identifier: ICC-01/04-02/06 (Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”)

title: Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”

text: Geneva Conventions, article 3

text: Geneva Conventions, article 3

text: Geneva Conventions, article 3

text: Geneva Conventions, article 3

text: the Statute

text: the Statute, article 19

text: the Statute, article 5

text: Rome Statute, article 61

text: the Statute, article 7

text: the Statute, article 8

text: the Statute, article 82

text: the Statute, article 93

text: Original: English No. ICC-01/04-02/06 OA 2 Date: 22 March 2016

text: THE APPEALS CHAMBER

text: Before: Judge Christine Van den Wyngaert, Presiding Judge Judge Sanji Mmasenono Monageng Judge Howard Morrison Judge Piotr Hofmański Judge Raul C. Pangalangan

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

text: IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA

text: Public document

text: Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”

text: No: ICC-01/04-02/06 OA 2 1/20

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

text: The Office of the Prosecutor Counsel for the Defence

text: Ms Fatou Bensouda, Prosecutor Mr Stéphane Bourgon Ms Helen Brady Mr Luc Boutin

text: Legal Representatives of Victims

text: Ms Sarah Pellet Mr Dmytro Suprun

text: REGISTRY Registrar

text: Mr Herman von Hebel

text: No: ICC-01/04-02/06 OA 2 2/20

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Bosco Ntaganda against the decision of Trial Chamber VI entitled “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” of 9 October 2015 (

text: After deliberation, Unanimously, Delivers the following

text: J U D G M E N T

text: The “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” is reversed and the matter is remanded to the Trial Chamber for it to address in accordance with the requirements of

text: article 19

text: of

text: the Statute

text: REASONS

text: I. KEY FINDINGS

text: Decisions rejecting challenges under

text: article 19

text: of

text: the Statute

text: on the grounds that they do not challenge the jurisdiction of the Court are considered to be “decisions with respect to jurisdiction” within the meaning of

text: article 82

text: (1) (a) of

text: the Statute

text: and appeals against such decisions are admissible. 2. In relation to decisions of this nature, it is necessary to assess whether a proper jurisdictional challenge has been raised, but erroneously not addressed by the first instance Chamber on the basis that it was not a jurisdictional challenge. 3. Challenges, which would, if successful, eliminate the legal basis for a charge on the facts alleged by the Prosecutor may be considered to be jurisdictional challenges.

text: No: ICC-01/04-02/06 OA 2 3/20

text: II. PROCEDURAL HISTORY

text: A. Proceedings before the Pre-Trial Chamber and Trial Chamber

text: On 9 June 2014, Pre-Trial Chamber II confirmed the charges against Mr Bosco Ntaganda (“Mr Ntaganda”), which included, inter alia, war crimes of rape and sexual

text: slavery of child soldiers in the Union des Patriotes Congolais/Forces Patriotiques pour la Libération du Congo (“UPC/FPLC”) by UPC/FPLC members under article

text: 8 (2) (e) (vi) of

text: the Statute

text: (“Counts 6 and 9”).

text: On 1 September 2015, Mr Ntaganda challenged the subject-matter jurisdiction

text: of the Court before Trial Chamber VI (“Trial Chamber”) with respect to Counts 6 and

text: 9 (“Mr Ntaganda’s Challenge”). Mr Ntaganda argued that article 8 (2) (e) (vi) of the

text: Statute does not foresee the possibility of child soldiers who are members of the same

text: armed group as the accused being victims of the war crimes of rape and sexual

text: slavery.

text: On 9 October 2015, having received submissions from the legal representative

text: 4 5

text: of former child soldiers (“Victims”) and the Prosecutor, and a reply from

text: “Decision Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: on the Charges of the Prosecutor Against Bosco Ntaganda”,

text: , paras 76-82. In so doing, Pre-Trial Chamber II rejected Mr Ntaganda’s arguments that the crimes of rape and sexual slavery of child soldiers “are not foreseen by

text: the Statute

text: , as international humanitarian law (“IHL”) does not protect persons taking part in hostilities from crimes committed by other persons taking part in hostilities on the same side of the armed conflict”. See also Transcript of 13 February 2014, ICC-01/04-02/06-T-10-Red-ENG (WT), p. 26, line 20 - p. 27; “Conclusions écrites de la Défense de Bosco Ntaganda suite à l’Audience de confirmation des charges”, 8 April 2014, ICC-01/04-02/06-292-Conf-Exp; a public redacted version dated 14 April 2014 was registered on 15 April 2014 (ICC-01/04-02/06-292-Red2), para. 251. “Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges”, ICC-01/04-02/06-804. Mr Ntaganda’s Challenge, paras 8-13. “Former child soldiers’ response to the ‘Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document containing the charges’”, 9 September 2015, ICC-01/04-02/06-814. “Prosecution Response to the ‘Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Document Containing the Charges’, ICC-01/04-02/06- 804”, 11 September 2015, ICC-01/04-02/06-818 (“Prosecutor’s Response”).

text: No: ICC-01/04-02/06 OA 2 4/20

text: Mr Ntaganda to the Prosecutor’s response, the Trial Chamber rejected

text: Mr Ntaganda’s Challenge (“Impugned Decision”).

text: B. Proceedings before the Appeals Chamber

text: On 19 October 2015, Mr Ntaganda appealed the Impugned Decision.

text: On 27 October 2015, the Prosecutor filed an application for the Appeals Chamber to dismiss Mr Ntaganda’s appeal in limine and to “issue directions

text: on the future conduct of the proceedings […]” (“Prosecutor’s Application for the

text: Appeal to be Declared Inadmissible”). Mr Ntaganda filed a response to this

text: application on 29 October 2015. On the same day, the Appeals Chamber rejected the Prosecutor’s application (“Decision of 29 October 2015”), finding “that it would be in

text: the interests of judicial economy to hear submissions on the admissibility of the present appeal in conjunction with the submissions on the merits […] without

text: prejudice to the question of whether the appeal is admissible”.

text: On 2 November 2015, Mr Ntaganda filed the document in support of the

text: appeal (“Document in Support of the Appeal”), to which the Prosecutor responded

text: on 24 November 2015.

text: “Reply on behalf of Mr Ntaganda to ‘Prosecution Response to the “Application on behalf of Mr Ntaganda challenging the jurisdiction of the Court in respect of Counts 6 and 9 of the Documents containing the charges”, ICC-01/04-02/06-804’”, 24 September 2015, ICC-01/04-02/06-863. “Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9”,

text: , p. 12. “Appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9’,

text: ”, ICC-01/04-02/06- 909 (OA 2). “Prosecution’s application to dismiss in limine Bosco Ntaganda’s Appeal against Trial Chamber VI’s decision in respect of Counts 6 and 9”, ICC-01/04-02/06-952 (OA 2), paras 12-13. “Expedited preliminary response on behalf of Mr Ntaganda to ‘Prosecution’s application to dismiss in limine Bosco Ntaganda’s Appeal against Trial Chamber VI’s decision in respect of Counts 6 and 9’”, ICC-01/04-02/06-965 (OA 2) (“Mr Ntaganda’s Response to Prosecutor’s Application for the Appeal to be Declared Inadmissible”). “Decision on the Prosecutor’s application to dismiss the appeal in limine and directions on the submission of observations pursuant to

text: article 19

text: (3) of the

text: Rome Statute

text: and rule 59 (3) of the Rules of Procedure and Evidence”, ICC-01/04-02/06-966 (OA 2), para. 9. “Document in support of the appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on the Defence’s Challenge to the jurisdiction of the Court in respect of Counts 6 and 9’, ICC-01/04- 02/06-892”, ICC-01/04-02/06-972 (OA 2). “Prosecution’s response to Mr Ntaganda’s appeal against the ‘Decision on the Defence’s Challenge to the Jurisdiction of the Court in respect of Counts 6 and 9’”, ICC-01/04-02/06-1034 (OA 2) (“Response to the Document in Support of the Appeal”).

text: No: ICC-01/04-02/06 OA 2 5/20

text: On 30 November 2015, the Victims filed their observations on the Document in

text: 14 15

text: Support of the Appeal, to which Mr Ntaganda responded on 7 December 2015.

text: The Prosecutor did not file a response to those observations.

text: III. RELEVANT PARTS OF THE IMPUGNED DECISION

text: In the Impugned Decision, the Trial Chamber rejected Mr Ntaganda’s

text: Challenge, which was framed as a challenge to the Court’s jurisdiction under article

text: 19 of

text: the Statute

text: . In determining whether Mr Ntaganda’s Challenge was jurisdictional

text: in nature, the Trial Chamber stated that the Appeals Chamber had narrowly defined

text: the scope of challenges to jurisdiction, citing two Appeals Chamber decisions in the

text: cases of The Prosecutor v. William Samoei Ruto et al. and The Prosecutor v. Francis Kirimi Muthaura et al. (“Ruto et al. OA 3 OA 4 Decision” and “Muthaura et al.

text: OA 4 Decision”, respectively). The Trial Chamber stated that the Appeals Chamber

text: had referred to jurisprudence of the ad hoc tribunals, in particular the International Criminal Tribunal for the former Yugoslavia (“ICTY”), “when it noted that the

text: question ‘whether a crime or mode of liability existed under customary international

text: law […] falls within the scope of a jurisdictional challenge’, whilst ‘challenges

text: relating to the contours or elements of crimes’ do not and are instead to be addressed

text: at trial”.

