identifier: ICC-02/05-01/20 (Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 10 July 2020 entitled ‘Decision on Defence request under article 67(1)(f) of the Rome Statute’)

text: European Convention on Human Rights, article 6

text: the Statute

text: Rome Statute, article 67

text: the Statute, article 82

text: International Covenant on Civil and Political Rights, article 14

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

text: Vienna Convention on the Law of Treaties, article 32

text: Original: English No. ICC-02/05-01/20 OA Date: 5 November 2020

text: THE APPEALS CHAMBER

text: Before: Judge Piotr Hofmański, Presiding Judge Chile Eboe-Osuji Judge Howard Morrison Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL- RAHMAN (‘ALI KUSHAYB’)

text: Public document

text: Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 10 July 2020 entitled ‘Decision on Defence request under

text: article 67

text: (1)(f) of the

text: Rome Statute

text: No: ICC-02/05-01/20 OA 1/16

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 Cyril Laucci Ms Helen Brady

text: REGISTRY

text: Registrar

text: Mr Peter Lewis

text: No: ICC-02/05-01/20 OA 2/16

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre- Trial Chamber II entitled ‘Decision on Defence request under

text: article 67

text: (1)(f) of the

text: Rome Statute

text: ’ of 10 July 2020 (ICC-02/05-01/20-94),

text: After deliberation, By majority, Judge Ibáñez Carranza partially dissenting, Delivers the following

text: J U D G M E N T

text: The ‘Decision on Defence request under

text: article 67

text: (1)(f) of the

text: Rome Statute

text: ’ is confirmed.

text: REASONS

text: I. KEY FINDINGS

text: Article 67

text: (1)(f) of

text: the Statute

text: relates to the proceedings and documents presented to the Court and not to communication with defence Counsel.

text: II. PROCEDURAL HISTORY

text: A. Proceedings before the Pre-Trial Chamber

text: On 10 July 2020, the Single Judge on behalf of Pre-Trial Chamber II (the ‘Pre- Trial Chamber’) rejected Mr Abd-Al-Rahman’s request for an order to the Registry ‘to provide the Defence team with the interpretation and translation services that are necessary for the preparation of the suspect’s defence and for his communication with the Defence team […] pursuant to

text: article 67

text: (1)(f) of

text: the Statute

text: ’ (the ‘Impugned Decision’).

text: 1 Decision on the Defence request under

text: article 67

text: (1)(f) of the

text: Rome Statute

text: , ICC-02/05-01/20-94, para. 6, p. 9, referring to Requête en vertu de l’Article 67-1-f, 25 June 2020, ICC-02/05-01/20-7 (the ‘Request’).

text: No: ICC-02/05-01/20 OA 3/16

text: On 7 August 2020, the Pre-Trial Chamber granted Mr Abd-Al-Rahman leave to appeal the Impugned Decision under

text: article 82

text: (1)(d) of

text: the Statute

text: in respect of the following issue:

text: Whether

text: article 67

text: (1)(f) of

text: the Statute

text: gives rise to a right to an interpreter to be provided by the Court free of charge for some or all communications between a defendant and his or her Counsel/Defence team, when the defendant has freely chosen Counsel with whom he cannot communicate, and while numerous other qualified Counsel were available who did speak a language the defendant fully understands and speaks.

text: B. Proceedings before the Appeals Chamber

text: On 13 August 2020, Mr Abd-Al-Rahman filed his appeal against the Impugned Decision (the ‘Appeal Brief’).

text: On 24 August 2020, the Prosecutor filed her response to the Appeal Brief (the ‘Response’).

text: On 25 August 2020, the Appeals Chamber rejected the request to suspend the effect of the Impugned Decision pending resolution of the merits of the appeal.

text: On 27 August 2020, the Registrar filed observations on the Appeal Brief (the ‘Registrar’s Observations’).

text: III. MERITS

text: A. Relevant background and Impugned Decision

text: The present matter was triggered by Mr Abd-Al-Rahman’s request for the Pre- Trial Chamber ‘to: (i) urgently order the Registry to provide the Defence team with the interpretation and translation services that are necessary for the preparation of the suspect’s defence and for his communication with the Defence team, as of Friday 26 June 2020, pursuant to

text: article 67

text: (1)(f) of

text: the Statute

text: ; and, in the meantime,

text: 2 Decision on the Defence Request for Leave to Appeal the ‘Decision on Defence Request under

text: article 67

text: (1)(f) of the

text: Rome Statute

text: ’, ICC-02/05-01/20-109. 3 Appeal Brief against Decision ICC-02/05-01/20-94, ICC-02/05-01/20-111-tENG, para. 41. Prosecution response to the ‘Mémoire d’appel de la décision ICC-02/05-01/20-94’, ICC-02/05-01/20- 132. 5 Decision on request for suspensive effect, ICC-02/05-01/20-134. 6 Registrar’s observations on the ‘Mémoire d’appel de la décision ICC-02/05-01/20-94’, (ICC-02/05- 01/20-111), ICC-02/05-01/20-136.

text: No: ICC-02/05-01/20 OA 4/16

text: (ii) order the Registry to provide the Defence team with provisional interpretation and translation services pursuant to regulation 57(1) of the Regulations of the Registry and without applying the criteria set out in regulation 58(3) of the Regulations of the Registry’.

text: The Pre-Trial Chamber rejected the request on the basis that the right to interpretation and translation set out in

text: article 67

text: (1)(f) of

text: the Statute

text: is limited to the purpose of understanding proceedings and does not cover client/counsel communication. The Pre-Trial Chamber considered ‘that it is the responsibility of a Defence Counsel who has accepted to defend a suspect with whom he or she cannot communicate in any language to use the legal aid funds to which the suspect is entitled to ensure that his or her client’s needs in terms of communication with the 9 Defence Counsel are adequately satisfied’.

text: B. Summary of submissions

text: Mr Abd-Al-Rahman’s submissions

text: Mr Abd-Al-Rahman alleges that the Pre-Trial Chamber committed three legal 10 errors in the Impugned Decision. He requests the Appeals Chamber to confirm that

text: article 67

text: (1)(f) of the

text: Rome Statute

text: prescribes his right to receive, on a permanent basis, the necessary interpretation and translation services between Arabic and one of the Court’s working languages – including, but not exclusively – for the purposes of his communication with his Defence team under regulation 97(1) of Regulations of the Court, with no condition of eligibility attached to legal assistance paid by the Court under

text: article 67

text: (1)(d) of

text: the Statute

text: and irrespective of the language skills of his Counsel or his defence team.

text: First, Mr Abd-Al-Rahman argues that the Pre-Trial Chamber adopted an excessively limited definition of ‘proceedings’ within the meaning of

text: article 67

text: (1)(f) of

text: the Statute

text: in excluding communication between the suspect and his or her counsel

text: 7 Impugned Decision, para. 6. 8 Impugned Decision, para. 15. 9 Impugned Decision, para. 17. 10 Appeal Brief, paras 21-38. 11 Appeal Brief, para. 38.

text: No: ICC-02/05-01/20 OA 5/16 from its ambit. He argues that this interpretation ‘rested on irrelevant references to authority about the right to translation of documents disclosed by the Office of the Prosecutor’, the case law of the European Court of Human Rights and the Code of Professional Conduct for Counsel. He underlines that ‘the permanent aid of translation and interpretation services has been afforded to persons charged even where they were not eligible for legal assistance paid by the Court, and that the Honourable Appeals Chamber has itself held that the right to interpretation – construed inclusively and irrespectively of the language skills of the Defence team – is “a sine qua non for the holding of a fair trial”’.

text: Mr Abd-Al-Rahman contends that ‘Counsel is the main point of contact through whom the person charged is able to understand and follow the proceedings and decide 15 whether it is expedient to exercise his or her procedural rights and how to do so’. In his view, the limited definition of ‘proceedings’ adopted by the Pre-Trial Chamber is ‘incompatible with the right of every detained person “to communicate fully, where necessary with the assistance of an interpreter, with his or her defence counsel or assistants to his or her defence counsel as referred to in regulation 68” vested by regulation 97(1) of the [Regulations of the Court]’.

text: Mr Abd-Al-Rahman submits that the error ‘had a substantial impact on the legality of the [Impugned] Decision’ and on his ‘right to the translation and

text: 12 Appeal Brief, para. 22. 13 Appeal Brief, paras 23, 26. 14 Appeal Brief, para. 23, referring to The Prosecutor v. Germain Katanga, Appeals Chamber, 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: , para. 41 (‘Looking at article 67 as a whole emphasises that the right to interpretation, one of the basic rights of the accused, is an essential component of a fair trial. Article 67, entitled “[r]ights of the accused”, is situated in Part 6 of

text: the Statute

text: , “The Trial”, and is made applicable to proceedings at the pre-trial phase by virtue of rule 121 of the Rules which states that “[s]ubject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67”. The chapeau of article 67 (1) states that the accused shall have the right “to a fair hearing conducted impartially” and that the accused shall be entitled to a list of rights stipulated to be “minimum guarantees, in full equality”. The inclusion of the right to interpretation in the terms provided in article 67 as a whole indicates that this right is a sine qua non for the holding of a fair trial’). 15 Appeal Brief, para. 24. 16 Appeal Brief, para. 24.

