Congresso Internacional de Derecho Penal Current Issues Before the ICC

1. Congresso Internacional de Derecho PenalCurrent Issues Before the ICC Simon De Smet Pre-Trial Division 20 June 2006

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 • The information conveyed during this presentation may not be published unless with the express and written consent of the speaker and the Court.

3. 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

4. Procedural framework In case of a State or SC referral there is no need to request authorization Trial stage Trial Chamber: conducts a fair and expeditious trial; convicts or acquits and imposes sentences Request for authorization to start an investigation by the Prosecutor Confirmation of the charges Interlocutory Appeals at any time Preliminary examination by the Prosecutor Investigation Pre-trial stage Pre-Trial Chamber: issues orders, warrants during an investigation; protects evidence, victims and witnesses and ensures the interests of the defence Revision stage Appeals Chamber: revises convictions and / or sentences and orders new trials Background Procedure Sources of law Disclosure Appeals stage Appeals Chamber: reverses or amends acquittals, convictions or sentences and orders new trials Complementarity Arrest warrant Victims’ participation

5. 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

6. Major actors Pre-Trial Chamber Background Procedure Sources of law Prosecutor Defence counsel Disclosure Complementarity Ad hoc Defence counsel for situation Victims’ representative in situation Arrest warrant Victims’ participation Victims’ representative in case Ad hoc Defence counsel for special measures Office of Public Counsel for the defence Office of Public Counsel for the victims

7. 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 mayapply principles and rules of law as interpreted in its previous decisions. Primary Background Procedure Sources of law Secondary Disclosure Complementarity Arrest warrant Residual Victims’ participation

8. 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

9. 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

10. 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

11. Disclosure – Material to be disclosed OTP 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 Background Procedure Sources of law Disclosure Complementarity Defence Arrest warrant Victims’ participation Material on which Def. intends to rely Rule 78

12. Disclosure – Procedure OTP Defence Background OTPintends to rely Material to Defence Exulpa-tory Defenceintends to rely Procedure Sources of law Disclosure OTPintends to rely Defence intends to rely Complementarity Inspection Report Arrest warrant Disclosure Note Victims’ participation PTC/Record

13. 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

14. 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 alarmsuch 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

15. 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

16. 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

17. (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

18. (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

19. 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

20. 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

21. 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