E-letter June 2009

In this issue

Darfur, Sudan
First appearance by rebel commander Abu Garda in The Hague

Democratic Republic
of the Congo
Trial Chamber I restricts the participation of 'indirect victims' in the Lubanga case

Democratic Republic
of the Congo & Darfur, Sudan
Appeals Chamber rulings on victim participation at the investigation stage

Democratic Republic
of the Congo
Katanga defence challenges the admissibility of the case

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Dear Friends,

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

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

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

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

Darfur :: First appearance by rebel commander Abu Garda in The Hague

In a heavily redacted filing dated 16 April 2009, the Prosecutor submitted further information to Pre-Trial Chamber I relating to his 20 November 2008 application for warrants of arrest for three rebel commanders. The case against the rebel commanders, two of whom remain unnamed, arises out of an attack by rebel forces on UN peacekeepers on 29 September 2007 (the 'Haskanita attack'). In this filing the Prosecutor also included an urgent request for expedited consideration of its original application 'given the current real prospects of ensuring the appearance of [redacted] before the Court'. The Prosecutor requested that the Pre-Trial Chamber issue summonses to appear rather than warrants of arrest, should the Chamber decide to grant the application.

Article 58(7) of the Rome Statute provides for the Pre-Trial Chamber to issue a summons to appear as an alternative to a warrant of arrest. A summons to appear may be issued at the request of the Prosecutor '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'. The summons may be issued 'with or without conditions restricting liberty (other than detention) if provided for by national law'.

On 7 May 2009, Pre-Trial Chamber I issued a summons to appear, under seal, for one of the three alleged rebel commanders, Bahr Idriss Abu Garda ['Abu Garda']. This document was made public on 17 May 2009. In the decision accompanying the summons, Pre-Trial Chamber I has indicated that there are reasonable grounds to believe that

1. Haskanita was attacked by a group of approximately 1000 persons armed with anti-aircraft guns, artillery guns and rocket-propelled grenade launchers on 29 September 2007;
2. the above-mentioned attack was carried out by splinter forces of the Justice and Equality Movement (JEM), under the command of Abu Garda, jointly with the troops belonging to another armed group; and
3. the attack occurred in the context of and was associated with [an] armed conflict.

The Chamber also found that there are reasonable grounds to believe that, during the attack, the attackers killed 12 and severely wounded eight peacekeepers, as well as destroying or appropriating communications installations, dormitories, vehicles and other materials belonging to the peacekeepers. The Chamber found that there were reasonable grounds to believe that the war crimes of

1. violence to life in the form of murder, whether committed or attempted, within the meaning of Article 8(2)(c)(i);
2. intentionally directing attacks against personnel, installations, materials, units and vehicles involved in a peacekeeping mission, within the meaning of Article 8(2)(e)(iii); and
3. pillaging, within the meaning of Article 8(2)(e)(v).

had been committed by rebel forces under the command of Abu Garda and other rebel commanders, as part of a common plan to attack the Haskanita Camp.

On the basis of the foregoing, the Chamber has concluded that there were reasonable grounds to believe that Abu Garda bore joint criminal responsibility under Article 25(3)(a) (as a direct co-perpetrator), or alternatively under Article 25(3)(f) (as an indirect co-perpetrator) for the crimes that were committed during the attack.

According to the Court's website, Abu Garda arrived in The Hague on 17 May on a commercial flight to make his initial appearance before the Court. He was held at an undisclosed location somewhere in The Hague that is, according to the Court's website, 'considered an extension of the Court's premises'.

The initial appearance, presided over by Single Judge Tarfusse, took place on 18 May 2009. The suspect spoke in Arabic. He confirmed his identity and gave his profession as 'the commander of a resistance movement' and 'political commander'. During the hearing, Abu Garda was reminded of the purpose of the hearing, the charges against him, and the conditions of appearance that had been set by the Chamber. These conditions included that he refrain from making political statements while within the premises of the Court. The suspect was also informed of his rights under Article 67 of the Rome Statute.

Pursuant to Rule 121 of the Rules of Procedure and Evidence, the date for the confirmation of charges hearing was set for 12 October 2009. Abu Garda has waived his right to attend status conferences that will take place before the confirmation hearing in person, and will instead be represented by counsel at those conferences. He has reserved the right to decide whether he will waive his right to appear at the confirmation hearing itself for a later stage of the proceedings.

