedings leading to the confirmation hearing; (ii) pursuant to rule 122 (4) of the Rules, at no subsequent time during the confirmation hearing may the Prosecution and the Defence raise objections or observations related to the proper conduct of the proceedings leading to the confirmation hearing; (iii) pursuant to Annex I to the Decision, a discussion on the questions, challenges, objections and issues raised by the Prosecution and the Defence pursuant to rule 122 (2) and (3) of the Rules on 9 November 2006 shall take place in the morning session scheduled for Friday 10 December 2006.

x

Rule 122(1): “Evidence contained in the record of the proceedings” – Prosecution and Defence are obliged to file the evidence they intend to present at the confirmation hearing – Filing of Defence evidence – Timetable fixed by the Pre-Trial Chamber

R122-PT-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of

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Disclosure and the Establishment of a Timetable (PT), 15 May 2006 and Annex I, paras. 31-37, 135-136: DECIDE that, subject to any eventual postponement of the hearing, the disclosure process for the purpose of the confirmation hearing on 27 June 2006 and the subsequent filing in the record of the case against Thomas Lubanga Dyilo of the evidence on which both parties intend to rely at that hearing shall be completed according to the following timetable: […] 17- As soon as practicable after the Defence List of Evidence has been filed, the Defence shall file in the record of the case against Thomas Lubanga Dyilo: (i) the original statements of the witnesses on which it intends to rely at the confirmation hearing, which, if authorised by the single judge, pursuant to rule 81 of the Rules, shall be filed ex parte, only available to the Defence; (ii) the redacted versions of the statements, if previous authorisation has been granted by the single judge pursuant to rule 81 of the Rules; (iii) an electronic copy of statements under (i) and (ii) above, including the details required by the Draft Protocol for the Presentation of Evidence; […] 31. In the view of the single judge, the relationship between disclosure and communication of certain evidence to the Pre-Trial Chamber in the Court's criminal procedure is such that a clear understanding of the extent of such communication is needed to properly address the main features of the disclosure system. 32. The single judge considers that interpreting the provisions on communication of certain evidence to the Pre-Trial Chamber must take into consideration a number of elements. 33. First, the parties agree that the expression "shall be communicated to the PreTrial" in rule 121 (2) (c) of the Rules means filing certain evidence in the record of the case. In the view of the single judge, this approach is supported not only by a literal interpretation of the expression "shall be communicated", but also by its contextual interpretation in light of rule 122 (1) of the Rules. This last rule is drafted on the premise that the evidence to be presented at the confirmation hearing must previously have been filed in the record of the case, insofar as it establishes that, at the beginning of the confirmation hearing, the Presiding Judge "shall determine how the hearing is to be conducted and, in particular, may establish the order and the condition under which he or she intends the evidence contained in the record of the proceedings to be presented".(65) 34. A teleological interpretation of rules 121 (2) (c) and 122 (1) of the Rules also supports this approach. These rules aim at placing the Pre-Trial Chamber in a position to properly organise and conduct the confirmation hearing, which is best achieved by the Chamber having advance access to the evidence to be presented at the hearing. Filing the evidence to be presented at the confirmation hearing in the record of the case will fulfil two additional important functions. First, it puts the victims of the case in a position to adequately exercise their procedural rights during the confirmation hearing by giving them prior access to the evidence that is going to

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be presented. Second, it ensures that no matter what shortcomings may have occurred in the disclosure process, the parties will have access to the evidence to be presented at the confirmation hearing before it commences. 35. Second, the single judge considers that access to all documents, materials and evidence filed in the record of the case is inherent to the jurisdictional functions of the Pre-Trial Chamber in the case against Thomas Lubanga Dyilo. 36. Finally, the single judge agrees with the Defence and the Registry that the latter is the only organ of the Court which, under rules 15,121 (10), 131 and 137 of the Rules, can give full faith and credit to the proceedings before the Court, including those in the present case, and is responsible for keeping the record of such proceedings. 37. Under these circumstances, the single judge considers that both parties are obliged, pursuant to rules 121 (2) (c) and 122 (1) of the Rules, to file the original statements, books, documents, photographs and tangible objects in the record of the case. It will then be the responsibility of the Registry, as the record keeper of the Court, to maintain the evidence in its original format, so that the parties shall only have to address matters relating to the chain of custody arising from events prior to the filing of the relevant evidence. […] 135. The single judge considers that, because rule 78 of the Rules mirrors the content of rule 77 of the Rules, the obligation of the Defence under Rule 78 of the Rules does not extend to the witness statements on which the Defence intends to rely at the confirmation hearing. 136. However, according to rule 122 (1) of the Rules, the Defence must file the original statements of such witnesses, along with electronic copies as explained above in paragraphs 44 to 47, in the record of the case before the start of the confirmation hearing. Accordingly the Prosecution must have access to those statements before the start of the hearing unless, pursuant to rule 81 of the Rules, the Defence is authorised to file such statements "ex parte only available to the Defence" along with redacted versions for the Prosecution. ————————— (65) Furthermore, according to regulation 21 of the Regulations of the Registry, the case record against Thomas Lubanga Dyilo "shall be a full and accurate record of all proceedings which shall contain, inter aha [..] (c) [t]he evidence communicated to the Pre-Tnal Chamber pursuant to rule 121, sub-rule 2 (c)"

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Rule 122(8): Confirmation hearing – Final submissions by the Parties, including the Representatives of Victims – Representatives of Victims may not enlarge upon the evidence or facts in the case

R122-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November

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2006, p. 4:74 CONSIDERING that the Defence has requested to have the opportunity to make written submissions after the confirmation hearing; and that the Chamber considers that the Prosecution, the Defence and the Legal Representatives of the Victims should have the opportunity to present in writing their final submissions on those matters discussed by them during the confirmation hearing; […] CONSIDERING that, pursuant to the Decision of 22 September 2006, the Legal Representatives of the Victims may make opening and closing statements at the confirmation hearing, in which they may not enlarge upon the evidence or facts in the case of The Prosecutor v. Thomas Lubanga Dyilo;

Rule 123 - Measures to Ensure the Presence of the Person Charged 1. When a warrant of arrest or summons to appear in accordance with article 58, paragraph 7, has been issued for a person by the Pre-Trial Chamber and the person is arrested or served with the summons, the Pre-Trial Chamber shall ensure that the person is notified of the provisions of article 61, paragraph 2. 2. The Pre-Trial Chamber may hold consultations with the Prosecutor, at the request of the latter or on its own initiative, in order to determine whether there is cause to hold a hearing on confirmation of charges under the conditions set forth in article 61, paragraph 2 (b). When the person concerned has a counsel known to the Court, the consultations shall be held in the presence of the counsel unless the Pre-Trial Chamber decides otherwise. 3. The Pre-Trial Chamber shall ensure that a warrant of arrest for the person concerned has been issued and, if the warrant of arrest has not been executed within a reasonable period of time after the issuance of the warrant, that all reasonable measures have been taken to locate and arrest the person.

Rule 124 – Waiver of the Right to Be Present at the Confirmation Hearing 1. If the person concerned is available to the Court but wishes to waive the right to be present at the hearing on confirmation of charges, he or she shall submit a written request to the Pre-Trial Chamber, which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel. 2. A confirmation hearing pursuant to article 61, paragraph 2 (a), shall only be held when the Pre-Trial Chamber is satisfied that the person concerned understands the right to be present at the hearing and the consequences of waiving this right.

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See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la requête de la Défense aux fins d’éclaircissements et d’augmentation du nombre de pages autorisé (Decision on the Defence Request for Clarification and Request for an Extension of the Page Limit) (PT), 30 November 2006, p. 3.

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3. The Pre-Trial Chamber may authorize and make provision for the person to observe the hearing from outside the courtroom through the use of communications technology, if required. 4. The waiving of the right to be present at the hearing does not prevent the Pre-Trial Chamber from receiving written observations on issues before the Chamber from the person concerned.

Rule 125 – Decision to Hold the Confirmation Hearing in the Absence of the Person Concerned 1. After holding consultations under rules 123 and 124, the Pre-Trial Chamber shall decide whether there is cause to hold a hearing on confirmation of charges in the absence of the person concerned, and in that case, whether the person may be represented by counsel. The Pre-Trial Chamber shall, when appropriate, set a date for the hearing and make the date public. 2. The decision of the Pre-Trial Chamber shall be notified to the Prosecutor and, if possible, to the person concerned or his or her counsel. 3. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is not available to the Court, the confirmation of charges may not take place until the person is available to the Court. The Pre-Trial Chamber may review its decision at any time, at the request of the Prosecutor or on its own initiative. 4. If the Pre-Trial Chamber decides not to hold a hearing on confirmation of charges in the absence of the person concerned, and the person is available to the Court, it shall order the person to appear.

Rule 126 – Confirmation Hearing in the Absence of the Person Concerned 1. The provisions of rules 121 and 122 shall apply mutatis mutandis to the preparation for and holding of a hearing on confirmation of charges in the absence of the person concerned. 2. If the Pre-Trial Chamber has determined that the person concerned shall be represented by counsel, the counsel shall have the opportunity to exercise the rights of that person. 3. When the person who has fled is subsequently arrested and the Court has confirmed the charges upon which the Prosecutor intends to pursue the trial, the person charged shall be committed to the Trial Chamber established under article 61, paragraph 11. The person charged may request in writing that the Trial Chamber refer issues to the Pre-Trial Chamber that are necessary for the Chamber.s effective and fair functioning in accordance with article 64, paragraph 4.

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Section VI – Closure of the Pre-Trial Phase Rule 127 – Procedure in the Event of Different Decisions on Multiple Charges If the Pre-Trial Chamber is ready to confirm some of the charges but adjourns the hearing on other charges under article 61, paragraph 7 (c), it may decide that the committal of the person concerned to the Trial Chamber on the charges that it is ready to confirm shall be deferred pending the continuation of the hearing. The PreTrial Chamber may then establish a time limit within which the Prosecutor may proceed in accordance with article 61, paragraph 7 (c) (i) or (ii).

Rule 128 – Amendment of the Charges 1. If the Prosecutor seeks to amend charges already confirmed before the trial has begun, in accordance with article 61, the Prosecutor shall make a written request to the Pre-Trial Chamber, and that Chamber shall so notify the accused. 2. Before deciding whether to authorize the amendment, the Pre-Trial Chamber may request the accused and the Prosecutor to submit written observations on certain issues of fact or law. 3. If the Pre-Trial Chamber determines that the amendments proposed by the Prosecutor constitute additional or more serious charges, it shall proceed, as appropriate, in accordance with rules 121 and 122 or rules 123 to 126.

Rule 129 – Notification of the Decision on the Confirmation of Charges The decision of the Pre-Trial Chamber on the confirmation of charges and committal of the accused to the Trial Chamber shall be notified, if possible, to Prosecutor, the person concerned and his or her counsel. Such decision and record of the proceedings of the Pre-Trial Chamber shall be transmitted to Presidency.

the the the the

Rule 130 – Constitution of the Trial Chamber When the Presidency constitutes a Trial Chamber and refers the case to it, the Presidency shall transmit the decision of the Pre-Trial Chamber and the record of the proceedings to the Trial Chamber. The Presidency may also refer the case to a previously constituted Trial Chamber.

Chapter 6 – Trial Procedure Rule 131 – Record of the Proceedings Transmitted by the Pre-Trial Chamber 1. The Registrar shall maintain the record of the proceedings transmitted by the PreTrial Chamber, pursuant to rule 121, sub-rule 10.

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2. Subject to any restrictions concerning confidentiality and the protection of national security information, the record may be consulted by the Prosecutor, the defence, the representatives of States when they participate in the proceedings, and the victims or their legal representatives participating in the proceedings pursuant to rules 89 to 91.

Rule 132 – Status Conferences 1. Promptly after it is constituted, the Trial Chamber shall hold a status conference in order to set the date of the trial. The Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may postpone the date of the trial. The Trial Chamber shall notify the trial date to all those participating in the proceedings. The Trial Chamber shall ensure that this date and any postponements are made public. 2. In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer with the parties by holding status conferences as necessary.

Rule 133 – Motions Challenging Admissibility or Jurisdiction Challenges to the jurisdiction of the Court or the admissibility of the case at the commencement of the trial, or subsequently with the leave of the Court, shall be dealt with by the Presiding Judge and the Trial Chamber in accordance with rule 58.

Rule 134 – Motions Relating to the Trial Proceedings 1. Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings. Any request from the Prosecutor or the defence shall be in writing and, unless the request is for an ex parte procedure, served on the other party. For all requests other than those submitted for an ex parte procedure, the other party shall have the opportunity to file a response. 2. At the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. Such objections or observations may not be raised or made again on a subsequent occasion in the trial proceedings, without leave of the Trial Chamber in this proceeding. 3. After the commencement of the trial, the Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may rule on issues that arise during the course of the trial.

Rule 135 – Medical Examination of the Accused 1. The Trial Chamber may, for the purpose of discharging its obligations under article 64, paragraph 8 (a), or for any other reasons, or at the request of a party, order a medical, psychiatric or psychological examination of the accused, under the conditions set forth in rule 113.

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2. The Trial Chamber shall place its reasons for any such order on the record. 3. The Trial Chamber shall appoint one or more experts from the list of experts approved by the Registrar, or an expert approved by the Trial Chamber at the request of a party. 4. Where the Trial Chamber is satisfied that the accused is unfit to stand trial, it shall order that the trial be adjourned. The Trial Chamber may, on its own motion or at the request of the prosecution or the defence, review the case of the accused. In any event, the case shall be reviewed every 120 days unless there are reasons to do otherwise. If necessary, the Trial Chamber may order further examinations of the accused. When the Trial Chamber is satisfied that the accused has become fit to stand trial, it shall proceed in accordance with rule 132.

Rule 136 – Joint and Separate Trials 1. Persons accused jointly shall be tried together unless the Trial Chamber, on its own motion or at the request of the Prosecutor or the defence, orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interests of justice or because a person jointly accused has made an admission of guilt and can be proceeded against in accordance with article 65, paragraph 2. 2. In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.

Rule 137 – Record of the Trial Proceedings 1. In accordance with article 64, paragraph 10, the Registrar shall take measures to make, and preserve, a full and accurate record of all proceedings, including transcripts, audio- and video-recordings and other means of capturing sound or image. 2. A Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist. 3. The Trial Chamber may authorize persons other than the Registrar to take photographs, audio- and video-recordings and other means of capturing the sound or image of the trial.

Rule 138 – Custody of Evidence The Registrar shall retain and preserve, as necessary, all the evidence and other materials offered during the hearing, subject to any order of the Trial Chamber.

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Rule 139 – Decision on Admission of Guilt 1. After having proceeded in accordance with article 65, paragraph 1, the Trial Chamber, in order to decide whether to proceed in accordance with article 65, paragraph 4, may invite the views of the Prosecutor and the defence. 2. The Trial Chamber shall then make its decision on the admission of guilt and shall give reasons for this decision, which shall be placed on the record.

Rule 140 – Directions for the Conduct of the Proceedings and Testimony 1. If the Presiding Judge does not give directions under article 64, paragraph 8, the Prosecutor and the defence shall agree on the order and manner in which the evidence shall be submitted to the Trial Chamber. If no agreement can be reached, the Presiding Judge shall issue directions. 2. In all cases, subject to article 64, paragraphs 8 (b) and 9, article 69, paragraph 4, and rule 88, sub-rule 5, a witness may be questioned as follows: (a) A party that submits evidence in accordance with article 69, paragraph 3, by way of a witness, has the right to question that witness; (b) The prosecution and the defence have the right to question that witness about relevant matters related to the witness’s testimony and its reliability, the credibility of the witness and other relevant matters; (c) The Trial Chamber has the right to question a witness before or after a witness is questioned by a participant referred to in sub-rules 2 (a) or (b); (d) The defence shall have the right to be the last to examine a witness. 3. Unless otherwise ordered by the Trial Chamber, a witness other than an expert, or an investigator if he or she has not yet testified, shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. When a witness testifies after hearing the testimony of others, this fact shall be noted in the record and considered by the Trial Chamber when evaluating the evidence.

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Rule 140(2): Questioning of witnesses – Applicability mutatis mutandis to Pre-Trial proceedings – Pre-Trial Chamber’s ruling on the conduct of questioning at confirmation hearing: no prior disclosure of questions put in examination-in-chief, necessity to give to the Defence time to prepare for cross-examination and exceptional arrangements for the Defence to communicate with the person charged

R140-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and

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Conduct of the Confirmation Hearing (PT), 7 November 2006, pp.3-4, 6: CONSIDERING, further, that rule 140(2) of the Rules falls under Chapter 6 entitled "Trial procedure", but that the Single judge is of the view that this rule also applies mutatis mutandis to pre-trial proceedings; CONSIDERING, therefore, that the Chamber may put questions to a witness before, during or after his or her examination by the Prosecution and the Defence and that, as a result, a re-examination is unwarranted at a confirmation hearing; […] CONSIDERING that, in the view of the Chamber, the Defence request to be provided with the list of questions that the Prosecution intends to put to the witness at the confirmation hearing prior to the testimony of the said witness has no basis in law in light of article 21 of the Statute; CONSIDERING that, regarding the only witness who will be called by the Prosecution at the confirmation hearing and on whose evidence the Prosecution intends to rely, the Defence must have time to prepare for the examination of the witness after the witness is examined by the Prosecution; CONSIDERING that at a hearing held by the Chamber on 3 November 2006, the Registrar stated that exceptionally, for the duration of the confirmation hearing in this case, the Defence Team will be authorised to have access to Thomas Lubanga Dyilo after each session for 30 to 45 minutes, if the session concludes before 16:00 and/or every evening from 18:00 to 19:45 at the Detention Centre, as well as on Saturdays between 09:00 and 16:45 at the Detention Centre;(10) and that the Defence stated that the solution proposed by the Registry covers the Defence needs in relation to the preparation of the confirmation hearing; ————————— (10) ICC-01/04-01/06-T-29-EN, page 31.

Rule 141 – Closure of Evidence and Closing Statements 1. The Presiding Judge shall declare when the submission of evidence is closed. 2. The Presiding Judge shall invite the Prosecutor and the defence to make their closing statements. The defence shall always have the opportunity to speak last.

Rule 142 – Deliberations 1. After the closing statements, the Trial Chamber shall retire to deliberate, in camera. The Trial Chamber shall inform all those who participated in the proceedings of the date on which the Trial Chamber will pronounce its decision. The pronouncement shall be made within a reasonable period of time after the Trial Chamber has retired to deliberate. 2. When there is more than one charge, the Trial Chamber shall decide separately on each charge. When there is more than one accused, the Trial Chamber shall decide separately on the charges against each accused.

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Rule 143 – Additional Hearings on Matters Related to Sentence or Reparations Pursuant to article 76, paragraphs 2 and 3, for the purpose of holding a further hearing on matters related to sentence and, if applicable, reparations, the Presiding Judge shall set the date of the further hearing. This hearing can be postponed, in exceptional circumstances, by the Trial Chamber, on its own motion or at the request of the Prosecutor, the defence or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91 and, in respect of reparations hearings, those victims who have made a request under rule 94.

Rule 144 – Delivery of the Decisions of the Trial Chamber 1. Decisions of the Trial Chamber concerning admissibility of a case, the jurisdiction of the Court, criminal responsibility of the accused, sentence and reparations shall be pronounced in public and, wherever possible, in the presence of the accused, the Prosecutor, the victims or the legal representatives of the victims participating in the proceedings pursuant to rules 89 to 91, and the representatives of the States which have participated in the proceedings. 2. Copies of all the above-mentioned decisions shall be provided as soon as possible to: (a) All those who participated in the proceedings, in a working language of the Court; (b) The accused, in a language he or she fully understands or speaks, if necessary to meet the requirements of fairness under article 67, paragraph 1 (f).

Chapter 7 – Penalties Rule 145 – Determination of Sentence 1. In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall: (a) Bear in mind that the totality of any sentence of imprisonment and fine, as the case may be, imposed under article 77 must reflect the culpability of the convicted person; (b) Balance all the relevant factors, including any mitigating and aggravating factors and consider the circumstances both of the convicted person and of the crime; (c) In addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to 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; the

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circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person. 2. In addition to the factors mentioned above, the Court shall take into account, as appropriate: (a) Mitigating circumstances such as: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; (ii) The convicted person.s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court; (b) As aggravating circumstances: (i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature; (ii) Abuse of power or official capacity; (iii) Commission of the crime where the victim is particularly defenceless; (iv) Commission of the crime with particular cruelty or where there were multiple victims; (v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3; (vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned. 3. Life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person, as evidenced by the existence of one or more aggravating circumstances.

Rule 146 – Imposition of Fines under Article 77 1. In determining whether to order a fine under article 77, paragraph 2 (a), and in fixing the amount of the fine, the Court shall determine whether imprisonment is a sufficient penalty. The Court shall give due consideration to the financial capacity of the convicted person, including any orders for forfeiture in accordance with article 77, paragraph 2 (b), and, as appropriate, any orders for reparation in accordance with article 75. The Court shall take into account, in addition to the factors referred to in rule 145, whether and to what degree the crime was motivated by personal financial gain. 2. A fine imposed under article 77, paragraph 2 (a), shall be set at an appropriate level. To this end, the Court shall, in addition to the factors referred to above, in particular take into consideration the damage and injuries caused as well as the proportionate gains derived from the crime by the perpetrator. Under no circumstances may the total amount exceed 75 per cent of the value of the convicted person.s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.

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3. In imposing a fine, the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 4. In imposing a fine, the Court may, as an option, calculate it according to a system of daily fines. In such cases, the minimum duration shall be 30 days and the maximum duration five years. The Court shall decide the total amount in accordance with sub-rules 1 and 2. It shall determine the amount of daily payment in the light of the individual circumstances of the convicted person, including the financial needs of his or her dependants. 5. If the convicted person does not pay the fine imposed in accordance with the conditions set above, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Presidency, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort extend the term of imprisonment for a period not to exceed a quarter of such term or five years, whichever is less. In the determination of such period of extension, the Presidency shall take into account the amount of the fine, imposed and paid. Any such extension shall not apply in the case of life imprisonment. The extension may not lead to a total period of imprisonment in excess of 30 years. 6. In order to determine whether to order an extension and the period involved, the Presidency shall sit in camera for the purpose of obtaining the views of the sentenced person and the Prosecutor. The sentenced person shall have the right to be assisted by counsel. 7. In imposing a fine, the Court shall warn the convicted person that failure to pay the fine in accordance with the conditions set out above may result in an extension of the period of imprisonment as described in this rule.

Rule 147 – Orders of Forfeiture 1. In accordance with article 76, paragraphs 2 and 3, and rules 63, sub-rule 1, and 143, at any hearing to consider an order of forfeiture, Chamber shall hear evidence as to the identification and location of specific proceeds, property or assets which have been derived directly or indirectly from the crime. 2. If before or during the hearing, a Chamber becomes aware of any bona fide third party who appears to have an interest in relevant proceeds, property or assets, it shall give notice to that third party. 3. The Prosecutor, the convicted person and any bona fide third party with an interest in the relevant proceeds, property or assets may submit evidence relevant to the issue. 4. After considering any evidence submitted, a Chamber may issue an order of forfeiture in relation to specific proceeds, property or assets if it is satisfied that these have been derived directly or indirectly from the crime.

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Rule 148 – Order to Transfer Fines or Forfeitures to the Trust Fund Before making an order pursuant to article 79, paragraph 2, a Chamber may request the representatives of the Fund to submit written or oral observations to it.

Chapter 8 – Appeal and Revision Section I – General Provisions Rule 149 – Rules Governing Proceedings in the Appeals Chamber Parts 5 and 6 and rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

Section II – Appeals against Convictions, Acquittals, Sentences and Reparation Orders Rule 150 – Appeal 1. Subject to sub-rule 2, an appeal against a decision of conviction or acquittal under article 74, a sentence under article 76 or a reparation order under article 75 may be filed not later than 30 days from the date on which the party filing the appeal is notified of the decision, the sentence or the reparation order. 2. The Appeals Chamber may extend the time limit set out in sub-rule 1, for good cause, upon the application of the party seeking to file the appeal. 3. The appeal shall be filed with the Registrar. 4. If an appeal is not filed as set out in sub-rules 1 to 3, the decision, the sentence or the reparation order of the Trial Chamber shall become final.

Rule 151 – Procedure for the Appeal 1. Upon the filing of an appeal under rule 150, the Registrar shall transmit the trial record to the Appeals Chamber. 2. The Registrar shall notify all parties who participated in the proceedings before the Trial Chamber that an appeal has been filed.

Rule 152 – Discontinuance of the Appeal 1. Any party who has filed an appeal may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed. 2. If the Prosecutor has filed an appeal on behalf of a convicted person in accordance with article 81, paragraph 1 (b), before filing any notice of discontinuance, the

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Prosecutor shall inform the convicted person that he or she intends to discontinue the appeal in order to give him or her the opportunity to continue the appeal proceedings.

Rule 153 – Judgment on Appeals against Reparations Orders 1. The Appeals Chamber may confirm, reverse or amend a reparation order made under article 75. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraphs 4 and 5.

Section III – Appeals against Other Decisions Rule 154 – Appeals that Do Not Require the Leave of the Court 1. An appeal may be filed under article 81, paragraph 3 (c) (ii), or article 82, paragraph 1 (a) or (b), not later than five days from the date upon which the party filing the appeal is notified of the decision. 2. An appeal may be filed under article 82, paragraph 1 (c), not later than two days from the date upon which the party filing the appeal is notified of the decision. 3. Rule 150, sub-rules 3 and 4, shall apply to appeals filed under sub-rules 1 and 2 of this rule.

Rule 155 – Appeals that Require Leave of the Court 1. When a party wishes to appeal a decision under article 82, paragraph 1 (d), or article 82, paragraph 2, that party shall, within five days of being notified of that decision, make a written application to the Chamber that gave the decision, setting out the reasons for the request for leave to appeal. 2. The Chamber shall render a decision and shall notify all parties who participated in the proceedings that gave rise to the decision referred to in sub-rule 1.

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Rule 155(1): Time limit to apply for leave to appeal – Chambers have no authority to vary the time limit set up by the Rules – Alleged need to seek “clarification” is not a ground for varying time limit to apply for leave to appeal

R155-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05,

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Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005 (Unsealed on 13 October 2005): NOTING paragraphs 23 to 27 of the Prosecutor's motion and his request for the Chamber to vary the time-limit prescribed in rule 155, sub-rule 1, of the Rules "for the purpose of filing any application for leave to appeal in relation to the issues upon which clarification is sought", and the reasons submitted in support of the request; CONSIDERING that neither rule 155, sub-rule 1, of the Rules, nor any other provision of the Statute, the Rules or the Regulations vests the Chamber with discretion to vary the time-limit established in the above rule; CONSIDERING that the time-limit set by rule 155, sub-rule 1, of the Rules serves a specific purpose, namely to allow a party making an application to set out concisely the reasons in support of leave to appeal, while leaving scope for that party to elaborate the reasons in support of the appeal within ten days of the notification of a decision granting leave to appeal, pursuant to regulation 65, subregulation 4, of the Regulations; NOTING that the Prosecutor invokes rule 101, sub-rule 1, of the Rules as the basis of his request for variation; CONSIDERING that rule 101, sub-rule 1 of the Rules, concerns the criteria for time-limits to be set by order of the Court, and cannot be interpreted as conferring upon the Chamber any specific power to vary the time-limits set forth in the Statute or the Rules; NOTING that, as acknowledged in the Prosecutor's motion, the variation of timelimits under regulation 35 of the Regulations applies only in respect of time limits prescribed in the Regulations or ordered by a Chamber; CONSIDERING that allowing for a variation of a time-limit set forth under the Rules, in particular a time-limit in respect of an appeal, on the basis of a party's alleged need to seek "clarification" on the contents of a decision, would in substance render the stipulated time-limit ineffective; and that doing so would involve procedural uncertainty and thus be contrary to the objective of ensuring fair and expeditious proceedings;

x

Rule 155(2): Decision of the Chamber on application for leave to appeal – Findings on appeal grounds instead of criteria for leave to appeal – Affirmation of the impugned decision

R155-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006, paras.18, 22-25, 28-29, 37-38:

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18. In the view of the single judge, before analysing whether the issue identified by the Prosecution meets the two cumulative criteria abovementioned, it is first necessary to determine whether the Decision involves such an issue or whether, on the contrary, such an issue is not related to the Decision. […] 22. In this context, the issue of the temporal nature of any redaction granted under rule 81 (2) of the Rules, which is closely connected to that of the temporal scope of the investigation of Thomas Lubanga Dyilo, is material to the Chamber's decision on the Prosecution request for redactions under rule 81 (2) of the Rules. 23. Moreover, the single judge emphasises the fact that the Prosecution has had the opportunity to present its views on the issues dealt with in the Decision. (41) 24. Accordingly, in the view of the single judge, none of the four instances alleged by the Prosecution in support of its claim that the Decision raises the issue of "the validity of 'general principles' which do not arise from a concrete dispute and do not resolve any pending application" provides support for such a claim. On the contrary, in all four instances, the Decision addresses matters raised by the parties in the ongoing proceedings of the case against Thomas Lubanga Dyilo. 25. As a result, the Prosecution's characterisation of the Decision as being of a "quasi-legislative" nature has no factual basis.(42) Hence, due to the fact that no leave to appeal can be granted for an issue which is not dealt with in the Decision, there is thus no need to analyse whether the above-mentioned issue meets any of the two cumulative criteria provided for in article 82 (l)(d) of the Statute. […] 28. At the outset, the single judge would emphasise that the Decision does not establish any presumption which […]. On the contrary, what the Decision states is that […]. 29. Furthermore, the Decision does not state that […]. Although this is the position of the Prosecution,(51) it is not shared by the representatives of the Victims and Witnesses Unit(52) and is a matter about which the Decision has made no finding. […] 37. The single judge would first emphasise that the finding challenged by the Prosecution refers solely to the […]and does not mean that […]. (59) 38. Contrary to what the Prosecution claims, the single judge considers that, apart from being supported by the literal, contextual and teleological interpretations of article 61 of the Statute,(60) the challenged finding presents the necessary flexibility because : […]. ————————— (41) The two instances identified by the Prosecution in relation to the findings of the single judge with regard to the procedure for making applications under rule 81 (2) and (4) of the Rules were first addressed by the Prosecution in the Prosecution Application, and subsequently in: a. the In Camera hearing of 2 May 2006, in which inter alia the Prosecution addressed at length the issue of ex parte applications under rule 81 (2) and (4) See the initial statement of the Prosecution in that hearing (ICC-01-01-01-06-T-6-Exp-EN, pp. 3 to 11). Concerning the

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regime encompassed by the term ex parte in the context of applications under rule 81 (2) and (4) of the Rules, the Prosecution explained its position as follows (ICC-01-01-01-06-T-6Exp-EN, p 6, lines 15 to 23) REDACTED b. the Prosecution Supplemental Brief (paras. 7 to 39), in which inter alia the Prosecution discussed at length different aspects of its application for non-disclosure of identity prior to the confirmation hearing and the redaction of identifying information from the statements of witnesses on which the Prosecution intends to rely at such a hearing On the other hand, concerning the issue of the temporary nature of the redactions under rule 81 (2) of the Rules and the related question of the temporal scope of the investigation of Thomas Lubanga Dyilo, in the Prosecution Observations of Disclosure filed on 6 April 2006, the Prosecution informed the Chamber and Duty Counsel for the Defence that, prior to its decision as to whether to amend the arrest warrant against Thomas Lubanga Dyilo, the Prosecution has an interest in not disclosing information which might jeopardise the ongoing investigation of Thomas Lubanga Dyilo (ICC-01/04-01/06-81-Conf-Exp, para 10 (i)). Moreover, the Prosecution had the opportunity to present its view on this matter in the Prosecution Application (paras 2 to 5), the m camera hearing on 2 May 2006 (ICC-01-04-0106-T-6-Exp-EN, pp 44 to 58) and the Prosecution Supplementary Brief (paras 55 to 57), in which the Prosecution explained the basis of its proposed redactions under rule 81 (2) of the Rules for the purpose of the confirmation hearing, and sought the guidance and direction of the Chamber on the scope of such redactions (42) The Prosecution Motion, para 53. (51) As the Prosecution stated in the Prosecution Supplemental Brief, para 16 REDACTED (52) As the Registry explained in the in camera hearing held on 2 May 2006 (ICC-01-04-01-06T-6-Exp-EN, p.33, lines 23 to 25, p 34, lines 1 to 25 and p 35, lines 1 and 2) REDACTED (59) As shown by the references in paras. 32 and 68 of the Prosecution Motion, the Prosecution has obviously misinterpreted the finding of the single judge. (60) This finding follows from the literal interpretation of paragraphs (4) and (9) of article 61 of the Statute because […]

R155-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Second Defence Motion for Leave to Appeal (PT), 28 September 2006, p. 6-11:

CONSIDERING that, in relation to the First Issue, the single judge acknowledges that the factual reasoning did not enter into specific details of each and every witness covered by the Decision; that the single judge took this approach considering that the Decision was issued during ex parte proceedings for non-disclosure of identity of Prosecution witnesses under rule 81(4) of the Rules; and that, hence, the Decision involves the issue of whether the Decision lacked factual reasoning in light of the fact that it was taken in ex parte proceedings for non-disclosure of identity of Prosecution witnesses under rule 81(4) of the Rules; CONSIDERING nevertheless that all the relevant statutory provisions on which the Decision is based were not only noted in the Decision but also elaborated on in detail in several “considerings”; and that for this reason, the single judge considers that the Decision does not involve the issue of whether the Decision lacked legal reasoning; CONSIDERING that, in respect of the Second Issue, the Decision states (i) that the recent deterioration of the security circumstances in some parts of the Democratic Republic of the Congo has had an impact on the range of available and feasible

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protective measures; (22) and (ii) that, under these exceptional circumstances, “nondisclosure of identity vis-à-vis the Defence for the purpose of the confirmation hearing is currently the only available and feasible measure for the necessary protection of many Prosecution witnesses”;(23) CONSIDERING therefore that the Decision involves the issue of whether, since the confirmation hearing has already been postponed, since Thomas Lubanga Dyilo has been in the detention centre for six months, and since any improvement of the security in the DRC in the coming months is unpredictable, the single judge has appropriately applied the principle of necessity and proportionality in deciding on the non-disclosure of identity of some Prosecution witnesses for the purpose of the confirmation hearing;(24) CONSIDERING that, in relation to the Third Issue, although the single judge has not yet authorised the Prosecution to rely at the confirmation hearing on summary evidence of witnesses for which non-disclosure of identity is granted, the Decision was drafted on the premise that this is an option available in circumstances as exceptional as those in the present case;(25) and that, hence, the Decision involves the issue of whether the use at the confirmation hearing of summary evidence in relation to Prosecution witnesses for which non-disclosure of identity has been granted is permissible under the Court’s applicable law; (26) CONSIDERING that, in relation to the Fourth Issue, the Defence alleges (i) that it is not clear what the single judge means when she states that adequate protection of witnesses is a factor which the Chamber can rely on when deciding on the admissibility of evidence under Article 69(4) of the Statute; (27) and (ii) that “it appears to suggest that the Chamber can consider admitting evidence in a particular format, which might generally be inadmissible, if the use of that format is necessary to protect witnesses.” (28) CONSIDERING that by referring to “adequate protection of witnesses” in the context of article 69(4) of the Statute, the single judge meant that, in light of the limited scope of the confirmation hearing and the exceptional circumstances in the present case, evidence(29), which might be admissible,(30) can be not admitted for the purpose of the confirmation hearing if adequate protection of the relevant witnesses so requires; CONSIDERING that the Defence has fundamentally misunderstood the Decision on this point; and that the Decision does not involve the Fourth Issue as portrayed by the Defence; CONSIDERING that the Fifth Issue refers to the statement in the Decision that delaying until a few days before the confirmation hearing the disclosure of redacted versions of Prosecution witness statements and transcripts of witness interviews would be an inadequate solution because inter alia “should the charges be confirmed […] the identity of the relevant witnesses would be disclosed a long time prior to their being called to testify at trial.” (31) CONSIDERING that, in the view of the single judge, the confirmation hearing is a stage of the overall criminal procedure provided for in the Statute and the Rules and should not be analysed in isolation; that, as a result, some of the issues brought before the single judge might also affect proceedings after the confirmation hearing should the charges be confirmed; and that the said issues can be properly addressed

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by the single judge only if she is mindful of the consequences that the solutions proposed by the parties might have in proceedings that would take place only if the charges are confirmed; CONSIDERING, in particular, that when deciding on the disclosure to the Defence of the identity of witnesses on whom the Prosecution intends to rely at the confirmation hearing and who are currently living in risk areas within the DRC, the single judge cannot, as requested by the Defence, completely disregard the problem posed by the time between the moment the identity of the relevant witness is disclosed to the Defence and the moment the witness testifies at trial, if the charges are confirmed; CONSIDERING further that under article 57(3)(c) and 68(1) of the Statute, the single judge is duty-bound to take such a factor into consideration, particularly in light of (i) the Registry’s assertion that the longer the time between the disclosure of identity and testimony, the greater the risk to the relevant witness; (ii) the applicable law before this Court which, in principle, allows non-disclosure of the identity of Prosecution witnesses prior to the commencement of the trial, if exceptional circumstances so require; (32) and (iii) the exceptional circumstances in respect of the ongoing security situation in some parts of the DRC; CONSIDERING that, unless the procedural framework provided for in the Statute and the Rules is considered an infringement per se of the presumption of innocence of Thomas Lubanga Dyilo,no issue related to the presumption of innocence is raised by the fact that the single judge took the above-mentioned factor into account when she made her decision; and that therefore the Decision does not involve any issue regarding the presumption of innocence of Thomas Lubanga Dyilo; CONSIDERING that, in relation to the Sixth Issue, the single judge concurs with the Prosecution(33) in that the Decision merely applied the principles established in the previous decisions of the single judge, including the Decision on the Final System of Disclosure and the Decision Establishing General Principles; and that hence the Decision does not involve the issue of whether a finding made during inter partes proceedings can be revised in the context of ex parte proceedings; ————————— (22) Decision, p. 7. (23) Decision, p. 7. (24) The Defence argues that, given the exceptional circumstances of this case, declaring an indefinite suspension of the confirmation hearing would have been more in line with the principle of necessity and proportionality. See, Defence Request for Leave to Appeal, pp. 9 to 11. (25) The single judge disagrees with the submission of the Prosecution that the Defence Request for Leave to Appeal is premature in relation to this issue. In the view of the single judge, this option is expressly provided for in articles 61(5) and 68(5) of the Statute. Moreover, if, as stated in the Defence Request for Leave to Appeal, such an option were per se incompatible with Thomas Lubanga Dyilo’s right to a fair trial, it would not have been expressly included in two provisions of the Statute. (27) Defence Request for Leave to Appeal, paras. 41 and 42. (28) Defence Request for Leave to Appeal, para. 42. (29) In particular Prosecution witness statements, transcripts of witness interviews and investigators’ notes and reports of witness interviews.

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(30)

And this regardless of the format of such evidence, which according to the Statute and the Rules could also include, if the circumstances so require, redacted versions or even summary evidence. (31) Decision, p. 8. This is in light of the fact that the use of the said redacted versions would not prevent the Defence from learning the identity of the relevant witnesses. (32) Rue 81(4) of the Rules. A similar approach has been adopted in other international criminal tribunals in which the disclosure of the identity of Prosecution witnesses can be delayed until 30 days before the commencement of the trial, if exceptional circumstances so require. See, for instance, Prosecutor v. Mrksic et al Case No. IT-95-13/1-T Decision on Prosecution’s Additional Motion for Protective Measures of Sensitive Witnesses, 25 October 2005 para 13, 14, 21 and 22; Prosecutor v Perisic Case No. IT-04-81-PT Decision on Prosecution Motion for Protective Measures for Witnesses, 27 May 2005, page. 3, Considering No. 7; Prosecutor v Théoneste Bagosora ICTR-98-41-I Decision and Scheduling Order on the Prosecution Motion for Harmonisation and Modification of Protective Measures for Witnesses, 5 December 2001, para 15 and 22-24. (33) Prosecution response, paras. 25 to 27.