text: The Trial Chamber decided that in this case there was no need to assess “whether a crime exists under customary international law, because the war crimes

text: “Former Child Soldiers’ observations on the ‘Document in support of the appeal on behalf of Mr Ntaganda against Trial Chamber VI’s “Decision on the Defence’s Challenge to the jurisdiction of the Court in respect of Counts 6 and 9”,

text: ’”, ICC-01/04-02/06-1040 (OA 2) (“Victims’ Observations”). “Response to ‘Former Child Soldiers’ observations on the “Document in support of the appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on the Defence’s Challenge to the jurisdiction of the Court in respect of Counts 6 and 9’,

text: ”’”, ICC-01/04-02/06- 1045 (OA 2) (“Mr Ntaganda’s Response to the Victims’ Observations”). “Decision on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: ’”, 24 May 2012,

text: (OA 3 OA 4); “Decision on the appeal of Mr Francis Kirimi Muthaura and Mr Uhuru Muigai Kenyatta against the decision of Pre-Trial Chamber II of 23 January 2012 entitled ‘Decision on the Confirmation of Charges Pursuant to

text: Article 61

text: (7)(a) and (b) of the

text: Rome Statute

text: ’”, 24 May 2012, ICC-01/09-02/11- 425 (OA 4). Impugned Decision, para. 24. Impugned Decision, para. 24, referring to Ruto et al. OA 3 OA 4 Decision, para. 31 and Muthaura et al. OA 4 Decision, para. 37; both referring to ICTY, Trial Chamber, Prosecutor v. Milan Milutinović et al., “Decision on Ojdanic’s Motion Challenging Jurisdiction: Indirect Co-Perpetration”, 22 March 2006, IT-05-87-PT, para. 23.

text: No: ICC-01/04-02/06 OA 2 6/20 within the Court’s jurisdiction are set out in

text: Article 8

text: of

text: the Statute

text: in an exhaustive list”. It stated that “[t]he Court has jurisdiction over the war crimes of rape and sexual slavery, as such, and the Defence does not challenge that this is the case”. The Trial Chamber noted that, unlike other provisions of

text: the Statute

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: “does not specify who can be victims of the war crimes listed therein, and that the corresponding Elements of Crimes refer only to ‘person’ and ‘persons’”.

text: The Trial Chamber observed “that the term ‘child soldier’ is not a legal one”, but rather “a descriptive one that refers to the alleged victims of the alleged rape and sexual slavery listed under Counts 6 and 9” and stated that “[t]he question as to which persons can be included in this phrase is to be addressed at trial”. It concluded:

text: The Chamber need not address at this stage whether such children, or persons generally, can under the applicable law be victims of rape and sexual slavery pursuant to Article 8(2)(e)(vi) when committed by members of the same group. Such questions of substantive law are to be addressed when the Chamber makes its assessment of whether the Prosecution has proven the crimes charged.

text: IV. ADMISSIBILITY OF THE APPEAL

text: In the Decision of 29 October 2015, the Appeals Chamber rejected the Prosecutor’s Application for the Appeal to be Declared Inadmissible. In so doing, however, it did not reject the Prosecutor’s submissions contained within that application on their merits. Rather, it decided that submissions related to the admissibility of the appeal should be made in conjunction with the submissions on the 24 merits of the appeal. It therefore left open the question as to whether the appeal was admissible. The Appeals Chamber considers it appropriate to address this issue first. 15.

text: Article 82

text: (1) (a) of

text: the Statute

text: provides that either party may appeal “a decision with respect to jurisdiction or admissibility”. In previous decisions, the Appeals Chamber has given the following interpretation of this provision:

text: 19 Impugned Decision, para. 25. 20 Impugned Decision, para. 25. 21 Impugned Decision, para. 25. 22 Impugned Decision, para. 26. 23 Impugned Decision, para. 28. 24 Decision of 29 October 2015, paras 9-10.

text: No: ICC-01/04-02/06 OA 2 7/20

text: The Appeals Chamber understands from the phrase “decision with respect to” that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility. As previously held by the Appeals Chamber, a decision of a Pre-Trial or Trial Chamber may constitute a “decision with respect to [...] admissibility” only to the extent that it consisted of or “was based on” a ruling that a case was admissible or inadmissible. […]

text: […] In the view of the Appeals Chamber, the specific references to

text: article 82

text: of

text: the Statute

text: and the use of identical language in

text: articles 19

text: (6) and

text: (1) (a) of

text: the Statute

text: indicate that the right to appeal a decision on jurisdiction or admissibility is intended to be limited only to those instances in which a Pre- Trial or Trial Chamber issues a ruling specifically on the jurisdiction of the Court or the admissibility of the case.

text: The Appeals Chamber has also stated:

text: It is the nature, and not the ultimate effect or implication of a decision, that determines whether an appeal falls under

text: article 82

text: (1) (a) of

text: the Statute

text: . Even if the ultimate impact of a decision of a Pre-Trial or Trial Chamber were to affect the admissibility of cases, that fact would not, in and of itself, render the decision a “decision with respect to [...] admissibility” under article 82 (1) (a).

text: The Prosecutor argues, by reference to the above jurisprudence, that Mr

text: Ntaganda improperly filed his appeal under

text: article 82

text: (1) (a) of

text: the Statute

text: . The Prosecutor submits that the Trial Chamber “did not rule on the jurisdiction of the

text: Situation in the Republic of Kenya, “Decision on the admissibility of the ‘Appeal of the Government of Kenya against the “Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to

text: Article 93

text: (10) of

text: the Statute

text: and Rule 194 of the Rules of Procedure and Evidence”’”, 10 August 2011, ICC-01/09-78 (OA) (“Kenya Appeals Chamber Decision on Admissibility of Appeal”), paras 15-16. See also The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, “Decision on the admissibility of the ‘Appeal Against Decision on Application Under Rule 103’ of Ms Mishana Hosseinioun of 7 February 2012”, dated 9 March 2011 and registered on 9 March 2012, ICC-01/11-01/11-74 (OA) (“Mishana Hosseinioun Appeals Chamber Decision on Admissibility of Appeal”), para. 10; The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, “Decision on ‘Government of Libya’s Appeal Against the “Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi”’ of 10 April 2012”, 25 April 2012, ICC-01/11-01/11-126 (OA 2) (“Libya Appeals Chamber Decision on Admissibility of Appeal”), para. 13; The Prosecutor v. Germain Katanga, “Decision on the admissibility of the appeal against the ‘Decision on the application for the interim release of detained Witnesses DRC-D02-P0236, DRC-D02-P0228 and DRC-D02-P0350’”, 20 January 2014, ICC-01/04- 01/07-3424 (OA 14), para. 33; Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, “Decision on the admissibility of the Prosecutor’s appeal against the ‘Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation’”, 6 November 2015, ICC-01/13-51 (OA), paras 41-43. Kenya Appeals Chamber Decision on Admissibility of Appeal, para. 17. Prosecutor’s Application for the Appeal to be Declared Inadmissible, para. 1. See also para. 4, referring to Kenya Appeals Chamber Decision on Admissibility of Appeal, paras 15-17; Mishana Hosseinioun Appeals Chamber Decision on Admissibility of Appeal, paras 10-11; Libya Appeals Chamber Decision on Admissibility of Appeal, para. 13.

text: No: ICC-01/04-02/06 OA 2 8/20

text: Court”, but found that “Mr Ntaganda did not challenge the Court’s jurisdiction over the crimes of rape and sexual slavery” and “refused to address Mr Ntaganda’s arguments as it considered that they are questions ‘of substantive law […] to be addressed when the Chamber makes its assessment of whether the Prosecution has proven the crimes charged’”. According to the Prosecutor, the Impugned Decision was therefore not a decision “with respect to jurisdiction” within the meaning of

text: article 82

text: (1) (a) of

text: the Statute

text: and the appeal is inadmissible. Conversely, the Victims submit that “a ruling characterising a challenge as non-jurisdictional in nature may qualify as an appealable decision with respect to jurisdiction under

text: article 82

text: (1)(a) of the

text: Rome Statute

text: ”. They argue that this “constitutes a determination with respect to jurisdiction”. Mr Ntaganda did not respond to the Prosecutor’s arguments, 32 other than to state that he opposed her application.

text: In the present case, the Appeals Chamber notes that Mr Ntaganda filed a challenge which he framed as a challenge to the subject-matter jurisdiction of the Court pursuant to

text: article 19

text: of

text: the Statute

text: . Although the Trial Chamber did not explicitly find that Mr Ntaganda’s Challenge did not raise a question of jurisdiction, the Appeals Chamber considers that this is the clear import of its reasoning and ultimate conclusion. The Trial Chamber found that the question is one of “substantive law […] to be addressed when the Chamber makes its assessment of whether the Prosecution has proven the crimes charged”. On this basis, the Trial Chamber rejected Mr Ntaganda’s Challenge. The question arises as to whether the Appeals Chamber can review the correctness of this conclusion. 18. The Appeals Chamber considers that, if Mr Ntaganda’s Challenge were a proper challenge to jurisdiction, the matter should have been determined by the Trial Chamber, provided that the procedural requirements were deemed to have been satisfied. It is noted that various provisions of

text: the Statute

text: and the Rules of Procedure 28 Prosecutor’s Application for the Appeal to be Declared Inadmissible, paras 7-8, referring to Impugned Decision, p. 12, paras 25, 28. 29 Prosecutor’s Application for the Appeal to be Declared Inadmissible, para. 12. 30 Victims’ Observations, para. 4. 31 Victims’ Observations, para. 9. 32 Mr Ntaganda’s Response to Prosecutor’s Application for the Appeal to be Declared Inadmissible, para. 2. 33 Mr Ntaganda’s Challenge, para. 1. 34 Impugned Decision, paras 24-28. 35 Impugned Decision, para. 28.

