EQ: Equality of Arms Review. A publication of the International Bar Association s ICC Monitoring and Outreach Programme. Confirmed

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1 EQ: Equality of Arms Review A publication of the International Bar Association s ICC Monitoring and Outreach Programme Issue 1 NOVEMBER 2008 Confirmed ICC-CPI/ANP/Rick Nederstigt ICC-CPI/ANP/Rick Nederstigt Mathieu Ngudjolo Chui Germain Katanga International Bar Association s ICC Monitoring and Outreach Programme Peace Palace Carnegieplein 2, 2517 KJ, The Hague, The Netherlands Tel: /2827 International Bar Association 10th Floor 1 Stephen Street London W1T 1AT United Kingdom Tel: +44 (0) Fax: +44 (0) On 26 September 2008, Pre-Trial Chamber I issued a decision confirming the charges against Germain Katanga, alleged leader of the militia group Force de Résistance Patriotique en Ituri and Mathieu Ngudjolo Chui, alleged leader of the Front des Nationalistes et Intégrationnistes. The two men were jointly accused of coordinating an attack on the village of Bogoro in the Democratic Republic of the Congo (DRC) on 24 February 2003, resulting in the death of close to 200 civilians. The Chamber confirmed ten of the 13 charges brought against the suspects. The decision followed a three-week hearing in July 2008 during which the prosecution presented evidence to establish substantial grounds that the suspects committed the offences in question. The Chamber confirmed the following charges: the crimes against humanity of murder, sexual slavery and rape; and the war crimes of wilful killing, using children to participate actively in hostilities, intentionally directing an attack against the civilian population, pillaging, destruction of property, sexual slavery and rape. The Chamber declined to confirm the crime against humanity of inhumane acts, on the ground that the combatants had the specific intent to kill, rather than wound, civilians; and the war crimes of inhuman treatment and outrages on personal dignity on the basis that, although the material aspects of these crimes in fact occurred in Bogoro, they occurred incidentally, and could not be connected to the suspects common plan. Most charges were unanimously confirmed by the Chamber, although the charges of sexual Continued on page 3 The Prosecutor has been investigating for several years and the Defence has only had a couple of months to prepare for the confirmation of charges. One has to wonder whether or not the accused has sufficient means to challenge the charges pressed against him. Maitre Jean-Pierre Kilenda Counsel for Mathieu Ngudjolo Published by the IBA EQ: EQuality of Arms Review. Issue 1 1

2 E Q E d i t o r i a l Welcome to EQ The International Bar Association (IBA) is excited to introduce our new publication Equality of Arms Review (EQ) an initiative of our ICC Monitoring and Outreach Programme in The Hague. This publication features news, opinion pieces and important information designed to spark discussion and increase knowledge and awareness about the International Criminal Court (ICC). The IBA has been an ardent supporter of the Court from its inception and since 2005, through our programme in The Hague, we have continued to follow closely the key developments at the Court while encouraging our members and the wider legal community to engage with the Court. This edition highlights some of the first challenges being faced by the Court: the impact of a halt to the Court s first trial, and the implications of a possible Article 16 deferral of the first ever case against a sitting head of State. Our outreach section reaches out to lawyers beyond The Hague and encourages States to legislate the Rome Statute into their national laws. We look forward to your continued support for our programme. Enjoy EQ. Mark Ellis IBA Executive Director This year marks the tenth anniversary of the approval of the Rome Statute, the founding text of the International Criminal Court. The establishment of the Court has heralded an exciting new age in international justice, bringing with it high hopes and expectations. Yet it has also presented new and unexpected challenges as the Court proceeds to implement the provisions of the Statute and the Rules of Procedure and Evidence, safeguard the rights of defendants and victims and manage its budget. The IBA s ICC Monitoring and Outreach Programme provides valuable assessment of the work of the Court and the interpretation and implementation of its Statute, while encouraging members of the legal profession to collaborate with and support the ICC. The timely dissemination of information is crucial to the success of this effort. EQ is an important tool which will ensure that the IBA membership and the legal community are kept informed about important developments at the Court. Justice Richard Goldstone Co-Chair IBA Human Rights Council Inside EQ EQ Cover page Confirmed 1 EQ Opinion For peace s sake: should justice defer to politics? 4 EQ Commentary Presumed confidential: some implications of the confidentiality dilemma 6 EQ Highlights Thomas Lubanga defence team 8 EQ Briefs Jean Pierre Bemba refused Legal Aid 9 Georgia under analysis 9 Appeal s Chamber hands down victims decision 9 Judges appoint first Deputy Registrar 9 EQ Outreach Perspectives Does the ICC matter to lawyers? 10 Implementing justice: bringing the ICC closer to home 11 EQ Events + Publications 13 2 Published by the IBA EQ: EQuality of Arms Review, Issue 1