text: No: ICC-02/05-01/20 OA 6/16 interpretation services required by the Court’s instruments for the preparation of his defence’ and has significantly affected the preparation of his defence.

text: Second, Mr Abd-Al-Rahman argues that the Pre-Trial Chamber erred in law by making the provision of interpretation services for the purposes of communication between the person being prosecuted and his Counsel contingent on eligibility for legal assistance and on its budget. Mr Abd-Al-Rahman submits that the right guaranteed by

text: article 67

text: (1)(f) of

text: the Statute

text: is not ‘conditional upon the granting under article 67(1)(d) of the legal assistance paid by the Court’ and that regulations 97(1) of the Regulations of the Court and regulations 57(1) and 58 of the Regulations of the Registry provide for services ‘with no prerequisite of eligibility for legal assistance paid by the Court’. In his view, ‘[t]he inclusion in regulation 83(1) of the [Regulations of the Court] of “translation and interpretation costs” under the head of reasonably necessary costs covered by legal assistance paid by the Court cannot, alone, call into question the letter of

text: article 67

text: (1)(f) of

text: the Statute

text: – which is hierarchically superior to it – or the letter of regulation 97(1) of the [Regulations of the Court] – which is on a par with it’. He further notes that ‘despite its general reference to regulation 83(1) in section 15(1), the Legal Aid Policy does not include a chapter on expenses relating to interpretation services granted by way of legal assistance’.

text: Third, Mr Abd-Al-Rahman submits that the Pre-Trial Chamber erred in ‘law by considering the language skills of Lead Counsel and/or the Defence team as a criterion for the right of the person charged to receive interpretation and translation services under

text: article 67

text: (1)(f) of

text: the Statute

text: ’. He submits that his choice of Counsel ‘may have been informed by privileged discussions […] including those related to devising and developing his defence strategy’, elements of which he variously describes as ‘unprecedented’, ‘striking’ and ‘novel’. Mr Abd-Al-Rahman argues that the fact that his defence team ‘includes an Arabic-speaking Case Manager cannot,

text: 17 Appeal Brief, para. 27. 18 Appeal Brief, para. 28. 19 Appeal Brief, para. 30. 20 Appeal Brief, para. 31. 21 Appeal Brief, para. 31. 22 Appeal Brief, para. 33. 23 Appeal Brief, para. 35.

text: No: ICC-02/05-01/20 OA 7/16 alone, fulfil the right to receive interpretation and translation services pursuant to

text: article 67

text: (1)(f) of

text: the Statute

text: ’ and emphasises the different functions of interpreters and translators and case managers.

text: Mr Abd-Al-Rahman submits that ‘[t]he consideration given to the language skills of Counsel and the Defence team in the Decision under Appeal also appears to be prompted by the concerns expressed in the Registry’s Observations regarding the financial impact of the request for the interpretation and translation services required by the instruments’. He submits that ‘the financial argument, which has not been substantiated, cannot prevail over the legal considerations and the safeguarding of [his] right to interpretation and translation services under article 67(1)(f) of the 26 Statute’.

text: The Prosecutor’s submissions

text: Regarding the first ground of appeal, the Prosecutor argues that these arguments ‘could be dismissed summarily’ because Mr Abd-Al-Rahman ‘fails to show how the Single Judge misinterpreted the law’ and the bulk of his submissions dispute the Registry’s observations rather than the Impugned Decision. She contends that, in the alternative, this ground should be rejected on its merits. She submits that the Pre-Trial Chamber was correct to find that a ‘plain textual reading of article 67(1)(f) in its proper context and considering its underlying rationale suggests that the right to interpretation, under this provision, is limited to court proceedings’ and does not extend to communications with Counsel. The Prosecutor emphasises that

text: article 67

text: (1)(f) of

text: the Statute

text: and related legal provisions are framed in relation to the working languages of the Court (English and French), whereas client-counsel communications may take place in any language and are not viewed through the same lens as Court proceedings under

text: article 67

text: (1)(f) of

text: the Statute

text: . She argues that ‘both the drafting history of article 67(1)(f) and the text of relevant human rights instruments (upon which article 67(1)(f) was modelled) support the understanding that

text: 24 Appeal Brief, para. 36. 25 Appeal Brief, para. 37. 26 Appeal Brief, para. 37. 27 Response, para. 13. 28 Response, paras 14, 16, 18. 29 Response, paras 16-17.

text: No: ICC-02/05-01/20 OA 8/16 what is considered necessary interpretation under article 67(1)(f) is tied to the language used in court’. She argues that, given its specific language and rationale,

text: article 67

text: (1)(f) of

text: the Statute

text: cannot be interpreted as including an unfettered right to interpretation for all client-counsel communication and that this position is consistent with human rights jurisprudence.

text: Regarding the second ground of appeal, the Prosecutor submits that, although Mr Abd-Al-Rahman discusses the Registry’s legal aid policy in some detail, none of the findings in the Impugned Decision relate to it. She argues that his ‘submissions interpreting regulation 83 of the [Regulations of the Court] and other legal provisions in light of

text: articles 31

text: and

text: of the

text: Vienna Convention on the Law of Treaties

text: are 33 unnecessary and should be dismissed’.

text: Regarding the third ground of appeal, the Prosecutor contends that Mr Abd-Al- Rahman’s arguments are based on a misreading of the Impugned Decision, which rejected the request under

text: article 67

text: (1)(f) of

text: the Statute

text: because this provision does not apply to communication between counsel and client and not because of ‘the Defence counsel’s/team’s linguistic abilities’. In her view, the Pre-Trial Chamber appropriately highlighted Counsel’s obligation to his client to ensure that he can properly communicate with him through the defence team.

text: The Registrar’s observations

text: The Registrar submits that regulation 97 of the Regulations of the Court ‘does not support any general right to interpretation and translation of communications between a defendant and a counsel’ as it appears in the chapter regulating detention matters, is formulated in the conditional (‘where necessary’) and states no obligation for the Court to pay for such translation or interpretation services on behalf of counsel. In his view, ‘international human rights, which establish that the right of the accused or suspect for translation or interpretation extends only to the latter’s

text: 30 Response, para. 19. 31 Response, paras 20-22. 32 Response, para. 27. 33 Response, para. 28. 34 Response, para. 30. 35 Response, para. 30. 36 Registrar’s Observations, para. 15.

text: No: ICC-02/05-01/20 OA 9/16 relations vis-à-vis the Court as to guarantee the fairness of the proceedings and not to counsel-client relationship’.

text: Regarding the second ground of appeal, the Registrar notes that the Pre-Trial Chamber ‘refers to legal aid in the context of counsel’s obligation to “‘take into account the client’s personal circumstances and specific needs’ in order to maintain a Counsel-client relationship ‘of candid exchange and trust’ and ‘act in good faith when dealing with the client’”’. He submits that the Pre-Trial Chamber did not make legal aid a condition for provision of interpretation services. Regarding the third ground of appeal, the Registrar highlights that the right to free choice of counsel ‘is not absolute and is necessarily subject to certain limitations’.

text: C. Determination by the Appeals Chamber

text: (a) Scope of the appeal

text: Mr Abd-Al-Rahman argues on appeal that the issue at stake is substantially broader than that certified by the Pre-Trial Chamber and ‘extends to all language services between Arabic and one of the two working languages of the Court which an interpreter placed at the disposal of the Defence team may provide, such as in its interaction with possible witnesses, intermediaries and resource persons or the analysis of documents, including audio and video files transmitted by the Office of the Prosecutor’.

text: The Appeals Chamber notes that the Impugned Decision did not address all aspects of the suspect’s right to interpretation or translation services under

text: article 67

text: (1)(f) of

text: the Statute

text: , but focused on the limited question of whether this right includes interpretation and translation services as necessary to facilitate communication with the legal team. This decision defines the scope of the appeal. In these circumstances, it would exceed the role of the Appeals Chamber to decide on the interpretation and translation services requested by Mr Abd-Al-Rahman for

text: 37 Registrar’s Observations, para. 16. 38 Registrar’s Observations, para. 22. 39 Registrar’s Observations, para. 22. 40 Registrar’s Observations, para. 26. 41 Appeal Brief, para. 12.

text: No: ICC-02/05-01/20 OA 10/16 purposes other than client/counsel communication. These arguments must be raised before and determined by the Pre-Trial Chamber in the first instance.

