Transcript Current Issues Before the ICC Chambers

Congresso Internacional de Derecho Penal
Current Issues Before the ICC
Simon De Smet
Pre-Trial Division
20 June 2006
Disclaimer
• The views expressed during this
presentation are the personal opinions of
the speaker and do not represent the
position of the Court in any way.
• The information conveyed during this
presentation may not be published
unless with the express and written
consent of the speaker and the Court.
Background
• Court is seized with 4 situations.
– DRC,
Background
– Uganda,
Procedure
– Sudan,
Sources of law
– CAR
Disclosure
Complementarity
Arrest warrant
Victims’
participation
• 6 warrants of arrest have been issued
– 5 against LRA leaders in Uganda
– 1 against UPC leader in DRC
• 1 person has been arrested and is in custody of the ICC
– Mr. Thomas Lubanga Dyilo
Background
Procedure
Procedural framework
Request for
authorization to
start an investigation
by the Prosecutor
In case of a State
or SC referral there
is no need to
Confirmation
of therequest
charges
authorization
Trial stage
Trial Chamber: conducts a
fair and expeditious trial;
convicts or acquits and
imposes sentences
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Interlocutory Appeals stage
Preliminary
Investigation
Appeals Appeals Chamber:
examination by
at any time reverses or amends
the Prosecutor
acquittals, convictions or
sentences and orders
Revision
stage
Pre-trial stage
new trials
Appeals Chamber:
Pre-Trial Chamber: issues orders,
revises convictions and /
warrants during an investigation;
or sentences and
protects
evidence,
victims
and
orders new trials
witnesses and ensures the interests of
the defence
Background
Situations v. Case
• “Situations, which are generally defined in
terms of temporal, territorial and in some cases
personal parameters” (par. 65)
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
• “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” (par. 65)
PTC I – Decision on the applications for participation in the proceedings of VPRS 1 – 6, 17
January 2006 – ICC-01/04-101
Major actors
Pre-Trial Chamber
Background
Procedure
Sources of law
Prosecutor
Defence counsel
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Victims’ representative
in situation
Victims’ representative
in case
Office of Public Counsel
for the victims
Ad hoc Defence counsel
for situation
Ad hoc Defence counsel
for special measures
Office of Public Counsel
for the defence
Background
Sources of Law: Article 21 Statute
1. The Court shall apply:
Primary
Procedure
Sources of law
Secondary
(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;
Residual
(c) Failing that, general principles of law derived
by the Court from national laws of legal systems of
the world […], provided that those principles are
not inconsistent with this Statute and with
international law and internationally recognized
norms and standards.
Disclosure
Complementarity
Arrest warrant
Victims’
participation
(a) In the first place, this Statute, Elements of
Crimes and its Rules of Procedure and Evidence;
2. The Court may apply principles and rules of
law as interpreted in its previous decisions.
Background
Procedure
Sources of law
Human Rights
• Article 21 paragraph 3: Human rights
must guide the interpretation and
application of all legal norms applied by
the Court.
Disclosure
Complementarity
Arrest warrant
Victims’
participation
• Sources:
– Conventions/treaties,
– jurisprudence of human rights courts and
bodies,
– resolutions of UN bodies etc.
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Jurisprudence of other international jurisdictions
• “the rules and practice of other
jurisdictions, whether national or
international, are not as such
“applicable law” before the Court”*
• “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)”**
* 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, 28 October 2005,
ICC-02/04-01/05-60 Par. 19
** 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,
ICC-02/04-01/05-20-US-Exp, Par. 18
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Sources for procedure
• PTC I & II have rejected any procedural ‘inventions’ by
the parties as being without a legal basis in the Statute
– “[Parties] must comply with the procedures provided for in
the Statute and Rules […] They cannot freely choose the
form in which they present their views […] A “position” is not
a procedural remedy under the Statute”*
– “[T]he law and practice of the ad hoc tribunals […] cannot
per se form a sufficient basis for importing into the Court’s
procedural framework remedies other than those enshrined
in the Statute” (Par. 19)
• OTP’s “Application for Extraordinary Review” is currently
pending before Appeals Chamber**
* PTC II Decision on the Prosecutor’s Position on the decision of PTC II to redact factual descriptions
of crimes from the warrants of arrest, motion for reconsideration , and motion for clarification,
ICC-02/04-01/05-60, 28 October 2005, par. 13
** Prosecutor’s Application for Extraordinary Review of PTC I’s 31 March Decision Denying Leave to Appeal,
ICC-01/04-141, 24 April 2006
Background
Procedure
Sources of law
Disclosure
Disclosure – Material to be disclosed
OTP
Material on
which OTP
intends to
rely
Material
otherwise
material to
defence
Potentially
exculpatory
material
Material
belonging
to suspect
Art. 61 (3)
Rules 76,77
Rule 77
Art. 67 (1) (a)
Rule 77
Complementarity
Arrest warrant
Victims’
participation
Defence
Material on
which Def.
intends to
rely
Rule 78
Disclosure – Procedure
OTP
Defence
Background
Procedure
Sources of law
OTP
intends
to rely
Material
to
Defence
Exulpatory
Defence
intends
to rely
Disclosure
Complementarity
Arrest warrant
Victims’
participation
OTP
intends
to rely
Inspection Report
Disclosure Note
PTC/Record
Defence
intends
to rely
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Complementarity
• “drafters of the Statute emphasised the
duty of every State to exercise its
criminal jurisdiction over those
responsible for international crimes and
affirmed the need to ensure their
effective prosecution by taking measures
at the national level and by enhancing
international cooperation”
• “the self-referral of the DRC appears
consistent with the ultimate purpose of
the complementarity regime (par. 35)
PTC I – Decision on the Prosecutor’s Application for Warrants of Arrest, 10 February 2006
ICC-01/04-01/06-8-US-Corr, par. 47
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Gravity threshold
• Gravity threshold applies to gravity of situation
+ gravity of case
• “the relevant conduct must present particular
features which render it especially grave” (par. 45)
– “conduct must be either systematic (pattern of
incidents) or large-scale” (par. 46)
– “due consideration must be given to the social alarm
such conduct may have caused in the international
community” (par. 46)
(i.e. the type of conduct, not necessarily the actual
alleged facts themselves - SDS)
PTC I – Decision on the Prosecutor’s Application for Warrants of Arrest, 10 February 2006
ICC-01/04-01/06-8-US-Corr, par. 44
Background
Procedure
Sources of law
Disclosure
Most responsible persons
• “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”*
– Position of person
– Role played by that person within State entity, organisation
or armed group
Complementarity
Arrest warrant
Victims’
participation
– Role played by State entity, organisation or armed group”
• “UPC/FPLC only regional group, but played an important
role in the Ituri conflict which was particularly relevant in
the DRC situation” (paras. 71-73)
*PTC I – Decision on the Prosecutor’s Application for Warrants of Arrest, 10 February 2006
ICC-01/04-01/06-8-US-Corr, Par. 50
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
Arrest Warrant
Ex officio review of jurisdiction and admissibility
at time of issuance of arrest warrants – not only
at time of start of investigation
• “It is a conditio sine qua non for a case to be inadmissible
that national proceedings encompass both the person
and the conduct which is the subject of the case before
the Court” (par. 31)
• “the warrants of arrest issued by the competent DRC
authorities contain no reference to their alleged criminal
responsibility for enlisting, conscripting and using to
participate actively in hostilities children under the age of
fifteen” “as a result, the DRC cannot be considered to
be acting in relation to the specific case before the
Court (which is limited to [enlisting, conscripting and
using to participate actively in hostilities children under
the age of fifteen]” (paras. 38-9)
PTC I – Decision on the Prosecutor’s Application for Warrants of Arrest, 10 February 2006
ICC-01/04-01/06-8-US-Corr
Background
(il)legaity of domestic detention
Defence requested immediate and definitive release, based on the
assertion that his arrest and detention in the DRC were in violation of DRC
law and international human rights standards.
Procedure
– State Parties have obligation under Rome Statute to carry out arrests
on behalf of the ICC in conformity with national law – in this case
DRC constitution was violated
Sources of law
– the ICC must ensure the legality of national arrest and detention
Disclosure
– ICC may not validate or assist in violations of international standards
Complementarity
– Prosecutor is responsible under Article 55 par. 1(d) because he did
not intervene in the DRC and knew he would ask for the arrest of the
defendant
Arrest warrant
Victims’
participation
– The ICC cannot prosecute illegal detention as war crimes and benefit
from the illegal detention of the accused
– The ICC detention is a prolongation of the national detention, i.e. the
illegality continues
– the subsequent transfer to ICC cannot “purify” the proceedings of
the original violations of the right to fair trial.
Requête de mise en liberté, 23 May 2006 – ICC-01/04-01/06-121
Background
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
(il)legaity of domestic detention (2)
• OTP:
– Defence does not specify legal basis
for requesting release
– Even if alleged violations existed, they
could not be attributed to the ICC,
either legally or factually
– Mr. Lubanga was not detained in DRC
at the behest of the ICC
Prosecution’s Response to Application for Release, 13 June 2006 – ICC-01/04-01/06-150
Background
Victims participation
PTC I – Decision on the applications for participation in
the proceedings of VPRS 1 – 6*
•
“the Statute grants victims an independent voice and role in
proceedings before the Court” (par 51)
•
“the core consideration, when it comes to determining the
adverse impact on the investigation alleged by the OTP, is the
extent of the victim’s participation and not his or her
participation as such” (par. 58)
•
“[Right to participate] does not entail giving access to the
“record of the investigation” (par. 59)
•
“the victims'’ personal interests are affected because it is at
[the investigation] stage that the persons allegedly responsible
for the crimes from which they suffered must be identified as a
first step towards their indictment” (par. 72)
Procedure
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
* 17 January 2006 – ICC-01/04-101
Right to participate
•
Background
“Victims will be authorised […] to be heard by the Chamber
in order to present their views and concerns and to file
documents pertaining to the current investigation” *
– Proceedings initiated by the Chamber proprio motu:
Chamber will decide on victims’ participation (par. 73)
Procedure
Sources of law
– Proceedings initiated by OTP or defence:
Disclosure
– public proceedings= victims can participate;
Complementarity
– Confidential or closed proceedings= 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” (par. 74)
Arrest warrant
Victims’
participation
•
Victims are entitled to request the PTC to order specific
proceedings (par. 75)
•
Victims have right to be notified (par. 76)
* PTC I – Decision on the applications for participation in the proceedings of VPRS 1 – 6,
17 January 2006 – ICC-01/04-101, Par. 71
Background
Procedure
Factual standard for participation
• For participation at investigation stage:
“grounds to believe” that applicants meet
the criteria set forth in rule 85 (a)
Sources of law
Disclosure
Complementarity
Arrest warrant
Victims’
participation
• For participation in case: “reasonable
grounds to believe”?
• For participation in confirmation hearing:
“substantial grounds to believe” ?