court: icc

doctype: arrest-warrant

identifier: ICC-02/05-03/09 (Summons to Appear for Saleh Mohammed Jerbo Jamus)

caseName: The Prosecutor v. Abdallah Banda Abakaer Nourain

chamber: Pre-Trial Chamber I

decisionType: arrest-warrant

publisher: International Criminal Court

text: the Statute

text: the Statute, article 25

text: the Statute, article 58

text: the Statute, article 8

text: tu)

type: stycke

text: C o u r t

text: Original. English No,: ICC-02/05-03/09 Date. 27 August 2009

text: PRE-TRIAL CHAMBER I

type: rubrik

text: Before: Judge Sylvia Steiner, Presiding Judge Judge Sanji Mmasenono Monageng Judge Cuno Tarfusser

text: SITUATION IN DARFUR, SUDAN IN THE CASE OF THE PROSECUTOR V. ABDALLAH BANDA ABAKAER NOURAIN AND SALEH MOHAMMED JERBO JAMUS Confidential SUMMONS TO APPEAR FOR SALEH MOHAMMED JERBO JAMUS

text: August 2009

text: Legal Representatives of Victims l-egal Representatives of Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Réparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representatives Amicus Curiae

text: REGISTRY Registrar Defence Support Section Ms Silvana Arbid Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: August 2009

text: PRE-TRIAL CHAMBER I of the Internahtmal Cnminal Court (the "Chamber" and the "Court", respechvely),

text: HAVING EXAMINED the "Prosecutors Applicahon under Arhcle 58",' filed by the Prosecutor on 20 November 2U08 m the record of the Situation in Darfur, Sudan, w^hereby it requested the Chamber to issue a warrant of arrest or, alternahvely, a summons to appear for Saleh Mohammed Jerbo Jamus ("Jerbo") and others,

text: HAVING EXAMINED the "Submission of infcumation on the Prosecution's Apphcahon Pursuant to Article 58 and request for summonses to appear",^ filed by the Prosecutor on 23 February 2UÜ9, whereby he requested the Chamber to issue a summons to appear for Jerbo and others,

text: HAVING EXAMINED all other supporting material and information submitted by the Prosecutor,'

text: NOTING the "Report of the Prosecuhon Submitted pursuant to Request ot the O"'hambor contained in the Confidential Annex to its decision convening a hearing of 19 August", filed by the Prosecutor on 25 August 2009",-'

text: ' iCC-ü2/05-163-Conf-Exp, ICO-02/05-lb3-Conf-Exp-Anxs1-5 38 ' lCC-02/05-194-Conf-Exp, ICC-02/05-I94-Cont-Exp-Anxl ^ ICC-02/05-165-Conf-Exp and ICC-02/05-165-Conf-Exp-Anxsl-8, ICC-Ü2/05-172 and ICC- 02/05-172-Conf-Exp-AnxsA-B24, ICC-02/Ü5-173 and ICC-02/ü5-173-Conf-Exp-AnxsB25-B26, ICC-02/05-203 and ICC-02/05-203-Conf-Exp-Anxl, ICC-02/05-211-Conf-Exp and ICC-Ü2/05- 2n-Conf-Exp-Anxsl-2, ICC-02/05-212-Cont-Fxp, [CC-02/05-214-Conf-Exp and ICC-02/05-214- Conf-L\p-Anxl, [CC-02/05-21b-Conf-E\p-Cürr "* ICO-02/05-229. IOO-02/Ü5-229-Anxs-A-B No ICC-02/05-03/09 3/9 27 August 2009

text: NOTING the submissions of the Prosecutor in the ex parte hearing before the Chamber, held in closed session on 26 August 2009,*^

text: NOTING the "Second Decision on the Prosecutor's Apphcahon under Article 58",^ in which the Chamber explains the reasons why it is satisfied that there are reasonable grounds to believe that Jerbo is criminally responsible under arhcle 25(3)(a) of

text: the Statute

text: of the Court (the "Statute") for w^ar crimes and that the issuance of a summons to appear is sufficient to ensure his appearance before the Court under

text: article 58

text: (7) of

text: the Statute

text: of the Court,

text: CONSIDERING that, on the basis of the material provided by the Prcisecutor in support of his Apphcation and without prejudice to any subsequent determination that may be made under arhcle 19 of

text: the Statute

text: , the case against Jerbo falls within the jurisdiction of the Court;

text: CONSIDERING that, on the basis of the matenal provided by the Prc^secutor, there is no ostensible cause or self-evident factor impelling the Chamber to exercise its discrehon under arhcle 19(1) ot

text: the Statute

text: to determine the admissibiht\^ of the case against Jerbo at this stage;

text: CONSIDERING that there are reasonable grounds to believe that at the hme relevant to the charges alleged in the Prosecutor's Application, a protracted armed conflict not of an international character within the meaning of arhcle 8(2)(f) of

text: the Statute

text: existed in Darfur between the Government of Sudan and several organised armed groups, including the Sudanese

text: ' 100-02/05-1 -7-OONF-EXP-hNG MCC-ü2/05-03/09-l-Conf No ICC-02/05-03/09 4/9 27 August 2009

text: Libcrahi)n Movement/Army ("SLM/A") and that Jerbo was aware of the factual Circumstances establishing the existence of the said armed conflict,

text: CONSIDERING that there are reasonable grounds to believe that, in the context of, and in associahon with, the said armed conflict, on 29 September 2007 an attack was carried out against the Atrican Union Mission in Sudan ("AMIS") personnel, installahons, material, units and vehicles that were stationed at the Military Group Site (MGS) Haskanita (Sector 8) ("MGS Haskanita"), Umm Kadada Locality, North Darfur, Sudan,

text: CONSIDERING that there arc reasonable grounds to beheve that the attack on the MGS Haskanita w^as carried out by the troops belonging to SLA- Umty, which had broken away from the SLMA/A, under the command of Jerbo, jointly with splinter forces of JEM, under the command of Abdallah Banda Abakaer Nouram ("Banda") and Bahar Idriss Abu Garda ("Abu Garda"),

text: CONSIDERING that, on the basis of the matenal provided by the Prosecutor, there are reasonable grounds to beheve that during and after the abovc-mcnhoned attack, the attackers (i) killed twelve AMIS soldiers, (ii) severely wounded eight AMIS soldiers, (in) destroyed communicahon mstallatums, d(.)rmitüries, vehicles and other materials belonging to AMIS; and (iv) appropriated property belonging to AMIS,

text: CONSIDERING that there are reasonable grounds to believe that (i) the victims of the attack were entitled to the protection afforded to civilians not taking achve part m the hostihhes, (ii) Terbo, as well as Banda and Abu Garda,

text: No ICC-02/05-03/09 5/9 27 August 2009 was aware of this circumstance and, thereft>re, (iii) the war crime of violence to life m the form of murder, withm the meanmg of

text: article 8

text: (2)(c)(i) of

text: the Statute

text: was committed or attempted during the attack,

text: CONSIDERING that there are reasonable grounds to believe that, (i) the object of the attack can bo considered personnel, installahons, matenal, unit or vehicles involved in a peacekeepmg mission "in accordance with the Charter of the United Nahons" withm the meaning of

text: article 8

text: (2)(e)(m) of

text: the Statute

text: , (ii) as not achvely participahng in the hoshhties, the AMIS troops - as well as the installations, material, units and vehicles involved in the AMIS mission were entitled to the protechon given to civilians or civilian objects under the internahonal law of armed conflict withm the meaning of arhcle 8(2)(e)(ui) of

text: the Statute

text: , (ui) Jerbo, Banda and Abu Garda were aware of the protechon to which AMIS personnel, installahons, material, unit and vehicles were entitled, (iv) therefore, the war crime of intenhonally directing attacks against personnel, installahons, material, units or vehicles involved in a peacekeeping mission within the meaning of arhcle 8(2)(e)(iii) ot the Stahite was committed,

text: CONSIDERING that there are reasonable grounds to believe that atter the attack the attackers appropriated numerous items belonging to AMIS, with the specific intent to deprive the owner of such items and to appropriate them for private or personal use, and, therefore, that the war crime of pillaging withm the meaning of arhcle 8(2)(e)(v) of

text: the Statute

text: was committed,

text: CONSIDERING that there are reasonable grounds to believe that (i) there was a common plan to attack the MSG Haskanita botwx^en Jerbo, Banda and

text: No ICC-02/05-03/09 6/9 27 August 2009

text: Abu Garda, and (ii) the common plan included the commission ot the abovemenhoned war crimes,

text: CONSIDERING that there are reasonable grounds to believe that the contribution of Jerbo - who was the Chief of Staff of SLA-Umty - w^as essential insofar as there are reasonable grounds to believe that he participated in the design of the common plan and w^as m command ot the splinter torces of SLA-Unity during the attack to MSG Hdskanita,

text: CONSIDERING that, on the basis of the matenal provided by the Prosecutor in support of his Application, there are reasonable grounds to believe that Jerbo is criminally responsible as a co-perpetrator or as an indirect co-perpetrator under arhcle 25(3)(a) of

text: the Statute

text: BEING SATISFIED that, for the above reasons, there are reasonable grounds to believe that Jerbo is criminally responsible under

text: article 25

text: (3)(a) ot

text: the Statute

text: , for I the war crime of violence to life, in the form of murder, whether committed or attempted, weithin the meaning of arhcle 8(2)(c)(i) of

text: the Statute

text: , 11 the war crime of intenhonally direchng attacks against personnel, installahons, materials, units and vehicles involved in a peacekeeping mission, withm the meaning of arhcle 8(2)(e)(iii) of

text: the Statute

text: , 111 the war crime ot pillaging, within the meanmg of arhcle 8(2)(e)(v) of theStahJte