3 Confirmed continued... slavery and rape (as both a war crime and crime against humanity) were confirmed only by the majority. Judge Ušacka dissented on the sexual charges, finding that there was insufficient evidence to establish substantial grounds to believe that the suspects intended for rape and sexual slavery to be committed during the attack. The judge accepted defence submissions that there was no proof of the requisite mental element in the commission of the crimes and determined that there was no solid evidence demonstrating that the suspects had sufficient intent and knowledge that sexual slavery and rape would be committed. Judge Ušacka also dissented on the charge of inhumane acts as a crime against humanity. On this issue, the judge accepted submissions advanced by the prosecution and found that there was evidence of the suspects awareness that severe bodily injury to civilians would occur in the ordinary course of events. Substantive Ruling The Chamber s decision constitutes a rare ruling on substantive law from the Court, offering in-depth analysis of the crimes charged many of them for the first time (given that the only previous confirmation decision, in the Lubanga case, dealt solely with offences relating to child soldiers). The Chamber also discussed at length the mode The Chamber s decision constitutes a rare ruling on substantive law from the Court, offering in-depth analysis of the crimes charged many of them for the first time. of liability to be applied to the crimes an issue which had been a source of contention at the confirmation hearing. It ultimately adopted a model combining two modes of liability, namely of indirect perpetration (or perpetrator behind the perpetrator ) and co-perpetration (or joint commission ). This interpretation of the mode of liability, it said, was permitted based on a strict reading of the Rome Statute, notwithstanding the fact that it has not been broadly recognised at the ad hoc tribunals or as customary international law. Challenges But the proceedings were not without challenges. Germain Katanga refused to attend Court on at least one occasion due to frustration from not having had a visit from his family since being in custody (Mr Katanga was in custody for two years prior to being surrendered to the ICC in October 2008). Mathieu Ngudjolo Chui was not surrendered until February 2008 (almost four months later than Germain Katanga) and his counsel Maitre Kilenda needed time to prepare. Despite an adjournment, Counsel felt that given the magnitude of the charges and the complexity of the case it was still not enough: the Prosecutor has been investigating for several years and the Defence has only had a couple of months to prepare for the confirmation of charges. One has to wonder about whether or not the accused has sufficient means to challenge the charges pressed against him, he said. End of first phase The decision confirming the charges was not greeted with the fanfare which followed similar proceedings against Thomas Lubanga. Victims rights advocates celebrate the fact that the defendants will face trial on a much wider range of charges than was the case with Lubanga. However, the less than enthusiastic response from some quarters might be attributable to the pall cast by the stay of proceedings in the Lubanga case, since the issue of the prosecution s ability to disclose potentially exonerating confidential material to the defence was also raised before the Pre-Trial Chamber in this case. The judges resolved this matter by determining that the limited scope and purpose of confirmation proceedings were such that once the bulk of potentially exculpatory analogous material was served on the defence, the confirmation hearing could proceed while the prosecution continued to negotiate with information providers. The disclosure problem was therefore not solved; merely deferred to the Trial Chamber The decision marks the end of the first phase of proceedings before the Court for the defendants but is clearly only the beginning. Germain Katanga and Mathieu Ngudjolo have been committed to the Trial Chamber and now await the commencement of their trial proper. Given the pace of proceedings in the Lubanga case, the inevitable question is when will the trial in this case begin? The decision marks the end of the first phase of proceedings before the Court for the defendants but is clearly only the beginning. E Q P e r s p e c t i v e Published by the IBA EQ: EQuality of Arms Review. Issue 1 3

4 E Q O P I N I O N For peace s sake: Should justice defer to politics? Richard Goldstone * Reuters - Jerry Lampen ICC Prosecutor Luis Moreno Ocampo The Prosecutor of the International Criminal Court (ICC) Luis Moreno- Ocampo announced his latest application for an arrest warrant on 14 July 2008, accusing Sudanese President Omar Hassan Ahmad al- Bashir of genocide, war crimes and crimes against humanity. The Pre-Trial Chamber must now decide whether the evidence presented by the Prosecutor indicates reasonable grounds to believe that Mr al-bashir has committed the offences in question. The application is ground breaking in that it cites the crime of genocide and is targeted against a sitting head of state both firsts for the ICC. Article 16 deferral The process may be delayed, however, due to the possible invocation of Article 16 of the Rome Statute, which empowers the United Nations Security Council (UNSC) under a Chapter VII resolution to request the ICC to postpone an investigation or prosecution for a renewable 12 month period. Since the prosecution s announcement, several States including China, Russia and member states of the African Union (AU), the Arab League and the Organisation of The Islamic Conference have been keen to An Article 16 deferral, should it occur, will likely be heralded as a failure for justice against the might of politics. see the Security Council exercise its Article 16 powers to block the Court s investigations. The AU in particular expressed concern at the threat that such development may pose to efforts aimed at promoting the rule of law and stability and worried that the Prosecutor s application may lead to further suffering for the people of the Sudan and greater destabilisation. The AU issued a communiqué to the Security Council in July, asking it in accordance with the provisions of Article 16 of the Rome Statute of the ICC, to defer the process initiated by the ICC. Support for an Article 16 deferral even from veto-wielding powers like France and the UK cannot be completely ruled out. French President Nicolas Sarkozy has suggested that France may be willing to back a UNSC resolution deferring proceedings if they see a radical and immediate change in Sudan s policies. The UK has similarly stated that big, bold steps will be required from the Sudanese Government before any negotiations are to take place. The underlying tone of the political super-powers is that an Article 16 deferral could be considered if major strides are made by President al-bashir in ameliorating the humanitarian situation in Darfur. Justice vs. Politics An Article 16 deferral, should it occur, will likely be heralded as a failure for justice against the might of politics. At stake is more than just the credibility of the UNSC, likely to be seen as back-pedalling given its responsibility for the referral of the Darfur situation to the ICC in the first place. The halt of the first case from the Democratic Republic of Congo due to the non-disclosure of confidential material supplied to the Prosecutor by the UN and other information providers has already fuelled the arguments of the ICC s detractors that the Court is a 4 Published by the IBA EQ: EQuality of Arms Review, Issue 1

