E-letter May 2010

In this issue

Darfur
Appeals Chamber directs Pre-Trial Chamber I to reconsider issuing Warrant of Arrest for charge of genocide against President Al-Bashir

Democratic Republic
of the Congo
ICC's second trial opens against Germain Katanga and Mathieu Ngudjolo Chui

Democratic Republic
of the Congo
Update on Lubanga Trial – Appeals Chamber reverses Trial Chamber I's decision issuing notice to the parties that the legal characterisation of facts may change

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Dear Friends,

Welcome to the Legal Eye on the ICC, a regular 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 regular 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 :: Appeals Chamber directs Pre-Trial Chamber I to reconsider issuing Warrant of Arrest for charge of genocide against President Al-Bashir

On 4 March 2009, Pre-Trial Chamber I issued a Warrant of Arrest[1] for the President of Sudan, Omar Hassan Ahmad Al-Bashir, in response to the Prosecutor's application of 14 July 2008.[2] In its decision issuing the Warrant of Arrest, the Pre-Trial Chamber found, as required by Rome Statute Article 58, that there were 'reasonable grounds to believe' that Al-Bashir has committed crimes within the jurisdiction of the court, namely five counts of crimes against humanity, including rape, and two counts of war crimes. However, the two-judge majority declined to include the crime of genocide in the Arrest Warrant, despite the Prosecution's assertion that there were reasonable grounds to believe Al-Bashir bears criminal responsibility for three counts of genocide. The genocide charges sought by the Prosecutor included charges of gender-based crimes, namely causing serious bodily or mental harm to members of the Fur, Masalit, and Zaghawa ethnic groups including through displacement, torture, rape and other forms of sexual violence. Judge Ušacka dissented from this decision, finding that there were reasonable grounds to believe that Al-Bashir possessed genocidal intent and was criminally responsible for genocide.

On 6 July 2009, the Prosecution filed an appeal against the decision.[3] In its appeal, the Prosecution submitted that the majority applied the wrong legal test in relation to inferences for determining 'reasonable grounds' under Article 58(1). Although the majority Decision of the Pre-Trial Chamber acknowledged that the applicable standard of proof is one of 'reasonable grounds to believe', the Prosecution argued that the majority nonetheless applied a standard requiring the higher burden of 'beyond reasonable doubt'. Further, the Prosecution objected to the majority's conclusion that the Prosecution failed to meet its evidentiary burden because genocidal intent 'is not the only reasonable conclusion to be drawn', even while the majority acknowledged that the inference of genocidal intent could be one reasonable conclusion drawn from the evidence.[4]

In its appeal, the Prosecution sought a finding from the Appeal Chamber to either direct the Pre-Trial Chamber to add the charges of genocide to the Warrant of Arrest, or reverse the Pre-Trial Chamber's decision and set out the proper standard for an inference of genocidal intent under Article 58, remanding the case to the Pre-Trial Chamber with instructions to decide whether reasonable grounds exist for issuing a warrant containing the charge of genocide. Read more about the Prosecution's appeal in the September 2009 issue of Legal Eye on the ICC [read].

On 3 February 2010, the Appeals Chamber handed down a unanimous decision reversing Pre-Trial Chamber I's finding that it had been provided with insufficient evidence to issue a warrant of arrest in respect of the crime of genocide.[5]  The Appeals Chamber agreed with the Prosecution that the Pre-Trial Chamber had applied an erroneous standard of proof.  Based on a review of the Pre-Trial Chamber's reasoning with respect to the evidence presented by the Prosecutor, the Appeals Chamber concluded that:

... the Pre-Trial Chamber would be satisfied that there were reasonable grounds to believe that [Al-Bashir] acted with genocidal intent only if the existence of such intent was the only reasonable conclusion. The Appeals Chamber finds that, although the Pre-Trial Chamber appreciated the appropriate standard to be 'reasonable grounds to believe', it applied this standard erroneously. The standard it developed and applied in relation to 'proof by inference' was higher and more demanding than what is required under article 58(1)(a) of the Statute. This amounted to an error of law.[6]

The Appeals Chamber chose to remand the matter to the Pre-Trial Chamber for a new decision on the genocide charge using the correct standard of proof, but it declined to go as far as to direct the Pre-Trial Chamber to issue a warrant of arrest on the three counts of genocide. At the time of the publication of this article, the Pre-Trial Chamber has not yet issued their decision.