text: No ICC-02/05-03/09 7/9 27 August 2009

text: CONSIDERING that (i) the issuance of a warrant of arrest does not appear necessary for the purposes of arhcle 58(1 )(b) of

text: the Statute

text: , and (ii) there are reasonable grounds to believe that a summons to appear for Jerbo is sufficient to ensure his appearance before the Court within the meanmg of

text: article 58

text: (7) of

text: the Statute

text: , without prejudice to the Chamber's powxT to review its determinahon under arhclos 58(1) and 5S(7) of

text: the Statute

text: , respechvely,

text: FOR THESE REASONS,

text: ORDERS

text: SALEH MOHAMMED JERBO JAMUS, a male, member of the Zaghawa tribe of Sudan, who is believed to be approximately 35 years old, bom in Shcgag Karo village. North Darfur, former Chief of Staff of SLA-Unity and currently integrated into JEM, TO APPEAR BEFORE THE COURT on Tuesday, 17 November 2009 at 10 00 hours,

text: ORDERS

text: SALEH MOHAMMED JERBO JAMUS, without prejudice to further decisions of the Chamber m this respect* (i) to refrain from discussing issues related to either the charges which form the basis of the present summons or the evidence and information presented by the Prosecutor and considered by the Chamber,

text: No ICC-02/05-03/09 S/9 27 August 2009

text: Done m both English and French, tlie English version being authoritahve

text: 4ttdge^ylvia Steiner Presiding Judge

text: Judge Sanji Mmasenono Mon Judge Cuno Tarfusser

text: Dated this Thursday, 27 August 2009 At The Hague, the Netherlands

text: No ICC-02/05-03/09 9/9 27 August 2009

type: avgorande


doctype: appeal-interlocutory

identifier: ICC-02/05-03/09 (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 30 June 2011 entitled "Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence")

chamber: Appeals Chamber

decisionType: appeal-interlocutory

text: Rome Statute

text: the Statute, article 12

text: the Statute, article 21

text: the Statute, article 64

text: the Statute, article 82

text: Cour Pénale / I n t e r n a t i o n a l e ^

text: m)

text: I n t e r n a t i o n a l C r i m i n a l Court

text: Original: English No. ICC-02/05-03/09 OA Date: 11 November 2011

text: THE APPEALS CHAMBER

text: Before: Judge Akua Kuenyehia, Presiding Judge Judge Sang-Hyun Song Judge Erkki Kourula Judge Anita Usacka Judge Daniel David Ntanda Nsereko

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ABDALLAH BANDA ABAKAER NOURAIN and SALEH MOHAMMED JERBO JAMUS

text: Public document Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 30 June 2011 entitled ^^Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence"

text: No: ICC-02/05-03/09 OA 1/13

text: iÇ^

text: Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for the Defence Ms Fatou Bensouda, Deputy Prosecutor Mr Karim A. A. Khan Mr Fabricio Guariglia Mr Nicholas Koumjian

text: REGISTRY Registrar Ms Silvana Arbia

text: No: ICC-02/05-03/09 OA 2/13

text: The Appeals Chamber of the International Criminal Court, In the appeal of the Prosecutor against the decision of Trial Chamber IV entitled "Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence" of 30 June 2011 (ICC-02/05-03/09-168),

text: After deliberation,

text: Unanimously,

text: Delivers the following

text: JUDGMENT

text: The "Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence" is confirmed. The appeal is dismissed.

text: R E A S O N S

text: I. P R O C E D U R A L H I S T O R Y A . P r o c e e d i n g s before t h e T r i a l C h a m b e r

text: On 8 June 2011, the Prosecutor filed the "Prosecution's Request to Invalidate the Appointment of Counsel to the Defence Team"^ (hereinafter: "Requesf'), in which he objected to the proposed appointment of Mr Ibrahim Yillah as associate defence counsel to the defence team in this case. This was on the basis that Mr Yillah had resigned recently as trial lawyer fi'om the Office of the Prosecutor (hereinafter: "OTP") and that his assignment to the defence team would create a confiict of interest.^ The Prosecutor submitted that lawyers who previously worked at the OTP "should be barred for a period of time, which should be no shorter than one year, to work for the defence in any case before the Intemational Criminal Court"."^

text: From the Request, it appears that Mr Yillah started to work at the OTP as an Associate Trial Lawyer on 15 August 2005. He became a Trial Lawyer on 1 August

text: ^ ICC-02/05-03/09-160, registered on 9 June 2011. ^ Request, para. 2. ^ Request, para. 4.

text: 2008, from which position he resigned on 19 April 2011.^ On 4 May 2011, the OTP was informed of the proposed appointment of Mr Yillah as associate defence counsel on the defence team in this case.^ Prior to his resignation, Mr Yillah had worked for the OTP for a period of over five and a half years. His proposed appointment to the defence team in the present case was notified a little over two weeks thereafter.

text: During his employment with the OTP, Mr Yillah worked on the situation in Uganda, the case of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (in the situation in the Democratic Republic of the Congo) and the case of Prosecutor v. Jean-Pierre Bemba Gombo (in the situation in the Central African Republic).^

text: On 15 June 2011, counsel for Mr Abdallah Banda Abakaer Nourain and Mr Saleh Mohammed Jerbo Jamus (hereinafter: "Defence") filed the "Defence Response to the 'Prosecution's Request to Invalidate the Appointment of Counsel to the Defence Team'" (hereinafter: "Defence Response"), submitting that the Request should be summarily dismissed.

text: On 30 June 2011, Trial Chamber IV (hereinafter: "Trial Chamber") issued the "Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence" (hereinafter: "Impugned Decision"), in which it denied the Request.

text: On 6 July 2011, the Prosecutor filed the "Prosecution's Application for Leave to Appeal the 'Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence' (ICC-02/05-03/09-168)"^^ (hereinafter: "Application for Leave to Appeal"). The Prosecutor sought leave to appeal two issues, namely:

text: (i) "[wjhether, as a matter of law, Prosecution lawyers may join a defence team in a case that was open at the time when the person worked for the Prosecution, or whether they should be barred for a period of time before joining a defence team"^^; and

text: 4 i Request, para. 10. ^ Request, para. 5. ^ Request, para. 10. ^ICC-02/05-03/09-163. MCC-02/05-03/09-168. ^ Impugned Decision, p. 15. ^°ICC-02/05-03/09-173. ** Application for Leave to Appeal, para. 4; the Prosecutor asserted that this issue concerned the "legal test to be applied by the Chamber to determine impediments to representation and conflict of interest by counsel".

text: (ii) "[w]hether the Chamber failed to properly consider and weigh the information provided by the Prosecution that Mr Yillah was privy to confidential information relating to the Banda and Jerbo case and whether it gave excessive weight to the assertion of Mr Yillah that he is unaware of any relevant confidential information".^^ 7. On 13 July 2011, after having received the response of the Defence submitting that the Application for Leave to Appeal should be dismissed, the Trial Chamber issued its "Decision on the Prosecution's Application for Leave to Appeal the 'Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence'"^"^ (hereinafter: "Decision on the Application for Leave to Appeal"), in which it granted leave to appeal the first of the Prosecutor's two issues, but refused to grant leave to appeal the second issue.

text: B . P r o c e e d i n g s before t h e A p p e a l s C h a m b e r 8. On 25 July 2011, the Prosecutor filed the "Prosecution's Appeal against Trial Chamber IV 'Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence'"^^ (hereinafter: "Document in Support of the Appeal").

text: On 5 August 2011, the Defence filed the "Defence Response to Prosecution's Appeal against Trial Chamber IV 'Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence'"^^ (hereinafter: "Response to the Document in Support of the Appeal").

text: IL M E R I T S A . S u m m a r y of t h e I m p u g n e d Decision 10. In determining whether there was an impediment to the representation of the accused by Mr Yillah, the Trial Chamber relied primarily upon the legal framework in the

text: Rome Statute

text: , previous decisions of other Chambers of the Court and the Code of Professional Conduct for counsel (hereinafter: "Code"). Although the Prosecutor relied extensively on national jurisprudence, the Trial Chamber did not derive any

text: ^^ Application for Leave to Appeal, para. 4. ^^ "Defence Response to Prosecution's Application for Leave to Appeal the 'Decision on the Prosecution's Request to Invalidate the Appointment of Counsel to the Defence' (ICC-02/05-03/09- 168)", 8 July 2011, ICC-02/05-03/09-175, para. 24. ^^ ICC-02/05-03/09-179, para. 28. ^^ ICC-02/05-03/09-184 (OA). ^^ ICC-02/05-03/09-188 (OA). ^ guidance from such references, given the wide differences in national practices in relation to the issue of a conflict of interest. ^^

text: The Trial Chamber held articles 12 (1) (b) and 16 of the Code to be applicable to Mr Yillah, who was considered to be a '"defence counsel [...] practising at the [...] 1 R Court' within the meaning of [ajrticle 1 of the Code". The Trial Chamber noted that primary responsibility to ensure that there was no conflict of interest conceming a member of the defence team lay with counsel, in accordance with his or her professional obligations under the Code.^^ However, in the event of a dispute that may cause unfairness, it was for the Trial Chamber to resolve the issue pursuant to

text: articles 64

text: (2) and

text: (3) (a) of

text: the Statute

text: .^^ 12. The Trial Chamber noted that

text: article 12

text: (1) (b) of the Code prevented the appointment of counsel if he or she had been involved in or privy to confidential information relating to the case in which he or she seeks to appear.^ ^ As Mr Yillah had not been involved in the present case, the Trial Chamber addressed only whether Mr Yillah had been privy to confidential information. By reference to article 9"^ 12 (1) (b) of the Code and a previous decision of Trial Chamber III, the Trial Chamber defined the determinative issue as being "whether Mr Yillah became aware of more than 'de minimis confidential information' relevant to the case which a member of the defence team should not possess".^"^ 13. The Trial Chamber concluded as follows:

