Get documents about "Current Issues Before the ICC Chambers
Document Sample
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presentation may not be published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
• 6 warrants of arrest have been issued
Complementarity
– 5 against LRA leaders in Uganda
Arrest warrant
– 1 against UPC leader in DRC
Victims’
participation • 1 person has been arrested and is in custody of the ICC
– Mr. Thomas Lubanga Dyilo
Procedural framework
Trial stage
Request for In case of a State Trial Chamber: conducts a
Background authorization to or SC referral there fair and expeditious trial;
start an investigation is no need
Confirmationto convicts or acquits and
Procedure by the Prosecutor request
of the charges imposes sentences
authorization
Sources of law
Disclosure
Interlocutory Appeals stage
Complementarity Preliminary Investigation Appeals Appeals Chamber:
examination by at any time reverses or amends
Arrest warrant the Prosecutor acquittals, convictions or
sentences and orders
Victims’ Pre-trial stage Revision stage
new trials
participation Pre-Trial Chamber: issues orders, Appeals Chamber:
warrants during an investigation; revises convictions and /
protects evidence, victims and or sentences and
witnesses and ensures the interests of orders new trials
the defence
Situations v. Case
• “Situations, which are generally defined in
terms of temporal, territorial and in some cases
Background
personal parameters” (par. 65)
Procedure
Sources of law
• “Cases, which comprise specific incidents
Disclosure during which one or more crimes within the
Complementarity jurisdiction of the Court seem to have been
committed by one or more identified suspects,
Arrest warrant
entail proceedings that take place after the
Victims’ issuance of a warrant of arrest or a summons to
participation
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
Victims’ representative Ad hoc Defence counsel
Arrest warrant in situation for situation
Victims’
participation Victims’ representative Ad hoc Defence counsel
in case for special measures
Office of Public Counsel Office of Public Counsel
for the victims for the defence
Sources of Law: Article 21 Statute
1. The Court shall apply:
Background Primary (a) In the first place, this Statute, Elements of
Crimes and its Rules of Procedure and Evidence;
Procedure
(b) In the second place, where appropriate,
Sources of law applicable treaties and the principles and rules of
Secondary international law, including the established
Disclosure principles of the international law of armed conflict;
Complementarity (c) Failing that, general principles of law derived
by the Court from national laws of legal systems of
Arrest warrant the world […], provided that those principles are
Residual not inconsistent with this Statute and with
Victims’
participation international law and internationally recognized
norms and standards.
2. The Court may apply principles and rules of
law as interpreted in its previous decisions.
Human Rights
• Article 21 paragraph 3: Human rights
Background
must guide the interpretation and
Procedure
application of all legal norms applied by
Sources of law
the Court.
Disclosure
Complementarity
Arrest warrant • Sources:
Victims’ – Conventions/treaties,
participation
– jurisprudence of human rights courts and
bodies,
– resolutions of UN bodies etc.
Jurisprudence of other international jurisdictions
• “the rules and practice of other
jurisdictions, whether national or
Background international, are not as such
Procedure “applicable law” before the Court”*
Sources of law
• “the case-law of the ICTR and the SCSL,
Disclosure which is especially relevant given the
Complementarity similarity of provisions set forth in the
Arrest warrant Tribunal and SCSL rules and in Article
Victims’
82, paragraph 1(d)”**
participation
* 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
Sources for procedure
• PTC I & II have rejected any procedural ‘inventions’ by
the parties as being without a legal basis in the Statute
Background – “[Parties] must comply with the procedures provided for in
the Statute and Rules […] They cannot freely choose the
Procedure form in which they present their views […] A “position” is not
a procedural remedy under the Statute”*
Sources of law
Disclosure – “[T]he law and practice of the ad hoc tribunals […] cannot
per se form a sufficient basis for importing into the Court’s
Complementarity procedural framework remedies other than those enshrined
in the Statute” (Par. 19)
Arrest warrant
Victims’ • OTP’s “Application for Extraordinary Review” is currently
participation 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
Disclosure – Material to be disclosed
OTP
Material on Material Potentially Material
Background
which OTP otherwise exculpatory belonging
Procedure intends to material to material to suspect
rely defence
Sources of law
Art. 61 (3) Rule 77 Art. 67 (1) (a) Rule 77
Disclosure Rules 76,77
Complementarity
Arrest warrant Defence
Victims’
participation Material on
which Def.