Read the Appeals Chamber Judgement here: http://www.icc-cpi.int/iccdocs/doc/doc817795.pdf

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DRC: ICC's second trial opens against Germain Katanga and Mathieu Ngudjolo Chui

The ICC's second trial, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, commenced on 24 November 2009. This is the second trial arising out of the DRC Situation and the first trial at the Court to include charges for gender-based crimes. The case involves an attack carried out on 24 February 2003, by the Front de nationalists et integrationnistes (FNI) and Force de resistance patriotique en Ituri (FRPI) on the village of Bogoro in Ituri. At the time of the attack, Katanga was the alleged commander of the FRPI and Ngudjolo was the alleged commander of the FNI.[7]

Both Katanga and Ngudjolo are charged with seven counts of war crimes, including rape, sexual slavery, using children under the age of 15 to take active part in hostilities, directing an attack against a civilian population, wilful killings, destruction of property, and pillaging. They are charged with three counts of crimes against humanity, including rape, sexual slavery and murder. In its decision confirming the charges of 26 September 2008, the Pre-Trial Chamber failed to confirm charges for the war crime of 'torture or inhuman treatment'[8] and the crime against humanity of 'other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health'.[9] Read more about the Confirmation of Charges decision and the Pre-Trial phase of the Katanga and Ngudjolo case in the 2009 Gender Report Card and 2008 Gender Report Card.

The Katanga and Ngudjolo case is at least partially 'representative' of the types of attacks, types of crimes, types of violence against women and the types of victims of the FRPI and FNI.[10] Based on the Women's Initiatives' own documentation of gender-based crimes in eastern DRC, many other forms of sexual violence are alleged to have been committed in the Bogoro attack. In 2006 and 2007, the Women's Initiatives interviewed 112 women survivors of sexual violence in eastern DRC, who described horrific attacks of individual rapes, gang rapes and sexual slavery.[11] Almost thirty of these interviews related to gender-based crimes committed by the FNI and FRPI. The Women's Initiatives described this documentation in a Press Statement delivered at the ICC prior to the opening of the Katanga and Ngudjolo trial:

Many of the women were raped in front of family members, including their children. Several we interviewed reported losing consciousness as a result of rape, and some became pregnant. Women who were pregnant prior to the rape lost their children, and many had severe physical and psychological injuries as a result of the sexual violence. Many women were attacked in their homes. Many were abducted and enslaved particularly in camps run by the FNI. Women we interviewed told us that in addition to domestic work in the camps, women were raped by militiamen and commanding officers and assigned to them as 'wives'. Those who tried to escape were killed.[12]

In his opening statement, the Prosecutor described the attack on the village of Bogoro as 'part of a widespread and systemic attack against the civilian population of Ituri'.[13] He alleged that the plan of Katanga and Ngudjolo was to wipe out the village of Bogoro, and that they attacked in 'successive waves of violence' from 5.30 in the morning of 24 February 2003.[14]

The Prosecutor also drew attention to the sexual violence committed during the attacks, during which women were raped and then killed. He stated that the defendants 'used children as child soldiers […], raped women, girls and elderly […] and transformed women into sexual slaves'.[15] He quoted testimony describing acts of sexual violence from child soldiers who had been involved in the attack.[16] The Prosecutor also addressed the fate of women captured by the FNI and FRPI. He described how Hema women captured by the troops hid their identity to save their lives, as those later revealed as Hema were killed, while other women were raped and forced into marriage or detained to serve as sexual slaves by FNI and FRPI soldiers. The Prosecutor stated that 'All these women were victimised on the basis of their gender. They were attacked in particular because they were women.'[17]