text: The Chamber notes that although the prosecution states that Mr Yillah became aware of confidential information relevant to the present case during his employment with the prosecution, this has been advanced essentially in general terms, without any particulars or any supporting material. 21. Although, Mr Yillah's prior employment with the prosecution might have provided him insight into the functioning of the Office of the Prosecutor and provided him with knowledge pertaining to ongoing investigations, the

text: ^^ Impugned Decision, para. 8. *^ Impugned Decision, para. 10. ^^ Impugned Decision, para. 11. impugneu uecision, para. 11. ^° Impugned Decision, para. 12. ^* Impugned Decision, para. 13. ^^ Impugned Decision, paras 14-15. ^^ Prosecutor v. Jean-Pierre Bemba Gombo, "Decision on the 'Prosecution's Request to Invalidate the Appointment of Legal Consultant to the Defence Team'", 7 May 2010, ICC-01/05-01/08-769. /\ppumimcni ui j^cgai ^^uiisuiia ^^ Impugned Decision, para. 16. ^^ Impugned Decision, para. 16

text: Prosecution has not demonstrated that Mr Yillah indeed has confidential information and knowledge pertaining to this specific case. Instead, the prosecution only suggests the possibility. 22. As a result, the combination of lack of any proof that Mr Yillah is effectively in possession of confidential material and his unequivocal assertions that he is unaware of any relevant confidential material settles this matter. Absent any reasons for doubting Mr Yillah's integrity, the Chamber is entitled to rely on his clear undertakings. Therefore, the Chamber finds that there are no persuasive indications that a conflict of interests exists or that his appointment is prejudicial to the present proceedings.^^ B . T h e P r o s e c u t o r ' s s u b m i s s i o n s before t h e A p p e a l s C h a m b e r 14. The Prosecutor submits that the Trial Chamber erred (i) in refusing to apply an objective standard; and (ii) in requiring Mr Yillah to be "effectively in possession of 96 'more than de minimis' confidential information". 15. He submits that the Trial Chamber's conclusion was inconsistent with the duty to ensure a fair trial under

text: article 64

text: of

text: the Statute

text: , given the unique characteristics of the Court and the OTP.^^ The Prosecutor further submits that "[h]ad the Chamber correctly applied an objective standard [...] it necessarily would have invalidated Mr Yillah's appointment.^^

text: The Prosecutor argues that counsel should be disqualified when his or her 9Q appointment creates an appearance of impropriety. He supports this by an analysis of case law from national jurisdictions and avers that there is an "objective principle that a former prosecutor cannot immediately join the Defence". He also refers to France, Italy, China and Germany, which impose, in his submission, a fixed period of time or other safeguards before a former prosecutor may appear for the defence. 17. On the basis of article 12 (1) (b) of the Code, he argues that the words "privy to confidential information" mean the objective possibility that the person had access to confidential information rather than the subjective "effective" possession standard

text: ^^ Impugned Decision, paras 20-22. ^^ Document in Support of the Appeal, para. 2. ^^ Document in Support of the Appeal, para. 19. ^^ Document in Support of the Appeal, para. 20. ^^ See Document in Support of the Appeal, paras 28-30. ^^ See Document in Support of the Appeal, paras 29, 32. ^* Document in Support of the Appeal, para. 33. ^^ Document in Support of the Appeal, para. 32.

text: T O required in the Impugned Decision. He submits that "[r]equiring proof that the person had 'effective possession' of important confidential information places an unrealistic evidentiary burden that, in all but the most blatant cases, will be impossible to meet".^"* The Prosecutor submits that the objective standard finds support in the standard applied by the Trial Chamber of the Intemational Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v. Hadzihasanovic and others^^ and is consistent with domestic case-law in the United States, which required the disqualification of would-be defence lawyers who were previously in positions where they "could have received" or were "likely to have come across" sensitive or privileged prosecution information."^^ 18. The Prosecutor submits that there was "a real possibility" that a lawyer working for the OTP at the time when a case was open was privy to confidential information with respect to that case. In his view, allowing the lawyer to join the defence would give him or her an undue advantage over the prosecution, which could detrimentally impact the fairness of the proceedings and erode public confidence in them.^^ The Prosecutor submits that the working methods of the OTP require open discussion of factual, legal and policy issues, with the assumption that all such interactions would be unrestricted and confidential. He submits that, during these discussions, OTP lawyers reveal confidential facts, assess strengths and weaknesses of a case and discuss policy or strategic options, and that such exchanges occurred both formally and informally."^^ He submits that requiring documentation of every piece of confidential information revealed in such conversations would render the OTP ineffective."^^

text: As to the de minimis standard set out by the Trial Chamber, the Prosecutor argues that there is no requirement under article 12 (1) (b) of the Code that the

text: ^^ See Document in Support of the Appeal, paras 2, 35. ^^ Document in Support of the Appeal, para. 36. ^^ "Decision on Prosecution's Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as co-counsel to the Accused Kubura", 26 March 2002, IT-01-47-PT, para. 46; Document in Support of the Appeal, para. 38. ^^ Document in Support of the Appeal, para. 39. ^^ Document in Support of the Appeal, para. 21. ^^ Document in Support of the Appeal, paras 21, 30. ^^ Document in Support of the Appeal, paras 3, 5,24-27. ^^ Document in Support of the Appeal, para, \5\see also paras 24-25. ^^ Document in Support of the Appeal, para. 15. ^ confidential information reached a sufficient level of importance and that, therefore, the Trial Chamber's standard was incorrect."^^

text: The Prosecutor requests the Appeals Chamber to reverse the Impugned Decision, formulate the correct legal test to be applied in such circumstances and either itself invalidate the appointment of Mr Yillah or remand the matter to the Trial Chamber with directions to do so."^^

text: C. The Defence Submissions before the Appeals Chamber

text: The Defence submits that the Impugned Decision did not contain any errors of law."^"^ In the Defence's submission, the Impugned Decision applied the correct legal test of whether Mr Yillah was "privy to confidential information"."^^

text: The Defence submits that article 12 (1) (b) of the Code only prevents lawyers from joining the defence if they were, inter alia, '"privy to confidential information' relating to the case"."^^ The Defence submits that the Trial Chamber did not err in finding that Mr Yillah was not "effectively in possession of confidential material" because "'[i]n possession of means the same as 'privy to'" and "[t]he word 'effectively' merely emphasis[ed] that it was for the OTP to prove that Mr. Yillah was [...] in possession of confidential material"."*^ In that context, the Defence submits that the purpose of article 12 (1) (b) of the Code is to "balance the accused's right to be represented by counsel of their choosing against the risk [of the OTP being] disadvantaged by the Defence having access to confidential information"."^^ In the view of the Defence, this balancing is also evidenced by the fact that the impediment may be lifted where it is in the interests of justice so to do."*^

text: The Defence submits that, in the present case, the OTP failed to discharge its burden of proof ^^ The Defence disputes that requiring the Prosecutor to substantiate his claim that a person has been made privy to confidential information was

text: ^^ Document in Support of the Appeal, paras 34-35. ^^ Document in Support of the Appeal, paras 4,40. ^ Response to the Document in Support of the Appeal, para. 1. ^^ Response to the Document in Support of the Appeal, para. 2. ^^ Response to the Document in Support of the Appeal, para. 16. "^^ Response to the Document in Support of the Appeal, paras 38-39; see also paras 32-33. ^^ Response to the Document in Support of the Appeal, para. 36. ^^ Response to the Document in Support of the Appeal, para. 36. ^® Response to the Document in Support of the Appeal, para. 8.

text: unreasonable or impossible.^^ The Defence also highlights that the Prosecutor did not explain exactly what OTP practices he feared would be revealed or "how knowledge of those practices by defence counsel would in any way damage the fairness of the C'y proceedings". 24. The Defence asserts that the Prosecutor is requesting the Appeals Chamber to implement "a wholesale rule change in conflict of interest matters", which has no basis in the goveming legal instruments of the Court or the applicable intemational jurisprudence.^^ The Defence submits that the "objective standard" proposed by the Prosecutor is not to be found within the applicable law of the ICC.^"^ The Defence points out that article 12 (1) (b) of the Code expressly covers the situation of a staff member of the Court moving to represent a client before the Court.^^ The Defence submits that it is not possible to read that provision as imposing an absolute ban on OTP lawyers joining the defence in a case that was open at the time that they worked for the OTP.^^ Furthermore, the Defence argues that the jurisprudence of other intemational tribunals shows that prior association with the prosecutorial office did not, in itself, justify disqualification from becoming a defence counsel.^^ Additionally, the Defence submits that no general principle of national law barring a prosecutor from working as a defence counsel could be established in the present case pursuant CO to

text: article 21

text: (1) (c) of

text: the Statute

text: . The Defence avers that, in the national jurisdictions referred to by the Prosecutor, such a bar is expressly codified,^^ and that in many national jurisdictions, including the United States, Canada and The Gambia, movement between prosecution and defence is commonplace.^^ Finally, conceming the need to protect against impropriety, the Defence submits that the only case of direct relevance cited by the Prosecutor was "severely criticised" and not followed by

text: ^^ Response to the Document in Support of the Appeal, para. 22. ^^ Response to the Document in Support of the Appeal, para. 24. ^^ Response to the Document in Support of the Appeal, para. 3. ^^ Response to the Document in Support of the Appeal, paras 9-16. ^^ Response to the Document in Support of the Appeal, para. 15. ^^ Response to the Document in Support of the Appeal, para. 16. ^^ Response to the Document in Support of the Appeal, paras 19-20. ^* Response to the Document in Support of the Appeal, para. 29. ^^ Response to the Document in Support of the Appeal, para. 30. ^^ Response to the Document in Support of the Appeal, para. 26. ^ another U.S. federal appellate court, highlighting the inconsistent positions taken on this issue.^^

text: Furthermore, the Defence submits that the "de minimis'' test did not affect the outcome of the present case, as the OTP failed to prove that Mr Yillah was privy to any confidential information at all. As such, it is submitted that the Prosecutor seeks an advisory opinion on hypothetical points of law.