text: No: ICC-01/04-02/06 OA 2 9/20 and Evidence address the timing of challenges to jurisdiction and related decisions.

text: Article 19

text: (1) of

text: the Statute

text: provides that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it”. Article 19 (4) provides that a challenge to jurisdiction will “take place prior to or at the commencement of the trial”, with subsequent challenges permitted only in exceptional circumstances. Rule 58 (2) of the Rules of Procedure and Evidence provides that a Chamber may join a “challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first”. Rule 58 (4) of the Rules of Procedure and Evidence provides that challenges to jurisdiction shall be determined before challenges to admissibility. Articles 19 (6) and 82 (1) (a) allow the parties a right of appeal without leave for decisions in respect of jurisdiction. Read together, these provisions underline the importance of questions of jurisdiction being settled as early as possible in the proceedings.

text: If the Appeals Chamber were to dismiss appeals against decisions rejecting challenges on the grounds that they are not proper jurisdictional challenges, potentially valid questions as to the Court’s jurisdiction could be left unresolved until the end of trial without any possibility for appellate intervention. In such circumstances, a Chamber could erroneously continue to assume jurisdiction over a crime, despite the fact that a proper jurisdictional challenge had been raised and not determined. The Appeals Chamber finds that it is important to preserve appellate scrutiny of such decisions and that this approach is consonant with the spirit of

text: the Statute

text: as described above.

text: For this reason, the Appeals Chamber is of the view that decisions rejecting challenges on the grounds that they are not proper jurisdictional challenges are subject to different considerations to those articulated in its prior jurisprudence on the admissibility of appeals under

text: article 82

text: (1) (a) of

text: the Statute

text: set out above. None of these decisions concerned a first instance decision rejecting a challenge to jurisdiction brought under

text: article 19

text: of

text: the Statute

text: on this basis. The Appeals Chamber considers that, in relation to decisions of this nature, it is necessary to assess whether a proper jurisdictional challenge has been raised, but erroneously not addressed by the first instance Chamber on the basis that it was not a jurisdictional challenge. Therefore, 36 Supra para. 15.

text: No: ICC-01/04-02/06 OA 2 10/20 decisions rejecting challenges under

text: article 19

text: of

text: the Statute

text: article 82

text: (1) (a) of

text: the Statute

text: and appeals against such decisions are admissible.

text: For these reasons, the Appeals Chamber finds that the present appeal is admissible.

text: V. MERITS

text: A. First and Second Grounds of Appeal

text: The Appeals Chamber notes that the first two grounds of appeal repeat and expand upon arguments originally raised before the Trial Chamber. In essence, Mr Ntaganda requests the Appeals Chamber to determine the issue of whether the war crimes of rape and sexual slavery under

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: can be committed against child soldiers of the same armed group as the alleged perpetrator. The Trial Chamber ultimately declined to determine this question in the Impugned Decision.

text: The Appeals Chamber notes that decisions with respect to jurisdiction are subject to a direct right of appeal under

text: article 82

text: (1) (a) of

text: the Statute

text: , which denotes the importance of jurisdictional questions being subject to appellate review. The Appeals Chamber has previously emphasised the corrective nature of proceedings on appeal, which are “conducted with the purpose of reviewing the proceedings before the Pre-Trial [or Trial] Chamber” and the scope of which is determined by the scope of the relevant proceedings before the Pre-Trial or Trial Chamber. The Appeals

text: 37 Document in Support of the Appeal, p. 17. 38 Impugned Decision, para. 28. 39 The Prosecutor v. Simone Gbagbo, “Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”, 27 May 2015,

text: -Conf (OA); a public redacted version was registered on 27 May 2015 (

text: -Red (OA)), para. 33; The Prosecutor v. Francis Kirimi Muthaura et al., “Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility’”, 28 July 2011, ICC-01/09-02/11-202 (OA), paras 11-12; The Prosecutor v. William Samoei Ruto et al., “Decision on the ‘Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber’s Decision on Admissibility’”, 28 July 2011, ICC- 01/09-01/11-234 (OA), paras 12-13. See also The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, “Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled ‘Decision on the admissibility of the case against Saif Al-Islam Gaddafi’”, 21 May 2014,

text: No: ICC-01/04-02/06 OA 2 11/20

text: Chamber considers that it is particularly important to adhere to this corrective role when reviewing decisions with respect to jurisdiction.

text: As the Trial Chamber did not determine the issue set out above, the Appeals Chamber does not consider it appropriate to consider further the first and second grounds of appeal, which are directed towards this question. On this basis, they are dismissed in limine.

text: B. Third Ground of Appeal

text: Summary of Submissions of the Parties and Participants

text: Mr Ntaganda argues, by reference to the jurisprudence of the ICTY and the Court, that the issues in the present case should be recognized as jurisdictional. Mr Ntaganda suggests that the Trial Chamber failed to appreciate that the wording of article 8 (2) (e) (vi) and its chapeau “incorporate by reference concepts of conventional and customary international law […]”. He submits that these concepts should “be recognized as jurisdictional because they concern the existence of a crime in respect of an entire category of circumstances – i.e. whether the war crimes of rape and sexual slavery pertain to acts committed by members of an armed group against other members of the same armed group”. In his view, “[this] question will not be elucidated through any factual exposition at trial”; “[e]ither the crime exists, or it does not”. He argues that addressing this question now would contribute to the efficiency of trial proceedings.

text: -Conf (OA 4); a public redacted version was registered on 21 May 2014 (ICC- 01/11-01/11-547-Red), paras 42-43; The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, “Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’”, 24 July 2014,

text: (OA 6), para. 57. 40 See for similar reasoning The Prosecutor v. Thomas Lubanga Dyilo, “Judgment on the appeals against the ‘Decision establishing the principles and procedures to be applied to reparations’ of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2”, 3 March 2015,

text: (A A 2 A 3), paras 237-239. 41 Document in Support of the Appeal, paras 22-23. 42 Document in Support of the Appeal, para. 24. 43 Document in Support of the Appeal, para. 24. 44 Document in Support of the Appeal, para. 25. 45 Document in Support of the Appeal, para. 25.

text: No: ICC-01/04-02/06 OA 2 12/20

text: In response, the Prosecutor submits that “[a]rguments on the ‘substantive merits’ of the case, whether legal or evidentiary, are not jurisdictional”. She asserts that “[a] challenge to jurisdiction questions the Court’s competence to adjudicate a given matter; it is not a legal or evidentiary filter for particular cases”. The Prosecutor argues that Mr Ntaganda’s Challenge did not call into question the existence of the war crimes of rape and sexual slavery, but rather concerned “the application of the law to the facts of this case, to determine whether the crimes charged under

text: the Statute

text: were indeed committed […]”. The Prosecutor submits that legal questions are not ordinarily jurisdictional and that “[i]f anything, the opposite is true: questions of substantive law are typically addressed at the end of a trial, and not before its commencement [...]”. She avers that “[c]onducting legal analysis in the context of relevant facts […] not only promotes judicial economy but ensures that the law is firmly anchored in the reality to which it must apply”. Therefore, the Prosecutor requests that “[t]he third ground of appeal, and hence the Appeal itself, […] be dismissed”.

text: The Victims submit that Mr Ntaganda’s arguments relate to the constitutive elements of the crimes and raise an issue that pertains to the merits of the case and not to the jurisdiction of the Court. The Victims submit that “a challenge to the jurisdiction of the Court is designed to allow the parties to raise preliminary objections before addressing any substantive questions related to the case” and that, “[i]f the resolution of substantive issues were permissible in the context of the jurisdictional challenges, it would defeat the requirement that such challenges must be raised at the earliest opportunity”.

text: Determination by the Appeals Chamber

text: Mr Ntaganda’s Challenge is premised on the contention that, as a matter of law,

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: does not foresee the possibility of “UPC/FPLC child

text: 46 Response to the Document in Support of the Appeal, para. 7. 47 Response to the Document in Support of the Appeal, para. 7 (emphasis in original), referring to Ruto et al. OA 3 OA 4 Decision, para. 29. 48 Response to the Document in Support of the Appeal, para. 9. 49 Response to the Document in Support of the Appeal, para. 12 (emphasis in original). 50 Response to the Document in Support of the Appeal, para. 12. 51 Response to the Document in Support of the Appeal, para. 18. 52 Victims’ Observations, para. 22. 53 Victims’ Observations, para. 27.

text: No: ICC-01/04-02/06 OA 2 13/20 soldiers” being victims of the war crimes of rape and sexual slavery committed by members of the UPC/FPLC. The legal question raised by Mr Ntaganda is derived from the wording of

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: and the related Elements of Crimes. In this respect, the Appeals Chamber notes that article 8 reads in relevant part:

text: The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, ‘war crimes’ means: […] (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: […] (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions. […] 29. As noted by the Trial Chamber,

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: “does not specify who can be victims of the war crimes listed therein, and […] the corresponding Elements of Crimes refer only to ‘person’ and ‘persons’”.

