court: icc

doctype: arrest-warrant

identifier: ICC-01/04-01/06 (Élection du juge président de la Chambre préliminaire I)

caseName: The Prosecutor v. Thomas Lubanga Dyilo

chamber: Pre-Trial Chamber I

decisionType: arrest-warrant

publisher: International Criminal Court

text: Cour

type: stycke

text: Pénale 16 septembre 2004

text: Internationale

text: International Criminal

text: Original : français

text: Court

text: LA CHAMBRE PRELIMINAIRE I

type: rubrik

text: Composée comme suit : Mme la juge Akua Kuenyehia M. le juge Claude Jorda Mme la juge Sylvia Steiner

text: M. Bruno Cathala, Greffier

text: SITUATION EN RÉPUBLIQUE DÉMOCRATIQUE DU CONGO

text: Document public ÉLECTION DU JUGE PRÉSIDENT DE LA CHAMBRE PRÉLIMINAIRE I

text: Le Bureau du Procureur M. Luis Moreno Ocampo, Procureur

text: ICC-01/04 16 septembre 2004

text: LES JUGES DE LA CHAMBRE PRÉLIMINAIRE I de la Cour pénale internationale (« la Cour »),

text: VU la Décision portant constitution des chambres préliminaires, rendue par la Présidence le 23 juin 2004,

text: VU la Décision relative à l'assignation de la situation en République démocratique du Congo à la Chambre préliminaire I, rendue par la Présidence le 5 juillet 2004,

text: VU la disposition 2 de la norme 13 du Règlement de la Cour selon laquelle les juges de chaque chambre préliminaire élisent en leur sein un juge président,

text: VU l'élection, lors de la réunion des juges de la Chambre préliminaire I qui s'est tenue le 9 juillet 2004, du juge Claude Jorda en tant que président de la Chambre préliminaire I,

text: DÉCLARENT, PAR LA PRÉSENTE, que le juge Claude Jorda est le juge président de la Chambre préliminaire I.

text: ICC-01/04 2 16 septembre 2004

text: //U

text: M. le juge Claude Jorda juge président

text: Mme le juge Akua Kuenyehia Mme le \uge Sylvia Steiner

text: Fait le 16 septembre 2004 À La Haye (Pays-Bas)

text: Sceau de la Cour

text: Cour

text: Pénale

text: Internationale

text: International Criminal

text: Court

text: ICC-01/04 16 septembre 2004

title: The Prosecutor v. Thomas Lubanga Dyilo

type: avgorande


doctype: appeal-interlocutory

identifier: ICC-01/04-01/06 (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008)

chamber: Appeals Chamber

decisionType: appeal-interlocutory

title: Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008

text: Rome Statute

text: the Statute, article 15

text: the Statute, article 19

text: the Statute, article 21

text: the Statute, article 5

text: the Statute, article 53

text: the Statute, article 54

text: the Statute, article 55

text: the Statute, article 58

text: the Statute, article 61

text: the Statute, article 64

text: the Statute, article 65

text: the Statute, article 66

text: the Statute, article 67

text: the Statute, article 68

text: the Statute, article 69

text: the Statute, article 76

text: the Statute, article 91

text: Vienna Convention on the Law of Treaties

text: Vienna Convention on the Law of Treaties, article 3

text: Vienna Convention on the Law of Treaties, article 31

text: THE APPEALS CHAMBER

text: Before: Judge Navanethem Pillay, Presiding Judge Judge Philippe Kirsch Judge Georghios M. Pikis Judge Sang-Hyun Song Judge Erkki Kourula

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO THE PROSECUTOR v. THOMAS LUBANGA DYILO

text: Public document Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008

text: No.: ICC-01/04-01/06 OA 9 OA 10 1/44

text: Decision/Order/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 Mr Luis Moreno-Ocampo, Prosecutor Ms Catherine Mabille Ms Fatou Bensouda, Deputy Prosecutor Mr Jean-Marie Biju-Duval

text: Legal Representatives of Victims Mr Luc Walleyn Mr Franck Mulenda

text: REGISTRY Registrar Ms Silvana Arbia

text: No.: ICC-01/04-01/06 OA 9 OA 10 2/44

text: The Appeals Chamber of the International Criminal Court, In the appeals of the Prosecutor and the Defence against the decision of Trial Chamber I entitled "Decision on Victims' Participation" of 18 January 2008 (ICC-01/04-01/06- 1119), After deliberation, Delivers, Judge Kirsch and Judge Pikis partly dissenting, the following,

text: J U D G M E N T

text: The decision of Trial Chamber I entitled "Decision on victims' participation": 1. on the first issue: (i) is confirmed to the extent that the Trial Chamber decided that for the purposes of rule 85 (a) of the Rules of Procedure and Evidence, the harm suffered by victims does not necessarily have to be direct. (ii) is amended such that the Appeals Chamber also finds that the harm suffered under rule 85 (a) of the Rules of Procedure and Evidence, must necessarily be personal harm. 2. on the second issue: is reversed to the extent that the Trial Chamber decided that neither rule 85 of the Rules of Procedure and Evidence nor the

text: Rome Statute

text: framework has the effect of restricting the participation of victims to the crimes contained in the charges confirmed by the Pre-Trial Chamber. 3. on the third issue: is confirmed to the extent that the Trial Chamber decided that participating victims may possibly lead evidence pertaining to the guilt or innocence of the

text: No.: ICC-01/04-01/06 OA 9 OA 10 3/44 accused when requested, and challenge the admissibility or relevance of evidence in the trial proceedings.

text: REASONS

text: I. KEY FINDINGS

text: Rule 85 (a) of the Rules of Procedure and Evidence (hereinafter: the "Rules"), defines who is a victim. The harm suffered by a natural person is harm to that person, i.e. personal harm. Material, physical, and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim. The issue for determination is whether the harm suffered is personal to the individual. If it is, it can attach to both direct and indirect victims.

text: For the purposes of participation in the trial proceedings, the harm alleged by a victim and the concept of personal interests under

text: article 68

text: (3) of

text: the Statute

text: must be linked with the charges confirmed against the accused.

text: The right to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence lies primarily with the parties, namely, the Prosecutor and the Defence. However, the Appeals Chamber does not consider these provisions to preclude the possibility for victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence during the trial proceedings.

text: The Trial Chamber has correctly identified the procedure and confined limits within which it will exercise its powers to permit victims to tender and examine evidence: (i) a discrete application, (ii) notice to the parties, (iii) demonstration of personal interests that are affected by the specific proceedings, (iv) compliance with disclosure obligations and protection orders, (v) determination of appropriateness and (vi) consistency with the rights of the accused and a fair trial. With these safeguards in place, the grant of participatory rights to victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of the evidence is not inconsistent

text: No.: ICC-01/04-01/06 O A 9 O A 10 4/44 with the onus on the Prosecutor to prove the guilt of the accused nor is it inconsistent with the rights of the accused and a fair trial. In so doing the Trial Chamber did not create an unfettered right for victims to lead or challenge evidence, instead victims are required to demonstrate why their interests are affected by the evidence or issue, upon which the Chamber will decide, on a case-by-case basis whether or not to allow such participation.

text: II. RELEVANT PROCEDURAL HISTORY

text: On 18 January 2008, Trial Chamber I rendered its "Decision on Victims' Participation" (hereinafter: "Impugned Decision")1 in which it issued decisions on the role of victims in the proceedings leading up to and during the trial of Mr Lubanga Dyilo. The Trial Chamber stated at paragraph 84 that the Impugned Decision was intended to "provide the parties and participants with general guidelines on all matters related to the participation of victims throughout the proceedings".

text: On 28 January 2008, the Defence2 and the Prosecutor3 sought leave to appeal the Impugned Decision. On 26 February 2008, the Trial Chamber granted leave to appeal (hereinafter: "Decision Granting Leave to Appeal")4 on three issues, which the Chamber identified as follows:

text: a. Whether the notion of victim necessarily implies the existence of personal and direct harm; b. Whether the harm alleged by a victim and the concept of 'personal interests' under

text: Article 68

text: of

text: the Statute

text: must be linked with the charges against the accused; c. Whether it is possible for victims participating at trial to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence.5 7. On 10 March 2008, the Prosecutor6 and the Defence7 filed their respective Documents in Support of the Appeal, in which they made requests for suspensive effect

text: 1 ICC-01/01/01/06-1119. 21CC-01/04-01/06-1135. 3 ICC-01/04-01/06-1136. 4ICC-01/04-01/06-1191. 5 Ibid, at paragraph 54. 6ICC-01/04-01/06-1219OA9.

text: No.: ICC-01/04-01/06 OA 9 OA 10 5/44 of the appeals. The Prosecutor filed his response on 19 March 2008 to the Defence Document in Support of the Appeal (hereinafter: "Prosecutor's Response to Defence Document in Support").8

text: On 11 March 2008, the legal representatives of victims a/0001/06, a/0002/06, and a/0003/06 filed the "Application of Victims a/0001/06, a/0002/06, a/0003/06 to Participate in the Proceedings Relating to the Appeals Taken by the Prosecutor and the Defence against Trial Chamber I's 18 January 2008 Decision on Victims' Participation."9

text: On 18 March 2008, the Office of Public Counsel for Victims (hereinafter: "OPCV") filed the "Request of the OPCV Acting as Legal Representative of the Applicants in the Lubanga Case for Participation in the Interlocutory Appeals Against Trial Chamber I's Decision dated 18 January 2008."10

text: On 20 March 2008, the Appeals Chamber issued an order directing timelines for the filing of applications for participation in the appeals and responses thereto (hereinafter: "Appeals Chamber Order of 20 March 2008")."