5 africamasterweb.com The Security Council should not stand in the way of the ICC. To do so would undermine the fledgling system of international justice, may not advance peace in Darfur and would betray those who have suffered terrible crimes. Jonathan Fanton President of the John D. and Catherine T. MacArthur Foundation E Q O P I N I O N Sudanese President Omar al-bashir political tool of the UN, and a move under Article 16 will give such arguments even more credence. To invoke Article 16 without first allowing the judges of the ICC Pre-trial Chambers to consider the application can only send the message that justice must play second fiddle to politics a shaky start to the world s first permanent international criminal court. Even worse, the fact that the Security Council may choose this course when the arrest warrant involves a sitting Head of State and not an alleged rebel leader, raises questions about whether the Rome Statute is applicable regardless of status. Justice cannot be selective: justice is blind, and those who come before the Court do so with equal rights and prospects. Admittedly President al-bashir and the Sudanese Government do not acknowledge the Court s authority, but this cannot be an argument in favour of deferral: the Rome Statute has a built-in mechanism to allow challenges to the jurisdiction of the Court. Permitting President al-bashir an opportunity to contest the Court s jurisdiction should he wish to do so, rather than effectively excusing him from prosecution, would better serve the interests of objective, non-politicised justice. In any case there is no credible evidence that deferring the proceedings will have any impact on the peace process in Darfur. Bargaining away justice for the sake of peace is a risky gamble with high stakesthe reputation of the Court and the lives of millions of alleged victims. On the contrary, pushing for justice did not prevent Milosevic from signing a peace deal, nor has it kept the Lord s Resistance Army in Uganda from the negotiating table. Why defer justice for Darfur when there is no indication that it will have a positive effect? For justice s sake let the Court decide. Justice cannot be selective: justice is blind, and those who come before the Court do so with equal rights and prospects. * Justice Richard Goldstone is the Co-Chair of the IBA Human Rights Council and former Chief Prosecutor at the ICTY and ICTR. EQ IQ Chapter VII of the UN Charter empowers the Security Council to take measures to maintain or restore international peace and security. Under Article 27 of the UN Charter, a decision to defer an ICC investigation or prosecution under Article 16 of the Rome Statute requires an affirmative vote of nine members of the 15-member Security Council, including the concurring votes or abstention of permanent members of the Council. A resolution can only be blocked by a permanent member of the Council who possesses veto powers. Published by the IBA EQ: EQuality of Arms Review, Issue 1 5

6 E Q C O M M E N T A R Y Presumed confidential: Some implications of the confidentiality dilemma ANP Thomas Lubanga As the International Criminal Court (ICC) has busied itself investigating conflicts in the Democratic Republic of Congo (DRC), Northern Uganda and Darfur, Sudan, another conflict has been unfolding in the courtroom. This one is between confidentiality of evidence and the right of the defence to full disclosure of potentially exculpatory materials. Under Article 67(2) of the Rome Statute, the prosecution is obliged to disclose to the defence any evidence that may be exculpatory namely anything which might demonstrate the innocence of the accused, or affect the credibility of prosecution evidence. However Article 54(3)(e) of the Statute seems to contradict this: it allows the Prosecutor to obtain information confidentially, meaning that he cannot then disclose the material unless the person or organisation who provided it consents to its disclosure. The apparent contradiction between these provisions has led to a stalemate in the Court s first case. Confidentiality agreements The dilemma in the Lubanga case also extends to the second case from the DRC involving Germain Katanga and Mathieu Ngudjolo Chui. At the heart of the problem is the prosecution s approach to the earliest phase of investigations in the DRC during which it routinely resorted to confidentiality agreements under Article 54(3)(e) with information providers such as the United Nations (UN) and Non-Governmental Organisations (NGOs) in order to gather crucial information. The prosecution has since conceded that a sizeable portion of this material is potentially exculpatory and therefore must be disclosed to the defence. The difficulty lay in securing the consent of the information providers to lift the restrictions on disclosure. The Trial Chamber (TC) in Lubanga has made it clear that it places no blame on the information providers for the situation that the prosecution now finds itself in calling the prosecution s approach a wholesale misuse of a provision which should have been used to obtain material solely for the purpose of generating new evidence. The result was the decision to stay the proceedings against Thomas Lubanga and order his unconditional release. Impact of the stay of proceedings Though hailed as a strong signal of the Court s commitment to upholding fair trial rights, the TC s decisions have been potentially disastrous for the prosecution, endangering the prospects of a trial and shattering the hopes of thousands of victims in the DRC. On the other hand, the decisions served as a catalyst for accelerated negotiations with the information providers whose main concerns were the security of staff in the field. A process that had been ongoing since the Lubanga case was before the Pre-trial Chamber in 2006 seemed to have suddenly been treated It is clear that new parameters will have to be set for negotiating with information providers; fair trial rights and disclosure obligations must be thoroughly considered in any such future arrangements. 6 Published by the IBA EQ: EQuality of Arms Review, Issue 1