text: The Appeals Chamber further notes that a large part of Mr Abd-Al-Rahman’s arguments under the first ground of appeal engage with the submissions of the Registrar before the Pre-Trial Chamber rather than with the reasoning and findings of the Impugned Decision. The Prosecutor suggests that this ground of appeal could be dismissed summarily on this basis. The Appeals Chamber notes that the Appeal Brief identifies a challenged finding or legal error in the Impugned Decision (an allegedly reductive definition of the word ‘proceedings’, within the meaning of

text: article 67

text: (1)(f) of

text: the Statute

text: ), and a large part of the arguments are relevant to showing an error in this finding, even if they are directed at the Registrar’s observations. In these circumstances, the Appeals Chamber considers it necessary to address those arguments under the first ground of appeal that are relevant to the Impugned Decision.

text: Mr Abd-Al-Rahman’s arguments under the second ground of appeal are based on the interpretation of

text: article 67

text: (1)(f) of

text: the Statute

text: that he advances under the first ground of appeal. In his submission, the Pre-Trial Chamber made the provision of interpretation services for the purposes of communication between the person being prosecuted and his counsel contingent on eligibility for legal assistance paid by the Court and on its budget. As this is the clear implication of the Pre-Trial Chamber’s interpretation of

text: article 67

text: (1)(f) of

text: the Statute

text: , the Appeals Chamber considers the second ground of appeal to be intrinsically linked to the issue certified for appeal. Although the arguments raised are of limited assistance in determining the issues raised in the present appeal, they will be considered to the extent possible.

text: Mr Abd-Al-Rahman’s arguments under the third ground of appeal do not relate to findings in the Impugned Decision and erroneously impute a line of reasoning apparently contained in the Registrar’s first instance observations to the Pre-Trial

text: 42 Appeal Brief, paras 16-22. 43 Response, para. 13. 44 Appeal Brief, paras 28-32. 45 Appeal Brief, para. 28.

text: No: ICC-02/05-01/20 OA 11/16

text: Chamber. The Pre-Trial Chamber did not consider the language skills of the Lead Counsel and/or the Defence team as a relevant criterion for the right of the person being prosecuted to receive interpretation and translation services under

text: article 67

text: (1)(f) of

text: the Statute

text: , as argued by Mr Abd-Al-Rahman in the third ground of appeal. Accordingly, the third ground of appeal is dismissed in limine.

text: (b) Whether there is a right to interpretation for the purpose of

text: client/counsel communication

text: Article 67

text: (1)(f) of

text: the Statute

text: provides:

text: In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: […] (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks; […] 28. Mr Abd-Al-Rahman argues that

text: article 67

text: (1)(f) of

text: the Statute

text: must be interpreted in light of regulation 97(1) of the Regulations of the Court, which provides for the right of a detained person ‘to communicate fully, where necessary with the assistance of an interpreter, with his or her defence counsel or assistants to his or her defence counsel as referred to in regulation 68’. The Appeals Chamber is not persuaded by this argument and considers that the hierarchy of legal texts requires that regulation 97(1) of the Regulations of the Court be interpreted in light of

text: article 67

text: (1)(f) of

text: the Statute

text: , rather than the inverse, as Mr Abd-Al-Rahman suggests. Regulation 97(1), entitled ‘Communication with defence counsel’, appears in the chapter on ‘Detention matters’ in the Regulations of the Court, in the section on

text: 46 Appeal Brief, paras 33-34: ‘This third error of law was also prompted by the Registry’s Observations’, referring to Registry’s observations on the “Requête en vertu de l’Article 67-1-f”, (ICC- 02/05-01/20-7), 29 June 2020, ICC-02/05-01/20-11 (the ‘Registrar’s Observations before the Pre-Trial Chamber’). 47 Rule 121(1) of the Rules of Procedure and Evidence (the ‘Rules’) provides: ‘A person subject to a warrant of arrest or a summons to appear under article 58 shall appear before the Pre-Trial Chamber, in the presence of the Prosecutor, promptly upon arriving at the Court. Subject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67’. 48 Appeal Brief, para. 24.

text: No: ICC-02/05-01/20 OA 12/16

text: ‘Rights of a detained person and conditions of detention’. It does no more than specify that the detained person shall be informed of his or her right to communicate with counsel, if necessary through an interpreter. It creates neither a right to counsel, nor to interpretation. Indeed, while its text confirms the existence of a right to communicate with counsel, it does not indicate that there is a right to interpretation; nor does it elaborate on the circumstances in which interpretation may be necessary or provided at the expense of the Court. These rights are regulated in

text: article 67

text: of

text: the Statute

text: and must be interpreted in that context.

text: Regarding

text: article 67

text: (1)(f) of

text: the Statute

text: , the Pre-Trial Chamber found:

text: A textual interpretation of this provision indicates that it cannot be construed as enshrining an unfettered and absolute right for the suspect to benefit from interpretation and translation services at all times and for all matters and activities. Rather,

text: article 67

text: (1)(f) of

text: the Statute

text: gives the defendant a right, subject to the Chamber’s appreciation, to understand everything that happens in the proceedings against him or her, which does not include private and privileged communications between the defendant and his or her Defence team. 30. The Appeals Chamber can find no error in the Pre-Trial Chamber’s interpretation of

text: article 67

text: (1)(f) of

text: the Statute

text: . As highlighted by the Pre-Trial Chamber, this provision expressly limits the right to interpretation and translation to situations in which ‘the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks’. By its plain terms,

text: article 67

text: (1)(f) of

text: the Statute

text: relates to the proceedings and documents presented to the Court and not to communication with defence counsel. This is consistent with human rights jurisprudence concerning the corresponding provisions in human rights treaties, which confirms that the right to interpretation is linked to proceedings before the Court and 50 does not extend to the relationship between the accused and his or her counsel.

text: As the right to the free assistance of an interpreter under

text: article 67

text: (1)(f) of

text: the Statute

text: does not cover client/counsel communications, persons with sufficient means

text: 49 Impugned Decision, para. 15. 50 European Commission of Human Rights, X v. Austria, Application no. 6185/73, 29 May 1975, para. 1; European Court of Human Rights, Luedicke, Belkacem and Koç v. Germany, Application nos 6210/73, 6877/75, 7132/75, 28 November 1978, para. 48; United Nations Human Rights Committee, Singarasa v. Sri Lanka, Communication No. 1033/2001, U.N. Doc. CCPR/C/81/D/1033/2001, 23 August 2004, para. 7.2.

text: No: ICC-02/05-01/20 OA 13/16 to do so must pay for any interpretation services that may be necessary to facilitate communication with their legal team. In the case of persons who do not have sufficient means to pay for their legal assistance, any interpretation costs for the purpose of client/counsel communications must be considered within the scope of the legal assistance scheme.

text: Pursuant to regulation 83(1) of the Regulations of the Court, the key question in determining whether any costs in this regard should be borne by the legal assistance scheme is whether they are reasonably necessary for an effective and efficient 51 defence. The Appeals Chamber observes that the fact that a suspect and his counsel do not speak the same language and cannot communicate without assistance clearly has the potential to impact on the rights enshrined in article 67(1)(b) and (d) of the 52 Statute. Therefore, a solution must be found that allows communication to take place.

text: In the present case, the Pre-Trial Chamber found that it is the responsibility of counsel ‘to use the legal aid funds to which the suspect is entitled to ensure that his or her client’s needs in terms of communication with the Defence Counsel are adequately satisfied’. If Mr Abd-Al-Rahman considers that such arrangements are inadequate to ensure an effective and efficient defence, the appropriate application for any additional assistance considered reasonably necessary must be made to the Registrar in the first instance.

text: Finally, the Appeals Chamber understands that Mr Abd-Al-Rahman has been assigned counsel paid by the Court. He was presented with a list of 39 counsel who speak Arabic, the language that he fully understands and speaks, and he freely chose counsel with whom he cannot communicate. While this choice of counsel has been respected, it is for the Pre-Trial Chamber to ensure that this situation does not impact

text: 51 Regulation 83(1) provides that ‘[l]egal assistance paid by the Court shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence, including […] translation and interpretation costs […]’. 52 Article 67(1)(b) sets out the right ‘[t]o have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused’s choosing in confidence’ and article 67(1)(d) sets out the right ‘to conduct the defence in person or through legal assistance […]’. 53 Impugned Decision, para. 17. 54 Appeal Brief, para. 26; Impugned Decision, para. 17. 55 Impugned Decision, para. 5. 56 Response, para. 34, referring to Registrar’s Observations before the Pre-Trial Chamber, paras 4-5.

text: No: ICC-02/05-01/20 OA 14/16 on the delivery of an effective and efficient defence on behalf of Mr Abd-Al-Rahman.

text: Although the wording of article 67(1)(d) shows that there is no absolute right to free

text: choice of counsel when legal assistance is paid by the Court, the Rules and Regulations of the Court suggest that a person’s choice of counsel must generally be

text: respected. Nonetheless, consistent with human rights jurisprudence, regulation 76(1)

text: of the Regulations of the Court allows a chamber to appoint counsel when the

text: interests of justice so require.