text: On 21 March 2008, the legal representatives of Victims a/0009/06, a/0106/06, a/0107/06, a/0108/06 and a/0109/06 filed an application to participate in the appeals, entitled "Application for Participation Filed by Victims a/0009/06, a/0106/06, a/0107/06, a/0108/06 Seeking Leave to Participate in the Appeals Proceedings against the Decision issued on 18 January 2008 by Trial Chamber I."12

text: 7 ICC-01/04-01/06-1220-tENG OA10. 8 ICC -01/04-0 1/06- 1233 OA10. The Defence did not file a response to the Prosecutor's Document in Support of the Appeal 9 ICC-01/04-01/06-1222-tENG. '°ICC-0 1/04-0 1/06- 1228 1 ' "Order of the Appeals Chamber on the date of filing of applications for participation by victims and on the time of the filing of the responses thereto by the Prosecutor and the Defence" ICC-01/04-01/06-1239 OA9andOA10. 12 ICC-0 1/04-0 1/06-1 24 1-tENG.

text: No.: ICC-01/04-01/06 OA 9 OA 10 6/44

text: On 7 April 2008, the Prosecutor13 and the Defence14 filed their respective consolidated responses to the applications to participate in the appeals pursuant to the Appeals Chamber Order of 20 March 2008.

text: On 16 May 2008, the Appeals Chamber issued its "Decision, in limine, on Victim Participation in the appeals of the Prosecutor and the Defence against Trial Chamber I's Decision entitled "Decision on Victims' Participation"15, in which the applications for participation by applicants represented by the OPCV and victims a/0009/06, a/0106/06, a/0107/06, a/0108/06 and a/0109/06 were rejected. Victims a/0001/06, a/0002/06, and a/0003/06 were granted the right to participate in the appeals and were directed to present their submissions by 23 May 2008. The Prosecutor and the Defence were directed to file their responses to the submissions presented by the aforesaid victims by 30 May 2008.

text: On 21 May 2008, the legal representatives of victims a/0001/06, a/0002/06, and a/0003/06 filed the "Observations des victimes quant aux appels du Procureur et de la Défense contre la décision du 18 janvier 2008 "16 (hereinafter: "Victims' Observations").

text: On 22 May 2008, the Appeals Chamber issued its "Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I's Decision on Victims' Participation of 18 January 2008"17 which, inter alia, granted suspensive effect to certain decisions within the Impugned Decision which gave rise to the issues on appeal.

text: On 30 May 2008, the Prosecutor filed the "Prosecution's Response to the •Observations des victimes quant aux appels du Procureur et de la Défense contre la décision du 18 janvier 2008'"18 (hereinafter: "Prosecutor's Response to the Victims' Observations").

text: 13 ICC-01/04-01/06-1266. A corrigendum to this response was filed on 8 April 2008 (ICC-01/04-01/06- 1266-Corr and ICC-01/04-01/06-1266-Corr-Anx) 14 ICC-01/04-01/06-1264-IENG. 15 ICC-01/04-01/06-1335. 16 ICC-01/04-01/06-1345. 17 ICC-01/04-01/06-1347. 18 ICC-01/04-01/06-1361. The Defence did not file a response to the Victims' Observations.

text: No.: ICC-01/04-01/06 OA 9 OA 10 7/44

text: III. MERITS OF THE APPEAL

text: A. The first issue on appeal: Whether the notion of victim

text: necessarily implies the existence of personal and direct harm

text: The first issue certified for appeal is raised by the Defence alone. The Prosecutor is opposed to the Defence's appeal on this issue.

text: Relevant part of the Impugned Decision

text: In assessing the concept of harm pursuant to rule 85 of the Rules the Trial Chamber held at paragraphs 90, 91 and 92 of the Impugned Decision:

text: Once the Trial Chamber has determined that an applicant is a natural or legal person, it will consider if there is evidence (including by reference to the victim's statements or application form) that the applicant suffered any harm as the result of the commission of a crime within the jurisdiction of the Court. 91. In relation to the link between the harm allegedly suffered and the crime, whereas Rule 85 (b) of the Rules provides that legal persons must have "sustained direct harm", Rule 85 (a) of the Rules does not include that stipulation for natural persons, and applying a purposive interpretation, it follows that people can be the direct or indirect victims of a crime within the jurisdiction of the Court. 92. The

text: Rome Statute

text: framework does not provide a definition of the concept of harm under Rule 85 of the Rules. However, in accordance with Principle 8 of the Basic Principles, a victim may suffer, either individually or collectively, from harm in a variety of different ways such as physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights. This principle provides appropriate guidance. 2. Arguments of the Defence

text: The Defence submit that "it is important to clarify the concept of victim so that victims admitted may not only effectively exercise their rights, but do so in a way that is not prejudicial to the rights of the accused."19

text: In support of this ground of appeal, the Defence maintain that the notion of victim necessarily implies the existence of personal and direct harm as articulated in national and international laws. In addition, the Defence argue that the Trial Chamber erred in

text: 19ICC-01/04-01 -06- 1220-tENG, paragraph 15.

text: No.: ICC-01/04-01/06 OA 9 OA 10 8/44 adopting the wording of Principle 8 of the "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law'"20 (hereinafter: the "Basic Principles of 2005") to conclude that a victim may suffer, either individually or collectively, from harm in a variety of different ways, such as physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights.21 The Defence, adopting the arguments of Judge Blattmann in his Separate and Dissenting Opinion to the Impugned Decision, argue that "the Basic Principles [of 2005] was given specific consideration before being rejected during the travaiuc préparatoires that led to the drafting of

text: the Statute

text: , and that the majority's interpretation goes beyond what was approved by the legislator."22 As a result, the Defence submit that "it would not be appropriate to refer to them [the Basic Principles of 2005] in defining the notion of victim and to expand the notion of harm to include indirect harm and collective harm."23

text: In relation to the concept of "indirect harm" the Defence submit that since victim participation in the proceedings affects the rights of the accused, their admission ought to be interpreted strictly and that "[n]owhere in

text: the Statute

text: or the Rules of Procedure and Evidence is it expressly stated that indirect harm may constitute a reason for such admission. On the contrary, Rule 85 highlights the causal link that must exist between the crime and the harm alleged."24 The Defense cites national jurisdictions and

text: the Statute

text: of the Extraordinary Chambers in the Courts of Cambodia, where the harm suffered by the victim applicant is required to be "the direct consequence of the offence, personal and have actually come into being."25

text: 20 Ibid, at paragraph 25. "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" adopted by the United Nations General Assembly, resolution 60/147, 16 December 2005.

text: ;!Ibid

text: 22 Ibid at paragraph 27 23 Ibid at paragraph 28. 24 Ibid at paragraph 30. 25 Ibid, at paragraph 32.

text: No.: ICC-01/04-01/06 OA 9 OA 10 9/44

text: Prosecutor's Response to the Defence Arguments

text: The Prosecutor opposes the arguments raised by the Defence in respect of the first issue on appeal. He submits, in the Prosecutor's Response to the Defence Document in Support of the Appeal, in relation to the issue of "personal harm" that "at no point in time did the Trial Chamber find that a person who had not personally suffered harm as a result of a crime within the jurisdiction of the Court could be considered for the purposes of Rule 85."26 He argues that the Trial Chamber, to the contrary, ruled that for the purposes of its determination it would "consider if there is evidence ... that the applicant suffered any harm as a result of the commission of a crime within the jurisdiction of the Court."27 Accordingly, the Prosecutor submits that the Defence's arguments to the effect that rule 85 requires proof of a personal character of the harm in question do not relate to any alleged error in the Impugned Decision and must be rejected.

text: In relation to the issue of "direct harm" the Prosecutor submits that the Trial Chamber was correct not to exclude from the notion of "victim" in rule 85 (a) of the Rules those persons "who were not the direct targets of a crime, but who suffered indirect harm as a result of the commission of a crime within the jurisdiction of Court."28 He avers that the negotiating history of rule 85 shows that the definition of victim, especially with respect to persons suffering indirect harm was an intensively discussed topic and that in the absence of an agreement, the decision as to what groups of persons should be included in the definition was finally left to the Court to decide. He contends that no category of victims was excluded from the outset from the purview of rule 85, nor does anything in the negotiating history indicate that the Basic Principles were rejected by the drafters of the Rules in such a manner that would bar the Court from even considering them in its judicial determinations.29

text: In light of the above, the Prosecutor submits that "it should be left to a Chamber to assess on a case-by-case basis the degree of proximity of a victim to the source of victimisation (i.e. the crime or crimes), and to determine whether in the circumstances of ICC-01/04-01/06-1233, paragraph 9. 27 Ibid 28 Ibid at paragraph 10. 2g Ibid, at paragraph 1 1

text: No.: ICC-01/04-01/06 OA 9 OA 10 10/44 the instant case, the appropriate threshold of victimisation is met for a person to be considered a victim within the terms of rule 85 of the Rules. When conducting this examination, the Trial Chamber may find that there are degrees of indirect victimisation that fall outside the proper scope of rule 85, but which are nevertheless covered by the provisions pertaining to reparation for victims."30 The Prosecutor argues that the Impugned Decision correctly allows for these case-by-case determinations and should not be overturned by the Appeals Chamber.