text: The Defence further contends that this appeal improperly seeks retrospectively and unilaterally to "amend the employment contracts of OTP lawyers [...] by barring them from joining ICC defence teams for a period of time regardless of whether [or not] a conflict of interest exists".^"*

text: The Defence, therefore, submits that the Impugned Decision should be confirmed and the appeal dismissed.^^

text: D . T h e d e t e r m i n a t i o n of t h e A p p e a l s C h a m b e r 28. The Appeals Chamber recalls that, in considering whether there is an impediment to Mr Yillah's appointment as an associate counsel of the Defence, the issue on appeal is,

text: [w]hether, as a matter of law, prosecution lawyers may join a defence team in a case that was open at the time when the person worked for the prosecution, or whether they should be barred for a period of time before joining a defence team.^^ 29. A similar question was addressed in the judgment of the Appeals Chamber of 10 November 2011 in the case oï Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali^^ (hereinafter: ''Muthaura OA 3 Judgment"),

text: The Appeals Chamber notes that, while the proceedings leading to the Muthaura OA 3 Judgment were initiated by Pre-Trial Chamber II on its ovm motion,^^

text: ^* Response to the Document in Support of the Appeal, para. 25. ^^ Response to the Document in Support of the Appeal, para. 37. ^^ Response to the Document in Support of the Appeal, para. 37. ^ Response to the Document in Support of the Appeal, para. 4; see paras 41-46. ^^ Response to the Document in Support of the Appeal, para. 48. ^^ Decision on the Application for Leave to Appeal, para. 2. ^^

text: . ^^ Muthaura OA 3 Judgment, para. 45.

text: the present proceedings were initiated by the Prosecutor. In the Muthaura OA 3 Judgment, the Appeals Chamber held, in discussing the legal basis for the Pre-Trial Chamber to act, that "protecting the integrity of the proceedings - in particular their faimess and expedition in the specific context under consideration - is a matter that is necessarily within the jurisdiction of the Pre-Trial Chamber".^^ For the same reasons, the Appeals Chamber finds in the present case that

text: article 64

text: (2) of

text: the Statute

text: was the correct legal basis for the Trial Chamber to act upon the request of the Prosecutor to invalidate the appointment of counsel.

text: For the same reasons as those given in the Muthaura OA 3 Judgment^^ the Appeals Chamber determines that the Trial Chamber correctly drew upon the provisions of article 12 (1) (b) of the Code. The Appeals Chamber also finds that, although Mr Yillah is not the lead counsel of the Defence in this case, he is practising before the Court as counsel within the meaning of article 1 of the Code and he is, therefore, bound by its provisions.

text: The crucial issue in this appeal is, therefore, the interpretation of the words being "privy to confidential information" in article 12 (1) (b) of the Code, which has 71 been resolved by the Muthaura OA 3 Judgment, The Appeals Chamber adopts the reasons provided therein and finds that the Trial Chamber in the present case was correct to interpret the words "privy to confidential information" as meaning "being aware of' or being in "possession" of confidential information (there not being any material difference between those two phrases in the present context). 33. The Appeals Chamber notes that the arguments of the Prosecutor advocating for an "objective standard" are very similar to the arguments addressed by the Appeals 79 Chamber in the Muthaura OA 3 Judgment, The main additional argument raised by the Prosecutor in the present appeal relates to the purported existence of a general principle of law establishing a ban for former prosecutors to join the defence immediately after leaving the prosecution. Without intending to define in any detail what is required to establish a general principle of law, the Appeals Chamber notes

text: ^^ Muthaura OA 3 Judgment, para. 46. ^° See Muthaura OA 3 Judgment, paras 47-51. ^^ See Muthaura OA 3 Judgment, paras 52-56, 64. ^^ See Muthaura OA 3 Judgment, paras 58-63. ^^ Document in Support of the Appeal, para. 33. ^ that the practice in the five countries to which the Prosecutor has referred is not consistent. Notably, as the Prosecutor accepts,''"^ the practice in one of them (the United Kingdom) appears to be opposite to the one contended for by the Prosecutor.

text: To the extent that the Trial Chamber required that the confidential information must have been of more than de minimis character, the Appeals Chamber reiterates its holdings in the Muthaura O A 3 Judgment that article 12 (1) (b) of the Code does not contain such a requirement.^^ Nevertheless, the Appeals Chamber recalls that in the present case the Trial Chamber unequivocally concluded that it had not been established that Mr Yillah had knowledge of any confidential information - be it de minimis or otherwise. Accordingly, the fact that the Trial Chamber required the information to be more than de minimis was irrelevant for the Trial Chamber's rejection of the Prosecutor's request.

text: m. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence). Given that the Appeals Chamber has determined that the Trial Chamber did not err when requiring that Mr Yillah must have become aware of confidential information relating to the case in order to be impeded from joining the Defence, the Appeals Chamber confirms the Impugned Decision and dismisses the appeal.

text: Done in both English and French, the English version being authoritative.

text: ^ ^ ^ 3 Judge Akua Kuenyehia Presiding Judge Dated this 11th day of November 2011 At The Hague, The Netherlands

text: ^"^ Document in Support of the Appeal, para. 32. ^^ Muthaura OA 3 Judgment, paras 65-70. ^^ See Impugned Decision, paras 21-22.

title: The Prosecutor v. Abdallah Banda Abakaer Nourain


identifier: ICC-02/05-03/09 (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled "Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation")

text: the Statute

text: the Statute, article 55

text: the Statute, article 82

text: Cour Pénale I n t e r n a t i o n a l e

text: I n t e r n a t i o n a l C r i m i n a l C o u r t

text: Original: English No. ICC-02/05-03/09 OA 2 Date: 17 February 2012

text: THE APPEALS CHAMBER

text: Before: Judge Daniel David Ntanda Nsereko, Presiding Judge Judge Sang-Hyun Song Judge Akua Kuenyehia Judge Erkki Kourula Judge Anita USacka

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ABDALLAH BANDA ABAKAER NOURAIN and SALEH MOHAMMED JERBO JAMUS

text: Public document Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled ^^Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation"

text: No: ICC-02/05.03/09 OA 2 1/17

text: Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Ms Fatou Bensouda, Deputy Prosecutor Mr Karim A. A. Khan Mr Fabricio Guariglia Mr Nicholas Koumjian

text: REGISTRY Registrar Ms Silvana Arbia

text: No: ICC-02/05-03/09 OA 2 2/17

text: The Appeals Chamber of the International Criminal Court, In the appeal of the Prosecutor against the decision of Trial Chamber IV entitled "Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation" of 12 September 2011 (ICC-02/05-03/09- 214),

text: After deliberation,

text: Unanimously, Delivers the following

text: JUDGMENT

text: The "Reasons for the Order on translation of witness statements (ICC-02/05- 03/09-199) and additional instructions on translation" of 12 September 2011 (ICC-02/05-03/09-214) is reversed to the extent that it ordered the Prosecutor, pursuant to rules 76 and 111 of the Rules of Procedure and Evidence, to create and to disclose organised and signed witness statements in narrative form of witnesses on whom he intends to rely for the purposes of trial and whose interviews were recorded only in audio- or video-form in accordance with rule 112 of the Rules of Procedure and Evidence.

text: REASONS

text: I. KEY FINDINGS

text: When the Prosecutor records the questioning ofa person in accordance with rule 112 of the Rules of Procedure and Evidence, he or she is not required to create an additional record of the person's statements under rule 111 of the Rules of Procedure and Evidence. 2. The audio- or video-record of the questioning of a person in accordance with rule 112 of the Rules of Procedure and Evidence and the transcript thereof are records of statements that are potentially subject to disclosure pursuant to rule 76 of the Rules

text: No: ICC-02/05-03/09 OA 2 3/17 of Procedure and Evidence where the Prosecutor intends to call the person to testify as a witness.

text: II. BACKGROUND AND PROCEDURAL HISTORY

text: A. Background to the appeal

text: The present appeal arises against the background of difficulties facing the Prosecutor in translating into Zaghawa statements of witnesses whom he intends to call to testify at trial for purposes of their disclosure in a language the accused fully understand and speak pursuant to rule 76 of the Rules of Procedure and Evidence.^ These statements included statements of which a formal record had been made pursuant to rule 111 of the Rules of Procedure and Evidence and, in the case of two witnesses for whom no such formal records had been made, audio-visual recordings of interviews and transcripts thereof made pursuant to rule 112 of the Rules of Procedure and Evidence.