Rule 156 – Procedure for the Appeal 1. As soon as an appeal has been filed under rule 154 or as soon as leave to appeal has been granted under rule 155, the Registrar shall transmit to the Appeals Chamber the record of the proceedings of the Chamber that made the decision that is the subject of the appeal. 2. The Registrar shall give notice of the appeal to all parties who participated in the proceedings before the Chamber that gave the decision that is the subject of the appeal, unless they have already been notified by the Chamber under rule 155, subrule 2. 3. The appeal proceedings shall be in writing unless the Appeals Chamber decides to convene a hearing. 4. The appeal shall be heard as expeditiously as possible. 5. When filing the appeal, the party appealing may request that the appeal have suspensive effect in accordance with article 82, paragraph 3.

Rule 157 – Discontinuance of the Appeal Any party who has filed an appeal under rule 154 or who has obtained the leave of a Chamber to appeal a decision under rule 155 may discontinue the appeal at any time before judgement has been delivered. In such case, the party shall file with the Registrar a written notice of discontinuance of appeal. The Registrar shall inform the other parties that such a notice has been filed.

APPEALS CHAMBER x

Rule 157: Notice of discontinuance cannot be subject to conditions or reservations with respect to the future conduct of the proceedings

R157-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No.

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ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal (A), 3 July 2006, paras. 8-10:75 Renders the following

DECISION i) The Appellant's notice of discontinuance of the appeal subject to his retaining the right to challenge the admissibility of the case before the Court is invalid.[…] […] 8. The rule therefore confers a right on an Appellant to discontinue his/her appeal by lodging the notice envisaged therein with the Registrar. The Appellant need not provide reasons for discontinuing and may exercise this right at any time before judgement is delivered. A notice of discontinuance is neither subject to approval by nor acknowledgement from the Court. If the Appellant is minded to discontinue the appeal he may do so by complying with the provisions of rule 157 of the Rules of Procedure and Evidence. 9. 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. 10. The Appeals Chamber finds that in the instant case the Appellant's Brief does not constitute a notice of discontinuance under rule 157 of the Rules of Procedure and Evidence.

Rule 158 – Judgement on the Appeal 1. An Appeals Chamber which considers an appeal referred to in this section may confirm, reverse or amend the decision appealed. 2. The judgement of the Appeals Chamber shall be delivered in accordance with article 83, paragraph 4.

APPEALS CHAMBERS x

Rule 158(1): “Appeal” - Rule 158 applies to Article 82(1) (d) interlocutory appeals

R158-A-1 75

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

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / in the Alternative, Discontinuance of Appeal (A), 6 September 2006, paras. 7, 12.

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01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 13 October 2006, para. 18: 18. This provision applies to appeals under article 82 (1) (d) of the Statute by virtue of the fact that such appeals are referred to in rule 155, which appears within the section to which rule 158 refers, namely Section III of Chapter 8 of the Rules of Procedure and Evidence entitled "Appeals against other decisions". The adoption of rule 158 would not have been necessary if article 83 (2) had been intended to apply to appeals brought under article 82 (l)(d) of the Statute.

x

Rule 158(1): Power to confirm, reverse or amend the impugned decision – Reversal – Direction to the Chamber which issued the impugned decision to decide anew upon the applications

R158-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 52-53:76

52. 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). In the present case and for the following reasons, it is appropriate to reverse the Impugned Decision and to direct the Pre-Trial Chamber to decide anew upon the applications of the Prosecutor for authorisation of redactions that gave rise to the Impugned Decision. 53. The Appeals Chamber has found that the Impugned Decision lacked sufficient reasoning in relation to the finding of the Pre-Trial Chamber that the identities of the witnesses covered by the Impugned Decision should not be disclosed to the defence. The Appeals Chamber considers that this error materially affects the Impugned Decision because it cannot be established, on the basis of the reasoning that was provided, how the Pre-Trial Chamber reached its decision. For that reason, it is appropriate to reverse the Impugned Decision. As the reversal of the Impugned Decision on the basis of the first ground of appeal does not entail a conclusive determination by the Appeals Chamber that the Pre-Trial Chamber could not have 76

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, 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” (A), 14 December 2006, paras. 64-66.

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authorised the non-disclosure of the identities of the relevant witnesses to the defence in the present case, the Pre-Trial Chamber is directed to decide anew upon the applications that gave rise to the Impugned Decisions, having regard to the findings of the present judgment.

x

Rule 158(1): Power to confirm, reverse or amend the impugned decision – Reversal – The Appeals Chamber should determine the matter rather than directing the Chamber which issued the impugned decision to decide anew

R158-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, Dissenting opinion of Judge Pikis, para.2:

2. 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 two issues merit separate consideration by the Appeals Chamber. It appears that the issues posed affect the basic legal framework within which questions of nondisclosure and matters sequential thereto may be addressed. As far as it may be gathered, the issues identified for 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. Therefore, in line with my fellow Judges of the Appeals Chamber, I shall provide answers to the questions, save that I shall do so in a separate judgment as I differ from them in the analysis of the dynamics of the issues posed, on the one hand, and the answers to be given, on the other.

x

Rule 158(2): Application of Article 83(4) to proceedings in appeal on decisions - Bench – Appeal Judge absent from the seat of the Court – Decisions rendered unanimously but signed by the remaining judges

R158-A-4

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in the Prosecutor’s Appeal Pursuant to the Decision of Pre-Trial Chamber I of 23

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June 2006 (A), 27 June 2006:77 Renders unanimously the following

DECISION The Presiding Judge in the above-mentioned appeal is Judge Sang-Hyun Song. Judge Sang-Hyun Song is unavailable to sign the decision because he is absent from the seat of the Court on the day of signature.

x

Rule 158(2): Application of Article 83(4) to proceedings in appeal on decisions - Bench – Two Appeals Judges, including the Presiding Judge, absent from the seat of the Court – Decisions rendered unanimously but signed by the remaining judges

R158-A-5

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Concerning the Filing of a Response by the Defence to the “Prosecutor’s Motion for Extensions of the Time and Page Limits” (A), 28 June 2006:

Renders unanimously the following

ORDER […] Judge Sang-Hyun Song and Judge Philippe Kirsch are unavailable to sign the order because they are absent from the seat of the Court on the day of signature.

x

Rule 158(2): Application of Article 83(4) to proceedings in appeal on decisions – Delivery in open court – Scheduling order

R158-A-6

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Scheduling Order for “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal” (A), 11 July 2006:78

77 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal (A), 3 July 2006. 78 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Scheduling Order for 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” (A), 11 October 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga

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SCHEDULING ORDER The Appeals Chamber shall convene on Thursday, 13 July 2006, at 12 p.m. for the purpose of delivering in open court judgment in the above application.

Section IV – Revision of Conviction or Sentence Rule 159 – Application for Revision 1. An application for revision provided for in article 84, paragraph 1, shall be in writing and shall set out the grounds on which the revision is sought. It shall as far as possible be accompanied by supporting material. 2. The determination on whether the application is meritorious shall be taken by a majority of the judges of the Appeals Chamber and shall be supported by reasons in writing. 3. Notification of the decision shall be sent to the applicant and, as far as possible, to all the parties who participated in the proceedings related to the initial decision.

Rule 160 – Transfer for the Purpose of Revision 1. For the conduct of the hearing provided for in rule 161, the relevant Chamber shall issue its order sufficiently in advance to enable the transfer of the sentenced person to the seat of the Court, as appropriate. 2. The determination of the Court shall be communicated without delay to the State of enforcement. 3. The provisions of rule 206, sub-rule 3, shall be applicable.

Rule 161 – Determination on Revision 1. On a date which it shall determine and shall communicate to the applicant and to all those having received notification under rule 159, sub-rule 3, the relevant Chamber shall hold a hearing to determine whether the conviction or sentence should be revised. 2. For the conduct of the hearing, the relevant Chamber shall exercise, mutatis mutandis, all the powers of the Trial Chamber pursuant to Part 6 and the rules governing proceedings and the submission of evidence in the Pre-Trial and Trial Chambers.

Dyilo, Case No. ICC-01/04-01/06, Scheduling Order for “Judgment on the Defence Appeal against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006” (A), 11 December 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Scheduling Order for Judgments on the Appeals of Mr. Thomas Lubanga Dyilo against Pre-Trial Chamber I’s “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” and “Second Decision on the Prosecution Requests and Amended Requests for Redaction under Rule 81”(A), 11 December 2006.

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3. The determination on revision shall be governed by the applicable provisions of article 83, paragraph 4.

Chapter 9 – Offences and Misconduct against the Court Section I – Offences against the Administration of Justice under Article 70 Rule 162 – Exercise of Jurisdiction 1. Before deciding whether to exercise jurisdiction, the Court may consult with States Parties that may have jurisdiction over the offence. 2. In making a decision whether or not to exercise jurisdiction, the Court may consider, in particular: (a) The availability and effectiveness of prosecution in a State Party; (b) The seriousness of an offence; (c) The possible joinder of charges under article 70 with charges under articles 5 to 8; (d) The need to expedite proceedings; (e) Links with an ongoing investigation or a trial before the Court; and (f) Evidentiary considerations. 3. The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance. 4. If the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to article 70, paragraph 4.

Rule 163 – Application of the Statute and the Rules 1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the Statute and the Rules shall apply mutatis mutandis to the Court.s investigation, prosecution and punishment of offences defined in article 70. 2. The provisions of Part 2, and any rules thereunder, shall not apply, with the exception of article 21. 3. The provisions of Part 10, and any rules thereunder, shall not apply, with the exception of articles 103, 107, 109 and 111.

Rule 164 – Periods of Limitation 1. If the Court exercises jurisdiction in accordance with rule 162, it shall apply the periods of limitation set forth in this rule. 2. Offences defined in article 70 shall be subject to a period of limitation of five years from the date on which the offence was committed, provided that during this period no investigation or prosecution has been initiated. The period of limitation

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shall be interrupted if an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to article 70, paragraph 4 (a). 3. Enforcement of sanctions imposed with respect to offences defined in article 70 shall be subject to a period of limitation of 10 years from the date on which the sanction has become final. The period of limitation shall be interrupted with the detention of the convicted person or while the person concerned is outside the territory of the States Parties.

Rule 165 – Investigation, Prosecution and Trial 1. The Prosecutor may initiate and conduct investigations with respect to the offences defined in article 70 on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source. 2. Articles 53 and 59, and any rules thereunder, shall not apply. 3. For purposes of article 61, the Pre-Trial Chamber may make any of the determinations set forth in that article on the basis of written submissions, without a hearing, unless the interests of justice otherwise require. 4. A Trial Chamber may, as appropriate and taking into account the rights of the defence, direct that there be joinder of charges under article 70 with charges under articles 5 to 8.

Rule 166 – Sanctions under Article 70 1. If the Court imposes sanctions with respect to article 70, this rule shall apply. 2. Article 77, and any rules thereunder, shall not apply, with the exception of an order of forfeiture under article 77, paragraph 2 (b), which may be ordered in addition to imprisonment or a fine or both. 3. Each offence may be separately fined and those fines may be cumulative. Under no circumstances may the total amount exceed 50 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants. 4. In imposing a fine the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period. 5. If the convicted person does not pay a fine imposed in accordance with the conditions set forth in sub-rule 4, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Court, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort impose a term of imprisonment in accordance with article 70, paragraph 3. In the determination of such term of imprisonment, the Court shall take into account the amount of fine paid.

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Rule 167 – International Cooperation and Judicial Assistance 1. With regard to offences under article 70, the Court may request a State to provide any form of international cooperation or judicial assistance corresponding to those forms set forth in Part 9. In any such request, the Court shall indicate that the basis for the request is an investigation or prosecution of offences under article 70. 2. The conditions for providing international cooperation or judicial assistance to the Court with respect to offences under article 70 shall be those set forth in article 70, paragraph 2.

Rule 168 – Ne bis in idem In respect of offences under article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court.

Rule 169 – Immediate Arrest In the case of an alleged offence under article 70 committed in the presence of a Chamber, the Prosecutor may orally request that Chamber to order the immediate arrest of the person concerned.

Section II – Misconduct before the Court under Article 71 Rule 170 – Disruption of Proceedings Having regard to article 63, paragraph 2, the Presiding Judge of the Chamber dealing with the matter may, after giving a warning: (a) Order a person disrupting the proceedings of the Court to leave or be removed from the courtroom; or, (b) In case of repeated misconduct, order the interdiction of that person from attending the proceedings.

Rule 171 – Refusal to Comply with a Direction by the Court 1. When the misconduct consists of deliberate refusal to comply with an oral or written direction by the Court, not covered by rule 170, and that direction is accompanied by a warning of sanctions in case of breach, the Presiding Judge of the Chamber dealing with the matter may order the interdiction of that person from the proceedings for a period not exceeding 30 days or, if the misconduct is of a more serious nature, impose a fine. 2. If the person committing misconduct as described in sub-rule 1 is an official of the Court, or a defence counsel, or a legal representative of victims, the Presiding Judge of the Chamber dealing with the matter may also order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 days.

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3. If the Presiding Judge in cases under sub-rules 1 and 2 considers that a longer period of interdiction is appropriate, the Presiding Judge shall refer the matter to the Presidency, which may hold a hearing to determine whether to order a longer or permanent period of interdiction. 4. A fine imposed under sub-rule 1 shall not exceed 2,000 euros, or the equivalent amount in any currency, provided that in cases of continuing misconduct, a new fine may be imposed on each day that the misconduct continues, and such fines shall be cumulative. 5. The person concerned shall be given an opportunity to be heard before a sanction for misconduct, as described in this rule, is imposed.

Rule 172 – Conduct Covered by Both Articles 70 and 71 If conduct covered by article 71 also constitutes one of the offences defined in article 70, the Court shall proceed in accordance with article 70 and rules 162 to 169.

Chapter 10 – Compensation to an Arrested or Convicted Person Rule 173 – Request for Compensation 1. Anyone seeking compensation on any of the grounds indicated in article 85 shall submit a request, in writing, to the Presidency, which shall designate a Chamber composed of three judges to consider the request. These judges shall not have participated in any earlier judgement of the Court regarding the person making the request. 2. The request for compensation shall be submitted not later than six months from the date the person making the request was notified of the decision of the Court concerning: (a) The unlawfulness of the arrest or detention under article 85, paragraph 1; (b) The reversal of the conviction under article 85, paragraph 2; (c) The existence of a grave and manifest miscarriage of justice under article 85, paragraph 3. 3. The request shall contain the grounds and the amount of compensation requested. 4. The person requesting compensation shall be entitled to legal assistance.

Rule 174 – Procedure for Seeking Compensation 1. A request for compensation and any other written observation by the person filing the request shall be transmitted to the Prosecutor, who shall have an opportunity to respond in writing. Any observations by the Prosecutor shall be notified to the person filing the request. 2. The Chamber designated under rule 173, sub-rule 1, may either hold a hearing or determine the matter on the basis of the request and any written observations by the Prosecutor and the person filing the request. A hearing shall be held if the Prosecutor or the person seeking compensation so requests.

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3. The decision shall be taken by the majority of the judges. The decision shall be notified to the Prosecutor and to the person filing the request.

Rule 175 – Amount of Compensation In establishing the amount of any compensation in conformity with article 85, paragraph 3, the Chamber designated under rule 173, sub-rule 1, shall take into consideration the consequences of the grave and manifest miscarriage of justice on the personal, family, social and professional situation of the person filing the request.

Chapter 11 – International Cooperation and Judicial Assistance Section I – Requests for Cooperation under Article 87 Rule 176 – Organs of the Court Responsible for Transmission and Receipt of any Communications Relating to International Cooperation and Judicial Assistance 1. Upon and subsequent to the establishment of the Court, the Registrar shall obtain from the Secretary-General of the United Nations any communication made by States pursuant to article 87, paragraphs 1 (a) and 2. 2. The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses, information and documents from requested States. The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses, information and documents from requested States. 3. The Registrar shall be the recipient of any communication from States concerning subsequent changes in the designation of the national channels charged with receiving requests for cooperation, as well as of any change in the language in which requests for cooperation should be made, and shall, upon request, make such information available to States Parties as may be appropriate. 4. The provisions of sub-rule 2 are applicable mutatis mutandis where the Court requests information, documents or other forms of cooperation and assistance from an intergovernmental organization. 5. The Registrar shall transmit any communications referred to in sub-rules 1 and 3 and rule 177, sub-rule 2, as appropriate, to the Presidency or the Office of the Prosecutor, or both.

Rule 177 – Channels of Communication 1. Communications concerning the national authority charged with receiving requests for cooperation made upon ratification, acceptance, approval or accession shall provide all relevant information about such authorities.

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2. When an intergovernmental organization is asked to assist the Court under article 87, paragraph 6, the Registrar shall, when necessary, ascertain its designated channel of communication and obtain all relevant information relating thereto.

Rule 178 – Language Chosen by States Parties under Article 87, Paragraph 2 1. When a requested State Party has more than one official language, it may indicate upon ratification, acceptance, approval or accession that requests for cooperation and any supporting documents can be drafted in any one of its official languages. 2. When the requested State Party has not chosen a language for communication with the Court upon ratification, acceptance, accession or approval, the request for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court pursuant to article 87, paragraph 2.

Rule 179 – Language of Requests Directed to States Not Party to the Statute When a State not party to the Statute has agreed to provide assistance to the Court under article 87, paragraph 5, and has not made a choice of language for such requests, the requests for cooperation shall either be in or be accompanied by a translation into one of the working languages of the Court.

Rule 180 – Changes in the Channels of Communication or the Languages of Requests for Cooperation 1. Changes concerning the channel of communication or the language a State has chosen under article 87, paragraph 2, shall be communicated in writing to the Registrar at the earliest opportunity. 2. Such changes shall take effect in respect of requests for cooperation made by the Court at a time agreed between the Court and the State or, in the absence of such an agreement, 45 days after the Court has received the communication and, in all cases, without prejudice to current requests or requests in progress.

Section II – Surrender, Transit and Competing Requests under Articles 89 and 90 Rule 181 – Challenge to Admissibility of a Case before a National Court When a situation described in article 89, paragraph 2, arises, and without prejudice to the provisions of article 19 and of rules 58 to 62 on procedures applicable to challenges to the jurisdiction of the Court or the admissibility of a case, the Chamber dealing with the case, if the admissibility ruling is still pending, shall take steps to obtain from the requested State all the relevant information about the ne bis in idem challenge brought by the person.

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Rule 182 – Request for Transit under Article 89, Paragraph 3(e) 1. In situations described in article 89, paragraph 3 (e), the Court may transmit the request for transit by any medium capable of delivering a written record. 2. When the time limit provided for in article 89, paragraph 3 (e), has expired and the person concerned has been released, such a release is without prejudice to a subsequent arrest of the person in accordance with the provisions of article 89 or article 92.

Rule 183 – Possible Temporary Surrender Following the consultations referred to in article 89, paragraph 4, the requested State may temporarily surrender the person sought in accordance with conditions determined between the requested State and the Court. In such case the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required, at the latest when the proceedings have been completed.

Rule 184 – Arrangements for Surrender 1. The requested State shall immediately inform the Registrar when the person sought by the Court is available for surrender. 2. The person shall be surrendered to the Court by the date and in the manner agreed upon between the authorities of the requested State and the Registrar. 3. If circumstances prevent the surrender of the person by the date agreed, the authorities of the requested State and the Registrar shall agree upon a new date and manner by which the person shall be surrendered. 4. The Registrar shall maintain contact with the authorities of the host State in relation to the arrangements for the surrender of the person to the Court.

Rule 185 – Release of a Person from the Custody of the Court other than upon Completion of Sentence 1. Subject to sub-rule 2, where a person surrendered to the Court is released from the custody of the Court because the Court does not have jurisdiction, the case is inadmissible under article 17, paragraph 1 (b), (c) or (d), the charges have not been confirmed under article 61, the person has been acquitted at trial or on appeal, or for any other reason, the Court shall, as soon as possible, make such arrangements as it considers appropriate for the transfer of the person, taking into account the views of the person, to a State which is obliged to receive him or her, to another State which agrees to receive him or her, or to a State which has requested his or her extradition with the consent of the original surrendering State. In this case, the host State shall facilitate the transfer in accordance with the agreement referred to in article 3, paragraph 2, and the related arrangements.

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2. Where the Court has determined that the case is inadmissible under article 17, paragraph 1 (a), the Court shall make arrangements, as appropriate, for the transfer of the person to a State whose investigation or prosecution has formed the basis of the successful challenge to admissibility, unless the State that originally surrendered the person requests his or her return.

Rule 186 – Competing Requests in the Context of a Challenge to the Admissibility of the Case In situations described in article 90, paragraph 8, the requested State shall provide the notification of its decision to the Prosecutor in order to enable him or her to act in accordance with article 19, paragraph 10.

Section III – Documents for Arrest and Surrender under Articles 91 and 92 Rule 187 – Translation of Documents Accompanying Request for Surrender For the purposes of article 67, paragraph 1 (a), and in accordance with rule 117, subrule 1, the request under article 91 shall be accompanied, as appropriate, by a translation of the warrant of arrest or of the judgement of conviction and by a translation of the text of any relevant provisions of the Statute, in a language that the person fully understands and speaks.

Rule 188 – Time Limit for Submission of Documents after Provisional Arrest For the purposes of article 92, paragraph 3, the time limit for receipt by the requested State of the request for surrender and the documents supporting the request shall be 60 days from the date of the provisional arrest.

Rule 189 – Transmission of Documents Supporting the Request When a person has consented to surrender in accordance with the provisions of article 92, paragraph 3, and the requested State proceeds to surrender the person to the Court, the Court shall not be required to provide the documents described in article 91 unless the requested State indicates otherwise.

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Section IV – Cooperation under Article 93 Rule 190 – Instruction on Self-Incrimination Accompanying Request for Witness When making a request under article 93, paragraph 1 (e), with respect to a witness, the Court shall annex an instruction, concerning rule 74 relating to selfincrimination, to be provided to the witness in question, in a language that the person fully understands and speaks.

Rule 191 – Assurance Provided by the Court under Article 93, Paragraph 2 The Chamber dealing with the case, on its own motion or at the request of the Prosecutor, defence or witness or expert concerned, may decide, after taking into account the views of the Prosecutor and the witness or expert concerned, to provide the assurance described in article 93, paragraph 2.

Rule 192 – Transfer of a Person in Custody 1. Transfer of a person in custody to the Court in accordance with article 93, paragraph 7, shall be arranged by the national authorities concerned in liaison with the Registrar and the authorities of the host State. 2. The Registrar shall ensure the proper conduct of the transfer, including the supervision of the person while in the custody of the Court. 3. The person in custody before the Court shall have the right to raise matters concerning the conditions of his or her detention with the relevant Chamber. 4. In accordance with article 93, paragraph 7 (b), when the purposes of the transfer have been fulfilled, the Registrar shall arrange for the return of the person in custody to the requested State.

Rule 193 – Temporary Transfer of the Person from the State of Enforcement 1. The Chamber that is considering the case may order the temporary transfer from the State of enforcement to the seat of the Court of any person sentenced by the Court whose testimony or other assistance is necessary to the Court. The provisions of article 93, paragraph 7, shall not apply. 2. The Registrar shall ensure the proper conduct of the transfer, in liaison with the authorities of the State of enforcement and the authorities of the host State. When the purposes of the transfer have been fulfilled, the Court shall return the sentenced person to the State of enforcement. 3. The person shall be kept in custody during his or her presence before the Court. The entire period of detention spent at the seat of the Court shall be deducted from the sentence remaining to be served.

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Rule 194 – Cooperation Requested from the Court 1. In accordance with article 93, paragraph 10, and consistent with article 96, mutatis mutandis, a State may transmit to the Court a request for cooperation or assistance to the Court, either in or accompanied by a translation into one of the working languages of the Court. 2. Requests described in sub-rule 1 are to be sent to the Registrar, which shall transmit them, as appropriate, either to the Prosecutor or to the Chamber concerned. 3. If protective measures within the meaning of article 68 have been adopted, the Prosecutor or Chamber, as appropriate, shall consider the views of the Chamber which ordered the measures as well as those of the relevant victim or witness, before deciding on the request. 4. If the request relates to documents or evidence as described in article 93, paragraph 10 (b) (ii), the Prosecutor or Chamber, as appropriate, shall obtain the written consent of the relevant State before proceeding with the request. 5. When the Court decides to grant the request for cooperation or assistance from a State, the request shall be executed, insofar as possible, following any procedure outlined therein by the requesting State and permitting persons specified in the request to be present.

Section V – Cooperation under Article 98 Rule 195 – Provision of Information 1. When a requested State notifies the Court that a request for surrender or assistance raises a problem of execution in respect of article 98, the requested State shall provide any information relevant to assist the Court in the application of article 98. Any concerned third State or sending State may provide additional information to assist the Court. 2. The Court may not proceed with a request for the surrender of a person without the consent of a sending State if, under article 98, paragraph 2, such a request would be inconsistent with obligations under an international agreement pursuant to which the consent of a sending State is required prior to the surrender of a person of that State to the Court.

Section VI – Rule of Speciality under Article 101 Rule 196 – Provision of Views on Article 101, Paragraph 1 A person surrendered to the Court may provide views on a perceived violation of the provisions of article 101, paragraph 1.

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Rule 197 – Extension of the Surrender When the Court has requested a waiver of the requirements of article 101, paragraph 1, the requested State may ask the Court to obtain and provide the views of the person surrendered to the Court.

Chapter 12 – Enforcement Section I – Role of States in Enforcement of Sentences of Imprisonment and Change in Designation of State of Enforcement under Articles 103 and 104 Rule 198 – Communications between the Court and States Unless the context otherwise requires, article 87 and rules 176 to 180 shall apply, as appropriate, to communications between the Court and a State on matters relating to enforcement of sentences.

Rule 199 – Organ Responsible under Part 10 Unless provided otherwise in the Rules, the functions of the Court under Part 10 shall be exercised by the Presidency.

Rule 200 – List of States of Enforcement 1. A list of States that have indicated their willingness to accept sentenced persons shall be established and maintained by the Registrar. 2. The Presidency shall not include a State on the list provided for in article 103, paragraph 1 (a), if it does not agree with the conditions that such a State attaches to its acceptance. The Presidency may request any additional information from that State prior to taking a decision. 3. A State that has attached conditions of acceptance may at any time withdraw such conditions. Any amendments or additions to such conditions shall be subject to confirmation by the Presidency. 4. A State may at any time inform the Registrar of its withdrawal from the list. Such withdrawal shall not affect the enforcement of the sentences in respect of persons that the State has already accepted. 5. The Court may enter bilateral arrangements with States with a view to establishing a framework for the acceptance of prisoners sentenced by the Court. Such arrangements shall be consistent with the Statute.

Rule 201 – Principles of Equitable Distribution Principles of equitable distribution for purposes of article 103, paragraph 3, shall include:

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The principle of equitable geographical distribution; The need to afford each State on the list an opportunity to receive sentenced persons; The number of sentenced persons already received by that State and other States of enforcement; Any other relevant factors.

Rule 202 – Timing of Delivery of the Sentenced Person to the State of Enforcement The delivery of a sentenced person from the Court to the designated State of enforcement shall not take place unless the decision on the conviction and the decision on the sentence have become final.

Rule 203 – Views of the Sentenced Person 1. The Presidency shall give notice in writing to the sentenced person that it is addressing the designation of a State of enforcement. The sentenced person shall, within such time limit as the Presidency shall prescribe, submit in writing his or her views on the question to the Presidency. 2. The Presidency may allow the sentenced person to make oral presentations. 3. The Presidency shall allow the sentenced person: (a) To be assisted, as appropriate, by a competent interpreter and to benefit from any translation necessary for the presentation of his or her views; (b) To be granted adequate time and facilities necessary to prepare for the presentation of his or her views.

Rule 204 – Information Relating to Designation When the Presidency notifies the designated State of its decision, it shall also transmit the following information and documents: (a) The name, nationality, date and place of birth of the sentenced person; (b) A copy of the final judgement of conviction and of the sentence imposed; (c) The length and commencement date of the sentence and the time remaining to be served; (d) After having heard the views of the sentenced person, any necessary information concerning the state of his or her health, including any medical treatment that he or she is receiving.

Rule 205 – Rejection of Designation in a Particular Case Where a State in a particular case rejects the designation by the Presidency, the Presidency may designate another State.

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Rule 206 – Delivery of the Sentenced Person to the State of Enforcement 1. The Registrar shall inform the Prosecutor and the sentenced person of the State designated to enforce the sentence. 2. The sentenced person shall be delivered to the State of enforcement as soon as possible after the designated State of enforcement accepts. 3. The Registrar shall ensure the proper conduct of the delivery of the person in consultation with the authorities of the State of enforcement and the host State.

Rule 207 – Transit 1. No authorization is required if the sentenced person is transported by air and no landing is scheduled on the territory of the transit State. If an unscheduled landing occurs on the territory of the transit State, that State shall, to the extent possible under the procedure of national law, detain the sentenced person in custody until a request for transit as provided in sub-rule 2 or a request under article 89, paragraph 1, or article 92 is received. 2. To the extent possible under the procedure of national law, a State Party shall authorize the transit of a sentenced person through its territory and the provisions of article 89, paragraph 3 (b) and (c), and articles 105 and 108 and any rules relating thereto shall, as appropriate, apply. A copy of the final judgement of conviction and of the sentence imposed shall be attached to such request for transit.

Rule 208 – Costs 1. The ordinary costs for the enforcement of the sentence in the territory of the State of enforcement shall be borne by that State. 2. Other costs, including those for the transport of the sentenced person and those referred to in article 100, paragraph 1 (c), (d) and (e), shall be borne by the Court.

Rule 209 – Change in Designation of State of Enforcement 1. The Presidency, acting on its own motion or at the request of the sentenced person or the Prosecutor, may at any time act in accordance with article 104, paragraph 1. 2. The request of the sentenced person or of the Prosecutor shall be made in writing and shall set out the grounds upon which the transfer is sought.

Rule 210 – Procedure for Change in the Designation of a State of Enforcement 1. Before deciding to change the designation of a State of enforcement, the Presidency may: (a) Request views from the State of enforcement;

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(b)

Consider written or oral presentations of the sentenced person and the Prosecutor; (c) Consider written or oral expert opinion concerning, inter alia, the sentenced person; (d) Obtain any other relevant information from any reliable sources. 2. The provisions of rule 203, sub-rule 3, shall apply, as appropriate. 3. If the Presidency refuses to change the designation of the State of enforcement, it shall, as soon as possible, inform the sentenced person, the Prosecutor and the Registrar of its decision and of the reasons therefor. It shall also inform the State of enforcement.

Section II – Enforcement, Supervision and Transfer under Article 105, 106 and 107 Rule 211 – Supervision of Enforcement of Sentences and Conditions of Imprisonment 1. In order to supervise the enforcement of sentences of imprisonment, the Presidency: (a) Shall, in consultation with the State of enforcement, ensure that in establishing appropriate arrangements for the exercise by any sentenced person of his or her right to communicate with the Court about the conditions of imprisonment, the provisions of article 106, paragraph 3, shall be respected; (b) May, when necessary, request any information, report or expert opinion from the State of enforcement or from any reliable sources; (c) May, where appropriate, delegate a judge of the Court or a member of the staff of the Court who will be responsible, after notifying the State of enforcement, for meeting the sentenced person and hearing his or her views, without the presence of national authorities; (d) May, where appropriate, give the State of enforcement an opportunity to comment on the views expressed by the sentenced person under subrule 1 (c). 2. When a sentenced person is eligible for a prison programme or benefit available under the domestic law of the State of enforcement which may entail some activity outside the prison facility, the State of enforcement shall communicate that fact to the Presidency, together with any relevant information or observation, to enable the Court to exercise its supervisory function.

Rule 212 – Information on Location of the Person for Enforcement of Fines, Forfeitures or Reparation Measures For the purpose of enforcement of fines and forfeiture measures and of reparation measures ordered by the Court, the Presidency may, at any time or at least 30 days before the scheduled completion of the sentence served by the sentenced person,

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request the State of enforcement to transmit to it the relevant information concerning the intention of that State to authorize the person to remain in its territory or the location where it intends to transfer the person.

Rule 213 – Procedure for Article 107, Paragraph 3 With respect to article 107, paragraph 3, the procedure set out in rules 214 and 215 shall apply, as appropriate.

Section III – Limitation on the Prosecution or Punishment of other Offences under Article 108 Rule 214 – Request to Prosecute or Enforce a Sentence for Prior Conduct 1. For the application of article 108, when the State of enforcement wishes to prosecute or enforce a sentence against the sentenced person for any conduct engaged in prior to that person’s transfer, it shall notify its intention to the Presidency and transmit to it the following documents: (a) A statement of the facts of the case and their legal characterization; (b) A copy of any applicable legal provisions, including those concerning the statute of limitation and the applicable penalties; (c) A copy of any sentence, warrant of arrest or other document having the same force, or of any other legal writ which the State intends to enforce; (d) A protocol containing views of the sentenced person obtained after the person has been informed sufficiently about the proceedings. 2. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request. 3. The Presidency may in all cases request any document or additional information from the State of enforcement or the State requesting extradition. 4. If the person was surrendered to the Court by a State other than the State of enforcement or the State seeking extradition, the Presidency shall consult with the State that surrendered the person and take into account any views expressed by that State. 5. Any information or documents transmitted to the Presidency under sub-rules 1 to 4 shall be transmitted to the Prosecutor, who may comment. 6. The Presidency may decide to conduct a hearing.

Rule 215 – Decision on Request to Prosecute or Enforce Sentence 1. The Presidency shall make a determination as soon as possible. This determination shall be notified to all those who have participated in the proceedings.

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2. If the request submitted under sub-rules 1 or 2 of rule 214 concerns the enforcement of a sentence, the sentenced person may serve that sentence in the State designated by the Court to enforce the sentence pronounced by it or be extradited to a third State only after having served the full sentence pronounced by the Court, subject to the provisions of article 110. 3. The Presidency may authorize the temporary extradition of the sentenced person to a third State for prosecution only if it has obtained assurances which it deems to be sufficient that the sentenced person will be kept in custody in the third State and transferred back to the State responsible for enforcement of the sentence pronounced by the Court, after the prosecution.

Rule 216 – Information on Enforcement The Presidency shall request the State of enforcement to inform it of any important event concerning the sentenced person, and of any prosecution of that person for events subsequent to his or her transfer.

Section IV – Enforcement of Fines, Forfeiture Measures and Reparation Orders Rule 217 – Cooperation and Measures for Enforcement of Fines, Forfeitures or Reparation Orders For the enforcement of fines, forfeiture or reparation orders, the Presidency shall, as appropriate, seek cooperation and measures for enforcement in accordance with Part 9, as well as transmit copies of relevant orders to any State with which the sentenced person appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of the sentenced person’s assets and property or with which the victim has such connection. The Presidency shall, as appropriate, inform the State of any third-party claims or of the fact that no claim was presented by a person who received notification of any proceedings conducted pursuant to article 75.

Rule 218 – Orders for Forfeiture and Reparations 1. In order to enable States to give effect to an order for forfeiture, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) The proceeds, property and assets that have been ordered by the Court to be forfeited; and (c) That if the State Party is unable to give effect to the order for forfeiture in relation to the specified proceeds, property or assets, it shall take measures to recover the value of the same.

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2. In the request for cooperation and measures for enforcement, the Court shall also provide available information as to the location of the proceeds, property and assets that are covered by the order for forfeiture. 3. In order to enable States to give effect to an order for reparations, the order shall specify: (a) The identity of the person against whom the order has been issued; (b) In respect of reparations of a financial nature, the identity of the victims to whom individual reparations have been granted, and, where the award for reparations shall be deposited with the Trust Fund, the particulars of the Trust Fund for the deposit of the award; and (c) The scope and nature of the reparations ordered by the Court, including, where applicable, the property and assets for which restitution has been ordered. 4. Where the Court awards reparations on an individual basis, a copy of the reparation order shall be transmitted to the victim concerned.

Rule 219 – Non-Modification of Orders for Reparation The Presidency shall, when transmitting copies of orders for reparations to States Parties under rule 217, inform them that, in giving effect to an order for reparations, the national authorities shall not modify the reparations specified by the Court, the scope or the extent of any damage, loss or injury determined by the Court or the principles stated in the order, and shall facilitate the enforcement of such order.

Rule 220 – Non-Modification of Judgements in which Fines were Imposed When transmitting copies of judgements in which fines were imposed to States Parties for the purpose of enforcement in accordance with article 109 and rule 217, the Presidency shall inform them that in enforcing the fines imposed, national authorities shall not modify them.

Rule 221 – Decision on Disposition or Allocation of Property or Assets 1. The Presidency shall, after having consulted, as appropriate, with the Prosecutor, the sentenced person, the victims or their legal representatives, the national authorities of the State of enforcement or any relevant third party, or representatives of the Trust Fund provided for in article 79, decide on all matters related to the disposition or allocation of property or assets realized through enforcement of an order of the Court. 2. In all cases, when the Presidency decides on the disposition or allocation of property or assets belonging to the sentenced person, it shall give priority to the enforcement of measures concerning reparations to victims.

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Rule 222 – Assistance for Service or any other Measure The Presidency shall assist the State in the enforcement of fines, forfeiture or reparation orders, as requested, with the service of any relevant notification on the sentenced person or any other relevant persons, or the carrying out of any other measures necessary for the enforcement of the order under the procedure of the national law of the enforcement State.

Section V – Review Concerning Reduction of Sentence under Article 110 Rule 223 - Criteria for Review Concerning Reduction of Sentence In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria: (a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; (b) The prospect of the resocialization and successful resettlement of the sentenced person; (c) Whether the early release of the sentenced person would give rise to significant social instability; (d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; (e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.

Rule 224 – Procedure for Review Concerning Reduction of Sentence 1. For the application of article 110, paragraph 3, three judges of the Appeals Chamber appointed by that Chamber shall conduct a hearing, unless they decide otherwise in a particular case, for exceptional reasons. The hearing shall be conducted with the sentenced person, who may be assisted by his or her counsel, with interpretation, as may be required. Those three judges shall invite the Prosecutor, the State of enforcement of any penalty under article 77 or any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings, to participate in the hearing or to submit written observations. Under exceptional circumstances, this hearing may be conducted by way of a videoconference or in the State of enforcement by a judge delegated by the Appeals Chamber. 2. The same three judges shall communicate the decision and the reasons for it to all those who participated in the review proceedings as soon as possible. 3. For the application of article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall review the question of reduction of sentence every three years, unless it establishes a shorter interval in its decision

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taken pursuant to article 110, paragraph 3. In case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges. 4. For any review under article 110, paragraph 5, three judges of the Appeals Chamber appointed by that Chamber shall invite written representations from the sentenced person or his or her counsel, the Prosecutor, the State of enforcement of any penalty under article 77 and any reparation order pursuant to article 75 and, to the extent possible, the victims or their legal representatives who participated in the proceedings. The three judges may also decide to hold a hearing. 5. The decision and the reasons for it shall be communicated to all those who participated in the review proceedings as soon as possible.

Section VI – Escape Rule 225 – Measures under Article 111 in the Event of Escape 1. If the sentenced person has escaped, the State of enforcement shall, as soon as possible, advise the Registrar by any medium capable of delivering a written record. The Presidency shall then proceed in accordance with Part 9. 2. However, if the State in which the sentenced person is located agrees to surrender him or her to the State of enforcement, pursuant to either international agreements or its national legislation, the State of enforcement shall so advise the Registrar in writing. The person shall be surrendered to the State of enforcement as soon as possible, if necessary in consultation with the Registrar, who shall provide all necessary assistance, including, if necessary, the presentation of requests for transit to the States concerned, in accordance with rule 207. The costs associated with the surrender of the sentenced person shall be borne by the Court if no State assumes responsibility for them. 3. If the sentenced person is surrendered to the Court pursuant to Part 9, the Court shall transfer him or her to the State of enforcement. Nevertheless, the Presidency may, acting on its own motion or at the request of the Prosecutor or of the initial State of enforcement and in accordance with article 103 and rules 203 to 206, designate another State, including the State to the territory of which the sentenced person has fled. 4. In all cases, the entire period of detention in the territory of the State in which the sentenced person was in custody after his or her escape and, where sub-rule 3 is applicable, the period of detention at the seat of the Court following the surrender of the sentenced person from the State in which he or she was located shall be deducted from the sentence remaining to be served.