text: 4 Victims ' Observations

text: In relation to the issue of "personal harm" the legal representatives concur with the Prosecutor that the Trial Chamber did not determine that "victim status had to be granted to an applicant claiming only collective harm without demonstrating the existence of personal harm. It is therefore not clear in which respect the decision of 18 January should be reversed."31 In addition the legal representatives submit that the issue "merits a nuanced approach" and that the "drafters of the Court's texts, particularly when envisaging victim participation in proceedings, took into account the fact that mass crimes often result in suffering which is both individual and collective."32 The legal representatives observe that "[r]ule 85 in itself does not necessarily appear to exclude those persons who allege that they belong to a group or collectivity (ethnic, national, religious, local...) which was the target of a crime within the Court's jurisdictions. Accordingly, membership of a group which was the victim of a mass crime will, moreover, result in at least mental harm to the individual, to the extent that the Defence's distinction between individual and collective suffering seems contrived and hypothetical."33

text: In relation to the issue of "direct harm" the legal representatives submit that "the distinction between the two categories of victims [in rule 85 (a) and (b) of the Rules] suggests that the drafters of the Rules of Procedure wished to impose an additional condition on organisations and institutions that, a contrario, they did not wish to impose 30 Ibid at paragraph 12. 31ICC-01/04-01/06-1345-tENG, paragraph 7. 32 Ibid, paragraph 8 11 Ibid at paragraph 9.

text: No.: ICC-01/04-01/06 OA 9 OA 10 11/44 on natural persons."34 Contrary to the argument put forward by the Defence, the legal representatives assert that "there is no evidence in the preparatory works to indicate that the Declaration of Basic Principles [of Justice for Victims of Crime and Abuse of Power, adopted by the United Nations General Assembly, resolution 40/34 of 29 November 1985 (hereinafter: Declaration of Principles of 1985)] was rejected by the delegations because it lacked normativity or relevance to the extent that the Court would be precluded from applying the [Declaration of Principles of 1985] as a universally recognised source of international law in the exercise of its judicial function."35 Similarly, they submit that "there are no grounds for considering that the drafters of the Court's texts had the express intention of excluding from the definition certain categories of victims that are generally recognised in international law, such as indirect victims."36

text: The legal representatives aver that if the Declaration of Basic Principles of 1985 could not serve as a valid and relevant source of the law applicable under

text: article 21

text: (1) (b) of

text: the Statute

text: , the mere reference to it by the Trial Chamber in the Impugned Decision, "cannot per se challenge the validity and/or relevance ofthat decision."37

text: Prosecutor's Response to the Victims ' Observations

text: The Prosecutor does not oppose the observations of the victims on the issue of indirect harm and recalls his own submission that "persons who have indirectly suffered harm as a result of a crime within the jurisdiction of the Court may be considered victims under rule 85 on the basis of their own suffering".38

text: 34 Ibid, at paragraph 12. Ibid, at paragraph 17 36 Ibid. Ibid, at paragraph 18. 18ICC-01/04-01/06-1361, paragraph 14.

text: No.: ICC-01/04-01/06 OA 9 OA 10 12/44

text: Determination by the Appeals Chamber

text: Rule 85 of the Rules provides:

text: For the purposes of

text: the Statute

text: and the Rules of Procedure and Evidence: a) "Victims" means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes. 30. The Trial Chamber in its analysis of the link between "the harm allegedly suffered and the crime"39 juxtaposed rule 85 (a) and rule 85 (b) of the Rules, finding significance in the omission of the word "direct" in rule 85 (a) and concluding that on a purposive interpretation of rule 85 (a) "people can be the direct or indirect victims of a crime within the jurisdiction of the Court."40 The Appeals Chamber notes that rule 85 (b) of the Rules, limits the definition of organizational or institutional victims to those that have sustained "direct harm to any of their property". The type of "harm" referred to relates to organizations or institutions rather than natural persons. It is therefore different from the type of harm set out in rule 85 (a) of the Rules, which is harm to natural persons.

text: The word "harm" in its ordinary meaning denotes hurt, injury and damage.41 It carries the same meaning in legal texts, denoting injury, loss, or damage42 and is the meaning of "harm" in rule 85 (a) of the Rules.

text: The Appeals Chamber considers that the harm suffered by a natural person is harm to that person, i.e. personal harm. Material, physical, and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim. Harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims. This is evident for instance, when there is a close personal relationship between the victims such as the relationship 19ICC-01/01/01 /06-1119, paragraph 91. 40 Ibid. 41 Shorter Oxford English Dictionary, Volume 2, 5th Edition 2002, at page 1199. 42 Blacks Law Dictionary 8th Edition 2004, at page 734.

text: No.: ICC-01/04-01/06 O A 9 O A 10 13/44 between a child soldier and the parents ofthat child. The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents ofthat child. It is in this sense that the Appeals Chamber understands the Trial Chamber's statement that "people can be the direct or indirect victims of a crime within the jurisdiction of the Court". The issue for determination is whether the harm suffered is personal to the individual. If it is, it can attach to both direct and indirect victims. Whether or not a person has suffered harm as the result of a crime within the jurisdiction of the Court and is therefore a victim before the Court would have to be determined in light of the particular circumstances.

text: The Appeals Chamber notes that the Trial Chamber in referring to the Basic Principles of 2005 was "guided" by the language set forth in Principle 8. However, as noted above, its decision was based on its analysis of rule 85 (a) and rule 85 (b) of the Rules. The Appeals Chamber finds no error in the Trial Chamber's reference to the Basic Principles of 2005 for the purpose of guidance.

text: As stated above at paragraph 18, the Trial Chamber noted that in accordance with Principle 8 of the Basic Principles of 2005 "a victim may suffer either individually or collectively from harm in a variety of different ways such as physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights." The Defence contends that the Trial Chamber erred in adopting the wording of Principle 8 to conclude that a victim may suffer either individually or collectively.

text: The Appeals Chamber considers that there may clearly be harm that could be both personal and collective in nature. The fact that harm is collective does not mandate either its inclusion or exclusion in the establishment of whether a person is a victim before the Court. The issue for determination is whether the harm is personal to the individual victim. The notion of harm suffered by a collective is not, as such, relevant or determinative.

text: The Trial Chamber at paragraph 90 of the Impugned Decision, in considering the concept of "harm" under rule 85 of the Rules, determined that once it had established that an applicant for victim participation was a natural or legal person it would consider

text: No.: ICC-01/04-01/06 OA 9 OA 10 14/44 whether the applicant had suffered any harm as a result of the commission of a crime within the jurisdiction of the Court.

text: The Defence contends that this finding of the Trial Chamber is open to an interpretation that those who did not suffer harm personally could be considered victims under rule 85. The Appeals Chamber, noting the views expressed by both the Prosecutor and the legal representatives of the victims in this regard, finds that the Trial Chamber omitted to make an affirmative finding that only persons who have suffered personal harm would be considered as victims for the purposes of rule 85 (a) of the Rules. Such an omission appears to have been the outcome of its preoccupation with the interpretation of rule 85 of the Rules in the context of "direct and indirect harm" instead of a focus on requiring that the harm be personal to the victim under rule 85 (a) of the Rules.

text: The Appeals Chamber determines the first issue on appeal as follows: the notion of victim necessarily implies the existence of personal harm but does not necessarily imply the existence of direct harm.

text: Accordingly, the Appeals Chamber confirms the finding of the Trial Chamber to the extent that the Trial Chamber determined that harm suffered by victims does not necessarily have to be direct and amends the decision to include that harm suffered by a victim applicant for the purposes of rule 85 (a) must be personal harm.

text: No.: ICC-01/04-01/06 O A 9 OA 10 15/44

text: B. The second issue on appeal: Whether the harm alleged by a

text: victim and the concept of 'personal interests' under Article 68

text: of

text: the Statute

text: must be linked with the charges against the

text: accused.

text: The second issue on appeal as certified by the Trial Chamber is being appealed by both the Prosecutor and the Defence.

text: Relevant part of the Impugned Decision

text: In relation to the second issue on appeal the Trial Chamber held at paragraphs 93, 95 and 96 of the Impugned Decision:

text: Rule 85 of the Rules does not have the effect of restricting the participation of victims to the crimes contained in the charges confirmed by Pre-Trial Chamber I, and this restriction is not provided for in the

text: Rome Statute

text: framework.

text: [A] victim of any crime falling within the jurisdiction of the court can potentially participate. However, self-evidently, it would not be meaningful or in the interests of justice for all such victims to be permitted to participate as victims in the case against Mr Thomas Lubanga Dyilo, given that the evidence and the issues falling for examination in the case (which will be dependent on the charges he faces) will frequently be wholly unrelated to the crimes that caused harm to victims coming from this very wide category.

text: Article 68

text: (3) of

text: the Statute

text: is clear in its terms: [...]. Applying that essential requirement, the interests of many victims even of the Situation in the Democratic Republic of the Congo will be unrelated to the substance of the present case (the issues and the evidence), and in consequence granting participation rights to them would not serve any useful purpose. The critical question is whether either of the following is established by the contents of the standard application form, supported by the report to the Chamber of the Registry's Victims Participation and Reparations Section:

text: (i) Is there a real evidential link between the victim and the evidence which the Court will be considering during Mr Thomas Lubanga Dyilo's trial [...], leading to the conclusion that the victim's personal interests are affected? or

text: (ii) Is the victim affected by an issue arising during Mr Thomas Lubanga Dyilo's trial because his or her personal interests are in a real sense engaged by it?