intends to
rely
Rule 78
Disclosure – Procedure
OTP Defence
Background
Procedure
OTP Material Defence
Exulpa-
intends to intends
Sources of law tory
to rely Defence to rely
Disclosure
Complementarity OTP Defence
Inspection Report
Arrest warrant intends intends
to rely Disclosure Note to rely
Victims’
participation
PTC/Record
Complementarity
• “drafters of the Statute emphasised the
Background duty of every State to exercise its
criminal jurisdiction over those
Procedure
responsible for international crimes and
Sources of law
affirmed the need to ensure their
Disclosure effective prosecution by taking measures
Complementarity at the national level and by enhancing
Arrest warrant
international cooperation”
Victims’
participation
• “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
Gravity threshold
• Gravity threshold applies to gravity of situation
+ gravity of case
Background
Procedure • “the relevant conduct must present particular
Sources of law features which render it especially grave” (par. 45)
Disclosure
– “conduct must be either systematic (pattern of
Complementarity incidents) or large-scale” (par. 46)
Arrest warrant
– “due consideration must be given to the social alarm
Victims’ such conduct may have caused in the international
participation 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
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
Background Court”*
Procedure
– Position of person
Sources of law
Disclosure – Role played by that person within State entity, organisation
or armed group
Complementarity
– Role played by State entity, organisation or armed group”
Arrest warrant
Victims’ • “UPC/FPLC only regional group, but played an important
participation 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
Arrest Warrant
Ex officio review of jurisdiction and admissibility
at time of issuance of arrest warrants – not only
Background at time of start of investigation
Procedure • “It is a conditio sine qua non for a case to be inadmissible
Sources of law that national proceedings encompass both the person
and the conduct which is the subject of the case before
Disclosure the Court” (par. 31)
Complementarity
• “the warrants of arrest issued by the competent DRC
Arrest warrant authorities contain no reference to their alleged criminal
responsibility for enlisting, conscripting and using to
Victims’ participate actively in hostilities children under the age of
participation 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
(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.
Background – State Parties have obligation under Rome Statute to carry out arrests
on behalf of the ICC in conformity with national law – in this case
Procedure 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
– Prosecutor is responsible under Article 55 par. 1(d) because he did
Complementarity not intervene in the DRC and knew he would ask for the arrest of the
defendant
Arrest warrant
– The ICC cannot prosecute illegal detention as war crimes and benefit
Victims’ from the illegal detention of the accused
participation
– 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
(il)legaity of domestic detention (2)
• OTP:
Background – Defence does not specify legal basis
Procedure for requesting release
Sources of law
– Even if alleged violations existed, they
Disclosure
could not be attributed to the ICC,
Complementarity
either legally or factually
Arrest warrant
Victims’
– Mr. Lubanga was not detained in DRC
participation at the behest of the ICC
Prosecution’s Response to Application for Release, 13 June 2006 – ICC-01/04-01/06-150
Victims participation
PTC I – Decision on the applications for participation in
the proceedings of VPRS 1 – 6*
Background
• “the Statute grants victims an independent voice and role in
Procedure proceedings before the Court” (par 51)
Sources of law • “the core consideration, when it comes to determining the
adverse impact on the investigation alleged by the OTP, is the
Disclosure extent of the victim’s participation and not his or her
participation as such” (par. 58)
Complementarity
Arrest warrant • “[Right to participate] does not entail giving access to the
“record of the investigation” (par. 59)
Victims’
participation
• “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)
* 17 January 2006 – ICC-01/04-101
Right to participate
• “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” *
Background
– Proceedings initiated by the Chamber proprio motu:
Procedure Chamber will decide on victims’ participation (par. 73)
Sources of law
– Proceedings initiated by OTP or defence:
Disclosure
– public proceedings= victims can participate;
Complementarity
Arrest warrant – Confidential or closed proceedings= victims will not be
entitled to participate unless the Chamber decides
Victims’ otherwise in the light of the impact of such proceedings on
participation their personal interests” (par. 74)
• 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
Factual standard for participation
• For participation at investigation stage:
Background “grounds to believe” that applicants meet
Procedure the criteria set forth in rule 85 (a)
Sources of law
Disclosure
Complementarity
• For participation in case: “reasonable
Arrest warrant
grounds to believe”?
Victims’
participation
• For participation in confirmation hearing:
“substantial grounds to believe” ?