text: Nonetheless, the Appeals Chamber notes that the chapeau of

text: article 8

text: (2) (e) of

text: the Statute

text: specifies that the crimes listed therein are “serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law” (emphasis added), while the introduction to article 8 in the Elements of Crimes requires the Court to interpret the elements for war crimes “within the established framework of the international law of armed conflict […]”. In addition,

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: refers to “any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions” (emphasis added). Article 3 common to the Geneva 54 Mr Ntaganda’s Challenge, paras 8-14. 55 Impugned Decision, para. 25. Articles 8 (2) (e) (vi) - 1, 8 (2) (e) (vi) - 2 of the Elements of Crimes.

text: No: ICC-01/04-02/06 OA 2 14/20

text: Conventions provides protection to specified persons – namely those “taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause”.

text: Accordingly, the Appeals Chamber considers that, while

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: does not contain any explicit restriction on the categories of persons who may be victims of the war crimes of rape and sexual slavery, the question arises as to whether such restrictions must be derived from the applicable law, including the above-mentioned references. For the reasons set out in paragraphs 22 to 24 above, the Appeals Chamber does not consider it appropriate to address this question on the merits and nothing in the present judgment should be interpreted as predetermining this matter.

text: The sole question for the Appeals Chamber to determine in the present appeal is whether Mr Ntaganda’s contention that the war crimes of rape and sexual slavery under

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: do not encompass the rape and sexual slavery of child soldiers by members of the same armed group constitutes a challenge to the jurisdiction of the Court and whether the Trial Chamber erred in rejecting his challenge on the basis that it was rather a matter for determination at trial.

text: In respect of errors of law, the Appeals Chamber has repeatedly held that it “will not defer to the relevant Chamber’s legal interpretation, but will arrive at its own conclusion as to the appropriate law and determine whether or not the first instance

text: 56 Article 3, common to the four Geneva Conventions, provides: “In the case of armed conflict not of an international character […], each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. […]”.

text: No: ICC-01/04-02/06 OA 2 15/20

text: Chamber misinterpreted the law’”. The Appeals Chamber also recalls that “an

text: appellant is not only obliged to set out an alleged error, ‘but also to indicate, with

text: sufficient precision, how this error would have materially affected the impugned decision’”.

text: The Appeals Chamber notes that the Trial Chamber’s conclusion that

text: Mr Ntaganda’s Challenge raised a matter for determination at trial, rather than a

text: jurisdictional issue, was premised on its understanding that the Appeals Chamber had

text: narrowly defined the scope of challenges to jurisdiction in the Ruto et al. OA 3 OA 4

text: Decision and the Muthaura et al. OA 4 Decision. The Prosecutor’s arguments are

text: based upon a similar assessment of the Appeals Chamber’s prior jurisprudence,

text: which, in her view, supports the conclusion that Mr Ntaganda’s Challenge is not

text: jurisdictional, but is rather an argument to be determined on the merits of the case.

text: The Appeals Chamber notes that the decisions in those cases primarily

text: addressed challenges to the Pre-Trial Chamber’s legal interpretation of ‘organizational policy’ (part of the chapeau elements of

text: article 7

text: (1) of

text: the Statute

text: and its finding that there was sufficient evidence to establish substantial grounds to

text: believe that an ‘organizational policy’ existed. The Appeals Chamber considered

text: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, “Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled ‘Decision on Prosecution Request for Admission of Prior Recorded Testimony’”, 12 February 2016,

text: (OA 10), para. 20. See also The Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 23 December 2014 entitled ‘Decision on “Defence Urgent Motion for Provisional Release”’”, 20 May 2015,

text: -Conf (OA 11); a public redacted version was registered on the same date (

text: -Red (OA 11)) (“Bemba OA 11 Judgment”), para. 19; The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, “Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled ‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation’”, 17 February 2012,

text: (OA 2), para. 20; The Prosecutor v. Jean-Pierre Bemba Gombo et al., “Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber II of 17 March 2014 entitled ‘Decision on the “Requȇte de mise en liberté” submitted by the Defence for Jean-Jacques Mangenda’”, 11 July 2014,

text: (OA 4), para. 26. Bemba OA 11 Judgment, para. 20; The Prosecutor v. Jean-Pierre Bemba Gombo, “Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled ‘Decision on the Admissibility and Abuse of Process Challenges’”, 19 October 2010, ICC- 01/05-01/08-962 (OA 3), para. 102, citing The Prosecutor v. Joseph Kony et al., “Judgment on the appeal of the Defence against the ‘Decision on the admissibility of the case under

text: article 19

text: (1) of

text: the Statute

text: ’ of 10 March 2009”, 16 September 2009,

text: (OA 3), para. 48. Impugned Decision, para. 24. Response to the Document in Support of the Appeal, paras 7-9. Ruto et al. OA 3 OA 4 Decision, paras 17-18; Muthaura et al. OA 4 Decision, paras 22-24.

text: No: ICC-01/04-02/06 OA 2 16/20 this issue in the context of a challenge to jurisdiction that was raised at the start of the confirmation process which it stated was “designed to consider the matters raised on [those] appeals and filter unmeritorious cases from progressing to trial”. The Appeals Chamber, in those decisions, found that “the interpretation and existence of an ‘organizational policy’ relate to the substantive merits of this case as opposed to the issue of whether the Court has subject-matter jurisdiction to consider such questions”.

text: The Appeals Chamber underlines that, in the Ruto et al. OA 3 OA 4 Decision and the Muthaura et al. OA 4 Decision, it did not address, nor was it faced with the question of whether resolving a legal issue alone could have resulted in the crimes charged falling outside the jurisdiction of the Court. As stated above, the challenges under examination in those appeals required the resolution of the question of whether an organizational policy existed both in law and in fact. As noted by the Appeals Chamber, “in the context of [those] case[s], treating the interpretation and existence of ‘organizational policy’ as jurisdictional matters [would have conflated] the separate concepts of jurisdiction and the confirmation process”.

text: The Appeals Chamber finds the issue in the present case to be distinguishable from those raised in the Kenya cases. Mr Ntaganda’s Challenge requires an exclusively legal determination as to whether the factual allegations correspond to the crime under international humanitarian law. If his arguments were to be accepted, the result would be a finding that

text: the Statute

text: restricts the applicability of war crimes in a way that fully excludes the set of facts as charged. The Appeals Chamber notes that, in contrast to the challenges considered in the Ruto et al. OA 3 OA 4 Decision and the Muthaura et al. OA 4 Decision, no additional factual or evidentiary determinations are required in the present case in order to resolve the legal issue raised by Mr Ntaganda. In this regard, the scope of the group intended by the Prosecutor to fall within the description ‘child soldiers’ is clearly specified to be “children under the age

text: 62 Ruto et al. OA 3 OA 4 Decision, para. 29; Muthaura et al. OA 4 Decision, para. 35. 63 Ruto et al. OA 3 OA 4 Decision, para. 30; Muthaura et al. OA 4 Decision, para. 36. 64 Ruto et al. OA 3 OA 4 Decision, para. 29; Muthaura et al. OA 4 Decision, para. 35.

text: No: ICC-01/04-02/06 OA 2 17/20 of 15 years who were members of the UPC/FPLC” and this allegation is undisputed for the purposes of the present appeal.

text: The Appeals Chamber acknowledges that references to the jurisprudence of the ad hoc tribunals and the Extraordinary Chambers in the Courts of Cambodia and certain findings in the Ruto et al. OA 3 OA 4 Decision and the Muthaura et al. OA 4 Decision may suggest that the question of subject-matter jurisdiction is limited to whether the Prosecutor has alleged crimes that are listed in

text: the Statute

text: , and that any other legal or factual issues related to the exercise of this jurisdiction must be 66 determined on the merits. However, these findings must be read in light of the context in which they appear, namely in rejecting the argument that a finding that the contextual elements of crimes against humanity exist in law and in fact is per se a jurisdictional matter and that any challenge to these findings, legal or factual, is necessarily jurisdictional in nature.

text: In the view of the Appeals Chamber, the question of whether the Court has subject-matter jurisdiction cannot be confined exclusively to an examination of whether the Prosecutor has successfully recited the elements of a crime listed under

text: article 5

text: of

text: the Statute

text: . In certain circumstances, the question of whether the facts alleged correspond to the crime charged may also acquire a jurisdictional dimension. This is so, for example, where a particular legal interpretation could result in the allegations being characterised either as an ordinary crime as opposed to one of the crimes over which the Court has jurisdiction or simply as non-criminal in nature. The Appeals Chamber finds that challenges, which would, if successful, eliminate the legal basis for a charge on the facts alleged by the Prosecutor may be considered to be jurisdictional challenges. Accordingly, some verification as to whether the facts alleged correspond in law to the crimes charged may be necessary, depending on the

text: 65 See Prosecutor’s Response, para. 6; Document in Support of the Appeal, paras 1-4. 66 See Ruto et al. OA 3 OA 4 Decision, para. 30; Muthaura et al. OA 4 Decision, para. 36: “As the Prosecutor has expressly alleged crimes against humanity, including the existence of an organizational policy, the Appeals Chamber finds that the Court has subject-matter jurisdiction over the crimes with which [the suspects] have been charged. Whether the Prosecutor can establish the existence of such a policy, in law and on the evidence, is a question to be determined on the merits. […] Even if the Trial Chamber were not to find, in law or on the evidence, that there was an ‘organizational policy’ this would not mean that the Court did not have jurisdiction over the case but rather that crimes against humanity were not committed”. See also Ruto et al. OA 3 OA 4 Decision, paras 31-32; Muthaura et al. OA 4 Decision, para. 37.