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REGULATIONS OF THE COURT Adopted by the Judges of the Court on 26 May 2004 Official Documents of the International Criminal Court ICC-BD/01-01-04 Chapter 1 – General Provisions Regulation 1 – Adoption of these Regulations 1. These Regulations have been adopted pursuant to article 52 and shall be read subject to the Statute and the Rules. 2. These Regulations have been adopted in English and French. Translations in the official languages of the Court are equally authentic.

Regulation 2 – Use of Terms 1. In these Regulations: “article” refers to an article of the Statute; “Assembly” refers to the Assembly of States Parties to the Statute; “Chamber” refers to a Chamber of the Court; “Chief Custody Officer” refers to the officer appointed by the Court as the head of the staff of the detention centre; “counsel” refers to a defence counsel and a legal representative of a victim; “Court” refers to the International Criminal Court; “Deputy Prosecutor” refers to a Deputy Prosecutor of the Court; “Deputy Registrar” refers to the Deputy Registrar of the Court; “detained person” refers to any person detained in a detention centre; “detention centre” refers to any prison facility other than the prison facility described in article 103, paragraph 4, maintained by the Court or maintained by other authorities and made available to the Court; “Division” refers to a Division of the Court; “Elements of Crimes” refers to the Elements of Crimes as described in article 9; “host State” refers to the Netherlands; “judge” refers to a judge of the Court; “list of counsel” refers to the list of counsel as described in rule 21, subrule 2; “Office of the Prosecutor” refers to the organ of the Court as described in article 34; “plenary session” refers to a plenary session of the judges as described in rule 4;

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-

“Presidency” refers to the organ of the Court as described in article 34 comprised of the President and the First and Second Vice-Presidents of the Court; “President” refers to the President of the Court; “Presiding Judge” refers to the Presiding Judge of a Chamber; “Prosecutor” refers to the Prosecutor of the Court; “Registrar” refers to the Registrar of the Court; “Registry” refers to the organ of the Court as described in article 34; “regulation” refers to a regulation of these Regulations; “Regulations” refers to the Regulations of the Court as adopted pursuant to article 52; “rule” refers to a rule of the Rules, including provisional rules drawn up under article 51, paragraph 3; “Rules” refers to the Rules of Procedure and Evidence; “State Party” refers to a State Party to the Statute; “Statute” refers to the Rome Statute of the Court. 2. In these Regulations the singular shall include the plural and vice versa.

Regulation 3 – Coordination Council 1. There shall be a Coordination Council comprised of the President on behalf of the Presidency, the Prosecutor and the Registrar. 2. The Coordination Council shall meet at least once a month and on any other occasion at the request of one of its members in order to discuss and coordinate on, where necessary, the administrative activities of the organs of the Court.

Regulation 4 – Advisory Committee on Legal Texts 1. There shall be an Advisory Committee on Legal Texts comprised of: (a) Three judges, one from each Division, elected from amongst the members of the Division, who shall be members of the Advisory Committee for a period of three years; (b) One representative from the Office of the Prosecutor; (c) One representative from the Registry; and (d) One representative of counsel included in the list of counsel. 2. The Advisory Committee shall elect a judge as chairperson for a period of three years who shall be eligible for re-election once. The Advisory Committee shall meet at least twice a year and at any time at the request of the Presidency. 3. The Chairperson of the Advisory Committee may, as appropriate, invite other interested groups or persons to present their views if considered relevant for the work of the Advisory Committee. The Chairperson may also seek the advice of experts.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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4. The Advisory Committee shall consider and report on proposals for amendments to the Rules, Elements of Crimes and these Regulations. Subject to sub-regulation 5, it shall submit a written report in both working languages of the Court setting out its recommendations on such proposals to a plenary session. A copy thereof shall be provided to the Prosecutor and the Registrar. The Advisory Committee shall also consider and report on any matter referred to it by the Presidency. 5. When a proposal for an amendment to the Rules or to the Elements of Crimes is presented by the Prosecutor, the Advisory Committee shall transmit its report to the Prosecutor. 6. The Presidency may, as appropriate, designate one person, who may be assisted by others, to provide administrative and legal support to the Advisory Committee. 7. The Advisory Committee shall adopt its own rules of procedure.

Regulation 5 – Amendments to the Rules and Elements of Crimes 1. Any proposal for amendments to the Rules pursuant to article 51 or to the Elements of Crimes pursuant to article 9 shall be submitted by a judge to the Advisory Committee on Legal Texts. The Prosecutor may submit proposals to the Advisory Committee on Legal Texts. All proposals, together with any explanatory material, shall be presented in writing in both working languages of the Court. 2. In urgent cases, where the Rules do not provide for a specific situation before the Court, the Presidency, on its own motion or at the request of a judge or the Prosecutor, may submit proposals for provisional rules under article 51, paragraph 3, directly to the judges for their consideration in a plenary session.

Regulation 6 – Amendments to these Regulations 1. Any proposal for amendments to these Regulations shall be accompanied by explanatory material, and those documents shall be presented in writing to the Advisory Committee on Legal Texts in both working languages of the Court. 2. In urgent cases, the Presidency, on its own motion or at the request of a judge, the Prosecutor or the Registrar, may submit proposals for amendments to these Regulations directly to the judges for their consideration in a plenary session. 3. Amendments to these Regulations shall not be applied retroactively to the detriment of the person to whom article 55, paragraph 2, or article 58 applies, the accused, convicted or acquitted person.

Regulation 7 – Publication in the Official Journal 1. An Official Journal of the Court shall be created and shall contain the following texts and amendments thereto: (a) The Statute; (b) The Rules; (c) The Elements of Crimes; (d) These Regulations;

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(e) (f) (g) (h) (i) (j) (k)

The Regulations of the Office of the Prosecutor; The Regulations of the Registry; The Code of Professional Conduct for counsel; The Code of Judicial Ethics; The Staff Regulations; The Financial Regulations and Rules; The Agreement on the Privileges and Immunities of the International Criminal Court; (l) The Relationship Agreement between the Court and the United Nations; (m) The Headquarters Agreement with the host State; (n) Any other material as decided by the Presidency in consultation with the Prosecutor and/or the Registrar. 2. The Official Journal shall indicate the date when the text or any amendment thereto came into force.

Regulation 8 – Website of the Court The following materials shall be published on the website of the Court: (a) The Official Journal of the Court referred to in regulation 7; (b) The calendar of the Court; (c) Decisions and orders of the Court and other particulars of each case brought before the Court as described in rule 15; (d) Any other material as decided by the Presidency, the Prosecutor or the Registrar.

PRE-TRIAL CHAMBERS x

Regulation 8(c): Principle that all decisions and orders shall be published on the ICC website – Order to unseal decisions when confidentiality is no more required

r8-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision to Unseal the Warrant of Arrest Against Mr. Thomas Lubanga Dyilo and Related Documents (PT), 17 March 2006:79

79 Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision to Unseal and Reclassify Certain Documents in the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 20 March 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Decision to Unseal and Reclassify Certain Additional Documents in the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 22 March 2006; Situation in Uganda, No. ICC-02/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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CONSIDERING that the DRC authorities have already executed the cooperation request for the arrest and surrender of Mr Thomas Lubanga Dyilo filed on 24 February 2006 and transmitted to the DRC authorities by the Registrar on 14 March 2006; that Mr Thomas Lubanga Dyilo is currently under the custody of officials of the Court; and that there is no longer any reason to maintain the warrant of arrest against him and related documents under seal; CONSIDERING that regulation 8 (c) of the Regulations of the Court requires publication on the website of the Court of all "decisions and orders of the Court and other particulars of each case brought before the Court as described in rule 15"; CONSIDERING that the protection of victims and witnesses does not require additional redactions in the corrected formatted version of PTC I's decision on the Prosecution's application pursuant to article 58(7)and on the warrant of arrest(8) against Mr Thomas Lubanga Dyilo itself; FOR THESE REASONS DECIDE to unseal and to reclassify as public documents the following documents:[…] ————————— (7) 01/04-01 -06-8-US-Corr. (8) ICC-01/04-01-06-2-US.

Chapter 2 – Composition and Administration of the Court Regulation 9 – Term of Office 1. The term of office of judges shall commence on the eleventh of March following the date of their election. 2. The term of office of a judge elected to replace a judge whose term of office has not expired shall commence on the date of his or her election and shall continue for the remainder of the term of his or her predecessor.

Regulation 10 – Precedence 1. In the exercise of their judicial functions, the judges, irrespective of age, date of election or length of service, are of equal status. 2. The President, the First Vice-President and the Second Vice-President, while holding these offices, shall take precedence over all other judges. 3. Judges shall take precedence according to the date of the commencement of their respective terms of office.

Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Order to the Prosecutor to Provide Information on Further Unsealing of Documents of the Record (PT), 18 April 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006, para. 25.

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4. Judges whose terms of office begin on the same date shall take precedence according to seniority of age. 5. A judge who is re-elected in accordance with article 36, paragraph 9 (c), or article 37, paragraph 2, shall retain his or her precedence.

Regulation 11 – The Presidency 1. The members of the Presidency shall attempt to achieve unanimity in any decision taken in carrying out their responsibilities under article 38, paragraph 3, failing which any such decision shall be taken by majority. 2. In the event that a member of the Presidency is unavailable or disqualified, his or her responsibilities as a member of the Presidency shall be carried out by the next available judge having precedence in accordance with regulation 10. 3. In exceptional circumstances such as in an emergency, where there is a need for the Presidency to act and where it is not possible for all three members of the Presidency to act together, the members of the Presidency who are immediately available may take the action required. 4. In the event that the President, the First Vice-President and the Second VicePresident are unavailable or disqualified, the functions of the President shall be carried out by the next available judge having precedence in accordance with regulation 10.

Regulation 12 – Service Within the Appeals Chamber In the event that a member of the Appeals Chamber is disqualified, or unavailable for a substantial reason, the Presidency shall, in the interests of the administration of justice, attach to the Appeals Chamber on a temporary basis a judge from either the Trial or Pre-Trial Division, subject to article 39, paragraph 1. Under no circumstances shall a judge who has participated in the pre-trial or trial phase of a case be eligible to sit on the Appeals Chamber hearing that case; nor shall a judge who has participated in the appeal phase of a case be eligible to sit on the pre-trial or trial phase of that case.

Regulation 13 – Presiding Judges 1. The judges of the Appeals Chamber shall decide on a Presiding Judge for each appeal. 2. The judges of each Trial Chamber and of each Pre-Trial Chamber shall elect from amongst their members a Presiding Judge who shall carry out the functions conferred upon him or her by the Statute, Rules or otherwise.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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PRE-TRIAL CHAMBERS x

Regulation 13(2): Election of the Presiding Judge of a Pre-Trial Chamber

r13-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Élection du Juge Président de la Chambre Préliminaire I (Election of the Presiding Judge of Pre-Trial Chamber I) (PT), 16 September 2004:80

VU l'élection, lors de la réunion des juges de la Chambre préliminaire I qui s'est tenue le 9 juillet 2004, du juge Claude Jorda en tant que président de la Chambre

préliminaire I, DÉCLARENT, PAR LA PRÉSENTE, que le juge Claude Jorda est le juge président de la Chambre préliminaire I.

——— Official Translation ——— NOTING the election during the meeting of judges of Pre-Trial Chamber I held on the 9th day of July 2004 of Judge Claude Jorda as Presiding Judge of Pre-Trial Chamber I; THEREFORE declare that Judge Claude Jorda is Presiding Judge of Pre-Trial Chamber I.

x

Regulation 13(2): Re-election of the same Presiding Judge of a Pre-Trial Chamber

r13-PT-2

o Situation in the Central African Republic, No. ICC01/05, Election of the Presiding Judge of Pre-Trial Chamber III (PT), 28 March 2006:

NOTING the election during the meeting of judges of Pre-Trial Chamber III held on the 28th day of March 2006 of Judge Sylvia Steiner as Presiding Judge of Pre-Trial Chamber III; THEREFORE declare that Judge Sylvia Steiner is Presiding Judge of Pre-Trial Chamber III.

80

See also Situation in Uganda, No. ICC-02/04, Election of the Presiding Judge of Pre-Trial Chamber II (PT), 16 September 2004; Situation in the Central African Republic, No. ICC01/05, Election of the Presiding Judge of Pre-Trial Chamber III (PT), 4 February 2005; Situation in Uganda, No. ICC-02/04, Election of the Presiding Judge of Pre-Trial Chamber II (PT), 28 March 2006.

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APPEALS CHAMBER x

Regulation 13(1): Designation of a Presiding Judge for an appeal

r13-A-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber (A), 27 March 2006:81

The Appeals Chamber of the International Criminal Court, In the appeal of Thomas Lubanga Dyilo of 24 March 2006 (ICC-01/04-01/06-5 7CorrtEn) against the decision of Pre-Trial Chamber I of 10 February 2006 entitled "Decision on the Prosecutor's Application for Warrants of Arrest, Article 58", Pursuant to regulation 13(1) of the Regulations of the Court, Renders the following

DECISION The Presiding Judge in the above-mentioned appeal is Judge Navanethem Pillay.

Regulation 14 – President of the Division The judges of each Division shall elect a President of the Division from amongst their members to oversee the administration of the Division. The President of the Division shall carry out this function for a period of one year.

81

Situation in the Democratic Republic of the Congo, No. ICC-01/04, Decision of the Presiding Judge of the Appeals Chamber (A), 27 April 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in the Prosecutor’s Appeal Pursuant to the Decision of Pre-Trial Chamber I of 23 June 2006 (A), 27 June 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in the “Requête d’appel du Conseil de la Défense de la ‘Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art.19.2.(a) of the Statute’ du 3 octobre 2006” (A), 11 October 2006; Situation in the Democratic Republic of the Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in Mr. Thomas Lubanga Dyilo’a Appeal Pursuant to the Decision of Pre-Trial Chamber I of 28 September 2006 (A), 11 October 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in Mr. Thomas Lubanga Dyilo’s Appeal Pursuant to the Decision of Pre-Trial Chamber I of 4 October 2006 (A), 19 October 2006; Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Presiding Judge of the Appeals Chamber in the “Defence Appeal Against ‘Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo’” (A), 23 October 2006.

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Regulation 15 – Replacements 1. The Presidency shall be responsible for the replacement of a judge pursuant to rule 38 and in accordance with article 39 and shall also take into account, to the extent possible, gender and equitable geographical representation. 2. Without prejudice to the criteria listed in sub-regulation 1, replacement within the Appeals Chamber shall take place in accordance with regulation 12.

Regulation 16 – Alternate Judges Subject to the provisions of article 39 and pursuant to article 74, paragraph 1, alternate judges may be designated by the Presidency, on a case-by-case basis, first taking into account the availability of judges from the Trial Division and thereafter from the Pre-Trial Division.

Regulation 17 – Duty Judge 1. The Presidency shall establish a duty roster of judges of the Pre-Trial Division. Each judge shall be on duty for a period of 14 days. 2. The duty judge shall be responsible for dealing with requests or applications: (a) Where the request or application is submitted outside normal Registry hours, if the duty judge is satisfied that it is urgent; or (b) Where the request or application is submitted during normal Registry hours and the Pre-Trial Chamber or Chamber referred to in regulation 46, subregulation 3, is unavailable, provided that the duty judge is satisfied that the matter is urgent and that it is appropriate for him or her to deal with it. 3. The duty roster of judges of the Pre-Trial Division shall be maintained by the Presidency and made available to the Registry.

Regulation 18 – Duty Legal Officers of the Chambers 1. The Presidency shall establish a duty roster of legal officers of the Chambers. Each legal officer shall be on duty for a period of 14 days. 2. The duty legal officer of the Chambers shall be responsible for assisting the duty judge. 3. The duty roster of legal officers of the Chambers shall be maintained by the Presidency and made available to the Registry.

Regulation 19 – Duty Officers of the Registry The Registrar shall establish a duty roster of officers of the Registry. Each officer shall be on duty for the period specified in the Regulations of the Registry.

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Chapter 3 – Proceedings before the Court Section 1 – Provisions Relating to All Stages of the Proceedings Subsection 1 – General Provisions Regulation 20 – Public hearings 1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber. 2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order. 3. A Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist.

PRE-TRIAL CHAMBERS x

Regulation 20: Publicity of hearings – Applicable to confirmation hearings under Article 61 – Limitation: protection of witnesses under Article 68(1) may justify closed sessions

r20-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006, p. 5:

CONSIDERING that, pursuant to the chapeau of article 67(1) of the Statute and regulation 20 of the Regulations of the Court, the confirmation hearing shall, as a general principle, be held in public; CONSIDERING, however, that, in order to provide for the adequate protection of certain witnesses under article 68(1) of the Statute, the confirmation hearing may be conducted partly in closed session;

Regulation 21 – Broadcasting, Release of Transcripts and Recordings 1. The publicity of hearings may extend beyond the courtroom and may be through broadcasting by the Registry or release of transcripts or recordings, unless otherwise ordered by the Chamber. 2. In order to protect sensitive information, broadcasts of audio- and videorecordings of all hearings shall, unless otherwise ordered by the Chamber, be delayed by at least 30 minutes. 3. Witnesses and participants shall be informed that the public hearings of the Chamber are broadcast in accordance with this regulation. Any objection raised shall be ruled on by the Chamber in accordance with sub-regulations 4 and 5. 4. Any objection to the release of transcripts or recordings, or requests that certain testimony be excluded from broadcast, shall be made as soon as possible and, in any

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event, no later than at the commencement of the session at which the witness or participant is to appear. 5. The Chamber may decide to prohibit the broadcasting of any hearing of an objection until that objection has been ruled on. 6. The Chamber may order the termination of the broadcast of a hearing at any time. 7. All documentary evidence and other evidence introduced by a participant during a public hearing shall be available for broadcast, unless otherwise ordered by the Chamber. 8. At the request of a participant or the Registry, or proprio motu, and when possible within the time set out in sub-regulation 2, the Chamber may, in the interests of justice, order that any information likely to present a risk to the security or safety of victims, witnesses or other persons, or likely to be prejudicial to national security interests, shall not be published in any broadcast, audio- or video-recording or transcript of a public hearing. 9. The audio- and video-record of hearings shall be made available to the participants and the public in accordance with the procedures set out in the Regulations of the Registry, unless otherwise ordered by the Chamber.

PRE-TRIAL CHAMBERS x

Regulation 21: Publicity of hearings beyond the courtroom Authorisation to take photographs – Limitation in time

r21-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Authorising Photographs at the Hearing of 20 March 2006 (PT), 20 March 2006:82

CONSIDERING that the publicity of hearings may extend beyond the courtroom pursuant to regulation 21 of the Regulations of the Court; FOR THESE REASONS DECIDES to authorize the Registrar to communicate to external photographers that they will be allowed to take photographs from inside the courtroom immediately after all participants are seated and for a period of 1 minute.

x

Regulation 21(8): Restrictions to publicity – Information likely to present a risk to the security or safety of a witness – Reclassification of a public decision as confidential and publication of a public redacted version

r21-PT-2

82

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Ordonnance autorisant la prise de photographies à l’audience du 9 novembre 2006 (Order Authorising the Taking of Photographs at the Hearing of 9 November 2006) (PT), 6 November 2006.

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No. ICC-01/04-01/06, Decision Reclassifying Document Number ICC-01/04-01/06-690, 9 November 2006, p. 2: NOTING the “Decision on the Motion by the Defence to exclude anonymous hearsay testimony of the Prosecution witness”, issued by the single judge on 8 November 2006, and registered as public document ICC-01/04-01/06-690 in the record of the case of the Prosecutor vs Thomas Lubanga Dyilo; NOTING articles 57(3)(c) and 68(1) of the Statute; CONSIDERING that there is a need to reclassify the document INN-01/04-01/06690 as a confidential document and to publicise the public redacted version included in the Annex to the present decision ;

Regulation 22 – Definition of Documents The term “document” shall include any motion, application, request, response, reply, observation, representation and any other submission in a form capable of delivering a written record to the Court.

Regulation 23 – Content of Documents 1. Unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber, any document filed with the Court shall, as far as practicable, state: (a) The identity of the person filing the document; (b) The situation or case number, the name of the person to whom article 55, paragraph 2, or article 58 applies, the accused, convicted or acquitted person, the name of counsel or representative, if any, and the Chamber to which the matter has been assigned; (c) A brief summary of the reason for filing the document which is not a response or reply and the relief sought, if any; (d) All relevant legal and factual issues, including details of the articles, rules, regulations or other applicable law relied upon. 2. All standard forms and templates for use during the proceedings before the Court shall be approved by the Presidency. The Presidency may refer any matter relating to the standard forms and templates to the Advisory Committee on Legal Texts for its consideration. 3. Subject to any order of the Chamber, a participant shall file, with each document, copies of any authorities relied upon or, if appropriate, internet links. Participants are not required to file copies of decisions or orders of the Court. Authorities shall be provided in an authorised version together with a translation in at least one of the working languages of the Court if the original is not in one of those languages.

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PRE-TRIAL CHAMBERS x

Regulation 23(1): “Any document filed” – E-mail is not the proper channel to file applications - Proper filing is a requirement

r23-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006, pp. 2-3, 6:

NOTING the request of the Defence for guidance from the Chamber as to whether the 15 November 2006 Defence request and "all subsequent requests for materials during the confirmation hearing" should stay completely inter partes , be filed in the record of the case or be copied inteo the correspondence ("the Defence Request for Guidance"), made by the Defence via e-mail on 16 November 2006; […] CONSIDERING that e-mail is not the proper channel to make the Defence Request for Guidance; and that such a Request must be immediately filed in the record of the case of the Prosecutor vs Thomas Lubanga Dyilo; […] FOR THESE REASONS, DECIDE that the Defence Request for Guidance, which is attached as Annex I to the present decision, shall be filed in the record of the case.

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Regulation 23(1) (d): Content of applications - Statement of articles, rules, regulations or other applicable law relied on

r23-PT-2

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, para. 14:

14. The Chamber also notes that regulation 23 of the Regulations of the Court (the "Regulations") stipulates specific requirements for the content of documents. Regulation 23, sub-regulation 1 (d) specifies that "any document filed with the Court shall, as far as practicable, state… [a]ll relevant legal and factual issues including details of the articles, rules, regulations or other applicable law relied on". The Chamber requires the Prosecutor to comply with this regulation and to clearly set out the legal basis of his submissions in accordance with article 21 of the Statute in all future filings.

554

CYRIL LAUCCI

x

Regulation 23(3): Content of applications – Filing of authorities

r23-PT-3

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005, para. 15:

15. Further, the Chamber observes that the Prosecutor relies on the case law of the International Criminal Tribunal for the former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR") in his Position and Motion for Reconsideration and Clarification. Regulation 23, sub-regulation 3 of the Regulations specifies that "a participant shall file, with each document, copies of any authorities relied upon or, if appropriate, internet links". The Chamber requires the Prosecutor to comply with this regulation in the context of all future filings.

Regulation 24 – Responses and Replies 1. The Prosecutor and the defence may file a response to any document filed by any participant in the case in accordance with the Statute, Rules, these Regulations and any order of the Chamber. 2. Victims or their legal representatives may file a response to any document when they are permitted to participate in the proceedings in accordance with article 68, paragraph 3, and rule 89, sub-rule 1, subject to any order of the Chamber. 3. States participating in the proceedings may file a response to any document, subject to any order of the Chamber. 4. A response referred to in sub-regulations 1 to 3 may not be filed to any document which is itself a response or reply. 5. Participants may only reply to a response with the leave of the Chamber, unless otherwise provided in these Regulations.

PRE-TRIAL CHAMBERS x

Regulation 24(1): Right of the Prosecutor and the Defence to respond documents filed by participants in the case – Response to submissions filed by the legal representative of victims

r24-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision autorisant le Procureur et la Défense à déposer une réponse aux observations des représentants légaux des victimes concernant les modalités de participation des victimes a/0001/06,

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision Authorising the Prosecutor and the Defence to Respond to the Observations of the Legal Representatives of the Victims regarding the Manner in which Victims a/0001/06, a/0002/06 and a/0003/06 are to Participate in the Confirmation Proceedings) (PT), 10 August 2006 : ATTENDU qu’au terme de l’article 68-3 du Statut, les victimes ou leurs représentants légaux peuvent exposer leurs vues et préoccupations à des stades de la procédure que la Cour estime appropriés et d’une manière qui n’est ni préjudiciable ni contraire aux droits de la défense et aux exigences d’un procès équitable et impartial, (9) ATTENDU qu’en vertu de la norme 24 du Règlement de la Cour, le Procureur et la Défense peuvent présenter une réponse à tout document déposé par tout participant à la procédure, ATTENDU par conséquent, que le Procureur et la Défense doivent avoir la possibilité de répondre aux observations des Représentants légaux des victimes sur les modalités de leur participation à l’audience de confirmation des charges, ————————— (9) ICC-01/04-101.

——— Official Translation —— CONSIDERING that under article 68 (3) of the Statute the victims or their legal representatives may 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 Defence and the requirements of a fair and impartial trial(9); CONSIDERING that under regulation 24 of the Regulations of the Court, the Prosecutor and the Defence may file a response to any document filed by any participant in the proceedings; CONSIDERING therefore that the Prosecutor and the Defence must have the possibility to respond to the observations of the legal representatives of the victims on the manner of their participation in the confirmation hearing; ————————— (9) ICC-01/04-101.

r24-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence’s Request to File a Reply (PT), 28 August 2006:

CONSIDERING that pursuant to regulation 24 (5) of the Regulations, a reply may be made towards a response, whereas, in application of regulation 24 (1) of the Regulations, a response is made to "any document filed by any participant in the case in accordance with the Statute, Rules, these Regulations and any order of the Chamber";

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CONSIDERING that the Chamber invited the DRC and the victims to submit their observations; that this invitation was made by an order of the Chamber pursuant to regulation 34 (a) of the Regulations; that, at this point, a document filed by the Defence would be considered a response; and that therefore, both the Defence and the Prosecution are entitled to file such response;

x

Regulation 24(2): Participation of victims – Requirement that the status of victims be granted before exercising rights under Regulation 24(2) – Exception: status of victims granted for a situation and any related cases

r24-PT-3

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative à la demande de prorogation de délai pour l’envoi du mémoire du représentant légal des demandeurs VPRS 1 à VPRS 6 sur leur statut de victimes dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo (Translation not available) (PT), 9 May 2006:

ATTENDU que la Chambre n'a pas encore pris de décision quant à la demande d'obtention du statut de victimes dans le cadre de l'affaire concernant M. Thomas Lubanga Dyilo, ATTENDU que tant que cette décision n'est pas rendue, les demandeurs ne jouissent pas, dans le cadre de la procédure, du droit prévu à la norme 24-2 du Règlement de la Cour et que, par conséquent, les normes 34 et 35 de ce Règlement ne leur sont pas applicables, ATTENDU, toutefois, que la demande initiale valait pour la phase de l'enquête relative à la situation en RDC et pour toute affaire qui en découlerait à l'avenir ; qu'il s'ensuit que les demandeurs n'ont pas eu l'occasion de pleinement exposer les arguments étayant leur demande au regard de l'affaire concernant M. Thomas Lubanga Dyilo ; et que l'exposé de ces arguments favoriserait le règlement adéquat de la question, PAR CES MOTIFS, DÉCIDE de permettre au représentant légal des demandeurs de déposer des observations et toute pièce étayant la participation de VPRS1 à VPRS 6 à la procédure au stade de l'affaire le Procureur c. Thomas Lubanga Dyilo et ce, dans les trois semaines suivant la date de notification de la présente décision.

——— Official Translation Not Available ——— x

Regulation 24(5): Leave to file a Reply – Criteria: new issue of law raised in Response (granted) – Time frame

r24-PT-4

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur la Requête du Procureur sollicitant

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l’autorisation de déposer une réplique (Decision on the Prosecution’s Application for Leave to Reply) (PT), 1st February 2006 : VU la Requête du Procureur sollicitant l'autorisation de déposer une réplique aux Observations enregistrée le 30 janvier 2006(4), CONSIDERANT la norme 24-5 du Règlement de la Cour, CONSIDERANT que cette norme dispose que les participants ne peuvent déposer une réplique à une réponse qu'avec l'autorisation de la Chambre, CONSIDERANT la nouveauté de la question de la participation des victimes au stade de l'enquête et le fait que pour la première fois, VPRS1 à VPRS 6 s'opposent à une requête du Procureur à ce stade, CONSIDERANT le délai prévu à la norme 34-c du Règlement de la Cour, PAR CES MOTIFS, DÉCIDE de donner l'autorisation au Procureur de déposer une réplique aux Observations dans les dix jours à compter de la notification des Observations du représentant de VPRS 1 à VPRS 6. ————————— (4) ICC-01/04-107

——— Official Translation ——— NOTING the Prosecution’s Application for leave to reply to the Observations of the Legal Representative of VPRS 1 to VPRS 6 following the Prosecution’s Application for Leave to Appeal Pre-Trial Chamber I’s Decision on the Applications for Participation in the Proceedings of VPRS 1 to VPRS 6 registered on 30 January 2006;(4) CONSIDERING regulation 24(5) of the Regulations of the Court; CONSIDERING that this regulation provides that participants may only reply to a response with the leave of the Chamber; CONSIDERING that the question of victims participating at the investigation stage has not arisen previously and that the fact that for the first time VPRS 1 to VPRS 6 object to an application from the Prosecutor at this stage; CONSIDERING the time limits provided for under regulation 34(c) of the Regulations of the Court; FOR THESE REASONS DECIDES to grant leave to the Prosecutor to reply to the Observations within ten days of notification of the Observations of the representative of VPRS 1 to VPRS 6. ————————— (4) ICC-01/04-107

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x

Regulation 24(5): Leave to file a Reply – Criteria: complexity of issues (granted) – Time frame

r24-PT-5

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la Requête de la Défense sollicitant l’autorisation de déposer une réplique (Decision on the Defence motion seeking leave to file a reply) (PT), 29 June 2006:

ATTENDU que la norme 24-5 du Règlement de la Cour dispose que les participants ne peuvent déposer une réplique à une réponse qu'avec l'autorisation de la Chambre, ATTENDU que la requête de la Défense réfère spécifiquement à la mise en liberté de Thomas Lubanga Dyilo, soulève des questions complexes et qu'il est ainsi dans l'intérêt de la Défense de pouvoir répondre aux arguments exposés dans la Réponse de l'Accusation, […] PAR CES MOTIFS, DÉCIDE d'autoriser le conseil de la Défense à déposer une réplique, en conformité avec les normes du Règlement de la Cour sur le formatage des documents, dans les dix jours à compter de la notification de la présente décision,

——— Official Translation ——— CONSIDERING that under regulation 24 (5) of the Regulations of the Court, participants may reply to a response only with the leave of the Chamber; CONSIDERING that the Defence application refers specifically to the release of Thomas Lubanga Dyilo, raises complex issues, and that, accordingly, it is in the interest of the Defence to be in a position to respond to the arguments set out in the Prosecution’s response; [...] FOR THESE REASONS DECIDES to grant Counsel for the Defence leave to file a reply, consistent with the Regulations of the Court regarding document formatting, within ten days of notification of this Decision;

x

Regulation 24(5): Leave to file a Reply – Criteria: potential impact of the issue on the ongoing process of disclosure (granted) – Time frame

r24-PT-6

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request to File a Reply to the Prosecution’s Response to the “Conclusions de la Défense quant aux

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

559

divulgations de documents expurgées par le Procureur” (PT), 2 August 2006: CONSIDERING the potential impact of the issue dealt with in the Defence Conclusions and the Prosecution Response on the ongoing process of disclosure of incriminating evidence and potentially exculpatory materials ; […] DECIDE to grant the Defence leave to reply to the Prosecution Response;

x

Regulation 24(5): Leave to file a Reply – Chamber in possession of sufficient submissions (denied)

r24-PT-7

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing) (PT), 22 September 2006:83

ATTENDU qu'aux termes de la norme 24-5 du Règlement de la Cour, les participants ne peuvent déposer une réplique à une réponse qu'avec l'autorisation de la Chambre ; qu'en l'espèce, la Chambre considère que le dépôt d'une réplique par les Représentants légaux des victimes n'est pas nécessaire dans la mesure où elle dispose de suffisamment d'éléments au vu des observations initiales des victimes, de la Défense et du Procureur,

——— Official Translation ——— CONSIDERING that under regulation 24(5) of the Regulations of the Court, the participants may only reply to a response with the leave of the Chamber; that in this case, the Chamber considers that it is unnecessary for the victims’ legal representatives to file a reply, in so far as the Chamber has sufficient information in view of the initial observations of the victims, Defence and Prosecutor;

Regulation 25 - Communications Other than in Writing A person making a communication to the Court under rule 102 shall indicate at the start of the communication: (a) His or her identity; (b) The situation or case number, if known;

83 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006, pp.3-4.

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(c) (d) (e) (f)

The Chamber seized of the matter, if known; The name of the person to whom article 55, paragraph 2, or article 58 applies, the accused, convicted or acquitted person, if known; The purpose of the communication; When referring to a specific event, to the extent possible, the location, date and individuals involved.

Regulation 26 – Electronic Management 1. The Court shall establish a reliable, secure, efficient electronic system which supports its daily judicial and operational management and its proceedings. 2. The Registry shall be responsible for the implementation of the system described in sub-regulation 1, taking into account the specific requirements of the judicial activity of the Court, including the need to ensure authenticity, accuracy, confidentiality and preservation of judicial records and material. 3. Documents, decisions and orders shall, whenever possible, be submitted in electronic version for registration by the Registry. The electronic version of filings shall be authoritative. 4. In proceedings before the Court, evidence other than live testimony shall be presented in electronic form whenever possible. The original form of such evidence shall be authoritative.

PRE-TRIAL CHAMBERS x

Regulation 26(4): Format of filing of evidence – Electronic filing does not exempt from filing the original format of evidence

r26-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006, Annex I, paras.44-47:84

44. As to the format in which the parties must file the evidence on which they intend to rely at the confirmation hearing, the single judge has already concluded that the evidence must be submitted in its original format. 45. The single judge also notes that, under regulation 26 (3) and (4) of the Regulations, whenever possible documents must be filed electronically and evidence other than live testimony must be presented electronically. For these purposes, the Court has purchased software (which is already available to the Prosecution and can be made available to the Defence in the coming days) and prepared a Draft Protocol

84 See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the New Version of the Draft Protocol on the Presentation of Evidence Prepared Jointly by the Office of the Prosecutor, the Defence and the Registry (PT), 27 July 2006.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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on the Presentation of Evidence (which requires specific details for each item of evidence to be presented electronically in court, including those relating to the format of the documents, image quality, the numbering system, required metadata and responsibility for the transmission of viruses). 46. Moreover, the single judge also takes note of the willingness shown by the parties to work with this system.(66) 47. Hence, in the view of the single judge, in addition to the originals, the parties must file in the record of the case electronic copies (or electronic photographs for tangible objects) of the evidence on which they intend to rely at the confirmation hearing containing the particulars provided for in the Draft Protocol on the Presentation of Evidence. The single judge considers that, pending approval of the Final Protocol on the Presentation of Evidence, and given the fact that the confirmation hearing has been scheduled for 27 June 2006, the draft protocol, as it stands on 15 May 2006, shall apply in the present case. ————————— (66) ICC-01/04-01/06-T-4 EN, p. 54, lines 5 to 25 and p. 55, lines 1 to 23. See also, Defence Final observations, pp. 23 and 24.

Regulation 27 – Transcripts 1. Real time transcripts of hearings shall be provided in at least one of the working languages of the Court to the extent technically possible. Transcripts of proceedings other than hearings may be provided upon request. 2. The transcripts constitute an integral part of the record of the proceedings. The electronic version of transcripts shall be authoritative.

Regulation 28 – Questions by a Chamber 1. A Chamber may order the participants to clarify or to provide additional details on any document within a time limit specified by the Chamber. 2. A Chamber may order the participants to address specific issues in their written or oral submissions within a time limit specified by the Chamber. 3. These provisions are without prejudice to the inherent powers of the Chamber.

PRE-TRIAL CHAMBERS x

Regulation 28(1): Order to clarify on judicial remedies to which an application resorts

r28-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Relating to the Application for Release (PT), 13 July 2006:

NOTING the “Conclusions en réplique à la réponse du Procureur à la demande de mise en liberté”(7) filed by the Defence on 10 July 2006, in which the Defence states

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that the Application for Release is grounded, on the one hand, on article 55(1)(d) juncto article 85 of the Statute, and, on the other hand, on the inadmissibility of the case against Thomas Lubanga Dyilo; NOTING articles 19, 55, 59, 60 and 85 of the Statute, rule 185 of the Rules and regulation 28(1) of the Regulations of the Court (“the Regulations”); CONSIDERING that in the various documents submitted to the Chamber regarding the Application for Release, the Defence has resorted to a variety of procedural remedies; CONSIDERING that each procedural remedy must be dealt with by a different procedure; FOR THESE REASONS ORDERS the Defence to make clear which procedural remedy it is using for the Application for Release of Thomas Lubanga Dyilo within 10 days from the notification of the present decision. ————————— (7) ICC-01/04-01/06-188-Conf.

x

Regulation 28(3): Questions by a Chamber – Inherent power – Convening of an ex parte hearing to seek clarifications with respect to a request

r28-PT-2

o Situation in Uganda, No. ICC-02/04, Under Seal – Ex Parte - Decision to Hold a Hearing on the Request Under Rule 176 Made in Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 9 June 2005 (made public on 2 November 2005):85

NOTING that the Prosecutor's request is based on Rule 176, sub-rule 2, of the Rules of Procedure and Evidence; NOTING the substantive reasons submitted by the Prosecutor in support of his request; NOTING Regulation 28 of the Regulations of the Court, pursuant to which a Chamber may order participants to clarify or provide additional details on any document;

85

See also Situation in Uganda, No. ICC-02/04, Under Seal – Ex Parte - Decision to Hold a Hearing on the Protection of Victims and Witnesses in Connection with the Prosecutor’s Application for Warrants of Arrest and the Prosecutor’s Application Dated 13 June 2005 (PT), 17 June 2005 (made public on 23 March 2006); Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening an In Camera Meeting (PT), 16 March 2006 (made public on 21 March 2006); Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening a Ex Parte in Camera Hearing (PT), 7 September 2006.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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CONSIDERING that the Chamber deems it necessary to hear the Prosecutor on the request for transmission of warrants of arrest and requests for arrest and surrender, and the reasons supporting this request; FOR THESE REASONS; DECIDES to hold a hearing on the 16th day of June 2005 regarding the Prosecutor's request for the transmission of warrants of arrest and requests for arrest and surrender, in closed session to be attended only by the Prosecutor and his representatives;

APPEALS CHAMBER x

Regulation 28(1): Lack of reasons in support of grounds of appeal as provided in Regulation 64(2) – Order for further information – Timeframe for response by other parties

r28-A-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Appellant’s Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court (A), 30 May 2006, para. 10:

Renders the following

DECISION […] ii) The Appellant is directed under regulation 28 of the Regulations of the Court by 13 June 2006: a) To provide additional details of the reasons supporting his ground of appeal as set out at section 2.3 of the Appellant's Brief; b) To specify any procedural errors, errors of fact or errors of law relevant to his ground of appeal as set out at section 2.3 of the Appellant's Brief; and c) To address the procedural submissions of the Prosecutor, set out at paragraphs 7, 26 and 27 of the filing of the Prosecutor of 1 May 2006 (ICC-01/04-01/06-89) entitled "Prosecution Response to Thomas Lubanga Dyilo's Brief in Support of the Appeal". iii) The Prosecutor may respond within 10 days of notification of the document filed by the Appellant pursuant to this order. […] 10. The Appellant provides grounds in support of the appeal at section 2.3 of the Appellant's Brief (which is set out at paragraph 4 above). However, he does little by

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way of articulating the reasons in support of his grounds for appeal as provided in regulation 64(2) of the Regulations of the Court. It is for this reason that the Appeals Chamber has decided to act under regulation 28 of the Regulations of the Court in seeking additional details of the reasons supporting the grounds of appeal.

Regulation 29 – Non Compliance with these Regulations and with Orders of a Chamber 1. In the event of non-compliance by a participant with the provisions of any regulation, or with an order of a Chamber made thereunder, the Chamber may issue any order that is deemed necessary in the interests of justice. 2. This provision is without prejudice to the inherent powers of the Chamber.