7 What is the purpose of international justice? What is its meaning? Is it to search for the truth, or is it to search for what the United Nations wants us to think about how it perceives the conflict in Ituri? Catherine Mabille with urgency, such that within three months of the Chambers decision, the information providers were prepared to agree that the judges could have unfettered review of the materials in unredacted form for the entirety of the trial and in the event of an appeal. Article 54(3) (e) The Article 54(3)(e) challenges raise a number of questions; the efficacy of the Prosecutor s investigations strategy in the DRC, the relationship between the Court and information providers and the possible impact on the perception of the Court particularly in the DRC. The biggest challenge has arguably been how to reconcile confidentiality on the one hand and disclosure, an important element of the right to a fair trial, on the other. The prosecution contends that it has a statutory obligation to respect both the rights of the accused and the rights of the information provider under the agreements. The Statute and the Rules of Procedure and Evidence (the rules) are notably silent on whether one should trump the other. The judges may in the long term have to consider an amendment to the rules in much the same way as was done by their colleagues at the International Criminal Tribunal for the former Yugoslavia (Rule 68 governing disclosure was amended to make it subject to Rule 70 which deals with confidentiality). The TC made it clear however that had the Prosecutor correctly used Article 54(3)(e) in the very limited way envisioned by the drafters of the Statute, the ensuing difficulties in the Lubanga case regarding potentially exonerating material would most likely not have occurred. The Appeals Chambers (AC) has now settled the issue. In a unanimous judgment (separate opinion was appended by Judge Pikis) the AC confirmed the TC s decision, making clear that Article 54(3)(e) may only be used for the specific purpose of generating new evidence and that the Prosecutor, when using this provision, must bear in mind his obligations under the Statute and apply [Article 54(3)(e)] in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial. In this respect the Chamber made specific mention of Article 54(1) of the Statute and the Prosecutor s obligation under that provision to objectively establish the truth. The majority of the judges of the AC did not however agree with the TC that a stay of the proceedings entitled Mr Lubanga to unconditional release; that question has been sent back to the TC for reconsideration. The TC is now requested to review the impugned material without restrictions by the information providers, with a view to the stay being lifted. Most of the providers have only consented to limited disclosure to the defence. The lingering question is: will the TC order full disclosure to the defence following review. That is still to be seen. Despite the AC s decision, it remains doubtful whether Mr Lubanga will be tried in Lessons learnt All the parties concerned have much to learn from this episode. It is clear that new parameters will have to be set for negotiating with information providers and fair trial rights and disclosure obligations must be thoroughly considered in any such future arrangements. Ultimately the stance adopted by the TC confirms the Court s status as guardian of the highest standards of fairness and due process. It would be unfortunate if Thomas Lubanga s fate were to be decided on a technicality. A trial, which would conclusively establish his innocence or guilt, would be the better course, providing clarity and finality for communities in the DRC. But that trial must be based on strict procedural guarantees. Nothing less will suffice, both for the Court s continuing credibility and for the citizens of the DRC. The use of Article 54 (3) (e) of the Statute by the Prosecutor must not lead to breaches of his obligations vis-à-vis the suspect or the accused person. Therefore, whenever the Prosecutor relies on Article 54 (3) (e) of the Statute he must bear in mind his obligations under the Statute and apply the provision in a manner that will allow the Court to resolve the potential tension between the confidentiality to which the Prosecutor has agreed and the requirements of a fair trial. ICC Appeals Chamber E Q C O M M E N T A R Y Published by the IBA EQ: EQuality of Arms Review, Issue 1 7

8 E Q H I G H L I G H T S ICC-CPI Defence counsel at the ICC: Thomas Lubanga s defence team The role of defence counsel before the ICC is a crucial component in safeguarding the fairness of the proceedings and protecting the rights of the defendant. Rule 22 of the Rules of Procedure and Evidence (RPE) requires defence counsel to have established competence in international law, or criminal law or procedure as well as relevant experience as judge, prosecutor or similar capacity in criminal proceedings. In carrying out his/her duties, defence counsel is bound by the legal documents of the Court as well as the Code of Professional Conduct for Counsel (The Code). The Code requires counsel to act honourably, independently and freely (Article 6) and maintain a high level of competence in the law applicable before the Court, participating in training initiatives required to maintain such competence (Article 7b). As part of the Highlights feature, EQ will focus on a particular team, individual or organisation that in our view carries out their task with distinction. The feature team for EQ s first edition will be the Lubanga defence team. Lead Counsel Catherine Mabille The team is lead by the diminutive but dynamic counsel Catherine Mabille who brings a wealth of experience to the Court, having worked on cases at the International Criminal Tribunal for Rwanda and taken on the responsibility of Vice- President of international NGO Catherine Mabille Avocats sans Frontieres (Lawyers without Borders). In her latter role she has carried out a tremendous amount of work pro bono, assisting vulnerable defendants in many different countries. Ms Mabille s trademark is the making of clear, concise submissions focusing only on the substantive issues that will advance her case rather than the peripheral. I want us to be able to make progress. It s really the spirit of this team. Catherine Mabille Lead Counsel, Lubanga Case EQ IQ I want us to be able to make progress. It s really the spirit of this team, she told the Chamber. Selected after the resignation of Mr Lubanga s previous counsel in February 2007, Ms Mabille is one of the few female counsel registered on the ICC list of Counsel. It is clear that Ms Mabille s enthusiasm and determination will go a long way to ensuring that Thomas Lubanga obtains a fair trial. Co-Counsel Jean-Marie Biju-Duval Standing beside Ms Mabille at the helm of the Lubanga team is co-counsel Jean-Marie Biju- Duval. No stranger to international criminal proceedings, Biju-Duval acted as defence counsel in the famous RTLM radio case before the Rwanda Tribunal. He has already started to make his presence felt in the courtroom at the ICC, making detailed submissions on complex issues such as disclosure. Biju-Duval s most memorable statement to date was made during his strident submissions in support of his client s release: there is no peace without justice, and of course there cannot be any justice without the rule of law being respected, he told the Trial Chamber, in a quote that is sure to be remembered for some time. Jean-Marie Biju-Duval There is no peace without justice and there cannot be any justice without the rule of law being respected. Jean-Marie Biju-Duval The rest of the team The team also includes two experienced legal assistants and a case manager: Marc Desalliers, a member of the Quebec Bar since 1994, also works with the Canadian branch of Avocats sans Frontieres and has been involved in a legal training and support project in Nigeria amongst other projects. Caroline Buteau, also a member of the Quebec Bar, was selected by Ms. Mabille because of her previous experience working in a similar capacity before international criminal tribunals. The case manager, Sandra D Angelo makes a valuable contribution to the team by keeping the vast amounts of evidence organised, and coordinating the administrative side of the case. The team is assisted by interns. Under Article 67 (1) (d) of the Rome Statute, a defendant who appears before the Court has a right to be represented by a lawyer of his choice even if he cannot afford one. A defendant is also entitled to have adequate time and facilities for the preparation of his defence and to communicate with counsel in confidence. Under regulation 83 of the Court s Regulations, it is the Registrar who is responsible for the administration of the legal aid programme of the court. At the Trial level the Court s legal aid programme allows for one lead counsel, a co-counsel, two legal assistants and a case manager. The team may also be assisted by interns. Rwanda Initiative/Carleton University 8 Published by the IBA EQ: EQuality of Arms Review, Issue 1