text: No: ICC-01/04-02/06 OA 2 18/20 circumstances, in order to determine whether the Court has jurisdiction over such crimes.

text: In the context of the present case, the Appeals Chamber finds that the question of whether there are restrictions on the categories of persons who may be victims of the war crimes of rape and sexual slavery is an essential legal issue which is jurisdictional in nature. If the Trial Chamber were to determine that the war crimes of rape and sexual slavery under

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: cannot, as a matter of law, cover rape and sexual slavery of child soldiers in the same armed group as the perpetrator, the necessary implication would be that

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: per se excludes from its ambit the acts of rape and sexual slavery against child soldiers as charged in this case. Accordingly, the Trial Chamber would not need to address whether, on the basis of the evidence submitted and discussed before it, the Prosecutor had succeeded in proving the relevant allegations. The Appeals Chamber considers that the appropriate result of such a legal finding would be that the Court lacks jurisdiction ratione materiae to prosecute the alleged acts as war crimes.

text: As highlighted above, issues as to the Court’s jurisdiction should be resolved as early as possible in the proceedings. In situations such as the present, this may be of heightened importance given that former child soldiers may be called as witnesses to provide detailed testimony about traumatic events related to the charges of rape and sexual slavery in circumstances where it may be found that such crimes, even if established, would not amount in law to war crimes prosecutable by the Court. In the view of the Appeals Chamber, resolution of such questions at an early stage is also important in terms of enhancing the efficiency of proceedings. The Court has competence to adjudicate the crimes charged by the Prosecutor under Counts 6 and 9 only where it is found that the war crimes of rape and sexual slavery under

text: article 8

text: (2) (e) (vi) of

text: the Statute

text: may, either in principle or only in certain circumstances, be committed against child soldiers. Any factual or evidentiary assessments that may need to be carried out as a result of such a legal finding would be made on the merits of the case.

text: 67 Supra para. 18.

text: No: ICC-01/04-02/06 OA 2 19/20

text: In view of the foregoing, the Appeals Chamber finds that Mr Ntaganda’s Challenge constitutes a challenge to the jurisdiction of the Court and that the Trial Chamber erred in rejecting it on the basis that it was rather a matter for determination at trial. Accordingly, Mr Ntaganda’s Challenge must be remanded to the Trial Chamber for it to address in accordance with the requirements of

text: article 19

text: of

text: the Statute

text: . The question of whether the requirements of

text: article 19

text: (4) of

text: the Statute

text: are satisfied in the circumstances of this case is a matter for the Trial Chamber to determine.

text: VI. APPROPRIATE RELIEF

text: In an appeal pursuant to

text: article 82

text: (1) (a) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence). In the present case, the Appeals Chamber reverses the Impugned Decision and remands Mr Ntaganda’s Challenge to the Trial Chamber.

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

text: _____________________________ Judge Christine Van den Wyngaert Presiding Judge

text: Dated this 22nd day March 2016 At The Hague, The Netherlands

text: No: ICC-01/04-02/06 OA 2 20/20

title: The Prosecutor v. Bosco Ntaganda


court: icc

doctype: appeal-interlocutory

identifier: ICC-01/04-02/06 (Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses”)

caseName: The Prosecutor v. Bosco Ntaganda

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

text: European Convention on Human Rights

text: European Convention on Human Rights, article 6

text: the Statute

text: the Statute, article 54

text: the Statute, article 67

text: the Statute, article 82

text: the Statute, article 87

text: International Covenant on Civil and Political Rights

text: Original: English No. ICC-01/04-02/06 OA 3 Date: 20 May 2016

type: stycke

text: THE APPEALS CHAMBER

type: rubrik

text: Before: Judge Sanji Mmasenono Monageng, Presiding Judge Judge Christine Van den Wyngaert Judge Howard Morrison Judge Piotr Hofmański Judge Raul C. Pangalangan

text: SITUATION IN IN THE DEMOCRATIC REPUBLIC OF CONGO

text: IN THE CASE OF THE PROSECUTOR v. BOSCO NTAGANDA

text: Public document

text: No: ICC-01/04-02/06 OA 3 1/17

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

text: The Office of the Prosecutor Counsel for the Defence

text: Ms Fatou Bensouda, Prosecutor Mr Stéphane Bourgon Ms Helen Brady Mr Luc Boutin

text: Legal Representatives of Victims

text: Ms Sarah Pellet Mr Dmytro Suprun

text: REGISTRY Registrar

text: Mr Herman von Hebel

text: No: ICC-01/04-02/06 OA 3 2/17

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Bosco Ntaganda against the decision of Trial Chamber VI entitled “Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses” of 16 October 2015 (ICC-01/04-02/06-904), After deliberation, Delivers unanimously

text: J U D G M E N T

text: The “Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses” of 16 October 2015 (ICC-01/04-02/06-904) is confirmed.

text: REASONS

text: I. KEY FINDING

text: A system of disclosure, in which only the disclosure of statements made by witnesses when questioned about their knowledge of the case occurs pursuant to rule 76 (1) of the Rules of Procedure and Evidence, is not prejudicial to an accused’s fair trial rights.

text: II. PROCEDURAL HISTORY

text: On 25 August 2015, Mr Bosco Ntaganda (“Mr Ntaganda”) filed a request before Trial Chamber VI (“Trial Chamber”) seeking an order for the Prosecutor to disclose, inter alia, “any statements, in whatever form, of witnesses whom the Prosecution intends to call” pursuant to rules 76 (1) and 77 of the Rules of Procedure and Evidence (“Rules”) and

text: article 67

text: (2) of

text: the Statute

text: (“Disclosure Request”).

text: 1 “Request on behalf of Mr Ntaganda for disclosure orders pursuant to Rule 76 and 77 of the Rules of Procedure and Evidence”, ICC-01/04-02/06-795-Conf-Exp, with annexes A-P; a public redacted version was filed on the same date and registered on 26 August 2015 (ICC-01/04-02/06-795-Red).

text: No: ICC-01/04-02/06 OA 3 3/17

text: On 28 August 2015, Mr Ntaganda filed a disclosure request regarding witness

text: P-0901 (“Witness P-0901 Disclosure Request”).

text: The Prosecutor responded on 7 August 2015 to the Witness P-0901 Disclosure

text: Request and, on 14 August 2015, to the Disclosure Request, opposing both.

text: On 18 September 2015, the Trial Chamber issued a decision, in which it,

text: inter alia, rejected the Witness P-0901 Disclosure Request (“Witness P-0901

text: Disclosure Decision”).

text: On 16 October 2015, the Trial Chamber issued a decision rejecting, inter alia, the Disclosure Request (“Impugned Decision”).

text: On 26 October 2015, Mr Ntaganda requested leave to appeal three issues that

text: he argued arose from the Impugned Decision. On 29 October 2015, the Prosecutor

text: 9 10

text: responded, opposing the request.

text: On 27 November 2015, the Trial Chamber issued a decision (“Decision Granting Leave to Appeal”), in which it granted leave to appeal one of the three issues

text: “Request on behalf of Mr Ntaganda seeking disclosure orders in relation to Witness P-0901”, ICC-01/04-02/06-800-Conf-Exp; a public redacted version was filed on 4 September 2015 and registered on 7 September 2015 (ICC-01/04-02/06-800-Red). “Prosecution response to the Defence request seeking disclosure orders in relation to Witness P-901”, ICC-01/04-02/06-808-Conf-Exp; a public redacted version was filed on 28 September 2015 (ICC-01/04-02/06-808-Red). “Response to the Defence request for disclosure orders pursuant to rules 76 and 77 of the Rules of Procedure and Evidence”, ICC-01/04-02/06-822-Conf-Exp; a public redacted version was filed on 6 October 2015 (ICC-01/04-02/06-822-Red). “Decision on Defence requests seeking disclosure orders in relation to witness P-0901 and seeking the postponement of the witness’s cross-examination”, ICC-01/04-02/06-840-Conf-Exp; a public redacted version was filed on 5 October 2015 (ICC-01/04-02/06-840-Red). “Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses”, 16 October 2015, ICC-01/04-02/06-904. “Request on behalf of Mr Ntaganda seeking leave to appeal the ‘Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses’”, ICC-01/04-02/06-941-Conf-Exp with annexes A-D; a public redacted version was filed on 28 October 2015 (ICC-01/04-02/06-941-Red) (“Request for Leave to Appeal”). Request for Leave to Appeal, para. 1. “Prosecution’s response to Defence application for leave to appeal the ‘Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses’”, 29 October 2015, ICC-04/04-02/06-967 (“Prosecutor’s Response to Request for Leave to Appeal”). Prosecutor’s Response to Request for Leave to Appeal, paras 1, 20. “Decision on Defence request for leave to appeal the ‘Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses’”, 27 November 2015, ICC-01/04-02/06-1039.

text: No: ICC-01/04-02/06 OA 3 4/17 identified by Mr Ntaganda, namely “[w]hether the Chamber erred in law in its definition of ‘statement’ in Rule 76(1) of the Rules”.

text: On 10 December 2015, Mr Ntaganda filed the document in support of his appeal against the Impugned Decision, to which, on 18 December 2015, the Prosecutor responded.

text: III. MERITS

text: A. Background

text: In the Disclosure Request, Mr Ntaganda sought a general order to address the Prosecutor’s “unduly narrow understanding” of her disclosure obligations.