APPEALS CHAMBER x

Regulation 29(1): Non compliance with time limit – Allowance of an additional short period of time to comply with previous orders

r29-A-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal (A), 3 July 2006, paras. 14-15:

Renders the following

DECISION […] ii) The Appellant is directed to comply with the Appeals Chamber's previous order pursuant to regulation 28 of the Regulations of the Court (ICC-01/04-01/06-129) within seven days of notification of this decision. […] 14. Noting that the Appellant has failed to respond appropriately to the previous order of the Appeals Chamber (Decision of 30 May 2006), in the circumstances of the present case, including the nature of the issues that arise for consideration for the first time, the Appeals Chamber considers it to be in the interests of justice to give the Appellant a further short period of time in which to comply with its previous order. 15. The Appeals Chamber therefore directs the Appellant as set out under the heading "Decision" above.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

x

565

Regulation 29(1): Non compliance with order to clarify submissions in appeal – Appeal deemed abandoned

r29-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / in the Alternative, Discontinuance of Appeal (A), 6 September 2006, paras. 13-14:

13. Pursuant to regulation 29 (1) of the Regulations of the Court, in the event of noncompliance by a participant with an order of a Chamber, the Chamber may issue any order that is deemed necessary in the interests of justice. The Appellant has failed to comply with the directions of the Appeals Chamber requiring him to define the appealable issues and clarify his submissions in support of them. In the instant case it is in the interests of justice to dismiss the appeal, because it is evident that the Appellant is disinclined to proceed with his appeal a fact evidenced by his present application and his previous one (see ICC-01/04-01/06-146-tEN). The Appellant's conduct leads to the irresistible conclusion that the Appellant has abandoned the appeal. 14. The Appeals Chamber therefore concludes that the appeal is deemed abandoned and as such the appeal is dismissed.

Regulation 30 – Status Conferences A Chamber may hold status conferences by way of hearings, including by way of audio- or video-link technology or by way of written submissions. The Chamber may require use of standard forms at a status conference as appropriate. Such standard forms shall be approved in accordance with regulation 23, sub-regulation 2.

PRE-TRIAL CHAMBERS x

Regulation 30: Decision to hold a status conference in relation to the security situation in Uganda and its impact on the protection of victims and witnesses – Closed session

r30-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision to Convene a Status Conference on Matters Related to Safety and Security in Uganda (PT), 25 November 2005, paras. 16-18:

16. NOTING regulation 30 and regulation 20, sub-regulation 2, of the Regulations of the Court; 17. NOTING that the provision of additional information on the current security situation in Uganda may entail the disclosure of sensitive information; and that in

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order to guarantee the safety and security of victims and witnesses such sensitive information should not be heard in public at this stage; FOR THESE REASONS; THE CHAMBER HEREBY: 18. DECIDES, pursuant to regulation 30 of the Regulations, to hold a status conference on the 7th day of December 2005 at 10 a.m. by way of a hearing in closed session, to be attended by the Prosecutor, the Registrar and the Victims and Witnesses Unit, to comprehensively assess the current safety and security situation in Uganda and determine its impact on the protection of victims and witnesses and other persons who might be at risk, including staff of the Court, and on any future decisions of the Chamber on the unsealing of documents of the record.

x

Regulation 30: Decision to hold a status conference in relation to the Prosecutor’s decision limiting the scope of investigation – Closed session

r30-PT-2

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

17. DECIDES, pursuant to regulation 30 of the Regulations, to convene a status conference by way of a hearing in closed session to be held on the 14th day of December 2005 at 10 a.m. to be attended by the Prosecutor with a view to considering the status of the investigation in the situation in Uganda in relation to the application of Article 53.

x

Regulation 30: Request for postponement of status conference – Ground: unavailability to attend (granted)

r30-PT-3

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision to Postpone the Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53 (PT), 9 December 2005, paras. 5-6:

5. NOTING the Prosecutor's request dated the 6th day of December 2005 for a postponement of the status conference scheduled by the Chamber for the 14th day of December 2005, on the grounds of a pre-existing commitment of the Prosecutor in connection with the Prosecutor's report to the United Nations Security Council on the situation in Darfur, Sudan; and of the need for the Prosecutor to personally attend the status conference;

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567

6. CONSIDERING the grounds in support of the Prosecutor's request for a postponement of the status conference to be proper and reasonable;

Subsection 2 – Distribution of Documents Regulation 31 – Notification 1. Subject to the Statute, Rules, these Regulations or any order of a Chamber, all participants in the relevant proceedings shall be notified of any document registered by the Registry or any decision or order, unless, with regard to a document, the participant submitting that document requests otherwise. All participants shall provide to the Registry an electronic, facsimile or postal contact address for notification of documents, preferably in The Hague. 2. Unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber, a participant is deemed notified, informed of or to have had communicated to him or her, a document, decision or order on the day it is effectively sent from the Court by the Registry. Such date shall be written on the notification form to be appended to all copies of the document, decision or order, as relevant. If the document, decision or order is not received, a participant may raise the issue and, as appropriate, may ask for a variation of the time limit in accordance with regulation 35. The Registrar shall retain and, if required, produce proof that the document, decision or order was effectively sent. 3. The relevant person shall be notified by way of personal service of the following documents: (a) Warrants of arrest; (b) Summonses to appear; (c) Documents containing the charges; and (d) Such other documents, decisions or orders ordered by the Chamber to be notified by way of personal service. 4. Notification by way of personal service may be proved in the following manner: (a) By confirmation in writing on the prescribed form by the person serving the document that notification by way of personal service has been effected; and (b) By a signed acknowledgement of notification by way of personal service on the prescribed form by the relevant person. Where the relevant person declines or is unable to sign an acknowledgement of notification by way of personal service, the confirmation in (a) above shall be proof of such notification. 5. In respect of oral decisions or orders, notification shall be deemed effective on the day the decision or order is rendered orally by the Chamber unless: (a) A participant was not present or represented when the decision or order was pronounced, in which case that participant shall be notified of the oral decision or order in accordance with sub-regulation 2; or (b) The Chamber has indicated that a written decision or order will follow, in which case participants shall be notified of the written decision or order in accordance with sub-regulation 2.

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PRE-TRIAL CHAMBERS x

Regulation 31(2): Notification – Unavailability of the notification system provided for in the Regulations - Provisional dispositions

r31-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Décision sur la demande de prorogation de délai (Decision on the Request for an Extension of the Deadline) (PT), 12 July 2005:

ATTENDU que, selon le Greffe, en se référant à la disposition 2 de la norme 31 du Règlement de la Cour, CONFIDENTIEL a été notifié de l'Ordonnance le 9 juin 2005, à savoir le jour de son envoi effectif par la Cour ; que selon lui, la date de dépôt d'un document à la Cour est la date de sa réception par la Cour et non celle de son envoi par le participant ; que par conséquent, la Réponse CONFIDENTIEL aurait dû être déposée 10 jours à compter du 9 juin 2005, à savoir le 20 juin 2005, ATTENDU que les normes 31 et 33 du Règlement de la Cour ont été élaborées sur la base d'un système électronique permettant l'envoi par la Cour ainsi que le dépôt par la personne concernée de tout document public ou confidentiel par voie électronique ; qu'en l'état, le système sécurisé de transmission par voie électronique n'est pas en place et que par conséquent, le système n'est pas applicable aux documents confidentiels, ATTENDU que la méthode actuelle applicable aux documents confidentiels prévoit, jusqu'à nouvel ordre, la transmission des documents par recommandé avec accusé de réception ou par service DHL ; que cette méthode, est d'application provisoire dans l'attente de la mise en place du système sécurisé, ATTENDU que le système prévu à la norme 31 du Règlement de la Cour prévoyant qu'un participant est réputé avoir reçu notification d'un document le jour où le Greffe l'expédie effectivement de la Cour est difficilement applicable s'agissant des documents confidentiels en l'absence du système électronique prévu; ATTENDU en effet qu'en l'état, l'application stricte des normes 31 et 33 du Règlement de la Cour sans la mise en place du système sur lequel elle repose conduit à défavoriser la personne concernée, laquelle se voit inévitablement et injustement inclure le temps de transmission par courrier du document confidentiel dans le calcul du délai applicable, ATTENDU dans ce contexte que, dans l'attente de la mise en place effective d'un système sécurisé de transmission des documents, il convient de considérer, s'agissant des documents confidentiels : 1) qu'un participant est réputé avoir reçu notification d'un document, d'une décision ou d'une ordonnance confidentiels le jour où celui-ci est effectivement reçu par courrier par ledit participant ; 2) que le jour du dépôt par un participant d'un document confidentiel est entendu comme le jour de l'envoi dudit document par courrier, le cachet de la poste faisant foi, ATTENDU que la Réponse est un document confidentiel ; qu'elle a été effectivement reçue par courrier le 10 juin 2005 CONFIDENTIEL ; que la Réponse

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a été déposée à la Cour le 21 juin 2005 ; qu'en l'occurrence, compte tenu du système provisoire précédemment décrit par la Chambre s'agissant des documents confidentiels, la Réponse devait être envoyée au plus tard à la Cour le 21 juin 2005,

——— Official Translation ——— CONSIDERING that, according to the Registry, referring to regulation 31(2) of the Regulations of the Court, [REDACTED] was notified of the Order on 9 June 2005, the day it was effectively sent by the Court; that, according to the Registry, the date of filing of a document with the Court is the date on which it is received by the Court and not the date on which it is sent by the participant; that consequently the Response of [REDACTED] should have been filed within ten days of 9 June 2005, that is, on 20 June 2005; CONSIDERING that regulations 31 and 33 of the Regulations of the Court were drafted on the basis that an electronic system would make it possible for the Court to send, and for the person concerned to file, any public or confidential document electronically, and that the secure electronic transmission system is not yet in place and consequently not available for confidential documents; CONSIDERING that at present and until further notice the method applicable to confidential documents is to transmit them by recorded delivery with acknowledgement of receipt or by DHL and that this method is provisionally applicable pending the establishment of a secure system; CONSIDERING that the system provided for by regulation 31 of the Regulations of the Court, according to which a participant is deemed notified of a document on the day it is effectively sent from the Court by the Registry, is difficult to apply to confidential documents in the absence of the planned electronic system; CONSIDERING that in the present circumstances the strict application regulations 31 and 33 of the Regulations of the Court without the establishment the system on which they are based penalises the person concerned, the time transmission by post being unavoidably and unfairly included in the calculation the applicable deadline;

of of of of

CONSIDERING that in this context, pending the effective implementation of a secure system for the transmission of documents, it should be considered that, with respect to confidential documents: 1) a participant is deemed notified of a confidential document, decision or order on the day it is effectively received by post by the said participant; 2) the date of filing by a participant of a confidential document is understood to be the day the said document is sent, the postmark being authoritative; CONSIDERING that the Response is a confidential document; that it was effectively received by post on 10 June 2005 by [REDACTED]; that the Response was filed with the Court on 21 June 2005; that in this case, taking into account the provisional system for confidential documents described above by the Chamber, the Response was to be sent to the Court by 21 June 2005 at the latest;

570

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x

Regulation 31(4): Notification – Proof of notification – Notified person’s duty to double-check the content of notified documents

r31-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing) (PT), 22 September 2006:

ATTENDU qu'il apparaît que le conseil de la Défense a signé le formulaire de notification des demandes de participation ; que même à supposer qu'il n'ait pas reçu l'intégralité des demandes de participation, il lui incombait toutefois de vérifier le contenu des envois émanant du Greffe avant de signer le formulaire ; que néanmoins la Chambre, attentive à l'exercice effectif des droits de la Défense, considère que le conseil de la Défense doit recevoir copie des demandes de participation de toutes les victimes concernées, […] ORDONNE au Greffier de faire parvenir au conseil de la Défense une copie expurgée du formulaire de notification et de l'intégralité des demandes de participation qui devaient y être jointes,

——— Official Translation ——— CONSIDERING that it appears that Counsel for the Defence has signed the notification form pertaining to the applications for participation ; that even assuming that he had not received all the applications for participation, it was, however, incumbent on him to verify the contents of what the Registry had sent before signing the form; that nevertheless, as the Chamber is mindful of the effective exercise of the rights of the Defence, it considers that the latter must receive a copy of the applications for participation of all the relevant victims; [...] ORDERS the Registrar to provide the Counsel for the Defence with a redacted copy of the notification form and all the applications for participation which must be attached thereto;

Regulation 32 – Recipients of Documents , Decisions and Orders Notified by the Court 1. A State shall be deemed notified when the official representative designated for proceedings before the Court has been notified of a document, decision or order. If a State does not designate such a representative, the State shall be deemed notified of the document, decision or order when it has been notified through the channel designated by that State in accordance with article 87.

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2. Intergovernmental organisations and other organisations and institutions shall be deemed notified when the designated representative identified by the Registrar or the appropriate channel referred to in rule 177 has been notified of a document, decision or order. 3. A participant represented by counsel shall be deemed notified when his or her counsel has been notified of a document, decision or order at the electronic, facsimile or postal address which that counsel has indicated to the Registry in accordance with regulation 31, sub-regulation 1, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber. 4. A person who is not represented by counsel shall be deemed notified when that person or the person, organisation or institution designated by that person has been notified of a document, decision or order. 5. The Prosecutor shall be deemed notified when the Office of the Prosecutor has been notified of a document, decision or order, unless it is explicitly specified that the Prosecutor shall be notified of the document, decision or order in person.

Subsection 3 – Time and Page Limits Regulation 33 – Calculation of Time Limits 1. The calculation of time for the purposes of any proceedings before the Court shall be made as follows: (a) Days shall be understood as calendar days. When the last day of a time period falls upon a Saturday, a Sunday or an official holiday of the Court, the next working day of the Court shall be considered the last day; (b) Days shall only be understood as “full days”, the day of notification of a document or the day of filing of a response or a reply by a participant to that document not being taken into consideration for the calculation of the time period available to file a document. 2. Documents shall be filed with the Registry between 9am and 4pm The Hague time or the time of such other place as designated by the Registrar.

PRE-TRIAL CHAMBERS x

Regulation 33: “Any proceedings” - Regulations on the calculation of time-limits apply to all time-limits before the Court – Time-limit for filing application for leave to appeal

R33-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Prosecution’s Response to Thomas Lubanga Dyilo’s 21 September 2006 Request for Leave to Appeal (PT), 25 September 2006:

CONSIDERING that the chapeau of regulation 33 (1) of the Regulations refers to "the calculation of time for the purposes of any proceedings before the Court"; that the way in which paragraph (1) (a) of regulation 33 of the Regulations is drafted

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CYRIL LAUCCI

indicates that it applies to all time-limits in any proceedings before the Court; that the expression "days shall only be understood as 'full days'" in paragraph (1) (b) of the Regulations applies to all time-limits in any proceedings before the Court; and that paragraph (2) of regulation 33 of the Regulations of the Court applies to all time-limits in any proceedings before the Court; CONSIDERING that the object and purpose of regulation 33 of the Regulations is to establish a clear system to calculate all time-limits in any proceedings before the Court; and that would be contrary to the said object and purpose to interpret the second part of paragraph 33 (1) (b) of regulation 33 of the Regulations as establishing two different sytems for calculating the time-limits in any proceedings before the Court, one for responses and replies stricto sensu and another for any other time-limit in any proceedings before the Court; CONSIDERING therefore that, in the view of the single judge, the submission of the Prosecution that the day of filing should not be taken into consideration only in relation to responses and replies stricto sensu is (i) only supported by a restrictive approach to the literal interpretation of the second part of paragraph (2) of regulation 33 of the Regulations, and (ii) contrary to both its systematic interpretaton in light of the rest of regulation 33 of the Regulations and the teleological interpretation of regulation 33 of the Regulations;

x

Regulation 33(1) (b): Time limit for filing response - Days of notification or day of filing of response are not taken into account

r33-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006, para. 9:

9. La Chambre constate que la notification de la Requête du Procureur a été effectuée le 23 janvier 2006. Aux termes de la norme 65-3 du Règlement de la Cour, le représentant légal des victimes disposait de trois jours pour déposer sa réponse. La norme 33-1-b du Règlement de la Cour établissant clairement que le jour de notification du document ou le jour de dépôt d'une réponse ne sont pas à prendre en compte dans le calcul du délai imparti pour déposer un document, le représentant légal des victimes pouvait donc déposer ses Observations jusqu'au 27 janvier 2006 à 16 heures. Le représentant légal des victimes a donc déposé sa réponse dans le délai légal.

——— Official Translation ———

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9. The Chamber takes note of the notification of the Prosecutor’s Application on 23 January 2006. Under regulation 65 (3) of the Regulations of the Court, the Legal Representative for the Victims had three days to file his response. As regulation 33 (1) (b) of the Regulations of the Court clearly states that neither the day of notification of a document nor the day of filing of a response are taken into consideration for the calculation of the time period available to file a document, the Legal Representative for the Victims had until 16:00 hours on 27 January 2006 to file his observations. Accordingly, the Legal Representative for the Victims filed his response within the legal time limit.

Regulation 34 – Time Limits for Documents Filed with the Court Unless otherwise provided in the Statute, Rules or these Regulations, or unless otherwise ordered: (a) A Chamber may fix time limits for the submission of the initial document to be filed by a participant; (b) A response referred to in regulation 24 shall be filed within 21 days of notification in accordance with regulation 31 of the document to which the participant is responding; (c) Subject to leave being granted by a Chamber in accordance with regulation 24, sub-regulation 5, a reply shall be filed within ten days of notification in accordance with regulation 31 of the response.

PRE-TRIAL CHAMBERS x

Regulation 34: “Unless otherwise ordered” – Power of the Chamber to fix a different time limit

r34-PT-1

86

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing a Time Limit for the Prosecutor’s Response to the Request of the Defence for Unrestricted Access to the Entire Record of the Situation in the Democratic Republic of the Congo (PT), 19 April 2006:86

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Establishing a Deadline for the Response of the Prosecution (PT), 4 July 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Giving the Prosecution a Deadline to Respond to the Conclusions de la Défense quant aux divulgations de documents expurgés faites par le Procureur (PT), 27 July 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request to File a Reply to the Prosecution’s Response to the “Conclusions de la Défense quant aux divulgations de documents expurgées par le Procureur” (PT), 2 August 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-

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CONSIDERING that according to the chapeau of regulation 34 of the Regulations, a time limit other than the 21 days provided for in paragraph (b) of this regulation may be fixed by the single judge; CONSIDERING that according to article 67 (1) of the Statute, the Request should be ruled upon as soon as practicable; FOR THESE REASONS DECIDES to give the prosecution until 16.00 hours on Wednesday 25 April 2006 to file its response to the Request.

APPEALS CHAMBER x

Regulation 34: “Unless otherwise ordered” – Inquiry of the Appeals Chamber on the Parties’ views on the reduction of time limit

r34-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Appeals Chamber’s Request and Directions (A), 13 October 2006, paras.1-2:

1. The Appeals Chamber wishes to elicit the views of the parties, the Prosecutor and the Defence, as to amenity on their part to submit the document in support of the appeal and the document in response thereto within a period of less than 21 days. Such views are solicited as a prelude to examining whether it is appropriate to abridge the time intervals stipulated for in the Regulations of the Court (regulation 64 (2) and (3) and regulation 34). Answer to the question must be made by 17 October 2006, 4pm.

01/04-01/06, Decision Establishing a Time Limit for the Prosecution and the Victims to Submit their Responses to the Request for Leave to Appeal by the Defence (PT), 8 August 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision autorisant le Procureur et la Défense à déposer une réponse aux observations des représentants légaux des victimes concernant les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision Authorising the Prosecutor and the Defence to Respond to the Observations of the Legal Representatives of the Victims regarding the Manner in which Victims a/0001/06, a/0002/06 and a/0003/06 are to Participate in the Confirmation Proceedings) (PT), 10 August 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence’s Request to File a Reply (PT), 28 August 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC01/04-01/06, Decision Establishing a Deadline in Relation to the Defence Request for the Interim Release of Thomas Lubanga Dyilo, 22 September 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC01/04-01/06, Decision Establishing a Deadline (PT), 30 October 2006; Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Corrigendum to Decision Establishing a Deadline (PT), 31 October 2006.

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2. An inquiry into the matter is deemed necessary in light of the need to expedite proceedings on the one hand and the need to hear the observations of the referring State and victims on the other.

x

Regulation 34: “Unless otherwise ordered” – Inquiry of the Appeals Chamber on the Parties’ views on the reduction of time limit - Appeals Chamber’s compliance with the views of the Parties (no reduction)

r34-A-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Appeals Chamber’s Clarification (A), 19 October 2006, paras.1-2:

1. Having duly noted the responses of the parties, the Prosecutor (ICC-01/04-01/06576) and the Defence (ICC-01/04-01/06-579), respecting amenity on their part to submit their respective briefs (document in support of the appeal, document in response to the appeal) within a period of time shorter than the one provided for by the Regulations of the Court, no order shall be made abridging the time stipulated for by the Regulations of the Court for the submission of the aforesaid documents. 2. The Appeals Chamber welcomes the commitment of the Prosecutor and the Defence to submit, if at all possible, the respective documents within a period shorter than the one envisaged by the Regulations of the Court in the interest of expediting the proceedings.

x

Regulation 34: “Unless otherwise ordered” – Power of the Appeals Chamber to fix a different time limit (without prior consultation)

r34-A-3

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Appeals Chamber’s Directions (AC), 13 November 2006, p. 2:

1. The Prosecutor seeks, by an application dated 13 November 2006 (ICC-01/0401/06-696), the extension of the page limit envisaged by regulation 37 (1) of the Regulations of the Court for the submission of the document in response to the document of the Defence. 2. Directions are hereby given that the Defence may respond thereto by Thursday 16 November 2006, 11am.

Regulation 35 – Variation of Time Limit 1. Applications to extend or reduce any time limit as prescribed in these Regulations or as ordered by the Chamber shall be made in writing or orally to the Chamber seized of the matter setting out the grounds on which the variation is sought.

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2. The Chamber may extend or reduce a time limit if good cause is shown and, where appropriate, after having given the participants an opportunity to be heard. After the lapse of a time limit, an extension of time may only be granted if the participant seeking the extension can demonstrate that he or she was unable to file the application within the time limit for reasons outside his or her control.

PRE-TRIAL CHAMBERS x

Regulation 35: Variations of time limit under Regulation 35 only apply to time limits prescribed by the Regulations or ordered by a Chamber

r35-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, No. ICC-01/04-01/05, Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005 (Unsealed on 13 October 2005):

NOTING that, as acknowledged in the Prosecutor's motion, the variation of timelimits under regulation 35 of the Regulations applies only in respect of time limits prescribed in the Regulations or ordered by a Chamber;

x

Regulation 35(2): Extension of time – Case-by-case approach

r35-PT-2

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Requests of the Defence of 3 and 4 July 2006 (PT), 4 August 2006, p.7:

CONSIDERING that the case-by-case approach by the Chamber to allow a variation in the time limits is fully consistent with the rights of Thomas Lubanga Dyilo;

x

Regulation 35(2): Extension of time – Good cause: unavailability of relevant documents in the working language of Defence counsel (Granted)

r35-PT-3

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

VU la « Requête aux fins de prorogation du délai de réponse », versée au dossier de la situation en RDC le 13 juin 2006, dans laquelle le conseil ad hoc de la Défense soutient qu'il « lui est impossible d'apprécier au fond les observations de l'Accusation ni de les aborder dans la réponse à la demande des victimes » car il ne

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parle pas l'anglais(6) et qu'il « est nécessaire que le conseil traite des arguments avancés tant par les victimes que par l'Accusation(7) », et demande en conséquence à la Chambre de « i) modifier le délai fixé dans la décision rendue le 18 mai 2006 afin qu'il commence à courir à partir de la date à laquelle le conseil de la Défense reçoit les observations de l'Accusation dans sa langue de travail, et ii) d'ordonner que tous les délais à venir qui concernent la demande visée commencent à courir à partir de la date à laquelle le conseil de la Défense reçoit les documents pertinents dans sa langue de travail(8) », VU les articles 50 et 68 du Statut de Rome et les normes 34 et 35 du Règlement de la Cour, ATTENDU qu'aux termes de la norme 35-2 du Règlement de la Cour, la Chambre n'accède à une demande de prorogation de délai qu'à la condition qu'un motif valable soit présenté, ATTENDU que la langue de travail du conseil ad hoc de la Défense est le français, ATTENDU que les intérêts généraux de la Défense doivent être protégés de manière effective au stade de l'enquête sur une situation, PAR CES MOTIFS, DÉCIDE, pour ce qui est du dépôt de ses observations concernant les Demandes de participation, d'accorder au conseil ad hoc de la Défense un délai de huit jours à compter de la date de notification de la présente décision, ORDONNE au Greffier, de prendre les mesures nécessaires pour fournir au conseil ad hoc de la Défense une traduction en langue française de tout document déposé en langue anglaise dans le cadre de la procédure relative aux Demandes de participation n° a/0001/06 à a/0003/06, les délais de dépôt d'observations sur ce document ne commençant à courir pour le conseil ad hoc de la Défense qu'à partir de la notification dudit document en langue française. ————————— (6) ICC-01/04-155, p. 2. (7) Ibid. (8) Ibid., p. 4 et 5.

——— Official Translation Not Available ——— x

Regulation 35(2): Extension of time – Good cause: delay in the communication of documents (granted)

r35-PT-4

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative aux requêtes de la Défense et de l’Accusation concernant la prorogation de délai (Decision on the Defence and Prosecution Applications for Extension of Deadline) (PT), 16 août

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2006:87 ATTENDU que, bien que la Décision ait été rendue le 4 août 2006, la Défense n'a reçu les versions expurgées des quarante-trois demandes de participation que le 9 août 2006, et l'Accusation n'a reçu les quarante-trois demandes de participation que le 8 août 2006, réduisant ainsi le délai pour la présentation de leurs observations, […] DECIDE de faire droit aux demandes de prorogation de délai et autorise la Défense et l'Accusation à présenter leurs observations sur les demandes de participation des requérants a/0004/06 à a/0009/06, a/0016/06 à a/0046/06 et a/0047/06 à a/0052/06 le vendredi 25 août 2006 à 16 heures au plus tard.

——— Official Translation ——— CONSIDERING that, although the Decision was rendered on 4 August 2006, the Defence received the redacted versions of the forty-three applications for participation only on 9 August 2006, and the Prosecution received the forty-three applications for participation only on 8 August 2006, thus reducing the deadline for submitting their observations; […] GRANT the applications for extension of deadline and authorise the Defence and the Prosecution to submit their observations on the applications for participation of applicants a/0004/06 to a/0009/06, a/0016/06 to a/0046/06 and a/0047/06 to a/0052/06 on Friday 25 August 2006 at 1600 hours at the latest.

x

Regulation 35(2): Extension of time – Good cause: amount of documents to deal with (granted)

r35-PT-5

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Prosecution’s Application for Extension of Time (PT), 22 September 2006:

NOTING the "Request for Extension of Time" ('the Prosecution Request"), (2) filed by the Prosecution on 22 September 2006, in which the Prosecution: (i) requests an extension of time until 29 September 2006 at 10h00; and (ii) informs the single judge that the Prosecution will file a "significant number" of proposed summaries on 25 September 2006 ; NOTING regulation 35 of the Regulations of the Court ("the Regulations");

87

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative à la demande d’extension de délai du 5 octobre 2006 (Decision on the Application for Extension of Time Limit of 5 October 2006) (PT), 6 October 2006.

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579

CONSIDERING the considerable amount of material covered by the First Decision and the many matters currently being litigated in the proceedings of the case against Thomas Lubanga Dyilo; CONSIDERING that, as required by Regulation 35 (2) of the Regulations, the Prosecution Request has shown good cause; ————————— (2) ICC-01/04-01/06-458.

x

Regulation 35(2): Extension of time – Good cause: recent appointment (granted)

r35-PT-6

o Situation in the Darfur, Sudan, No. ICC-02/05, Decision on the Request for an Extension of Time (PT), 21 September 2006:

NOTING the "Observations on issues concerning the protection of victims and the preservation of evidence in the proceedings on Darfur pending before the ICC" filed by Professor Antonio Cassese and registered in the Darfur situation record on 1 September 2006(5); NOTING the "Prestations de serment par Maître Hadi Shalluf filed by the Registrar on 8 September 2006(6); NOTING the "Request for Extension of Time" of Mr Hadi Shalluf, ad hoc Counsel for the Defence filed on 14 September 2006(7); NOTING rule 103 of the Rules of Procedure and Evidence and regulations 34 and 35 of the Regulations of the Court (the Regulations"); CONSIDERING that pursuant to regulation 35 of the Regulations, the Chamber may extend a time limit if good cause is shown; CONSIDERING that good cause has been shown in the present Request; FOR THESE REASONS DECIDES to grant an extension of 21 days to the ad hoc Counsel for the Defense subsequent to the receipt of notification of the observations of Louise Arbour, United Nations High Commissioner for Human Rights. ————————— (5) ICC-02/05-14. (6) ICC-02/05-15. (7) ICC-02/05-17.

x

Regulation 35(2): Extension of time – Good cause: length of documents and staff on leave (denied)

r35-PT-7

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision on the Prosecutor’s Application for Extension of the Deadline (PT), 12 August 2005:

CONSIDERING that, as a general principle, rule 101, paragraph 2 of the Rules requires that "all those participating in the proceedings to whom any order is

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directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court"; and that an exception should only be made to this general principle upon good cause being shown in accordance with regulation 35, paragraph 2 of the Regulations; CONSIDERING that, in the case at hand, the length of the report of the Netherlands Forensic Institute and the fact that the Prosecution's Forensic Coordinator is on annual leave outside the country(3) do not suffice to show good cause for an extension of the 15-day deadline provided for in the Decision; FOR THESE REASONS, DECIDES to reject the request made in the Prosecution's Application. ————————— (3) See the Prosecution's Application, paragraph 7.

x

Regulation 35(2): Extension of time – Extension of time requested by an expert to finalize answers on his report (granted)

r35-PT-8

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Decision Authorising Time Extension Request for Final Clarifications from the NFI (PT), 5 April 2006:

NOTING the time extension request(2) filed on 28 March 2006 by the NFI, by which the NFI requests to postpone the previous deadline to the 22 April 2006; CONSIDERING that it is necessary for the NFI in the completion of its final report to answer and clarify all the inquiries of the Prosecution and the ad hoc Counsel for the Defence; FOR THESE REASONS GRANTS the NFI the requested time extension; ————————— (3) ICC-01/04-132.

x

Regulation 35(2): Extension of time – Extension of time requested by an expert – Good cause: complexity (granted)

r35-PT-9

o Situation in the Darfur, Sudan, No. ICC-02/05, Decision on Request for Extension of Time Limit (PT), 28 August 2006:

NOTING the "Application on behalf of the United Nations High Commissioner for Human Rights for Variation of Time, Pursuant to Regulation 35, in respect of a Decision of Pre-Trial Chamber I Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence"(2) ("the Request"), by which an extension of 30 days is requested as (i) the personal attention of the High Commissioner is required; and (ii) the complexity of the issues raised by the Chamber require "indepth consultation with other relevant components of the UN system";

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

581

NOTING rule 103 of the Rules of Procedure and Evidence and regulations 34 (a) and 35 of the Regulations of the Court ("the Regulations"); CONSIDERING that, pursuant to regulation 35 of the Regulation, the Chamber may extend a time limit if good cause is shown; CONSIDERING that good cause has been shown by the Request; […] FOR THESE REASONS DECIDES to grant an additional 30 days to Louise Arbour, High Commissioner of the UNHCHR […]. ————————— (2) ICC-02/05-11.

x

Regulation 35(2): Extension of time – Extension of time granted without prior request

r35-PT-10

o Situation in the Darfur, Sudan, No. ICC-02/05, Decision on Request for Extension of Time Limit (PT), 28 August 2006:

NOTING the "Application on behalf of the United Nations High Commissioner for Human Rights for Variation of Time, Pursuant to Regulation 35, in respect of a Decision of Pre-Trial Chamber I Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence"(2) ("the Request"), by which an extension of 30 days is requested as (i) the personal attention of the High Commissioner is required; and (ii) the complexity of the issues raised by the Chamber require "indepth consultation with other relevant components of the UN system"; […] CONSIDERING that it would be appropriate to also extend the time limit for the submission of observations to the Chairperson of the International Commission of Inquiry on Darfur; FOR THESE REASONS DECIDES to grant an additional 30 days […] as well as Antonio Cassese, Chairperson of the International Commission of Inquiry on Darfur, Sudan to submit theirs observations. ————————— (2) ICC-02/05-11.

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APPEALS CHAMBER x

Regulation 35(1): Application for variation of time limit – Form of the application – Distinction between applications and suggestions to vary time limit – Request to reduce the respondent’s time limit rejected on the ground that the appellant has used the entire time limit afforded to him

r35-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, paras. 8-9:

8. The Appeals Chamber notes that in paragraph 60 of the Document in Support of the Appeal, the appellant requested the Appeals Chamber to "request the Prosecution to consider submitting its response [to the Document in Support of the Appeal] on an expedited basis in order to facilitate the resolution of this issue prior to the confirmation hearing". 9. The Appeals Chamber did not consider the above request as an application for a variation of the time limit pursuant to regulation 35 of the Regulations of the Court but as a mere suggestion to the Appeals Chamber. The Appeals Chamber did not deem it appropriate to act upon this suggestion because the appellant himself had made use of the entire time afforded to him by regulation 65 (4) of the Regulations of the Court for the submission of his Document in Support of the Appeal.

x

Regulation 35(1): Application for extension of time limit – Authorisation to respond applications for extension of time limit

r35-A-2

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Order Concerning the Filing of a Response by the Prosecutor Response to the Defence Application for an Extension of the Time Limit for the Filing of the Response to the Document in Support of the Appeal (A), 4 July 2006:

The Prosecutor may respond to the Defence application for an extension of the time limit within five days of notification of this order.

x

Regulation 35(2): Extension of time – Lack of valid cause for extending time for filing additional grounds of appeal

r35-A-3

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Appellant’s

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

583

Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court (A), 30 May 2006, paras. 7-9 and Sep. Op. by Judge Pikis, paras. 7-9: 7. To justify an extension of time for the filing of any document "good cause" must be shown as laid down in regulation 35 (2) of the Regulations of the Court. In this case, good cause is correlated to the facts relevant to the presentation and articulation of the grounds in support of the appeal. 8. 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. 9. No valid cause has been shown for extending the time for the filing of what may be described as supplementary grounds for appeal. Separate Opinion by Judge Georghios M. Pikis 7. To justify an extension of time for the filing of any document "good cause" must be shown as laid down in regulation 35 (2) of the Regulations of the Court. Good cause should be founded on the facts relevant to or interwoven with the presentation and articulation of the grounds and reasons in support of the appeal. 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. 8. The appellant does not explain in what way the undisclosed material might throw light on the issues under appeal or aid in their presentation. 9. The redacted decision of the Pre-Trial Chamber will be the only decision to which reference may be made on appeal in examining the issues raised therein. So, the appellant is well aware of the subject-matter of the appeal, the decision, and cognisant of the facts leading to its issuance. Had he alluded to a fact or facts that might have had a bearing on the decision of the Pre-Trial Chamber but that were not disclosed and not made available to him, another complexion would be cast on the matter. As it is, the appellant is in possession of the decision under appeal and all the material leading to it. That being the case, the application is doomed to failure, whichever way it might be made.

x

Regulation 35(2): Extension of time – Good cause: impugned decision notified outside working hours on a Friday evening while there was no urgency (granted)

r35-A-4

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

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No. ICC-01/04-01/06, Decision on the “Prosecutor’s Motion for Extensions of the Time and Page Limits” (A), 3 July 2006, para. 5: i) The time limit for the filing of the Prosecutor’s document in support of the appeal is extended to Thursday, 6 July 2006. 5. Pursuant to regulation 35(2), first sentence, of the Regulations of the Court, a Chamber may extend a time limit if good cause is shown. In the circumstances of the present case, the Prosecutor has shown good cause, because the decision of PreTrial 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 of Pre-Trial Chamber I until Monday, 26 June 2006, when a significant part of the time limit for the filing of his document in support of the appeal had already elapsed.

x

Regulation 35(2): Extension of time – Good cause: preparation of the confirmation hearing and other pending work in the case (Granted)

r35-A-5

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Application by Counsel for Thomas Lubanga Dyilo to Extend the Time Limit for the Filing of the Response to the Prosecutor’s Document in Support of the Appeal (A), 11 July 2006, paras. 4-5:

The time limit for the filing of the response by Mr. Thomas Lubanga Dyilo to the Prosecutor’s document in support of the appeal is extended by five days. […] 4. Pursuant to regulation 35(2), first sentence, of the Regulations of the Court, a Chamber may extend a time limit if good cause is shown. In the circumstances of the present case, Counsel for Mr. Dyilo has shown good cause for the reason that he has argued convincingly that due to the preparation of the confirmation hearing in respect of Mr. Thomas Lubanga Dyilo, which may include an investigation in the Democratic Republic of the Congo, and other pending work in this case, Counsel for Mr. Dyilo is incapable of filing a potentially complex response to the Prosecutor’s document in support of the appeal within the time limit of ten days provided for in regulation 65(5) of the Regulations of the Court. 5. It is appropriate to grant an extension of five days, the minimum extension sought by Counsel for Mr. Dyilo. The Appeals Chamber is aware that the Prosecutor has requested an expedited determination of the appeal. Indeed, the Appeals Chamber will decide the matter without any undue delay. Nevertheless, the important and complex issues at stake necessitate proper preparation by Counsel for Mr. Dyilo of the response to the Prosecutor’s document in support of the appeal; in light of this, an extension of five days is not excessive.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

x

585

Regulation 35(2): Extension of time – Good cause: severe functional problems for the formatting of documents (Granted)

r35-A-6

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Request of Mr. Thomas Lubanga Dyilo for an Extension of Time (A), 12 October 2006, paras. 2-5:

2. On 9 October 2006, Mr. Thomas Lubanga Dyilo filed before the Appeals Chamber a "Request for an Extension of Time" (ICC-01/04-01/06-533; hereinafter: "Request"), in which he sought an extension of the time limit for the filing of his document in support of the appeal to no later than 10 a.m. on 10 October 2006. He submitted that it was impossible for him to submit the document in support of the appeal within the time limit because he had encountered severe functional problems for the formatting of the document in support of the appeal that could not be solved within the time limit and that he had contacted the Court's IT section to solve the problems (see paragraphs 3 to 7 of the Request). 3. At 10 a.m. on 10 October 20006, Mr. Thomas Lubanga Dyilo filed the "Defence Appeal Brief in Relation to First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81" (ICC-01/04-01/06-546, hereinafter: "Document in Support of the Appeal"). 4. On 10 October 2006, the Prosecutor filed the "Prosecution Response to Application for Time" (ICC-01/04-01/06-547), in which he stated that he did not oppose the extension of time sought by Mr. Thomas Lubanga Dyilo. 5. The time limit for the filing of the document in support of the appeal, in the present case, can be extended as requested by Mr. Thomas Lubanga Dyilo, because he has shown "good cause", as is required under regulation 35 (2), first sentence, of the Regulations of the Court. In light of the technical problems he had encountered, it was not possible for him to submit the document in support of the appeal in time. Furthermore, he has sought only a short extension of the time limit. As the time limit is extended, the filing of the Document in Support of the Appeal can be accepted.

Regulation 36 – Format of Documents and Calculation of Page Limits 1. Headings, footnotes and quotations shall be counted in calculating the page limits. 2. The following shall not be counted in calculating the page limits: (a) Any addendum containing verbatim quotations of the Statute, Rules or these Regulations; (b) Any appendix containing references, authorities, copies from the record, exhibits and other relevant, non-argumentative material. An appendix shall not contain submissions. 3. Before the Registry notifies in accordance with regulation 31, sub-regulation 1, the participant shall, within the applicable time limit, file an index for approval by the Registrar that shall include relevant internet links and the proposed length of the

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appendix. If necessary, the participant may seek a ruling on the contents of an appendix from the Chamber. Any appendix shall be filed immediately upon approval of the index by the Registrar or following the ruling of the Chamber. 4. All documents shall be submitted on A4 format. Margins shall be at least 2.5 centimetres on all four sides. All documents that are filed shall be paginated, including the cover sheet. The typeface of all documents shall be 12 point with 1.5 line spacing for the text and 10 point with single spacing for footnotes. An average page shall not exceed 300 words.