text: Following their inability to agree on a common proposal to address the underlying difficulties, the Prosecutor and Messrs Abdallah Banda Abakaer Nourain (hereinafter: "Mr Banda") and Saleh Mohammed Jerbo Jamus (hereinafter: "Mr Jerbo") submitted to Trial Chamber IV (hereinafter: "Trial Chamber") separate proposals with respect to the preparation, translation and disclosure of witness statements.^ With respect to the two witnesses whose interviews had been audio- or video-recorded and transcribed and any witnesses yet to be interviewed or to be reinterviewed, counsel for Messrs Banda and Jerbo requested that "the Prosecut[or] produce fair, accurate and well-organised statements of these witnesses based on all

text: ^ As noted by the Prosecutor before the Trial Chamber, translating into Zaghawa is made complicated by the facts that Zaghawa is not a written language and its vocabulary is limited to no more than 5,000 words. See Trial Chamber IV, "Reasons for the Order on translation of witness statements (ICC-02/05- 03/09-199) and additional instructions on translation", 12 September 2012, ICC-02/05-03/09-214, para. 4 (quoting "Prosecution's Response to the Trial Chamber's Request for Written Submissions on Issues to be Addressed During the Status Conference on 19 April 2011", 14 April 2011, ICC-02/05-03/09- 131, para. 10). In addition, the Prosecutor's difficulty in identifying Zaghawa translators further limits the possible pace of translations. See "Prosecution's update to the Trial Chamber on language related issues and further information on re-interviews of two prosecution witnesses", 1 September 2011, ICC- 02/05-03/09-205. ^ "Prosecution's Proposals on the Issue of Translation" (hereinafter: "Prosecutor's Proposals on Translation"), 8 August 2011, ICC-02/05-03/09-192; "Defence Submission on the Translation of Incriminatory Evidence" (hereinafter: "Defence Submission on Translation"), 8 August 2011, ICC- 02/05-03/09-195. No: ICC-02/05-03/09 OA 2 4/17 prior interviews, statements and transcripts of the interviews held".^ These statements would be reviewed and signed by the witnesses and translated into Zaghawa for disclosure to Mr Banda and Mr Jerbo."^ Counsel for Messrs Banda and Jerbo further proposed that the Prosecutor's examination of witnesses at trial would be limited to information contained in these new statements.^ The Prosecutor proposed instead that he would prepare summaries of the transcripts which could be reviewed by counsel for Messrs Banda and Jerbo for accuracy, but which would not be reviewed and signed by the witnesses.^ The Prosecutor did not agree that his examination of witnesses would be limited only to information contained in these summaries.^

text: On 16 August 2011, the Trial Chamber issued the "Order on translation of witness statements" in which it stated that it "has decided to instruct the [P]rosecut[or] immediately to start translating into Zaghawa the witness statements which [he] intends to rely upon for the purposes of the trial" and that the written reasons for this decision would be "issued in the near future".^

text: On 1 September 2011, the Prosecutor updated the Trial Chamber on his progress in and estimated completion of the translation of witness statements and the conduct of further interviews.^ With respect to interviews which had been or would be audio-visually recorded and the recordings thereof transcribed, the Prosecutor stated that he assumed "that only summarised versions of the transcripts would need to be translated". ^^ He indicated that he would therefore prepare and translate summaries of the transcripts rather than translating the transcripts themselves.^ ^

text: On 7 September 2011, Messrs Banda and Jerbo objected to the Prosecutor's intention to provide Zaghawa translations only of summaries of transcribed

text: ^ Defence Submission on Translation, para. 23. ^ Defence Submission on Translation, para. 23. ^ Defence Submission on Translation, para. 25. ^ Prosecutor's Proposals on Translation, para. 10. ^ Defence Submission on Translation, para. 15. See also e-mail from Office of the Prosecutor staff to a member of Mr Banda and Mr Jerbo's defence teams, 4 August 2011, reproduced as ICC-01/05-03/09- 195-AnxC. ^ ICC-02/05-03/09-199, p. 3. ^ "Prosecution's update to the Trial Chamber on language related issues and further information on reinterviews of two Prosecution witnesses", ICC-02/05-03/09-205 (hereinafter: "Prosecutor's Update of 1 September"). ^° Prosecutor's Update of 1 September, para. 5, fn. 5. ^^ Prosecutor's Update of 1 September, paras 5, 8-9. No: ICC-02/05-03/09 OA 2 5/17 interviews. ^^ They argued that the Prosecutor must provide Zaghawa translations of signed witness statements and not summaries thereof and that the Prosecutor's intention to translate only summaries of witness statements contravened the Trial Chamber's order of 16 August 2011.^^

text: B. Impugned Decision

text: On 12 September 2011, the Trial Chamber issued the "Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation"^"^ (hereinafter: "Impugned Decision"). The Trial Chamber found that rule 76 of the Rules of Procedure and Evidence requires the Prosecutor to disclose to Messrs Banda and Jerbo copies of the statements of witnesses he intends to call to testify, but that this rule does not specify what format the statements must have.^^ The Trial Chamber found that the format of these statements is defined in rule 111 of the Rules of Procedure and Evidence.^^ Under this rule, a record must be made of formal statements by any person questioned in connection with an investigation or with proceedings and must be signed by that person (or the lack of signature must be explained therein). The Trial Chamber cited a decision of Trial Chamber II which had found that rule 111 of the Rules of Procedure and Evidence applied even with respect to witnesses whose statements were audio-visually recorded and transcribed pursuant to the procedure set out in rule 112 of the Rules of Procedure and Evidence. ^^ The Trial Chamber therefore concluded that "according to [r]ule 76 of the Rules [of Procedure and Evidence] read in conjunction with [r]ule 111 of the Rules [of Procedure and Evidence], the [P]rosecut[or] is required to provide signed witness statements for all the witnesses [he] intends to rely on during the trial, including those for witnesses DAR-OTP-WWWW-0442 and DAR-OTP-WWWW-0307" (the two witnesses whose interviews were only audio- or video-recorded and transcribed), and

text: ^^ "Defence Response to the Prosecution's update to the Trial Chamber on language related issues and ftirther information on re-interviews of two Prosecution witnesses", ICC-02/05-03/09-210 (hereinafter: "Defence Response to the Prosecutor's Update of 1 September"). ^^ Defence Response to the Prosecutor's Update of 1 September, paras 5-6. ^^ ICC-02/05-03/09-214. '^ Impugned Decision, para. 19. ^^ Impugned Decision, para. 19. ^^ Impugned Decision, para. 20 (citing Trial Chamber II, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, "Decision on the Prosecution request for the addition of witness P-219 to the Prosecution List of Incriminating Witnesses and the disclosure of related incriminating material to the Defence", 23 October 2009, ICC-01/04-01/07-1553, para. 35). No: ICC-02/05-03/09 OA 2 6/17 it ordered the Prosecutor to disclose such statements to Mr Banda and Mr Jerbo. *^ With respect to the form that such signed witness statements should take, the Trial Chamber found that "disclosing organized and comprehensive witness statements will be useful to the defence" and therefore "grant[ed] the defence application in the present case to receive comprehensive and well-organised witness statements in narrative form based on all the available material relating to these witnesses". ^^

text: In the Impugned Decision, the Trial Chamber also addressed separately issues concerning the translation of witness statements and of the decision on the confirmation of charges.^^ These issues are not before the Appeals Chamber in the present appeal.

text: C. Proceedings before the Appeals Chamber

text: On 14 November 2011, following the granting of leave by the Trial Chamber to appeal the Impugned Decision,^^ the Prosecutor filed the "Prosecution's Document in Support of Appeal against Trial Chamber IV's 'Decision on the Prosecution's Application for Leave to Appeal the "Reasons for the Order on the translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation'""^^ (hereinafter: "Document in Support of the Appeal").

text: On 25 November 2011, Messrs Banda and Jerbo filed the "Defence Response to the Prosecution's Document in Support of Appeal against Trial Chamber IV's 'Decision on the Prosecution's Application for Leave to Appeal the "Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation'""^^ (hereinafter: "Response to the Document in Support of the Appeal").

text: *^ Impugned Decision, paras 21, 37. ^^ Impugned Decision, para. 23. ^° Impugned Decision, paras 25-36. ^^ "Decision on the Prosecution's Application for Leave to Appeal the 'Reasons for the Order on translation of witness statements (ICC-02/0503/09-199) and additional instructions on translation'", 1 November 2011, ICC-02/05-03/09-243. ^^ ICC-02/05-03/09-253 (OA 2). ^^ ICC-02/05-03/09-263 (OA 2). No: ICC-02/05-03/09 OA 2 7/17 m. ARGUMENTS OF THE PARTIES

text: A. Arguments of the Prosecutor

text: The Prosecutor argues that, in directing him to prepare well-organised written statements for all witnesses, the Trial Chamber imposed a duty which is not found in

text: the Statute

text: or the Rules of Procedure and Evidence.^"^ He argues that rule 76 of the Rules of Procedure and Evidence does not impose a particular form for witness statements and that such statements may also take the form of taped and transcribed interviews.^^ With respect to rule 111 of the Rules of Procedure and Evidence, the Prosecutor argues that rule 112 of the Rules of Procedure and Evidence is lex specialis, and that the two rules should be seen as creating alternative rather than cumulative obligations.^^ In his view, this interpretation is consistent with the drafting history of the Rules of Procedure and Evidence^^ and is supported by the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (hereinafter: "ICTY").^^

text: According to the Prosecutor, aside from the decision of Trial Chamber II cited by the Trial Chamber, the jurisprudence of other Chambers does not support the Trial Chamber's interpretation of the relationship between the two rules in question.^^

text: The Prosecutor further argues that "[t]he rule imposed by the [Trial] Chamber does not provide more reliable statements and also unduly burdens the Prosecution".^^ He avers that transcripts prepared under rule 112 of the Rules of Procedure and Evidence are more reliably accurate^ ^ and that producing an additional summary of witnesses' statements risks creating delays^^ or undermining unfairly and unnecessarily the credibility of witnesses.^^ Finally, he argues that summaries of