text: No.: ICC-01/04-01/06 OA 9 OA 10 16/44

text: Following an initial determination by the Trial Chamber that a victim shall be allowed to participate in the proceedings, thereafter in order to participate at any specific stage in the proceedings [...] a victim will be required to show, in a discrete written application, the reasons why his or her interests are affected by the evidence or issue then arising in the case and the nature and extent of the participation they seek. 2 Arguments of the Prosecutor

text: In respect of the second issue on appeal, the Prosecutor submits that the Trial Chamber erred in its approach to the requirements for participation by victims in the trial phase of the proceedings. In support of his argument the Prosecutor contends that victim participation in the trial proceedings must be determined within the competency of the Trial Chamber. The Trial Chamber's competency is limited to the parameters set out in the charges and it is not vested with the authority to make any assessment, including those regarding victim participation, which exceeds the strict boundaries of the charges against an individual.43 Thus, the Prosecutor submits that once a criminal case is brought against a person, the proper determination of personal interests for the purposes of victim participation requires a demonstration that the applicant's personal interests are affected in connection with the charges.44

text: Furthermore, the Prosecutor submits that the Trial Chamber erred, at paragraph 97 of the Impugned Decision, by conflating the general interests of victims in relation to participation, in particular, "an interest in verifying particular facts and establishing the truth" with the role of the Prosecutor. Whilst recognising that victims have a general "interest" in the determination of the truth in relation to the particular charges, the Prosecutor submits that such an interest cannot form the "sole or main basis of participation as it is a responsibility and function granted to the Prosecutor under

text: the Statute

text: to investigate the crimes and establish the truth".4:>

text: Moreover, the Prosecutor contends that the approach adopted by the Trial Chamber in relation to victim participation places an onerous burden on victims to exercise their participatory rights. It also leads to uncertainty as to who may participate at which stages, 43 ICC-01/04-01/06-1219, paragraph 15 44 Ibid, at paragraph 18. 45 Ibid, at paragraph 21.

text: No.: ICC-01/04-01/06 OA 9 OA 10 17/44 instead of determining from the outset the identity and number of victim participants and the scope and modalities of their participation. This he submits impacts on the expeditious and fair conduct of the proceedings.46

text: Arguments of the Defence

text: The Defence, placing emphasis on the dissenting opinion of Judge Blattmann, is opposed to the finding of the Trial Chamber that the harm suffered and the personal interests of victims are not restricted to the crimes charged.

text: In support of its argument the Defence submit that by not requiring a link between a victim's status and his/her participatory rights on the one hand, to the charges against the accused would result in an infringement of the principle of legality.47

text: The Defence argue that

text: articles 5

text: , 11, and 12 of

text: the Statute

text: establishes a framework that serves to limit the jurisdiction of the Court and that the Trial Chamber's jurisdiction is defined by the parameters set out in the charges brought against the accused. Further, the Defence submit that the charges confirmed by the Pre-Trial Chamber constitute the •'temporal, geographical, and personal framework within which the Trial Chamber has jurisdiction". Hence the harm alleged by a victim must be linked to the charges as must the victim's personal interests.48

text: Finally, the Defence, whilst observing that the Pre-Trial Chambers have consistently required a causal link between the harm alleged by an applicant for the status of victim and the crimes charged, submit that the effect of the Impugned Decision would result in the accused being "made to face evidence and interventions that bear no relation to the charges brought against him."49

text: 1 Ibid at paragraph 24 to 26. ICC-01/04-01/06-1220-tENG, paragraph 34. Ibid, at paragraphs 35 and 36. ' Ibid at paragraphs 38 and 39..

text: No.: ICC-01/04-01/06 O A 9 OA 10 18/44

text: Prosecutor's Response to Defence Arguments

text: The Prosecutor notes his own appeal against the Impugned Decision in respect of the second issue on similar grounds as those raised by the Defence and therefore is not opposed to the Defence's appeal on this issue.50

text: Victims ' Observations

text: The legal representatives of the victims authorised to participate in the appeals aver that the harm suffered by the victims concerned as well as their personal interest in receiving reparations are directly correlated with the charges against Mr Lubanga.51 Indeed, they assert that "[g]iven that such reparations depend on the conviction of the accused, the victims have a personal interest in the charges being declared established."52

text: The legal representatives "rely on the wisdom of the Court to decide on possible participation in the proceedings by victims who have suffered harm only indirectly related to the charges [...] or who invoke an interest not related to the charges in any way."53

text: The Prosecutor observes that victims granted participatory rights in the instant case have linked their harm to the charges. In similar vein the participation of victims must be linked with the parameters set out in the charges.54 However, the Prosecutor disagrees with the legal representatives' assertion that the victims have a personal interest in the establishment of the charges. He argues, "[w]hile victims have a general interest in the determination of the truth in relation to the charges, such interests cannot be interpreted or applied in such a way that confuses them with the role of the Prosecutor".55

text: 50 ICC-01/04-01/06-1233, paragraph 14 and 15. 5' ICC-01/04-01/06-1345-ŒNG, paragraph 20. 52 Ibid. 53 Ibid, at paragraph 21. 54ICC-01/04-01/06-1361, paragraph 15. 55 Ibid, at paragraph 19.

text: No.: ICC-01/04-01/06 O A 9 O A 10 19/44

text: Determination by the Appeals Chamber

text: As noted in paragraph 41 above, the Trial Chamber stated that "[r]ule 85 does not have the effect of restricting the participation of victims to the crimes contained in the charges confirmed by Pre-Trial Chamber I, and this restriction is not provided for in the

text: Rome Statute

text: framework."

text: The Appeals Chamber acknowledges that rule 85 does not have the effect of restricting the participation of victims to the crimes charged. However, the provision must be read in context and in accordance with its object and purpose.

text: The interpretation of

text: the Statute

text: is governed by the general principle of interpretation of treaties as set out in

text: article 31

text: (1) of the

text: ,56 according to which "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose." The same principle of interpretation applies to the Rules.

text: The Appeals Chamber recalls its judgment on the "Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal"57 in which reference is made to

text: article 3

text: 1 ( 1 ) of the

text: as follows:

text: The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.58 57. On a contextual interpretation of rule 85, the Appeals Chamber notes that it is situated in Chapter 4 of the Rules: "Provisions relating to various stages of the proceedings", Section I I I : "Victims and witnesses", Subsection 1: "Definition and general

text: , signed on 23 May 1969 and entered into force on 27 January 1980, United Nations, Treaty Series,\o\. 1155, 18232. "ICC-01/04-168 58 Ibid, at paragraph 33.

text: No.: ICC-01/04-01/06 OA 9 OA 10 20/44 principle relating to victims". The location of rule 85 in the Rules is indicative of a general provision relating to victims, applicable to various stages of proceedings.

text: In relation to the object and purpose of rule 85, the Appeals Chamber considers that the rule does not have the effect of mandating participation of victims instead the object and purpose of rule 85 is to define who are victims. Thus, whilst the ordinary meaning of rule 85 does not per se, limit the notion of victims to the victims of the crimes charged, the effect of

text: article 68

text: (3) of

text: the Statute

text: is that the participation of victims in the trial proceedings, pursuant to the procedure set out in rule 89 (1) of the Rules, is limited to those victims who are linked to the charges.

text: Article 68

text: (3) of

text: the Statute

text: provides, in relevant part:

text: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. 60. Rule 89 ( 1 ) of the Rules provides:

text: In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit the application to the relevant Chamber. Subject to the provisions of

text: the Statute

text: , in particular

text: article 68

text: , paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements. 61. Participation of victims at trial will first and foremost, take place through the procedure of rule 89 (1) of the Rules. By way of written applications, applicants will have to demonstrate, firstly, that they are victims within the meaning of rule 85 of the Rules. Secondly, pursuant to

text: article 68

text: (3) of

text: the Statute

text: , victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

text: No.: ICC-01/04-01/06 OA 9 OA 10 21/44

text: Given that the purpose of trial proceedings is the determination of the guilt or innocence of the accused person of the crimes charged, and that the application under rule 89 (1) of the Rules in this context is for participation in the trial, only victims of these crimes will be able to demonstrate that the trial, as such, affects their personal interests. Therefore, only victims who are victims of the crimes charged may participate in the trial proceedings pursuant to

text: article 68

text: (3) of

text: the Statute

text: read with rule 85 and 89 (1) of the Rules. Once the charges in a case against an accused have been confirmed in accordance with

text: article 61

text: of

text: the Statute

text: , the subject matter of the proceedings in that case is defined by the crimes charged.

text: The Appeals Chamber agrees with the Prosecutor's contention that the parameters set forth in the charges define the issues to be determined at trial and limit the Trial Chamber's authority to the determination of those issues.59 Therefore, any determination of the Trial Chamber under

text: article 68

text: (3) of

text: the Statute

text: read with rules 85 and 89 (1) of the Rules, in relation to a victim's status and/or participatory rights which is unrelated to the specific charges against the accused would fall outside this framework.

text: It is for the Trial Chamber to determine within this framework whether an applicant is a victim, because he or she suffered harm in connection with the particular crimes charged, and if so, whether the personal interests of the applicant are affected. If the applicant is unable to demonstrate a link between the harm suffered and the particular crimes charged, then even if his or her personal interests are affected by an issue in the trial, it would not be appropriate under article 68 (3) read with rule 85 and 89 (1) of the Rules for his or her views and concerns to be presented.60

text: The Appeals Chamber therefore upholds the second issue on appeal and affirms that for the purposes of participation in the trial proceedings, the harm alleged by a victim and the concept of personal interests under

text: article 68

text: (3) of

text: the Statute

text: must be linked with the charges confirmed against the accused. 59ICC-01/04-01/06-1219, paragraph 15. 00 In addition to the procedure under rule 89 (1) of the Rules, the Appeals Chamber notes the possibility of victim participation pursuant to rule 93, second sentence, of the Rules. This provision vests the Chamber with a discretion to call "other victims" which could potentially include victims who are not victims of the crimes for which the accused person has been charged.

text: No.: ICC-01/04-01/06 OA 9 OA 10 22/44

text: Accordingly, the Appeals Chamber reverses the finding of the Trial Chamber that neither rule 85 of the Rules nor the

text: Rome Statute

text: framework has the effect of restricting the participation of victims to the crimes contained in the charges confirmed by the Pre- Trial Chamber.

text: C. The third issue on appeal: Whether it is possible for victims

text: participating at trial to lead evidence pertaining to the guilt or

text: innocence of the accused and to challenge the admissibility or

text: relevance of evidence

text: The third issue certified for appeal by the Trial Chamber comprises two sub-issues, namely, (i) whether it is possible for victims participating at trial to lead evidence pertaining to the guilt or innocence of the accused and (ii) whether it is possible for victims participating at trial to challenge the admissibility or relevance of evidence. These issues are being appealed by both the Prosecutor and the Defence who submit that the Trial Chamber erred in its determination in respect of both sub-issues.