text: In particular, Mr Ntaganda requested that the Trial Chamber instruct the Prosecutor not to withhold any statements on the basis that they only concern security issues, which he argued violated the Prosecutor’s disclosure obligations because such statements fall under rule 76 (1) of the Rules.

text: In rejecting the Disclosure Request, the Trial Chamber held, in relevant part:

text: In respect of the Defence’s request for statements of witnesses, in any form, ‘pursuant to Rules 76(1) and 77 of the Rules and

text: Article 67

text: (2) of

text: the Statute

text: ’, the Chamber considers it important to distinguish between the different legal bases upon which statements of a witness may be disclosable. All statements falling within Rule 76(1) of the Rules must be disclosed, and must be provided both in the original language of the statement and in a language which the accused fully understand [sic] and speaks. By contrast, statements not falling within Rule 76 of the Rules must be disclosed only where they are material to the preparation of the Defence, within the meaning of Rule 77 of the Rules, or are potentially exculpatory in the sense of falling within

text: Article 67

text: (2) of

text: the Statute

text: 12 Decision Granting Leave to Appeal, para. 6 and p. 10. 13 “Document in support of the appeal on behalf of Mr Ntaganda against Trial Chamber VI’s ‘Decision on Defence requests seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses’, ICC-01/04-02/06-904”, 10 December 2015, ICC-01/04- 02/06-1051 (OA 3) (“Document in Support of the Appeal”). 14 “Response to Bosco Ntaganda’s appeal against the ‘Decision on Defence request seeking disclosure orders and a declaration of Prosecution obligation to record contacts with witnesses’”, registered on 21 December 2015, ICC-01/04-02/06-1068 (OA 3), with annex (ICC-01/04-02/06-1068-Anx (OA 3)) (“Response to the Document in Support of the Appeal”). 15 Disclosure Request, p. 9. 16 Disclosure Request, para. 19.

text: No: ICC-01/04-02/06 OA 3 5/17

text: […] [A]s the Chamber has previously observed, not all items containing information obtained from a witness will necessarily constitute a ‘statement’ within the meaning of Rule 76 of the Rules. As found in the [Witness P-0901] Disclosure Decision, the Chamber concurs with the definition provided by the Single Judge of Trial Chamber VII that statements, within the meaning of Rule 76 of the Rules, are made only when witnesses are ‘questioned about their knowledge of the case in the course of its investigation’. This definition is also consistent with the jurisprudence of other international courts and tribunals.

text: Therefore statements of witnesses, or information provided by them, solely relating to matters other than their knowledge of the case - which may, for example, include information provided relating to security concerns or purely logistical matters - do not come within Rule 76 of the Rules. This does not mean that such information is not subject to disclosure; it may be, or become subject to disclosure, should it fall within the disclosure requirements of either Rule 77 of the Rules of [sic]

text: Article 67

text: (2) of

text: the Statute

text: . […] [Emphasis added, footnotes omitted.]

text: The definition provided in paragraph 29 of the Impugned Decision is relevant to this appeal. The Trial Chamber noted that it had previously articulated this definition in the Witness P-0901 Disclosure Decision, finding support for its interpretation in a decision of the Single Judge of Trial Chamber VII in the case of the Prosecutor v. Jean-Pierre Bemba Gombo et al. (“Single Judge’s Decision”). The Trial Chamber

text: found its definition consistent with the “jurisprudence of other international courts and tribunals”, referring in a footnote to “[…] the jurisprudence of the ICTY Appeals

text: Chamber, International Criminal Tribunal for Rwanda and Special Court for Sierra Leone cited to in the [Single Judge’s Decision], footnote 9”.

text: With respect to the Trial Chamber’s reasoning, the Appeals Chamber notes that the Impugned Decision merely adopts without further explanation the Single Judge’s

text: 17 In the Witness P-0901 Disclosure Decision, the Trial Chamber held at paragraph 53 that: “The Single Judge of Trial Chamber VII recently held that ‘prior statements’ within the meaning of Rule 76 are made only when witnesses are ‘questioned about their knowledge of the case in the course of its investigation’. The Chamber agrees with this definition of prior statements”. The Appeals Chamber notes that paragraph 53 of the Witness P-0901 Disclosure Decision refers to the same paragraph and footnotes of the Single Judge’s Decision (infra footnote 18) as the Impugned Decision. Given that (i) in the Impugned Decision the Trial Chamber reaffirmed the identical definition and referred to the same authorities as in the Witness P-0901 Disclosure Decision, and (ii) the Witness P-0901 Disclosure Decision was not appealed and is consequently not before it, the Appeals Chamber will not further address the Witness P-0901 Disclosure Decision in the present judgment and will refer only to the Impugned Decision and Single Judge’s Decision for purposes of reviewing the impugned definition at issue in this appeal. 18 “Decision on Request for Disclosure or Securing of Prior Statements Given by Prosecution Witnesses to Domestic Judicial Authorities and International Organisations”, 9 September 2015, ICC-01/05-01/13-1227. 19 Impugned Decision, para. 29.

text: No: ICC-01/04-02/06 OA 3 6/17

text: Decision’s definition of a ‘statement’ of witnesses within the meaning of rule 76 (1) of the Rules, which itself primarily referred to the interpretation from other international courts and tribunals to support its finding. Furthermore, the Appeals Chamber notes that the definition referred to was provided by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the case of Prosecutor v. Tihomir Blaškić (“Blaškić Decision”) and that it was based on what that Appeals Chamber called the “usual meaning” of a ‘witness statement’. It did not explain from which sources it derived this “usual meaning”. The Appeals Chamber also notes that the further jurisprudence referred to by the Trial Chamber simply adopted the definition given in the Blaškić Decision. The Trial Chamber did not fully analyse whether the other international courts and tribunals’ jurisprudence relevant to defining the term ‘witness statement’ was an appropriate source of guidance.

text: B. Determination by the Appeals Chamber

text: The issue for which leave to appeal was granted by the Trial Chamber is “[w]hether the Chamber erred in law in its definition of ‘statement’ in Rule 76 (1) of the Rules”, which the Trial Chamber defined as only being made when a witness is “questioned about their knowledge of the case in the course of its investigation”. Mr Ntaganda argues that the Trial Chamber erred in law in its interpretation of “statements made by […] witnesses” (‘witness statements’) under rule 76 (1) of the

text: 20 “Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings”, 26 September 2000, IT-95-14-A. 21 Blaškić Decision, para. 15. 22 The international courts and tribunals concerned have held that their respective Rules of Procedure and Evidence do not provide for a definition of the term ‘witness statement’. See Blaškić Decision, para. 15; Special Court for Sierra Leone (“SCSL”), Prosecutor v. Sam Hinga Norman et al., “Decision on Disclosure of Witness Statements and Cross-Examination”, 16 July 2004, SCSL-2004-14-T, para. 10. 23 Impugned Decision, footnote 60. See Single Judge’s Decision, footnote 9; International Criminal Tribunal for Rwanda, Prosecutor v. Édouard Karemera et al., “Decision on Joseph Nzirorera’s Sixth, Seventh and Eighth Notices of Disclosure Violations and Motions for Remedial, Punitive and Other Measures”, 29 November 2007, ICTR-98-44-T, para. 20; SCSL, Prosecutor v. Alex Tamba Brima et al., “Decision on Joint Defence Motion on Disclosure of all Original Witness Statements, Interview Notes and Investigators’ Notes Pursuant to Rules 66 and/or 68”, 4 May 2005, SCSL-04-16-T, para. 16. 24 Decision Granting Leave to Appeal, para. 6. 25 Impugned Decision, para. 29.

text: No: ICC-01/04-02/06 OA 3 7/17

text: Rules and more broadly that this interpretation will result in a prosecutorial disclosure

text: regime that does not adequately protect the fairness of the court proceedings.

text: The Appeals Chamber reiterates that, regarding alleged errors of law, it will

text: arrive at its own conclusion as to the appropriate law and determine whether or not

text: the first instance Chamber misinterpreted the law. In this particular case, the

text: Appeals Chamber considers that the reasoning for the impugned finding as set out

text: above is sparse and proceeds to conduct its own analysis in accordance with the

text: appropriate methods of interpretation.

text: For the following reasons, the Appeals Chamber finds no error in the Trial Chamber’s decision that “statements, within the meaning of Rule 76 of the Rules, are

text: made only when witnesses are ‘questioned about their knowledge of the case […]’”.

text: Furthermore, the Appeals Chamber finds that Mr Ntaganda’s fair trial rights are not

text: prejudiced by this interpretation of rule 76 of the Rules.