PRE-TRIAL CHAMBERS x

Regulation 36(4): Failure to comply with page limitations – Irregularities limited to the presentation of documents – Documents nevertheless admitted by the Chamber

r36-PT-1

o Situation en République Démocratique du Congo, No. ICC-01/04, Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 mars 2006, para. 10 :88

10. La Chambre note également que les Observations du représentant légal des victimes ne remplissent pas les exigences de format énoncées à la norme 36-4 du Règlement de la Cour. Dans la mesure où ces irrégularités ne concernent que la présentation du document, la Chambre prendra tout de même en considération les Observations du représentant légal des victimes. Néanmoins, la Chambre rappelle aux participants qu'ils doivent satisfaire aux exigences de format des documents telles qu'elles figurent dans le Règlement de la Cour, en particulier à sa norme 36.

——— Official Translation ——— 10. The Chamber also notes that the Observations of the Legal Representative for the Victims do not comply with the formatting requirements laid out in regulation 36 (4) of the Regulations of the Court. Given that these irregularities affect only the presentation of the document, the Chamber will nonetheless take into consideration the Observations of the Legal Representative for the Victims. It would, however, remind the participants that they must comply with the document formatting requirements set out in the Regulations of the Court, in particular regulation 36.

88

See also Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la Requête de la Défense sollicitant l’autorisation de déposer une réplique (Decision on the Defence motion seeking leave to file a reply) (PT), 29 June 2006.

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

587

Regulation 37 – Page Limits for Documents Filed with the Registry 1. A document filed with the Registry shall not exceed 20 pages, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber. 2. The Chamber may, at the request of a participant, extend the page limit in exceptional circumstances.

PRE-TRIAL CHAMBERS x

Regulation 37(1): Formatting of documents filed with the Registry – Reminder to the Defence of the obligation to comply with page limits

r37-PT-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision sur la Requête de la Défense sollicitant l’autorisation de déposer une réplique (Decision on the Defence motion seeking leave to file a reply) (PT), 29 June 2006:

ATTENDU par ailleurs que les normes 36 et 37 du Règlement de la Cour établissent des règles précises quant au formatage des documents déposés au Greffe et que ces normes doivent être appliquées à tous documents déposés, PAR CES MOTIFS, DÉCIDE d'autoriser le conseil de la Défense à déposer une réplique, en conformité avec les normes du Règlement de la Cour sur le formatage des documents, dans les dix jours à compter de la notification de la présente décision,

——— Official Translation ——— CONSIDERING moreover that regulations 36 and 37 of the Regulations of the Court set forth precise rules for formatting documents filed with the Registry, and that these regulations must be applied to all documents filed; FOR THESE REASONS DECIDES to grant Counsel for the Defence leave to file a reply, consistent with the Regulations of the Court regarding document formatting, within ten days of notification of this Decision;

x

Regulation 37(2): Extension of page limit – Exceptional circumstances – Time for submitting applications for extension of page limits

r37-PT-2

o Situation in the Uganda, No. ICC-02/04, Under Seal – Ex Parte - Decision on the Extension of the Page Limit in Relation to an Application by the Prosecutor Under

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Article 58 (PT), 19 May 2005 (unsealed on 13 October 2005): NOTING regulation 37, sub-regulation 2, pursuant to which the Chamber may, at the request of a participant, extend the page limit for documents filed in the Registry in exceptional circumstances; NOTING that by the terms of regulations 37 and 38 a request for the extension of page limits should more appropriately be submitted in advance of an application to the Chamber; CONSIDERING that the circumstances presented in paragraphs 6 and 15 of the Prosecutor's application in support of the extension of the page limit amount to exceptional circumstances; HEREBY: 1. Grants the request for the extension of the page limit in relation to the Prosecutor's application;

x

Regulation 37(2): Extension of page limit – Exceptional circumstances: number and complexity of issues (Granted)

r37-PT-3

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Prosecution Application for an Extension of the Page Limit for Application to Be Filed Tomorrow (PT), 23 May 2006:

CONSIDERING the exceptional circumstances resulting from: (i) the number and complexity of the issues dealt with in the Decision Establishing General Principles, and (ii) the fact that the Prosecution intends to address in its filing both the merits of the relevant rulings and the reasons why the Prosecution believes that the standard set out in article 82 (1) (d) of the Statute is met; FOR THESE REASONS DECIDE to grant the Prosecution Application.

APPEALS CHAMBER x

Regulation 37(2): Extension of page limit – Exceptional circumstances: complexity – Enlargement sought is adjusted to the necessity (granted)

r37-A-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the “Prosecutor’s Motion for Extensions of the Time and

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

589

Page Limits” (A), 3 July 2006, para. 5: ii) The page limit for the Prosecutor’s document in support of the appeal is extended by five pages. 5. Pursuant to regulation 37(2) of the Regulations of the Court, a page limit may be extended in exceptional circumstances. This criterion has been met in the present case. 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.

x

Regulation 37(2): Extension of page limit – An application for extension of page limit and its approval by the Chamber are prerequisites for the submissions of an extended document Exceptional circumstances: complexity (granted)

r37-A-2

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006, para. 4:

4. It has not escaped the Appeals Chamber’s attention that the application of the Prosecutor exceeds the page limit set down in regulation 37(1) of the Regulations of the Court. The Prosecutor asks to be excused for that and prays for the extension of the limit, a necessity, in his view, in light of the complexity of the case and the voluminousness of the subjects to be addressed.(10) An application for the extension of the page limit envisaged by the Regulations of the Court and its approval by a Chamber are prerequisites for the submission of an extended document. 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. ————————— (10) Application of the Prosecutor, paragraph 6.

Regulation 38 – Specific Page Limits 1. Unless otherwise ordered by the Chamber, the page limit shall not exceed 100 pages for the following documents and responses thereto, if any:

(a)

(b)

A request under article 57, paragraph 3 (d), and rule 115, sub-rule 1, and the views submitted by the State Party as referred to in those provisions; The application of the Prosecutor for authorisation of the investigation under article 18, paragraph 2;

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(c)

Challenges to the admissibility or jurisdiction of the Court under article 19, paragraph 2; (d) Requests by the State Party or the Security Council under article 53, paragraph 3 (a), to the Pre-Trial Chamber to reconsider a decision of the Prosecutor under article 53, paragraphs 1 and 2; (e) The request for authorisation of an investigation under article 15, paragraph 3, and rule 50, sub-rule 2; (f) Representations under article 75. 2. Unless otherwise ordered by the Chamber, the page limit shall not exceed 50 pages for the following documents and responses thereto, if any: (a) Representations made by victims to the Pre-Trial Chamber under article 15, paragraph 3, and rule 50, sub-rule 3; (b) Requests by the Prosecutor for a ruling regarding questions of jurisdiction or admissibility under article 19, paragraph 3; (c) Requests by the Prosecutor to the Pre-Trial Chamber under article 18, paragraph 6, or article 19, paragraph 8; (d) A document of the Prosecutor under article 56, paragraph 1 (a), containing the information that a unique investigative opportunity has arisen; (e) A request by any participant to the Pre-Trial Chamber to take specific measures or to issue orders and warrants or to seek State cooperation; (f) A request under rule 173 for compensation. APPEALS CHAMBER x

Regulation 38(1)(c): Scope of Regulation 38(1)(c) – Applicability to proceedings before both the Trial and Appeals Chambers – Page limit for responses to appeals against decision on jurisdiction pursuant to Article 19(2) is 100 pages

r38-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Reasons for the Appeals Chamber’s Decision of 16 November 2006 on the “Prosecutor’s Request for an Extension of Page Limit” (AC), 17 November 2006, paras. 6-9:

6. Regulation 38 (1) (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 ("Statute") specifying the page limit to extend up to 100 pages. It reads: Unless otherwise ordered by the Chamber, the page limit shall not exceed 100 pages for the following documents and responses thereto,

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

591

if any: (a) [...]; (b) [...]; (c) Challenges to the admissibility or jurisdiction of the Court under article 19, paragraph 2; (d) [...]; (e) [...]; (f) [...]. 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 (see article 19 (4) of the Statute), their application would extend to appeal proceedings as the subjectmatter of appellate proceedings too revolves around the validity of challenges made to the jurisdiction of the Court. The term "jurisdiction" in the context of regulation 38 (1) (c) of the Regulations of the Court read in the light of article 19 of the Statute is used in its broader sense signifying competence and therefore amenity on the part of the Court to take cognisance of a cause or matter (a case); and not in the narrower sense defining the jurisdiction of the different judicial branches of the Court, first instance and appellate jurisdiction. 7. The question that has to be answered is whether an appeal against a decision on a matter of jurisdiction ceases to be a challenge to the acceptability of a given cause as the legitimate subject-matter of proceedings before the Court. Article 19 (6) of the Statute assures a right of appeal against first instance decisions pertaining to the jurisdiction of the Court while article 82 (1) (a) of the Statute defines the parameters of its exercise. 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. 8. Regulation 38 (1) (c) of the Regulations of the Court 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 by subregulation 2 (b) of regulation 38 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 at which challenges to the jurisdiction of the Court are addressed. Proceedings before either tier of Justice, first instance or on appeal, involve determining whether the Court has jurisdiction in light of the challenges made under article 19 (2) of the Statute to take cognisance of a cause or matter. 9. In the judgment of the Appeals Chamber, the 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 (1) (c) of the Regulations of the Court are applicable to both instances. Therefore, the application of the Prosecutor for an extension of the page limit is superfluous in that he has the right to do that which he seeks leave to do, a finding that warrants the dismissal of the application.

Subsection 4 – Translation and Interpretation Regulation 39 – Language Requirements 1. All documents and materials filed with the Registry shall be in English or French, unless otherwise provided in the Statute, Rules, these Regulations or authorised by

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the Chamber or the Presidency. If the original document or material is not in one of these languages, a participant shall attach a translation thereof. 2. Sub-regulation 1 shall not apply to victims who are not represented and do not have a sufficient knowledge of a working language of the Court or any other language authorised by the Chamber or the Presidency. 3. When a Chamber, in accordance with article 50, paragraph 3, and following consultation with the Registrar, authorises use by a participant of a language other than English or French, the expenses for interpretation and translation shall be borne by the Court.

Regulation 40 – Language Services of the Registry 1. The Registrar shall ensure that the decisions and texts envisaged in article 50, paragraph 1, and in rule 40, are translated into all the official languages of the Court. In addition, the Registrar shall ensure translation of those texts referred to in regulation 7, which the Presidency decides should be translated into all the official languages of the Court. 2. The Registrar shall ensure that interpretation services are provided in all proceedings: (a) For English and French and any other official language used as a working language in accordance with rule 41; (b) For the language of the person to whom article 58 applies, the accused, convicted or acquitted person if he or she does not fully understand or speak any of the working languages; (c) For the other language, if any, authorised by the Chamber pursuant to article 50, paragraph 3, subject to regulation 39, sub-regulation 3. 3. The Registrar shall ensure translation into the other working language(s) of all decisions or orders taken by Chambers during proceedings. 4. The Registrar shall ensure translation and interpretation for the cases listed in regulation 39, sub-regulation 2. 5. The Registrar shall, if necessary, ensure translation into the language chosen by the requested State of requests under Part 9 of the Statute transmitted by the Registrar in accordance with article 87, paragraph 2, and rule 176, subrule 2. 6. The Registrar shall ensure translation into the language of the person to whom article 55, paragraph 2, or article 58 applies, the accused, convicted or acquitted person, if he or she does not fully understand or speak any of the working languages, of all decisions or orders in his or her case. Counsel shall be responsible for informing that person of the other documents in his or her case.

PRE-TRIAL CHAMBERS x

Regulation 40(3): Translations – Responsibility of the Registry as regards translations of decisions and orders

r40-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case

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No. ICC-01/04-01/06, Decision on the Requests of the Defence of 3 and 4 July 2006 (PT), 4 August 2006, p.7: CONSIDERING that pursuant to regulation 40(3) of the Regulations, the Registry is the organ of the Court responsible for ensuring the translation of all decisions and orders of the Chamber;

Subsection 5 – Protective Measures Regulation 41 – Victims and Witnesses Unit The Victims and Witnesses Unit may, pursuant to article 68, paragraph 4, draw any matter to the attention of a Chamber where protective or special measures under rules 87 and 88 require consideration.

Regulation 42 – Application and Variation of Protective Measures 1. Protective measures once ordered in any proceedings in respect of a victim or witness shall continue to have full force and effect in relation to any other proceedings before the Court and shall continue after proceedings have been concluded, subject to revision by a Chamber. 2. When the Prosecutor discharges disclosure obligations in subsequent proceedings, he or she shall respect the protective measures as previously ordered by a Chamber and shall inform the defence to whom the disclosure is being made of the nature of these protective measures. 3. Any application to vary a protective measure shall first be made to the Chamber which issued the order. If that Chamber is no longer seized of the proceedings in which the protective measure was ordered, application may be made to the Chamber before which a variation of the protective measure is being requested. That Chamber shall obtain all relevant information from the proceedings in which the protective measure was first ordered. 4. Before making a determination under sub-regulation 3, the Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the application to rescind, vary or augment protective measures has been made.

Subsection 6 - Evidence Regulation 43 – Testimony of Witnesses Subject 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 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.

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Regulation 44 – Experts 1. The Registrar shall create and maintain a list of experts accessible at all times to all organs of the Court and to all participants. Experts shall be included on such a list following an appropriate indication of expertise in the relevant field. A person may seek review by the Presidency of a negative decision of the Registrar. 2. The Chamber may direct the joint instruction of an expert by the participants. 3. On receipt of the report prepared by an expert jointly instructed, a participant may apply to the Chamber for leave to instruct a further expert. 4. The Chamber may proprio motu instruct an expert. 5. The Chamber may issue any order as to the subject of an expert report, the number of experts to be instructed, the mode of their instruction, the manner in which their evidence is to be presented and the time limits for the preparation and notification of their report.

Section 2 – Pre-Trial Regulation 45 – Information Provided by the Prosecutor The Prosecutor shall inform the Presidency in writing as soon as a situation has been referred to the Prosecutor by a State Party under article 14 or by the Security Council under article 13, sub-paragraph (b); and shall provide the Presidency with any other information that may facilitate the timely assignment of a situation to a Pre-Trial Chamber, including, in particular, the intention of the Prosecutor to submit a request under article 15, paragraph 3.

Regulation 46 – Pre-Trial Chamber 1. The Presidency shall constitute permanent Pre-Trial Chambers with fixed compositions. 2. The Presidency shall assign a situation to a Pre-Trial Chamber as soon as the Prosecutor has informed the Presidency in accordance with regulation 45. The PreTrial Chamber shall be responsible for any matter, request or information arising out of the situation assigned to it, save that, at the request of a Presiding Judge of a PreTrial Chamber, the President of the Pre-Trial Division may decide to assign a matter, request or information arising out of that situation to another Pre-Trial Chamber in the interests of the administration of justice. 3. Any matter, request or information not arising out of a situation assigned to a PreTrial Chamber in accordance with sub-regulation 2, shall be directed by the President of the Pre-Trial Division to a Pre-Trial Chamber according to a roster established by the President of that Division.

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PRESIDENCY x

Regulation 46(2): Assignment of a situation to a Pre-Trial Chamber – Assignment “as soon as” the Prosecutor has informed the President – Public announcement of referral

r46-P-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I (P), 5 July 2004:89

THE PRESIDENCY of the International Criminal Court (the “Court”); […] NOTING the letter from the Prosecutor, dated 17 June 2004, annexed to this decision, in which the Prosecutor formally informed the President of the Court of, inter alia, (i)

the referral received in March 2004 from the Government of the Democratic Republic of Congo;

(ii)

the public announcement on 19 April 2004 of the said referral; and

(iii)

the Prosecutor’s determination, under article 53 of the Statute and rule 104 of the Rules of Procedure and Evidence, that there is reasonable basis to initiate an investigation;

[…] HEREBY DECIDES that the situation in the Democratic Republic of Congo be assigned to Pre-Trial Chamber I, with immediate effect.

Regulation 47 – Single Judge 1. The designation of a single judge in accordance with article 39, paragraph 2 (b) (iii), and rule 7 shall be based on criteria agreed upon by the PreTrial Chamber, including seniority of age and criminal trial experience. Other criteria may include consideration of the issues involved and the circumstances of the proceedings before the Chamber, as well as the distribution of work within the Chamber and the proper management and efficiency in the handling of cases. 2. The single judge designated by the Pre-Trial Chamber shall, as far as possible, act for the duration of a case. The Pre-Trial Chamber may designate more than one single judge when the efficient management of the workload of the Chamber so requires.

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

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Regulation 48 – Information Necessary for the Pre-Trial Chamber 1. The Pre-Trial Chamber may request the Prosecutor to provide specific or additional information or documents in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in article 53, paragraph 3 (b), article 56, paragraph 3 (a), and article 57, paragraph 3 (c). 2. The Pre-Trial Chamber shall take such measures as are necessary under articles 54, 72 and 93 to protect the information and documents referred to in subregulation 1 and under article 68, paragraph 5, to protect the safety of witnesses and victims and members of their families. 3. Nothing in this regulation shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f).

PRE-TRIAL CHAMBERS x

Regulation 48(1): Information on security situation in Uganda – Protection of victims and witnesses – Decision to hold a status conference

r48-PT-1

o Situation in Uganda, No. ICC-01/04, Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05, Decision to Convene a Status Conference on Matters Related to Safety and Security in Uganda (PT), 25 November 2005, paras. 7-15, 18:

7. NOTING recent reports in the Ugandan and international media on serious attacks and violence against civilians in northern Uganda and southern Sudan, allegedly by the Lord's Resistance Army, resulting in the death of at least twentytwo civilians, including five humanitarian workers, as well as in a significant number of injuries and abductions; 8. BEING concerned about the impact that such serious attacks and violence may have (1) on the overall plan for safety and security of victims and witnesses and (2) on the security of staff of the Court in the field; 9. NOTING the power and duty of the Chamber to provide for the protection and privacy of victims and witnesses under articles 57, paragraph 3 (c), and 68, paragraph 1, of the Statute of the Court (the "Statute"); 10. NOTING the responsibility of the Prosecutor to provide for the protection of victims and witnesses, in particular during the investigation, under article 68, paragraph 1, of the Statute; 11. NOTING article 43, paragraph 6, and article 68, paragraph 4, of the Statute, according to which the VWU shall both provide and advise the Court on appropriate protective measures, security arrangements, counselling and other appropriate assistance for witnesses, victims and other persons who are at risk; 12. RECALLING the Chamber's request as contained in its decision dated the 8 th of July 2005 and as reiterated in the Decision on Unsealing, for the Prosecutor, in

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consultation and cooperation with the VWU, to inform the Chamber on a periodic and regular basis as to developments concerning the implementation of protective and security measures in the field; 13. NOTING regulation 48 of the Regulations of the Court, pursuant to which the "Pre-Trial Chamber may request the Prosecutor to provide specific or additional information ... that the Pre-Trial Chamber considers necessary in order to exercise the functions and responsibilities set forth in ... article 57, paragraph 3 (c)"; 14. CONSIDERING the need for the Chamber to be fully informed of the current security situation in Uganda with a view to exercising its functions and powers under articles 57 and 68 of the Statute; 15. RECALLING the importance of an update on the security situation in Uganda for the Chamber to continue with the process of unsealing further documents of the record; […] 18. DECIDES, pursuant to regulation 30 of the Regulations, to hold a status conference on the 7th day of December 2005 at 10 a.m. by way of a hearing in closed session, to be attended by the Prosecutor, the Registrar and the Victims and Witnesses Unit, to comprehensively assess the current safety and security situation in Uganda and determine its impact on the protection of victims and witnesses and other persons who might be at risk, including staff of the Court, and on any future decisions of the Chamber on the unsealing of documents of the record.

Regulation 49 – The Request for Authorisation 1. A request by the Prosecutor to a Pre-Trial Chamber for authorisation of an investigation pursuant to article 15, paragraph 3, shall be in writing and shall contain: (a) A reference to the crimes which the Prosecutor believes have been or are being committed and a statement of the facts being alleged to provide the reasonable basis to believe that those crimes have been or are being committed; (b) A declaration of the Prosecutor with reasons that the listed crimes fall within the jurisdiction of the Court. 2. The statement of the facts referred to in sub-regulation 1 (a) shall indicate, as a minimum: (a) The places of the alleged commission of the crimes, e.g. country, town, as precisely as possible; (b) The time or time period of the alleged commission of the crimes; and (c) The persons involved, if identified, or a description of the persons or groups of persons involved. 3. The appendix to the request shall include, if possible: (a) The chronology of relevant events; (b) Maps showing relevant information, including the location of the alleged crimes; and

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(c)

An explanatory glossary of relevant names of persons, locations and institutions.

Regulation 50 – Specific Time Limits 1. The time limit for victims to make representations under article 15, paragraph 3, and rule 50, sub-rule 3, shall be 30 days following information given in accordance with rule 50, sub-rule 1. 2. The time limit for a State Party to express its views on a request by the Prosecutor for authorisation to take certain measures within its territory in accordance with rule 115, sub-rule 2, shall be ten days from notification.

Regulation 51 – Decision on Interim Release For the purposes of a decision on interim release, the Pre-Trial Chamber shall seek observations from the host State and from the State to which the person seeks to be released.

PRE-TRIAL CHAMBERS x

Regulation 51: Application for interim release – Need to specify the State to which the person seeks to be released

r51-PT-1

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Ordonnance relative à la Requête de mise en liberté (Order on the application for release) (PT), 29 May 2006 :

ATTENDU qu'en vertu de la norme 51 du Règlement de la Cour, la Chambre, afin de prendre une décision de mise en liberté provisoire, doit demander des « observations à l'État hôte ainsi qu'à l'État sur le territoire duquel la personne demande à être libérée », ATTENDU que dans sa Requête, le conseil de la Défense ne précise pas l'État sur le territoire duquel Thomas Lubanga Dyilo demande à être libéré, PAR CES MOTIFS, ORDONNE au conseil de la Défense d'informer la Chambre préliminaire I, le mercredi 31 mai 2006 à 16 heures au plus tard, de l'État sur le territoire duquel Thomas Lubanga Dyilo demande à être libéré.

——— Official Translation ——— CONSIDERING that pursuant to regulation 51 of the Regulations of the Court, the Chamber shall seek “observations from the host State and from the State to which the person seeks to be released” for the purposes of a decision on interim release;

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CONSIDERING that in his application, Defence counsel does not indicate the State to which Thomas Lubanga Dyilo seeks to be released; FOR THESE REASONS ORDERS Defence counsel to indicate to Pre-Trial Chamber I, no later than 31 May 2006 at 1600 hours, the State to which Thomas Lubanga Dyilo seeks to be released.

Regulation 52 – Document Containing the Charges The 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.

Regulation 53 – Decision of the Pre-Trial Chamber Following the Confirmation Hearing The written decision of the Pre-Trial Chamber setting out its findings on each of the charges shall be delivered within 60 days from the date the confirmation hearing ends.

Section 3 – Trial Regulation 54 – Status Conferences Before the Trial Chamber At a status conference, the Trial Chamber may, in accordance with the Statute and the Rules, issue any order in the interests of justice for the purposes of the proceedings on, inter alia, the following issues: (a) The length and content of legal arguments and the opening and closing statements; (b) A summary of the evidence the participants intend to rely on; (c) The length of the evidence to be relied on; (d) The length of questioning of the witnesses; (e) The number and identity (including any pseudonym) of the witnesses to be called; (f) The production and disclosure of the statements of the witnesses on which the participants propose to rely; (g) The number of documents as referred to in article 69, paragraph 2, or exhibits to be introduced together with their length and size;

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(h) (i)

(j) (k) (l) (m) (n) (o) (p)

The issues the participants propose to raise during the trial; The extent to which a participant can rely on recorded evidence, including the transcripts and the audio- and video-record of evidence previously given; The presentation of evidence in summary form; The extent to which evidence is to be given by an audio- or videolink; The disclosure of evidence; The joint or separate instruction by the participants of expert witnesses; Evidence to be introduced under rule 69 as regards agreed facts; The conditions under which victims shall participate in the proceedings; The defences, if any, to be advanced by the accused.

Regulation 55 – Authority of the Chamber to Modify the Legal Characterisation of the Facts 1. In its decision under article 74, the Chamber may change the legal characterisation of 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 and any amendments to the charges. 2. If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change. 3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall: (a) Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1 (b); and (b)

If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).

Regulation 56 – Evidence under Article 75 The Trial Chamber may hear the witnesses and examine the evidence for the purposes of a decision on reparations in accordance with article 75, paragraph 2, at the same time as for the purposes of trial.

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Section 4 – Appeal and Revision Subsection 1 – Appeal Regulation 57 – Appeal For the purposes of rule 150, the appellant shall file a notice of appeal which shall state: (a) The name and number of the case; (b) The date of the decision of conviction or acquittal, sentence or reparation order appealed against; (c) Whether the appeal is directed against the whole decision or part thereof; (d) The relief sought.

Regulation 58 – Document in Support of the Appeal 1. Having filed an appeal in accordance with regulation 57, the appellant shall file a document in support of the appeal within 90 days of notification of the relevant decision. 2. The document in support of the appeal shall contain the grounds of appeal. Each ground of appeal shall be divided into two parts: (a) The ground of appeal; (b) The legal and/or factual reasons in support of the ground of appeal. 3. The legal and/or factual reasons referred to in sub-regulation 2 (b) shall be set out in separate paragraphs. Reference shall be made to the relevant part of the record or any other document or source of information as regards any factual issue. Each legal reason shall be set out together with reference to any relevant article, rule, regulation or other applicable law, and any authority cited in support thereof. Where applicable, the finding or ruling challenged in the decision shall be identified, with specific reference to the page and paragraph number. 4. Grounds of appeal may be advanced cumulatively or in the alternative. 5. The document in support of the appeal shall not exceed 100 pages.

APPEALS CHAMBER x

Regulation 58(2) : Legal and/or factual reasons in support of each particular appeal shall be included in the document supporting the appeal

r58-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under

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Rule 81” (A), 14 December 2006, para. 29: 29. The Appeals Chamber notes that the appellant has sought to incorporate arguments made in relation to the appeal 01/04-01/06 O A 5 in his Document in Support of the Appeal in the present appeal. The Appeals Chamber disapproves of this practice. 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. The practice followed by the appellant in this appeal could also lead, in reality, to a circumvention of the page limits that are stipulated in the Regulations of the Court.

Regulation 59 - Response 1. A participant may file a response within 60 days of notification of the document in support of the appeal described in regulation 58 as follows: (a) Each ground of appeal shall be answered separately, stating whether it is opposed, in whole or in part, together with the grounds put forward in support thereof; it shall also be stated whether the relief sought is opposed, in whole or in part, together with the grounds of opposition in support thereto; (b) When facts are relied on that are not already set out in the appeal or the document in support of the appeal, reference shall be made to the relevant part of the record or any other document or source of information; (c) Each legal reason relied on in support of the response shall be set out together with reference to any relevant article, rule, regulation or other applicable law, and any authority cited in support thereof. 2. The response shall not exceed 100 pages. To the extent possible, it shall be set out and numbered in the same order as in the document described in regulation 58.

APPEALS CHAMBER x

Regulation 59: Response filed ex parte without justification, together with a public redacted version – Ex parte submissions disregarded by the Appeals Chamber

r59-A-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006, para. 10:

10. The Appeals Chamber draws attention to the fact that in its consideration of the present appeal, it took into account only the public version of the Prosecutor's Response to the Document in Support of the Appeal and not the ex parte version of

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it. The Prosecutor had not provided any explanation as to why he filed an ex parte version of the Response to the Document in Support of the Appeal. The Appeals Chamber considers that in such circumstances it would be inappropriate to take into account a filing of a participant that was not notified to the other participant.

Regulation 60 – Reply 1. Whenever the Appeals Chamber considers it necessary in the interests of justice, it may order the appellant to file a reply within such time as it may specify in its order. 2. Any reply filed in accordance with sub-regulation 1 shall not exceed 50 pages. To the extent possible, it shall be set out and numbered in the same order as in the documents described in regulations 58 and 59.

Regulation 61 – Variation of Grounds of Appeal Presented before the Appeals Chamber 1. An application for variation of grounds of appeal shall state the name and number of the case and shall specify the variation sought and the reasons in support thereof. 2. The application for variation shall be filed as soon as the reasons warranting it become known. 3. Participants may file a response within seven days of notification of the application for variation. 4. The response shall state the name and number of the case and shall specify the legal or factual reasons advanced by way of opposition. 5. If the variation is granted, the Appeals Chamber shall specify both the time limit within which the appellant shall file the document setting out the grounds of appeal as varied and the page limit for that document. Regulation 58, sub-regulations 2 and 3, shall apply mutatis mutandis. 6. Any response to the document described in sub-regulation 5 shall be filed within the time limit specified by the Appeals Chamber. The Appeals Chamber may also fix a page limit for the response and otherwise regulation 59 shall apply mutatis mutandis. 7. Regulation 60 shall apply mutatis mutandis with regard to any reply to the response filed in accordance with sub-regulation 6.

Regulation 62 – Additional Evidence Presented before the Appeals Chamber 1. A participant seeking to present additional evidence shall file an application setting out: (a) The evidence to be presented; (b) The ground of appeal to which the evidence relates and the reasons, if relevant, why the evidence was not adduced before the Trial Chamber. 2. The Appeals Chamber may:

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(a)

Decide to first rule on the admissibility of the additional evidence, in which case it shall direct the participant affected by the application filed under sub-regulation 1 to address the issue of admissibility of the evidence in his or her response, and to adduce any evidence in response only after a decision on the admissibility of that evidence has been issued by the Appeals Chamber; or (b) Decide to rule on the admissibility of the additional evidence jointly with the other issues raised in the appeal, in which case it shall direct the participant affected by the application filed under sub-regulation 1 to both file a response setting out arguments on that application and to adduce any evidence in response. 3. The responses described in sub-regulation 2 shall be filed within a time limit specified by the Appeals Chamber and shall be set out and numbered, to the extent possible, in the same order as in the application to present evidence. 4. If several defendants are participants in the appeal, the evidence admitted on behalf of any of them shall, where relevant, be considered in respect of all of them.

Regulation 63 – Consolidated Appeals under Rule 150 1. Unless otherwise ordered by the Appeals Chamber, in a case of more than one appeal under rule 150: (a) When the Prosecutor appeals, he or she shall file one consolidated document in support of all appeals in accordance with regulation 58; (b) When more than one convicted person files a document in support of the appeal, the Prosecutor shall file a consolidated response in accordance with regulation 59. 2. Regulation 60 shall apply mutatis mutandis and any reply filed by the Prosecutor shall be by way of a consolidated reply. 3. For a consolidated document in support of more than one appeal and a consolidated response, as described in sub-regulation 1, the page limit shall be 100 pages plus a further 40 pages for each additional convicted or acquitted person. The page limit for any consolidated reply as described in subregulation 2 shall be 50 pages plus a further 20 pages for each additional convicted or acquitted person. 4. The time limit for filing a consolidated response by the Prosecutor shall run from notification of the last document filed in support of the appeal by a convicted person in a given case.

Regulation 64 – Appeals under Rule 154 1. An appeal filed under rule 154 shall state: (a) The name and number of the case or situation; (b) The title and date of the decision being appealed; (c) The specific provision of the Statute pursuant to which the appeal is filed; (d) The relief sought.

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2. Subject to sub-regulations 5 and 6, the appellant shall file a document in support of the appeal, with reference to the appeal, within 21 days of notification of the relevant decision. The document in support of the appeal shall set out the grounds of appeal and shall contain the legal and/or factual reasons in support of each ground of appeal. Each reason shall be set out in separate paragraphs. Reference shall be made to the relevant part of the record or any other document or source of information as regards any factual issue. Each legal reason shall be set out together with reference to any relevant article, rule, regulation or other applicable law, and any authority cited in support thereof. The document in support of the appeal shall, where applicable, identify the finding or ruling challenged in the decision, with specific reference to the page and paragraph number. 3. Grounds of appeal may be advanced cumulatively or in the alternative. 4. Subject to sub-regulations 5 and 6, a participant may file a response within 21 days of notification of the document in support of the appeal as follows: (a) Each ground of appeal shall be answered separately, stating whether it is opposed, in whole or in part, together with the grounds put forward in support thereof; it shall also be stated whether the relief sought is opposed, in whole or in part, together with the grounds of opposition in support thereto; (b) The legal and/or factual reasons in support. 5. For appeals filed under article 82, paragraph 1 (b), the document in support of the appeal shall be filed by the appellant within seven days of notification of the relevant decision. The response shall be filed within five days of notification of the document in support of the appeal. 6. For appeals filed under article 82, paragraph 1 (c), the document in support of the appeal shall be filed by the appellant within four days of notification of the relevant decision. The response shall be filed within two days of notification of the document in support of the appeal.

APPEALS CHAMBER x

Regulation 64(2): Contents of appellant’s brief – Legal and/or factual reasons in support of each ground of appeal – Failure to provide reasons – Order for further information under Regulation 28

r64-A-1

o Situation in the Democratic Republic of Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Appellant’s Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court (A), 30 May 2006, para. 10 and Sep. Op. by Judge Pikis, para. 10:

Renders the following

DECISION

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[…] ii) The Appellant is directed under regulation 28 of the Regulations of the Court by 13 June 2006: a) To provide additional details of the reasons supporting his ground of appeal as set out at section 2.3 of the Appellant's Brief; b) To specify any procedural errors, errors of fact or errors of law relevant to his ground of appeal as set out at section 2.3 of the Appellant's Brief; […] 10. The Appellant provides grounds in support of the appeal at section 2.3 of the Appellant's Brief (which is set out at paragraph 4 above). However, he does little by way of articulating the reasons in support of his grounds for appeal as provided in regulation 64(2) of the Regulations of the Court. It is for this reason that the Appeals Chamber has decided to act under regulation 28 of the Regulations of the Court in seeking additional details of the reasons supporting the grounds of appeal. Separate Opinion by Judge Georghios M. Pikis 10. The document filed in support of the appeal does not conform to the procedural rules regulating its content and composition set down in regulation 64 (2) of the Regulations of the Court. Such inadequacy may be addressed in the way ordained by regulation 29 (1) of the Regulations of the Court empowering the Chamber to "[...] issue any order that is necessary in the interests of justice." As decided, the gap in the document in support of the appeal may be filled and the non-compliance with the Regulations of the Court remedied by invoking the provisions of regulation 28 (1) of the Regulations of the Court reproduced hereafter: "A Chamber may order the participants to clarify or to provide additional details on any document within a time limit specified by the Chamber."

Regulation 65 – Appeals under Rule 155 1. An application for leave to appeal under rule 155 shall state the name and number of the case or situation and shall specify the legal and/or factual reasons in support thereof. If the facts relied upon in support are not apparent from the record of the proceedings, they shall, as far as possible, be substantiated by a solemn affirmation by a person having knowledge of the facts stated therein. 2. An application for leave to appeal under article 82, paragraph 1 (d), shall specify the reasons warranting immediate resolution by the Appeals Chamber of the matter at issue. 3. Participants may file a response within three days of notification of the application described in sub-regulation 1, unless the Pre-Trial or Trial Chamber concerned orders an immediate hearing of the application. In the latter case, the participants shall be afforded an opportunity to be heard orally. 4. When leave to appeal is granted, the appellant shall file, within ten days of notification of the decision granting leave to appeal, a document in support of the appeal in accordance with regulation 64, sub-regulation 2. Such document shall also contain the precise title and date of filing of the decision granting leave to appeal.

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5. Participants may file a response within ten days of notification of the document in support of the appeal. Regulation 64, sub-regulation 4, shall apply mutatis mutandis.

Subsection 2 – Revision Regulation 66 – Procedure Leading to the Determination on Revision 1. An application for revision under article 84, paragraph 1, and rule 159 shall state the name and number of the original case. An application under article 84, paragraph 1 (a), shall set out the new facts or evidence, unknown or unavailable at the time of trial, and shall indicate the effect that the production of such facts or evidence at the trial might have had upon the decision of the Court. Other applications shall set out the reasons in accordance with article 84, paragraph 1 (b) or (c). The facts relied upon in any application for revision shall, as far as possible, be supported by a solemn affirmation by a person having knowledge of the facts. The application shall not exceed 100 pages. 2. As far as possible, the application for revision shall be notified to the participants in the original proceedings and to any other person having a direct interest in the revision proceedings. Such participants and persons may file a response within 40 days of notification of that application. 3. The response described in sub-regulation 2 shall contain the name and number of the case and shall set out the legal and/or factual reasons advanced in support thereof. Facts tending to deny or contradict the existence of the facts upon which the application is founded shall be outlined in the response and shall be supported by a solemn affirmation by a person having knowledge of such facts. The response shall not exceed 100 pages. 4. Whenever the Appeals Chamber considers it necessary in the interests of justice, it may order the appellant to file a reply within such time as it may specify in its order.

Chapter 4 – Counsel Issues and Legal Assistance Section 1 – List of Counsel and Duty Counsel Regulation 67 – Criteria to Be Met by Counsel 1. The necessary relevant experience for counsel as described in rule 22 shall be at least ten years. 2. Counsel should not have been convicted of a serious criminal or disciplinary offence considered to be incompatible with the nature of the office of counsel before the Court.

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Regulation 68 – Assistants to Counsel Persons assisting counsel as described in rule 22, sub-rule 1, may include persons who can assist counsel in the presentation of the case before a Chamber. The criteria to be met by these persons shall be determined in the Regulations of the Registry.

Regulation 69 – Proof and Control of Criteria to Be Met by Counsel 1. A person seeking to be included in the list of counsel shall complete the forms provided by the Registrar for this purpose. 2. A person referred to in sub-regulation 1 shall also provide: (a) A detailed curriculum vitae; (b) A certificate issued by each Bar association the person is registeredwith, and/or each relevant controlling administrative authority confirming his or her qualifications, the right to practise and the existence, if any, of disciplinary sanctions or ongoing disciplinary proceedings; and (c) A certificate issued by the relevant authority of each State of which the person is a national or where the person is domiciled stating the existence, if any, of criminal convictions. 3. A person referred to in sub-regulation 1 or counsel already included in the list of counsel shall immediately inform the Registrar of any changes to the information he or she has provided that are more than de minimis, including the initiation of any criminal or disciplinary proceedings against the person. 4. The Registrar may at any stage take steps to verify the information provided by any person referred to in sub-regulation 1 and by counsel already included in the list of counsel.

Regulation 70 – Inclusion in the List of Counsel 1. On receipt of an application by a person seeking to be included in the list of counsel, the Registrar shall establish whether the person has provided the information required under regulation 69. Thereafter, the Registrar shall acknowledge receipt of the application and, where relevant, direct the person to submit additional information. 2. The decision as to whether a person shall be included in the list of counsel shall be notified to that person. If the application is refused, the Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

Regulation 71 – Removal and Suspension from the List of Counsel 1. The Registrar shall remove a counsel from the list of counsel where he or she: (a) No longer meets the criteria required for inclusion in the list of counsel;

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(b)

Has been permanently banned from practising before the Court as a result of disciplinary proceedings held in accordance with the Code of Professional Conduct for counsel; (c) Has been found guilty of an offence against the administration of justice as described in article 70, paragraph 1; or (d) Has been permanently interdicted from exercising his or her functions before the Court in accordance with rule 171, sub-rule 3. 2. The Registrar shall suspend a counsel from the list of counsel where he or she has been: (a) Temporarily suspended in a disciplinary proceeding according to the Code of Professional Conduct for counsel; or (b) Temporarily interdicted from exercising his or her functions before the Court for a period exceeding 30 days in accordance with rule 171, subrule 3. 3. The Registrar shall notify the relevant counsel of his or her decision under subregulations 1 or 2. The Registrar shall provide reasons and information on how to apply for review of that decision in accordance with regulation 72.

Regulation 72 – Review of Decisions of the Registrar 1. Application may be made to the Presidency for review of: (a) A decision under regulation 70, sub-regulation 2, refusing to include a person in the list of counsel; (b) A decision under regulation 71, sub-regulation 1, removing counsel from the list of counsel; or (c) A decision under regulation 71, sub-regulation 2, suspending counsel from the list of counsel. 2. Applications as described in sub-regulation 1 shall be set out in accordance with regulation 23 and be filed within 15 days of notification of the relevant decision of the Registrar. 3. The Registrar may file a response within 15 days of notification of the application as referred to in sub-regulations 1 and 2. 4. The Presidency may ask the Registrar to provide any additional information necessary to decide on the application. The decision of the Presidency shall be final.