text: 1 Relevant part of the Impugned Decision

text: In assessing the modalities of participation for victims in the trial proceedings and, in particular, with regard to evidence, the Trial Chamber held at paragraphs 108 and 109 of the Impugned Decision:

text: The Trial Chamber considers that the right to introduce evidence during trials before the Court is not limited to the parties, not least because the Court has a general right (that is not dependent on the cooperation or the consent of the parties) to request the presentation of all evidence necessary for the determination of the truth, pursuant to

text: article 69

text: (3) of

text: the Statute

text: . Rule 91(3) of the Rules, enables participating victims to question witnesses with the leave of the Chamber (including experts and the defendant). The Rule does not limit this opportunity to the witnesses called by the parties. It follows that victims participating in the proceedings may be permitted to tender and examine evidence if in the view of the Chamber it will assist it in the determination of the truth, and if in this sense the Court has 'requested' the evidence. Furthermore, for the reasons set out above, the Chamber will not restrict questioning by victims to reparation issues, but instead will allow appropriate questions to be put by victims whenever their personal interests are engaged by the evidence under consideration.

text: No.: ICC-01/04-01/06 OA 9 OA 10 23/44

text: As regards the request of the victims' legal representatives to have the opportunity to challenge the admissibility or relevance of evidence when their interests are engaged, the right to make submissions on matters of evidence is not reserved to the parties, and there is no provision within the

text: Rome Statute

text: framework which prohibits the Trial Chamber from ruling on the admissibility or relevance of evidence having taken into account the views and concerns of the victims, in accordance with

text: articles 68

text: (3) and

text: (4) of

text: the Statute

text: . In appropriate circumstances, this will be allowed following an application. 2. Arguments of the Prosecutor

text: The Prosecutor contends that the Trial Chamber "committed a legal error" when it held that victims may introduce evidence pertaining to the guilt or innocence of the accused, and to the extent that it permits victims to challenge the admissibility or relevance of evidence.61

text: In relation to the first sub-issue, the Prosecutor advances four arguments each of which are set out separately below.

text: (a) The presentation of evidence relating to guilt or innocence rests with the parties. 71. Under this head, the Prosecutor argues that "[t]here does not appear to be any dispute that victims are not parties, nor that their role and rights differ from that of the Prosecution and the Defence. This reflects the balance of

text: the Statute

text: ."62 He submits that the

text: Rome Statute

text: and the Rules establish a consistent system in relation to the submission of evidence by the parties. In this regard, only the parties have obligations of disclosure. The Prosecutor submits therefore, that to allow victims who have no disclosure obligations to present evidence relating to the guilt or innocence of the accused could have serious implications "both for proper trial management and for the rights of the defence."63 In addition, the Prosecutor argues that allowing victims to present evidence of guilt or innocence could lead to "shifting the burden of proof, which

text: the Statute

text: in

text: Article 66

text: (2), places clearly and exclusively upon the Prosecution."64 Finally, the Prosecutor submits that "the right of the parties to submit evidence carries a number of practical and

text: 61 ICC-01/04-01/06-1219, paragraph 27. 62 Ibid, at paragraph 30. 03 Ibid. Ibid, at paragraph 33.

text: No.: ICC-01/04-01/06 OA 9 OA 10 24/44 logistical consequences" that

text: the Statute

text: accounts for by providing the Prosecution and the Defence "with means to collect such evidence, and in particular by providing at all times for the security of their personnel involved in such activities."65 The Prosecutor observes that there are no such provisions for victims and to allow them to collect and present evidence could affect their security and the security of persons at risk on account of the information collected.66

text: (b) The presentation of "views and concerns" under Article 68 (3) does not include introducing evidence relating to guilt or innocence. 72. The Prosecutor argues that under

text: article 68

text: (3) of

text: the Statute

text: victims have the right to present their views and concerns. He submits that the "language of Article 68 (3) thus provides that victims have been granted a right to present their personal perspective or opinion on an issue. 'Views and concerns' does not constitute the submission of evidence."67 The Prosecutor avers that the drafting history of article 68 (3) confirms the interpretation that victims do not have the right to present evidence and points to early drafts of

text: the Statute

text: which included a provision granting legal representatives "the right to participate in the proceedings with a view to presenting additional evidence needed to establish the basis of criminal responsibility", which he submits "was removed from

text: the Statute

text: during the negotiations at Rome."68 The Prosecutor advances that "the Rules of Procedure and Evidence elaborate on the manner in which victims can participate, and comprehensively prescribe the system of victim participation." He argues that this comprehensive regime of victim participation makes no mention of victims having a right to present evidence during the trial. In fact, the Rules covering the questioning of witnesses by victims and by the parties actually confirm that only the parties have the right to introduce evidence.69

text: 65 Ibid at paragraph 34 66 Ibid. 67 Ibid at paragraph 36. 68 Ibid at paragraph 37. 69 Ibid, at paragraphs 38 and 39

text: No.: ICC-01/04-01/06 O A 9 O A 10 25/44

text: (c) The Trial Chamber's powers under Articles 64 (6) (d) and 69 (3) do not provide a basis for victims or other participants to submit evidence pursuant to a request 73. Under this head, the Prosecutor submits that the provisions of Articles 64 and 69 cannot be interpreted to mean that victims could or should present evidence pertaining to the guilt or innocence of the accused. He argues that "the erroneous conflation of the interests of the victims and the role of the Prosecution" led to the Trial Chamber's ruling that victims will be allowed "to tender and examine evidence if in the view of the Chamber it will assist in the determination of the truth."70

text: Moreover, he argues that "the Trial Chamber links the modalities of victims participation not to the autonomous and victims-specific provisions of Article 68 but to provisions regulating the functions and powers of the Chambers. This is not consistent with the specific participatory regime created by

text: the Statute

text: ."71 In addition the Prosecutor submits that Article 69 (3) and Article 64 (6) (d) "provide the Chamber with an important, though residual, power to monitor and regulate the presentation of evidence by the parties, without affecting the rights of the victims."72 He argues that the language of these provisions do not create an independent basis for the submission of evidence by a participant. In the context of the drafting history of

text: the Statute

text: , the Prosecutor submits that "states moved away from a position where the Court had a duty to call evidence itself'.73 Instead, he avers that the purpose of the provisions under consideration is "to ensure that the Chamber was not constrained by the evidence that the parties chose to provide and could ask the parties to present further evidence in their possession under certain circumstances."74

text: 70 Ibid, at paragraph 41 71 Ibid, at paragraph 42. 72 Ibid, at paragraph 44. 73 Ibid at paragraph 45. 741 Ih.H Ibid.

text: No.: ICC-01/04-01/06 OA 9 OA 10 26/44

text: (d) The nature of victim participation in the reparation phase 75. The Prosecutor submits that "it is only during reparations proceedings that victims may submit material to the Chamber for the purposes of supporting a claim or influencing the determination of the ultimate issue."75

text: In relation to the second sub-issue, the Prosecutor advances that "[a]rticle 64 (9) refers to the Trial Chamber exercising its powers to rule on admissibility 'on application of a party or on its own motion"1.76 Thus the Prosecutor submits that the Trial Chamber erred to the extent that it granted the request of the legal representatives of victims to have the opportunity to challenge evidence.77

text: Arguments of the Defence

text: The Defence submits that the Trial Chamber erred in allowing victims to lead evidence and to challenge the admissibility and relevance of evidence.

text: In support of this argument, the Defence avers that the right to present evidence relating to guilt or innocence rests with the parties.78 The Defence submits that "[authorising victims to submit evidence or to express their opinion on the evidence would mean forcing the defendant to confront more than one accuser, which would violate the principle of equality of arms, one of the necessary elements of a fair trial."79 In addition the Defence argue that "[t]he texts are clear in setting out the Prosecutor's disclosure obligations, as well as those of the Defence- in the rare cases that this applies. The total absence of any provisions governing the disclosure of evidence by victims only serves to confirm that they may not lead evidence during the trial."80

text: The Prosecutor is not opposed to the Defence's appeal in relation to the third issue on appeal.

text: 75 Ibid, at paragraph 47. 76 Ibid, at paragraph 49 77 Ib.d 78ICC-01/04-01706- 1220-tENG, paragraph 46. 79 Ibid, at paragraph 48 80 Ibid, at paragraph 50.

text: No.: ICC-01/04-01/06 OA 9 OA 10 27/44

text: Victims ' Observations

text: On the first sub-issue, the legal representatives assert that the "documents of the Court indirectly grant victims the possibility of presenting evidence going to the guilt or innocence of the accused in two procedural forms, namely, within the context of presenting their views and concerns pursuant to

text: article 68

text: (3) of the

text: Rome Statute

text: on the one hand, and on the other, through the questioning of witnesses, experts and the accused pursuant to rule 91 (3) of the Rules of Procedure and Evidence.^ In response to the Prosecutor's argument that

text: article 69

text: (3) of

text: the Statute

text: provides insufficient statutory and regulatory framework to enable the Chamber to request victims to submit evidence, the legal representatives argue that

text: the Statute

text: permits "the Trial Chamber to order the presentation of relevant evidence concerning the victims for the purposes of sentencing pursuant to

text: article 76

text: of

text: the Statute

text: , in the same context as for the trial."82

text: Moreover, the legal representatives argue that the issue of guilt or innocence of the accused directly affects the victims and "it is for the Chamber to ensure that the intervention of victims remains appropriate and that they do not take the place of the Prosecutor (or the Defence)."83

text: On the second sub-issue, the legal representatives advance that the mere fact that Rule 72 (2) of the Rules permits victims to be heard on the relevance or admissibility of evidence in certain circumstances does not preclude victims from challenging the admissibility or relevance of evidence in other circumstances.84 They argue further that the personal interests of the victims may be affected by the evidence presented or proposed. Such interest may result from the consequences that flow from the presentation of evidence that may bear on their right to reparations as well as be directly prejudicial to them.85

text: 81 ICC-01/04-01/06-1345-tENG, paragraph 25 *2 Ibid. 83 Ibid, at paragraph 27. 84 Ibid, at paragraph 28. 85 Ibid, at paragraph 29.