text: IV. APPROPRIATE RELIEF

text: In an appeal pursuant to

text: article 82

text: (1)(d) of

text: the Statute

text: , the Appeals Chamber

text: may confirm, reverse or amend the decision appealed (rule 158(1) of the Rules). In

text: the present case it is appropriate to confirm the Impugned Decision.

text: Judge Ibáñez Carranza appends to this judgment a partially dissenting opinion, which

text: sets out her views on the need for a systemic, systematic and comprehensive reading

text: of defence rights in the

text: Rome Statute

text: , and related norms and regulations, given their

text: nature as a guarantee of due process of law and the proper administration of justice

text: Article 67

text: (1)(d) of

text: the Statute

text: sets out the right ‘to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it’. The wording of this provision is virtually identical to

text: article 14

text: (3)(d) of the

text: International Covenant on Civil and Political Rights

text: (the right ‘to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it’) and similar to the right set out in

text: article 6

text: (3)(c) of the

text: European Convention on Human Rights

text: : ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. The European Court of Human Rights has found that, while as a general rule, the accused’s choice of lawyer should be respected, the national courts may override that person’s choice when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice: see Lagerblom v. Sweden, application no. 26891/95, 14 January 2003, para. 54; Croissant v. Germany, application no. 13611/88, 25 September 1992, para. 29. Similarly, the United Nations Human Rights Committee has found that

text: article 14

text: , paragraph 3 (d) of the

text: does not entitle an accused to choose counsel free of charge: see Saidov v. Tajikistan, Human Rights Committee, Communication No. 964/2001, U.N. Doc. CCPR/C/81/D/964/2001, 8 July 2004, para. 6.8. It has been observed that ‘when counsel is assigned at State expense, the State has stronger interests in restricting the role of the accused in the choice of counsel, for reasons of cost, efficiency and administrative structure’: See R. J. Wilson, ‘Chapter 2: Procedural Safeguards for the Defense in International Human Rights Law’, in M. Bohlander, R. Boed, R. Wilson (eds) Defense in International Criminal Proceedings (2006), p. 22. See rule 21(2) of the Rules; regulation 75 of the Regulations of the Court. Regulation 76(1) of the Regulations of the Court reads in relevant part: ‘[a] Chamber, following consultation with the Registrar and, when appropriate, after hearing from the person entitled to legal assistance, may appoint counsel in the circumstances specified in

text: the Statute

text: , Rules and these Regulations or where the interests of justice so require’.

text: No: ICC-02/05-01/20 OA 15/16 and as internationally recognized human rights that must be read in light of

text: article 14

text: of the

text: . Viewing

text: article 67

text: of

text: the Statute

text: through this lens, Judge Ibáñez Carranza considers that interpretation may be a facility necessary for the preparation of the defence and to give effect to the right to legal assistance of the accused’s choosing, especially in circumstances when the accused is detained. For the reasons set out in her partially dissenting opinion, Judge Ibáñez Carranza is of the view that, in the current circumstances, Mr Abd-Al-Rahman has the right to avail of interpretation services in order to communicate with his defence counsel for the purposes of preparing his defence, but the exercise of this right may be modulated in the manner provided by

text: the Statute

text: . Accordingly, Judge Ibáñez Carranza would find that the Pre-Trial Chamber erred in considering the Request under

text: article 67

text: (1)(f) of

text: the Statute

text: in isolation, as a result of which it failed in its duty to ensure adequate protection for Mr Abd-Al-Rahman’s defence rights, specifically the right to communicate with his counsel and to have adequate facilities for the preparation of his defence.

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

text: _____________________________ Judge Piotr Hofmański Presiding

text: th Dated this 5 day of November 2020 At The Hague, The Netherlands

text: No: ICC-02/05-01/20 OA 16/16


court: icc

doctype: appeal-interlocutory

identifier: ICC-02/05-01/20 (Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against two oral decisions of the Pre-Trial Chamber and the decision entitled ‘Decision on the Defence Request to provide written reasoning for two oral decisions’)

caseName: The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb")

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

text: the Statute

text: the Statute, article 60

text: the Statute, article 72

text: the Statute, article 74

text: the Statute, article 82

text: Original: English No. ICC-02/05-01/20 OA5 Date: 18 December 2020

type: stycke

text: THE APPEALS CHAMBER

type: rubrik

text: Before: Judge Piotr Hofmański, Presiding Judge Chile Eboe-Osuji Judge Howard Morrison Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL- RAHMAN (‘ALI KUSHAYB’)

text: Public document

text: No: ICC-02/05-01/20 OA5 1/11

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 Cyril Laucci Ms Helen Brady

text: REGISTRY Registrar

text: Mr Peter Lewis

text: No: ICC-02/05-01/20 OA5 2/11

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against two oral decisions of the Pre-Trial Chamber of 15 June 2020 (ICC-02/05-01/20-T-001-ENG) and the decision entitled ‘Decision on the Defence Request to provide written reasoning for two oral decisions’ of 18 August 2020 (ICC-02/05-01/20-118), After deliberation, Unanimously, Delivers the following

text: J U D G M E N T

text: The decision entitled ‘Decision on the Defence Request to provide written reasoning for two oral decisions’ of 18 August 2020 (ICC-02/05-01/20-118) is confirmed and the appeals against the two oral decisions of the Pre-Trial Chamber of 15 June 2020 (ICC-02/05-01/20-T-001-ENG) are dismissed as moot.

text: REASONS

text: I. KEY FINDINGS

text: Chambers of the Court must indicate with sufficient clarity the grounds on which they base their decisions. This duty is an element of the broader right to a fair trial, which applies as early as a person’s initial appearance before the Court. Whether the reasons given are ‘sufficient’, however, will depend invariably on the circumstances. There is no prescribed formula for what is or is not sufficient, and the extent to which the duty to provide reasons applies may vary according to the nature of the decision.

text: No: ICC-02/05-01/20 OA5 3/11

text: II. INTRODUCTION

text: During his initial appearance before the Court, Mr Abd-Al-Rahman made two requests of the Pre-Trial Chamber to modify the procedure for the hearing. The Pre- Trial Chamber denied both of the requests in oral decisions. Following the hearing, Mr Abd-Al-Rahman made a written request to the Pre-Trial Chamber to provide further reasons for its oral decisions. The Pre-Trial Chamber dismissed the written request on an in limine basis. The Appeals Chamber is now seized of the issue of whether the two oral decisions comply with the requirement to give sufficient reasons for a decision and, if not, whether the time limit for interlocutory appeal of those decisions is suspended pending further reasons.

text: III. PROCEDURAL HISTORY

text: On 15 June 2020, Mr Abd-Al-Rahman made his first appearance before the Single Judge on behalf of Pre-Trial Chamber II (the ‘Pre-Trial Chamber’). During the hearing, the Pre-Trial Chamber adopted a number of procedural oral decisions, including (i) a decision to proceed with the reading of the Prosecutor’s allegations against Mr Abd-Al-Rahman, notwithstanding his objection (the ‘First Oral Decision’); and (ii) a decision rejecting Mr Abd-Al-Rahman’s request that a minute of silence be observed in memory of the victims of the situation in Darfur (the ‘Second Oral Decision’) (collectively, the ‘Oral Decisions’).

text: On 18 June 2020, Mr Abd-Al-Rahman submitted a written request (the ‘Request for Reasons’), arguing that the Oral Decisions did not provide any indication of the underlying reasons. In particular, he argued that the First Oral Decision constituted a departure from existing practice, and that the Pre-Trial Chamber’s reasons for such a departure were not apparent. He also characterised the Pre-Trial Chamber’s rejection of his request for a minute of silence as ‘incomprehensible’, and he asserted that he had a right to be informed of the reasons for the refusal.

text: 1 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-100-ENG, page 6, lines 16-24. 2 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-100-ENG, page 22, lines 4-12. 3 Request to Provide Written Reasoning for Two Oral Decisions Delivered at the First Appearance Hearing, ICC-02/05-01/20-2-tENG. Request for Reasons, para. 8. 5 Request for Reasons, para. 9. No: ICC-02/05-01/20 OA5 4/11

text: On 18 August 2020, the Pre-Trial Chamber issued its decision rejecting the Request for Reasons (the ‘Decision on the Request for Reasons’). In the view of the Pre-Trial Chamber, as Mr Abd-Al-Rahman did not proceed with a request under

text: article 82

text: (1)(d) of

text: the Statute

text: to appeal the Oral Decisions directly, that procedural avenue was foreclosed and the Oral Decisions were res judicata. On this basis, the Pre-Trial Chamber dismissed Mr Abd-Al-Rahman’s Request in limine. The Pre-Trial Chamber then explained that the First Oral Decision was taken, in part, so that the public was made aware and precisely informed of the subject matter of criminal proceedings. The Second Oral Decision was taken because, in its view, ‘the courtroom was “not the place” to submit [a request for a minute of silence]’, and such a proposal fell outside the object and purpose of a hearing and exceeded the powers of the Pre-Trial Chamber.