Regulation 73 – Duty Counsel 1. The Registrar shall establish and maintain a roster of counsel included in the list of counsel who are available at any time to represent any person before the Court or to represent the interests of the defence. 2. If any person requires urgent legal assistance and has not yet secured legal assistance, or where his or her counsel is unavailable, the Registrar may appoint duty counsel, taking into account the wishes of the person, and the geographical proximity of, and the languages spoken by, the counsel.

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Section 2 – Defence through Counsel Regulation 74 – Defence through Counsel 1. Defence counsel shall act in proceedings before the Court either when chosen by the person entitled to legal assistance in accordance with rule 21, subrule 2, or when the Chamber has appointed counsel in accordance with the Statute, Rules or these Regulations. 2. When represented by defence counsel, the person entitled to legal assistance shall, subject to article 67, paragraph 1 (h), act before the Court through his or her counsel, unless otherwise authorised by the Chamber.

Regulation 75 – Choice of Defence Counsel 1. If the person entitled to legal assistance chooses a counsel included in the list of counsel, the Registrar shall contact that counsel. If the counsel is willing and ready to represent the person, the Registrar shall facilitate the issuance of a power of attorney for this counsel by the person. 2. If the person entitled to legal assistance chooses a counsel not on the list of counsel who is willing and ready to represent him or her and to be included in the list, the Registrar shall decide on the eligibility of that counsel in accordance with regulation 70 and, upon inclusion in the list, shall facilitate the issuance of a power of attorney. Until the filing of a power of attorney, the person entitled to legal assistance may be represented by duty counsel in accordance with regulation 73.

Regulation 76 – Appointment of Defence Counsel by a Chamber 1. A Chamber, following consultation with the Registrar, may appoint counsel in the circumstances specified in the Statute and the Rules or where the interests of justice so require. 2. Where the Chamber decides to appoint counsel in accordance with subregulation 1, and where the counsel considered for appointment is not included in the list of counsel, the Registrar shall first decide on the eligibility of that counsel to be included in the list in accordance with regulation 70. The Chamber may also appoint counsel from the Office of Public Counsel for the defence.

PRE-TRIAL CHAMBERS x

Regulation 76(1): Appointment of ad hoc Defence Counsel at the investigation stage in relation to an application for participation of victims in the proceedings

r76-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/04-6/dp (PT), 21 July

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2005:90 CONSIDERING that, in relation to the Applications at hand, it is necessary, in order to represent and protect the interests of the Defence during the application proceedings provided for in rule 89 of the Rules, to appoint under regulation 76, paragraph 1 an ad hoc counsel for the Defence; […] DECIDES to appoint REDACTED as ad hoc counsel to represent and protect the interests of the Defence during the application proceedings provided for in rule 89 of the Rules in relation to the Applications;

Regulation 77 – Office of Public Counsel for the Defence 1. The Registrar shall establish and develop an Office of Public Counsel for the defence for the purpose of providing assistance as described in sub-regulations 4 and 5. 2. The Office of Public Counsel for the defence shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office. Counsel and assistants within the Office shall act independently. 3. The Office of Public Counsel for the defence may include a counsel who meets the criteria set out in rule 22 and regulation 67. The Office shall include assistants as referred to in regulation 68. 4. The tasks of the Office of Public Counsel for the defence shall include representing and protecting the rights of the defence during the initial stages of the investigation, in particular for the application of article 56, paragraph 2 (d), and rule 47, sub-rule 2. 5. The Office of Public Counsel for the defence shall also provide support and assistance to defence counsel and to the person entitled to legal assistance, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues.

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Regulation 77(5): Functions of the Office of Public Counsel for the Defence – Legal research and appearance in court – Assistance to the Defence Counsel in the preparation of a hearing

r77-PT-1

90

o Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision Convening a Hearing on

See also Situation in Darfur, Sudan, No. ICC-02/54, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence (PT), 24 July 2006.

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the System of Disclosure for the Purpose of the Confirmation Hearing (PT), 7 April 2006: CONSIDERING that, according to regulation 77 (5) of the Regulations, "[t]he Office of Public Counsel for the defence shall also provide support and assistance to defence counsel and to the person entitled to legal assistance, including where appropriate: (a) [l]egal research and advice; and (b) [ajppearing before a Chamber in respect of specific issues." […] INSTRUCT the Registrar to ensure that a member of the Office of Public Counsel for the defence shall be available to assist the defence in the preparation of the hearing and during the hearing itself.

Regulation 78 – Withdrawal of Defence Counsel Prior to withdrawal from a case, defence counsel shall seek the leave of the Chamber.

Section 3 – Legal Representatives of Victims Regulation 79 – Decision of the Chamber Concerning Legal Representatives of Victims 1. The decision of the Chamber to request the victims or particular groups of victims to choose a common legal representative or representatives may be made in conjunction with the decision on the application of the victim or victims to participate in the proceedings. 2. When choosing a common legal representative for victims in accordance with rule 90, sub-rule 3, consideration should be given to the views of the victims, and the need to respect local traditions and to assist specific groups of victims. 3. Victims may request the relevant Chamber to review the Registrar’s choice of a common legal representative under rule 90, sub-rule 3, within 30 days of notification of the Registrar’s decision.

Regulation 80 – Appointment of Legal Representatives of Victims by a Chamber 1. A Chamber, following consultation with the Registrar, may appoint a legal representative of victims where the interests of justice so require. 2. The Chamber may appoint counsel from the Office of Public Counsel for victims.

Regulation 81 – Office of Public Counsel for Victims 1. The Registrar shall establish and develop an Office of Public Counsel for victims for the purpose of providing assistance as described in sub-regulation 4.

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2. The Office of Public Counsel for victims shall fall within the remit of the Registry solely for administrative purposes and otherwise shall function as a wholly independent office. Counsel and assistants within the Office shall act independently. 3. The Office of Public Counsel for victims may include a counsel who meets the criteria set out in rule 22 and regulation 67. The Office shall include assistants as referred to in regulation 68. 4. The Office of Public Counsel for victims shall provide support and assistance to the legal representative for victims and to victims, including, where appropriate: (a) Legal research and advice; and (b) Appearing before a Chamber in respect of specific issues.

Regulation 82 – Withdrawal of Legal Representatives of Victims Prior to withdrawal from a case, legal representatives of victims shall seek the leave of the Chamber.

Section 4 – Legal Assistance Paid by the Court Regulation 83 – General Scope of Legal Assistance Paid by the Court 1. Legal assistance paid by the Court shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence, including the remuneration of counsel, his or her assistants as referred to in regulation 68 and staff, expenditure in relation to the gathering of evidence, administrative costs, translation and interpretation costs, travel costs and daily subsistence allowances. 2. The scope of legal assistance paid by the Court regarding victims shall be determined by the Registrar in consultation with the Chamber, where appropriate. 3. A person receiving legal assistance paid by the Court may apply to the Registrar for additional means which may be granted depending on the nature of the case. 4. Decisions by the Registrar on the scope of legal assistance paid by the Court as defined in this regulation may be reviewed by the relevant Chamber on application by the person receiving legal assistance.

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Regulation 83(4): Request for review of Registrar’s decision – Composition of Defence team – Appointment of a legal advisor

r83-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the Defence Request pursuant to Regulation 83(4)(PT), 22 September 2006:

NOTING the "Requête conformément à la norme 83.4 du règlement de la Cour" ("the Defence Request"),(1) filed by the Defence on 15 September 2006, in which it requests the Chamber to partially overturn the decision of the Registry of 31 August 2006 which (i) granted the Defence request in relation to the appointment of a case

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manager at the G-5 level until the end of the confirmation hearing; and (ii) rejected the appointment of a legal advisor and two additional legal assistants; […] NOTING regulation 83 (4) of the Regulations of the Court ("the Regulations") CONSIDERING the considerable amount of material in the Prosecution requests and the Prosecution amended requests filed under rule 81 (2) and (4) of the Rules between 21 August and 12 September 2006; CONSIDERING further the recent deterioration of the security situation in some parts of the Democratic Republic of the Congo ("the DRC"); CONSIDERING that the Registry was not privy to this information at the time it took a decision on the Defence request for additional resources; FOR THESE REASONS ORDERS the Registry to take all necessary steps to ensure that an additional GTA legal assistant at the P-2 Level joins the Defence as soon as practicable and no later than 1 October 2006 for the purpose of the proceedings before the Chamber in the case against Thomas Lubanga Dyilo. ————————— (1) ICC-01/04-01/06-439.

Regulation 84 – Determination of Means 1. Where a person applies for legal assistance to be paid by the Court, the Registrar shall determine the applicant’s means and whether he or she shall be provided with full or partial payment of legal assistance. 2. The means of the applicant shall include means of all kinds in respect of which the applicant has direct or indirect enjoyment or power freely to dispose, including, but not limited to, direct income, bank accounts, real or personal property, pensions, stocks, bonds or other assets held, but excluding any family or social benefits to which he or she may be entitled. In assessing such means, account shall also be taken of any transfers of property by the applicant which the Registrar considers relevant, and of the apparent lifestyle of the applicant. The Registrar shall allow for expenses claimed by the applicant provided they are reasonable and necessary.

Regulation 85 – Decisions on Payment of Legal Assistance 1. In accordance with the procedure set out in the Regulations of the Registry, the Registrar shall decide within one month of the submission of an application or, within one month of expiry of a time limit set in accordance with the Regulations of the Registry, whether legal assistance should be paid by the Court. The decision shall be notified to the applicant together with the reasons for the decision and instructions on how to apply for review. The Registrar may, in appropriate circumstances, make a provisional decision to grant payment of legal assistance. 2. The Registrar shall reconsider his or her decision on payment of legal assistance if the financial situation of the person receiving such legal assistance is found to be

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different than indicated in the application, or if the financial situation of the person has changed since the application was submitted. Any revised decision shall be notified to the person together with the reasons for the decision and instructions on how to apply for review. 3. Persons as referred to in sub-regulations 1 and 2 may seek review of the decisions described in those provisions by the Presidency within 15 days of notification of the relevant decision. The decision of the Presidency shall be final. 4. Subject to rule 21, sub-rule 5, where legal assistance has been paid by the Court and it is subsequently established that the information provided to the Registrar on the applicant’s means was inaccurate, the Registrar may seek an order from the Presidency for recovery of the funds paid from the person who received legal assistance paid by the Court. The Registrar may seek the assistance of the relevant States Parties to enforce that order.

Chapter 5 – Victims Participation and Reparations Regulation 86 – Participation of Victims in the Proceedings under Rule 89 1. For the purposes of rule 89 and subject to rule 102 a victim shall make a written application to the Registrar who shall develop standard forms for that purpose which shall be approved in accordance with regulation 23, subregulation 2. These standard forms shall, to the extent possible, be made available to victims, groups of victims, or intergovernmental and nongovernmental organizations, which may assist in their dissemination, as widely as possible. These standard forms shall, to the extent possible, be used by victims. 2. The standard forms or other applications described in sub-regulation 1 shall contain, to the extent possible, the following information: (a) The identity and address of the victim, or the address to which the victim requests all communications to be sent; in case the application is presented by someone other than the victim in accordance with rule 89, subrule 3, the identity and address of that person, or the address to which that person requests all communications to be sent; (b) If the application is presented in accordance with rule 89, subrule 3, evidence of the consent of the victim or evidence on the situation of the victim, being a child or a disabled person, shall be presented together with the application, either in writing or in accordance with rule 102; (c) A description of the harm suffered resulting from the commission of any crime within the jurisdiction of the Court, or, in case of a victim being an organization or institution, a description of any direct harm as described in rule 85 (b); (d) A description of the incident, including its location and date and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the harm as described in rule 85; (e) Any relevant supporting documentation, including names and addresses of witnesses; (f) Information as to why the personal interests of the victim are affected;

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(g)

Information on the stage of the proceedings in which the victim wishes to participate, and, if applicable, on the relief sought; (h) Information on the extent of legal representation, if any, which is envisaged by the victim, including the names and addresses of potential legal representatives, and information on the victim’s or victims’ financial means to pay for a legal representative. 3. Victims applying for participation in the trial and/or appeal proceedings shall, to the extent possible, make their application to the Registrar before the start of the stage of the proceedings in which they want to participate. 4. The Registrar may request further information from victims or those presenting an application in accordance with rule 89, sub-rule 3, in order to ensure that such application contains, to the extent possible, the information referred to in subregulation 2, before transmission to a Chamber. The Registrar may also seek additional information from States, the Prosecutor and intergovernmental or nongovernmental organizations. 5. The Registrar shall present all applications described in this regulation to the Chamber together with a report thereon. The Registrar shall endeavour to present one report for a group of victims, taking into consideration the distinct interests of the victims. 6. Subject to any order of the Chamber, the Registrar may also submit one report on a number of applications received in accordance with sub-regulation 1 to the Chamber seized of the case or situation in order to assist that Chamber in issuing only one decision on a number of applications in accordance with rule 89, subrule 4. Reports covering all applications received in a certain time period may be presented on a periodic basis. 7. Before deciding on an application, the Chamber may request, if necessary with the assistance of the Registrar, additional information from, inter alia, States, the Prosecutor, the victims or those acting on their behalf or with their consent. If information is received from States or the Prosecutor, the Chamber shall provide the relevant victim or victims with an opportunity to respond. 8. A decision taken by a Chamber under rule 89 shall apply throughout the proceedings in the same case, subject to the powers of the relevant Chamber in accordance with rule 91, sub-rule 1. 9. There shall be a specialised unit dealing with victims’ participation and reparations under the authority of the Registrar. This unit shall be responsible for assisting victims and groups of victims.

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Regulation 86: Applications for participation as victims – Stage of the proceedings when the application is made – Automatic consideration at each stage without need to apply anew

r86-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for

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Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, para. 67 :91 67. La Chambre constate que d’après la norme 86-2-g du Règlement de la Cour, au moment où une personne physique ou juridique présente une demande pour obtenir la qualité de victime, cette personne fournit, dans la mesure du possible, « tout renseignement indiquant à quel stade de la procédure la victime souhaite participer »(61). Par conséquent, aussi longtemps que toute personne physique ou juridique demandant la qualité de victime en relation avec une situation demande également de se voir accorder la qualité de victime dans toute affaire découlant de l’enquête d’une telle situation, la Chambre, dès qu’une telle affaire existe, prend automatiquement en compte cette seconde demande sans qu’il soit nécessaire de présenter un second formulaire(62). ————————— (61) Voir également le formulaire de demande approuvé par la Présidence conformément à la norme 23 du Règlement de la Cour. (62) Le dépôt d’une demande distincte sera nécessaire uniquement pour obtenir la qualité procédurale de victime pour la procédure de réparation en vertu des règles 94 et 99 du Règlement et de la norme 88 du Règlement de la Cour.

——— Official Translation ——— 67. The Chamber notes that, according to regulation 86 (2) (g) of the Regulations of the Court, when a natural or legal person makes an application to be accorded the status of victim, the applicant is required to provide, to the extent possible, “[i]nformation on the stage of the proceedings in which the victim wishes to participate”.(61) It follows that where any natural or legal person applying for the status of victim in respect of a situation also requests to be accorded the status of victim in any case ensuing from the investigation of such a situation, the Chamber automatically takes this second request into account as soon as such a case exists, so that it is unnecessary to file a second application.(62) ————————— (61) See also the application form approved by the Presidency pursuant to regulation 23 of the Regulations of the Court. (62) The filing of a separate application will be necessary only to obtain the procedural status of victim for reparation proceedings pursuant to rules 94 and 99 of the Rules and regulation 88 of the Regulations of the Court.

91

See also Situation in the Democratic Republic of the Congo, No. ICC-01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Décision relative à la demande de prorogation de délai pour l’envoi du mémoire du représentant légal des demandeurs VPRS 1 à VPRS 6 sur leur statut de victimes dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo (Translation not available) (PT), 9 May 2006.

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x

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

r86-PT-2

o Situation in the Democratic Republic of Congo, No. ICC01/04, Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006, paras. 102-103 :

102. Au préalable, la Chambre observe que les formulaires utilisés par les Demandeurs sont ceux de la FIDH. La norme 86-1 du Règlement de la Cour dispose que « les victimes utilisent, dans la mesure du possible, les [...] formulaires standard ». La Chambre considère ainsi que l’utilisation desdits formulaires n’est pas obligatoire et que les Demandeurs sont en droit d’utiliser les formulaires de la FIDH. Il convient de noter, par ailleurs, que les demandes de participation transmises par la FIDH contiennent bien les informations requises à la disposition 2 de la norme 86 du Règlement de la Cour. 103. En outre, la Chambre souhaiterait rappeler les circonstances dans lesquelles les demandes de participation ont été recueillies, puisque les signatures de certaines déclarations ne semblaient pas correspondre. Lors de l’audience du 12 juillet 2005, la Chambre a demandé EXPURGÉ(76) de confirmer que chacun des Demandeurs avait personnellement signé sa déclaration(77). Ce dernier a alors solennellement confirmé devant la Chambre que toutes les victimes, même les illettrées, avaient signé les déclarations déposées devant la Chambre(78). ————————— (76) EXPURGÉ . (77) EXPURGÉ . (78) EXPURGÉ .

——— Official Translation ——— 102. To begin with, the Chamber notes that the forms used by the Applicants are FIDH forms. Regulation 86 (1) of the Regulations of the Court stipulates that “[t]hese standard forms shall, to the extent possible, be used by victims”. The Chamber thus finds that the use of such forms is not compulsory and that the Applicants are entitled to use FIDH forms. It should further be noted that the applications for participation transmitted by the FIDH contain the information required by regulation 86, sub-regulation 2, of the Regulations of the Court. 103. The Court also wishes to draw attention to the circumstances in which the applications for participation were obtained, since the signatures on some statements did not appear to match. At the 12 July 2005 hearing, the Chamber asked REDACTED(76) to confirm that each Applicant had signed his or her statement personally.(77) REDACTED solemnly confirmed before the Chamber that all the victims, even those who are illiterate, had signed the statements submitted to the Chamber.(78)

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————————— (76) REDACTED. (77) REDACTED. (78) REDACTED.

Regulation 87 – Information to Victims 1. The Prosecutor shall notify the Pre-Trial Chamber as to information provided pursuant to rule 50, sub-rule 1, including the date the information was provided. 2. The Prosecutor shall inform the Registry of his or her decision not to initiate an investigation or not to prosecute pursuant to article 53, paragraphs 1 and 2, respectively, and shall provide all relevant information for notification by the Registry to victims in accordance with rule 92, sub-rule 2.

Regulation 88 – Requests for Reparations in Accordance with Rule 94 1. For the application of rule 94, the Registrar shall develop a standard form for victims to present their requests for reparations and shall make it available to victims, groups of victims, or intergovernmental and non-governmental organizations which may assist in its dissemination, as widely as possible. This standard form shall be approved in accordance with regulation 23, subregulation 2, and shall, to the extent possible, be used by victims. 2. The Registrar shall seek all necessary additional information from a victim in order to complete his or her request in accordance with rule 94, sub-rule 1, and shall assist victims in completing such a request. The request shall then be registered and stored electronically in order to be notified by the unit described in regulation 86, sub-regulation 9, in accordance with rule 94, sub-rule 2.

Chapter 6 – Detention Matters Section 1 – General Provisions Regulation 89 – Scope of this Chapter The detention of persons detained by the Court under the Statute shall be governed by the provisions of this chapter.

Regulation 90 – Management of the Detention Centre 1. Subject to the Statute, Rules and these Regulations, the Registrar shall have overall responsibility for all aspects of management of the detention centre, including security and order, and shall make all decisions relating thereto. 2. The day-to-day fulfilment of the functions described in sub-regulation 1 shall be delegated to the Chief Custody Officer. The Chief Custody Officer may, as appropriate, delegate specific functions to other persons.

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PRE-TRIAL CHAMBERS x

Regulation 90(1): Responsibility of the Registrar on the management of the detention centre – Detention related application – Order to the Registrar to submit observations

r90-PT-1

o Situation in the Democratic Republic of Congo, No. ICC01/04, Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Ordonnance priant le Greffier de fournir des observations sur les conditions de détention de Thomas Lubanga Dyilo (Translation not available) (PT), 2 June 2006 :

VU les « Conclusions relatives à l'ordonnance du 29 mai 2006 »(3) déposées par le Conseil de la défense le 31 mai 2006, dans lesquelles il a précisé que Thomas Lubanga Dyilo est en droit d'avoir un contact régulier avec ses codétenus; que si des restrictions en ce sens sont prises, elles doivent être spécifiquement ordonnées par la Chambre ; que Thomas Lubanga Dyilo est isolé de ses codétenus depuis le 17 mars 2006 et que cette mesure est illégale, […] VU l'article 43-1 du Statut, les normes 90, 91, 99 à 101 du Règlement de la Cour et la norme 212 du Règlement du Greffe, ATTENDU qu'en application de la norme 90 du Règlement de la Cour, le Greffier est responsable de l'administration pénitentiaire, PAR CES MOTIFS, ORDONNE au Greffier ou à ses représentants de présenter des observations sur les conditions de détention de Thomas Lubanga Dyilo au plus tard lundi 5 juin 2006 à 16h00. ————————— (3) ICC-01/04-01/06-131.

——— Official Translation Not Available ——— Regulation 91 – Treatment of Detained Persons 1. All detained persons shall be treated with humanity and with respect for the inherent dignity of the human person. 2. There shall be no discrimination of detained persons on grounds of gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status. Measures applied under these Regulations and the Regulations of the Registry to protect the rights and special status of particular categories of detained persons shall not be deemed to be discriminatory.

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Regulation 92 – Confidentiality of the Detention Record 1. The detention record of each detained person shall be confidential. 2. The detention record shall be made accessible to the detained person, his or her counsel and persons authorised by the Registrar, save as regards such information as the Chief Custody Officer, in consultation with the Registrar, determines should be withheld in the interests of the proper management of the detention centre. 3. A Chamber may, proprio motu or at the request of any interested person, order that the detention record or part thereof be withheld or disclosed. 4. The detained person shall be informed of any request for access to his or her detention record and shall be given the opportunity to be heard or to submit his or her views. In exceptional circumstances such as in an emergency, an order may be made prior to the detained person being informed of the request. In such a case, the detained person shall, as soon as practicable, be informed and shall be given the opportunity to be heard or to submit his or her views.

Regulation 93 – Information on Arrival at the Detention Centre 1. When a detained person arrives at the detention centre, he or she shall be provided with a copy of these Regulations and the Regulations of the Registry relevant to detention matters in a language which he or she fully understands and speaks. 2. To the extent that relevant written material as described in sub-regulation 1 is not immediately available, and pending the provision of a translation of those documents which shall be provided in a language that the detained person fully understands and speaks, the detained person shall have the assistance of an interpreter.

Regulation 94 – Inspections of the Detention Centre 1. The Presidency may, at any time, appoint a judge of the Court to inspect the detention centre and to report on the conditions of detention and the administration of the detention centre. 2. There shall be regular and unannounced inspections by an independent inspecting authority appointed by the Presidency. This authority shall be responsible for examining the manner in which detained persons are being held and treated. 3. Following an inspection carried out in accordance with sub-regulation 2, the inspecting authority shall provide a confidential report to the Presidency and the Registrar setting out its findings and any recommendations. 4. Upon receipt of the report referred to in sub-regulation 3, the Registrar shall take such action as he or she considers appropriate in consultation, where necessary, with the relevant authorities which have made the detention center available to the Court. If the Registrar does not agree with the recommendations made by the inspecting authority, he or she shall submit a report to the Presidency setting out his or her reasons. 5. The Presidency may make any direction, decision or order that it considers appropriate.

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Regulation 95 – Discipline 1. Discipline and order shall be maintained by the Chief Custody Officer in the interests of safe custody and good administration of the detention centre. 2. Details of the disciplinary procedure for detained persons shall be set out in the Regulations of the Registry. This procedure shall provide a detained person with the right to be heard on the subject of any offence alleged to have been committed, and shall include a right for the detained person to address the Presidency.

Regulation 96 – Suspensions of Regulations on Detention 1. In the event of a serious disturbance or other emergency occurring within the detention centre, the Chief Custody Officer may take such action as is immediately necessary to ensure the safety of detained persons and staff of the detention centre, or the security of the detention centre. 2. Any action taken by the Chief Custody Officer under sub-regulation 1 shall be reported immediately to the Registrar, who may, with the approval of the Presidency, temporarily suspend the operation of all or part of these Regulations or the Regulations of the Registry relevant to detention matters to the extent necessary to restore the security and good order of the detention centre.

Section 2 – Rights of a Detained Person and Conditions of Detention Regulation 97 – Communication with Defence Counsel 1. A detained person shall be informed of his or her right to communicate fully, where necessary with the assistance of an interpreter, with his or her defence counsel or assistants to his or her defence counsel as referred to in regulation 68. 2. All communication between a detained person and his or her defence counsel or assistants to his or her defence counsel as referred to in regulation 68 and interpreters shall be conducted within the sight but not the hearing, either direct or indirect, of the staff of the detention centre.

Regulation 98 – Diplomatic and Consular Assistance 1. A detained person shall be informed of his or her right to communicate with and to receive visits from: (a) A diplomatic and/or consular representative from the State of which the person is a national accredited to the State in which the detention centre is situated or the authority which has made the detention center available to the Court; or (b) Where the State of which the person is a national has no diplomatic or consular representation in the State in which the detention centre is situated, a diplomatic and/or consular representative of the State which takes charge of the interests of the State of which the person is a national; or

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(c)

In case of refugees or stateless persons, a representative of a national or international authority whose task it is to represent the interests of such persons. 2. All communication between a detained person and the persons described in subregulation 1 (a), (b) or (c), and interpreters shall be conducted within the sight but not the hearing, either direct or indirect, of the staff of the detention centre.

Regulation 99 – General Entitlements of Detained Persons 1. Every detained person shall be entitled, inter alia, to the following: (a) To participate in a work programme; (b) To keep in his or her possession authorised clothing and personal items for his or her use; (c) To procure reading and writing materials and other items for the purposes of recreation and education; (d) To keep himself or herself regularly informed of the news by way of newspapers, periodicals and other publications, radio and television broadcasts; (e) To the use of a common space equipped with reading and writing materials, a television, radio and computer, which shall be provided for the general use of all detained persons; (f) To a period of exercise in the open air of at least one hour per day; (g) To engage in sporting activities; (h) To receive correspondence, mail and packages; (i) To communicate by letter or telephone with his or her family and other persons. 2. The relevant details for the application of sub-regulation 1 shall be set out in the Regulations of the Registry, including any restrictions necessary in the interests of the administration of justice or for the maintenance of the security and good order of the detention centre.

Regulation 100 – Visits 1. A detained person shall be entitled to receive visits. 2. A detained person must be informed of the identity of each visitor and may refuse to see any visitor. 3. The relevant conditions for visits as well as restrictions and supervision that may be necessary in the interests of the administration of justice or for the maintenance of the security and good order of the detention centre shall be set out in the Regulations of the Registry.

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Regulation 101 – Restrictions to Access to News and Contact 1. A Chamber seized of the case may, at the request of the Prosecutor, order that access to the news be restricted, if it is considered necessary in the interests of the administration of justice, in particular, if unrestricted access could prejudice the outcome of the proceedings against that detained person or the outcome of any other investigation. 2. The Prosecutor may request the Chamber seized of the case to prohibit, regulate or set conditions for contact between a detained person and any other person, with the exception of counsel, if the Prosecutor has reasonable grounds to believe that such contact: (a) Is for the purposes of attempting to arrange the escape of a detained person from the detention centre; (b) Could prejudice or otherwise affect the outcome of the proceedings against a detained person, or any other investigation; (c) Could be harmful to a detained person or any other person; (d) Could be used by a detained person to breach an order for nondisclosure made by a judge; (e) Is against the interests of public safety; or (f) Is a threat to the protection of the rights and freedom of any person. 3. The detained person shall be informed of the Prosecutor’s request and shall be given the opportunity to be heard or to submit his or her views. In exceptional circumstances such as in an emergency, an order may be made prior to the detained person being informed of the request. In such a case, the detained person shall, as soon as practicable, be informed and shall be given the opportunity to be heard or to submit his or her views.

Regulation 102 – Spiritual Welfare 1. A detained person shall be entitled to practise his or her religion or belief. 2. A detained person shall, on arrival at the detention centre or at any time thereafter, be entitled, in accordance with the Regulations of the Registry, to establish contact with a minister or spiritual adviser available in the State in which the detention centre is situated.

Regulation 103 – Health and Safety of Detained Persons 1. Arrangements shall be made by the Registrar to protect the health and the safety of detained persons. 2. Arrangements shall be made by the Registrar in order to meet the needs of detained persons with disabilities. 3. Medical services, including dental care, shall be made available for detained persons. 4. A qualified medical officer with experience in psychiatry shall be available to attend the detention centre. A nurse shall be present at the detention centre at all

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times. A detained person may be visited by and consult with a doctor of his or her own choice, subject to the relevant details and restrictions set out in the Regulations of the Registry. 5. A detained person who requires specialist treatment shall, as far as possible, be treated within the detention centre. Should hospitalization be necessary, the detained person shall be transferred to a hospital without delay. The Registrar shall ensure the continuous detention of the person both at the place of treatment and when in transit. 6. Arrangements shall be made by the Registrar for the detention of mentally ill persons and for those who suffer from serious psychiatric conditions. By order of the Chamber, a detained person who is determined to be mentally ill or who suffers from a serious psychiatric condition may be transferred to a specialized institution for appropriate treatment. 7. In the event of death or serious illness or injury of a detained person, the Presidency may order an inquiry into the circumstances.

Regulation 104 – Arrangements for the Care of Infants 1. Arrangements shall be made by the Registrar for a detained person to give birth in a hospital outside the detention centre. Special accommodation shall be provided for all necessary pre-natal and post-natal care and treatment. 2. Where the Registrar, following consultation with the Chief Custody Officer, authorises an infant to remain or to stay within the detention centre, arrangements shall be made for a nursery staffed with qualified personnel for the care of such an infant.

Regulation 105 – Accomodation 1. Men and women shall be detained in separate areas within the detention centre. 2. Persons convicted and in respect of whom final sentence has been passed shall, whenever possible, be accommodated separately from detained persons awaiting trial or appeal. 3. A detained person shall occupy a cell unit by himself or herself except in exceptional circumstances or in cases where the Chief Custody Officer, with the approval of the Registrar, considers that it is necessary to share accommodation.

Regulation 106 – Complaints 1. A detained person shall have the right to file a complaint against any administrative decision or order or with regard to any other matter concerning his or her detention. 2. The complaints procedure shall be set out in the Regulations of the Registry and shall include a right for the detained person to address the Presidency.

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Chapter 7 – Cooperation and Enforcement Section 1 – Cooperation Regulation 107 – Arrangements and Agreements on Cooperation 1. All agreements with any State not party to the Statute or any intergovernmental organization, setting out a general framework for cooperation on matters within the competency of more than one organ of the Court, shall be negotiated under the authority of the President who shall seek recommendations from the Advisory Committee on Legal Texts. Such agreements shall be concluded by the President on behalf of the Court. The existence of an agreement concluded in accordance with this sub-regulation does not preclude the Prosecutor from entering into those agreements referred to in article 54, paragraph 3 (d). 2. Each organ of the Court shall inform the Presidency of any arrangement or agreement on cooperation, not being one setting out a general framework for cooperation as referred to in sub-regulation 1, that the organ intends to negotiate, unless such information is inappropriate for reasons of confidentiality. Subject to article 54, paragraph 3 (d), and to reasons of confidentiality, such arrangements and agreements shall be concluded by the President or by delegation by the relevant organ under whose authority the arrangement or agreement has been negotiated.

Regulation 108 – Ruling Regarding the Legality or a Request for Cooperation 1. In case of a dispute regarding the legality of a request for cooperation under article 93, a requested State may apply for a ruling from the competent Chamber. 2. A ruling under sub-regulation 1 may be sought only after a declaration has been made by the requesting body that consultations have been exhausted and within 15 days following such declaration. In case of requests under article 99, paragraph 4, and should no further consultations be possible, the requested State may seek a ruling within 15 days from the day on which the requested State is informed of or became aware of the direct execution. 3. An application under sub-regulation 1 shall not of itself have suspensive effect, unless the Chamber so orders. 4. The Chamber may hear from participants to the proceedings on the matter. 5. If the Chamber rejects the application referred to in sub-regulation 1, the Chamber may grant the requested State additional time within which it shall execute the request or the Chamber shall lift any suspension of direct execution.

Regulation 109 – Failure to Comply with a Request for Cooperation 1. An application for a finding under article 87, paragraph 7, may be made to the competent Chamber by the requesting body either where no application has been made under regulation 108, following the lapse of the time limit referred to in subregulation 2 of that provision, or where an application has been made, following a

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ruling by the Chamber under sub-regulation 5 of that provision and, if applicable, following the lapse of the time limit referred to therein. 2. When a Chamber has made a request for cooperation, proceedings under article 87, paragraph 7, may be initiated by that Chamber. Sub-regulation 1 shall apply mutatis mutandis. 3. Before making a finding in accordance with article 87, paragraph 7, the Chamber shall hear from the requested State. 4. Where a finding under article 87, paragraph 7, has been made, the President shall refer the matter to the Assembly or the Security Council in accordance with that provision and, as regards the Security Council, in accordance with the agreement to be concluded under article 2.

Regulation 110 – Cooperation for the Purposes of Notification by Way of Personal Service For the purposes of notification by way of personal service as described in regulation 31, sub-regulation 4, the requesting body shall, where necessary, make a request for cooperation to the relevant State under articles 93, paragraph 1 (d), and 99, paragraph 1.

Regulation 111 – Information about Admissibility Ruling When transmitting a request for the arrest and surrender of a person in accordance with article 89, paragraph 1, the Registrar shall enclose a copy of any relevant admissibility ruling of the Court.

Regulation 112 – Views of the Surrendering State in or after Admissibility Proceedings At any time before making a decision on a challenge to admissibility based on the grounds set out in article 17, paragraph 1 (a), the Chamber shall hear from the State which originally surrendered the person as to whether that State objects to the transfer of the person to the State which brought the challenge to admissibility.

Section 2 – Enforcement Regulation 113 – Enforcement Unit within the Presidency 1. The Presidency shall establish an enforcement unit within the Presidency to assist it in the exercise of its functions under Part 10 of the Statute, in particular: (a) The supervision of enforcement of sentences and conditions of imprisonment; and (b) The enforcement of fines, forfeiture orders and reparation orders. 2. The record for each sentenced person shall be maintained by the Registrar in accordance with rule 15.

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Regulation 114 – Bilateral Arrangements under Rule 200, Sub-Rule 5 Bilateral arrangements as described in rule 200, sub-rule 5, shall be negotiated under the authority of the Presidency and thereafter concluded with the relevant State by the President.

Regulation 115 – Exercise of Functions under Rule 214, Sub-Rule 4 In the exercise of its functions under rule 214, sub-rule 4, the Presidency shall have due regard to the principles of international law on re-extradition.

Regulation 116 – Enforcement of Fines, Forfeiture Orders and Reparation Orders 1. For the purposes of enforcement of fines, forfeiture orders and reparation orders, the Presidency, with the assistance of the Registry as appropriate, shall make the arrangements necessary in order to, inter alia: (a) Receive payment of fines as described in article 77, paragraph 2 (a); (b) Receive, as described in article 109, paragraph 3, property or the proceeds of the sale of real property or, where appropriate, the sale of other property; (c) Account for interest gained on money received under (a) and (b) above; (d) Ensure the transfer of money to the Trust Fund or to victims, as appropriate. 2. Following the transfer to or deposit in the Trust Fund of property or assets realized through enforcement of an order of the Court, the Presidency shall, subject to article 75, paragraph 2, and rule 98, decide on their disposition or allocation in accordance with rule 221.

Regulation 117 – Ongoing Monitoring of Financial Situation of the Sentenced Person The Presidency shall, if necessary, and with the assistance of the Registrar as appropriate, monitor the financial situation of the sentenced person on an ongoing basis, even following completion of a sentence of imprisonment, in order to enforce fines, forfeiture orders or reparation orders, and may, inter alia: (a) Request relevant information, expert opinions or reports, where necessary by way of a request for cooperation, and, if appropriate, on a periodic basis; (b) Contact, where appropriate in the manner described in rule 211, paragraph 1 (c), the sentenced person and his or her counsel in order to inquire into the financial situation of the sentenced person; (c) Ask for observations from the Prosecutor, victims and legal representatives of victims.

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Regulation 118 – Procedure under Rule 146, Sub-Rule 5 1. In making its decision on the extension of the term of imprisonment in accordance with rule 146, sub-rules 5 and 6, the Presidency may ask for observations from States in which attempts to enforce fines did not succeed and shall ask for observations from the State in which the sentence of imprisonment is being served. 2. Where the term of imprisonment has been extended under rule 146, subrule 5, and the sentenced person subsequently pays the fine or a portion thereof, the Presidency shall revoke or in case of partial payment reduce the extension previously ordered.

Chapter 8 – Removal from Office and Disciplinary Measures Regulation 119 – Receipt and Administration of Complaints 1. All complaints against a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar concerning conduct defined under rules 24 and 25 shall be submitted directly to the Presidency, which shall notify the person against whom the complaint has been directed of that complaint. 2. The Presidency shall make all necessary arrangements for administrative assistance when dealing with a complaint.

Regulation 120 – Procedure under Rule 26, Sub-Rule 2 1. The Presidency shall be assisted by three judges, appointed on the basis of automatic rotation following the English alphabet of the surnames of all judges not comprising the Presidency or the judge being complained against, in order to determine whether a complaint is anonymous or manifestly unfounded. 2. The judges appointed in accordance with sub-regulation 1 shall, where necessary, seek additional comments from either the person being complained against or the complainant and shall make a recommendation to the Presidency on whether such complaint is admissible or should be set aside in accordance with rule 26, sub-rule 2. The appointed judges shall also make a recommendation as to whether the complaint against a judge, the Registrar or Deputy Registrar relates to conduct which falls manifestly outside the scope of rule 24. 3. The Presidency shall decide whether to accept any recommendation described in sub-regulation 2. 4. If a complaint relates to a member of the Presidency, he or she shall not carry out any function as a member of the Presidency with regard to the complaint and his or her functions in that respect shall be exercised by the next available judge having precedence in accordance with regulation 10.

Regulation 121 – Decision under Rule 26, Sub-Rule 2, and Transmission of Complaint to the Competent Organ 1. In case the Presidency decides that a complaint against a judge, the Registrar or Deputy Registrar is not anonymous or manifestly unfounded, it shall transmit the

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complaint to a plenary session, unless the Presidency determines that the conduct complained of falls manifestly outside the scope of rule 24, in which case the matter shall be considered by the Presidency in accordance with article 47, rule 30, subrule 1 and regulation 122. 2. In case the Presidency decides that a complaint against the Prosecutor or a Deputy Prosecutor is not anonymous or manifestly unfounded, it shall: (a) With regard to the Prosecutor, transmit the complaint to the Bureau of the Assembly; (b) With regard to the Deputy Prosecutor, transmit the complaint to the Prosecutor.

Regulation 122 – Procedure before the Presidency on Disciplinary Measures for a Judge, the Registrar or the Deputy Registrar 1. When it is determined in accordance with regulation 121, sub-regulation 1, that a complaint should be considered by the Presidency, that complaint shall be dealt with in accordance with rule 27. 2. If the Presidency decides to impose disciplinary measures, the judge, Registrar or Deputy Registrar concerned may file an appeal against that decision to a plenary session within 30 days of notification of the decision.

Regulation 123 – Procedure for Removal from Office of a Judge, the Registrar or the Deputy Registrar 1. The judges appointed under regulation 120, sub-regulation 1, shall conduct the proceedings under article 46, paragraph 4, and rule 27 and shall report thereon to a plenary session. 2. The procedure to be followed prior to the adoption of any recommendation concerning a judge under article 46, paragraph 2, and rule 29, sub-rule 1, is without prejudice to any additional procedure to be followed by the Assembly under article 46, paragraph 4, and rule 27.

Regulation 124 – Suspension from Duty 1. For the purposes of rule 28, a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar may be suspended from duty following the decision of the Presidency under rule 26, sub-rule 2, by the organ competent to make a decision under article 46, paragraphs 2 and 3. 2. Suspension from duty shall not affect salary and allowances.