text: ^^ Document in Support of the Appeal, para. 8. ^^ Document in Support of the Appeal, paras 9-14. ^^ Document in Support of the Appeal, paras 15-21. ^' Document in Support of the Appeal, paras 22-26. ^^ Document in Support of the Appeal, para. 19. ^^ Document in Support of the Appeal, paras 28-32. ^° Document in Support of the Appeal, p. 15. ^^ Document in Support of the Appeal, para. 33. ^^ Document in Support of the Appeal, para. 36. ^^ Document in Support of the Appeal, para. 37. No: ICC-02/05-03/09 OA 2 8/17 witness statements prepared by the Prosecutor would suffice "to enable the Defence to have an organized version of the witness's version of events"."^"^

text: B. Arguments of Messrs Banda and Jerbo

text: Messrs Banda and Jerbo argue that, by focusing on rules 76, 111 and 112 of the Rules of Procedure and Evidence, the Prosecutor takes a "selective approach in [his] interpretation of the Impugned Decision".^^ In their view, the Impugned Decision contained within it two separate decisions.^^ First, the Trial Chamber made a "legal determination that [r]ule 111 applies to all witnesses".^^ Second, the Trial Chamber, in exercising its discretion to organise and conduct proceedings, ordered that the statements of witnesses on whom the Prosecutor intends to rely at trial should be organised, signed and in narrative form.^^ They contend that the Document in Support of the Appeal focuses on the first question which was only a tangential aspect of the Impugned Decision."^^ In their view, the decision that the statements produced by the Prosecutor should be comprehensive, well-organised and in narrative form was "expressly based on [a]rticles 64(3)(c) and 67(1) [of

text: the Statute

text: ] and [r]ule 84 [of the Rules of Procedure and Evidence]" which give the Trial Chamber "the discretion to manage the procedures for trial"."^^ They argue that the Impugned Decision was therefore within the Trial Chamber's discretion."^^

text: With respect to the legal determination that rule 111 applies to all interviews of witnesses, Messrs Banda and Jerbo argue that the Trial Chamber was correct. They contend that rule 111 applies to all witnesses and that rule 112 applies cumulatively to certain particular witnesses."^^ This interpretation is, in their view, supported by the text of rules 111 and 112,"*^ their respective purposes"^"^ and their drafting history."^^ The fact that rule 76 does not specify whether statements must be written is

text: ^"^ Document in Support of the Appeal, para. 35. ^^ Response to the Document in Support of the Appeal, para. 2. 36 Response to the Document n Support of the Appeal, para. 8. ^^ Response to the Document n Support of the Appeal, para. 8. ^^ Response to the Document n Support of the Appeal, para. 8. ^^ Response to the Document n Support of the Appeal, para. 4. ^^ Response to the Document n Support of the Appeal, para. 21. "^^ Response to the Document n Support of the Appeal, paras 21-23. ^^ Response to the Document n Support of the Appeal, paras 9-18. ^^ Response to the Document n Support of the Appeal, paras 10-13, 15, 18. ^ Response to the Document n Support of the Appeal, paras 14,16, 18. ^^ Response to the Document n Support of the Appeal, para. 12. No: ICC-02/05-03/09 OA 2 9/17 immaterial to the issue on appeal as that provision deals only with disclosure of statements whereas rules 111 and 112 govern the record and recording of 46 questioning. 17. Messrs Banda and Jerbo find the Rules of Procedure and Evidence sufficiently clear to render recourse to the jurisprudence of the ICTY improper."^^ In any event, they point out that the ICTY Rules of Procedure and Evidence lack any counterpart to rule 111, making the jurisprudence of the ICTY irrelevant to the present appeal."^^

text: To the extent that the Prosecutor argues that other Chambers have not followed the Impugned Decision, Messrs Banda and Jerbo note that the only reference by the Prosecutor to a Trial Chamber is unsubstantiated and argue that it appears that the same issue was never raised before that Chamber."^^ The remaining references are to Pre-Trial Chambers and are, in their view, misplaced given the differences between the pre-trial and trial stages of proceedings.^^ Finally, they argue that the concerns raised by the Prosecutor with respect to the impact of the Impugned Decision on the fairness of proceedings and its burden on the Office of the Prosecutor do not withstand scrutiny.^^

text: IV. MERITS

text: A. Standard of review

text: The Prosecutor avers that the issue before the Appeals Chamber is a "question of law".^^ He states that the Appeals Chamber has not articulated a standard of review for such issues, and he "submits that legal issues should be subject to plenary, de novo review".^^ Messrs Banda and Jerbo argue that the Impugned Decision contains both a legal issue and a discretionary decision by the Trial Chamber and that the Appeals Chamber interferes with discretionary decisions only in limited circumstances.^"^

text: ^^ Response to the Document in Support of the Appeal, para. 9. "^^ Response to the Document in Support of the Appeal, para. 17. ^^ Response to the Document in Support of the Appeal, para. 17. "^^ Response to the Document in Support of the Appeal, para. 25. ^° Response to the Document in Support of the Appeal, para. 26. ^^ Response to the Document in Support of the Appeal, paras 27-30. ^^ Document in Support of the Appeal, para. 7. ^^ Document in Support of the Appeal, para. 7. ^^ Response to the Document in Support of the Appeal, para. 8. No: ICC-02/05-03/09 OA 2 10/17

text: The Appeals Chamber has repeatedly held that its review is corrective in nature and not de novo.^^ On questions of law, the Appeals Chamber will not defer to the Trial Chamber's interpretation of the law. Rather, it will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals Chamber will only intervene if the error materially affected the Impugned Decision.

text: B. The Issue on Appeal

text: As pointed out by Messrs Banda and Jerbo, the relevant part of the Impugned Decision contained two distinct and cumulative conclusions. First, the Trial Chamber found that rules 76 and 111 of the Rules of Procedure and Evidence require the Prosecutor to create and to disclose signed witness statements of all witnesses on whom he intends to rely at trial, including those witnesses whose questioning was audio- or video-recorded and transcribed pursuant to rule 112 of the Rules of Procedure and Evidence.^^ Second, the Trial Chamber found that it would be "useful to the defence" if these statements were "comprehensive", "well-organised" and "in narrative form".^^ The ground of appeal put forward by the Prosecutor in the Document in Support of Appeal is that "the Trial Chamber erred in law when it imposed a duty on the Prosecut[or] to take well-organi[s]ed written statements for all witnesses".^^ However, it is actually only the first of the Trial Chamber's conclusions which is challenged by the Prosecutor. To the extent that he argues the Trial Chamber erred by requiring him to "take well-organi[s]ed statements", the Prosecutor is in fact challenging the Trial Chamber's finding that he is required as a matter of law to reorganise the transcripts of previously-recorded interviews into statements complying with the requirements of rule 111 of the Rules of Procedure and Evidence. He does not address the Trial Chamber's further conclusion that it would be useful if these statements took a certain form. In addition, the Prosecutor does not take issue with

text: ^^ See, e.g.. Prosecutor v. Callixte Mbarushimana, "Judgment on the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of 19 May 2011 entitled 'Decision on the "Defence Request for Interim Release'"", 14 July 2011,

text: (OA), para. 15; Prosecutor v. Jean-Pierre Bemba Gombo, "Judgment on the appeal of the Prosecutor against Pre- Trial Chamber 11's 'Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa'", 2 December 2009,

text: -Red (OA 2), para. 62. ^^ Impugned Decision, paras 20-21. ^^ Impugned Decision, paras 22-23. ^^ Document in Support of the Appeal, p. 5. No: ICC-02/05-03/09 OA 2 11/17 other parts of the Impugned Decision concerning translation of witness statements and of the decision on the confirmation of charges.^^ The only issue before the Appeals Chamber is whether, in the case of interviews audio- or video-recorded and transcribed pursuant to rule 112 of the Rules of Procedure and Evidence, the Prosecutor is required to create and to disclose an additional signed record of the statements of such witnesses under rule 111 of the Rules of Procedure.

text: C. Determination by the Appeals Chamber

text: The Appeals Chamber recalls that the core issue in the Impugned Decision rests on the Trial Chamber's conclusion that rule 111 of the Rules of Procedure and Evidence defines the format of statements subject to disclosure under rule 76. The Appeals Chamber considers this conclusion to be a fundamental error. These two rules are found in different sections of the Rules of Procedure and Evidence and regulate entirely different activities. Rule 76 falls under Section II (Disclosure) of Chapter 4 (Provisions relating to various stages of the proceedings) of the Rules of Procedure and Evidence. It pertains to the Prosecutor's obligations to disclose evidence or other material which he has already collected. Rule 111, on the other hand, falls under Section III (Collection of evidence) of Chapter 5 (Investigation and prosecution) of the Rules of Procedure and Evidence. It pertains to how the Prosecutor should go about collecting evidence during an investigation, at which stage the Prosecutor normally does not know whether or not he will call questioned persons to testify at trial.

text: In interpreting the relevant rules, a distinction must be made between the statement of an individual and the form in which that statement is recorded. Rule 76 requires the Prosecutor to disclose "copies of any prior statements". The Appeals Chamber agrees with the Prosecutor and Messrs Banda and Jerbo that the ordinary meaning of the term "statement" as used in rule 76 is broad and requires the Prosecutor to disclose any prior statements, irrespective of the form in which they are recorded.^^ Rule 111, meanwhile, requires that "[a] record shall be made of formal statements" and imposes certain requirements as to what other information should be included in the record. However, there might be statements that are otherwise

text: ^^ See Impugned Decision, paras 25-36. ^ Document in Support of the Appeal, paras 10-14; Response to the Document in Support of the Appeal, para. 9. No: ICC-02/05-03/09 OA 2 12/17 recorded or given which would also be subject to disclosure. In particular, the audioor video-record of the questioning of a person in accordance with rule 112 of the Rules of Procedure and Evidence and the transcript thereof are records of statements that are potentially subject to disclosure pursuant to rule 76 of the Rules of Procedure and Evidence where the Prosecutor intends to call the person to testify as a witness. By equating "statements" under rule 76 with only those records of statements prepared pursuant to rule 111, the Trial Chamber effectively, and erroneously, limited the Prosecutor's disclosure obligations, thereby potentially excluding from disclosure other records of statements such as audio- or video-records prepared pursuant to rule 112.