9 EQ news briefs E Q B R I E F S Jean-Pierre Bemba refused legal aid On 24 May 2008, Jean-Pierre Bemba, former Vice-President of the DRC and Chairman of the Mouvement de Liberation du Congo, was arrested in Belgium on charges of crimes against humanity and war crimes pursuant to a warrant issued by the ICC. The prosecution alleges that, under Mr Bemba s leadership, the MLC made numerous attacks on civilian populations throughout the Central African Republic (CAR) during a civil war which occurred there between October 2002 and March Mr Bemba is accused of overseeing widespread rape, torture, pillaging and outrages upon personal dignity. A confirmation of charges hearing is now scheduled for 8 December On 25 August 2008 the ICC Registrar turned down Mr Bemba s application for legal aid on the basis that he apparently possesses sufficient assets to pay his legal fees, in addition to supporting his wife and five children. Mr Bemba will be ineligible for legal aid pending a thorough investigation into his assets, after which a final decision will be taken. Under regulation 83 of the Court s Regulations, it is the Registrar who is responsible for the administration of the legal aid programme of the court. Before a defendant is deemed eligible for legal aid, he must prove that he is indigent. In determining indigence the Registrar weighs information submitted by the defendant himself and by the Registry s financial investigator, taking into consideration the disposable means available to the defendant as well as any financial obligations he may have to dependants. Striking a balance modalities of victims participation at trial clarified by Appeals Chamber The Appeals Chamber has handed down a decision clarifying the role of victims in trial proceedings, elucidating what participation rights victims can expect. The Chamber placed restrictions on the categories of victims eligible to participate in proceedings, ruling that for the purposes of participation in the trial proceedings, the harm alleged by a victim and the concept of personal interests [ ] must be linked with the charges confirmed against the accused. The decision, which reverses a much broader right to participation formulated by the Trial Chamber, is an important move in balancing rights between victims and the accused. The Appeals Chamber also held that the notion of victim can encompass those who have suffered indirect harm, such as the parent of a child soldier, qualifying this slightly by emphasising that the harm must be personal. The precise meaning of this term remains somewhat uncertain. The Chamber also affirmed the right of victims to lead evidence and to challenge the admissibility or relevance of evidence during Trial proceedings, as long as this occurs within strictly defined limits and the victims do not remove the onus of proving the guilt of the accused from the Prosecutor. The decision should allow the Lubanga trial to move along more efficiently, if and when it is finally able to commence. Georgia under analysis The Prosecutor of the ICC confirmed on 20 August 2008 that the situation in Georgia is under analysis. The announcement follows the conflict which broke out in early August involving Georgia, Russia and separatists from the breakaway regions of South Ossetia and Abkhazia. Georgia is a State party to the Rome Statute and, although Russia is not a party, Russian nationals may be prosecuted by the Court if they are found to have committed crimes on Georgian soil. Georgia initiated a case before the International Court of Justice (ICJ) before which it argued that Russia has committed a systematic policy of ethnic discrimination directed against the ethnic Georgian population in violation of the International Convention on the Elimination of All Forms of Racial Discrimination. Russia has rebutted the claims, arguing that it intervened in Georgia to maintain order and that it has never singled out ethnic Georgians for discrimination. The ICJ recently rendered a ruling imposing provisional measures on both States, ordering them to refrain from acts of racial discrimination and to facilitate humanitarian assistance. Judges appoint first Deputy Registrar On 9 September 2008, Mr Didier Preira, Senegalese barrister, was elected to the position of Deputy Registrar by ICC judges meeting in plenary. At his swearing-in ceremony on 17 October, the new Deputy Registrar thanked the judges of the Court for reposing confidence in him and pledged to continue to work to ensure that the highest standards of efficiency are maintained at the Registry. Although new to this position the Deputy Registrar is not short of experience; Mr Preira previously headed the Division of Victims and Counsel at the ICC since 2004 prior to which he worked at the International Criminal Tribunal for Rwanda. The Deputy Registrar will serve a five-year term. The precise parameters of the role of Deputy Registrar are yet to be fully defined; however Mr Preira is expected to assist the ICC Registrar, Ms Silvana Arbia in overseeing and guiding the work of the Registry. EQ: EQuality of Arms Review 9