Abu Garda is the first suspect from the situation of Darfur to make an appearance in The Hague. Arrest warrants for Ahmad Harun and Ali Kushayb, issued in May 2007, remain outstanding. Ahmad Harun, who had been promoted to Minister of State for Humanitarian Affairs in 2006, was recently appointed by President Omar Hassan Ahmad Al'Bashir as governor of Sudan's disputed south Kordofan province. As reported in the March and May issues of the Legal Eye on the ICC, President Al'Bashir is also the subject of an outstanding arrest warrant from the ICC, as of 4 March 2009.

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DRC :: Trial Chamber I restricts the participation of 'indirect victims' in the Lubanga case

On 8 April 2009, Trial Chamber I delivered a decision on the participation of 'indirect victims' in the case of The Prosecutor v. Thomas Lubanga Dyilo. Thomas Lubanga Dyilo (Lubanga), the president of the Union des patriots congolais (UPC), and commander in chief of Forces patriotiques pour la libération du Congo (FPLC) is currently on trial before the ICC for charges of enlisting and conscripting children under the age of 15 years into the FPLC. Ninety-three victims are currently participating in the trial, represented in the courtroom by eight common legal representatives and by the Office of Public Counsel for Victims (OPCV).

This decision was delivered in response to a Registry submission filed on 21 November 2008 seeking guidance on approximately 200 further victim applications to participate in the trial by 'applicants who allege they have suffered harm as a result of crimes committed by the UPC, including pillage, murder, rape, enslavement or inhuman treatment'. The Registrar sought the Trial Chamber's guidance as to whether these applicants could be considered 'indirect victims', if the crimes they alleged were 'committed by persons who had been conscripted or enlisted whilst under the age of 15 or used to participate actively in hostilities'. Subsequent to the Registrar's submission, the Trial Chamber also requested and received the views of the Prosecution, Defence, and OPCV.

In its decision, the Trial Chamber answered the Registry's question in the negative, determining that indirect victims 'are restricted to those whose harm is linked to the harm of the affected children when the confirmed offences were committed, not those whose harm is linked to any subsequent conduct by the children, criminal or otherwise'.

The decision of the Trial Chamber further clarifies which victims will qualify to participate in the trial proceedings. This decision follows the decisions of 18 January and 11 July 2008 of the Trial and Appeals Chambers respectively, outlining the criteria and procedures for, and modalities of, victim participation. In its decision of 11 July, the Appeals Chamber confirmed that, in order to participate, the harm suffered by a victim must be personal harm but does not necessarily need to be direct harm. While the Appeals Chamber decision left open the possibility of indirect victims qualifying to participate, the criteria for the participation of indirect victims had yet to be fully determined. These decisions are analysed in the 2008 Gender Report Card on pages 59-61.

In coming to its decision, the Trial Chamber analysed Rule 85 of the Rules of Procedure and Evidence, which defines victims, and the jurisprudence interpreting that provision. Based on its own interpretation and subsequent Appeals Chamber interpretations, the Trial Chamber found that there are two categories of victims — direct victims, 'those whose harm is the result of the commission of a crime within the jurisdiction of the Court', and indirect victims, 'those who suffer harm as a result of the harm suffered by direct victims'.

Thus, the Trial Chamber found, 'a causal link must exist between the crimes charged and the harm alleged both for direct and indirect victims'. For direct victims, citing the Appeals Chamber, the Trial Chamber found that this 'causal link must exist between the crimes charged and the victim's harm: the injury, loss, or damage suffered by natural persons must be a result of the crimes confirmed against Thomas Lubanga Dyilo'. The Trial Chamber further clarified that, in this case, 'the direct victims of these crimes are the children below 15 years of age who were allegedly conscripted, enlisted or used actively to participate in hostilities by the militias under the control of the accused within the time period confirmed by the Pre-Trial Chamber'.

Indirect victims 'must establish that, as a result of their relationship with the direct victim, the loss, injury, or damage suffered by the latter gives rise to harm to them. It follows that the harm suffered by indirect victims must arise out of the harm suffered by direct victims, brought about by the commission of the crimes charged'. The Trial Chamber notes that the Appeals Chamber has determined that 'close personal relationships, such as those between parents and children, are a precondition of participation by indirect victims'. However, the Trial Chamber finds that 'the harm suffered by these indirect victims may include the psychological suffering experienced as a result of the sudden loss of a family member or the material deprivation that accompanies the loss of his or her contributions'.