In her opening remarks, Deputy Prosecutor Fatou Bensouda spoke about the context of the attack on Bogoro. She said that 'an ongoing armed conflict existed in the territory of Ituri involving several organised armed groups, including Lubanga's UPC, the FNI, the FRPI as well as the Ugandan army.'[18] The Deputy Prosecutor stated that 'During the Ituri conflict, Lendu and Ngiti militia abducted and raped women of all tribes, including their own women, women they considered to be butin de guerre.'[19] She described earlier attacks in which 'young women were abducted and forced to become wives of combatants,'[20] and used to carry goods looted from the camps. She told the Court that 'They were raped and deprived of their identity and of their liberty. Their existence … was reduced to being the forced wives or sexual slaves of soldiers.[21]

Two legal representatives for victims gave opening statements, on behalf of 345 victims who have been accepted to participate in the trial. Pursuant to an order of the Trial Chamber, these victim participants are grouped into two categories: former child soldiers and the residents of Bogoro village.[22] The Legal Representative of the group of former child soldiers noted in his opening statement that the 'victims, for more than six years, have been waiting for justice to be served'.[23] He also described the callous nature of the attack on Bogoro, in particular how women were raped and 'reduced to the state of sexual slaves'.[24]

The two defence teams also gave opening statements on 24 November. The Katanga defence suggested to the Court that the roles of Uganda, Rwanda, and the DRC Government in the Ituri conflict should be examined, and also stressed that Katanga – 24 years old at the time of the attack – was too young and inexperienced to have planned the attack on Bogoro.[25] The Ngudjolo defence opening also emphasised the roles of other actors in the region and conflict.[26]

Although the opening of the trial was scheduled to be streamed live in Ituri, the scheduled live streaming did not take place as planned due to the unavailability of a satellite.[27] In place of the live stream, the Court provided summaries of the opening of the trial to be broadcast on local radio and television stations throughout Ituri.[28] This interruption in the Court's plans for streaming the opening of trial proceedings emphasises the challenges faced by the ICC in making proceedings accessible to affected communities.

After five days of hearings, on 2 December 2009 the trial was postponed until 26 January 2010 due to the unavailability of one of the Judges. On 26 January, at the request of the Court, the head of the OTP investigation team for Bogoro was called as the first witness to testify about the conditions under which the investigation took place and to describe the methods used to investigate exonerating evidence. The witness explained the challenges presented by the delicate security situation on the ground and adequate witness protection. With regard to victims of sexual violence, she stated that these victims 'not only fear being branded in their own societies, but they also fear retaliation from their perpetrators or groups close to them'.[29] She admitted that the security threats made it 'enormously challenging' to find victims willing to be interviewed by the OTP, and that those who decided to be interviewed 'clearly need to be commended for their courage to do so'.[30] As of 16 February, the Trial Chamber had heard three prosecution witnesses, including a resident of Bogoro and a former FNI soldier. Much of the testimony so far has been given in closed session.

The witness testimony intended to prove charges of sexual violence in the Katanga and Ngudjolo case will be the first such testimony given at the ICC, as these charges are the first charges of gender-based violence that have actually been brought to trial. The Women's Initiatives continues to closely monitor the trial.

Read more about the Women's Initiatives documentation in DRC and our statements on the Katanga and Ngudjolo case in Making a Statement, Second Edition, here: http://www.iccwomen.org/publications/articles/docs/MaS22-10web.pdf

Read the opening statements of the Prosecution, Legal Representatives for Victims, and Defence here: http://www.icc-cpi.int/iccdocs/doc/doc785434.pdf

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DRC :: Update on Lubanga Trial – Appeals Chamber reverses Trial Chamber I's decision issuing notice to the parties that the legal characterisation of facts may change

On 8 December 2009, the Appeals Chamber delivered a critical decision[31] in the case of The Prosecutor v. Thomas Lubanga Dyilo ('Lubanga'). In the ICC's first trial, Lubanga is charged with six counts of war crimes arising out of the alleged UPC practice of elisting and conscripting children under the age of 15 years and using those children to participate actively in the hostilities. This Appeals Chamber decision reverses the Trial Chamber's decision on Regulation 55. In the September 2009 issue of the Legal Eye, we reported on the 14 July 2009 majority decision by the Lubanga Trial Chamber ('Impugned Decision')[32] holding that Regulation 55(2) of the Regulations of the Court grants the Trial Chamber the power to change the legal characterisation of facts at any time during the trial, as long as it provides proper notice to the parties and ensures appropriate safeguards in accordance with the rights of the accused to a fair trial. This decision was prompted by a submission from the Legal Representatives[33] that argued Regulation 55 could be used to amend the legal characterisation of facts to take into account the testimony offered by the victims concerning sexual slavery and cruel and inhuman treatment.

As discussed in the March 2009 and May 2009 issues of the Legal Eye,throughout the trial the Chamber has heard significant testimony on sexual violence from a number of witnesses, ranging from rape and sexual slavery to other forms of gender-based crimes. For a comprehensive overview of the testimony regarding sexual violence at the Lubanga trial, see the 'Trial Proceedings' section of the 2009 Gender Report Card.

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Procedural background to the Appeals Chamber's decision

In the 14 July decision, a majority of the Chamber (Judge Fulford dissenting) found that Regulation 55 permitted the Trial Chamber to modify the legal characterisation of facts to include facts and circumstances not contained in the charges. It reached its decision by reading the provisions of Regulation 55(1) separately from 55(2) and (3), finding that the Regulation 'sets out the powers of the Chamber in relation to two distinct stages'.[34] In its view, Regulation 55(1) describes the requirements for the Chamber's final judgement, and this provision alone is subjected to the limitation that the power to change the legal characterisation of facts must be done 'without exceeding the facts and circumstances described in the charges and any amendments to the charges'.[35] In contrast, Regulation 55(2) 'applies “at any time during the trial” '[36] and is therefore not subject to the limitation in 55(1).

On July 17, 2009, Judge Fulford issued a dissent[37] to the majority's decision in which he argued that the majority's reading of Regulation 55 as two separate provisions was flawed, and such a reading would have significant negative consequences on the rights of the accused.  

In mid-August both the Prosecution and the Defence requested leave to appeal the majority decision.[38] Prior to deciding whether to grant the parties' request to appeal the decision, on 27 August 2009, Trial Chamber I issued a Clarification of its decision of 14 July.[39] Judges Odio-Benito and Blattmann explained that the trigger for the Trial Chamber using this procedure was the application by the Legal Representatives of Victims on 22 May 2009, which asked the Chamber to consider, based on the extensive testimony about sexual violence at trial, the additional legal characterisations of sexual slavery, inhuman treatment and cruel treatment.[40] The majority explained that it would consider additional facts and circumstances that 'build a procedural unity' with those in the charges and amendments 'and are established by the evidence at trial'.[41]

On 3 September 2009, Trial Chamber I granted the parties' request for leave to appeal the 14 July Majority Decision.[42] Following requests by both parties, on 2 October 2009, the Chamber then granted suspensive effect to the 14 July decision.[43] This decision adjourned the trial and presentation of the evidence pending a resolution of the issue by the Appeals Chamber.

Read our analysis of the majority decision, subsequent Clarification, and the dissent in the 2009 Gender Report Card and in the September 2009 issue of the Legal Eye [read].

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Victim Participation in the Appeal

In mid-September, Legal Representatives of three groups of victims filed applications to participate in the parties' appeals.[44] On 20 October 2009, the Appeals Chamber granted the request of 27 victims to participate in the appeal.[45] In its 8 December 2009 decision, the Appeals Chamber issued its reason for granting the victims' request to participate. It considered that all the victims had been recognised as victims in the case, and their personal interests were affected because all claimed to be children enlisted in a militia who had suffered sexual slavery, inhuman treatment and/or cruel treatment. Consequently, the Chamber found the applicants' participation was appropriate in the form of written submissions of their views and concerns.[46] Judge Song and Judge Van den Wyngaert issued a separate opinion on this issue in which they agreed that the victims should have been granted the right to participate, but they argued that the victims did not need to apply for participation again at this stage, nor did the Appeals Chamber need to rule on it. In their view, '… the victims have a right to make their submissions … because they participated in the proceedings that gave rise to the present appeals'.[47]

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Appeals Chamber Decision of 8 December 2009

The Appeals Chamber s much anticipated decision reversed the Impugned Decision, holding that the Trial Chamber had erred in its interpretation of Regulation 55. As described below, the Appeals Chamber did not hold that Regulation 55 is inherently contradictory to the Rome Statute framework. Rather, it explained that Regulation 55(2) and 55(3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.[48]

The Appeals Chamber addressed two issues on appeal as set out by the Trial Chamber:

1. Whether the majority erred in its interpretation of Regulation 55 as a severable provision that allows the Trial Chamber to change the legal characterisation of the charges based on facts and circumstances not contained in the charges;[49]
2. Whether the majority erred in determining that the legal characterisation of facts may be subject to change to include the crimes of sexual slavery as a crime against humanity (article 7(1)(g)) and as a war crime (article 8(2)(xxii) or 8(2)(d)(vi)), inhuman treatment as a war crime (article 8(2)(a)(ii) and cruel treatment as a war crime (article 8(2)(c)(i)).[50]

First Issue on Appeal

Addressing the first issue on appeal, the Appeals Chamber held that the Trial Chamber erred as a matter of law when it interpreted Regulation 55 as containing two separate procedures where Regulation 55(2) and (3) allowed for the Trial Chamber to change the legal characterisation of facts to include additional facts and circumstances not contained in the charges or amendments to the charges. In its view, Regulation 55 is on its face compatible with the Rome Statute and international human rights law, but the Pre-Trial Chamber's interpretation of this provision undermined the integrity of the Rome Statute's framework.

First, it found Regulation 55 does not conflict with Article 52(1), which grants judges the power to & adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning . It disagreed with the Defence that Regulation 55 exceeds the routine functioning of the Court because it affects the substance of the trial and the rights of the accused. Second, the Appeals Chamber disagreed with the Defence that Regulation 55 conflicts with Article 61(9), which grants the Prosecutor the power to amend, add, or substitute charges prior to the commencement of trial, subject to approval by the Pre-Trial Chamber. This provision does not preclude the ability of the Trial Chamber to modify the legal characterisation of the facts once trial has begun. Rather, '... article 61(9) of the Statute and Regulation 55 address different powers of different entities at different stages of the procedure ...'.[51] Third, the Appeals Chamber rejected the argument that Regulation 55 contradicts general principles of international law, or — as long as the rights of the accused are safeguarded — international human rights standards.

Finally, the Appeals Chamber rejected the Defence argument that upholding the rights of the accused person as set forth in article 67(1) and supported by international human rights law precludes a modification in the legal characterisation of facts without a formal amendment to the charges. In the Appeals Chamber's view, such a modification is not inherently incompatible with these rights, but ensuring the rights of the accused, including through the use of additional safeguards if needed, 'will depend on the circumstances of the case'.[52]

Next, it turned to the question of whether the Trial Chamber's interpretation of Regulation 55 was correct, namely that Regulation 55 allowed the Trial Chamber to change the legal characterisation 'based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial'.[53] The Chamber concluded that 'this interpretation of the provision was erroneous because Regulation 55(2) and (3) may not be used to exceed the facts and circumstances described in the charges or any amendment thereto'.[54]

The Appeals Chamber reached this conclusion by finding that the Trial Chamber's interpretation of Regulation 55 contradicted two articles of the Rome Statute. First, article 74(2) states that 'any decision [of the Trial Chamber at the end of trial] shall not exceed the facts and circumstances described in the charges and any amendments to the charges'. In the Appeals Chamber s view, article 74(2) precludes the Trial Chamber from introducing additional facts through a change in their legal characterisation. 'The term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged'.[55] Citing the Statute's drafting history, it found that 'the purpose of [article 74(2)] was to bind the Chamber to the factual allegations in the charges.'[56] For Regulation 55 to be consistent with article 74(2), the latter 'binds the Trial Chamber only to the facts and circumstances described in the charges or any amendment thereto'.[57] However, '[i]t follows a contrario that article 74(2) of the Statute does not rule out a modification of the legal characterisation of the facts and circumstances'.[58]

Second, the Appeals Chamber explained that if the Trial Chamber seeks to add additional facts and circumstances, it must do so according to the procedure set forth in article 61(9). This provision gives the Prosecutor, not the Trial Chamber, the power to introduce new facts and circumstances. For the Trial Chamber to circumvent this procedure by using Regulation 55 not only would alter the fundamental scope of the trial but also 'would be contrary to the distribution of powers under the Statute'.[59] Despite the Defence's urging, however, the Chamber declined to specify the limits of the Trial Chamber's ability to modify the legal characterisation of the facts. While 'the particular circumstances of the case will have to be taken into account, the change in the re-characterisation must not lead to an unfair trial'.[60]

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Second Issue on Appeal

Finally, the Appeals Chamber addressed the second issue on appeal, whether based on its interpretation of Regulation 55, the Trial Chamber erred in determining that the legal characterisations of the facts may be subject to change. The Defence had argued that the facts and circumstances contemplated by the Trial Chamber — as contained in the Legal Representatives' submission — do not establish the elements of the crimes of sexual slavery, inhuman treatment or cruel treatment. However, the Appeals Chamber agreed with the Prosecutor, holding that it would be premature to address whether the modification of the facts proposed by the Trial Chamber would constitute an impermissible amendment to the charges. It also noted that the Trial Chamber's explanations in the Impugned Decision and the ensuing Clarification were 'extremely thin'.[61] 'The Trial Chamber neither provided any details as to the elements of the offenses the inclusion of which it contemplated, nor did it consider how these elements were covered by the facts and circumstances described in the charges'.[62]To rule on the issues without such explanation from the Trial Chamber would potentially harm the rights of the accused by depriving him of an avenue of review.

Following the resolution of this issue by the Appeals Chamber, the trial has since resumed. The Defence began presenting its evidence in the case on 27 January 2010.

The Appeals Chamber judgement is available here:
http://www.icc-cpi.int/iccdocs/doc/doc790147.pdf

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Second Submission by the Legal Representatives of Victims

Following the Appeals Chamber judgement, the Legal Representatives for Victims submitted observations arguing that the judgement had not closed the door to the Trial Chamber using Regulation 55. In their view, the 'circumstances described in the charges' could be interpreted broadly to include 'circumstances of manner, time and location'.[63] They alleged that the facts relating to sexual slavery and inhuman and cruel treatment demonstrate the manner in which the crimes were committed. In addition, the circumstances of manner spoke to the gravity of the charges for enlistment and conscription of child soldiers, and accordingly should be considered as aggravating factors.

The Trial Chamber refused the application. It found that the 'circumstances of manner', while potentially relevant for purposes of determining aggravating factors for sentencing, 'is an entirely different task to that of modifying the legal characterisation of the facts as regards the charges the accused faces ...'.[64] It found the factual allegations for the crime of inhuman or cruel treatment are not sufficiently supported in the Pre-Trial Chamber's confirmation of charges decision, while facts related to sexual slavery do not appear at all in the decision. According to the Trial Chamber,

It follows that these modifications to the legal characterisation of facts could only be proved by reference to evidence (i) not referred to by the Pre-Trial Chamber in the Decision on the Confirmation of Charges and (ii) not referred to by the Pre-Trial Chamber in that Decision as supporting the legal elements of the crimes charged. In the result, the proposed modifications would infringe the Appeals Chamber's interpretation of Regulation 55 of the Regulations of the Court.[65]

The Trial Chamber s decision of 8 January 2010 is available here:
http://www.icc-cpi.int/iccdocs/doc/doc802895.pdf

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Footnotes

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