Regulation 125 – Initiation of Proceedings by the Presidency In cases where the Presidency initiates proceedings on its own motion, the preliminary assessment of whether complaints are anonymous or manifestly

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unfounded under rule 26, sub-rule 2, shall not be required and regulations 121 to 124 shall apply mutatis mutandis.

Chapter 9 – Adoption of the Code of Judicial Ethics Regulation 126 – Adoption of the Code of Judicial Ethics 1. The Presidency shall draw up a Code of Judicial Ethics, after having consulted the judges. 2. The draft Code shall then be transmitted to the judges meeting in plenary session for the purpose of adoption by the majority of the judges.

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LIST OF REVIEWED DECISIONS Decisions are referred to in their original language (English or French). Where available, the official English translation of decisions rendered in French is provided in brackets and italics. Decisions of the Pre-Trial Chambers have their title followed by “(PT)”. Decisions of the Trial Chambers have their title followed by “(T)”. Decisions of the Appeals Chamber have their title followed by “(A)”. Decisions of the Presidency have their title followed by “(P)”. QRN in Bold refer to the abstracts reproduced in the Digest. QRN in Italics refer to the decision mentioned in the author’s footnotes under the abstracts.

Situation in the Democratic Republic of the Congo, No. ICC-01/04 1.

Decision Assigning the Situation in the Democratic Republic of Congo to PreTrial Chamber I (P), 5 July 2004: S38-P-1, r46-P-1

2.

Élection du Juge Président de la Chambre Préliminaire I (Election of the Presiding Judge of Pre-Trial Chamber I) (PT), 16 September 2004 : r13-P-1

3.

Decision on the Prosecutor’s Position on Pre-Trial Chamber I’s 17 February 2005 Decision to Convene a Status Conference (PT), 9 March 2005: S82-PT-2, R15-PT-6

4.

Decision on the Prosecutor’s Application for Leave to Appeal (PT), 14 March 2005: S82-PT-2, S82-PT-11

5.

Ordonnance (Order) (PT), 5 April 2005: R15-PT-3

6.

Decision to Hold Consultation Under Rule 114 (PT), 21 April 2005: S54-PT-2, S56-PT-1, R114-PT-1

7.

Decision on Prosecutor’s Request for Measures Under Article 56 (PT), 26 April 2005: S56-PT-2, S56-PT-3, S56-PT-4

8.

Decision on the Prosecutor’s Communication to the Pre-Trial Chamber (PT), 1 st June 2005: S56-PT-3

9.

Décision sur la demande de prorogation de délai (Decision on the Request for an Extension of the Deadline) (PT), 12 July 2005 : r31-PT-1

10. Decision on the Designation of a Single Judge (PT), 14 July 2005: S39-PT-2 11. Decision on Protective Measures Requested by Applicants 01/04-1/dp to 01/046/dp (PT), 21 July 2005: S68-PT-3, R89-PT-2, R90-PT-1, r76-PT-1 12. REDACTED Decision on the Requests (PT), 5 August 2005: R103-PT-1 13. Decision on the Prosecutor’s Application for Extension of the Deadline (PT), 12 August 2005: r35-PT-7 14. Decision to Hold Consultation (PT), 5 October 2005: S56-PT-3, R114-PT-2

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15. Decision Following the Consultation Held on 11 October 2005and the Prosecution’s Submission on Jurisdictions and Admissibility Filed on 31 st October 2005 (PT), 9 November 2005: S19-PT-2, S56-PT-3 16. Decision as to the Content of the NFI Report (PT), 28 November 2005: S56-PT-3 17. Décision sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 17 January 2006 : S1-PT-1, S13-PT-1, S21-PT-7, S51-PT1, S68-PT-8, S68-PT-9, S69-PT-1, S70-PT-1, S71-PT-1, S72-PT-1, S73-PT1, S127-PT-1, S128-PT-1, R2-PT-1, R85-PT-1, R85-PT-3, R85-PT-4, R85PT-6, R85-PT-7, R89-PT-3, R92-PT-1, r86-PT-1, r86-PT-2 18. Décision sur la Requête du Procureur sollicitant l’autorisation de déposer une réplique (Decision on the Prosecution’s Application for Leave to Reply) (PT), 1st February 2006 : r24-PT-4 19. Decision Establishing a Deadline for Final Submissions on the NFI’s Additional Report (PT), 8 February 2006: S56-PT-x, S68-PT-10 20. Décision portant désignation d’un juge unique (Translation not available) (PT), 24 février 2006 : S39-PT-2 21. Décision portant désignation d’un juge unique (Decision Designing a Single Judge) (PT), 14 March 2006 : S39-PT-2 22. Decision Concerning the Reclassification of Non-Public Documents in the Record of the Situation in the Democratic Republic of the Congo (PT), 20 March 2006 23. Décision relative à la Requête du Procureur sollicitant l’autorisation d’interjeter appel de la Décision du 17 janvier 2006 sur les Demandes de Participation à la Procédure de VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 et VPRS 6 (Decision on the Prosecution Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (PT), 31 March 2006 : S21-PT-4, S54-PT-1, S68-PT-8, S68-PT-10, S82-PT-6, S82PT-7, S82-PT-11, R85-PT-9, R89-PT-2, r33-PT-2, r36-PT-1 24. Decision Authorising Time Extension Request for Final Clarifications from the NFI (PT), 5 April 2006: r35-PT-8 25. Décision portant désignation d’un juge unique (Translation not available) (PT), 5 avril 2006 : S39-PT-2 26. Decision Reclassifying Certain Documents in the Record of the Situation in the Democratic Republic of the Congo (PT), 21 April 2006: R14-PT-1 27. Decision on Prosecutor’s Request for Measures under Article 56 (PT), 26 April 2006: S56-PT-2, S56-PT-3 28. Decision on the Presiding Judge of the Appeals Chamber (A), 27 April 2006: r13-A-1

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29. Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006: S68-PT-3, R89-PT-2, R90-PT-1 30. Décision relative à la Requête aux fins de prorogation du délai de réponse introduite par le Conseil ad hoc de la Défense (Translation not available) (PT), 16 June 2006 : S50-PT-1, r35-PT-3 31. Décision relative à la Requête des demandeurs a/0001/06 à a/0003/06 aux fins de pouvoir répondre aux observations du Procureur et du Conseil de la Défense ad hoc (Translation not available) (PT), 7 juillet 2006 : S68-PT-8, S68-PT-13 32. Scheduling Order for “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal” (A), 11 July 2006: R158-A-6 33. Judgment on the Prosecutor’s Application for Extraordinary Review of PreTrial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006: S21-A-3, S21-A-4, S82-A-3, S82-A-5, r37-A-2 34. Décision portant désignation d’un juge unique (Translation not available) (PT), 13 July 2006 : S39-PT-2 35. Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (Translation not available) (PT), 31 July 2006 : S1-PT-1, R85-PT-8 36. Décision autorisant le dépôt d’observations sur les demandes de participation à la procedure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06 et a/0071/06 (Decision authorising the filing of observations on the applications for participation in the proceedings a/0004/06 to a/0009/06, a/0016/06 to a/0063/06 and a/0071/06) (PT), 22 September 2006: S68-PT-3 37. Décision autorisant le dépôt d’observations sur les demandes de participation à la procédure a/0072/06 à a/0080/06 et a/0105/06 (Decision authorising the filing of observations on applications for participation in the proceedings a/0072/06 to a/0080/06 and a/0105/06) (PT), 29 September 2006 : S68-PT-3

Situation in the Democratic Republic of the Congo, No. ICC-01/04 Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 1.

Under Seal Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (PT), 10 February 2006 (Annexed to Decision Concerning Pre-Trial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006): S1-PT-1, S9-PT-1, S13-PT-1, S17-PT-1, S19-PT-1, S21-PT-5, S57-PT-1, S58-PT-2, S58-PT-3, S58-PT-4, S58-PT-6, S58-PT-7, S58-PT-21, S89-PT-2, R99-PT-1

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2.

Mandat d’arrêt (Warrant of Arrest) (PT), 10 February 2006 (made public n 17 March 2006) : S58-PT-10, S58-PT-12, S58-PT-14, S58-PT-16

3.

Demande d’arrestation et de remise de M. Thomas Lubanga Dyilo adressée à la République Démocratique du Congo (Translation not available) (PT), 24 February 2006 (made public on 20 March 2006) : S89-PT-3, S91-PT-1

4.

Decision Concerning Pre-Trial Chamber I’s Decision on 10 February 2006 and the Incorporation of Documents into Record of the Case Against Mr Thomas Lubanga Dyilo (PT), 24 February 2006 (made public on 17 March 2006): R15-PT-2

5.

Decision Rectifying Typographical Errors in the Decision of 24 February 2006 (PT), 6 March 2006 (made public on 20 March 2006): R15-PT-4

6.

Demande adressée à la République Démocratique du Congo en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo (Translation not available) (PT), 9 March 2006 (made public on 20 March 2006) : R99-PT-2

7.

Under Seal Redacted Version of the Decision Concerning Supporting Materials in Connection with the Prosecution’s Application REDACTED pursuant to article 58 (PT), 9 March 2006 (made public on 20 March 2006): S58-PT-8

8.

Décision sous scellés portant désignation d’un juge unique (Decision Designing a Single Judge) (PT), 14 mars 2006 (rendue publique le 21 mars 2006) : S39-PT-2

9.

Decision Concerning the Redacted Version of the Prosecution’s Application and the Prosecutor’s Submissions of Further Information and Materials (PT), 15 March 2006 (made public on 21 March 2006): S50-PT-2, S67-PT-2

10. Order Concerning the Incorporation of Certain Documents into the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 16 March 2006 (made public on 21 March 2006): R15-PT-2 11. Decision Convening an In Camera Meeting (PT), 16 March 2006 (made public on 21 March 2006): r28-PT-2 12. Order Scheduling the First Appearance of Mr. Thomas Lubanga Dyilo (PT), 17 March 2006: R121-PT-3 13. Decision to Unseal the Warrant of Arrest Against Mr. Thomas Lubanga Dyilo and Related Documents (PT), 17 March 2006: r8-PT-1 14. Order Authorising Photographs at the Hearing of 20 March 2006 (PT), 20 March 2006: r21-PT-1 15. Decision to Unseal and Reclassify Certain Documents in the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 20 March 2006: r8-PT-1 16. Decision on the Application by the Duty Counsel for the Defence Dated 20 March 2006 (PT), 22 March 2006: S82-PT-1 17. Decision Concerning the Hearing on 2 February 2006 (PT), 22 March 2006

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18. Décision désignant un juge unique dans l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Decision Designing a Single Judge in the Case of the Prosecutor v. Thomas Lubanga Dyilo) (PT), 22 March 2006 : S39-PT-1 19. Decision to Unseal and Reclassify Certain Additional Documents in the Record of the Case Against Mr. Thomas Lubanga Dyilo (PT), 22 March 2006: r8-PT-1 20. Redacted Version of the Transcripts of the Hearing Held on 2 February 2006 and Certain Materials Presented During that Hearing (PT), 22 March 2006: S67-PT-4 21. Decision Requesting Observations of the Prosecution and the Duty Counsel for the Defence on the System of Disclosure and Establishing an Interim System of Disclosure (PT), 23 March 2006: S61-PT-6, S67-PT-7 22. Decision on the Presiding Judge of the Appeals Chamber (A), 27 March 2006: r13-A-1 23. Decision Requesting Further Observations from the Prosecutor and the Duty Counsel for the Defence on the System of Disclosure (PT), 27 March 2006 24. Décision autorisant le Procureur et la Défense à déposer des observations au sujet du statut de victime des demandeurs VPRS 1 à VPRS 6 dans le cadre de l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Translation not available) (PT), 28 mars 2006 : R89-PT-2 25. Demande adressée aux États Parties au Statut de Rome en vue d’obtenir l’identification, la localisation, le gel et la saisie des biens et avoirs de M. Thomas Lubanga Dyilo (Request to States Parties to the Rome Statute for the Identification, Tracing and Freezing or Seizure of the Property and Assets of Mr Thomas Lubanga Dyilo) (PT), 31 mars 2006 : S57-PT-1, S57-PT-2 26. Decision Convening a Hearing on the System of Disclosure for the Purpose of the Confirmation Hearing (PT), 7 April 2006: R121-PT-6, r77-PT-1 27. Decision on the Agenda of the Hearing of 24 April 2006 (PT), 19 April 2006: R121-PT-7 28. Decision Concerning the Reclassification of the Redacted Versions of Documents ICC-01/04-01/06-32-US-Exp and ICC-01/04-01/06-32-Conf-AnxC as Public (PT), 19 April 2006: R87-PT-2 29. Decision Establishing a Time Limit for the Prosecutor’s Response to the Request of the Defence for Unrestricted Access to the Entire Record of the Situation in the Democratic Republic of the Congo (PT), 19 April 2006: r34-PT-1 30. Decision Concerning Transcripts of the In Camera Meeting Held on 17 March 2006 (PT), 19 April 2006: S50-PT-2 31. Décision relative à la demande de prorogation de délai pour l’envoi du mémoire du représentant légal des demandeurs VPRS 1 à VPRS 6 sur leur statut de victimes dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo (Translation not available) (PT), 9 May 2006 : r24-PT-3, r86-PT-1

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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32. Decision on the Transmission of the Transcript of the In Camera Meeting Held on 17 March 2006 (PT), 9 May 2006: S50-PT-2 33. Decision on the Final System of Disclosure and the Establishment of a Timetable (PT), 15 May 2006: S21-PT-5, S21-PT-6, S21-PT-7, S61-PT-1, S61-PT-2, S61-PT-3, S61-PT-4, S61-PT-7, S61-PT-10, S61-PT-14, S67-PT-5, S67-PT-8, R13-PT-2, R14-PT-3, R76-PT-3, R77-PT-3, R78-PT-1, R79-PT-1, R80-PT-1, R81-PT-13, R121-PT-5, R121-PT-8, R121-PT-9, R121-PT-10, R121-PT-11, R121-PT-12, R121-PT-13, R121-PT-14, R121-PT-17, R122-PT-6, r26-PT-1 34. Decision Correcting the Annex Regarding the Redactions of the Transcript of the In Camera Meeting Held on 17 March 2006 (PT), 17 May 2006: S50-PT-2 35. Decision on the Defence Request to Unlimited Access to the Entire File of the Situation in the Democratic Republic of Congo (PT), 17 May 2006: R15-PT-2 36. Decision Establishing a Deadline for the Prosecution and the Defence to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06 (PT), 18 May 2006: S68-PT-3, R89-PT-2, R90-PT-1 37. Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 19 May 2006: S21-PT-5, S21-PT-7, S61-PT-7, S67-PT-12, R14-PT-2, R81-PT-4, R81-PT-6, R81-PT-10, R81-PT-15, R121-PT-4, r8-PT-1 38. Decision on the Defence Motion Concerning the Ex Parte Hearing of 2 May 2006 (PT), 22 May 2006: R81-PT-4 39. Decision on the Prosecution Filing of 19 April 2006 and Application of 24 April 2006 (PT), 22 May 2006: R81-PT-15 40. Decision Rectifying Typographical or Other Formal Errors of the Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Statute (PT), 22 May 2006: R15-PT-4 41. Decision on the Prosecution Application for an Extension of the Page Limit for Application to Be Filed Tomorrow (PT), 23 May 2006: r37-PT-3 42. Decision on the Prosecution Motion for Reconsideration (PT), 23 May 2006: S21-PT-4, S82-PT-4 43. Decision on the Postponement of the Confirmation Hearing and the Adjustment of the Timetable Set in the Decision on the Final System of Disclosure (PT), 24 May 2006: R121-PT-21 44. Ordonnance relative à la Requête de mise en liberté (PT), 29 mai 2006 : r51-PT-1 45. Decision on the Appellant’s Application for an Extension of the Time Limit for the Filing of the Document in Support of the Appeal and Order Pursuant to Regulation 28 of the Regulations of the Court (A), 30 May 2006: r28-A-1, r35-A-3, r64-A-1

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46. Ordonnance priant le Greffier de fournir des observations sur les conditions de détention de Thomas Lubanga Dyilo (Translation not available) (PT), 2 June 2006 : r90-PT-1 47. Decision on the Prosecution Motion for Reconsideration and, in the Alternative, Leave to Appeal (PT), 23 June 2006: S61-PT-8, S82-PT-4, S82-PT-6, S82-PT-8, S82-PT-9, R81-PT-5, R155-PT-2 48. Decision on the Presiding Judge of the Appeals Chamber in the Prosecutor’s Appeal Pursuant to the Decision of Pre-Trial Chamber I of 23 June 2006 (A), 27 June 2006: R158-A-4, r13-A-1 49. Order Concerning the Filing of a Response by the Defence to the “Prosecutor’s Motion for Extensions of the Time and Page Limits” (A), 28 June 2006: R158-A-5 50. Décision sur la Requête de la Défense sollicitant l’autorisation de déposer une réplique (Decision on the Defence motion seeking leave to file a reply) (PT), 29 June 2006 : r24-PT-5, r36-PT-1, r37-PT-1 51. Décision sur les demandes de participation à la procédure présentées par les Demandeurs VPRS 1 à VPRS 6 dans l’Affaire Le Procureur c/ Thomas Lubanga Dyilo (Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case The Prosecutor v. Thomas Lubanga Dyilo) (PT), 29 June 2006 : R85-PT-1, R85-PT-2 52. Decision on Thomas Lubanga Dyilo’s Brief Relative to Discontinuance of Appeal (A), 3 July 2006: R157-A-1, R158-A-4, r29-A-1 53. Decision on the “Prosecutor’s Motion for Extensions of the Time and Page Limits” (A), 3 July 2006: r35-A-4, r37-A-1 54. Order Concerning the Filing of a Response by the Prosecutor Response to the Defence Application for an Extension of the Time Limit for the Filing of the Response to the Document in Support of the Appeal (A), 4 July 2006: r35-A-2 55. Decision Establishing a Deadline for the Response of the Prosecution (PT), 4 July 2006: r34-PT-1 56. Decision on the Application by Counsel for Thomas Lubanga Dyilo to Extend the Time Limit for the Filing of the Response to the Prosecutor’s Document in Support of the Appeal (A), 11 July 2006: r35-A-5 57. Judgment on the Prosecutor’s Application for Extraordinary Review of PreTrial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal (A), 13 July 2006: S21-A-3, S21-A-4, S67-A-1, S82-A-3, S82-A-5, r37-A-2 58. Order Relating to the Application for Release (PT), 13 July 2006: r28-PT-1 59. Décision invitant la République Démocratique du Congo et les victimes de l’affaire en cause à présenter leurs observations sur les procédures menées en vertu de l’Article 19 du Statut (Decision inviting the Democratic Republic of the Congo and the victims in the case to comment on the proceedings pursuant to Article 19 of the Statute) (PT), 24 July 2006

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

639

60. Decision Giving the Prosecution a Deadline to Respond to the Conclusions de la Défense quant aux divulgations de documents expurgés faites par le Procureur (PT), 27 July 2006 : r34-PT-1 61. Decision on the New Version of the Draft Protocol on the Presentation of Evidence Prepared Jointly by the Office of the Prosecutor, the Defence and the Registry (PT), 27 July 2006: r26-PT-1 62. Décision sur les demandes de participation à la procédure a/0001/06, a/0002/06 et a/0003/06 dans le cadre de l’affaire Le Procureur c/ Thomas Lubanga Dyilo et de l’enquête en République Démocratique du Congo (Decision on the Applications for Participation in the Proceedings of a/0001/06, a/0002/06 and a/0003/06 in the case of the Prosecutor v Thomas Lubanga Dyilo and of the investigation in the Democratic Republic of Congo) (PT), 28 July 2006 : S1-PT-1, R85-PT-8 63. Decision on the Prosecution Request for Access to the Registry Recommendations (PT), 31 July 2006: R81-PT-15, R81-PT-16 64. Decision Inviting the Prosecution to Revise Proposed Redactions in Relation to the Prosecution Amended Application Pursuant to Rule 81(2) of the Rules of Procedure and Evidence (PT), 31 July 2006: R81-PT-8 65. Decision on the Defence Request to File a Reply to the Prosecution’s Response to the “Conclusions de la Défense quant aux divulgations de documents expurgées par le Procureur” (PT), 2 August 2006: r24-PT-6, r34-PT-1 66. Decision on the Prosecution Amended Application Pursuant Rule 81(2) (PT), 2 August 2006: S61-PT-x, R81-PT-9, R81-PT-10

to

67. Decision on the Requests of the Defence of 3 and 4 July 2006 (PT), 4 August 2006: S67-PT-6, r35-PT-2, r40-PT-1 68. Décision autorisant le Procureur et la Défense à déposer des observations sur les demandes des requérants a/0004/06 à a/0009/06 et a/0016/06 à a/0046/06 et a/0047/06 à a/0052/06 dans le cadre de l’affaire Le Procureur c. Thomas Lubanga Dyilo (Decision authorising the Prosecutor and the Defence to file observations on the applications of applicants a/0004/06 to a/0009/06, a/0016/06 to a/0046/06 and a/0047/06 to a/0052/06 in the case of the Prosecutor v. Thomas Lubanga Dyilo) (PT), 4 August 2006 : S68-PT-3 69. Decision Establishing a Time Limit for the Prosecution and the Victims to Submit their Responses to the Request for Leave to Appeal by the Defence (PT), 8 August 2006: r34-PT-1 70. Decision Rectifying the Time Limit for the Prosecution and the Victims to Submit their Responses to the Request for Leave to Appeal by the Defence (PT), 9 August 2006 71. Décision autorisant le Procureur et la Défense à déposer une réponse aux observations des représentants légaux des victimes concernant les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision Authorising the Prosecutor and the Defence to Respond to the Observations of the Legal Representatives of the Victims regarding the Manner in which Victims a/0001/06, a/0002/06 and

640

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a/0003/06 are to Participate in the Confirmation Proceedings) (PT), 10 August 2006 : r24-PT-1, r34-PT-1 72. Decision on the Temporary Substitution of the Single Judge (PT), 11 August 2006: S39-PT-5 73. Décision relative aux requêtes de la Défense et de l’Accusation concernant la prorogation de délai (Decision on the Defence and Prosecution Applications for Extension of Deadline) (PT), 16 August 2006 : S68-PT-3, r35-PT-4 74. Décision relative à la demande de participation des victimes a/0001/06 à a/0003/06 à la conférence de mise en état du 24 août 2006 (Translation not available) (PT), 17 August 2006 : S68-PT-9 75. Decision on the Defence Motion for Leave to Appeal (PT), 18 August 2006: S68-PT-2, S82-PT-6, S82-PT-10, S82-A-3 76. Decision on the Prosecution Urgent Request for Ex Parte Hearing (PT), 18 August 2006: R81-PT-16 77. Decision on the Agenda of the Hearings of 23 and 24 August 2006 (PT), 22 August 2006 78. Decision on the Prosecution Practice to Provide to the Defence Redacted Versions of Evidence and Materials Without Authorisation by the Chamber (PT), 25 August 2006: R81-PT-1 79. Final Decision on the E-Court Protocol for the Provision of Evidence, Material and Witness Information in Electronic Version for their Presentation during the Confirmation Hearing (PT), 28 August 2006: S61-PT-5, R81-PT-1, R121-PT-19 80. Decision on the Defence’s Request to File a Reply (PT), 28 August 2006: r24-PT-2, r34-PT-1 81. Decision on the Agenda of the Hearing of 1 September 2006 (PT), 30 August 2006: R81-PT-14 82. Corrigendum to the Decision on the Agenda of the Hearing of 1 September 2006 (PT), 31 August 2006 83. Decision on the Supplementary Agenda of the Hearing of 1 September 2006 (PT), 31 August 2006 84. Decision on the Prosecution Request for Extension of Time, Clarification and Provision of Information (PT), 1 September 2006: S61-PT-5 85. Oral Decision on the Prosecution Request for an Extension of a Time Limit (PT), 1 September 2006: S43-PT-3 86. Decision Concerning the Prosecution’s Request for Redactions (PT), 1 September 2006: R81-PT-8 87. Decision on the Agenda of the Status Conference of the 5 th September 2006 (PT), 4 September 2006 88. Décision relative à la participation des victimes a/0001/06 à a/0003/06 à la conférence de mise en état du 5 septembre 06 (Decision on the application for

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

641

participation of victims a/0001/06 to a/0003/06 in the status conference of 5 September 2006) (PT), 4 September 2006 : S68-PT-13 89. Decision Concerning the Compliance by the Prosecution with the Prerequisites to File Rule 81(4) Motions (PT), 5 September 2006: R81-PT-16 90. Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / in the Alternative, Discontinuance of Appeal (A), 6 September 2006: S82-A-2, R157-A-1, r29-A-2 91. Decision on the Prosecution Deadline of 12 September 2006 and the Defence Deadline of 12 September 2006 (PT), 7 September 2006: R121-PT-18 92. Decision Convening a Ex Parte in Camera Hearing (PT), 7 September 2006: r28-PT-2 93. Oral Decision Made by the Single Judge at the in Camera Hearing Held on 8 September 2006 (PT), 8 September 2006 94. First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81(4) (PT), 15 September 2006: S68-PT-14, S69-PT-2, R81-PT-17 95. Decision Inviting the Prosecution to Revise Proposed Redactions Under Rule 81 (PT), 15 September 2006: R81-PT-8 96. Decision on the Postponement of the Status Conference Scheduled for 19 September 2006 (PT), 18 September 2006 97. Decision on a General Framework concerning Protective Measures for Prosecution and Defence Witnesses (PT), 19 September 2006: S68-PT-1 98. Décision sur le report de l’audience de confirmation des charges (Decision on the Postponement of the Confirmation Hearing) (PT), 20 September 2006 : R121-PT-22 99.

Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81 (PT), 20 September 2006: R81-PT-2, R81-PT-7

100. Decision on the Agenda of the Status Conference of 26 September 2006 (PT), 22 September 2006 101. Decision Establishing a Deadline in Relation to the Defence Request for the Interim Release of Thomas Lubanga Dyilo, 22 September 2006: r34-PT-1 102. Decision on the Defence Request pursuant to Regulation 83(4)(PT), 22 September 2006: r83-PT-1 103. Decision on Prosecution’s Application for Extension of Time (PT), 22 September 2006: r35-PT-5 104. Décision autorisant le dépôt d’observations sur les demandes de participation à la procedure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06 et a/0071/06 (Decision authorising the filing of observations on the applications for participation in the proceedings a/0004/06 to a/0009/06, a/0016/06 to a/0063/06 and a/0071/06) (PT), 22 September 2006: S68-PT-3

642

CYRIL LAUCCI

105. Décision sur les modalités de participation des victimes a/0001/06, a/0002/06 et a/0003/06 à l’audience de confirmation des charges (Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing) (PT), 22 September 2006: S68-PT-4, S68-PT-11, r24-PT-7, r31-PT-2 106. Decision on Prosecution’s Response to Thomas Lubanga Dyilo’s 21 September 2006 Request for Leave to Appeal (PT), 25 September 2006: r33-PT-1 107. Decision on Request pursuant to Rule 103(1) of the Statute (PT), 26 September 2006: R103-PT-3 108. Decision on the Prosecution Information in respect of the Second Decision on Rule 81 Motions (PT), 28 September 2006: S54-PT-3, R81-PT-3 109. Decision on Second Defence Motion for Leave to Appeal (PT), 28 September 2006: S82-PT-6, S82-PT-16, S82-A-3, R155-PT-3 110. Decision on the Prosecution’s Application for Extension of Time (PT), 29 September 2006 111. Decision Convening an Ex Parte Hearing for 3 October 2006 (PT), 29 September 2006: R81-PT-14 112. Décision autorisant le dépôt d’observations sur les demandes de participation à la procédure a/0072/06 à a/0080/06 et a/105/06 (Decision authorising the filing of observations on applications for participation in the proceedings a/0072/06 to a/0080/06 and a/0105/06) (PT), 29 September 2006 : S68-PT-3 113. Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19(2)(a) of the Statute (PT), 3 October 2006: S21-PT-3, S59-PT-2 114. Decision on Third Defence Motion for Leave to Appeal (PT), 4 October 2006: S43-PT-1, S82-A-3, R81-PT-11 115. Decision Concerning the Prosecution Proposed Summary Evidence (PT), 4 October 2006: S61-PT-9, S67-PT-13, S69-PT-2, S69-PT-3, R81-PT-17 116. Decision on the Replacement of the Single Judge (PT), 5 October 2006: R122-PT-2 117. Décision sur la date de l’audience de confirmation des charges (PT), 5 October 2006 118. Decision on the Prosecution Application of 5 October 2006 (PT), 5 October 2006: R81-PT-12, R121-PT-1 119. Décision relative à la demande d’extension de délai du 5 octobre 2006 (Decision on the Application for Extension of Time Limit of 5 October 2006) (PT), 6 October 2006 : r35-PT-4 120. Scheduling Order for 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” (A), 11 October 2006: R158-A-6

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

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121. Decision on the Presiding Judge of the Appeals Chamber in the “Requête d’appel du Conseil de la Défense de la ‘Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Art.19.2.(a) of the Statute’ du 3 octobre 2006” (A), 11 October 2006: r13-A-1 122. Decision on the Presiding Judge of the Appeals Chamber in Mr. Thomas Lubanga Dyilo’a Appeal Pursuant to the Decision of Pre-Trial Chamber I of 28 September 2006 (A), 11 October 2006: r13-A-1 123. Decision on the Request of Mr. Thomas Lubanga Dyilo for an Extension of Time (A), 12 October 2006: r35-A-6 124. 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” (A), 13 October 2006: S61-A-1, S82-A-1, S82-A-3, S83-A-1, S83-A-2, R81-A-1, R81-A-5, R81-A-7, R158-A-1 125. Appeals Chamber’s Request and Directions (A), 13 October 2006: r34-A-1 126. Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo (Decision on the Application for the Interim Release of Thomas Lubanga Dyilo) (PT), 18 October 2006 : S21-PT-7, S60-PT-1, S60-PT-2, S60-PT-3, R118-PT-1, R122-PT-3, r24-PT-7 127. Appeals Chamber’s Clarification (A), 19 October 2006: r34-A-2 128. Decision on the Presiding Judge of the Appeals Chamber in Mr. Thomas Lubanga Dyilo’s Appeal Pursuant to the Decision of Pre-Trial Chamber I of 4 October 2006 (A), 19 October 2006: r13-A-1 129. Décision sur les demandes de participation à la procédure a/0004/06 à a/0009/06, a/0016/06 à a/0063/06, a/0071/06 à a/0080/06 et a/0105/06 dans le cadre de l’affaire le Procureur c. Thomas Lubanga Dyilo (Decision on applications for participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo) (PT), 20 October 2006 : S68-PT-11, S68-PT-12, R85-PT-3, R85-PT-5, R89-PT-1 130. Decision on Defence’s Request of 16 October 2006 (PT), 20 October 2006: R121-PT-2 131. Decision on the Presiding Judge of the Appeals Chamber in the “Defence Appeal Against ‘Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo’” (A), 23 October 2006: r13-A-1 132. Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice regarding the Case (PT), 27 October 2006: S38-PT-1, S41-PT-1, S41-PT-2, R4-PT-1 133. Decision Establishing a Deadline (PT), 30 October 2006: r34-PT-1 134. Décision suite aux informations fournies par le Procureur le 25 octobre 2006 (Decision Further to the Information Provided by the Prosecutor on 25 October 2006) (PT), 30 Octobre 2006 : S54-PT-3

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135. Corrigendum to Decision Establishing a Deadline (PT), 31 October 2006: r34-PT-1 136. Decision Convening a Hearing on Friday 3 November 2006 (PT), 1st November 2006 137. Decision Convening a Hearing on the Defence Request for Order to Disclosure Exculpatory Materials (PT), 1st November 2006: R121-PT-16 138. Decision on the Defence Request for Disclosure of Exculpatory Materials (PT), 2 November 2006: S67-PT-9, S67-PT-10, S67-PT-11, S67-PT-13, R76-PT-2, R77-PT-2 139. Decision on the Prosecution Application pursuant to Rule 81(2) of 3 November 2006 (PT), 3 November 2006 140. Corrigendum to the Decision on the Prosecution Application pursuant to Rule 81(2) of 3 November 2006 (PT), 3 November 2006 141. Décision sur la demande d’autorisation d’appel de la Défense relative à la transmission des demandes de participation des victimes (Decision on the Defence Request for Leave to Appeal Regarding the Transmission of Applications for Victim Participation) (PT), 6 November 2006 : S66-PT-1, S67-PT-1, S68-PT-5, S82-A-3, R87-PT-1 142. Ordonnance autorisant la prise de photographies à l’audience du 9 novembre 2006 (Order Authorising the Taking of Photographs at the Hearing of 9 November 2006) (PT), 6 November 2006 : r21-PT-1 143. Decision on the Defence “Request to Exclude Video Evidence Which Has not Been Disclosed in one of the Working Languages” (PT), 7 November 2006: S50-PT-3, S67-PT-3, S69-PT-4, R121-PT-15 144. Decision Concerning List of Issues on Jurisdiction, Admissibility and Proper Conduct of the Proceedings (PT), 7 November 2006: R122-PT-4 145. Ordonnance demandant au Greffier d’enregistrer un document au dossier de l’affaire (Order requesting the Registrar to register a document in the record of the case) (PT), 7 November 2006 146. Decision on the Schedule and Conduct of the Confirmation Hearing (PT), 7 November 2006 : S61-PT-11, S61-PT-12, S61-PT-13, R87-PT-3, R121-PT-20, R121-PT-23, R122-PT-1, R122-PT-7, R140-PT-1, r20-PT-1 147. Decision of the President on the Request of the President of the Pre-Trial Division of 20 October 2006 (P), 7 November 2006 (made public on 7 November 2006): S41-P-1, R4-P-1 148. Decision on the Practices of Witness Familiarisation and Witness Proofing (PT), 8 November 2006: S21-PT-5, S43-PT-2, S44-PT-1, S68-PT-1, S68-PT-7, R17-PT-1 149. Decision on Defence Request to Postpone the Confirmation Hearing (PT), 8 November 2006: R122-PT-5

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

645

150. Decision to Give Access to the Prosecution to the Evidence Included in the Defence List of Evidence Filed on 2 November 2006 (PT), 8 November 2006: R121-PT-19 151. Ordonnance demandant au Greffier d’enregistrer un document au dossier de l’affaire (PT), 8 November 2006 152. Ordonnance demandant au Greffier d’enregistrer un document au dossier de l’affaire (PT), 8 November 2006 153. Decision Reclassifying Document Number ICC-01/04-01/06-690 (PT), 9 November 2006: S68-PT-6, R15-PT-6, r21-PT-2 154. Decision on the Motion by the Defence to Exclude Hearsay Testimony of the Prosecution Witness (PT), 9 November 2006: S21-PT-3, S54-PT-4, S69-PT-5, R82-PT-1 155. Appeals Chamber’s Directions (A), 13 November 2006: r34-A-3 156. Appeals Chamber’s Decision on the “Prosecutor’s Request for an Extension of the Page Limit” (A), 16 November 2006: S74-A-3 157. Decision on Defence Requests for Disclosure of Materials (PT), 17 November 2006: S2-PT-1, R13-PT-1, R15-PT-1, R76-PT-1, R76-PT-2, R77-PT-1, R81-PT-18, r23-PT-1 158. Reasons for the Appeals Chamber’s Decision of 16 November 2006 on the “Prosecutor’s Request for an Extension of Page Limit” (A), 17 November 2006: r38-A-1 159. Order of the Appeals Chamber (A), 24 November 2006: S68-A-3 160. Décision sur la requête de la Défense aux fins d’éclaircissements et d’augmentation du nombre de pages autorisé (Decision on the Defence Motion for Clarification and Request for an Extension of the Page Limit) (PT), 30 November 2006 : S50-PT-2, R122-PT-7 161. Order of the Appeals Chamber (A), 4 December 2006 : S68-A-3, S74-A-4 162. Dissenting Opinion of Judge Pikis to the Order of the Appeals Chamber issued on 4 December 2006 (A), 11 December 2006: S68-A-2, S68-A-3 163. Scheduling Order for “Judgment on the Defence Appeal against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006” (A), 11 December 2006: R158-A-6 164. Scheduling Order for Judgments on the Appeals of Mr. Thomas Lubanga Dyilo against Pre-Trial Chamber I’s “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” and “Second Decision on the Prosecution Requests and Amended Requests for Redaction under Rule 81”(A), 11 December 2006: R158-A-6 165. Decision of the Appeals Chamber (A), 12 December 2006: S68-A-4, S74-A-3 166. Décision désignant un juge unique (Translation not available) (PT), 14 December 2006 : S39-PT-1, S39-PT-3

646

CYRIL LAUCCI

167. Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of Pre-Trial Chamber I Entitled “First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81” (A), 14 December 2006: S21-A-1, S61-A-2, S68-A-1, S68-A-5, S74-A-2, R81-A-2, R81-A-5, R81-A-6, R81-A-8, R158-A-2 168. 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” (A), 14 December 2006: S61-A-3, S68-A-6, S74-A-1, S74-A-2, S82-A-4, R81-A-2, R81-A-3, R81-A-4, R158-A-2, R158-A-3, r35-A-1, r58-A-1, r59-A-1 169. Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (A), 14 December 2006: S4-A-1, S19-A-1, S21-A-2, S21-A-5, S59-A-1

Situation in Uganda, No. ICC-02/04 1.

Decision Assigning the Situation in Uganda to Pre-Trial Chamber II (P), 5 July 2004: S38-P-1, r46-P-1

2.

Election of the Presiding Judge of Pre-Trial Chamber II (PT), 16 September 2004: r13-PT-1

3.

Designation of a Single Judge of Pre-Trial Chamber II (PT), 19 November 2004: S39-PT-1

4.

Under Seal – Ex Parte - Decision on the Exercise of Functions by the Full Chamber in Relation to an Application by the Prosecutor under Article 58 (PT), 18 May 2005 (made public on 13 October 2005): R7-PT-1

5.

Under Seal – Ex Parte - Decision on the Extension of the Page Limit in Relation to an Application by the Prosecutor Under Article 58 (PT), 19 May 2005 (unsealed on 13 October 2005): r37-PT-2

6.

Under Seal – Ex Parte - Decision to Hold a Hearing on the Request Under Rule 176 Made in Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 9 June 2005 (made public on 2 November 2005): r28-PT-2

7.

Under Seal – Ex Parte - Decision on the “Prosecutor’s Application to Disclose to Internal Auditor Certain Information Relating to the Amended Application for Warrants” Dated 13 June 2005 (PT), 17 June 2005 (made public on 23 March 2006): R54-PT-5

8.

Under Seal – Ex Parte - Decision to Hold a Hearing on the Protection of Victims and Witnesses in Connection with the Prosecutor’s Application for Warrants of Arrest and the Prosecutor’s Application Dated 13 June 2005 (PT), 17 June 2005 (made public on 23 March 2006): r28-PT-2

9.

Election of the Presiding Judge of Pre-Trial Chamber II (PT), 28 March 2006: r13-PT-1

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

647

Situation in Uganda, No. ICC-02/04 Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen, Case No. 02/04-01/05 1.

Under Seal Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 8 July 2005 (Unsealed on 13 October 2005): S58-PT-1, S58-PT-19, S87-PT-1, S89-PT-1

2.

Warrant of Arrest for Raska Lukwiya (Public Redacted Version) (PT), 8 July 2005: S58-PT-5, S58-PT-9, S58-PT-11, S58-PT-13, S58-PT-15, S58-PT-20, S59-PT-1

3.

Warrant of Arrest for Okot Odhiambo (Public Redacted Version) (PT), 8 July 2005: S58-PT-5, S58-PT-9, S58-PT-11, S58-PT-13, S58-PT-15, S58-PT-20, S59-PT-1

4.

Warrant of Arrest for Dominic Ongwen (Public Redacted Version) (PT), 8 July 2005: S58-PT-5, S58-PT-9, S58-PT-11, S58-PT-13, S58-PT-15, S58-PT-20, S59-PT-1

5.

Warrant of Arrest for Vincent Otti (Public Redacted Version) (PT), 8 July 2005: S58-PT-5, S58-PT-9, S58-PT-11, S58-PT-13, S58-PT-15, S58-PT-20, S59-PT-1

6.

Under Seal Ex Parte Decision on the Prosecutor’s Motion for Clarification and Urgent Request for Variation of the Time Limit Enshrined in Rule 155 (PT), 18 July 2005 (Unsealed on 13 October 2005): S82-PT-5, S89-PT-1, R101-PT-1, R155-PT-1, r35-PT-1

7.