In certain circumstances, the loss, injury, or damage suffered by a person intervening to prevent one of the crimes alleged against the accused may also serve as the basis for an application of an indirect victim, provided that their harm is sufficiently linked to the direct victim's harm. As noted above, the Trial Chamber explicitly excludes as indirect victims those who suffered harm as a result of the subsequent conduct of direct victims, in this case, child soldiers, stating that 'the person attacked by a child soldier is not an indirect victim for these purposes because his or her loss is not linked to the harm inflicted on the child when the office was committed'.

The Trial Chamber, in making this decision, reviewed a representative sample of 19 redacted victim applications selected by the Registry, which are summarised in the Trial Chamber's decision. Based on the decision, none of these victims will be admitted to participate in the case. Of the applications of 18 natural persons and one institution reviewed by the Trial Chamber, the summaries show that there are nine that do not mention child soldiers, two that do not fall within the time frame of being considered by the Court in the Lubanga trial, and four that are from persons forcibly recruited or enrolled in UPC/FPLC when they were over the age of 15. Seven of the 19 applications in the sample are from women and five mention rape or sexual violence.

Applicant a/0016/06 claims to have been raped by [redacted] members of the UPC militia, but does not mention child soldiers in her account. Applicant a/0076/06 submits that she, along with at least one other girl, was beaten, tortured, raped, and submitted to inhuman and degrading treatment by men under Lubanga's command. Her account also does not mention child soldiers. Applicant a/0080/06 claims to have been detained by the UPC, during which time she and other women were allegedly raped, tortured, turned into sexual slaves, and forcibly wed. She also does not mention child soldiers. Applicants a/0188/06 and a/0250/07 both report the rape of young girls by the UPC in their villages.

The sample of applications reviewed by the Trial Chamber suggests, first, that the Court continues to receive applications from large numbers of victims who will not meet the relatively narrow criteria for participation that have been defined by Chambers. It also shows the importance of gathering accurate and targeted information from victim applicants to submit to the Court — for example, it is possible that the failure to mention child soldiers is a result of the circumstances of the interview by an intermediary in the field, and that interviewers were not aware at the time of the significance of such details. Such details may prove important, even if they do not ultimately determine whether an application is accepted.

This decision also demonstrates the impact of conducting limited and incomplete investigations and subsequently bringing narrow charges, such as those faced by Lubanga, in situations where there is evidence that other crimes, including crimes of sexual violence, have been committed. Not only will those crimes not be prosecuted at the international level in that particular case, but also in selecting the charges, the Prosecutor effectively circumscribes the victims who may have access to the formal justice processes at the ICC for that case. Moreover, if the ICC Prosecutor neglects to charge a leader of an armed group or militia for crimes of sexual violence, it becomes highly unlikely that anyone in that militia group will face charges of sexual violence. The Women's Initiatives for Gender Justice raised these issues in a letter to the Office of the Prosecutor in August 2006, in relation to the charges against Thomas Lubanga. At the time we stated that '… given there are reasonable grounds to believe that Thomas Lubanga Dyilo had effective authority and ultimate control over the policies/practices of the UPC/FPLC, it seems to us inherently unlikely that any subordinate member of the UPC/FPLC will be charged with gender-based crimes if Thomas Lubanga Dyilo is not so charged'.

The letter is reproduced in our publication Legal Filings Submitted by the Women's Initiatives for Gender Justice to the International Criminal Court, available at http://www.iccwomen.org/publications/articles/docs/LegalFilings-WebFinal.pdf.

In our own documentation, the Women's Initiatives for Gender Justice has found that there is substantial evidence available to show that rape and other forms of sexual violence were committed by the UPC. Despite the failure of the Prosecutor to include these charges against Lubanga, however, former girl soldiers, who are also victims of sexual violence, are currently participating as direct victims in the case. The testimony of one girl soldier, and of the many other witnesses who have testified about the situation of girls and women in the UPC, are discussed in the March and May 2009 issues of Legal Eye on the ICC.

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DRC & Darfur :: Appeals Chamber rulings on victim participation at the investigation stage

Another significant development in jurisprudence pertaining to victim participation came in December 2008 and February 2009, when the Appeals Chamber issued two important judgements concerning the participation of victims at the investigation stage of a Situation. These two judgements, the first issued on 19 December 2008, and the second on 2 February 2009, dispose of appeals from four decisions made by Pre-Trial Chamber I in late 2007 concerning the participation of victims in the Situations under investigation in the DRC and Darfur, Sudan. The decisions of the Pre-Trial Chamber are analysed on pages 58-59 and 62-63 of our 2008 Gender Report Card.