text: No.: ICC-01/04-01/06 OA 9 OA 10 28/44

text: In response to the victims' observations on the first sub-issue, the Prosecutor contends that "the submission of evidence pertaining to guilt or innocence is limited, under the system established by

text: the Statute

text: and the Rules, to the parties."86 The Prosecutor argues that article 69 (3) expressly provides for the presentation of evidence by the parties and in this context the Chamber is empowered to request the presentation of evidence from those who are able to present evidence, i.e. the parties. Therefore, he argues, "it does not form a procedural basis for the submission of evidence pertaining to guilt or innocence by victims."87

text: Further, the Prosecutor challenges the legal representatives assertion that article 68 (3) indirectly provides them with the right to submit evidence pertaining to guilt or innocence. He argues that "[njothing in the ordinary meaning of'views and concerns', or in the context or object and purpose of Article 68 (3), indicates that this must be read so as to include the right to submit evidence pertaining to guilt or innocence."88 Finally, the Prosecutor disagrees with the argument of the legal representatives that article 76 or Rule 145 requires the Chamber to order the presentation of evidence from victims.89

text: In response to the victims' observations on the second sub-issue, the Prosecutor states that he largely concurs with the views and concerns presented by the legal representatives.90 Whilst recognising that the personal interests of victims may be affected by evidence in specific instances, the Prosecutor argues that this does not give rise to a general right of victims to challenge the admissibility or relevance of every piece of evidence.91 The Prosecutor submits that "the ability to present views and concerns regarding the admissibility of a piece of evidence, where its admission would affect the

text: 86ICC-01/04-01/06-1361, at paragraph 22. 87 Ibid. 88 Ibid, at paragraph 23. 80 Ibid at paragraph 25. g° Ibid, at paragraph 26. 91 Ibid, at paragraph 28

text: No.: ICC-01/04-01/06 OA 9 OA 10 29/44 personal interests of the victim, addresses the concerns raised in the Victim's Observations while respecting and fully implementing the terms of

text: the Statute

text: Determination by the Appeals Chamber

text: In establishing a framework for the right of victims participating at trial to lead evidence and to challenge the admissibility or relevance of evidence the Trial Chamber stated, at paragraph 108 of the Impugned Decision, that "victims participating in the proceedings may be permitted to tender and examine evidence if in the view of the Chamber it will assist in the determination of the truth, and if in this sense the Court has 'requested' the evidence." At paragraph 109 of the Impugned Decision, the Chamber stated further that "there is no provision within the

text: Rome Statute

text: Articles 68

text: (3) and

text: (4) of

text: the Statute

text: . In appropriate circumstances this will be allowed following an application". Earlier in the Impugned Decision, at paragraph 96 the Trial Chamber decided that "in order to participate at any specific stage in the proceedings, e.g. during the examination of a particular witness or the discussion of a particular legal issue or type of evidence, a victim will be required to show, in a discrete written application, the reasons why his or her interests are affected by the evidence or issue then arising in the case and the nature and extent of the participation they seek."

text: The Trial Chamber, in reaching these conclusions, relied on the following provisions of

text: the Statute

text: and the Rules:

text: Article 69

text: (3) of

text: the Statute

text: , with emphasis on the second sentence, which provides:

text: The parties may submit evidence relevant to the case, in accordance with Article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth. 89. Rule 91 (3) of the Rules provides:

text: 92 Ibid, at paragraph 30.

text: No.: ICC-01/04-01/06 OA 9 OA 10 30/44

text: (a) When a legal representative attends and participates in accordance with this rule, and wishes to question a witness, including questioning under rules 67 and 68, an expert or the accused, the legal representative must make application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor and, if appropriate, the defence, who shall be allowed to make observations within a time limit set by the Chamber. (b) The Chamber shall then issue a ruling on the request, taking into account the stage of the proceedings, the rights of the accused, the interests of the witnesses, the need for a fair, impartial and expeditious trial and in order to give effect to article 68, paragraph 3. The ruling may include directions on the manner and order of the questions and the production of documents in accordance with the powers of the Chamber under article 64. The Chamber may, if it considers it appropriate, put the question to the witness, expert or accused on behalf of the victim's legal representative. 90.

text: Article 68

text: (3) of

text: the Statute

text: , in relevant part, provides:

text: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. [...] 91. Article 69 (4), in relevant part, provides:

text: The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial [...] 92. The Trial Chamber determined at paragraph 96 and 108 of the Impugned Decision, that the Chamber had competency to permit victims participating in the case to tender and examine evidence, in appropriate circumstances following an application by the victims. The parties have challenged this finding on appeal, on the ground that it acknowledges a right to victims, equivalent to that held by the parties, to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence. The Impugned Decision lacks clarity in this regard.

text: The Appeals Chamber considers it important to underscore that the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, f\ No.: ICC-01/04-01/06 O A 9 O A 10 31/44 namely, the Prosecutor and the Defence. The first sentence of article 69 (3) is categorical: "[t]he parties may submit evidence relevant to the case, in accordance with article 64." It does not say "parties and victims may." The language of article 69 (3) cited above, and article 64 (6) (d) which provides that the Court shall have the authority to "[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties" clearly envisions that evidence presented during the trial would be presented by the parties. The

text: Rome Statute

text: framework contains numerous provisions which support this interpretation such as those pertaining to the role assigned specifically to the Prosecutor in, inter alia, investigating the crimes, formulating the charges and determining what evidence should be brought in relation to the charges (

text: articles 15

text: and

text: (5) of

text: the Statute

text: Article 66

text: (2) of

text: the Statute

text: provides: "[t]he onus is on the Prosecutor to prove the guilt of the accused". Presumptively, it is the Prosecutor's function to lead evidence of the guilt of the accused. In addition, the regime for disclosure contained in rules 76 to 84 of the Rules which sets out the specific obligations of the parties in this regard is a further indicator that the scheme is directed towards the parties and not victims.

text: However, the Appeals Chamber does not consider these provisions to preclude the possibility for victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence during the trial proceedings.

text: While mindful that the Prosecutor bears the onus of proving the guilt of the accused, it is nevertheless clear that "the Court has the authority to request the submission of all evidence that it considers necessary for the determination of the truth" (

text: article 69

text: (3) of

text: the Statute

text: ). The fact that the onus lies on the Prosecutor cannot be read to exclude the statutory powers of the court, as it is the court that "must be convinced of the guilt of the accused beyond reasonable doubt" (

text: article 66

text: (3) of

text: the Statute

text: Indeed,

text: the Statute

text: by virtue of

text: article 68

text: (3) establishes the right for victim participation, for the first time, in international criminal proceedings. This right may be exercised where the personal interests of victims are affected at stages of the proceedings

text: No.: ICC-01/04-01/06 OA 9 OA 10 32/44 determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

text: To give effect to the spirit and intention of

text: article 68

text: (3) of

text: the Statute

text: in the context of the trial proceedings it must be interpreted so as to make participation by victims meaningful. Evidence to be tendered at trial which does not pertain to the guilt or innocence of the accused would most likely be considered inadmissible and irrelevant. If victims were generally and under all circumstances precluded from tendering evidence relating to the guilt or innocence of the accused and from challenging the admissibility or relevance of evidence, their right to participate in the trial would potentially become ineffectual.

text: The framework established by the Trial Chamber, as outlined in paragraph 86 above, is premised on an interpretation of article 69 (3), second sentence, read with article 68 (3) and rule 91 (3) of the Rules, pursuant to which the Chamber, in exercising its competent powers, leaves open the possibility for victims to move the Chamber to request the submission of all evidence that it considers necessary for the determination of the truth.

text: In so doing the Trial Chamber did not create an unfettered right for victims to lead or challenge evidence, instead victims are required to demonstrate why their interests are affected by the evidence or issue, upon which the Chamber will decide, on a case-by-case basis whether or not to allow such participation. For example, should a victim demonstrate that his or her personal interests would be negatively affected if a particular witness (who could attest to the harm suffered by the victim) was not called to testify or if a piece of evidence (which would have ramifications on the safety and security of the victim) were to be declared admissible, then the victim would be able to move the Chamber to exercise its powers under article 69 (3) to present the evidence or challenge the admissibility of the evidence respectively.

text: In deciding each application the Trial Chamber, being vigilant in safeguarding the rights of the accused could take into account, inter alia, whether the hearing of such evidence would be appropriate, timely or for other reasons should not be ordered. If the

text: No.: ICC-01/04-01/06 OA 9 OA 10 33/44

text: Trial Chamber decides that the evidence should be presented then it could rule on the modalities for the proper disclosure of such evidence before allowing it to be adduced and depending on the circumstances it could order one of the parties to present the evidence, call the evidence itself, or order the victims to present the evidence.

text: In relation to the right afforded to victims to challenge the admissibility or relevance of evidence, the Trial Chamber relied on its general powers under article 69 (4) to declare any evidence admissible or relevant. The provision is silent as to who may challenge such evidence. Under

text: article 64

text: (9) of

text: the Statute

text: , the Trial Chamber has the power to rule on the admissibility or relevance of evidence on its own motion. These provisions must be seen in light of the provisions on victims' participation, in particular

text: article 68

text: (3) of

text: the Statute

text: and rules 89 and 91 of the Rules. In light of these provisions, nothing in articles 69 (4) and 64 (9) excludes the possibility of a Trial Chamber ruling on the admissibility or relevance of evidence after having received submissions by the victims on said evidence. The approach of the Trial Chamber in interpreting its powers, once again does not result in an unfettered right for victims but is subject to the application of article 68 (3), which is the founding provision governing victim participation in the proceedings.

text: In addition the Trial Chamber finds support for this approach in the provision under rule 91 (3) of the Rules. Under this rule the Trial Chamber may authorise, upon request, the legal representatives of victims to question witnesses or to produce documents in the restricted manner ordered. The Appeals Chamber considers that it cannot be ruled out that such questions or documents may pertain to the guilt or innocence of the accused and may go towards challenging the admissibility or relevance of evidence in so far as it may affect their interests earlier identified and subject to the confines of their right to participate. To exemplify this position one may envisage the adduction of evidence irrelevant to or inadmissible with regard to identification of the harm suffered by the victim. The evidence may have a source lacking credibility or may not bear relevance to the identification of such harm. In some such situations, participating victims may challenge the admissibility or relevance of evidence to be adduced where its admission would affect their personal interests.

text: No.: ICC-01/04-01/06 OA 9 OA 10 34/44

text: Other instances noted by the legal representatives of the victims merit consideration. In paragraph 29 of the Victims' Observations the legal representatives aver that:

text: The personal interest of the victims may be affected by the presentation of a piece of evidence, and that they may have an interest in challenging its admissibility or relevance. That may even be one of the motivating factors for their participation in the proceedings. Such interest may result from the consequences which the evidence presented or proposed may have on their possible right to reparations, but also because the presentation of certain pieces of evidence may be directly prejudicial to them. By way of example, we can mention evidence: • which violates the rules of confidentiality, in particular, if the confidentiality affects victim protection (article 69 (5)) • which is obtained by a means which violates an internationally recognised human right of the victim or a family member (article 69 (7)) • whose presentation might be harmful to their security and safety or dignity • which would violate rules 70 and 71 in the case of sexual violence • which would violate an arrangement with the victim or a family member pursuant to article 54 (d). 104. The Trial Chamber has correctly identified the procedure and confined limits within which it will exercise its powers to permit victims to tender and examine evidence: (i) a discrete application, (ii) notice to the parties, (iii) demonstration of personal interests that are affected by the specific proceedings, (iv) compliance with disclosure obligations and protection orders, (v) determination of appropriateness and (vi) consistency with the rights of the accused and a fair trial. With these safeguards in place, the Appeals Chamber does not consider that the grant of participatory rights to victims to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of the evidence is inconsistent with the onus of the Prosecutor to prove the guilt of the accused nor is it inconsistent with the rights of the accused and a fair trial.

text: Accordingly, the Appeals Chamber confirms the decision of the Trial Chamber allowing participating victims the possibility to lead evidence pertaining to the guilt or

text: No.: ICC-01/04-01/06 OA 9 OA 10 35/44 innocence of the accused, and to challenge the admissibility or relevance of evidence in the trial proceedings.

text: IV. APPROPRIATE RELIEF

text: Rule 158 (1) of the Rules of Procedure and Evidence provides that the Appeals Chamber may "confirm, reverse or amend the decision appealed".

text: In relation to the first issue on appeal the Appeals Chamber confirms the finding of the Trial Chamber to the extent that harm suffered by victims does not necessarily have to be direct. The Appeals Chamber confirms that the notion of victim necessarily implies the existence of personal harm but does not necessarily imply the existence of direct harm.

text: In relation to the second issue on appeal the Appeals Chamber reverses the finding of the Trial Chamber that neither rule 85 of the Rules nor the

text: Rome Statute

text: In relation to the third issue on appeal the Appeals Chamber confirms the finding of the Trial Chamber that victims participating in the trial proceedings may, in principle, lead evidence pertaining to the guilt or innocence of the accused and challenge the admissibility or relevance of the evidence.

text: Judge Pikis appends a partly dissenting opinion to this judgment. The partly dissenting opinion of Judge Kirsch will follow and will be filed as an annex to this judgment.

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

text: Judge Navanethem Pillay / Presiding, Dated this 1 Ith day of July 2008 At The Hague, The Netherlands

text: No.: ICC-01/04-01/06 OA 9 OA 10 36/44

text: Partly Dissenting opinion of Judge G.M. Pikis

text: The following three issues were certified by the Trial Chamber as subjects of appeal arising from its decision on victims' participation of 18 January 2007:

text: A. "Whether the notion of victim necessarily implies the existence of personal and direct harm.

text: B. Whether the harm alleged by a victim and the concept of 'personal interests' under

text: Article 68

text: of

text: the Statute

text: must be linked with the charges against the accused.

text: C. Whether it is possible for victims participating at trial to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence"1.

text: I join the majority judgment with regard to the resolution of issue B, and endorse the reversal of the decision of the Trial Chamber and the affirmation that "the harm alleged by a victim and the concept of personal interests under

text: article 68

text: (3) of

text: the Statute

text: must be linked with the charges confirmed against the accused"2.

text: In relation to issue A, I agree that to qualify as a victim under rule 85 (a) of the Rules of Procedure and Evidence3, the claimant of that status must have personally suffered harm. The word harm denotes, as explained in the majority judgment of the Appeals Chamber, hurt, injury and damage. I also associate myself with the determination that "material, physical and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim"4. Sequentially, I am in agreement with the finding that to qualify as a victim under rule 85 (a), the harm suffered must necessarily be personal harm. On the other hand, I disagree with the position that

text: ' Prosecutor v. Lubanga Dyilo "Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims' Participation of 18 January 2008" 26 February 2008 (ICC-01/04-01/06-1101), para. _54 Majority Judgment, para. 64. 3 Hereinafter "the Rules" 4 Ibid., para. 31.

text: No.: ICC-01/04-01/06 OA 9 OA 10 37/44

text: "the harm suffered by victims does not necessarily have to be direct"5. There must be a direct nexus between the crime and the harm, in the sense of cause and effect. Psychological harm may, no doubt, be suffered without prior physical harm, but the crime itself must be the cause generating the harm, as may be the case with the destruction, violation or humiliation of persons near and dear to the victims.

text: I dissent from the majority judgment with regard to the resolution of issue C, both aspects of it, namely whether it is possible for victims participating at the criminal trial a) to lead evidence pertaining to the guilt or innocence of the accused and b) to challenge the admissibility or relevance of evidence.

text: My answer to both questions is in the negative. Victims can neither adduce evidence on the guilt or innocence of the accused nor challenge the admissibility or relevance of evidence. My reasons for so holding are explained below.

text: The Statute

text: does not permit the participation of anyone in the proof or disproof of the charges other than the Prosecutor and the accused. Exclusive responsibility is cast on the Prosecution for the investigation of a case, the collection of evidence, the arrest of the person, the substantiation of the charges at the confirmation hearing, and their proof at the trial.

text: The Prosecutor is the authority upon whom power is reposed to carry out investigations into a crime referred to him or coming to his notice. If he concludes that there is a reasonable basis for holding an investigation, he must seek authorisation from the Pre-Trial Chamber to hold an investigation.6 The initiation of an investigation is the prelude to any steps that may be taken thereafter for bringing a person to justice.

text: The investigatory and prosecutorial processes are entwined in the person of the Prosecutor.7 The Prosecutor is the organ of the Court to whom power is vested to apply for the issuance of a warrant of arrest or the issuance of a summons calling the person to

text: 5 Ibid, page 3. 6 See

text: article 15

text: (3) of

text: the Statute

text: . 7 See, inter alia,

text: article 53

text: of

text: the Statute

text: No.: ICC-01/04-01/06 OA 9 OA 10 38/44 appear.8

text: Article 54

text: of

text: the Statute

text: binds the Prosecutor to extend the investigation to all facts relevant to determining whether there appears to be criminal responsibility on the part of a person. In so doing, he is bound to investigate "incriminating and exonerating circumstances equally"9.

text: It is the duty of the Prosecutor to provide the person under investigation with a copy of the document containing the charges and the evidence on which the Prosecutor intends to rely at the confirmation hearing.10 Moreover, he is duty-bound to disclose to the person all evidence relevant to the cause, subject to any exceptions sanctioned under rule 81 of the Rules, and to make available for inspection to him/her material in his possession or control." The accused is not put on trial upon the charges preferred by the Prosecutor. The charges must be approved by the Pre-Trial Chamber upon the Prosecutor supporting "each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged"12. The confirmation of the charges depends on the discharge of this burden. No one other than the Prosecutor is vested with authority to adduce evidence at the confirmation hearing, evidence that may be challenged by the person who is also entitled to object to the charges, to challenge evidence presented by the Prosecutor, and to present evidence himself.13

text: Rights comparable to those of the accused are assured to the person against whom the charges are directed at the confirmation hearing.14 Like the Pre-Trial Chamber, the Trial Chamber too must, prior to the commencement of the trial, make provision for the disclosure of documents or information not previously disclosed in order to afford an opportunity to the accused to prepare for the trial. Disclosure of evidence in the form of witness statements and material bearing on the charges is a prerequisite for the holding of a confirmation hearing and the trial. This is the norm laid down in

text: the Statute

text: , reflecting the norms of a fair trial.

text: 8 See

text: article 58

text: of

text: the Statute

text: . ' See

text: article 54

text: (1) (a) of

text: the Statute

text: . 10 See

text: article 61

text: (3) of

text: the Statute

text: . " See rule 77 of the Rules ': See

text: article 61

text: (5) of

text: the Statute

text: . 11 See

text: article 61

text: (6) of

text: the Statute

text: . 14 See

text: articles 67

text: and

text: of

text: the Statute

text: and rule 121 (1) of the Rules.