Decision on Prosecutor’s Application for Leave to Appeal in Part Pre-Trial Chamber II’s Decision on the Prosecutor’s Application for Warrants of Arrest Under Article 58 (PT), 19 August 2005 (Unsealed on 13 October 2005): S21-PT-2, S82-PT-6, S82-PT-12, S82-PT-13, S82-PT-14, S82-PT-15

8.

Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005 (PT), 27 September 2005: S58-PT-5, S58-PT-9, S58-PT-11, S58-PT-13, S58-PT-15, S58-PT-20, S59-PT-1

9.

Under Seal – Ex Parte – Decision on the Prosecutor’s Urgent Application Dated 26 September 2005 (PT), 27 September 2005 (Unsealed on 23 March 2006): S58-PT-20

10. Under Seal Order to the Registrar to Attend the Status Conference Scheduled for 3 October 2005 (PT), 30 September 2005 (Unsealed on 2 November 2005) 11. Decision on the Prosecutor’s Application for Unsealing of the Warrants of Arrest (PT), 13 October 2005: S58-PT-22, R15-PT-5 12. Decision on the Prosecutor’s Position on the Decision of Pre-Trial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration and Motion for Clarification (PT), 28 October 2005: S21-PT-1, S82-PT-2, S82-PT-3, S82-PT-4, S82-PT-5, r23-PT-2, r23-PT-3

648

CYRIL LAUCCI

13. Decision to Convene a Status Conference on Matters Related to Safety and Security in Uganda (PT), 25 November 2005: r30-PT-1, r48-PT-1 14. Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53 (PT), 2 December 2005: S53-PT-1, r30-PT-2 15. Decision to Postpone the Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53 (PT), 9 December 2005: r30-PT-3 16. Decision to Unseal Further Documents of the Record (PT), 9 March 2006: R15-PT-5 17. Order to the Prosecutor to Provide Information on Further Unsealing of Documents of the Record (PT), 18 April 2006: r8-PT-1 18. Décision portant la désignation d’un juge unique pour la levée des scellés (Translation not available) (PT), 30 May 2006 : S39-PT-4 19. Décision sur la Requête du Procureur datée du 3 juillet 2006 aux fins de levée des scellés (Translation not available) (PT), 6 Juillet 2006 : R15-PT-5 20. Order to the Registrar and the Prosecutor for the Submission of Information on the Status of Execution of the Warrants of Arrest in the Situation in Uganda (PT), 15 September 2006: S58-PT-17 21. Order Granting a New Deadline to the Registrar for the Submission of Additional Information and Comments on the Status of Cooperation in the Situation in Uganda (PT), 13 October 2006: S58-PT-18

Situation in the Central African Republic, No. ICC-01/05 1.

Decision Assigning the Situation in the Central African Republic to Pre-Trial Chamber III (P), 19 January 2005: S38-P-1, r46-P-1

2.

Election of the Presiding Judge of Pre-Trial Chamber III (PT), 4 February 2005: r13-PT-1

3.

Election of the Presiding Judge of Pre-Trial Chamber III (PT), 28 March 2006: r13-PT-2

Situation in Darfur, Sudan, No. ICC-02/05 1.

Decision Assigning the Situation in Darfur, Sudan to Pre-Trial Chamber I (P), 21 April 2005: S38-P-1

2.

Decision on the Designation of a Single Judge (PT), 20 July 2005: S39-PT-2

3.

Decision on the Designation of a Single Judge (PT), 13 July 2006: S39-PT-2

4.

Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence (PT), 24 July 2006: R103-PT-2, r76-PT-1

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

649

5.

Decision on Request for Extension of Time Limit (PT), 28 August 2006: r35-PT-9, r35-PT-10

6.

Decision on the Request for an Extension of Time (PT), 21 September 2006: r35-PT-6

THEMATIC INDEX The first column refers to QRN of entries; the second column to their pages. Abuse of process ... S4A1 S19A1 S21A2 S59PT2 Admissibility - Criteria ............. S17PT1 - Determination ... S19PT1 - Locus Standi for challenging — .... S19PT2 - Prima facie assessment........... S54PT2 Amicus Curiae - Application for leave to appear R103PT3 - Invitation to make submissions R103PT2 Anonymity - Victim applicants ............ S68PT4 S68PT5 S68PT11 Appeal - Appeal on jurisdiction and admissibility ........ S82PT1 S82A2 - Appellate proceedings ......... S83A1 S83A2 R158A4 R158A5 R158A6 r13A1 r28A1 r29A2 r58A1 r64A1 - Applications for leave to — ........... S82PT2 S82PT3 S82PT4 S82PT5 R155PT1 - Criteria for

6 31 45 142 18 29 30 96

462 461

198 201 219

246 270 280 281 519 520 520 548 563 565 601 605 247 248 248 251 510

leave to — ............ S82PT6 S82PT7 S82PT8 S82PT9 S82PT10 S82PT11 S82PT12 S82PT13 S82PT14 S82PT15 S82PT16 R155PT2 R155PT3 - Discontinuance R157A1 - Grounds of — .... S82A4 - Powers of the Appeals Chamber R158A2 R158A3 - Res Judicata ...... S82A1 - Review of denial of leave to —........ S82A5 - Right to — ......... S82A3 Arrest - Proceedings in the State of — ...... S59PT2 S59A1 - State cooperation ......... S89PT1 Confidentiality - — of documents R14PT1 R14PT2 - Evidence obtained under condition of — ..... S54PT3 S54PT4 S69PT5 R81A4 R82PT1 - Ex Parte proceedings ......... S19PT1 S67PT4 S68PT5 S74A2 S82PT8

252 257 258 260 260 263 263 264 265 266 267 511 513 516 273 518 519 267 274 270

142 145 286 326 327

97 99 232 400 410 29 182 201 242 259

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

R14PT1 R14PT2 R15PT6 R81PT4 R81PT5 R81PT6 R81PT14 R81PT16 R81A1 R81A2 R87PT1 R114PT1 R121PT4 R121PT11 R122PT6 R155PT3 r28PT2 r59A1 - Unsealing of documents ........... R15PT5 R87PT2 r8PT1 - Violation ........... S54PT5 R15PT6 Confirmation of charges - Confirmation hearing ................ S61PT9 S61PT10 S61PT11 S61PT12 S61PT13 S61A2 S61A3 S68PT11 S68PT14 S68A5 S68A6 R81PT17 R81A8 R121PT2 R121PT14 R121PT15 R121PT16 R121PT17 R121PT18 R121PT19 R121PT20 R121PT21 R121PT22

326 327 332 371 376 378 387 390 393 395 443 467 475 483 497 513 562 602 332 444 544 101 332

167 167 169 169 169 174 174 219 224 227 228 391 407 474 485 486 486 487 488 489 489 490 491

R121PT23 R122PT1 R122PT2 R122PT3 R122PT4 R122PT5 R122PT6 R122PT7 R140PT1 - Criteria.............. S61PT14 R81A3 R81A8 Cooperation - Arrest and surrender ............ S89PT1 - Freeze and seizure of property .............. S57PT1 S57PT2 R99PT1 R99PT2 - Protection of victims and witnesses ............. S87PT1 - Request for State — ................ S89PT2 S89PT3 S91PT1 - United Nations .. S2PT1 Criminal Responsibility - Raising grounds for excluding — ... R80PT1 Decisions - Reasons ............. S74A1 S74A2 S74A3 Disclosure - Applications for redactions............ R81PT4 R81PT5 R81PT6 R81PT13 R81PT14 R81PT15 R81PT16 R81PT17 R81A1 R81A7 - Art.54

651 492 494 494 494 495 496 496 498 504 170 398 407

286

108 111 456 457

284 288 291 293 5

368 241 242 242

371 376 378 386 387 388 390 391 393 406

652

CYRIL LAUCCI

confidential information ......... R81A4 - Criteria for leave to redact .... R81PT7 R81PT8 R81PT9 R81PT10 R81PT11 R81PT12 R81PT18 R81A2 R81A3 R81A5 R81A6 - Exculpatory evidence .............. S67PT7 S67PT8 - Language of — . S67PT2 S67PT3 - Preparation of the Defence ......... S2PT1 - Pre-Trial Chamber ............. S61PT1 S61PT2 S61PT3 S61PT4 S61PT5 S61PT6 R76PT1 R76PT2 R76PT3 R76PT4 R121PT5 R121PT6 R121PT7 R121PT8 R121PT9 R121PT10 R121PT11 R121PT12 R121PT13 - Redactions: ex officio ................. S54PT3 R81PT1 R81PT2 R81PT3 - Redactions: victim S68PT2 applications ........ S68PT3 Domestic law

400 379 384 384 385 385 386 393 395 398 401 406 185 185 181 181 5 154 155 156 158 161 162 357 358 358 361 476 478 478 479 480 480 482 484 484 97 369 370 371 195 196

- Case Law........... - Code of conduct Elements of crimes - Contextual element ................ European Court of Human Rights ..

S21A5 S44PT1

49 74

S9PT1

13

S21PT7 S21A1

41 44

Evidence - Admissibility ...... S69PT2 S69PT3 S69PT4 S69PT5 - Exculpatory — .. S67PT9 S67PT10 S67PT11 S67PT12 S67PT13 - Presentation (Confirmation hearing) .............. S61PT10 S61PT11 S61PT12 S61A2 S68A5 S68A6 R81PT17 R81A8 - Summary — ....... S61PT9 S61A3 S68A5 S68A6 R81A8 Expert - Appointment ...... S56PT3 Freeze and seizure of property - Cooperation request ................. S57PT1 S57PT2 General principles of law ..................... S21A3 Inherent powers.... S4A1 S82A5 r28PT1 Inspection of material - Modalities ......... R77PT3 R78PT1

230 231 232 232 188 188 189 189 191

167 169 169 174 227 228 391 407 167 174 227 228 407 106

108 111 48 6 274 561

362 365

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

- Scope ................ R77PT1 R77PT2 International Criminal Tribunals - Case law ........... S21PT1 S21PT2 S21PT3 S21A1 Inter-American Court of Human Rights .................... S21PT7 Investigation - Completion ....... S61PT7 S61PT8 S61A1 - Difference with proceedings ......... S127PT1 - Difference between “further” and “ongoing” — ...... R81PT11 R81PT12 - Initiation (Review by PTC) S53PT1 - Participation of victims ................. S68PT8 - Records of — .... S56PT4 - “Unique investigative opportunity” ....... S56PT1 R114PT1 R114PT2 Judges Disqualification .. S41PT1 S41PT2 S41P1 Presiding Judge .. r13PT1 r13PT2 Jurisdiction - Art. 11 (ratione temporis) ............ S1PT1 -Art.12 (acceptation) ...... S1PT1 - Art. 13 (seizure) S1PT1 - Challenges to — S19A1 - Locus standi for challenging — ..... S19PT2 - Prima facie assessment .......... S54PT2

362 362

33 34 38 44

41 165 165 171 310

385 386 88 207 107

104 467 468 63 66 67 547 547

1 1 1 31 30 96

- Proceedings in the State of arrest S59PT2 S59A1 Jurisprudence - Decisions by other Chambers ... S21PT4 Human Rights - Applicable sources................. S21PT7 S21A5 Plenary session - Convening of —. R4PT1 R4P1 Presidency Jurisdiction .......... S38P1 Pre-Trial detention - Application for interim release ..... S60PT1 r51PT1 - Criteria.............. S60PT1 S60PT3 - Reasonable length ................... S60PT2 - Review of ruling on detention ......... R118PT1 Registry - Functions .......... S89PT1 S89PT2 S89PT3 R13PT1 R13PT2 r40PT1 r90PT1 Rights of the Defence - Ad Hoc Counsel S56PT2 r76PT1 - Balance with other competing interests ............... S68A1 - Fair Trial .......... S54PT1 S67PT1 S67A1 S68A1 R81A2 - Information ....... S50PT1 S50PT2 S50PT3 S59PT1

653

142 145

39

41 49 319 320 58

147 598 147 150 149 470 286 288 291 324 324 592 620

105 610

225 90 180 191 225 395 82 83 84 141

654

CYRIL LAUCCI

S67PT2 S67PT3 S67PT4 - Free assistance of an interpreter .. S67PT6 - Participation in Pre-Trial proceedings ......... R121PT4 - Presumption of innocence ............ S66PT1 S68PT5 - Public Counsel for the Defence .... r77PT1 - Public hearing .. r20PT1 r21PT1 r21PT2 - Right to appear promptly before a Judge ................... R121PT3 - Time and facilities to prepare ................ S2PT1 S61PT13 S67PT5 R121PT21 R121PT22 r83PT1 - Trial without undue delay ......... S60PT3 S67A1 Rome Statute - Interpretation .... S21PT5 S21PT6 S21A4 S21A5 - Prevalence over the Rules.............. S51PT1 Rules of procedure and evidence - Interpretation .... R2PT1 Single Judge - Designation....... S39PT1 S39PT2 S39PT3 S39PT4 S39PT5 R7PT1 R122PT2 “Situation”(art.13)

181 181 182 183

475 178 201 611 550 551 551

475

5 169 183 490 491 613 150 191 40 40 48 49 86

317 60 61 61 62 62 322 494

- Difference with a “Case” ............ S13PT1 R15PT2 R15PT3 R85PT1 Submissions - Contents of applications ......... r23PT2 r23PT3 - Filing ................. r23PT1 r26PT1 - Format .............. r36PT1 r37PT1 r37PT2 r37PT3 r37A1 r37A2 r38A1 - Reply ................. r24PT4 r24PT5 r24PT6 r24PT7 - Response ........... r24PT1 r24PT2 Time limits - Application for extension of — ..... r35A1 r35A2 - Calculation........ r33PT1 r33PT2 - Non-compliance r29A1 - Variation: power ................... r34PT1 r34A1 r34A2 r34A3 - Variation: criteria ................. S50PT1 r35PT1 r35PT2 r35PT3 r35PT4 r35PT5 r35PT6 r35PT7 r35PT8 r35PT9 r35PT10 r35A3 r35A4

15 329 330 413

553 554 553 560 586 587 587 588 588 589 590 556 558 558 559 554 555

582 582 571 572 564 573 574 575 575 82 576 576 576 577 578 579 579 580 580 581 582 583

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

r35A5 r35A6 Victim - Application for leave to participate ........... R89PT1 R89PT2 R89PT3 r86PT1 r86PT2 - Contact with protected — ........ S43PT3 - Criteria for leave to participate ........... R85PT1 R85PT2 R85PT3 R85PT4 R85PT5 R85PT6 R85PT7 R85PT8 R85PT9 - Interests of — ... S57PT1 S57PT2 S68PT8 - Legal Representative for — ......................... R81PT14 R90PT1 R121PT23 R122PT7 - Participation of S68PT8 S68PT9 S68PT10 S68PT11 S68PT12 S68PT13 S68A2 S68A3 S68A4 R81PT14 R92PT1 r24PT3 - Protection of —. S68PT1 S68PT2 S68PT3 S68PT4 S68PT5 S68A1

583 584

447 448 449 616 618 73

413 415 418 425 431 432 433 434 440 108 111 207

387 451 492 498 207 215 219 219 222 223 225 226 227 387 453 556 193 195 196 198 201 225

S87PT1 R81PT6 R87PT1 R87PT3 R121PT21 r48PT1 Victims and Witnesses Unit - Functions .......... S43PT1 S43PT2 S43PT3 S68PT1 R81PT16 Vienna Convention on the Law of Treaties ..... S21PT5 S21A4 Warrant of arrest - Application for — ......................... S58PT7 S58PT8 - Confidential — .. S58PT19 S58PT20 S58PT21 S58PT22 - Contents ............ S58PT9 S58PT10 S58PT11 S58PT12 S58PT13 S58PT14 S58PT15 S58PT16 - Criteria of issuance ............... S58PT1 S58PT2 S58PT3 S58PT4 - Necessity to arrest ................... S58PT5 S58PT6 - Non-execution ... S58PT17 S58PT18 Witness - Familiarisation with Court proceedings ......... S43PT2 - Proofing of —.... S44PT1 - Protection of — . S68PT6 S68PT7

655 284 378 443 445 490 596

69 70 73 193 390

40 48

120 122 136 136 137 138 124 125 125 126 127 128 129 131 115 115 116 117 118 119 133 135

70 74 203 204

656

CYRIL LAUCCI

S69PT2 S69PT3 S87PT1 R81PT6 R81PT7 R81PT17 R81A2 R87PT1 R87PT3 R121PT21 r20PT1 r21PT2 r48PT1 - Questioning of — ......................... S61PT11 S61PT12 R140PT1

230 231 284 378 379 391 395 443 445 490 550 551 596 169 169 504

TABLE OF CONTENTS Only articles with entries are reported in the present table. The full text of the Rome Statute, Rules of Procedure and Evidence and Regulations of the Court is included in the core text.

Contents ......................................................................................................... v Foreword by Honourable Judge Claude Jorda ....................................... vii Introduction ............................................................................................... viii

STATUTE OF THE INTERNATIONAL CRIMINAL COURT .. 1 Article 1 – The Court .................................................................................. 1 S1-PT-1 .......................................................................................... 1 Article 2 – Relationship of the Court with the United Nations ................. 5 S2-PT-1 .......................................................................................... 5 Article 4 – Legal Status and Powers of the Court...................................... 6 S4-A-1 ............................................................................................ 6 Article 9 – Elements of Crime ................................................................... 13 S9-PT-1 ........................................................................................ 13 Article 13 – Exercise of Jurisdiction ......................................................... 14 S13-PT-1 ...................................................................................... 15 Article 17 – Issues of Admissibility ........................................................... 17 S17-PT-1 ...................................................................................... 18 Article 19 – Challenges to the Jurisdiction of the Court or the Admissibility of a Case ............................................................................... 28 S19-PT-1 ...................................................................................... 29 S19-PT-2 ...................................................................................... 30 S19-A-1 ........................................................................................ 31

658

CYRIL LAUCCI

Article 21 – Applicable Law ...................................................................... 33 S21-PT-1 ...................................................................................... 33 S21-PT-2 ...................................................................................... 34 S21-PT-3 ...................................................................................... 38 S21-PT-4 ...................................................................................... 39 S21-PT-5 ...................................................................................... 40 S21-PT-6 ...................................................................................... 40 S21-PT-7 ...................................................................................... 41 S21-A-1 ........................................................................................ 44 S21-A-2 ........................................................................................ 45 S21-A-3 ........................................................................................ 48 S21-A-4 ........................................................................................ 48 S21-A-5 ........................................................................................ 49 Article 38 – The Presidency ....................................................................... 57 S38-PT-1 ...................................................................................... 58 S38-P-1 ........................................................................................ 59 Article 39 – Chambers................................................................................ 59 S39-PT-1 ...................................................................................... 60 S39-PT-2 ...................................................................................... 61 S39-PT-3 ...................................................................................... 61 S39-PT-4 ...................................................................................... 62 S39-PT-5 ...................................................................................... 62 Article 41 – Excusing and Disqualification of Judges ............................. 63 S41-PT-1 ...................................................................................... 63 S41-PT-2 ...................................................................................... 66 S41-P-1 ........................................................................................ 67 Article 43 – The Registry ........................................................................... 69 S43-PT-1 ...................................................................................... 69 S43-PT-2 ...................................................................................... 70 S43-PT-3 ...................................................................................... 73

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

659

Article 44 – Staff ......................................................................................... 74 S44-PT-1 ...................................................................................... 74 Article 50 – Official and Working Languages ......................................... 82 S50-PT-1 ...................................................................................... 82 S50-PT-2 ...................................................................................... 83 S50-PT-3 ...................................................................................... 84 Article 51 – Rules of Procedure and Evidence ......................................... 85 S51-PT-1 ...................................................................................... 86 Article 53 – Initiation of an Investigation ................................................. 87 S53-PT-1 ...................................................................................... 88 Article 54 – Duties and Powers of the Prosecutor with Respect to Investigations .............................................................................................. 89 S54-PT-1 ...................................................................................... 90 S54-PT-2 ...................................................................................... 96 S54-PT-3 ...................................................................................... 97 S54-PT-4 ...................................................................................... 99 S54-PT-5 .................................................................................... 101 Article 56 – Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity ............................... 103 S56-PT-1 .................................................................................... 104 S56-PT-2 .................................................................................... 105 S56-PT-3 .................................................................................... 106 S56-PT-4 .................................................................................... 107 Article 57 – Functions and Powers of the Pre-Trial Chamber ............. 107 S57-PT-1 .................................................................................... 108 S57-PT-2 .................................................................................... 111 Article 58 – Issuance by the Pre-Trial Chamber of a Warrant of Arrest and Summons to Appear.......................................................................... 113 S58-PT-1 .................................................................................... 115

660

CYRIL LAUCCI

S58-PT-2 .................................................................................... 115 S58-PT-3 .................................................................................... 116 S58-PT-4 .................................................................................... 117 S58-PT-5 .................................................................................... 118 S58-PT-6 .................................................................................... 119 S58-PT-7 .................................................................................... 120 S58-PT-8 .................................................................................... 122 S58-PT-9 .................................................................................... 124 S58-PT-10 .................................................................................. 125 S58-PT-11 .................................................................................. 125 S58-PT-12 .................................................................................. 126 S58-PT-13 .................................................................................. 127 S58-PT-14 .................................................................................. 128 S58-PT-15 .................................................................................. 129 S58-PT-16 .................................................................................. 131 S58-PT-17 .................................................................................. 133 S58-PT-18 .................................................................................. 135 S58-PT-19 .................................................................................. 136 S58-PT-20 .................................................................................. 136 S58-PT-21 .................................................................................. 137 S58-PT-22 .................................................................................. 138 Article 59 – Arrest Proceedings in the Custodial State ......................... 140 S59-PT-1 .................................................................................... 141 S59-PT-2 .................................................................................... 142 S59-A-1 ...................................................................................... 145 Article 60 – Initial Proceedings Before the Court.................................. 146 S60-PT-1 .................................................................................... 147 S60-PT-2 .................................................................................... 149 S60-PT-3 .................................................................................... 150 Article 61 – Confirmation of the Charges Before Trial ........................ 152 S61-PT-1 .................................................................................... 154

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

661

S61-PT-2 .................................................................................... 155 S61-PT-3 .................................................................................... 156 S61-PT-4 .................................................................................... 158 S61-PT-5 .................................................................................... 161 S61-PT-6 .................................................................................... 162 S61-PT-7 .................................................................................... 165 S61-PT-8 .................................................................................... 165 S61-PT-9 .................................................................................... 167 S61-PT-10 .................................................................................. 167 S61-PT-11 .................................................................................. 169 S61-PT-12 .................................................................................. 169 S61-PT-13 .................................................................................. 169 S61-PT-14 .................................................................................. 170 S61-A-1 ...................................................................................... 171 S61-A-2 ...................................................................................... 174 S61-A-3 ...................................................................................... 174 Article 66 – Presumption of innocence ................................................... 178 S66-PT-1 .................................................................................... 178 Article 67 – Rights of the Accused .......................................................... 179 S67-PT-1 .................................................................................... 180 S67-PT-2 .................................................................................... 181 S67-PT-3 .................................................................................... 181 S67-PT-4 .................................................................................... 182 S67-PT-5 .................................................................................... 183 S67-PT-6 .................................................................................... 183 S67-PT-7 .................................................................................... 185 S67-PT-8 .................................................................................... 185 S67-PT-9 .................................................................................... 188 S67-PT-10 .................................................................................. 188 S67-PT-11 .................................................................................. 189 S67-PT-12 .................................................................................. 189

662

CYRIL LAUCCI

S67-PT-13 .................................................................................. 191 S67-A-1 ...................................................................................... 191 Article 68 – Protection of the Victims and Witnesses and their Participation in the Proceedings ............................................................. 192 S68-PT-1 .................................................................................... 193 S68-PT-2 .................................................................................... 195 S68-PT-3 .................................................................................... 196 S68-PT-4 .................................................................................... 198 S68-PT-5 .................................................................................... 201 S68-PT-6 .................................................................................... 203 S68-PT-7 .................................................................................... 204 S68-PT-8 .................................................................................... 207 S68-PT-9 .................................................................................... 215 S68-PT-10 .................................................................................. 219 S68-PT-11 .................................................................................. 219 S68-PT-12 .................................................................................. 222 S68-PT-13 .................................................................................. 223 S68-PT-14 .................................................................................. 224 S68-A-1 ...................................................................................... 225 S68-A-2 ...................................................................................... 225 S68-A-3 ...................................................................................... 226 S68-A-4 ...................................................................................... 227 S68-A-5 ...................................................................................... 227 S68-A-6 ...................................................................................... 228 Article 69 - Evidence ................................................................................ 229 S69-PT-1 .................................................................................... 229 S69-PT-2 .................................................................................... 230 S69-PT-3 .................................................................................... 231 S69-PT-4 .................................................................................... 232 S69-PT-5 .................................................................................... 232 Article 70 – Offences against the Administration of Justice ................. 233

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

663

S70-PT-1 .................................................................................... 234 Article 71 – Sanctions for Misconduct Before the Court ...................... 235 S71-PT-1 .................................................................................... 236 Article 72 – Protection of National Security Information ..................... 237 S72-PT-1 .................................................................................... 238 Article 73 – Third-Party Information or Documents ............................ 239 S73-PT-1 .................................................................................... 239 Article 74 – Requirements for the Decision............................................ 240 S74-A-1 ...................................................................................... 241 S74-A-2 ...................................................................................... 242 S74-A-3 ...................................................................................... 242 S74-A-4 ...................................................................................... 243 Article 82 – Appeal against Other Decisions .......................................... 246 S82-PT-1 .................................................................................... 246 S82-PT-2 .................................................................................... 247 S82-PT-3 .................................................................................... 248 S82-PT-4 .................................................................................... 248 S82-PT-5 .................................................................................... 251 S82-PT-6 .................................................................................... 252 S82-PT-7 .................................................................................... 257 S82-PT-8 .................................................................................... 258 S82-PT-9 .................................................................................... 260 S82-PT-10 .................................................................................. 260 S82-PT-11 .................................................................................. 263 S82-PT-12 .................................................................................. 263 S82-PT-13 .................................................................................. 264 S82-PT-14 .................................................................................. 265 S82-PT-15 .................................................................................. 266 S82-PT-16 .................................................................................. 267 S82-A-1 ...................................................................................... 267

664

CYRIL LAUCCI

S82-A-2 ...................................................................................... 270 S82-A-3 ...................................................................................... 270 S82-A-4 ...................................................................................... 273 S82-A-5 ...................................................................................... 274 Article 83 – Proceedings on Appeal ........................................................ 279 S83-A-1 ...................................................................................... 280 S83-A-2 ...................................................................................... 281 Article 87 – Requests for Cooperation: General Provisions ................. 283 S87-PT-1 .................................................................................... 284 Article 89 – Surrender of Persons to the Court ..................................... 285 S89-PT-1 .................................................................................... 286 S89-PT-2 .................................................................................... 288 S89-PT-3 .................................................................................... 291 Article 91 – Contents of Request for Arrest and Surrender ................. 292 S91-PT-1 .................................................................................... 293 Article 127 - Withdrawal ......................................................................... 310 S127-PT-1 .................................................................................. 310 Article 128 – Authentic Texts .................................................................. 314 S128-PT-1 .................................................................................. 314

RULES OF PROCEDURE AND EVIDENCE ............................. 317 Rule 2 – Authentic Texts .......................................................................... 317 R2-PT-1 ...................................................................................... 317 Rule 4 – Plenary Sessions ......................................................................... 318 R4-PT-1 ...................................................................................... 319 R4-P-1 ........................................................................................ 320 Rule 7- Single Judge under Article 39, Paragraph 2 (b) (iii) ............... 322

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

665

R7-PT-1 ...................................................................................... 322 Rule 13 – Functions of the Registry ........................................................ 324 R13-PT-1 .................................................................................... 324 R13-PT-2 .................................................................................... 324 Rule 14 – Operation of the Registry........................................................ 325 R14-PT-1 .................................................................................... 326 R14-PT-2 .................................................................................... 327 R14-PT-3 .................................................................................... 328 Rule 15 - Records ...................................................................................... 328 R15-PT-1 .................................................................................... 328 R15-PT-2 .................................................................................... 329 R15-PT-3 .................................................................................... 330 R15-PT-4 .................................................................................... 331 R15-PT-5 .................................................................................... 332 R15-PT-6 .................................................................................... 332 Rule 17 – Functions of the Unit ............................................................... 335 R17-PT-1 .................................................................................... 335 Rule 76 – Pre-Trial Disclosure Relating to Prosecution Witnesses ...... 357 R76-PT-1 .................................................................................... 357 R76-PT-2 .................................................................................... 358 R76-PT-3 .................................................................................... 358 R76-PT-4 .................................................................................... 361 Rule 77- Inspection of Material in Possession or Control of the Prosecutor ................................................................................................. 361 R77-PT-1 .................................................................................... 362 R77-PT-2 .................................................................................... 362 R77-PT-3 .................................................................................... 362 Rule 78 – Inspection of Material in Possession of the Defence ............. 365 R78-PT-1 .................................................................................... 365

666

CYRIL LAUCCI

Rule 79 – Disclosure by the Defence ....................................................... 367 R79-PT-1 .................................................................................... 367 Rule 80 – Procedures for Raising a Ground for Excluding Criminal Responsibility under Article 31, paragraph 3 ........................................ 368 R80-PT-1 .................................................................................... 368 Rule 81 – Restrictions on Disclosure ....................................................... 368 R81-PT-1 .................................................................................... 369 R81-PT-2 .................................................................................... 370 R81-PT-3 .................................................................................... 371 R81-PT-4 .................................................................................... 371 R81-PT-5 .................................................................................... 376 R81-PT-6 .................................................................................... 378 R81-PT-7 .................................................................................... 379 R81-PT-8 .................................................................................... 384 R81-PT-9 .................................................................................... 384 R81-PT-10 .................................................................................. 385 R81-PT-11 .................................................................................. 385 R81-PT-12 .................................................................................. 386 R81-PT-13 .................................................................................. 386 R81-PT-14 .................................................................................. 387 R81-PT-15 .................................................................................. 388 R81-PT-16 .................................................................................. 390 R81-PT-17 .................................................................................. 391 R81-PT-18 .................................................................................. 393 R81-A-1 ..................................................................................... 393 R81-A-2 ..................................................................................... 395 R81-A-3 ..................................................................................... 398 R81-A-4 ..................................................................................... 400 R81-A-5 ..................................................................................... 401 R81-A-6 ..................................................................................... 406 R81-A-7 ..................................................................................... 406 R81-A-8 ..................................................................................... 407

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

667

Rule 82 – Restrictions on Disclosure of Material and Information Protected under Article 54, paragraph 3 (e) ......................................... 409 R82-PT-1 .................................................................................... 410 Rule 85 – Definition of Victims................................................................ 413 R85-PT-1 .................................................................................... 413 R85-PT-2 .................................................................................... 415 R85-PT-3 .................................................................................... 418 R85-PT-4 .................................................................................... 425 R85-PT-5 .................................................................................... 431 R85-PT-6 .................................................................................... 432 R85-PT-7 .................................................................................... 433 R85-PT-8 .................................................................................... 434 R85-PT-9 .................................................................................... 440 Rule 87 – Protective Measures ................................................................ 442 R87-PT-1 .................................................................................... 443 R87-PT-2 .................................................................................... 444 R87-PT-3 .................................................................................... 445 Rule 89 – Application for Participation of Victims in the Proceedings ..................................................................................... 446 R89-PT-1 .................................................................................... 447 R89-PT-2 .................................................................................... 448 R89-PT-3 .................................................................................... 449 Rule 90 – Legal Representatives for Victims ......................................... 450 R90-PT-1 .................................................................................... 451 Rule 92 – Notification to Victims and their Legal Representatives ..... 452 R92-PT-1 .................................................................................... 453 Rule 99 – Cooperation and Protective Measures for the Purpose of Forfeiture under Articles 57, Paragraph 3(e), and 75, Paragraph 4.... 456 R99-PT-1 .................................................................................... 456 R99-PT-2 .................................................................................... 457

668

CYRIL LAUCCI

Rule 101 – Time Limits ............................................................................ 459 R101-PT-1 .................................................................................. 459 Rule 103 – Amicus Curiae and Other Forms of Submissions ............... 460 R103-PT-1 .................................................................................. 460 R103-PT-2 .................................................................................. 461 R103-PT-3 .................................................................................. 462 Rule 114 – Unique Investigative Opportunity under Article 56........... 467 R114-PT-1 .................................................................................. 467 R114-PT-2 .................................................................................. 468 Rule 118 – Pre-Trial Detention at the Seat of the Court ....................... 470 R118-PT-1 .................................................................................. 470 Rule 121 – Proceedings Before the Confirmation Hearing ................... 472 R121-PT-1 .................................................................................. 473 R121-PT-2 .................................................................................. 474 R121-PT-3 .................................................................................. 475 R121-PT-4 .................................................................................. 475 R121-PT-5 .................................................................................. 476 R121-PT-6 .................................................................................. 478 R121-PT-7 .................................................................................. 478 R121-PT-8 .................................................................................. 479 R121-PT-9 .................................................................................. 480 R121-PT-10 ................................................................................ 480 R121-PT-11 ................................................................................ 482 R121-PT-12 ................................................................................ 484 R121-PT-13 ................................................................................ 484 R121-PT-14 ................................................................................ 485 R121-PT-15 ................................................................................ 486 R121-PT-16 ................................................................................ 486 R121-PT-17 ................................................................................ 487 R121-PT-18 ................................................................................ 488

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

669

R121-PT-19 ................................................................................ 489 R121-PT-20 ................................................................................ 489 R121-PT-21 ................................................................................ 490 R121-PT-22 ................................................................................ 491 R121-PT-23 ................................................................................ 492 Rule 122 – Proceedings at the Confirmation Hearing in the Presence of the Person Charged ................................................... 493 R122-PT-1 .................................................................................. 494 R122-PT-2 .................................................................................. 494 R122-PT-3 .................................................................................. 494 R122-PT-4 .................................................................................. 495 R122-PT-5 .................................................................................. 496 R122-PT-6 .................................................................................. 496 R122-PT-7 .................................................................................. 498 Rule 140 – Directions for the Conduct of the Proceedings and Testimony........................................................................................... 504 R140-PT-1 .................................................................................. 504 Rule 155 – Appeals that Require Leave of the Court ............................ 510 R155-PT-1 .................................................................................. 510 R155-PT-2 .................................................................................. 511 R155-PT-3 .................................................................................. 513 Rule 157 – Discontinuance of the Appeal ............................................... 516 R157-A-1 ................................................................................... 516 Rule 158 – Judgement on the Appeal...................................................... 517 R158-A-1 ................................................................................... 517 R158-A-2 ................................................................................... 518 R158-A-3 ................................................................................... 519 R158-A-4 ................................................................................... 519 R158-A-5 ................................................................................... 520 R158-A-6 ................................................................................... 520

670

CYRIL LAUCCI

REGULATIONS OF THE COURT.............................................. 541 Regulation 8 – Website of the Court ....................................................... 544 r8-PT-1 ....................................................................................... 544 Regulation 13 – Presiding Judges............................................................ 546 r13-PT-1 ..................................................................................... 547 r13-PT-2 ..................................................................................... 547 r13-A-1 ....................................................................................... 548 Regulation 20 – Public hearings .............................................................. 550 r20-PT-1 ..................................................................................... 550 Regulation 21 – Broadcasting, Release of Transcripts and Recordings ......................................................................................... 550 r21-PT-1 ..................................................................................... 551 r21-PT-2 ..................................................................................... 551 Regulation 23 – Content of Documents .................................................. 552 r23-PT-1 ..................................................................................... 553 r23-PT-2 ..................................................................................... 553 r23-PT-3 ..................................................................................... 554 Regulation 24 – Responses and Replies .................................................. 554 r24-PT-1 ..................................................................................... 554 r24-PT-2 ..................................................................................... 555 r24-PT-3 ..................................................................................... 556 r24-PT-4 ..................................................................................... 556 r24-PT-5 ..................................................................................... 558 r24-PT-6 ..................................................................................... 558 r24-PT-7 ..................................................................................... 559 Regulation 26 – Electronic Management................................................ 560 r26-PT-1 ..................................................................................... 560

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

671

Regulation 28 – Questions by a Chamber .............................................. 561 r28-PT-1 ..................................................................................... 561 r28-PT-2 ..................................................................................... 562 r28-A-1 ....................................................................................... 563 Regulation 29 – Non Compliance with these Regulations and with Orders of a Chamber ............................................................................... 564 r29-A-1 ....................................................................................... 564 r29-A-2 ....................................................................................... 565 Regulation 30 – Status Conferences ........................................................ 565 r30-PT-1 ..................................................................................... 565 r30-PT-2 ..................................................................................... 566 r30-PT-3 ..................................................................................... 566 Regulation 31 – Notification .................................................................... 567 r31-PT-1 ..................................................................................... 568 r31-PT-2 ..................................................................................... 570 Regulation 33 – Calculation of Time Limits .......................................... 571 r33-PT-1 ..................................................................................... 571 r33-PT-2 ..................................................................................... 572 Regulation 34 – Time Limits for Documents Filed with the Court ...... 573 r34-PT-1 ..................................................................................... 573 r34-A-1 ....................................................................................... 574 r34-A-2 ....................................................................................... 575 r34-A-3 ....................................................................................... 575 Regulation 35 – Variation of Time Limit ............................................... 575 r35-PT-1 ..................................................................................... 576 r35-PT-2 ..................................................................................... 576 r35-PT-3 ..................................................................................... 576 r35-PT-4 ..................................................................................... 577 r35-PT-5 ..................................................................................... 578 r35-PT-6 ..................................................................................... 579

672

CYRIL LAUCCI

r35-PT-7 ..................................................................................... 579 r35-PT-8 ..................................................................................... 580 r35-PT-9 ..................................................................................... 580 r35-PT-10 ................................................................................... 581 r35-A-1 ....................................................................................... 582 r35-A-2 ....................................................................................... 582 r35-A-3 ....................................................................................... 582 r35-A-4 ....................................................................................... 583 r35-A-5 ....................................................................................... 584 r35-A-6 ....................................................................................... 585 Regulation 36 – Format of Documents and Calculation of Page Limits ........................................................................................... 585 r36-PT-1 ..................................................................................... 586 Regulation 37 – Page Limits for Documents Filed with the Registry .. 587 r37-PT-1 ..................................................................................... 587 r37-PT-2 ..................................................................................... 587 r37-PT-3 ..................................................................................... 588 r37-A-1 ....................................................................................... 588 r37-A-2 ....................................................................................... 589 Regulation 38 – Specific Page Limits ...................................................... 589 r38-A-1 ....................................................................................... 590 Regulation 40 – Language Services of the Registry ............................... 592 r40-PT-1 ..................................................................................... 592 Regulation 46 – Pre-Trial Chamber ....................................................... 594 r46-P-1 ....................................................................................... 595 Regulation 48 – Information Necessary for the Pre-Trial Chamber ... 596 r48-PT-1 ..................................................................................... 596 Regulation 51 – Decision on Interim Release ......................................... 598 r51-PT-1 ..................................................................................... 598

ANNOTATED DIGEST OF THE INTERNATIONAL CRIMINAL COURT

673

Regulation 58 – Document in Support of the Appeal ............................ 601 r58-A-1 ....................................................................................... 601 Regulation 59 - Response ......................................................................... 602 r59-A-1 ....................................................................................... 602 Regulation 64 – Appeals Under Rule 154 ............................................... 604 r64-A-1 ....................................................................................... 605 Regulation 76 – Appointment of Defence Counsel by a Chamber ....... 610 r76-PT-1 ..................................................................................... 610 Regulation 77 – Office of Public Counsel for the Defence .................... 611 r77-PT-1 ..................................................................................... 611 Regulation 83 – General Scope of Legal Assistance Paid by the Court...................................................................................... 613 r83-PT-1 ..................................................................................... 613 Regulation 86 – Participation of Victims in the Proceedings under Rule 89 ............................................................................................ 615 r86-PT-1 ..................................................................................... 616 r86-PT-2 ..................................................................................... 618 Regulation 90 – Management of the Detention Centre ......................... 619 r90-PT-1 ..................................................................................... 620

LIST OF REVIEWED DECISIONS ............................................. 632

INDEX .............................................................................................. 650

TABLE OF CONTENTS................................................................ 657