Both Appeals Chamber judgements deal with the central question of whether there is authority under Article 68(3) of the Rome Statute to accord a 'procedural status of victim', thereby allowing victims to participate in the investigation stage of a Situation. In each of its two judgements, the Appeals Chamber answers this question in the negative, ruling that 'the decisions of the Pre-Trial Chamber acknowledging procedural status to victims [and] entitling them to participate generally in the investigation of a situation, are ill-founded and must be set aside'.

The judgments hinge on the notion that victims cannot be granted the right to participate at the investigation stage of a situation because firstly, on a strict reading of Article 68(3), victim participation can only take place within the context of 'judicial' proceedings, and investigations, the judgements decide, are not 'judicial' proceedings. The judgements also make it clear that, in the view of the Appeals Chamber, investigations should be the 'exclusive province' of the Prosecutor, and that allowing victim participation at this stage would compromise the 'domain and powers' of the Prosecutor under the Rome Statute.

The four decisions of the Pre-Trial Chamber had granted the 'procedural status of victim' in the investigation stage of the DRC and Darfur Situations to a total of 79 applicants. The 'unavoidable outcome' of the Appeals Chamber judgements, Judge Pikis rules, is that these decisions are now reversed. These judgements are also likely to have implications for victims who have been granted procedural status in the other Situations before the Court. A total of 21 applicants have been granted such status in respect of the Situation in Uganda. There have been no applicants to date for victim status in respect of the Situation in CAR.

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DRC :: Katanga defence challenges the admissibility of his case

On 11 March 2009, in The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, the defence for Germain Katanga filed a Motion Challenging the Admissibility of the Case. This motion, the first of its kind at the ICC, argues that the Rome Statute provides for the ICC to find Katanga's case inadmissible, on the basis that the government of the Democratic Republic of Congo (DRC) had proceedings underway to prosecute Katanga for crimes against humanity at the time of his surrender to the ICC by DRC authorities. The defence makes this argument based on its own investigations in DRC and on the DRC government documents that it has reviewed. (These supporting documents, attached as annexes to the filing, have not been made public.)

This motion was filed under Article 19(2)(a) of the Rome Statute, which provides that an accused may challenge the admissibility of a case on the grounds referred to in Article 17 of the Statute. Article 17 contains the principle of complementarity, a concept which is at the core of the defence's challenge to the case. The relevant portion, Article 17(1)(a), provides that the Court shall find a case inadmissible where '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'. In this case, the defence argues that there were proceedings underway against Katanga in DRC, and that there is a 'significant and almost complete overlap' in the DRC proceedings against Katanga, as compared to the charges confirmed against Katanga by the Pre-Trial Chamber.

The defence argues that national courts enjoy primacy over the ICC, and that this is a key distinction between the ICC and the ad hoc tribunals, which have primacy over national courts. The defence reviews the principle of complementarity from the perspectives of states, the ICC, and the accused, all of whom, it argues, have reason to prefer national prosecutions over prosecutions by the International Criminal Court. For states, the principle of complementarity ensures (or was intended to ensure) the protection of state sovereignty. For the ICC, complementarity serves its interest by providing that the burden of prosecutions will be shared with national jurisdictions. For the accused, a trial in their national jurisdiction avoids the negative effects of being moved to a foreign jurisdiction, including being tried in a foreign legal culture, distance from family, and potential fair trial problems arising out of the lack of subpoena power of the ICC. The defence also argues that domestic proceedings are often more efficient than international proceedings, where lengthy delays before trial may violate the right to be tried without undue delay.

In making its arguments, the defence looks at the admissibility test currently applied in ICC case law, which was articulated in the Lubanga case and has been followed in the context of decisions on applications for arrest warrants pursuant to Article 58 of the Rome Statute. In the Lubanga case, Pre-Trial Chamber I found that 'for a case arising from the investigation of a situation to be inadmissible, national criminal proceedings must encompass both the person and the conduct which is the subject of the case before the Court' ('same person/same conduct test'). For an admissibility determination, the defence argues, the moment that matters is the 'state of affairs at the time the arrest warrant was issued', and that it is no longer relevant whether investigations or prosecutions in the DRC are ongoing.

The Katanga defence cites the same person/same conduct test as a 'vital but flawed' decision, which has been followed in subsequent case law despite containing no analysis of the drafting history or underlying object and purpose of the principle of complementarity. The defence submits that the correct interpretation of complementarity is one in which the Court plays an active role in developing and assisting the investigations and prosecutions in Situation countries.