text: At the outset, the Appeals Chamber notes that the Trial Chamber confined itself

text: to the effect its definition had on statements that were entirely unrelated to the witness’s knowledge of the case. As such, the Appeals Chamber will not address

text: other issues regarding the definition of statements such as the entity to which a

text: 30 31

text: statement was made, its form, and whether statements that contain both

text: Document in Support of the Appeal, paras 29-30, 34. Prosecutor v. Uhuru Muigai Kenyatta, “Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s ‘Decision on Prosecution’s application for a finding of non-compliance under

text: Article 87

text: (7) of

text: the Statute

text: ’”, 19 August 2015,

text: (OA 5), para. 23; Prosecutor v. Thomas Lubanga Dyilo, “Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction”, 1 December 2014,

text: -Conf (A 5); a public redacted version was registered on the same date (

text: -Red (A 5)), para. 18; Prosecutor v. Simone Gbagbo, “Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”, 27 May 2015,

text: -Conf (OA); a public redacted version was registered on the same date (

text: -Red (OA)), para. 40. Impugned Decision, para. 29. Impugned Decision, para. 30. In the Impugned Decision, the Trial Chamber did not apply its legal definition of a ‘statement’ under rule 76 (1) of the Rules to any specific disputed statement. However, the Trial Chamber held that the legal consequence of the articulated definition was, as a general matter, that “statements of witnesses, or information provided by them, solely relating to matters other than their knowledge of the case […] do not come within Rule 76 of the Rules”. As noted in the Decision Granting Leave to Appeal, para. 17, the Impugned Decision does not contain a finding excluding from the scope of rule 76 of the Rules “statements given to organisations other than the Prosecution”. See Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, “Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled

text: No: ICC-01/04-02/06 OA 3 8/17 information about the witness’s knowledge of the case and information unrelated thereto are still disclosable under rule 76 of the Rules. The Appeals Chamber considers these matters to be outside the scope of the current appeal.

text: The Appeals Chamber notes that the qualification given by the Trial Chamber that statements within the meaning of rule 76 (1) of the Rules are only those statements that are based on the witness’s knowledge of the case is not apparent from the text of rule 76 (1) of the Rules, which reads:

text: The Prosecutor shall provide the defence with the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses. This shall be done sufficiently in advance to enable the adequate preparation of the defence. The Appeals Chamber considers that the only qualification to be derived from the plain wording of rule 76 (1) of the Rules is that the statement must have come from a witness whom the Prosecutor intends to call to testify.

text: While this interpretation may be appealing in its simplicity, regard must also be had to the broader context regulating prosecutorial disclosure to an accused, that is rule 77 of the Rules and

text: article 67

text: (2) of

text: the Statute

text: . Rule 76 of the Rules forms but one part of this inter-related disclosure scheme and, in interpreting this provision, the Appeals Chamber is mindful of the system of disclosure as a whole and whether this is in line with the rights of the accused set out in

text: article 67

text: (1) of

text: the Statute

text: and with international human rights standards. 20. Rule 76, entitled “Pre-trial disclosure relating to prosecution witnesses”, provides in remaining part: […]

text: ‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation’”, 17 February 2012,

text: (OA 2) (“Banda and Jerbo OA 2 Judgment”), para. 23. 32 See Document in Support of the Appeal, para. 23; Response to the Document in Support of the Appeal, para. 34. See also in this context with respect to disclosure, Prosecutor v. Thomas Lubanga Dyilo, “Decision on the Prosecutor’s request for non-disclosure in relation to document ‘OTP/DRC/COD-190/JCCD-pt’”, 27 May 2013, ICC-01/04-01/06-3031 (A 5) (A 6), para. 12. 33 The Appeals Chamber notes that the French version of rule 76 (1) of the Rules, which reads: “Le Procureur communique à la défense le nom des témoins qu’il entend appeler à déposer et une copie de leurs déclarations”, does not include ‘any’.

text: No: ICC-01/04-02/06 OA 3 9/17

text: The Prosecutor shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses.

text: The statements of prosecution witnesses shall be made available in original and in a language which the accused fully understands and speaks.

text: This rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in

text: the Statute

text: and rules 81 and 82.

text: Rule 77, entitled “Inspection of material in possession or control of the Prosecutor” provides:

text: The Prosecutor shall, subject to the restrictions on disclosure as provided for in

text: the Statute

text: and in rules 81 and 82, permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person.

text: Article 67

text: (2) of

text: the Statute

text: provides:

text: In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.

text: The Appeals Chamber notes that, read together, these disclosure provisions ensure that the Prosecutor discloses to an accused in particular: 1) “the names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses”; 2) “any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which […] are intended for use by the Prosecutor as evidence […] at trial”; 3) “any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence”; and 4) “evidence in the Prosecutor’s possession or control which […] she believes shows or tends to

text: 34 Rule 76 (1) of the Rules. 35 Rule 77 of the Rules. 36 Rule 77 of the Rules.

text: No: ICC-01/04-02/06 OA 3 10/17 show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence”. With respect to disclosure under rule 77 of the Rules, and in particular the question of “which objects are ‘material to the preparation of the defence’”, the Appeals Chamber has held that this phrase has to be “understood as referring to all objects that are relevant for the preparation of the defence”. The Appeals Chamber notes that the main difference between disclosure in item 1) above (witness statements) and disclosure in items 3) and 4) above (rule 77 of the Rules and

text: article 67

text: (2) of

text: the Statute

text: ), is the nature of the Prosecutor’s assessment of material subject to disclosure.

text: Article 67

text: (2) of

text: the Statute

text: requires disclosure of evidence which the Prosecutor believes meets the criteria set out therein. Similarly, rule 77 of the Rules leaves to the Prosecutor the assessment of whether objects are “material to the preparation of the defence” and their inspection should thus be permitted.

text: With regard to a contextual interpretation and in particular the purpose of rule 76 (1) of the Rules, Mr Ntaganda submits in essence that disclosure of witness statements under this provision is to enable him to effectively cross-examine, a right enshrined in

text: article 67

text: (1) (e) of

text: the Statute

text: . He argues in this regard that information regarding “credibility, reliability and potential bias” is “the information most essential to the accused’s capacity to confront a witness in an adversarial proceeding”. Thus, the Appeals Chamber understands Mr Ntaganda to argue essentially that disclosure under rule 76 (1) of the Rules encompasses statements that relate to all aspects of the case and includes witness statements that would, under the Trial Chamber’s

text: Article 67

text: (2) of

text: the Statute

text: . 38 “Judgment on the appeal of Mr Abdallah Banda Abakaer Nourain and Mr Saleh Mohammed Jerbo Jamus against the decision of Trial Chamber IV of 23 January 2013 entitled ‘Decision on the Defence's Request for Disclosure of Documents in the Possession of the Office of the Prosecutor’”, 28 August 2013,

text: (OA 4) (“Banda and Jerbo OA 4 Judgment”), para. 39. 39 Prosecutor v. Thomas Lubanga Dyilo, “Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008”, 11 July 2008,

text: (OA 11) (“Lubanga OA 11 Judgment”), para. 77; Banda and Jerbo OA 4 Judgment, para. 38. See also Prosecutor v. Thomas Lubanga Dyilo, “Decision on Mr Lubanga’s request for disclosure”, 11 April 2013, ICC-01/04-01/06-3017 (A 5) (A 6), para. 10. 40 Document in Support of the Appeal, para. 31. 41 Document in Support of the Appeal, para. 31.

text: No: ICC-01/04-02/06 OA 3 11/17 definition, only be disclosable under rule 77 of the Rules or

text: article 67

text: (2) of

text: the Statute

text: Conversely, the Prosecutor argues that the Impugned Decision “requires a logical link between the subject of the witness’ statement and the facts being investigated or prosecuted in the case”. In this regard, the Prosecutor submits that the test articulated in the Impugned Decision only excludes statements that are clearly irrelevant to the case as other statements may be disclosable under rule 77 of the Rules or

text: article 67

text: (2) of

text: the Statute

text: . She further contends that her “disclosure duties ‘must necessarily be based […] on [her] understanding of the case as a whole, 45 including what is known or anticipated about possible defence(s)’”. As such, in the Prosecutor’s view, issues of credibility or possible bias relate to her disclosure 46 obligations under rule 77 of the Rules and

text: article 67

text: (2) of

text: the Statute

text: The Appeals Chamber has held, in discussing the form of a ‘witness statement’, that rule 76 of the Rules “serves to inform the accused person of the prior statements and likely future testimony of the witnesses against him or her, thereby enabling him or her to prepare and to conduct his or her defence.” Accordingly, rule 76 (1) of the Rules serves the purpose of facilitating the accused’s effective exercise of his or her right to examine the witnesses against him or her, which is guaranteed by

text: article 67

text: (1) (b) of

text: the Statute

text: (the right to have adequate facilities for the preparation of the defence) and article 67 (1) (e) (the right to examine, or have examined, the witnesses against him or her). In that regard, the Appeals Chamber emphasises that, in order to examine a prosecution witness and prepare for that witness’s future testimony, the Defence needs to know primarily the scope of the proposed testimony. The Appeals Chamber notes that the scope of the proposed testimony reveals to the Defence the witness’s knowledge of the case and, in particular, of the facts usually alleged by the Prosecutor as incriminating the accused.

text: 42 Document in Support of the Appeal, paras 27, 28, 33-34. 43 Response to the Document in Support of the Appeal, para. 12. 44 Response to the Document in Support of the Appeal, paras 14, 16. 45 Response to the Document in Support of the Appeal, para. 16, citing Lubanga OA 11 Judgment, para. 36. 46 Response to the Document in Support of the Appeal, para. 16. 47 Banda and Jerbo OA 2 Judgment, para. 27.

text: No: ICC-01/04-02/06 OA 3 12/17

text: The Appeals Chamber, however, acknowledges that, in order to adequately prepare for the examination of a prosecution witness, the Defence may also need to prepare questions relevant to the credibility and potential bias of the witness. Such questions need not be based on the witness’s knowledge of the case but may encompass other issues, including those relevant to the witness’s background. Nevertheless, for the reasons that follow, the Appeals Chamber is not persuaded by Mr Ntaganda’s assertion that witness statements under rule 76 (1) of the Rules should extend to statements that are completely unrelated to the witness’s knowledge of the case, but potentially relevant to the witness’s credibility or other issues that are material to the preparation of the defence.