text: On 28 August 2020, in respect of the Oral Decisions and the Decision on the Request for Reasons (collectively, the ‘Impugned Decisions’), Mr Abd-Al-Rahman submitted a request for leave to appeal (the ‘Request for Leave to Appeal’), seeking leave to appeal in respect of the following two issues:  Does the obligation, pursuant to

text: article 74

text: (5) of

text: the Statute

text: , to provide reasons for decisions apply to all decisions rendered by Pre-Trial and Trial Chambers or to only some of them? In the latter scenario, does the obligation to provide reasons apply specifically to decisions for which a Party has expressly sought to receive notification of reasons?  Does the time limit for filing an appeal against a decision, for which notification of the reasons is pending, start running before the notification of the reasons or the refusal to notify them occurs?

text: 6 Decision on the Defence Request to provide written reasoning for two oral decisions, ICC-02/05-01/20- 118. 7 Decision on the Request for Reasons, paras 7-8. 8 Decision on the Request for Reasons, paras 11-13. 9 Decision on the Request for Reasons, para. 14. 10 Application for Leave to Appeal against Three Decisions, ICC-02/05-01/20-130-tENG. 11 Request for Leave to Appeal, para. 14. No: ICC-02/05-01/20 OA5 5/11

text: The Pre-Trial Chamber granted leave to appeal the Impugned Decisions without modifying the issues as framed in Mr Abd-Al-Rahman’s Request for Leave to Appeal.

text: In his appeal brief of 9 September 2020 (the ‘Appeal Brief’), Mr Abd-Al- Rahman raises three grounds of appeal. First, he argues that the Pre-Trial Chamber contravened

text: article 74

text: (5) of

text: the Statute

text: in refusing to give further reasons for the Oral Decisions. Second, he argues that the issue of whether the time for interlocutory appeal of the Oral Decisions had lapsed is independent of the issue of whether the Pre- Trial Chamber had an obligation to provide further reasons for the Oral Decisions. And third, he argues that the five-day time period for interlocutory appeal of the Oral Decisions did not begin to run until the Decision on the Request for Reasons was issued.

text: The Prosecutor responds that the appeal should be dismissed in limine. In the alternative, the Prosecutor argues that the Pre-Trial Chamber did not err because the Oral Decisions were sufficiently reasoned and in any event they are final and can no longer be appealed.

text: IV. PRELIMINARY ISSUES

text: A. Scope of the appeal

text: Given the complexity of the proceedings leading to this judgment, the Appeals Chamber finds it necessary to provide clarification of the scope of the appeal. In its Decision on the Request for Reasons, the Pre-Trial Chamber determined that the Oral Decisions could not be appealed because the time limit for seeking leave to appeal had elapsed. It dismissed the Request for Reasons on an in limine basis. Nevertheless, the first issue for which leave was granted calls upon the Appeals Chamber to examine the scope of application of the legal requirement to give reasons for a decision. Should the Appeals Chamber determine that this legal requirement extends to oral decisions made

text: 12 Decision on the Defence Request for Leave to Appeal Three Decisions, 31 August 2020, ICC-02/05- 01/20-142. 13 Appeal Brief against Three Decisions, ICC-02/05-01/20-148-tENG. 14 Appeal Brief, paras 12-25. 15 Appeal Brief, paras 26-28. 16 Appeal Brief, paras 29-33. 17 Prosecution Response to « Mémoire d’appel de trois décisions », 21 September 2020, ICC-02/05- 01/20-162 (the ‘Prosecutor’s Response’), paras 3, 5-15. 18 Prosecutor’s Response, paras 16-35. No: ICC-02/05-01/20 OA5 6/11 in a suspect’s first appearance, this determination would have direct consequences for the Oral Decisions. In order to give meaning to this examination, the Appeals Chamber understands the Pre-Trial Chamber’s position to be that the Oral Decisions can be reopened to the extent that the question of whether reasons given were or were not sufficient should be answered on appeal.

text: Accordingly, the Appeals Chamber will address the question of whether sufficient reasons were given for the Oral Decisions below. It should be clarified that this issue arises in the present appeal from the Pre-Trial Chamber’s refusal to issue further reasons in the Decision on the Request for Reasons. That decision must logically be considered first and, depending on the outcome, the appeals against the Oral Decision would be moot.

text: However, the Appeals Chamber does not view the scope of the appeal to be so broad as to capture the merits of the Oral Decisions, as explained either in the Decision on the Request for Reasons or in the Oral Decisions themselves. In his Appeal Brief, Mr Abd-Al-Rahman has challenged remarks made in the Decision on the Request for Reasons. It is clear that these remarks were made to support the validity of the Oral Decisions. As the legal basis for the Oral Decisions themselves is not presently at issue, Mr Abd-Al-Rahman’s arguments fall outside the scope of the issue for which leave to appeal was granted. Therefore, the Appeals Chamber has ignored them.

text: B. Nature of the appeal

text: The Appeals Chamber is compelled, here, to devote a few remarks to the appropriateness of the use of the appellate process and the nature of the matter at issue. The criteria for granting leave to appeal are clearly stated in

text: article 82

text: (1)(d) of

text: the Statute

text: , and they are regularly referred to and applied in the decisions of first instance chambers. There is no explanation in the Pre-Trial Chamber’s decision granting leave to appeal as to how the criteria have been applied, nor as to how they have been satisfied. The Appeals Chamber expresses concern that it is now seized of a matter that has little importance to the outcome of the trial or to the fair and expeditious conduct

text: 19 Appeal Brief, paras 17-24. No: ICC-02/05-01/20 OA5 7/11 of the proceedings. However, in principle, short of finding that an appeal is inadmissible, the Appeals Chamber is duty-bound to consider its merits.

text: V. MERITS

text: A. Mr Abd-Al-Rahman’s first ground of appeal

text: The Appeals Chamber will first consider Mr Abd-Al-Rahman’s first ground of appeal, as it concerns the central issue on appeal: whether the Pre-Trial Chamber was justified in refusing to give further reasons for the Oral Decisions. This question calls upon the Appeals Chamber to decide, in the context of the very early stage of the proceeding against Mr Abd-Al-Rahman from which this appeal arises, whether there is a right to a reasoned decision and the scope of that right. The Appeals Chamber observes, first, that

text: the Statute

text: and the Rules of Procedure and Evidence (the ‘Rules’) require that reasons be given only for certain types of judgments or decisions, none of which is the type of decision at issue here. In this regard, the Appeals Chamber finds that Mr Abd-Al-Rahman’s reliance on

text: article 74

text: (5) of

text: the Statute

text: is misplaced. That provision outlines the requirements for a decision made regarding conviction or acquittal, rather than setting out a general rule applicable at all stages of a case.

text: Nevertheless, the Appeals Chamber recognises that chambers of the Court must indicate with sufficient clarity the grounds on which they base their decisions. This duty is an element of the broader right to a fair trial, which applies as early as a person’s initial appearance before the Court. It also applies, in principle, to oral decisions of a chamber. The Appeals Chamber recognises, however, that whether the reasons given are indeed ‘sufficient’ will depend invariably on the circumstances. There is no

text: 20 E.g.

text: articles 72

text: (7)(a)(ii), 74(5), and 83(4) of

text: the Statute

text: ; rules 50(5), 64(2), 108(1), 110(1), 115(3), 139(2), 159(2), and 224(5) of the Rules. 21 See Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, 14 December 2006,

text: (OA5) (‘Lubanga OA5’), para. 20, referring to ECtHR, Hadjianastassiou v. Greece, Judgment, 16 December 1992, application no. 12945/87, para. 32. 22 See rule 121(1) of the Rules, stating that, in a person’s initial appearance, ‘[s]ubject to the provisions of articles 60 and 61, the person shall enjoy the rights set forth in article 67’. 23 See Lubanga OA5, para. 20; Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean- Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido, Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber II of 17 March 2014 entitled No: ICC-02/05-01/20 OA5 8/11 prescribed formula for what is or is not sufficient, and the extent to which the duty to provide reasons applies may vary according to the nature of the decision.

text: Turning to the present case, the Appeals Chamber emphasises that this appeal arises from two relatively minor procedural decisions taken by the Single Judge during Mr Abd-Al-Rahman’s first appearance. As for the First Oral Decision, prior to reading out the allegations, the Single Judge explained to Mr Abd-Al-Rahman that the scope of the appearance pursuant to

text: article 60

text: of

text: the Statute

text: was quite limited, that no evidence would be presented, and that the charges on which the Prosecutor intends to seek trial had by no means been confirmed. The Single Judge then explained that one of the purposes of the hearing is so that ‘the Single Judge [is] satisfied that the person subject to the arrest warrant is informed of the crimes he is alleged to have committed’. After Mr Abd-Al-Rahman’s counsel informed the Single Judge that he waived his right to be informed of the charges, the Single Judge, in the First Oral Decision, indicated that ‘the charges should be appropriately read anyway’.