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text: It must be reminded that upon constitution of the Trial Chamber, the record of the proceedings before the Pre-Trial Chamber, that is, the record of the confirmation hearing, must be transmitted to the Trial Chamber.15

text: The burden of proving the charges is on the Prosecutor.

text: Article 66

text: (2) of

text: the Statute

text: provides, "The onus is on the Prosecutor to prove the guilt of the accused." The Prosecutor is the only authority the accused has to confront in relation to the charges. The two sides are locked into a conflict upon the denial of the charges by the accused. Neither the Trial Chamber nor the Pre-Trial Chamber is concerned with the collection of evidence. The Trial Chamber, as provided in

text: article 69

text: (3) of

text: the Statute

text: , may request either party to submit all evidence that it considers necessary for the determination of the truth; such evidence, no doubt, is the evidence of which it is apprised by the record of the confirmation hearing before it. The Trial Chamber is vested with a like power in the case of a plea of guilty, as it emerges from the provisions of

text: article 65

text: (3) of

text: the Statute

text: The Trial Chamber is bound to assure a fair and expeditious trial16, with due regard to the rights of the accused and the protection of victims and witnesses, whose protection is envisaged by the provisions of

text: article 68

text: (1) of

text: the Statute

text: . The obligation to hold a trial in accordance with the norms of a fair trial is also imposed by the provisions of

text: article 21

text: (3) of

text: the Statute

text: .17 A fair trial entails an adversarial hearing, warranted, inter alia, by the rights of the accused, the sustenance of which is an inseverable element of a fair trial. Timely prior disclosure of the evidence that will be adduced at the trial, necessary for the preparation of the defence, is assured as a right of the accused by the provisions of

text: article 67

text: of

text: the Statute

text: 15 See rule 130 of the Rules 16 See

text: article 64

text: (2) of

text: the Statute

text: . 17 Prosecutor v. Lubanga Dyilo "Decision on the Prosecutor's "Application for Leave to Reply to 'Conclusions de la défense en réponse au mémoire d'appel du Procureur'"" 12 September 2006 (ICC- 01/04-01/06-424), para. 3; Prosecutor v Lubanga Dyilo "Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to

text: article 19

text: (2) (a) of

text: the Statute

text: of 3 October 2006" 14 December 2006 (

text: ), para. 37.

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text: A series of decisions of the European Court of Human Rights identify the nature of a hearing conforming to the norms of a fair trial. An adversarial hearing18 casts the Prosecution and the defence in opposition, confronting one another in a process designed to determine whether the burden cast on the Prosecution is discharged at the end of the day. Fair trial imports equality of arms, as stressed in the case of Brandstetter v. Austria.^ Adversarial proceedings, it was said, entail the right, in a criminal case, "that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party"20. Adversarial proceedings are "intended above all to secure the interests of the parties and those of the proper administration of justice"21. It is worth mentioning that in Dombo Beheer BV v. Netherlands22, the Chamber underlined that the requisites of an adversarial hearing must be strictly observed in criminal cases. In sum, in an adversarial hearing the two sides are cast in the position of adversaries, in connection with the determination of the only issue raised before the Chamber, the guilt or innocence of the accused. The adversary of the accused is the Prosecutor and none other. The defendant cannot have more than one accuser. It is not for the accused to prove his innocence. He is presumed to be innocent. The ultimate question is whether the Prosecution proved its case beyond reasonable doubt.

text: The participation of victims in the proceedings is confined to the expression of their views and concerns. As explained in my separate, concurring opinion in the decision of the Appeals Chamber of 13 June 200723, participation of victims is confined to the

text: 18 S. J. Summers, "The European Criminal Procedural Tradition and the European Court of Human Rights ", Oxford and Portland, Oregon, Hart Publishing, 2007, pages 6-7. It is noted that the term "adversarial" is occasionally used interchangeably with the term "accusatorial." 19 European Court of Human Rights, Brandstetter v. Austria, Judgment of 28 August 1991, Application no. 11170/84; 12876/87; 13468/87, para 66; See also European Court of Human Rights, Borgers v Belgium, Judgment of 30 October 1991, Application no. 12005/86, para. 24. 20 European Court of Human Rights, Brandstetter v Austria, Judgment of 28 August 1991, Application no. \ 1170/84, 12876/87; 13468/87, para. 66. 21 European Court of Human Rights, Niderost-Huber v Switzerland, Judgment of 27 January 1997, Application No. 104/1995/610/698, para. 30; European Court of Human Rights, Acquaviva v France, Judgment of 21 November 1995, Application No. 45/1994/492/574, para. 66. 22 European Court of Human Rights, Dombo Beheer BV v. Netherlands, Judgment of 27 October 1993, Application no. 14448/88, para. 32. 23 Prosecutor v Lubanga Dyilo, "Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the 'Directions and Decision of the Appeals Chamber' of 2 February 2007" 13 June 2007 (ICC-01/04-01/06-925), Separate Opinion of Judge Georghios M. Pikis.

text: No.: ICC-01/04-01/06 O A 9 O A 10 41/44 expression of their "views and concerns," whereafter I added, "It is a highly qualified participation limited to the voicing of their views and concerns. Victims are not made parties to the proceedings nor can they proffer or advance anything other than their 'views and concerns'"24 In relation to what can victims express their views and concerns was the next subject I addressed in the above case. "Not in relation to the proof of the case or the advancement of the defence. The burden of proof of the guilt of the accused lies squarely with the Prosecutor (

text: article 66

text: (2) of

text: the Statute

text: ). Provision is made in

text: the Statute

text: article 54

text: (1)) for the Prosecutor to seek and obtain information from victims about the facts surrounding the crime or crimes forming the subject-matter of the proceedings. That the judicial process should follow its ordained course is a cause common to all; its sustenance is the responsibility of the Court, the guardian of the judicial process. It is not the victims' domain either to reinforce the prosecution or dispute the defence."25 The views and concerns of victims are, as indicated in the same opinion, "...referable to the cause that legitimizes their participation, the cause that distinguishes them from other victims, namely their personal interests to the extent they are affected by the proceedings."26

text: The rights of the person under charge at the confirmation hearing and the accused assure them "...of prior knowledge of evidence and information founding the case against him/her. Such knowledge must be gained prior to the confirmation hearing or the trial in order to enable the person under charge or the accused to prepare the defence to the case against him/her."27

text: Rule 91 of the Rules aims to elicit the parameters of participation. It is made clear that victims cannot question witnesses as of right. They may do so after the prior authorisation of the Chamber, and in a manner prescribed by the Chamber. Such questions must necessarily relate to the personal interests of the victims that legitimise

text: 24 Ibid., para. 15 25 Ibid., para. 16. 26 Ibid, para. 16. Prosecutor v Lubanga Dyilo, "Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the 'Directions and Decision of the Appeals Chamber' of 2 February 2007" 13 June 2007 (ICC-01/04-01/06-925), Separate Opinion of Judge Georghios M. Pikis, para 18

text: No.: ICC-01/04-01/06 OA 9 OA 10 42/44 their participation. Moreover, account must be taken of the rights of the accused28, and in a manner that is neither prejudicial to nor inconsistent with the rights of the accused and a fair and impartial trial. It would not, for instance, be permissible for victims to raise questions relating to facts of which the accused was not forewarned by the disclosure of evidence on the subject. Under

text: the Statute

text: , the entire process, from investigation to trial, is fashioned on the principles of an adversarial hearing.

text: Victims may themselves be witnesses. Concerns about their safety and their right to reparations are no doubt subjects of concern to them. Participation of a victim at the trial, it must be clarified, is not a prerequisite for claiming reparations. Rule 94 of the Rules identifies the particulars to be provided by a victim claiming reparations. But reparations under the scheme of

text: the Statute

text: can only be claimed against a convicted person (article 77 (2)).

text: Amenity on the part of victims to challenge the admissibility or relevance of evidence is the next issue to be addressed. The test for the reception of evidence is relevance to the subject-matter of the proceedings, that is, the charges. Relevant evidence is admissible unless the Court, for reasons laid down in

text: the Statute

text: , holds it to be inadmissible. Such reasons are identified in

text: article 69

text: (4) and (7) of

text: the Statute

text: . Evidence may be rejected on account of its probative value, or more accurately lack of it, and prejudice it may occasion to a fair trial or a fair evaluation of the testimony of a witness. Relevant evidence may also be rejected if obtained in breach of human rights if the violation casts doubts on the reliability of the evidence or where its admission would be antithetical or seriously damaging to the integrity of the proceedings. Logic is the guide to the determination of the relevance of evidence to the subject-matter of the proceedings, defined by the charges confronting the accused. The proof or disproof of the charges is a matter affecting the adversaries. The victims have no say in the matter. Their interest is that justice should be done, coinciding with the interest of the world at large that the criminal process should run its course according to law, according to the norms of a fair trial. Both the submission of evidence and its reception affect the parties to the adversity. It is not the victims' concern, a matter directly related to the reception of evidence, to

text: -8 See

text: article 91

text: (3) (b) of

text: the Statute

text: No.: ICC-01/04-01/06 OA 9 OA 10 43/44 either prove or disprove the charges. The interests of justice are safeguarded by the Chamber, trusted to ensure that only relevant and admissible evidence, in the context earlier defined, can be received in proceedings before it. The presumption of innocence leaves no room for anyone other than the Prosecutor to assert the contrary and seek to prove it by the adduction of relevant evidence, admissible in the criminal proceedings before the Chamber. Done in both English and French, the English version being authoritative.

text: Judge Georghios M. Pikis Dated this 11t h day of July 2008 At The Hague, The Netherlands

text: No.: ICC-01/04-01/06 OA 9 OA 10 44/44

title: The Prosecutor v. Thomas Lubanga Dyilo