10 E Q O u t r e a c h P e r s p e c t i v e s Does the ICC matter to lawyers? The paucity of female lawyers and counsel from certain regions on the ICC List of Counsel (the list) suggests either significant reticence on the part of some members of the legal profession to engage with the Court, or that the Court needs to do much more to convince lawyers that it is worth appearing before the ICC. An analysis of the list indicates that of the 236 lawyers, only 41 are female. There are only four lawyers on the list from Asia and Latin America. The majority are from Europe and the rest from Africa. Arguably, since the Prosecutor s investigations have focused primarily on situations in Africa (the exceptions being Colombia, Afghanistan and Georgia, all of which are under analysis) it is not difficult to understand why lawyers outside of Europe and Africa do not see the ICC as a priority. In addition, a lack of knowledge about the ICC system and procedures, as well as more specifically of the procedural role of victims and The Court must show lawyers that they matter to the ICC. the particular role of defence lawyers may present obstacles for national lawyers who wish to practice at the ICC. For counsel practising in countries that are not parties to the Rome Statute, there is also confusion about whether lawyers from non-party States can sign up to the list. It does matter that there are not enough lawyers from certain regions who are part of the only permanent International Criminal Court. It is not expected that all the crimes within the Court s jurisdiction will be committed in certain countries or on one A closer dialogue between the International Criminal Court (ICC) and the legal profession is of paramount importance to fulfilling the ICC s mandate Philippe Kirsch ICC President continent. The ICC legal system based as it is on a combination of both civil and common law traditions needs the diversity and expertise of lawyers from different backgrounds to ensure effective implementation of the Rome Statute and the highest standards of practice during ICC proceedings. But is it worth signing up to appear before the ICC? For a lawyer with a successful domestic practice, this could be a difficult decision. For some the possibility of attractive remuneration may not necessarily provide sufficient incentive. With only four accused persons currently before the Court despite eleven arrest warrants issued, only a limited number of list counsel will be selected to appear as part of a defence team or (as appointed by the Court) on an ad hoc basis. Furthermore, the application process has been described by some lawyers as long and tedious. There are however a number of benefits. The networking opportunities, privileges accruing from being a part of the exclusive List Counsel Extranet, and training in international criminal law provided to list counsel are strong incentives. Furthermore, when lawyers are chosen as ad hoc or duty counsel, the Court provides logistical and administrative assistance in addition to competitive remuneration. To be convinced, lawyers need to be shown the long term reputational and other benefits to be gained from being included in the ICC List Counsel. The Court must show lawyers that they matter to the ICC. The starting point is to simplify and accelerate the process for inclusion on the list. There should also be deliberate engagement and awareness raising initiatives targeted at female lawyers and those from under-represented regions through local and international bar associations like the IBA to make the ICC matter to lawyers. EQ IQ The ICC List of Counsel consists of a roster for defence counsel and legal representatives for victims and is open to international lawyers from any jurisdictional system who fulfil the requirements set by the Rules of Procedure and Evidence. The Registry is responsible for selecting and admitting individual applications (Rule 21; see also Regulations of the Court, regulations 67-70). 10 EQ: EQuality of Arms Review

11 Implementing justice: Bringing the ICC closer to home The International Criminal Court was born out of a need for an effective system of international criminal justice to end impunity and increase accountability. The preamble of the Rome Statute establishes the Court s raison d être by affirming that serious crimes of concern to the international community as a whole must not go unpunished. In order for this vision of global criminal accountability to become a reality, national courts must first implement Rome Statute legislation into their national laws. States Parties have an obligation to cooperate fully with the Court, as provided by Article 86 of the Rome Statute. Additionally, States are required by Article 88 to ensure that their national law includes procedures for all forms of cooperation specified by the Statute. Despite these obligations, less than half of States Parties have implemented Rome Statute legislation, for a number of reasons: Obstacles to implementation First, there is no procedural standard for implementation. Implementation can occur through several mediums, among them law, regulation, executive order, and decree. It is up to each State to decide the method for implementation, which can be a lengthy process, owing to the need for broad consultation and deliberation. Secondly, once that decision is made, further complications present themselves. If a State decides to implement through law, it must ascertain which is the better course: amending its existing legislation or enacting entirely new legislation. If the latter, it must decide whether it can achieve its goals within one Act (as New Zealand, the UK, and others have), or if it must introduce multiple laws (The Netherlands and Germany, inter alia). Thirdly, many States now lack the political will for the implementation of the Rome Statute. The ideal time for implementation is immediately following (or simultaneous with) ratification of the Rome Statute, and when this does not occur, it is easy for the issue of implementation to become overlooked or bogged down in bureaucratic and legislative morass. Cooperation and Complementarity In spite of these challenges, it is imperative that States address the issue of implementing legislation in order to actualise two principles that are central to the Court s mandate: cooperation and complementarity. Implementing legislation enables cooperation requests from the Court to States to be executed smoothly. State cooperation is of vital importance, as the Court relies on States to execute its requests and thereby act as the Court s enforcement arm. Cooperation requests vary, but they include, inter alia, execution of searches and seizures, questioning of individuals, protection of witnesses, and freezing/tracing of assets. Under the principle of complementarity national systems are given priority over prosecutions. Thus the ICC s jurisdiction is not triggered unless a State is genuinely unable or unwilling to carry out prosecutions of serious offences such as genocide, war crimes and crimes against humanity. Incorporating Rome Statute crimes into national criminal laws allows local courts to prosecute persons for these serious offences and ensures that the ICC remains a court of last resort. Shared responsibility In their efforts to implement legislation, States have found support from a number of sources. In particular, great efforts have been made by the NGO community to provide In order for this vision of global criminal accountability to become a reality, national courts must first implement Rome Statute legislation into their national laws. E Q O U T R E A C H P E R S P E C T I V E S Published by the IBA EQ: EQuality of Arms Review, Issue 1 11