text: Indeed, the Appeals Chamber notes that one of the primary purposes of a first appearance is so that the Pre-Trial Chamber may itself be satisfied that the person appearing is aware of the allegations against him or her. This purpose was explained by the Single Judge, and it is evident in the text of

text: article 60

text: (1) of

text: the Statute

text: . Therefore, if those allegations are read out over the objection of counsel, any additional reasons given for doing so need not be extensive. The Appeals Chamber finds that, in the circumstances, the reasons given were sufficient.

text: As for the Second Oral Decision, the Appeals Chamber recalls that, after hearing the request of counsel for Mr Abd-Al-Rahman to observe a minute of silence in memory of the victims of Darfur, the Single Judge responded as follows:

text: Judge Aitala: [12:00:39] Well, sir, this is – I understand the purpose of the request, but this is not the place to do this. We will all do this individually and at

text: “Decision on the 'Requête de mise en liberté' submitted by the Defence for Jean-Jacques Mangenda”, 11 July 2014,

text: (OA4), para. 116. 24 ECtHR, Baydar v. The Netherlands, Judgment, 24 April 2018, application no. 55385/14, para. 40. See also ICTY, Appeals Chamber, The Prosecutor v. Anto Furundzija, Judgement, 21 July 2000, IT-95- 17/1-A, para. 69, referring to ECtHR, Ruiz Torija v. Spain, Judgment, 9 December 1994, application no. 18390/91, para. 29. 25 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-001-ENG, p. 4, lines 13-17. 26 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-001-ENG, p. 4, lines 18-21. 27 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-001-ENG, p. 6, lines 19-23. No: ICC-02/05-01/20 OA5 9/11 the International Criminal Court we do this very often, we always think about the victims. So this request now is rejected. We’ll continue with the proceedings. Referring back to

text: article 60

text: of

text: the Statute

text: and rule 121(1) of the Rules, the Appeals Chamber observes that, while there are several matters that in principle should be addressed during the first appearance, partaking in a short memorial ceremony is not one of them. Accordingly, if reasons are indeed given for refusing such a request, those reasons are merely gratuitous and not required by law. Given the circumstances, the Appeals Chamber finds that the reasons given were sufficient.

text: Indeed, though not comprehensive, the Appeals Chamber finds that the reasons given in the Oral Decisions were relevant in relation to the importance of the questions decided by the Single Judge. Therefore, Mr Abd-Al-Rahman’s first ground of appeal is dismissed.

text: B. Mr Abd-Al-Rahman’s second and third grounds of appeal

text: The Appeals Chamber will determine Mr Abd-Al-Rahman’s second and third grounds of appeal together, as both touch upon the same issue: whether the filing of the Request for Reasons had the effect of suspending the five day period for interlocutory appeal of the Oral Decisions. In his third ground of appeal, Mr Abd-Al-Rahman argues that this was indeed the case. In his second ground of appeal, he argues that even if, arguendo, this was not the case, the fact that the Oral Decisions were indeed final and not capable of being appealed is not a relevant factor in the determination of his Request for Reasons.

text: The Appeals Chamber notes, first, in relation to Mr Abd-Al-Rahman’s second ground of appeal, that the duty to provide a reasoned decision fulfils at least two primary interests. One of the purposes is so that proper appellate review can take place. However, a reasoned decision also protects the parties from arbitrariness by demonstrating to them that they have been heard, and thus contributes to a greater

text: 28 Transcript of hearing, 15 June 2020, ICC-02/05-01/20-T-001-ENG, p. 22, lines 9-12. 29 Lubanga OA5, para. 20, referring to ICTY, Appeals Chamber, The Prosecutor v. Momir Nikolić, Judgement on Sentencing Appeal, 8 March 2006, IT-02-60/1-A, para. 96; ICTY, Appeals Chamber, The Prosecutor v. Dragoljub Kunarac et al., Judgement, 12 June 2002, IT-96-23 & 23/1-A, para. 41. No: ICC-02/05-01/20 OA5 10/11 acceptance of the decision. Therefore, a chamber cannot, in principle, avoid the duty to give reasons solely on the basis that appellate review is no longer possible.

text: Nevertheless, as the Appeals Chamber has found that the Oral Decisions were sufficiently reasoned, any superseding question as to the basis for the Pre-Trial Chamber’s rejection of the Request for Reasons is moot. There was no obligation of the Pre-Trial Chamber to provide further reasons in a separate decision. Therefore, Mr Abd-Al-Rahman’s second ground of appeal is dismissed. The finding that the Oral Decisions were sufficiently reasoned also answers Mr Abd-Al-Rahman’s third ground of appeal. The issue as to whether a request for reasons acts to automatically suspend the time permitted for interlocutory appeal is moot, because in this case there was no period during which the communication of reasons was pending. The reasons were given fully and appropriately at the time of the Oral Decisions. Therefore, Mr Abd-Al- Rahman’s third ground of appeal is dismissed.

text: VI. APPROPRIATE RELIEF

text: In an appeal pursuant to

text: article 82

text: (1)(d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158(1) of the Rules of Procedure and Evidence). In the present case it is appropriate to confirm the Decision on the Request for Reasons and dismiss the appeals against the Oral Decisions as moot.

text: Dated this 18th day of December 2020 At The Hague, The Netherlands

text: 30 ECtHR, Magnin c. France, Décision, 10 May 2012, application no. 26219/08, para. 29. No: ICC-02/05-01/20 OA5 11/11

type: avgorande


identifier: ICC-02/05-01/20 (Judgment on the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre-Trial Chamber II of 18 August 2020 entitled ‘Decision on the Defence request and observations on reparations pursuant to article 75(1) of the RomeStatute’)

text: the Statute

text: the Statute, article 19

text: the Statute, article 57

text: the Statute, article 58

text: the Statute, article 59

text: the Statute, article 60

text: the Statute, article 61

text: the Statute, article 68

text: Rome Statute, article 75

text: the Statute, article 82

text: the Statute, article 87

text: Original: English No. ICC-02/05-01/20 OA4 Date: 18 December 2020

text: THE APPEALS CHAMBER

text: Before: Judge Piotr Hofmański, Presiding Judge Chile Eboe-Osuji Judge Howard Morrison Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa

text: SITUATION IN DARFUR, SUDAN

text: IN THE CASE OF THE PROSECUTOR v. ALI MUHAMMAD ALI ABD-AL- RAHMAN (‘ALI KUSHAYB’)

text: Public document

text: article 75

text: (1) of the

text: Rome Statute

text: No: ICC-02/05-01/20 OA4 1/11

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 Cyril Laucci Ms Helen Brady

text: REGISTRY

text: Registrar

text: Mr Peter Lewis

text: No: ICC-02/05-01/20 OA4 2/11

text: The Appeals Chamber of the International Criminal Court,

text: In the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Pre- Trial Chamber II entitled ‘Decision on the Defence request and observations on reparations pursuant to

text: article 75

text: (1) of the

text: Rome Statute

text: ’ of 18 August 2020 (ICC- 02/05-01/20-117),

text: After deliberation,

text: Unanimously,

text: Delivers the following

text: J U D G M E N T

text: The ‘Decision on the Defence request and observations on reparations pursuant to

text: article 75

text: (1) of the

text: Rome Statute

text: ’ of 18 August 2020 (ICC-02/05-01/20-117) is confirmed.

text: REASONS

text: I. INTRODUCTION

text: Following Mr Abd-Al-Rahman’s first appearance before this Court, he seized the Pre-Trial Chamber of a proposal, submitted with reference to

text: article 75

text: (1) of

text: the Statute

text: , concerning the procedure by which applications for reparations would be submitted and assessed in this case. According to the proposed procedure, which differed significantly from the reparations procedure adopted in other cases before the Court, the Pre-Trial Chamber would supervise the assessment and award of reparations, irrespective of whether a conviction against the suspect was eventually entered. The Pre-Trial Chamber rejected the proposal and explained that it lacked the competence to even consider the proposal on its merits. Mr Abd-Al-Rahman comes before the Appeals Chamber presenting legal arguments as to why, in his view, the Pre-Trial Chamber erred. The Appeals Chamber must decide, now, whether there was a sufficient legal basis for the Pre-Trial Chamber to dispose of the proposal as it did at this stage.

text: No: ICC-02/05-01/20 OA4 3/11

text: II. PROCEDURAL HISTORY

text: On 17 July 2020, Mr Abd-Al-Rahman submitted a request in respect of ‘additional principles’ on reparations for victims (the ‘Request’). In the Request, he invited the Single Judge on behalf of Pre-Trial Chamber II (the ‘Pre-Trial Chamber’) to adopt and apply, pursuant to

text: article 75

text: (1) of

text: the Statute

text: , a number of additional reparations principles and to consider inviting submissions under rule 103(1) of the Rules of Procedure and Evidence (the ‘Rules’) on such principles. The Prosecutor opposed the Request.