text: Nevertheless, the immediate question before the Appeals Chamber is not whether audio- or video-records of statements are subject to disclosure. Rather, the question is whether the Trial Chamber erred in finding that rule 111 required the Prosecutor to create an additional signed, written record of the statements of questioned persons when the statements had been audio- or video-recorded. Messrs Banda and Jerbo argue that, in addition to disclosing the audio- or video-records of witnesses' statements (and transcripts thereof), rule 111 on its own terms requires the Prosecutor additionally to create a signed written record of the witnesses' statements.

text: Messrs Banda and Jerbo advance three reasons why the text of rules 111 and 112 should be read to establish cumulative and not alternative obligations on the Prosecutor. First, they note that rule 111 (2) creates an obligation to note in the record when persons believed to have committed crimes within the jurisdiction of the Court are informed of their rights under

text: article 55

text: (2) of

text: the Statute

text: .^^ Given that rule 112 pertains specifically to questioning by the Prosecutor of persons to whom

text: article 55

text: (2) of

text: the Statute

text: applies (i.e., where there are grounds to believe the person has committed a crime within the jurisdiction of the Court), they argue that reference to such persons in rule 111 would be "entirely redundant" unless the two rules apply cumulatively.^^ Second, they note that rule 111 applies to "any person who is questioned" without providing for any exceptions therein, thereby suggesting that it

text: ^^ Response to the Document in Support of the Appeal, para. 11. ^^ Response to the Document in Support of the Appeal, para. 11. No: ICC-02/05-03/09 OA 2 13/17 - \ > ^ applies even when interviews are audio- or video-recorded pursuant to rule 112.^^ Third, they argue that rule 112 (1) (a) refers to noting certain information "in the record" and that this should be understood as referring to the written record created pursuant to rule 111.^"^

text: The Appeals Chamber is not persuaded by Messrs Banda and Jerbo's arguments. For the reasons which follow, the Appeals Chamber considers that an additional signed and written record of a witness's statements prepared pursuant to rule 111 is not required when such statements are audio- or video-recorded prepared pursuant to rule 112. As reflected in their titles, rule 111 governs the record of questioning "in general" while rule 112 governs the recording of questioning "in particular cases". The Appeals Chamber is of the view that rule 111 establishes the general rule, but that rule 112 governs exceptions thereto and its application in particular cases.^^ Rule 112 serves to protect the rights of questioned persons by ensuring that, in the particular circumstance where there are grounds to believe a person committed a crime within the jurisdiction of the Court, the Prosecutor must create the best possible record of that person's statements, and it permits the Prosecutor to create such a record in other circumstances. The essential purpose of rules 111 and 112 is that a record must be made of the questioning of persons, and this purpose can be fulfilled through either a written record pursuant to rule 111 or an audio- or video-record pursuant to rule 112. The Appeals Chamber notes that rule 112, sub-rules 1 (a) and 2 provide that where questioning is not audio- or videorecorded as would normally be required, the procedure in rule 111 shall be followed. In the view of the Appeals Chamber, these provisions indicate that rules 111 and 112 set out two alternative procedures for the recording of questioning. Furthermore, the Appeals Chamber observes that rule 112 (4) provides for audio- or video-recording where this could assist in reducing any subsequent traumatization of victims of sexual or gender violence, children or persons with disabilities in providing their evidence. The Appeals Chamber considers that requiring such individuals to review and to sign an additional written record setting out the content of their statements might result in their re-traumatization and thus defeat the purpose of this sub-rule.

text: ^^ Response to the Document in Support of the Appeal, para. 12. ^ Response to the Document in Support of the Appeal, para. 13. ^^ See Document in Support of the Appeal, paras 15-21. No: ICC-02/05-03/09 OA 2 14/17

text: The Appeals Chamber considers that the proper interpretation of rules 111 and 112 becomes clear when these rules are interpreted not in isolation but rather in the context of the overall framework for investigations and judicial proceedings set out in the Rules of Procedure and Evidence and their purposes. As noted above, rule 76 requires the Prosecutor to disclose, prior to the trial, copies of statements of persons he or she intends to call to testify, irrespective of the form in which such statements are recorded. Disclosure serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence. A complete audio- or video-record of the questioning of a person will provide the fullest and most accurate account of the questioned person's statements. Any additional written record could, at most, only duplicate the statements contained in this audio- or video-record and would most likely contain less information. Given that the audio- or video-record would, in principle, be subject to disclosure, interpreting rule 111 to require the Prosecutor always to create an additional signed, written record of the statement would create an additional burden on the Prosecutor without necessarily bringing any concomitant benefit to the investigation or to the judicial proceedings.

text: Accordingly, the Appeals Chamber concludes that, with respect to persons questioned in accordance with rule 112, the Trial Chamber erred by: (1) effectively excluding from the scope of the Prosecutor's disclosure obligations under rule 76 the audio- or video-records of questioning and transcripts thereof and (2) requiring the Prosecutor, as a matter of law, to create written and signed records of the statements of witnesses in lieu of these audio- or video-records and transcripts. These legal errors formed the basis for and thereby materially affected the Trial Chamber's order to the Prosecutor to create and to disclose additional written records of the statements of these interviews. As the Trial Chamber erred in finding that the Prosecutor was obliged to create such additional records as a matter of law pursuant to rules 76 and 111, the Appeals Chamber need not consider the Trial Chamber's further finding that it would be useful to the defence if such records were well-organized, comprehensive and in narrative form.

text: The Appeals Chamber is cognisant that the Impugned Decision arose against the background of the Trial Chamber's efforts to address the practical difficulties facing

text: No: ICC-02/05-03/09 OA 2 15/17 the Prosecutor in translating into Zaghawa a significant volume of statements of witnesses on whom he intends to rely at trial. Messrs Banda and Jerbo argue that, in these circumstances, the Impugned Decision "was necessary to preserve the expeditious conduct of the trial".^^ The Appeals Chamber is aware that, in certain circumstances, making available the statements of witnesses in a language the accused fiilly understand and speak as required by rule 76 (3) of the Rules of Procedure and Evidence may create intractable difficulties. The Appeals Chamber generally agrees with Messrs Banda and Jerbo that the resolution of such practical difficulties is, in principle, a matter falling within the Trial Chamber's "discretionary trial management powers".^^ However, as set out above, the Impugned Decision fundamentally was not based on the Trial Chamber's discretionary trial management powers. Rather, it was premised on an erroneous interpretation of the law. Accordingly, the Impugned Decision must be reversed. In the event that making available the transcripts of statements in Zaghawa does give rise to intractable difficulties, then it is wholly within the powers of the Trial Chamber in consultation with the parties to devise practical solutions to these difficulties, ensuring expeditious proceedings while guaranteeing the rights of the accused. However, it would be inappropriate for the Appeals Chamber to pronounce itself on what solutions may be appropriate in any hypothetical case.

text: V. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence). In the present case it is appropriate to reverse the Impugned Decision to the extent that it ordered the Prosecutor, pursuant to rules 76 and 111 of the Rules of Procedure and Evidence, to create and to disclose organised and signed witness statements in narrative form of witnesses on whom he intends to rely for the purposes of trial and whose interviews were recorded only in audio- or video-form in accordance with rule 112 of the Rules of Procedure and Evidence.

text: ^^ Response to the Document in Support of the Appeal, para. 22. ^^ See Response to the Document in Support of the Appeal, para. 23. No: ICC-02/05-03/09 OA 2 16/17

text: •*T>/O^AA<-*^û Judge Daniel David Ntanda Nsereko Presiding Judge Dated this 17th day of February 2012 At The Hague, The Netherlands

text: No: ICC-02/05-03/09 OA 2 17/17


identifier: ICC-02/05-03/09 (Summons to Appear for Abdallah Banda Abakaer Nourain)

text: the Statute

text: the Statute, article 19

text: the Statute, article 58

text: the Statute, article 8

text: Pénale

text: I n t e r n a t i o n a l e I n t e r n a t i o n a l

text: c

text: C r i m i n a l C o u r t

text: Onginal. English No.: ICC-02/05-03/09 Date- 27 August 2009

text: PRE-TRIAL CHAMBER I

text: Before: Judge Sylvia Steiner, Presiding Judge Judge Sanji Mmasenono Monageng Judge Cuno Tarfusser

text: SITUATION IN DARFUR, SUDAN IN THE CASE OF THE PROSECUTOR V, ABDALLAH BANDA ABAKAER NOURAIN AND SALEH MOHAMMED JERBO JAMUS Confidential SUMMONS TO APPEAR FOR ABDALLAH BANDA ABAKAER NOURAIN

text: August 2009

text: Legal Representatives of Victims Legal Representatives of Applicants

text: Unrepresented Victims Unrepresented Applicants for Participation/Reparation

text: The Office of Public Counsel for The Office of Public Counsel for the Victims Defence

text: States Representatives Amicus Curiae

text: REGISTRY Registrar Defence Support Section Ms Silvana Arbia Victims and Witnesses Unit Detention Section

text: Victims Participation and Reparations Other Section

text: No ICC-02/05-03/09 >/9 PURL: https://www.legal-tools.org/doc/e1785c/27 August 2009

text: PRE-TRIAL CHAMBER I of the International Cnminal Court (the "Chamber" and the "Court", respechvely),