At a bare minimum, the Prosecutor carries the burden to convince the Pre-Trial Chamber, in the framework of the application for an arrest warrant, that it has taken all the steps that could have been reasonably expected to assist the State in its national investigation/prosecution.

The Katanga defence expresses concern 'as to the degree that the Pre-Trial Chamber tried to engage in a dialogue, via the Prosecutor, with the investigating/prosecuting State, the DRC'. The Pre-Trial Chamber in Katanga, they argue, copied the same person/same conduct test 'uncritically', and the reasoning of the Pre-Trial Chamber does not make clear where the charges proposed by the ICC differ from those underlying the investigations in the DRC. The defence claims that documents they have obtained from the DRC government indicate that the DRC was investigating the alleged Bogoro attack, the same attack giving rise to the ICC charges.

Both the Prosecutor and Pre-Trial Chamber have either failed in their investigative duties or have failed to offer reasoning as to why the efforts undertaken in DRC did not encompass the same conduct, or should otherwise be regarded as 'insufficient'.

The defence also argues that, while they have no objection to the same person test, the same conduct test is the incorrect interpretation of Article 17 'if viewed in the light of its object and purpose'. Rather, this test amounts to primacy of the ICC, substituting the international prosecution for 'serious' investigations and prosecutions at the national level. Citing scholarly articles which support rejection of the same conduct test, the defence notes that the same conduct test can frustrate bona fide national proceedings, including proceedings that may have taken a different, but still legitimate, focus than the ICC proceedings. The result, argues the defence, is that 'national prosecutors who wish to avoid ICC intervention are bound to select the person, conduct and incident that the ICC would prosecute'.

The defence instead argues that a combined 'comparative gravity/comprehensive conduct test' should be used. Under a comparative gravity test, the gravity of the (intended) scope of investigations at the national level would be compared with the (intended) scope of investigations by the ICC prosecutor. The admissibility threshold would be met only when the ICC prosecutor's investigation 'significantly exceed in gravity the scope of national investigations'. Likewise, under a comprehensive conduct test, the case would only be admissible when the ICC prosecutor's scope of investigation is 'significantly more comprehensive' than the scope of national investigations.

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Complementarity and gender-based crimes

It will remain to be seen how the Trial Chamber will rule on the defence challenge. It should be noted, however, that how the charges are defined may be as significant as which conduct or incidents are selected for prosecution by the ICC or national authorities. As discussed above with respect to the Lubanga case, the ICC prosecutor may choose a case and bring charges that do not reflect the entirety of the crimes committed by an individual or a militia group, in particular gender-based crimes including crimes of sexual violence.

A second issue with respect to gender-based crimes is whether the domestic laws, in this case of the Democratic Republic of Congo, meet the standards of the Rome Statue. Such an analysis would be important for the Katanga and Ngudjolo case, which includes charges of crimes of sexual violence committed during the attacks on Bogoro. Likewise, domestic prosecutions are unlikely to provide the same level of victim and witness protection, special measures for courtroom testimony of vulnerable witnesses such as children and victims of sexual violence, and may carry burdensome evidentiary requirements for victims of rape that in themselves are an effective barrier to reporting these crimes. Thus while a domestic prosecution may cover the same person and conduct, they cannot be said to be equivalent to the Rome Statute provisions for prosecutions in all aspects.

In many of the situations within which the ICC is exercising or could exercise its jurisdiction, women have limited human and legal rights especially in relation to physical integrity and the prevention of violence. The absence of relevant or effective legislation, the existence of laws which condone violence against women, the requirement of corroboration in relation to rape and sexual violence, issues of 'consent', inclusion in a trial of information regarding prior or subsequent sexual behaviour of the victim/survivor (of rape), inadequate police investigations, the stigma associated with rape and the lack of support for women can all conspire to create a state of unwillingness and inability to genuinely prosecute gender-based crimes.
(Brigid Inder, Gender Crimes, Interface between Peace and International Justice in Africa, ALFA Quarterly, July-December 2007, ISSN 1384-282x)

As reported in the May issue of Legal Eye on the ICC, the Katanga and Ngudjolo trial is now scheduled to start on 24 September 2009. The Trial Chamber will make a decision on this appeal in due course. It is almost certain that any decision of the Trial Chamber on admissibility will be appealed by either party, under Rome Statute Article 82(1)(a) and Rule 154(1) of the Rules of Procedure and Evidence which provide that appeals of decisions concerning admissibility or jurisdiction do not require the leave of the Court. We will report here on the development of this important jurisprudence.

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