12 E Q O U T R E A C H P E R S P E C T I V E S procedural manuals and checklists. This kind of technical assistance, particularly necessary in countries with less developed legal systems, should help expedite the process for States struggling to decide the most effective method of implementation. In addition to the NGO community, the Court itself has taken positive steps to promote implementation. At its sixth session, the Assembly of States Parties (ASP) established the position of ASP Focal Point on Cooperation. The Focal Point will serve as an intermediary between the Court and States Parties to increase cooperation. Thus far, the Focal Point has demonstrated commendable zeal, enlisting the NGO community to help him in the quest for universal implementation. The legal community at the national level also have an important role to play in this process. By appealing to their respective governments, offering technical support where needed and engaging in consultations with key stakeholders, lawyers and national bar associations can also help to facilitate the process of implementation at the national level. Implementing legislation allows national courts to act in the ICC s stead and prosecute Rome Statute violations on their own. Through this process, the national courts are turned into small-scale versions of the ICC, following the same legal guidelines and (ideally) fulfilling the same purpose as the Court. This issue is too important to be overlooked, and implementation must occur at a faster rate in order to strengthen the Court and make its goals a reality. Universal implementation will establish a global criminal justice system in which accountability, rather than impunity, is the standard. Universal implementation will establish a global criminal justice system in which accountability, rather than impunity, is the standard. IBA Roundtable Discussion on Cooperation On 12 November 2008, the IBA held a Roundtable Discussion on Cooperation entitled Making the ICC a global reality through cooperation: perspectives, challenges and strategies. The event was held at the Academy Hall, Peace Palace in The Hague. The high profile panel included: ICC Registrar Silvana Arbia, Beatrice Le Fraper du Hellen, Head of the Jurisdiction, Cooperation and Complementarity Section of the Office of the Prosecutor, Richard Dicker, Director of the International Justice Programme for Human Rights Watch and His Excellency Yves Haesendonck, Permanent Representative of Belgium to the International Organizations in The Hague and Assembly of States Parties Focal Point for Cooperation. A keynote address was delivered by Judge Theodor Meron, President of the Appeals Chamber for the Former Yugoslavia and Rwanda. The Roundtable Discussion was moderated by Heikelina Verrijn Stuart, a legal commentator and member of the Dutch Advisory Council for Foreign Affairs. The event was attended by a diverse audience which included diplomats, judges, Court officials, NGO leaders, and members of the global legal community. EQ IQ On December , the Assembly of States Parties issued Resolution ICC-ASP/5/Res.3 formulating a Plan of Action for achieving universality and full implementation of the Rome Statute. The Plan of Action encourages States Parties to use their political, technical, and financial resources to proactively promote universal implementation. The ASP resolution may be accessed at: 12 Published by the IBA EQ: EQuality of Arms Review, Issue 1

13 EQ events & publications Launch of May 2008 IBA/ICC Monitoring Report The speakers at the launch, from left to right: Lord Iain Bonomy, Judge Wilhelmina Thomassen, Ms. Lorraine Smith On 30 June 2008, the IBA launched its fourth IBA/ICC Monitoring Report entitled Balancing rights: the ICC at a procedural crossroads. The report was launched during a high-profile event at the official residence of His Excellency Lyn Parker, Ambassador of the United Kingdom of Great Britain and Northern Ireland to the Netherlands. The meeting included keynote speeches by Lord Iain Bonomy, judge at the International Criminal Tribunal for the former Yugoslavia (ICTY), and Ms Wilhelmina Thomassen, Judge at the Supreme Court of the Netherlands. The speakers praised the work of the IBA in raising awareness about important contemporary issues faced by the Court. The event was attended by more than 50 participants, including diplomats, judges from the ICC and the ICTY, senior ICC officials, representatives of international nongovernmental organisations, lawyers and law professors. The issue of victims participation provoked particularly lively debate among the attendees and speakers. The monitoring report highlights the challenges faced by the judges of the ICC in seeking to interpret the relevant legal provisions governing the participation and protection rights of victims and the rights of defendants before the Court. A copy of Balancing rights: the ICC at a procedural crossroads may be accessed at the IBA website: images/downloads/iba-icc_monitoring_ reportbalancingrights_may2008_final.pdf IBA bar leaders visit International Criminal Court Bar leaders from across the globe attending the IBA annual Bar Leaders Conference held in Amsterdam, Netherlands, on 18 May 2008, were given a rare opportunity to visit the ICC and meet with staff there. The visit was organised by the Outreach team of the IBA/ ICC Monitoring and Outreach Programme in an effort to bridge the gap between members of the global legal community and the Court. The bar leaders had the unusual privilege of being addressed by all the top officials of the Court in succession. Judge Philippe Kirsch, ICC President, warmly welcomed delegates, stressing the key role played by the IBA in encouraging support for the ICC among national bar associations. Presentations were then made by ICC Registrar Silvana Arbia, Chief Prosecutor Luis Moreno Ocampo, Head of Division of Victims and Counsel Didier Preira (now Deputy Registrar), and Xavier Jean Keïta and Paolina Massida, Heads of the Offices of Public Counsel for the Defence, and for Victims respectively. Justice Richard Goldstone, IBA Human Rights Institute Co-Chair and former Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, who thanked the President on behalf of the delegates, later commented in the press release issued following the event: Tremendous progress has been made in the field of international criminal law in the past 15 years. In relation to the work of the ICC, bars can play an important role by encouraging their governments to ratify the Rome Statute establishing the ICC and, in states that have ratified it, by supporting the adoption of implementing legislation. For further information please visit the Outreach page of the IBA website at ibanet.org/humanrights/icc_outreach.cfm E Q E v e n t s a n d p u b l i c a t i o n s Justice Richard Goldstone and Judge Philippe Kirsch Published by the IBA EQ: EQuality of Arms Review, Issue 1 13

14 E Q E V E N T S A N D P U B L I C A T I O N S IBA co-hosts panel discussion with War Crimes Research Office (WCRO) On 31 October 2008, the IBA and the WCRO co-organised a panel discussion on Confirmation of Charges Proceedings at the International Criminal Court to celebrate the launch of the latest WCRO report of the same name. The event was hosted by the Honourable Jorge Lomonaco, Mexican Ambassador to the Netherlands and the Group of Friends of the ICC, at the Mexican Embassy in the Hague. The keynote presentation was made by distinguished expert in international criminal law, Professor Otto Triffterer, from the University of Salzburg. The event was attended by several important guests including ICC judges and other staff, members of the diplomatic community and representatives from non-governmental organisations. Publications Latest Outreach Report: Beyond the Hague: forging linkages between the International Criminal Court and key jurisdictions On 6 October, the IBA/ICC Monitoring and Outreach Programme released its latest Outreach Report, Beyond The Hague: forging linkages between the International Criminal Court and key jurisdictions. The report called upon the International Criminal Court (ICC) to increase its public information activities and engage more actively with lawyers from national jurisdictions around the world. The report has a dual focus, looking at ICC outreach activity as well as IBA outreach to the global legal community. The report includes several pointed recommendations and observations for future improvement. In the report, Liliana De Marco Coenen, head of the Outreach Programme, writes that since the IBA last reported on the ICC s outreach work, several notable improvements have been made and a number of tangible results have been achieved. The report notes that despite the positive developments, challenges remain. The report can be accessed on the programme website at: iba/article.cfm?article=188 Upcoming events 5-6 December 2008: Bar & Law Society leaders workshop in Pretoria (South Africa) on International criminal justice in Southern Africa: relevance, lessons & prospects. This two day workshop is co-organised by the IBA/ICC Monitoring and Outreach programme together with the Institute for Security Studies (ISS) and Southern African Development Community Lawyers Association (SADC LA) to discuss international criminal justice in Africa and its relevance for lawyers in the region through presentations by prominent African legal practitioners. The Workshop will address among others the issue of perceptions of the ICC as an imperialist Western imposition; the matter of ICC outreach activities; and opportunities for lawyers and lawyers associations to engage with the ICC. An interesting feature of the workshop will be the presentation of a case study on domestic implementation of international justice obligations in South Africa. Latest Monitoring Report- The ICC under Scrutiny: Assessing recent developments at the International Criminal Court The latest IBA/ICC Monitoring Report was released on 11 November The report notes that despite a number of important developments at the ICC during June to October 2008, the stay of proceedings in the Lubanga case cast a pall over the Court. The report highlights the significant legal challenges arising from the Prosecution s excessive reliance on confidentially obtained documents during its early investigations in the Democratic Republic of Congo; which led to an unprecedented disclosure dilemma when potentially exculpatory confidential documents could not be disclosed to the defence. Lorraine Smith, IBA Programme Manager(ICC) notes in the report that the developments in the Lubanga case brought the ICC under intense scrutiny and had a potentially damaging effect on its reputation. However, Ms. Smith indicates that there were some positive developments arising from the stay of proceedings; including expedited negotiations for lifting confidentiality restrictions and judicial clarification of procedural issues by the Appeals Chamber. The report also examines several key recommendations by the Committee on Budget and Finance during its Eleventh session which will be considered by the Assembly of States Parties during the work of its Seventh session. The report may be accessed at 14 Published by the IBA EQ: EQuality of Arms Review, Issue 1

15 About the IBA The International Bar Association (IBA), established in 1947, is the world s leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of more than 30,000 lawyers and nearly 200 bar associations and law societies spanning all continents. It has considerable expertise in providing assistance to the global legal community. In 2005 the IBA commenced the ICC Monitoring and Outreach Programme through funding provided by the McArthur Foundation. The Monitoring Component of the programme analyses the developments of the ICC focusing in particular on issues affecting the fair trial rights of the accused, the implementation of the Rome Statute, the Rules of Procedure and Evidence, and related ICC documents. The IBA monitor engages in high level consultations with key stakeholders within and outside of the ICC. Periodic reports are then issued. The Outreach Component of the programme disseminates information and promotes debate on the ICC through the IBA s membership network. In order to promote a deeper understanding of how the ICC fits within the broader landscape of international justice, the IBA works in key countries in partnership with national bar associations and civil society organisations. Findings and recommendations from the outreach work are fed back to the Court with a view to creating a dialogue between targeted groups and the Court. IBA Hague Team From left, Liliana DeMarco-Coenen (Head, Outreach Programme (ICC), Charles Throckmorton (research assistant), Mark Chadwick (intern), Ana-Maria Telbis (intern), Lorraine Smith (Programme Manager (ICC). For more information about the IBA/ICC Monitoring and Outreach Programme visit the IBA website at or contact the IBA Programme Lawyers in The Hague: Monitoring Lorraine A Smith IBA Programme Manager (ICC) +31 (0) lorraine.smith@int-bar.org Outreach Liliana DeMarco-Coenen Head, IBA Outreach Programme (ICC) +31(0) liliana.demarco@int-bar.org The IBA would also like to thank Mark Chadwick, Charles Throckmorton and Cecile Madec for their contribution to this issue of EQ.