text: HAVING EXAMINED the "Prosecutor's Apphcahon under Arhcle 58",' filed by the Prosecutor on 20 November 2008 m the record of the Situahon in Darfur, Sudan, whereby it requested the Chamber to issue a warrant of arrest or, alternahvely, a summons to appear for Abdallah Banda Abakaer Nourain ("Banda") and others;

text: HAVING EXAMINED the "Submission of mformahon on the Prosecuhon's Apphcahon Pursuant to Article 58 and request for summonses to appear",^ filed by the Prosecutor on 23 February 2009, whereby he requested the Chamber to issue a summons to appear for Banda and others,

text: HAVING EXAMINED all other supporhng material and informahon submitted by the Prosecutor,^

text: NOTING the "Report of the Prosecuhon Submitted pursuant to Request of the Chamber contained in the Confidential Annex to its decision convening a hearmg of 19 August", filed by the Prosecutor on 25 August 2009",^

text: ' ICC-02/05-163-Conf-Exp, ICC-02/05-163-Conf-Exp-Anxsl-5 38 '- ICC-02/05-194-Conf-Exp, ICC-02/05-194-Conf-Exp-Anxl ' ICC-02/05-165-Conf-Exp and ICC-02/05-165-Conf-Exp-Anxbl-8, ICC-02/05-172 and ICC- 02/05-172-Conf-Exp-AnxsA-B24, ICC-02/05-173 and ICC-02/05-173-Conf-Exp-AnxsB25-B26, ICC-02/05-203 and ICC-02/05-203-Conf-Exp-Anxl, ICC-ü2/05-21I-Conf-Exp and ICC-02/05- 211-Conf-Exp-Anxsl-2, ICC-02/05-212-Conf-hxp, ICC-02/ü5-2U-Cont-Exp and ICC-02/05-214- Conf-Exp-Anxl, ICC-02/05-216-Conf-Exp ' IOO-02/05-229 IOO-02/05-229-Anxs-A-B No. ICC-02/05-03/09 3/9 27 August 2009

text: NOTING the submissions of the Prosecutor m the ex parte hearing before the Chamber, held in closed session on 26 August 2009,^

text: NOTING the "Second Decision on the Prosecutor's Apphcahon under Arhcle 58"," in which the Chamber explains the reasons why it is satisfied that there are reasonable grounds to believe that Banda is criminally responsible under arhcle 25(3)(a) of

text: the Statute

text: of the Court (the "Statute") for war crimes and that the issuance of a summons to appear is sufficient to ensure his appearance before the Court under

text: article 58

text: (7) of

text: the Statute

text: of the Court;

text: CONSIDERING that, on the basis of the material provided by the Prosecutor m support of his Apphcahon and without prejudice to any subsequent determination that may be made under arhcle 19 of

text: the Statute

text: , the case against Banda falls within the junsdichon of the Court,

text: CONSIDERING that, on the basis of the matenal provided by the Prosecutor, there is no ostensible cause or self-evident factor impelling the Chamber to exercise its discretion under

text: article 19

text: (1) ot

text: the Statute

text: to determme the admissibility of the case against Banda at this stage,

text: CONSIDERING that there arc reasonable grounds to believe that at the time relevant to the charges alleged in the Prosecutor's Apphcahon, a protracted armed conflict not of an international character within the meaning of arhcle 8(2)(f) of

text: the Statute

text: existed in Darfur between the Government of Sudan and several organised armed groups, including the Jushcc and

text: ^ ICO-02/05-T-7-CONF-EXP-ENG ^ ICC-02/05-03/09-l-Conf No ICC-02/05-03/09 4/9 27 August 2009

text: Equality Movement ("JEM") and that Banda was aware of the factual circumstances establishing the existence ot the said armed conflict,

text: CONSIDERING that there are reasonable grounds to beheve that, in the context of, and in association with, the said armed conflict, on 29 September 2007 an attack was carried out against the African Union Mission m Sudan ("AMIS") personnel, installahons, matenal, units and vehicles that were stahoned at the Mihtary Group Site (MGS) Haskanita (Sector 8) ("MGS Haskanita"), Umm Kadada Locahty, North Darfur, Sudan,

text: CONSIDERING that there are reasonable grounds to believe that the attack on the MGS Haskanita was carried out by splinter forces of JEM, under the command of Banda and Bahar Idriss Abu Garda ("Abu Garda"), jointly with the troops belonging to SLA-Unity, which had broken away from the SLMA/A, under the command of Saleh Mohammed Jerbo Jamus ("Jerbo"),

text: CONSIDERING that, on the basis of the matenal provided by the Prosecutor, there are reasonable grounds to believe that during and after the above-menhoned attack, the attackers, (i) killed twelve AMIS soldiers, (ii) severely wounded eight AMIS soldiers, (in) destroyed communication mstallations, dormitories, vehicles and other materials belonging to AMIS, and (iv) appropriated property belongmg to AMIS,

text: CONSIDERING that there are reasonable grounds to believe that (i) the vichms of the attack were enhtled to the protechon afforded to avihans not taking active part in the hoshlities, (ii) Banda, as well as Abu Garda and Jerbo, was aware of this circumstance and, therefore, (in) the war crime of violence

text: No. ICC-02/05-03/09 5/9 27 August 2009 to life in the form of murder, within the meanmg of arhcle 8(2)(c)(i) of

text: the Statute

text: was committed or attempted during the attack,

text: CONSIDERING that there are reasonable grounds to believe that (i) the object of the attack can be considered personnel, installations, material, unit or vehicles involved in a peacekeeping mission "in accordance with the Charter of the United Nahons" within the meaning of

text: article 8

text: (2)(e)(ui) of

text: the Statute

text: , (il) as not achvely parhcipahng m the hoshhhes, the AMIS troops - as well as the installahons, material, units and vehicles involved in the AMIS mission were enhtled to the protechon given to civilians or civilian objects under the internahonal law^ of armed conflict withm the meaning of

text: article 8

text: (2)(e)(iii) of

text: the Statute

text: , (iii) Banda, Abu Garda and Jerbo were aware of the protection to which AMIS personnel, installations, material, unit and vehicles were enhtled, (iv) therefore, the war crime of intentionally directing attacks agamst personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of arhcle 8(2)(c)(iii) of

text: the Statute

text: was committed;

text: CONSIDERING that there are reasonable grounds to believe that after the attack the attackers appropriated numerous items belonging to AMIS, with the specific intent to deprive the owner of such items and to appropriate them for private or personal use, and, therefore, that the war crime of pillaging withm the meaning of arhcle 8(2)(e)(v) of

text: the Statute

text: was committed,

text: CONSIDERING that there are reasonable grounds to believe that (i) there was a common plan to attack the MSG Haskanita between Banda, Abu Garda and Jerbo; and (u) the common plan included the commission of the abovemenhoned war crimes.

text: No ICC-02/05-03/09 6/9 27 August 2009

text: CONSIDERING that there are reasonable grounds to believe that the contnbutum of Banda - who was the military commander of JEM by May 2006 and who, on 4 October 2007, together with Abu Garda, declared the tormahon of a new armed fachon called JEM Collechve Leadership ("JEM- CL") - was esscnhal insofar as there are reasonable grounds to believe that he participated m the design of the common plan and was in command of the splmter forces of JEM during the attack to MSG Haskanita,

text: CONSIDERING that, on the basis of the matenal provided by the Prosecutor in support of his Apphcahon, there are reasonable grounds to believe that Banda is criminally respcmsible as a co-perpetrator or as an indirect co-perpetrator under arhcle 25(3)(a) of

text: the Statute

text: BEING SATISFIED that, for the above reasons, there are reasonable grounds to believe that Banda is criminally responsible under arhcle 25(3)(a) of the Stahite, for I the w^ar crime of violence to life, m the form of murder, w^hether committed or attempted, within the meaning of arhcle 8(2)(c)(i) of

text: the Statute

text: , 11 the war crime of intenhonally direchng attackb against personnel, installations, materials, units and vehicles involved m a peacekeepmg mission, within the meaning of arhcle 8(2)(e)(iii) of

text: the Statute

text: , 111 the war crime ot pillaging, within the meanmg of arhcle 8(2)(e)(v) of

text: the Statute

text: CONSIDERING that (i) the issuance of a warrant of arrest does not appear necessary for the purposes of article 58(l)(b) of the Stahite, and (ii)

text: No. ICC-02/05-03/09 7/9 27 August 2009 there are reasonable grounds to believe that a summons to appear for Banda IS sutticient to ensure his appearance betöre the Court weithin the meaning of arhcle 5S(7) of

text: the Statute

text: , without prejudice to the Chamber's power to review^ its determination under

text: articles 58

text: (1) and

text: (7) of

text: the Statute

text: , respechvely,

text: FOR THESE REASONS,

text: ORDERS

text: ABDALLAH BANDA ABAKAER NOURAIN, a male, member of the Zaghawa tribe of Sudan, born in or around 1963 in VVai, Dar Kobe, North Darfur, current Commander-in-Chief of JEM Collective-Leadership, one of the components of the United Resistance Front, TO APPEAR BEFORE THE COURT on Tuesday, 17 November 2009 at 10.00 hours,

text: ORDERS

text: ABDALLAH BANDA ABAKAER NOURAIN, without prejudice to further decisions of the Chamber in this respect* (i) to refrain from discussing issues related to either the charges w^hich form the basis of the present summons or the evidence and informahon presented by the Prosecutor and considered by the Chamber,

text: No ICC-02/05-03/09 8/9 27 August 2009

text: Done in both English and French, the English version being authontahvc

text: -Judge-Sylvia Steiner Presiding Judge

text: Judge Sanji Mmasenono Moh^geng Judge Cuno Tarfusser

text: Dated this Thursday, 27 August 2009 At The Hague, the Netherlands

text: No ICC-02/05-03/09 9/9 27 August 2009