text: In its decision on the Request (the ‘Impugned Decision’), the Pre-Trial Chamber summarised the Request and then recalled that, according to

text: the Statute

text: ’s drafting history and the relevant jurisprudence of the Court, ‘the Court’s proceedings on reparations can only commence once a person has been convicted by the Court’. The Pre-Trial Chamber concluded that, at that particular procedural phase, the adoption and implementation of the additional principles proposed in the Request ‘would amount to an amendment of

text: the Statute

text: and the Court’s legal framework, which falls outside the powers and duties of the Pre-Trial Chamber’.

text: The Pre-Trial Chamber noted that its powers arise from

text: articles 57

text: to

text: of

text: the Statute

text: , and that ‘[n]owhere in the Court’s legal framework has a role been conceived for the Pre-Trial Chamber to deal with issues related to reparations for victims’. The Pre-Trial Chamber found that there was no legal basis for the Request, as the Request did not ‘fall within [Mr Abd-Al-Rahman’s legal counsel’s] prerogatives and duties nor within the [Pre-Trial Chamber’s] sphere of competence’. Accordingly, the Pre-Trial Chamber dismissed the Request in limine.

text: 1 Request and Observations on Reparations Pursuant to Article 75(1), ICC-02/05-01/20-98-tENG. 2 Request, paras 100-101. 3 Prosecution’s Response to “Rêquete et observations sur les réparations en vertu de l’Article 75-1” (ICC- 02/05-01/20-98), 23 July 2020, ICC-02/05-01/20-102. Decision on the Defence request and observations on reparations pursuant to

text: article 75

text: (1) of the

text: Rome Statute

text: , 18 August 2020, ICC-02/05-01/20-117. 5 Impugned Decision, para. 10. 6 Impugned Decision, para. 11. 7 Impugned Decision, para. 12. 8 Impugned Decision, para. 13. 9 Impugned Decision, para. 13. No: ICC-02/05-01/20 OA4 4/11

text: In his request for leave to appeal (the ‘Request for Leave to Appeal’), Mr Abd- Al-Rahman sought leave to appeal in respect of the question of whether the Pre-Trial Chamber is competent to consider his proposal for the adoption of additional principles on reparations under

text: article 75

text: (1) of

text: the Statute

text: , and to invite the observations of amici curiae on his proposal.

text: In the decision granting leave, the Pre-Trial Chamber referred to the issue included in Mr Abd-Al-Rahman’s Request for Leave to Appeal, and granted the request without modifying the issue as defined by Mr Abd-Al-Rahman.

text: In the present appeal, Mr Abd-Al-Rahman raises four grounds challenging the Pre-Trial Chamber’s decision to dismiss the Request in limine. First, he argues that the Pre-Trial Chamber erred in finding that the adoption and implementation of the proposed additional principles on reparations required an amendment of

text: the Statute

text: or the Court’s legal framework. Second, he argues that the Pre-Trial Chamber erred in finding that Pre-Trial Chamber II had no jurisdiction to adjudicate the Request. Third, he argues that the Pre-Trial Chamber did not have the authority to hold that it lacked jurisdiction to adjudicate the Request. And fourth, he argues that the Pre-Trial Chamber erred by ruling on the Request without first seeking submissions from victims, thus violating

text: article 68

text: (3) of

text: the Statute

text: The Prosecutor responds that Mr Abd-Al-Rahman’s arguments under his second ground of appeal have no basis in

text: the Statute

text: and disregard the Court’s jurisprudence and should be dismissed on that basis. The Prosecutor further responds that the first ground of appeal misunderstands the Impugned Decision, and the third and fourth

text: 10 Application for Leave to Appeal against the “Decision on the Defence Request and Observations on Reparations pursuant to

text: Article 75

text: -1 of the

text: Rome Statute

text: ”, 24 August 2020, ICC-02/05-01/20-129tENG. 11 Request for Leave to Appeal, para. 15. 12 Decision on the Defence Request for Leave to Appeal the Decision pursuant to

text: Article 75

text: (1) of the

text: Rome Statute

text: , 31 August 2020, ICC-02/05-01/20-141, para. 11. 13 Appeal Brief against Decision ICC-02/05-01/20-117, 9 September 2020, ICC-02/05-01/20-147-tENG (the ‘Appeal Brief’). 14 Appeal Brief, paras 15-19. 15 Appeal Brief, paras 20-32. 16 Appeal Brief, paras 33-38. 17 Appeal Brief, paras 39-43. 18 Prosecution response to “Mémoire d’appel de la décision ICC-02/05-01/20-117” (ICC-02/05-01/20- 147), 21 September 2020, ICC-02/05-01/20-161 (‘Prosecutor’s Response’), paras 10-24. 19 Prosecutor’s Response, paras 7-9. No: ICC-02/05-01/20 OA4 5/11 grounds should be summarily dismissed because they fall outside the scope of the issue for which leave to appeal was granted.

text: III. PRELIMINARY ISSUES

text: The Prosecutor argues that Mr Abd-Al-Rahman’s third ground of appeal should be summarily dismissed. The Appeals Chamber notes that the issue on appeal relates to the Pre-Trial Chamber’s determination of its role in dealing with reparations for victims during pre-trial proceedings. However, on appeal, Mr Abd-Al-Rahman argues that the Single Judge did not have the authority to make a ruling in respect of the jurisdiction of the Court, with reference to

text: articles 19

text: (1) and

text: (2)(a) of

text: the Statute

text: . The Appeals Chamber notes that there is a fundamental difference between a question regarding the procedural competence of a chamber to make a particular ruling and that regarding the jurisdiction of the Court over a case. The latter question was not posed in Mr Abd-Al-Rahman’s Request for Leave to Appeal, nor was it included in the Pre-Trial Chamber’s decision granting leave. Therefore, Mr Abd-Al-Rahman’s third ground falls outside the scope of this appeal and it is dismissed in limine.

text: In his fourth ground of appeal, Mr Abd-Al-Rahman calls into question the Pre- Trial Chamber’s decision to rule on the Request without first hearing the views and concerns of victims pursuant to

text: article 68

text: (3) of

text: the Statute

text: . The Prosecutor argues that this argument falls outside the scope of the issue for which leave was granted and should be summarily dismissed.

text: The Appeals Chamber recalls that Mr Abd-Al-Rahman sought leave to appeal in respect of the narrow issue of whether the Pre-Trial Chamber is competent to consider his Request and to invite submissions of amici curiae. Nowhere in his Request for Leave to Appeal did he argue that the Impugned Decision was made in violation of

text: article 68

text: (3) of

text: the Statute

text: . Thus, the Appeals Chamber finds that this latter issue was not before the Pre-Trial Chamber in granting leave and it is not sufficiently connected to the issue for which leave was granted so as to bring it within the scope of the present

text: 20 Prosecutor’s Response, paras 25-30. 21 Prosecutor’s Response, para. 26. 22 Appeal Brief, paras 33-38. 23 Prosecutor’s Response, para. 29. No: ICC-02/05-01/20 OA4 6/11 appeal. Accordingly, Mr Abd-Al-Rahman’s fourth ground of appeal is dismissed in limine.

text: Also in his fourth ground of appeal, Mr Abd-Al-Rahman invites the Appeals Chamber to consider granting applications of amici curiae under rule 103(1) of the Rules to ‘remedy the violation of article 68(3)’. As the issue of whether there was a violation of

text: article 68

text: (3) of

text: the Statute

text: is not properly before the Appeals Chamber, this ‘invitation’ is rejected.

text: IV. MERITS

text: The Appeals Chamber recalls that the central issue to be determined, as defined by the Pre-Trial Chamber in its decision granting leave to appeal, is whether the Pre- Trial Chamber has the competence to adopt Mr Abd-Al-Rahman’s proposed ‘additional principles’ on reparations. Mr Abd-Al-Rahman addresses this issue under his first and second grounds of appeal. Indeed, the Pre-Trial Chamber not only found that the adoption of the proposed additional reparations principles falls ‘outside the powers and duties of the Pre-Trial Chamber’, but also that, more broadly, ‘[n]owhere in the Court’s legal framework has a role been conceived for the Pre-Trial Chamber to deal with issues related to reparations for victims’. Only once a person has been convicted, explained the Pre-Trial Chamber, does the Court’s proceedings on reparations begin.

