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• The information conveyed during this presentation may not be published unless with the express and written consent of the speaker and the Court.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,

– Uganda,

– Sudan,

– CAR

• 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

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Procedural framework

Preliminaryexamination bythe Prosecutor

Trial stageTrial Chamber: conducts a fair and expeditious trial; convicts or acquits and imposes sentences

In case of a State or SC referral

there is no need to request

authorization

Confirmation of the charges

Appeals stageAppeals Chamber:

reverses or amends acquittals, convictions or

sentences and orders new trials

Investigation

Revision stageAppeals Chamber:

revises convictions and / or sentences and orders new trials

Interlocutory Appeals

at any time

Request for authorization to

start an investigation by the Prosecutor

Pre-trial stagePre-Trial Chamber: issues orders, warrants during an investigation; protects evidence, victims and witnesses and ensures the interests of the defence

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Situations v. Case

• “Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters” (par. 65)

• “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

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Major actors

Prosecutor Defence counsel

Pre-Trial Chamber

Ad hoc Defence counsel for situation

Victims’ representative in situation

Victims’ representative in case

Office of Public Counsel for the defence

Office of Public Counsel for the victims

Ad hoc Defence counsel for special measures

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Sources of Law: Article 21 Statute

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 […], 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.  

Primary

Secondary

Residual

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Human Rights

• Article 21 paragraph 3: Human rights must guide the interpretation and application of all legal norms applied by the Court.

• 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)”**

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ 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

– “[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**

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

* 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

Material on which OTP intends to

rely

Art. 61 (3) Rules 76,77

Material otherwise

material to defence

Rule 77

Potentially exculpatory

material

Art. 67 (1) (a)

Material belonging to suspect

Rule 77

OTP

Defence

Material on which Def. intends to

rely

Rule 78

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Disclosure – Procedure

OTP intends to rely

Material to

Defence

Exulpa-tory

OTP Defence

Defence intends to rely

PTC/Record

Inspection ReportOTP intends to rely

Defence intends to rely Disclosure Note

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)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

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

• “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)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

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 Court”*

– Position of person

– Role played by that person within State entity, organisation or armed group

– 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)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

*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 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)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

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.

– 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

– the ICC must ensure the legality of national arrest and detention

– ICC may not validate or assist in violations of international standards

– 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

– 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.

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

Requête de mise en liberté, 23 May 2006 – ICC-01/04-01/06-121

(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

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

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*

• “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)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

* 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” *

– Proceedings initiated by the Chamber proprio motu: Chamber will decide on victims’ participation (par. 73)

– Proceedings initiated by OTP or defence:

– public proceedings= victims can participate;

– 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)

• Victims are entitled to request the PTC to order specific proceedings (par. 75)

• Victims have right to be notified (par. 76)

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation

* 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: “grounds to believe” that applicants meet the criteria set forth in rule 85 (a)

• For participation in case: “reasonable grounds to believe”?

• For participation in confirmation hearing: “substantial grounds to believe” ?

Background

Procedure

Sources of law

Disclosure

Complementarity

Arrest warrant

Victims’ participation