text: First, the Appeals Chamber notes that material that puts a witness’s credibility in doubt or serves to show potential bias is not derived from witness statements alone. This category of material is much broader. The Prosecutor is obliged to disclose such material pursuant to

text: article 67

text: (2) of

text: the Statute

text: if the Prosecutor believes that it may affect the credibility of Prosecution evidence, or rule 77 of the Rules if it is otherwise “material to the preparation of the defence”.

text: Second, the Appeals Chamber considers that the view that witness statements pursuant to rule 76 (1) of the Rules are statements relevant to the witness’s knowledge of the case is also supported by the translation requirement contained in rule 76 (3) of the Rules. Under this rule, the Prosecutor has the duty to make the statements of her witnesses “available in original and in a language which the accused fully understands and speaks” (emphasis added).

text: The Appeals Chamber further notes that the requirement to make the disclosed material available in a language which the accused fully understands and speaks is not expressly stated with respect to disclosure under other provisions of

text: the Statute

text: and the Rules. Notably, no such requirement is expressly stipulated for the disclosure of

text: 48 Supra para. 23. 49 The language is the same as that in

text: article 67

text: (1) (a) of

text: the Statute

text: . In addition, the Appeals Chamber recalls that the translation standard applicable at the Court is higher than for example the standard provided for in the

text: European Convention on Human Rights

text: or the

text: . See Prosecutor v. Germain Katanga, “Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled ‘Decision on the Defence Request Concerning Languages’”, 27 May 2008,

text: (OA 3), paras 61-62; in regard of translation matters see also Banda and Jerbo OA 2 Judgment, para. 29.

text: No: ICC-01/04-02/06 OA 3 13/17 objects which are material to the preparation of the defence (rule 77 of the Rules) and for the disclosure of evidence which may affect the credibility of prosecution evidence (

text: article 67

text: (2) of

text: the Statute

text: ). This is indicative of the particular significance of the disclosure pursuant to rule 76 (1) of the Rules, as compared to the disclosure of material which is relevant, for instance, solely to credibility. The interpretation of the Prosecutor’s disclosure obligations under rule 76 (1) of the Rules proposed by Mr Ntaganda would extend the requirement of translation to documents relevant solely to credibility and also to documents of no relevance to the case at all. The Appeals Chamber finds that this interpretation does not conform to the purposes of disclosure identified above and, in addition, imposes a potentially burdensome requirement of translation with respect to documents of no relevance to the Defence.

text: Mr Ntaganda further argues that an interpretation whereby only witness statements linked to the witness’s knowledge of the case would fall under rule 76 (1) could lead to situations where information relevant to the credibility of a witness may not be disclosed. Mr Ntaganda submits that, in light of the materiality test contained in rule 77 of the Rules, the Prosecutor may fail to apprehend the impact of certain information, such as those related to security concerns, which would, however, be relevant to the credibility of the witness. He asserts that the defence is uniquely able to assess issues of credibility, reliability and potential bias and that placing this assessment with the Prosecutor instead will result in disclosure violations, regardless of her good faith efforts in this regard. Mr Ntaganda accordingly argues that the Prosecutor is unable to determine which statements that do not relate to the witness’s knowledge of the case need to be disclosed pursuant to rule 77 of the Rules or

text: article 67

text: (2) of

text: the Statute

text: . The inevitable effect of this, according to Mr Ntaganda, is that such statements will not be disclosed or that these statements will be the subject of litigation, rendering the trial inefficient and lengthier. Thus, for statements originating from witnesses, Mr Ntaganda requests automatic disclosure under rule 76

text: 50 Document in Support of the Appeal, para. 28. 51 Document in Support of the Appeal, para. 28. 52 Document in Support of the Appeal, paras 29, 31. 53 Document in Support of the Appeal, para. 28. 54 Document in Support of the Appeal, para. 30.

text: No: ICC-01/04-02/06 OA 3 14/17

text: (1) of the Rules with no assessment of relevance being undertaken by the Prosecutor. 32. In considering Mr Ntaganda’s argument, the Appeals Chamber finds for the reasons that follow that the system of disclosure, in which only the disclosure of statements made by witnesses when questioned about their knowledge of the case occurs pursuant to rule 76 (1) of the Rules, is not prejudicial to an accused’s fair trial rights.

text: First, the Appeals Chamber considers that information regarding the witness’s security concerns or logistical arrangements, which Mr Ntaganda seeks to obtain through disclosure under rule 76 (1) of the Rules, may be disclosed to him under rule 77 of the Rules if it is material to the preparation of his defence, or under

text: article 67

text: (2) of

text: the Statute

text: if it affects the credibility of prosecution evidence. In cases of dispute, he may seek an order from the Trial Chamber. While such material is not translated into the language which the accused fully understands and speaks, the Appeals Chamber considers that no prejudice arises because

text: article 67

text: (1) (f) of

text: the Statute

text: ensures that translations that “are necessary to meet the requirements of fairness” may be ordered.

text: In addition, Mr Ntaganda’s argument presupposes that conferring the task of selecting material for disclosure on the basis of a certain criterion to the Prosecutor is prejudicial to the rights of the accused. The Appeals Chamber, however, notes that rule 77 of the Rules requires the Prosecutor to carry out this assessment, and that Mr Ntaganda’s argument, if accepted, would in effect mean that rule 77 of the Rules is inherently prejudicial to the rights of the accused. The Appeals Chamber notes in this regard that Mr Ntaganda is not arguing that such prejudice actually occurred in the case-at-hand. The Appeals Chamber cannot address this matter in the absence of concrete allegations. The Appeals Chamber also notes that Mr Ntaganda does not support his argument by reference to international, human rights or domestic jurisprudence that would support his view that a disclosure system in which the Prosecutor decides which material in his or her possession is relevant to the defence is inherently prejudicial to the defence. Upon a general survey of the relevant

text: 55 Document in Support of the Appeal, para. 33.

text: No: ICC-01/04-02/06 OA 3 15/17 international and domestic jurisprudence, the Appeals Chamber cannot find support for such an approach, noting in addition that Mr Ntaganda is not arguing in favour of a stronger role of the Trial Chamber with respect to disclosure but for extending the disclosure obligations of the Prosecutor, where disclosure takes place primarily between the Prosecutor and the Defence. The Appeals Chamber recalls in this context that, under

text: the Statute

text: , the Prosecutor’s obligation in the course of the investigation is not merely to focus on eliciting incriminating materials, but, in order to establish the truth, as laid down in

text: article 54

text: (1) of

text: the Statute

text: , she must “investigate incriminating and exonerating circumstances equally”.

text: Furthermore, the interpretation of rule 76 (1) of the Rules proposed by Mr Ntaganda would extend the Prosecutor’s disclosure obligation under this rule to material that is irrelevant to the case. The Appeals Chamber notes that it is not aware of such a practice at other international tribunals and that the jurisprudence of the European Court of Human Rights (“ECtHR”) also does not extend prosecutorial disclosure to material, which is irrelevant to the defence. In that regard, the ECtHR has held that “it is a requirement of fairness under paragraph 1 of

text: Article 6

text: [of the

text: European Convention on Human Rights

text: ] […] that the prosecution authorities disclose to the defence all material evidence for or against the accused […]” (emphasis added).

text: The Appeals Chamber also notes the argument of the Prosecutor made in this context that, if rule 76 (1) of the Rules were interpreted more broadly than in the Impugned Decision, the Defence would be “flooded with irrelevant information”. However, the Appeals Chamber cannot draw conclusions from this assertion as the amount of such irrelevant information, if any, may be different in each case and may not necessarily result in the Defence being “flooded” therewith.

text: Finally, as the Appeals Chamber finds that rule 77 of the Rules is not inherently prejudicial, it cannot be argued that an interpretation of rule 76 (1) that allegedly excludes some material from the scope of this rule and makes its disclosure dependent

text: 56 Edwards v. the United Kingdom, “Judgment”, 16 December 1992, application no. 13071/87, para. 36. 57 Response to the Document in Support of the Appeal, para. 15.

text: No: ICC-01/04-02/06 OA 3 16/17 on compliance with the criterion set out in rule 77 is, on its own, prejudicial to the rights of the accused.

text: In sum, the Appeals Chamber finds that it is consistent with the purpose of rule 76 (1) of the Rules, read in line with the applicable prosecutorial disclosure regime, that disclosure of statements made “when witnesses are ‘questioned about their knowledge of the case […]’” takes place pursuant to rule 76 (1) of the Rules. Conversely, statements provided by witnesses, which relate solely to matters other than facts and circumstances described in the charges, are more appropriately disclosed in accordance with rule 77 of the Rules or

text: article 67

text: (2) of

text: the Statute

text: if they meet the criteria set out in those provisions, which is also fully consistent with the accused’s rights guaranteed by

text: the Statute

text: IV. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules). In the present case it is appropriate to confirm the Impugned Decision.

text: _____________________________ Judge Sanji Mmasenono Monageng Presiding Judge

text: th Dated this 20 day of May 2016 At The Hague, The Netherlands

text: 58 Impugned Decision, para. 29.

text: No: ICC-01/04-02/06 OA 3 17/17

title: The Prosecutor v. Bosco Ntaganda