text: The Appeals Chamber finds that the Pre-Trial Chamber’s interpretation of its competence to deal with issues related to reparations for victims is not consistent with the Court’s overall statutory scheme. A chamber of the Court, whether pre-trial, trial, or appeal, must permit victims whose personal interests are affected to present their views and concerns at any stage of the proceedings determined to be appropriate by the Court. This duty may, in some cases, compel a pre-trial chamber to hear submissions related to reparations. Depending on the circumstances, there may also be a role for a chamber to make interim orders and decisions in relation to reparations proceedings. In particular, a pre-trial chamber is vested with the authority to seek States’ cooperation

text: 24 Appeal Brief, para. 43. 25 Impugned Decision, para. 11. See also para. 13, holding that ‘there is no legal basis for the Request, it does not fall within […] the Chamber’s sphere of competence’. 26 Impugned Decision, para. 12. 27 Impugned Decision, para. 10. 28

text: Article 68

text: (3) of

text: the Statute

text: . See also rule 86 of the Rules. No: ICC-02/05-01/20 OA4 7/11 to effect forfeiture for the benefit of victims and then to hear the observations of any persons interested in the protective measures and to make orders where appropriate. Moreover, a pre-trial chamber may make orders for the protection and privacy of victims and the preservation of evidence. All of these functions can and should be engaged, where necessary, to secure victims’ opportunity to benefit from reparations, should a conviction be handed down at a later stage.

text: Accordingly, the majority of the Appeals Chamber finds that the Pre-Trial Chamber erred in holding that it was not the role of a chamber to rule in respect of reparations for victims at the pre-trial stage. It should be emphasised that it is in the interest of both victims and the person suspected or accused of crimes under the Court’s jurisdiction that procedural issues relevant to reparations receive judicial supervision as early in the life of a case as possible. In this regard, the Court is empowered to hear the evidence of victims and permit questioning by their legal representative in respect of reparations during trial proceedings. Thus, it is not necessarily the case that the reparations proceeding begins only after a person has been convicted, as stated in the Impugned Decision.

text: Judge Ibáñez wishes to separately emphasise that, in her view, the Pre-Trial Chamber did not err in so far as it declined to rule on the Request. In Judge Ibáñez’s view, although all chambers must involve themselves in issues related to victims, including some preliminary issues related to reparations, each chamber has a specific function. While a pre-trial chamber can address issues relating to victim participation and protection, among others, and preliminary issues related to reparations such as screening of victims, cooperation, seizures, and so forth, what it cannot do is settle principles that entail concrete aspects of the reparations itself or its implementation. The latter are the domain of trial chambers. Judge Ibáñez emphasises in this regard that the reparations proceeding at the Court commences only after a person is convicted, and reparations principles under

text: article 75

text: (1) of

text: the Statute

text: must only be issued

text: Article 57

text: (3)(e) of

text: the Statute

text: ; rule 99 of the Rules. 30

text: Article 57

text: (3)(c) of

text: the Statute

text: . 31 The ASP has urged the chambers of the Court to adopt measures for the identification and freezing of assets and for the presentation of evidence relevant to reparations at an early stage so as not to result in a delay of the criminal trial (see Resolution ICC-ASP/10/Res.3, Reparations (Adopted at the 7th plenary meeting, on 20 December 2011, by consensus), paras 3-4). 32 Rule 91(4) of the Rules; regulation 56 of the Regulations of the Court. No: ICC-02/05-01/20 OA4 8/11 thereafter by the trial chamber. Therefore, in her view, these reasons must compel the Appeals Chamber to confirm the Impugned Decision.

text: However, returning to the majority’s view that the Pre-Trial Chamber erred, this is only to say that the Pre-Trial Chamber lacked a basis for dismissing the Request in limine. It is another question entirely as to whether it would have been appropriate for the Pre-Trial Chamber to act on the Request and to adopt any or all of the proposed ‘additional principles’ on reparations. In addition to taking issue with the legal basis for the Impugned Decision, Mr Abd-Al-Rahman has requested that the Appeals Chamber reverse the Impugned Decision and direct the Pre-Trial Chamber to rule on the merits of the Request after inviting submissions of amici curiae. Given the nature of the Request itself, the Appeals Chamber (unanimously, Judge Ibáñez concurring) finds, for the following reasons, that it would be inappropriate to grant this relief under the circumstances.

text: Despite characterising his Request as a proposal for the adoption of ‘additional principles’, ostensibly submitted with reference to

text: article 75

text: (1) of

text: the Statute

text: , a plain reading of Mr Abd-Al-Rahman’s Request reveals that he proposed something very different. Mr Abd-Al-Rahman’s Request outlined a modified procedure for the submission and assessment of applications for reparations in nine separate stages, by which nearly the entire proceeding concerning reparations would occur before and largely independent of an eventual conviction of Mr Abd-Al-Rahman in the criminal proceedings against him, under the supervision of the Pre-Trial Chamber. Under his proposal, the Registry would complete the submission of applications to the Court during the pre-trial phase, presenting any information and recommendations about the modalities of reparations, the implementation of awards, or other matters to the Pre- Trial Chamber. At that time, the Pre-Trial Chamber would order the Registry to disclose the applications to the Trust Fund for Victims (the ‘TFV’), and after receiving the applications it would make public calls for voluntary contributions. The Pre-Trial Chamber would then close the period for applications for reparations, and the TFV would assess the amount necessary to finance the remedies sought. Based on a report

text: 33 Appeal Brief, paras 47-49. 34 Request, para. 100: ‘additional principles 1 & 2’. 35 Request, para. 100: ‘additional principles 3 & 4’. 36 Request, para. 100: ‘additional principles 5 & 6’. No: ICC-02/05-01/20 OA4 9/11 from the TFV, the Pre-Trial Chamber would then make an order for implementation of the modalities of reparations.

text: Under Mr Abd-Al-Rahman’s proposal, the Pre-Trial Chamber’s order would not be against a person. Following the trial, in the case of a conviction against a person named in the applications for reparations, the trial chamber could issue an order against that person under

text: article 75

text: (2) of

text: the Statute

text: . This order against a convicted person would somehow run parallel to the plan already in the implementation stage, and any victims who already received reparations under the latter plan would not be eligible to receive benefits under the order made against the convicted person. In the result, Mr Abd-Al-Rahman would have the Pre-Trial Chamber determine the appropriate reparations and oversee implementation of an order for reparations that comes well in advance of an eventual second order for reparations made by the trial chamber under

text: article 75

text: (2) of

text: the Statute

text: Although the legal framework governing reparations leaves a considerable amount of discretion to judges as to how to conduct reparations proceedings, there is no room to order a bifurcation of the proceeding as suggested in Mr Abd-Al-Rahman’s Request. The Appeals Chamber notes, in particular, that one aspect of the procedure for reparations at the Court provides that the final decision on the scope of damage and the determination of modalities for reparations take place after the trial has concluded. This is most evident in rule 97 of the Rules, entitled ‘Assessment of reparations’, in which there are numerous references to the ‘convicted person’, indicating that the final assessment of reparations should take place after the close of the criminal trial. Moreover, the Appeals Chamber notes that the only ‘order’ that may be issued concerning reparations under

text: article 75

text: of

text: the Statute

text: , entitled ‘Reparations to victims’, is the one mentioned in subparagraphs (2), (3), and (4), made ‘directly against a convicted person’.

text: 37 Request, para. 100: ‘additional principle 7’. 38 Request, para. 100: ‘additional principles 8 & 9’. 39 In this regard, the Appeals Chamber notes that the TFV may, on its own initiative, provide support to victims through its assistance mandate under regulation 50(a) of the Regulations of the TFV prior to any reparations order. 40 See also

text: article 82

text: (4) of

text: the Statute

text: , providing that a convicted person may appeal against the order for reparations under

text: article 75

text: of

text: the Statute

text: ; Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of No: ICC-02/05-01/20 OA4 10/11

text: Rather than advancing ‘additional principles’ that fit within this framework, Mr Abd-Al-Rahman has essentially suggested that the existing procedures be thrown out. Therefore, whether dismissed in limine or assessed on its merits the outcome is the same: there is no basis in the Court’s reparations regime for the adoption of a proposal such as the one presented in Mr Abd-Al-Rahman’s Request. The Appeals Chamber recalls that in order to justify interference with the decision under appeal, an appellant must demonstrate that the alleged error materially affected the decision. Here, the Appeals Chamber is not satisfied that granting the relief requested is appropriate, as any error inherent in the Pre-Trial Chamber’s assessment of its competence to deal with reparations, generally, would have no material impact on the result.

text: Therefore, Mr Abd-Al-Rahman’s first and second grounds of appeal are dismissed.

text: V. APPROPRIATE RELIEF

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

text: _____________________________ Judge Piotr Hofmański Presiding

text: 7 August 2012, 3 March 2015,

text: (A A2 A3), paras 64-76, holding that even an order made through the TFV under

text: article 75

text: (2) of

text: the Statute

text: , second sentence, must still be made against a convicted person. 41 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: (OA5), para. 22. No: ICC-02/05-01/20 OA4 11/11

title: The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb")