[99] General provisions relating to evidence 
General remarks
The Rome Statute has adopted a flexible approach to admissibility. Article 69(4) provides that in addition to relevance other factors need to be considered for admissibility, including the probative value of evidence and any prejudice such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness. During the negotiations preceding the Rome Statute it was decided as a compromise to give some guidance but leave details to the Rules and the Court’s own jurisprudence. An initial French draft of rule 63 would have the principle of admissibility of all evidence, (Preparatory Commission for the International Criminal Court, Proposal submitted by France concerning the Rules of Procedure and Evidence: Part 3, section 1, subsection 2, 22 February 1999, rule 37(1)), effectively undoing the compromise reached in Rome. The pendulum swung in the opposite direction and a subsequent proposal would have obliged the Court to asses all evidence for the purpose of admissibility. The adopted version of rule 63 is a compromise, which authorizes, rather than obliges, a chamber “to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69 (Piragoff/Clarke, 2016, p. 1717).”
   During the drafting of rule 63 there was an attempt to include reliability as a factor to be freely assessed by a Chamber in determining relevance or admissibility. As there was no consensus, the rule is silent on the issue (Piragoff/Clarke, 2016, p. 1717).”

Author:
Mark Klamberg

Updated:
10 August 2017

[100] 1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers.
Rule 63(1) provides that the rules of evidence, together with article 69, apply in all proceedings before all chambers. Piragoff has pointed out that “this clarifies an ambiguity, as article 69 is contained in Part 6 concerning the trial proceedings but article 69 refers more broadly to ‘the Court’ rather than ‘the trial chamber’ (Piragoff, 2001, p. 350).”

Author:
Mark Klamberg

Updated:
10 August 2017

[101] 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69.
Pursuant to rule 63(2) the chamber has wide discretion to decide on the admissibility, relevance and probative value of evidence. As Piragoff explains rule 63 is a compromise (Piragoff, 2001, p. 351):

Common law systems tend to exclude or weed out irrelevant evidence, and inherently unreliable types of evidence, as a question of admissibility, while in civil law countries all evidence is generally admitted and its relevancy and probative value are considered freely together with the weight of the evidence. The compromise in the Rome Statute was to eschew generally the technical formalities of the common law system of admissibility of evidence in favour of the flexibility of the civil law system, provided that the Court has discretion to ‘rule on the relevance or admissibility of any evidence.’ Therefore the Court can either: 1) rule first whether evidence possess sufficient relevance to justify its admissibility, taking into account a number of factors mentioned in article 69, paragraph 4, and evaluate subsequently the weight of any admitted evidence as part of the evaluation process; or instead 2) admit evidence and consider relevance, admissibility and weight together as part of the evaluation of the admitted evidence, taking into account the same factors . . . . Depending on which method of analytical reasoning a Chamber chose to implement in a particular situation, reliability may or may not be pertinent to determining relevance or admissibility.

Similarly, the Bemba Appeals Chamber has stated that the Trial Chamber has a choice. It may rule on the relevance and/or admissibility of each item of evidence when it is submitted. In that case, an item will be admitted into evidence only if the Chamber rules that it is relevant and/or admissible in terms of article 69 (4), taking into account “the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness”. Alternatively, it may defer its consideration of these criteria until the end of the proceedings, making it part of its assessment of the evidence when it is evaluating the guilt or innocence of the accused person (Bemba, ICC A. Ch., Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled “Decision on the admission into evidence of materials contained in the prosecution’s list of evidence’, 3 May 2011, para. 37).
   Which is the more suitable approach? If the method of evaluating evidence involves the comparison and elimination of alternative narratives, a reasonable conclusion is to focus on relevance when admitting evidence and add assessment of reliability during the final analysis of weight at the end of the trial. However, this approach may be nuanced. For example, it is reasonable in certain situations that tainted evidence is excluded. An assessment of prejudice may be an additional component when admissibility is determined. In addition, special rules apply under article 69(7) to evidence obtained by means of violations of the Rome Statute or human rights (Klamberg, 2013, p. 357).

Author:
Mark Klamberg

Updated:
10 August 2017

[102] 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7.
Article 69(4) grants the Chamber discretion, on an application of a party or on its own motion, to rule on admissibility or relevance of evidence. However, sub-rule 3 requires a ruling of the Chamber on exclusion of evidence under article 69(7) which concerns evidence obtained by means of a violation of this Statute or internationally recognized human rights.

Author:
Mark Klamberg

Updated:
10 August 2017

[103] 4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.
Sub-rule 4 deals with corroborating evidence, evidence that strengthens or confirms what other evidence shows, especially that which needs support. It may be relevant to issues concerning admissibility as well as evaluation of evidence. Civil law systems have applied the principle unus testis, nullus testis (one witness is no witness) whereby corroboration of evidence is required if it is to be admitted. However, this is no longer a feature of modern civil law systems. Some domestic systems require that the evidence of certain witnesses be corroborated in order to convict the accused. In this sense it is not an admissibility rule, but rather concerns evaluation of evidence (Sellers, p. 280).
    Sub-rule 4, provides that as a general rule an ICC Chamber shall not impose a legal requirement on corroboration. The question of whether to include a rule on corroboration in cases of sexual violence was subject to considerable discussion during the work of the Preparatory Commission for the International Criminal Court. Some participants opposed an inclusion on the basis that the general principle in article 69(4) resolved the issue satisfactorily. Those in favour of such a rule pointed out the problem that in many legal systems victims of sexual violence were often treated inherently as suspects and their testimony had to be corroborated by other evidence. General rules were used in a discriminatory fashion by judges in some national legal systems. The purpose of rule 63(4) is to prevent such stereotypical attitudes and reasoning.

Author:
Mark Klamberg

Updated:
10 August 2017

[104]  5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21
The reference to article 21 in sub-rule 5 allows the Court to apply general principles of law derived from national laws of legal systems of the World. In Lubanga the Pre-Trial Chamber observed “that under article 21(1)(c) of the Statute, where articles 21(1)(a) and (b) do not apply, it shall apply general principles of law derived by the Court from national laws. Having said that, the Chamber considers that the Court is not bound by the decisions of national courts on evidentiary matters”, Lubanga, ICC PT. Ch. I, Decision on the confirmation of charges, 29 January 2007, para. 69.  

Cross-references:
Article 64(9) and 69(4)(7) and (8)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 447-448, 507, 518.
2. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 350-357.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 179-182, 335-357.
4. Gilbert Bitti, "Article 64", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1619.
5. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1735-1741. 1745-1750. 
6. Patricia Viseur Sellers, “Rule 89(C) and (D): At Odds or Overlapping with Rule 96 and Rule 95”, Richard May, et al. (Eds.), Essays on ICTY Procedure and Evidence: In Honour of Gabrielle Kirk McDonald, 275–290, (Kluwer Law International, The Hague, 2001), p. 280.

Author:
Mark Klamberg

Updated:
10 August 2017

[105] 1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court.

2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.

3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber.
Rule 64(1) provides that issues relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known.
   The "submission" of evidence within the meaning of article 74(2) and Rule 64(1) should be distinguished from the mere filing of a list of evidence with the respective material (Ambos, 2016, p. 456). The Bemba Appeals Chamber has in this regard stated that "evidence is 'submitted' if it is presented to the Trial Chamber by the parties on their own initiative or pursuant to a request by the Trial Chamber for the purpose of proving or disproving the facts in issue before the Chamber. ... the submission of evidence must conform to the directions of the Presiding Judge or the manner agreed upon by the parties." (Prosecutor v. Bemba, ICC A. Ch., Judgment on the appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the decision of Trial Chamber III entitled "Decision on the admission into evidence of materials contained in the prosecution's list of evidence'', ICC-01/05-01/08-1386, 3 May 2011, para. 43).
   In Lubanga, Decision on the defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, 30 March 2011, there was a dispute on the numbering of defence exhibits and there was disagreement within Trial Chamber I whether a previous order could be reconsidered with reference to rule 64. The Majority of the Trial Chamber held that rule 64 did not apply because its purpose is “to regulate substantive admissibility challenges” not administrative issues (paras. 10, 13 and 19). Instead the majority of Trial Chamber I corrected its order, which included the removal of documents previously admitted, with reference to 1) jurisprudence of Trial Chamber III, 2) jurisprudence of the ad hoc tribunals providing that Trial Chambers have the inherent power to reconsider a previous decision, and 3) the established position in many common law national legal systems that a Court can depart from earlier decisions that would usually be binding (paras. 14-18). Judge Blattman dissented and held that Rule 64(1), read in the context of the particular sub-section of the Rules in which it is contained, and in light of its purpose, allows for the triggering of a new decision by the Chamber, Separate Opinion of Judge René Blattmann to the Decision on the defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, 30 March 2011, paras. 21-22.
   The last moment to raise issues relating to relevance or admissibility is when the evidence is presented, but it can also be done at an earlier stage (Lubanga, ICC T. Ch. I, Decision on disclosure by the defence, 20 March 2008, para. 36; see also Lubanga, ICC T. Ch. I, Decision on the admissibility of four documents, 13 June 2008 (II), para. 18).
   The ruling of a Pre-Trial Chamber is not binding upon a Trial Chamber. The Pre-Trial Chamber in Lubanga emphasized that "the admission of evidence [at the pre-trial stage] is without prejudice to the Trial Chamber's exercise of its functions and powers to make a final determination as to the admissibility and probative value" of any evidence (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the confirmation of charges, ICC-01/04-01/06-803-tEN, 7 February 2007, para. 90; Prosecutor v. Katanga and Ngudjolo, (Case No. ICC-01/04-01/07) ICC PT. Ch. I, Decision on the confirmation of charges, 30 September 2008, para. 71). Thus, the Pre-Trial Chamber may reassess Pre-Trial Chamber rulings on admissibility and relevance of evidence tendered at the pretrial stage by the parties. 

Cross-references:
Article 69(4)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 456.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 340, 356, 359-362.

Author:
Mark Klamberg

Updated:
10 August 2017

[106] 1. A witness who appears before the Court is compellable by the Court to provide testimony, unless otherwise provided for in the Statute and the Rules, in particular rules 73, 74 and 75.

2. Rule 171 applies to a witness appearing before the Court who is compellable to provide testimony under sub-rule 1.
Rule 65 provides that the Court has the authority to compel a witness who a witness who appears before the Court to provide testimony, which should be distingusihed from the authoirty to compel the attendance of a witness. The later issue is regulated in Article 64(6)(b).
   The placement of Rule 65 in Chapter 4 of the Rules of Procedure and Evidence (Provisions relating to various stages of the proceedings) indicates the the provision applies to all stages of the proceedings, not only the trial stage.
   In Ruto et al., the Appeals Chamber ruled that "the Statute gives Trial Chambers the power to compel witnesses to appear before it, thereby creating a legal obligation for the individuals concerned." However, the Court is dependant on State cooperation. In this regard, the Appeals Chamber ruled that "[u]nder article 93 (1) (b) of the Statute the Court may [only] request a State Party to compel witnesses to appear before the Court sitting in situ in the State Party's territory or by way of video-link (Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC A. Ch., Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled "Decision on Prosecutor's Application for Witness Summonses and resulting Request for State Party Cooperation", ICC-01/09-01/11-1598, 9 October 2014, paras. 1-2, 56, 77).

Cross-references:
<link cmn-knowledge-hub icc-commentary-clicc rome-statute>Article 64(6)(b) and <link cmn-knowledge-hub icc-commentary-clicc rome-statute>69(1)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 468, 629.
2. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 317-318, 323-325.
3. Håkan Friman, "State Cooperation with the International Courts and Tribunals", in Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Third edition, Cambridge University Press, Cambridge, 2014, p. 522
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 245.
5. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 399-400.
6. Göran Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States, Intersentia, Antwerpen/Oxford/New York, 2002, pp. 254-255

Author:
Mark Klamberg

Updated:
10 August 2017

[107] 1. Except as described in sub-rule 2, every witness shall, in accordance with article 69, paragraph 1, make the following solemn undertaking before testifying:

"I solemnly declare that I will speak the truth, the whole truth and nothing but the truth."

2. A person under the age of 18 or a person whose judgement has been impaired and who, in the opinion of the Chamber, does not understand the nature of a solemn undertaking may be allowed to testify without this solemn undertaking if the Chamber considers that the person is able to describe matters of which he or she has knowledge and that the person understands the meaning of the duty to speak the truth.

3. Before testifying, the witness shall be informed of the offence defined in article 70, paragraph 1 (a).
There was little discussion during the negotiations on article 69(1) and  the obligation of witnesses to give an undertaking as to the truthfulness of the evidence to be given by that witness. The form of the undertaking was left for the Rules of Procedure and Ecidence (Piragoff/Clarke, 2016, pp. 1713-1714).
   The placement of Rule 66 in Chapter 4 of the Rules of Procedure and Evidence (Provisions relating to various stages of the proceedings) indicates the the provision applies to all stages of the proceedings, not only the trial stage.
    A victim is qualified as a witness and as such must take the declaration under Rule 66(1), see Kreβ, p. 320.
    During the drafting of sub-rule 2 there was agreement that the Court would have discretion to allow children or persons with an impairementy to tesitify absent an undertaking.

Cross-references:
<link cmn-knowledge-hub icc-commentary-clicc rome-statute>Article 69(1) and 70.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 468.
2. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 317-318, 320-321.
3. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1713-1714.
 
Author:
Mark Klamberg

Updated:
10 August 2017

[108] 1. In accordance with article 69, paragraph 2, a Chamber may allow a witness to give viva voce (oral) testimony before the Chamber by means of audio or video technology, provided that such technology permits the witness to be examined by the Prosecutor, the defence, and by the Chamber itself, at the time that the witness so testifies.

2. The examination of a witness under this rule shall be conducted in accordance with the relevant rules of this chapter.

3. The Chamber, with the assistance of the Registry, shall ensure that the venue chosen for the conduct of the audio or video-link testimony is conducive to the giving of truthful and open testimony and to the safety, physical and psychological well-being, dignity and privacy of the witness.
Article 69(2) of the Rome Statute clearly favours live, in-court testimony. However, the same provision permits the reception of evidence by means of audio or video technology. Rule 67 requires that the witness may be examined by the prosecutor, the defence and the Chamber, primarily in order to secure the accused’s right to confront the witness.
    In Katanga and Chui, Decision on a number of procedural issues raised by the Registry, 14 May 2009, para. 36, the Trial Chamber remineded "all parties that, according to rule 67 of the Rules, live testimony by means of audio or video-link technology is subject to the authorisation of the Chamber and the precondition that the technology permits the witness to be examined by the parties and the Chamber at the same time the witness testifies. The Chamber will rule on any specific request for remote testimony on a case-by-case basis and order such measures as it deems necessary to ensure the rights of the accused to examine witnesses against them under the same conditions as the Prosecution, in accordance with article 67(1 )(e)."
   The conditions and guidelines established by the ICTY may provide the ICC with important guidance (Piragoff and Clarke, p. 1728). However, in Lubanga, the ICC Trial Chamber stressed in relation to a request for a witness to evidence via video-link that its “approach to the issue of witness protection is not necessarily the same as that taken by other international tribunals. Although it is useful to investigate the jurisprudence from other courts, it is in no sense binding” (Prosecutor v. Thomas Lubanga Dyilo, (Case No. ICC-01/04–01/06), ICC T. Ch. I, Redacted Decision on the defence request for a witness to give evidence via video-link, 10 February 2010, para. 14). This conforms with the principle that precedents from other courts are neither binding nor a distinct source of law (see article 21). Instead the Trial Chamber observed that it had a broad discretion under rule 67 and made its determination by balancing the objectives of fair trial and protection of victims (Lubanga, ICC T. Ch. I, 10 February 2010, para. 15).

Cross-references:
<link cmn-knowledge-hub icc-commentary-clicc rome-statute>Article 69(1)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 468.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 461-462.
3. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1727-1728.
 
Author:
Mark Klamberg

Updated:
10 August 2017

[109] 1. When the Pre-Trial Chamber has not taken measures under <link cmn-knowledge-hub icc-commentary-clicc rome-statute internal-link internal link in current>article 56, the Trial Chamber may, in accordance with <link cmn-knowledge-hub icc-commentary-clicc rome-statute internal-link internal link in current>article 69, paragraphs 2 and 4, and after hearing the parties, allow the introduction of previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony, provided that this would not be prejudicial to or inconsistent with the rights of the accused and that the requirements of one or more of the following sub-rules are met. 
General remarks
Rule 68 concerns prior recorded testimony. Article 69(2) of the Rome Statute clearly favours live, in-court testimony. While rule 67 that concerns testimony via live video-link still recpects the principle of orality, rule 68 involvles the replacement of oral by written testimony.
   In comparison, ICTY, ICTR and SCSL RPE rule 71 provide for the modalities of receiving testimony through deposition. There is no specific provision on depositions in the ICC Statute and RPE. Instead, depositions may be covered by rule 68 on prior-recorded testimony. However, for such evidence to be admissible, the requirements in ICC rule 68 must be respected (Klamberg, 2013, pp. 382 and 462).
   Rule 68 was substantially amended by the Assembly of States Parties on 27 November 2013, resolution ICC-ASP/12/Res.7. The old rule 68 was restrictive on the admissibility of prior recorded testimony, it allowed prior recorded testimony:

(a) If the witness who gave the previously recorded testimony is not present before the Trial Chamber, both the Prosecutor and the defence had the opportunity   to examine the witness during the recording; or

(b) If the witness who gave the previously recorded testimony is present before the Trial Chamber, he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber  have the opportunity to examine the witness during the proceedings. 

This was similar to ICTY rule 92 ter which allows evidence that goes to proof of the acts and conduct of the accused as charged in the indictment. The extensive amendment that has created present rule is more permitting and allows prior recorded testimony a) when both the Prosecutor and the defence had the opportunity to examine the witness during the recording; b) the prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused; c) the prior recorded testimony comes from a person who has subsequently died; or d) the prior recorded testimony comes from a person who has been subjected to interference. One of the reasons invoked for this amendment was to improve the efficiency of the proceedings (McDermott, 2016, pp. 89-92)
   In Ruto and Sang the defence argued that the use of the amended rule in that case violated the non-retroactivity principle, an argument rejected by the Trial Chamber (Ruto and Sang, ICC T. Ch. V(a), Decision on Prosecution Request for Admission of Prior Recorded Testimony, ICC-01/09-01/11-1938-Corr-Red2, 19 August 2015, paras. 23-26). Kenya subsequently raised the issues at the 2015 Assembly of State Parties (ASP) meeting, Kenya requested "that the legislative intent of rule 68 be placed before the Assembly for discussion and that a decision of the Assembly be taken to reaffirm the non-retroactive application of the rule to situations commenced before the 27 November 2013" (ASP, Fourteenth session, List of supplementary items requested for inclusion in the agenda of the fourteenth session of the Assembly, Addendum 2, ICC-ASP/14/35/Add.2, 6 November 2015, p. 1). Kenya's proposed text neither rejected outright nor adopted a proper ASP resolution (Ambos, 2016, p. 499). Ultimately, the Appeals Chamber reverersed the Trial Chamber decision, stating that

article 51(4) of the Statute concerns amendments to the Rules, which relate to proceedings before the Court, including the admission of evidence. The Appeals Chamber therefore finds that ‘detriment’ within the meaning of article 51(4) of the Statute is disadvantage, loss, damage or harm to the accused including, but not limited to, the rights of that person. ... the date of the start of the trial is the appropriate point at which to determine "retroactivity". The regime governing the introduction of prior recorded testimony at the commencement of the trial was changed during the course of the trial by reason of the amendment to rule 68 of the Rules Accordingly, the Appeals Chamber finds that amended rule 68 was applied retroactively in the on-going trial proceedings within the meaning of article 51(4) of the Statute" (Ruto and Sang, ICC A. Ch., 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", ICC-01/09-01/11-2024, 12 February 2016, paras. 78-81).

Author:
Mark Klamberg

Updated:
10 August 2017

[110] 2. If the witness who gave the previously recorded testimony is not present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony in any one of the following instances:

(a) Both the Prosecutor and the defence had the opportunity to examine the witness during the recording.
Sub-rule 2(a) concerns the admissibility of prior recorded testimony when both the Prosecutor and the defence had the opportunity to examine the witness during the recording. As such, it correspondens to the old version of rule 68(a) and thus the case law Before the amendment of Rule 68 remains relevant. 
    In Lubanga, Decision on the prosecution's application for the admission of the prior recorded statements of two witnesses, 15 January 2009, paras. 7 and 24, the Prosecution applied for the admission of prior recorded statements of two witnesses in lieu of oral examination by the prosecution. The Trial Chamber considered that the witnesses will be present in Court for examination by the defence and the Chamber, nothing indicated that the background evidence provided by the witnesses is materially in dispute and their testimony was not central to the core issues in the case. Thus, in interest of saving court time the Trial Chamber admitted the prior recorded statements under rule 68(b)
        In Bemba, Decision on the "Prosecution Application for Leave to Submit in Writing Prior-Recorded Testimonies by CAR-OTP-WWWW-0032, CAR-OTP-WWWW-0080, and CAR-OTP-WWWW-0108", 16 September 2010, para. 7, Trial Chamber III stated that it may "depart from the general principle of giving evidence in person and explore the possibility of having evidence submitted in writing, as long as it is not prejudicial to, or inconsistent with, the rights of the accused. However, the introduction of such prior-recorded testimony remains an option which should be adopted only in specific and exceptional circumstances." The Chamber rejected the prosutor's application and among other arguments stated that it was not convinced that the prosecution had shown exceptional circumstances justifying any derogation from the general principle of giving viva voce evidence. (para. 15)

Author:
Mark Klamberg

Updated:
10 August 2017

[111] (b) The prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused.
In such a case:
(i) In determining whether introduction of prior recorded testimony falling under sub-rule (b) may be allowed, the Chamber shall consider, inter alia, whether the prior recorded testimony in question:
- relates to issues that are not materially in dispute;
- is of a cumulative or corroborative nature, in that other witnesses will give or have given oral testimony of similar facts;
- relates to background information;
- is such that the interests of justice are best served by its introduction; and
- has sufficient indicia of reliability.
(ii) Prior recorded testimony falling under sub-rule (b) may only be introduced if it is accompanied by a declaration by the testifying person that the contents of the prior recorded testimony are true and correct to the best of that person’s knowledge and belief. Accompanying declarations may not contain any new information and must be made reasonably close in time to when the prior recorded testimony is being submitted.
(iii) Accompanying declarations must be witnessed by a person authorized to witness such a declaration by the relevant Chamber or in accordance with the law and procedure of a State. The person witnessing the declaration must verify in writing the date and place of the declaration, and that the person making the declaration:
- is the person identified in the prior recorded testimony;
- assures that he or she is making the declaration voluntarily and without undue influence;
- states that the contents of the prior recorded testimony are, to the best of that person’s knowledge and belief, true and correct; and
- was informed that if the contents of the prior recorded testimony are not true then he or she may be subject to proceedings for having given false testimony.
Sub-rule 2(a) concerns prior recorded testimony goes to proof of a matter other than the acts and conduct of the accused and as such is similar to ICTY rule 92 bis. Thus, ICTY case law under the later rule may provide guidance for the ICC.

Author:
Mark Klamberg

Updated:
10 August 2017

[112] (c) The prior recorded testimony comes from a person who has subsequently died, must be presumed dead, or is, due to obstacles that cannot be overcome with reasonable diligence, unavailable to testify
orally. In such a case:
(i) Prior recorded testimony falling under sub-rule (c) may only be introduced if the Chamber is satisfied that the person is unavailable as set out above, that the necessity of measures under article 56 could not be anticipated, and that the prior recorded testimony has sufficient indicia of reliability.
(ii) The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.
Sub-rule 2(c) concerns prior recorded testimony that comes from a person who has subsequently died and as such is similar to ICTY rule 92 quater. Thus, ICTY case law under the later rule may provide guidance for the ICC.

Author:
Mark Klamberg

Updated:
10 August 2017

[113] (d) The prior recorded testimony comes from a person who has been subjected to interference. In such a case:
(i) Prior recorded testimony falling under sub-rule (d) may only be introduced if the Chamber is satisfied that:
- the person has failed to attend as a witness or, having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony;
- the failure of the person to attend or to give evidence has been materially influenced by improper interference, including threats, intimidation, or coercion;
- reasonable efforts have been made to secure the attendance of the person as a witness or, if in attendance, to secure from the witness all material facts known to the witness;
- the interests of justice are best served by the prior recorded testimony being introduced;
and
- the prior recorded testimony has sufficient indicia of reliability.
(ii) For the purposes of sub-rule (d)(i), an improper interference may relate, inter alia, to the physical, psychological, economic or other interests of the person.
(iii) When prior recorded testimony submitted under sub-rule (d)(i) relates to completed proceedings for offences defined in article 70, the Chamber may consider adjudicated facts from these proceedings in its assessment.
(iv) The fact that the prior recorded testimony goes to proof of acts and conduct of an accused may be a factor against its introduction, or part of it.
Sub-rule 2(c) concerns prior recorded testimony from a person who has been subjected to interference and as such is similar to ICTY rule 92 quinquies. Thus, ICTY case law under the later rule may provide guidance for the ICC.
   The Trial Chamber in Ruto and Sang noted in relation to sub-rule 2(d)(i) that "appearing and refusing to
testify at all would satisfy" would meet the requirement  "failed to attend as a witness or, having attended, has failed to give evidence with respect to a material aspect included in his or her prior recorded testimony" Ruto and Sang, ICC T. Ch. V(a), Decision on Prosecution Request for Admission of Prior Recorded Testimony, ICC-01/09-01/11-1938-Corr-Red2, 19 August 2015, paras. 40). Moreover, it stated that "the requirement can be satisfied by persons who appear and either do not testify at all or recant fundamental aspects of their prior recorded testimony" (para. 41).

Author:
Mark Klamberg

Updated:
10 August 2017

[114] 3. If the witness who gave the previously recorded testimony is present before the Trial Chamber, the Chamber may allow the introduction of that previously recorded testimony if he or she does not object to the submission of the previously recorded testimony and the Prosecutor, the defence and the Chamber have the opportunity to examine the witness during the proceedings.
Sub-rule 3 concerns the admissibility of prior recorded testimony when if the witness who gave the previously recorded testimony is present before the Trial Chamber. As such, it correspondens to the old version of rule 68(b) and thus the case law Before the amendment of Rule 68 remains relevant (Ruto and Sang, ICC T. Ch. V(a), Decision on Prosecution Request for Admission of Prior Recorded Testimony, ICC-01/09-01/11-1938-Corr-Red2, 19 August 2015, para. 10).
   In Bemba, Order on the procedure relating to the submission of evidence, 31 May 2011, the Chamber considered when a party intends to submit as evidence the statement(s) of a witness called to testify. The Majority of the Chamber, Judge Ozaki dissenting, favours the submission into evidence of the entirety of the witnesses' statement(s), as opposed to excerpts, when considered necessary for the determination of the truth in accordance with Article 69(3) of the Statute and to ensure that information is not taken out of context, and consistent with the relevant provisions of the Statute and the Rules (para. 11).
    In Katanga and Chui, Decision on the Request of Defence for Mathieu Ngudjolo to admit into evidence extracts from the statement DRC-D02-0001-0750 of Witness DRC-D02-P-0148, 30 June 2011, para. 7, a motion to tender into evidence the excerpts of the statement was put by the Defence of Ngudjolo Chui after final questioning at the end of the testimony. In the Chamber's view, the requirements of Rule 68(b) (now rule 68(3) was not fulfilled and the request was rejected.Cross-references:Article 69(2)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 392, 465, 471, 488, 494-499, 505, 662.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 379, 382, 389, 411, 462, 476.
3. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 362-363.
4. Yvonne McDermott, Fairness in International Criminal Trials, Oxford University Press, Oxford, 2016, pp. 89-92.
5. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1729.

Author:
Mark Klamberg

Updated:
10 August 2017

[115] The Prosecutor and the defence may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness or other evidence is not contested and, accordingly, a Chamber may consider such alleged fact as being proven, unless the Chamber is of the opinion that a more complete presentation of the alleged facts is required in the interests of justice, in particular the interests of the victims.
Rule 69 provides that the prosecutor and the defence may agree that an alleged fact contained in the charges, the contents of a document, the expected testimony of a witness or other evidence, is not contested. Accordingly, a Chamber may consider such alleged fact as proven, unless it opines that a more complete presentation of the alleged facts is required in the interests of justice, in particular the interests of the victims. This may be done in order to avoid witnesses being needlessly brought to Court when their evidence is not in dispute (Lubanga, Decision on agreements between the parties, 20 February 2008, para. 11). In addition, the Trial Chamber may order evidence to be introduced under rule 69 as regards agreed facts, ICC, regulation 54(n). 
   There are several examples where Rule 69 has been used. In Katanga and Chui, Decision on Agreements as to Evidence, 3 February 2011, the parties reached agreement about seven facts as to evidence which the Trial Chamber took note of. InBanda and Jerbo, ICC PT. Ch. I, Corrigendum of the "Decision on the Confirmation of Charges", 8 March 2011, para. 24, the Pre-Trial Chamber considered in accordance with rule 69 that five facts as proven. In Banda and Jerbo, ICC T. Ch. IV, Decision on the Joint Submission regarding the contested issues and the agreed facts, 28 September 2011, paras. 23-24 and 46, the Parties reached an agreement shich covered a significant part of the factual allegations contained in the charges. The parties submitted that the accused persons would contest only the following three issues:

     i. Whether the attack on the MGS Haskanita on 29 September 2007 was unlawful;
     ii. If the attack is deemed unlawful, whether the Accused persons were aware of the factual circumstances that established the unlawful nature of the attack; and
     iii. Whether (African Union Mission in Sudan (AMIS) was a peacekeeping mission in accordance with the Charter of the United Nations.

    The Trial Chamber considered that the Agreement had the procedural effect of narrowing the scope of the issues to be addressed by the parties (and the participants) at trial. It also emphasized that it remained within its discretion to request additional evidence and/or submissions on the alleged facts if required in the interests of justice. It decided that: i. the trial will proceed only on the basis of the contested issues; and ii. the parties shall not present evidence or make submissions other than on the issues that are contested. The decision is remarkable because it has the concequence that the accussed admit that they planned, designed, ordered, provided the troops and personally participated in attack at MGS that involved the death of 12 people, all personnel of AMIS, and at least 8 more sustained severe injuries. It is clearly an example where adversarial and inquisitorial elements are mixed.

Cross-references:
Article 69(3) and regulation 54(n)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 346, 432, 440, 506.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 389, 478, 479-480.
3. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1726-1727.
 
Author:
Mark Klamberg

Updated:
10 August 2017

[116] In cases of sexual violence, the Court shall be guided by and, where appropriate, apply the following principles:
General remarks
The Rome Statute, the Rules of Procedure and the Elements of Crime all recognize the rights and interests of victims of sexual violence. Rules  concerning the admissibility of evidence are interrelated to substantive criminal law, including definitons of crimes and of exculpatory evidences. This is very obvious when it comes to a crime of sexual violence where evidence of lack of consent or evidence of consent may be presented. In some domestic systems lack of consent by the victims is reuirement in the elements of the definition of the crime. In other systems. consent is considered to be a defence  (Piragoff, p. 2004, pp. 386, 394). Evidence in cases concering sexual crimes are regulated in rules 70-72.
   Rule 70 applies to cases of "sexual violence", which is a broader term that sexual assualt in ICTY and ICTR Rules 96 (Piragoff, 2004, p. 399). It provides certain principles of evidence that should be applied in cases of sexual violence

Author:
Mark Klamberg

Updated:
10 August 2017

[117] (a) Consent cannot be inferred by reason of any words or conduct of a victim where force, threat of force, coercion or taking advantage of a coercive environment undermined the victim’s ability to give voluntary and genuine consent;
Sub-rule (a) concerns a situatioin where the victim had a pre-existing capacity to consent  but force, coercion or a coercive environment damaged it. The reference in sub-rule (a) to force, coercion and coercive environment is similar to ICTY and ICTR Rules 96(ii)(a). During the negotiations of the RPE some delegations opposed this rule, arguing that not all sexual activity during periods of occupation by foreign forces is non-consensual (Piragoff, 2001, pp. 382-383). The principle may be understood to relate to admissibility in the event that evidence is admitted the principle may also guide the Chamber in its evaluation of the relevence, value and weight (Piragoff, 2001, pp. 399-400). As such the rule may be perceived as a clear exception to the general principle of “free evaluation of evidence” (Klamberg, 2013, p. 157).

Author:
Mark Klamberg

Updated:
10 August 2017

[118] (b) Consent cannot be inferred by reason of any words or conduct of a victim where the victim is incapable of giving genuine consent;
The words "incapable of giving genuine consent" in Sub-rule (b) is based on the meaniing reflected in footnotes 16 and 51 in the Elements of Crime regarding crimes of sexual violence, namely: natural, induced or age-related incapacity. In other words, consent cannot be inferred by reason of any words or conduct of a victim due to  natural, induced or age-related incapacity.

Author:
Mark Klamberg

Updated:
10 August 2017

[119] (c) Consent cannot be inferred by reason of the silence of, or lack of resistance by, a victim to the alleged sexual violence;
Sub-rule (c) is a corollary of principle (a) and also concerns situations of force, coercion and coercive environment. In such situations the silence of, or lack of resistance by the victim may be a result of paralysis.

Author:
Mark Klamberg

Updated:
10 August 2017

[120] (d) Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness.
Sub-rule (d) provides that credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness. Rule 71 provides the general rule that evidence of prior or subsequent sexual conduct of a victim or witness shall not be admitted. If such evidence in an exceptional case would be admitted, rule 70(d) would provide that evidence of previous or subsequent sexual conduct could not be used to question the credibility, character or predisposition to sexual availability of a victim or witness (Piragoff, 2004, p. 402).  

Cross-references:
Article 69(4)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 507-508.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 157.
3. Donald. K. Piragoff, "Procedural Justice Related to Crimes of Sexual Violence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 386-402, 409.
4. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 374, 382-383.
5. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1717-1718.

Author:
Mark Klamberg

Updated:
10 August 2017

[121] In the light of the definition and nature of the crimes within the jurisdiction of the Court, and subject to article 69, paragraph 4, a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness.
The phrase “subject to article 69, paragraph 4” indicates that the rule is not absolute. The rule restricts or fetters a Chamber’s discretion or guides it towards a particular result. This flexibility in rare and exceptional cases is attached with a guarantee in rule 70(D) against character assassination of the victim or witness. 
   Rule 71 is similar to ICTY and ICTR Rules 96(iv). There was some disagreement during the negotiations whether the ICC rule was of the same absolute nature as  ICTY and ICTR Rules 96(iv). A comrpomise wwas reached by introducing the words “subject to article 69, paragraph 4” which makes rule 71 almost, but not completely, an absolute rule, Rule 71 should be read in conjunction with rule 70(d). The introduction of rule 70(d) was one of the elements that broúght about the compromise on rule 71 (Piragoff, 2004, pp. 403-407).
   Rule 72 provides a screening procedure when there is an intention to introduce or elicit evidence that the victim consented to an alleged crime of sexual violence (Piragoff, 2001 pp. 384-391; Klamberg, 2013, pp. 407-408).

Cross-references:
Article 69(4)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 508.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 407-408.
3. Donald. K. Piragoff, "Procedural Justice Related to Crimes of Sexual Violence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 402-407.
4. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 384-391.
5. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1718.

Author:
Mark Klamberg

Updated:
10 August 2017

[122] 1. Where there is an intention to introduce or elicit, including by means of the questioning of a victim or witness, evidence that the victim consented to an alleged crime of sexual violence, or evidence of the words, conduct, silence or lack of resistance of a victim or witness as referred to in principles (a) through (d) of rule 70, notification shall be provided to the Court which shall describe the substance of the evidence intended to be introduced or elicited and the relevance of the evidence to the issues in the case.

2. In deciding whether the evidence referred to in sub-rule 1 is relevant or admissible, a Chamber shall hear in camera the views of the Prosecutor, the defence, the witness and the victim or his or her legal representative, if any, and shall take into account whether that evidence has a sufficient degree of probative value to an issue in the case and the prejudice that such evidence may cause, in accordance with article 69, paragraph 4. For this purpose, the Chamber shall have regard to article 21, paragraph 3, and articles 67 and 68, and shall be guided by principles (a) to (d) of rule 70, especially with respect to the proposed questioning of a victim.

3. Where the Chamber determines that the evidence referred to in sub-rule 2 is admissible in the proceedings, the Chamber shall state on the record the specific purpose for which the evidence is admissible. In evaluating the evidence during the proceedings, the Chamber shall apply principles (a) to (d) of rule 70.
Rule 72 provides for in camera procedure to consider relevance or admissibility of evidence when the victim has been subjected  force, threats or coercive circumstances. In such cases enquiries into the consent may tend to blame and re-truamatise the victim. Rule 72 provides a screening procedure when there is an intention to introduce or elicit evidence that the victim consented to an alleged crime of sexual violence (Piragoff, 2004, p. 411). Rule 71 is similar to ICTY and ICTR Rules 96(iii).

Cross-references:
Article 69(4)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 448.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 407-408.
3. Donald. K. Piragoff, "Procedural Justice Related to Crimes of Sexual Violence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 409-421.
4. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 390-391.
5. Donald. K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1718.

Author:
Mark Klamberg

Updated:
10 August 2017

[123] Privileged Communications and information
General remarks
Rule 73 supplements article 69(5) which provides that the Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence. The rule involves tensions between the interest of admitting evidence to prevent impunity on the one hand and the interest of protecting the confidentiality of certain communications.
   The ICC has several explicit rules providing for privilege against disclosure, namely the privilege against self-incrimination, the lawyer-client privilege, the doctor-, psychiatrist-, psychologist-, counsellor or clergy-person privilege and privileges for ICRC officials, employees information, documents or other evidence.

Author:
Mark Klamberg

Updated:
10 August 2017

[124] 1. Without prejudice to article 67, paragraph 1 (b), communications made in the context of the professional relationship between a person and his or her legal counsel shall be regarded as privileged, and consequently not subject to disclosure, unless:

(a) The person consents in writing to such disclosure; or

(b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.
Rule 73(1) recognize a privilege for all communications between lawyer and client, which consequently are not subject to disclosure at trial, unless the client consents to such disclosure or has voluntarily disclosed the communication to a third party who gives evidence of that disclosure. The recognition of the lawyer-client-priveilege in rule 73(1) did not cause major diffulties during the negotiations since it is widely recognized in virtually all domestic procedural systems to the extent it can be perceived as a general principle of international law (Kreβ, 2004, p. 336).
   The words "communications made in the context of the professional relationship" enables the Court not to recognize a privilege if the communication is done was made for other purposes than giving or receiving legal advice. In other words, communications are not protected by the privilege in situations where the participation of the lawyer in his or her client’s criminal activity is in question as opposed to professional legal activity which is protected (Kreβ, 2004, pp. 336-338).
   In Mbarushimana, Decision Temporarily Suspending Dealings with Transcripts and Original Recordings of Intercepted Communications and Materials Seized from the House of Mr. Callixte Mbarushimana, 25 February 2011, the defence asserted that materials seized from the house of Mr. Mbarushimana, as well as the transcripts and original recordings of intercepted communications (collectively "Specified Materials") may contain privileged information within the scope of rule 73 of the Rules. The Pre-Trial Chamber ordered the Prosecutor to cease all dealings with the Specified Materials and to quarantine these materials pending resolution of the issue. In Mbarushimana, Decision on the "Prosecution's request for a review of potentially privileged material", 4 March 2011, the Pre-Trial Chamber considered that in order to minimise the risk of transmission of privileged communications to the Prosecutor in the process of registration of the remaining Seized it is necessary that before giving the Prosecutor and the Defence access to these materials, the Registry conducts a search to identify potentially privileged communications.

Author:
Mark Klamberg

Updated:
10 August 2017

[125] 2. Having regard to rule 63, sub-rule 5, communications made in the context of a class of professional or other confidential relationships shall be regarded as privileged, and consequently not subject to disclosure, under the same terms as in sub-rules 1 (a) and 1 (b) if a Chamber decides in respect of that class that:

(a) Communications occurring within that class of relationship are made in the course of a confidential relationship producing a reasonable expectation of privacy and non-disclosure;

(b) Confidentiality is essential to the nature and type of relationship between the person and the confidant; and

(c) Recognition of the privilege would further the objectives of the Statute and the Rules.
Sub-rule 2 empowers the Court to recognize additional classes of privilege relationships based on ´three criteria: a) when there is a reasonable expectation of privacy and non-disclosure; b) confidentiality is essential to the nature and type of relationship; and c) recognition of the privilege would further the objectives of the Statute and the Rules. Sub-rule 3 indicates the candidates for recognition of confidentiality.

Author:
Mark Klamberg

Updated:
10 August 2017

[126] 3. In making a decision under sub-rule 2, the Court shall give particular regard to recognizing as privileged those communications made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of a religious clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion.
Rule 73(3) provides that the Court shall recognize communications as privileged when made in the context of the professional relationship between a person and his or her medical doctor, psychiatrist, psychologist or counsellor, in particular those related to or involving victims, or between a person and a member of the clergy; and in the latter case, the Court shall recognize as privileged those communications made in the context of a sacred confession where it is an integral part of the practice of that religion.
   Although the list in sub-rule 3, the Communication of more classes could should arguably be recognized as worthy of protection, for example: in the relationship between a victim's counsellor of the Victims and Witnesses Unit and the Victim, journalist or spousal privilege (Piragoff, 2001, p. 397; Kreβ, 2004, p. 338; Khan and Azarnia, 2010, pp. 567–569).
   In Mbarushimana, Decision on the review of potentially privileged material, 15 June 2011, p. 6, the Pre-Trial Chamber considered that communications between Mr. Mbarushimana and the member of a religious clergy over which the Defence maintains its claim of privilege under rule 73(3) of the Rules were made in the context of a relationship falling outside the scope of rule 73(3) of the Rules, given that Mr. Mbarushimana was not acting in a personal capacity, the member of the religious clergy in question was not acting as a confidant within the meaning of rule 73(2) of the Rules and the fact that he was a member of a religious clergy was incidental to the relationship.

Author:
Mark Klamberg

Updated:
10 August 2017

[127] 4. The Court shall regard as privileged, and consequently not subject to disclosure, including by way of testimony of any present or past official or employee of the International Committee of the Red Cross (ICRC), any information, documents or other evidence which it came into the possession of in the course, or as a consequence, of the performance by ICRC of its functions under the Statutes of the International Red Cross and Red Crescent Movement, unless:

(a) After consultations undertaken pursuant to sub-rule 6, ICRC does not object in writing to such disclosure, or otherwise has waived this privilege; or

(b) Such information, documents or other evidence is contained in public statements and documents of ICRC.
Sub-rule 4-6 contains provisions on the privilegied Communications with respect to the International Committee of the Red Cross (ICRC). The rationale is that disclosure of information could seriously undermine the role and work of the ICRC. The reasons is that the ICRC works with parties to armed conflict with the law and cease wih any violations, a work dependant on strict confidentility. 
   The privilege relating to the ICRC has two exceptions: a) the ICRC concents in writing to disclosure, or b) the evidence is contained in public statements and documents of ICRC.
   Sub-rule 4 differs from the class privilegies in the preceding suvb-rule since 1) it is a privilege of an organization and 2) it is not dependant on the will of the confider (for example the prisoner of war who spoke to the ICRC), see Kreβ, p. 340.

Author:
Mark Klamberg

Updated:
10 August 2017

[128] 5. Nothing in sub-rule 4 shall affect the admissibility of the same evidence obtained from a source other than ICRC and its officials or employees when such evidence has also been acquired by this source independently of ICRC and its officials or employees.
Evidence obtained from third parties, i.e. a source other than ICRC and its officials or employees, which is also possesed by the ICRC is pursuant to sub-rule 5 admissible. However, this sub-rule does not prevent the ICRC from denying to disclose of the same evidence from itself (Piragoff, 2001, pp. 366-367).

Author:
Mark Klamberg

Updated:
10 August 2017

[129] 6. If the Court determines that ICRC information, documents or other evidence are of great importance for a particular case, consultations shall be held between the Court and ICRC in order to seek to resolve the matter by cooperative means, bearing in mind the circumstances of the case, the relevance of the evidence sought, whether the evidence could be obtained from a source other than ICRC, the interests of justice and of victims, and the performance of the Court’s and ICRC’s functions.
The privilege for the ICRC cannot be set by Court even if it is of great importance for case. Sub-rule 6 provides for consultations to be held between the Court and ICRC in order to seek to resolve the matter.

Cross-references:
Article 69(5); Rule 65

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 160, 542.
2. Karim A. A. Khan and Azarnia, ‘Evidentiary Privileges’ in Khan, Karim A. A. (ed), Principles of Evidence in International Criminal Justice, 551-598 (Oxford: Oxford University Press, 2010), pp. 567–569.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 315-316.
4. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 334-341.
5. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 357-369, 397.
6. William A. Schabas/Yvonne McDermott, "Article 67", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1662.

Author:
Mark Klamberg

Updated:
10 August 2017

[130] 1. Unless a witness has been notified pursuant to rule 190, the Chamber shall notify a witness of the provisions of this rule before his or her testimony.

2. Where the Court determines that an assurance with respect to selfincrimination should be provided to a particular witness, it shall provide the assurances under sub-rule 3, paragraph (c), before the witness attends, directly or pursuant to a request under article 93, paragraph (1) (e).

3. (a) A witness may object to making any statement that might tend to incriminate him or her.

(b) Where the witness has attended after receiving an assurance under subrule 2, the Court may require the witness to answer the question or questions.

(c) In the case of other witnesses, the Chamber may require the witness to answer the question or questions, after assuring the witness that the evidence provided in response to the questions:

(i) Will be kept confidential and will not be disclosed to the public or any State; and

(ii) Will not be used either directly or indirectly against that person in any subsequent prosecution by the Court, except under articles 70 and 71.

4. Before giving such an assurance, the Chamber shall seek the views of the Prosecutor, ex parte, to determine if the assurance should be given to this particular witness.

5. In determining whether to require the witness to answer, the Chamber shall consider:

(a) The importance of the anticipated evidence;

(b) Whether the witness would be providing unique evidence;

(c) The nature of the possible incrimination, if known; and

(d) The sufficiency of the protections for the witness, in the particular circumstances.

6. If the Chamber determines that it would not be appropriate to provide an assurance to this witness, it shall not require the witness to answer the question. If the Chamber determines not to require the witness to answer, it may still continue the questioning of the witness on other matters.

7. In order to give effect to the assurance, the Chamber shall:

(a) Order that the evidence of the witness be given in camera;

(b) Order that the identity of the witness and the content of the evidence given shall not be disclosed, in any manner, and provide that the breach of any such order will be subject to sanction under article 71;

(c) Specifically advise the Prosecutor, the accused, the defence counsel, the legal representative of the victim and any Court staff present of the consequences of a breach of the order under subparagraph (b);

(d) Order the sealing of any record of the proceedings; and

(e) Use protective measures with respect to any decision of the Court to ensure that the identity of the witness and the content of the evidence given are not disclosed.

8. Where the Prosecutor is aware that the testimony of any witness may raise issues with respect to self-incrimination, he or she shall request an in camera hearing and advise the Chamber of this, in advance of the testimony of the witness. The Chamber may impose the measures outlined in sub-rule 7 for all or a part of the testimony of that witness.

9. The accused, the defence counsel or the witness may advise the Prosecutor or the Chamber that the testimony of a witness will raise issues of self-incrimination before the witness testifies and the Chamber may take the measures outlined in subrule 7.

10. If an issue of self-incrimination arises in the course of the proceedings, the Chamber shall suspend the taking of the testimony and provide the witness with an opportunity to obtain legal advice if he or she so requests for the purpose of the application of the rule.
Rule 74 supplements Article 67(1)(g) which provides that the accussed has the right "[n]ot to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence". The right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure, see John Murray v. the United Kingdom, (Application no. 18731/91), ECtHR, Judgment of 8 February 1996, para. 45. A witness before the ICC may, following the example set by the ad hoc tribunals (ICTY and ICTR rules 90(E)), object to making any statement that might tend to incriminate him or her. 
   During the negotiations there were differences among the delegations as to what should be the consequences of a refusal by the witness to answer a question. Some delegations wanted to an absoilute privelilege, i.e. mo possibility for the the Court to require a witness to answer. With protections added an agreement was made that the Court may require the witness to answer questions (sub-rule 3). The evidence provided will be kept confidential and will not be disclosed to the public or any State and will not be used against that person in any subsequent prosecution by the Court, with exceptions for false testimony and misconduct (rule 74(3)(c)(ii)) which may be sanctioned with fine or imprisonment under Articles 70 and 71 of the Rome Statute.
   In Katanga and Ngudjolo, ICC. T. Ch.,  Decision on the request of the Defence for Mathieu Ngudjolo to obtain assurances with respect to self-incrimination for the accused, 13 September, 2011, para. 1, the Defence for Mr. Ngudjolo filed a motion requesting the Chamber to provide assurances with respect to selfincrimination to a number of Defence witnesses, including the accused himself. The Trial Chamber stated in paras. 5, 7-8 that "it is clear that the position of an accused who chooses to testify in his own defence cannot be systematically equated to that of any other witness... once an accused voluntarily testifies under oath, he waives his right to remain silent and must answer all relevant questions, even if the answers are incriminating. The testimony of the accused may thus be used as evidence against them in the present case." The Trial Chamber thus found that article 93(2) and rule 74 is not applicable to the accused and rejected the request.
   Apart from the privilege against self-incrimination and spousal privilege concerning familial communications, rule 75 also provides for privilege against incrimination by family members as witnesses.

Cross-references:
Article 55(1)(a), 67(1)(g), 69(7) and <link cmn-knowledge-hub icc-commentary-clicc rome-statute>93(1)(e); Rules 65 and 190

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 71, 472-473.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 56 and 315-316.
3. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 326-330.
4. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 391-396.
5. William A. Schabas/Yvonne McDermott, "Article 67", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1672-1673.

Author:
Mark Klamberg

Updated:
10 August 2017

[131] 1. A witness appearing before the Court, who is a spouse, child or parent of an accused person, shall not be required by a Chamber to make any statement that might tend to incriminate that accused person. However, the witness may choose to make such a statement.

2. In evaluating the testimony of a witness, a Chamber may take into account that the witness, referred to in sub-rule 1, objected to reply to a question which was intended to contradict a previous statement made by the witness, or the witness was selective in choosing which questions to answer.
Rule 75 provides that a family member has the dispensable right to refuse to testify if his or her testiomy would incriminate family members.
   National systems differ with respect to privilege against incrimination by family members as witnesses. The differences are not imeediately linked to the divide between common law and civil law (Kreβ, 2004, p. 331).
   Sub-rule 1 restricts the family privilege to a spouse, child or parent of an accused person, which is a much narrower list than the ones to be found in several domestic domestic systems (Kreβ, 2004, p. 331).
   Sub-rule 2 deals with the situation when a witness makes a selective use of the family privilege. In such cases the Court is allowed to draw appropriate inferences from such behaviour.

Cross-references:
Rule 65

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 473.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 331-333.
3. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 326-330.
4. Donald. K. Piragoff, "Evidence" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 396-399.

Author:
Mark Klamberg

Updated:
10 August 2017

[132] General remarks
The rules on disclosure seek to guarantee the person’s right to a fair trial by ensuring that the Defence can properly prepare for the confirmation hearing (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, par. 66). It must be noted that the obligation of the Prosecutor to disclose material and information does not end once the charges are confirmed. If the Prosecutor in the course of investigations carried out after the confirmation hearing discovers further evidence on which he intends to rely at the trial or which is exonerating, said evidence must be disclosed to the suspect, as provided by the relevant provisions of the Statute and the Rules of Procedure and Evidence (Lubanga, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence”, ICC App. Ch., 13 October 2006, para. 55).
   In Katanga and Ngudjolo, Decision on the 'Prosecution's application for leave to appeal Trial Chamber II's 'Decision on the disclosure of evidentiary material relating to the Prosecutor's site visit to Bogoro on 28,29 and 31 March 2009 (ICC-01/04-01/07-1305,1345,1401,1412,and 1456)' of 7 October 2009", 18 December 2009, para. 16 the Trial Chamber stated that "although the right to collect additional information after the deadline for disclosure has expired is not subject to the Chamber's authorisation, the right to submit this information as evidence in the trial proceedings after the lapse of that time limit is subject to such authorisation."

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[133] 1. 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.
Scope of evidence disclosed to the Defence
Subject to any protective measures, the Prosecutor’s duty under rule 76(1) extends to all witnesses on whom the Prosecution intends to rely at the confirmation hearing, regardless of whether the Prosecution intends to call them to testify or to rely on the non-redacted or redacted versions of their statements, or summaries thereof (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 94 and 100, Lubanga, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute, ICC PT. Ch. I, 19 May 2006, para. 28, L. Gbagbo, Decision establishing a disclosure system and a calendar for disclosure, ICC PT. Ch. III, 24 January 2012, para. 43).
   The Prosecution provides copies of the statements to the Defence and thereafter files the originals in the record of the case (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, par. 103).
   The Trial Chamber in Katanga and Ngudjolo, Order Instructing the Participants and the Registry to File Additional Documents, 10 December 20010, para. 7, stressed the importance of ensuring that the Prosecutor presents in an organised and systematic manner the incriminatory evidence on which he intends to rely at trial. To this end, it requested him to submit a model table showing how the charges confirmed by Pre-Trial Chamber I and the relevant modes of responsibility are linked to the facts alleged and to the evidence on which he intends to rely at trial. This will ensure that the accused have adequate time and facilities for the preparation of their defence, to which they are entitled under article 67(l)(b). It will also enable the Presiding Judge to give appropriate directions for the conduct of the proceedings, Order concerning the Presentation of Incriminating Evidence and the E-Court Protocol, 13 March 2009, paras. 6 and 8.

Prior statements
In Lubanga, Decision on Defense Requests for Disclosure of Materials, 17 November, 2006, page 4, PTC I considered that the notion of "prior statements" in rule 76 of the Rules includes statements taken by entities other than the Prosecution; that rule 76 of the Rules does not limit the Prosecution's disclosure obligations to prior statements "in the possession or control of the Prosecutor"; and that, therefore, the Prosecution is under an obligation to make its utmost effort to obtain the prior statements of those witnesses on whom the Prosecution intends to rely at the confirmation hearing which have been taken by other entities. However, the Defence Request for Materials did not refer to "prior statements" within the meaning of rule 76. Hence, PTC I ordered the Registrar to immediately send a cooperation request to the United Nations in order to obtain notes of interviews of MONUC officials.

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[134] This shall be done sufficiently in advance to enable the adequate preparation of the defence.
This time limit is a concrete application of the broader right enshrined in article 67(1)(b) of the Statute “to have adequate time [...] for the preparation of the defence”. The Prosecution must decide on the evidence on which it will rely during the confirmation hearing and provide a list thereof to the Defence no later than 30 days before the date of the hearing –this being extended to no later than 15 days before the date of the hearing in cases of “new evidence” or amended charges [Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, par. 105]. More generally, the Court has a responsibility to organize the conduct of the proceedings in a fair and expeditious manner with full respect to the rights of the Defence to meaningfully prepare for the case under consideration [Ntaganda, Decision Establishing a Calendar for the Disclosure of Evidence Between the Parties, ICC PT. Ch. II, 17 May 2013, para. 28].
     In Lubanga, Decision on prosecution's requests to add items to the evidence to be relied on at trial filed on 21 April and 8 May 2008, 4 June, 2008, para. 27, TC I held that "[a] mere statement that disclosure was not effected due to an 'oversight', standing alone, is unacceptable reasoning for [the] breach of the ... deadline set by the Trial Chamber".

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[135] 2. 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.
Rule 76(2) of the Rules requires the Prosecutor to subsequently advice the defence of the names of any additional prosecution witnesses and provide copies of their statements, subject to any protective measures [L. Gbagbo, Decision establishing a disclosure system and a calendar for disclosure, ICC PT. Ch. III, 24 January 2012, para. 43].

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[136] 3. The statements of prosecution witnesses shall be made available in original and in a language which the accused fully understands and speaks.
According to rule 76(3) of the Rules, the Prosecutor is obliged to make available the statements of her witnesses “in original and in a language which the accused fully understands and speaks”. Thus, in cases where translations of some of the core evidence of the Prosecutor are called for, the Chamber usually establishes a calendar with a view to ensuring the fair and expeditious conduct of the proceedings (Ntaganda, Decision Establishing a Calendar for the Disclosure of Evidence Between the Parties, ICC PT. Ch. II, 17 May 2013, para. 15). 
    In Lubanga, Decision on the Requests of the Defence of 3 and 4 July 2006, 4 August 2006, PTC I denied the request of Defence to order the Prosecution to provide in French all documents that the Prosecution is obligated to disclose to the Defence for purpose of the confirmation hearing, but ordered the Prosecution to file a French version of the Charging document and list of evidence. PTC I made references the European Court of Human Rights (p. 5).

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[137] 4. This rule is subject to the protection and privacy of victims and witnesses and the protection of confidential information as provided for in the Statute and rules 81 and 82.
As a general rule, statements must be disclosed to the Defence in full. Any restriction on disclosure to the Defence of the names or portions, or both, of the statements of the witnesses on which the Prosecution intends to rely at the confirmation hearing must be authorised by the Chamber under the procedure provided for in rule 81 of the Rules of Procedure and Evidence (Prosecutor v. Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, par. 101). Exception: justified redactions requested by the ProsecutionThe Pre-Trial Chamber is the ultimate guarantor of the Defence’s timely access to the evidence on which the Prosecution intends to rely at the confirmation hearing and the materials in the possession or control of the Prosecution which are potentially exculpatory, have been obtained or belonged to the person or are otherwise material to the Defence preparation for the confirmation hearing because it is the ultimate guarantor of the respect for all other aspects of the person’s right to a fair trial. For this reason, redactions in the said evidence and materials are the exception and not the general rule, are permissible only on a case-by-case basis and are subject to the approval of the Chamber. Accordingly, it amounts to an impermissible shift of the burden of proof from the Prosecution –which must convince the Pre-Trial Chamber of the need to authorise any redactions– to require the Defence to raise objections to proprio motu redactions by the Prosecution (Prosecutor v. Lubanga, Decision on the Prosecution practice to provide to the defence redacted versions of evidence and materials without authorisation by the Chamber, ICC PT. Ch. I, 25 August 2006, p. 4). However, in some cases, Chambers have sanctioned an agreement between the parties pursuant to which the Prosecution may disclose incriminating evidence under rule 76 with the redactions that it considers necessary and without an authorisation from the Chamber, provided that i) simultaneously with such disclosure of redacted evidence, the Prosecutor provides to the Defence a document indicating the basis for redactions in the evidence disclosed, which shall also be filed in the record of the case; ii) the Defence may seek further information from the Prosecutor regarding the redactions applied, the Prosecutor being obliged to respond to the Defence within two working days; and iii) if disagreement persists, the Defence may seize the Chamber of the matter (Blé Goudé, Second decision on issues related to disclosure of evidence, ICC PT. Ch. I, 6 May 2014, para. 12).

ex parte filings
In practical terms, Chambers have usually ordered the Prosecution to make ex parte filings including the un-redacted material and showing good cause for its redaction [Prosecutor v. Lubanga, Decision on the Prosecution practice to provide to the defence redacted versions of evidence and materials without authorisation by the Chamber, ICC PT. Ch. I, 25 August 2006, pp. 4-5].

Cross-references:
Article 67
Rules 81 and 82

Doctrine:
1. Helene Helen, "Disclosure of Evidence" in Roy S. Lee (ed), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, 403-426, Ardsley: Transnational Publishers, 2001.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Leiden: Martinus Nijhoff Publishers, 2013, pp. 280-283, 303, 328.

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[138] General remarks
Disclosure v. inspection
The disclosure process at the Court is carried out by recourse to two different modalities, that is, by providing the documents to the Defence (disclosure stricto sensu, rule 76) and by permitting the Defence to inspect the documents at a given place (inspection, rule 77) (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 108-109).

Compulsory disclosure obligations
Article 67(2) of the Statute and rule 77 of the Rules of Procedure and Evidence place mandatory disclosure obligations on the Prosecutor and at the same time do not contain any requirement that a suspect provide advance revelation of his or her defences in order to receive full prosecution disclosure. The Prosecutor is duty-bound to provide full disclosure even if the person elects to remain silent or does not raise a defence (Lubanga, Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC App. Ch., 11 July 2008, para. 50). In other words, the Defence is entitled to full disclosure in relation to the case as a whole as known by the Prosecutor (subject to the statutory regime relating to restrictions on disclosure) and is fully entitled to rely on the right to remain silent, so that that there cannot be any pressure on the suspect to testify or to raise defences at an early stage as a condition for obtaining prosecution disclosure (Lubanga, Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC App. Ch., 11 July 2008, para. 55).

Scope of evidence allowed to the Defence for inspection
Pursuant to rule 77, the materials that the Prosecution must allow the Defence to inspect are i) the evidence on which the Prosecution intends to rely at the confirmation hearing other than the names and statements of the Prosecution’s witnesses (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, para. 100), ii) materials in the possession or control of the Prosecution that were obtained from or belong to the suspect (Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, para. 107), and iii) materials in the possession or control of the Prosecution that are otherwise material to the Defence’s preparation for the confirmation hearing (Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, paar. 107). The disclosure of documents to be used in questioning a witness is governed by rules 77 and 78 of the Rules of Procedure and Evidence, although the questioning of a witness by a party not calling that witness is to some extent reactionary, and as such could entail on occasion the unanticipated use of documents (Lubanga, Decision on various issues related to witnesses’ testimony during trial, ICC T. Ch. I, 29 January 2008, para. 34).

Extension of the rule to participating victims
Although inspection, as provided for in Rules 77 and 78 of the Rules, relates only to the Prosecution and the Defence, as a matter of general principle and in order to give effect to the rights accorded to victims under article 68(3) of the Statute, the prosecution shall, upon request by the victims’ legal representatives, provide individual victims who have been granted the right to participate with any materials within the possession of the prosecution that are relevant to the personal interests of victims which the Chamber has permitted to be investigated during the proceedings, and which have been identified with precision by the victims in writing (Lubanga, Decision on victim's participation, ICC T. Ch. I, 18 January 2008, para. 111). The overriding goal behind this approach appears to be to ensure that those victims authorised to participate are placed in a position to effectively exercise their rights pursuant to article 68(3) of the Statute, but whatever the reasons, they have no impact at the pre-trial stage of a case (Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 96-97, 99).

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[139] The Prosecutor shall, subject to the restrictions on disclosure as provided for in the Statute and in rules 81 and 82,
Redactions without judicial authorisation
The Prosecution may, in order to expedite proceedings, disclose documents to the Defence pursuant to article 67(2) and rule 77 with the redactions that it considers necessary and without an authorisation from the Chamber, provided that i) the Prosecution does not intend to rely on the documents during the confirmation hearing, ii) the disclosure process is conducted inter partes, and iii) the Defence may request from the Chamber the lifting of the redactions prior to the confirmation hearing (Katanga and Ngudjolo, ICC PT. Ch. I, 21 April 2008, para. 143] [L. Gbagbo, ICC PT. Ch. III, 24 January 2012, para. 51).

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[140] permit the defence to inspect
Inspection reports
As soon as the Prosecution decides to rely on any of the materials referred to in rule 77, it must permit the Defence to carry out an inspection of the originals of said materials on the premises of the Office of the Prosecution, and during or immediately after inspection, upon request of the Defence, the Prosecution must provide the Defence with an electronic copy of any such material (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 113-114, 117). A record of the inter partes exchanges pursuant to this provision must be filed by the Prosecution in the record of the case as soon as practicable after any such exchange has taken place (so-called “inspection reports”) in order to ensure legal certainty and consistency as to which materials have been exchanged between the parties. The “inspection reports” must be signed by both parties and must include a list of the items subject to inspection, their reference numbers and a brief account of how the act of inspection took place and whether the Defence received the copies which it requested during the inspection (Lubanga, ICC PT. Ch. I, 15 May 2006, Annex I, paras. 73, 75, 76). Over time, the Court has decided that in order to place the Defence in a position to adequately prepare for the confirmation hearing the Prosecutor must provide a short explanation of the relevance of each item disclosed under rule 77 (Blé Goudé, Second decision on issues related to disclosure of evidence, ICC PT. Ch. I, 6 May 2014, para. 14).

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[141] any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor
Scope of evidence allowed to the Defence for inspection
The Prosecution’s obligation under rule 77 of the Rules is limited to permitting the Defence to inspect only those books, documents, photographs and tangible objects i) on which the Prosecution intends to rely at the confirmation hearing or trial, ii) which are material to the preparation of the defence for the purpose of the confirmation hearing or the trial, or iii) which have been obtained from or belonged to the suspect or accused person, and thus this rule is not applicable in the context of the victim application process [Darfur, ICC PT. Ch. I, 3 December 2007, para. 21] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 22].

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[142] 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.
Right not to reveal defences
The Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends to rely at trial, but the Prosecution is already in a position to identify most of the rule 77 materials which are material to the Defence’s preparation because of its current knowledge of the case in question (Lubanga, Decision on the final system of disclosure and the establishment of a timetable, ICC PT. Ch. I, 15 May 2006, Annex I, par. 118).

Material to the preparation of the defence
In this regard, the Appeals Chamber has given a broader interpretation of rule 77, finding that the term “material to the preparation of the defence” under rule 77 should be understood as referring to “all objects that are relevant for the preparation of the defence” (Lubanga, Judgment on the appeal of Mr. Lubanga Dyilo against the Oral Decision of Trial Chamber I of 18 January 2008, ICC App. Ch., 11 July 2008, para. 77).  See also Bemba, Redacted Version of Decision on the "Defence Motion for Disclosure Pursuant to Rule 77", 29 July 2011, PT Ch., para. 19.
   In Lubanga, Decision on the prosecution's request for an order on the disclosure of tu quoque material pursuant to Rule 77, 2 October 2009, para. 17, the Trial Chamber noted the Appeals Chamber Judgment of 11 July 2008. Nevertheless, in para. 24, the Trial Chamber found that "that further information relating to the general use of child soldiers by groups other than the UPC, above and beyond that already disclosed, is unnecessary for the preparation of the defence (viz. it would have no material effect). It does not, therefore, fall into the scope of the disclosure obligations under Rule 77 of the Rules."
   In Bemba, Decision on the defence application for additional disclosure relating to a challenge on admissibility, 2 December 2009, para. 19, the Trial Chamber ruled that "[d]ocuments and any other items listed in Rule 77 of the Rules that are relevant to the accused's complimentarity and non bis in idem challenges are selfevidently material to the preparation of his defence, and the prosecution must permit inspection of them".

Cross-references:
Article 67
Rules 81 and 82

Doctrine:
1. Brady, Helen, ‘Disclosure of Evidence’ in Lee, Roy S. (ed), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, 403-426, Ardsley: Transnational Publishers, 2001.
2. Klamberg, Mark, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Leiden: Martinus Nijhoff Publishers, 2013, pp. 285-286.

Author:
Enrique Carnero Rojo, revised by Mark Klamberg

[143] The defence shall permit the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial.
Rules 78 and 79 concern defence disclosure obligations. These obligations are subject to restrictions and qualifications as set out the Rome Statute and the Rules of Procedure and Evidence, including rules 81 and 82. One could discuss whether the defence disclosure obligations concerning under rules 78 and 79 constitute a reciprocal disclosure regime. The Trial Chamber in Katanga and Chui stated that “the Statute’s framework does not provide for a reciprocal disclosure regime. The disclosure obligations of the Prosecution and the Defence differ significantly, because of the particular roles that these two parties have at trial”, Prosecutor v. Katanga and Ngudjolo, (Case No. ICC-01/04-01/07) ICC T. Ch. II, Decision on the “Prosecution’s Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)”, 14 September 2010, para. 36.
   Since the defendant has the right not to self-incriminate, he or she does not have any obligation to discolose incriminatory evidence. However, if the defendant intends to present evidence at trial, such evidence may be subject to disclosure evidence. Rule 78 allows the Prosecutor to inspect any books, documents, photographs and other tangible objects in the possession or control of the defence, which are intended for use by the defence as evidence for the purposes of the confirmation hearing or at trial. This is more narrow obligation compared to the Prosecutor's obligations under rule 77. The Trial Chamber in Lubanga emphasized that an accused’s right to a fair trial is not necessarily compromised by the imposition on him or her of an obligation to reveal in advance details of the defences and the evidence to be presented (Prosecutor v. Lubanga, ICC T. Ch. I, Decision on disclosure by the defence, ICC-01/04-01/06-1235, 20 March 2008, paras. 31 and 41). More specifically, the defence shall disclose in general terms the defences the accused intends to rely on and any substantive factual or legal issues that he intends to raise. It shall also disclose, after the presentation of the evidence of the prosecution, “the name, address and date of birth of any witness, to enable the prosecution to conduct appropriate enquiries.” Moreover, in Katanga and Chui, the Trial Chamber considered that if the defence challenges the testimony of a prosecution witness by using documentary evidence, an obligation to disclose such documents to the prosecution is triggered sufficiently in advance of the witness’s testimony. This was justified to ensure procedural fairness and to promote efficiency in the trial (Prosecutor v. Katanga and Ngudjolo, 14 September 2010, paras. 42–43).
   In Prosecutor v. Bemba, Decision on the disclosure of evidence by the Defence, ICC-01/05-01/08-311, 5 December 2008, PTC III relied on rule 78 when it requested the Defence to submit an indepth analysis chart of the evidence it intends to use for the purpose of the confirmation hearing.
   In Prosecutor v. Lubanga, ICC PTC I, Decision to give access to the Prosecution to the evidence included in the Defence list of evidence filed on 2 November 2006, ICC-01/04-01/06-680, 8 November 2006, PTC I ordered the Registry to give immediate access to the Prosecution to the evidence included in the Defence List of Evidence filed on 2 November 2006 and filed in accordance with the Decision and the Decision on the E-Court Protocol on 6 November 2006.
     In Prosecutor v. Lubanga, Decision on victim's participation, 18 January 2008, para. 111, TC I held in regard to inspection rights of victims that "inspection as provided for in Rules 77 and 78 of the Rules relates only to the prosecution and the defence."
     In Prosecutor v. Lubanga, Redacted Second Decision on disclosure by the defence and Decision on whether the prosecution may contact defence witnesses, 20 January 2010, para. 64, the Trial Chamber stated that "once a decision has been taken by counsel that a book, document, photograph or other tangible object is to be used by the defence during the trial, it should be served forthwith on the prosecution."

Crossreference:
Article 67

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, pp. 540-541.
2. Helen Brady, "Setting the Record Straight: A Short Note on Disclosure and ' the Record of the Proceedings' ", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 269.
3. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 413-417.
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 293 and 299-301.

Author:
Mark Klamberg

Updated:
12 June 2018

[144] 1. The defence shall notify the Prosecutor of its intent to:

(a) Raise the existence of an alibi, in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; or

(b) Raise a ground for excluding criminal responsibility provided for in article 31, paragraph 1, in which case the notification shall specify the names of witnesses and any other evidence upon which the accused intends to rely to establish the ground.

2. With due regard to time limits set forth in other rules, notification under subrule 1 shall be given sufficiently in advance to enable the Prosecutor to prepare adequately and to respond. The Chamber dealing with the matter may grant the Prosecutor an adjournment to address the issue raised by the defence.

3. Failure of the defence to provide notice under this rule shall not limit its right to raise matters dealt with in sub-rule 1 and to present evidence.

4. This rule does not prevent a Chamber from ordering disclosure of any other evidence.
Rules 78 and 79 concern defence disclosure obligations. These obligations are subject to restrictions and qualifications as set out the Rome Statute and the Rules of Procedure and Evidence, including rules 81 and 82. Rule 79 provides that the Defence must notify the Prosecutirof its intent to raise an ailibi or a ground for excluding criminal responsibility under article 31(1). The purpose of rule 79 is to provide the Prosecutor with an understanding of the defence case before the trial commences in the interests of an expeditious trial and efficient proceedings. The rule still respects the accused's right of silence, it is clear from sub-paragraph 3 that even if the accused fails to disclose in accordance with Rule 79, he or she may still raise such matters and present eveidence in support of such defences.
   In Prosecutor v Katanga and Chui, Decision on the "Prosecution's Application Concerning Disclosure by the Defence Pursuant to Rules 78 and 79(4)", ICC-01/04-01/07-2388, 14 September 2010, para 36, the Trial Chamber stated that "the Statute's framework does not provide for a reciprocal disclosure regime. The disclosure obligations of the Prosecution and the Defence differ significantly, because of the particular roles that these two parties have at trial."
   Judge Steiner held the view in Lubanga that under rules 79 and 80 of the ICC Rules, the Defence has the right not to reveal before the confirmation hearing any of the defences on which it intends rely at trial, Prosecutor v. Thomas Lubanga Dyilo, ICC PT. Ch. I, Decision on the Final System of Disclosure and the Establishment of a Timetable, ICC-01/04-01/06, 15 May 2006, annex 1, paragraph 118.

Crossreference
Article 31(1)
  
Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, pp. 540-541.
2. Helen Brady, "Setting the Record Straight: A Short Note on Disclosure and ' the Record of the Proceedings' ", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 269.
3. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 413-417.
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 299.

Author:
Mark Klamberg

Updated:
13 June 2018

[145] 1. The defence shall give notice to both the Trial Chamber and the Prosecutor if it intends to raise a ground for excluding criminal responsibility under article 31, paragraph 3. This shall be done sufficiently in advance of the commencement of the trial to enable the Prosecutor to prepare adequately for trial.

2. Following notice given under sub-rule 1, the Trial Chamber shall hear both the Prosecutor and the defence before deciding whether the defence can raise a ground for excluding criminal responsibility.

3. If the defence is permitted to raise the ground, the Trial Chamber may grant the Prosecutor an adjournment to address that ground.
Rule 80 elaborates on article 31(3) which concerns grounds for excluding criminal responsibility which is not set out in article 31(1). The rule sets out the procedure for the Court's consideration of the question.

Crossreference
Article 31(3)

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 540.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 417.
3. Albin Eser, "Article 31", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1159.

Author:
Mark Klamberg

Updated:
14 June 2018

[146] General remarks
Rule 81 covers various grounds for restricting disclosure relating to different articles in the Rome Statute. Disclosure restrictions may apply both to the defence and the public. The rule is based on the regime on restrictions at the ICTY and ICTR and gave rise to the little debate during the negotiations of the Rules of Procedure and Evidence (Brady, 2001, p. 418).
   Chambers take a two-step approach to disclosure with a first step determining whether certain information is discolosable and the second step whether the disclosure is subject to restrictions (Prosecutor v. Ruto and Sang, Decision on Disclosure of Information Related to Prosecution Intermediaries, ICC TC V(a), ICC-01/09-01/11-904-Red, para. 47; Ambos, 2016, p. 541).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, pp. 539 and 541-542.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 417-421.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 307-316.

Author:
Mark Klamberg

Updated:
15 June 2018

[147] 1. Reports, memoranda or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case are not subject to disclosure.
Sub-rule 1 provides that there is no duty to disclose work products, which includes reports, memoranda or other internal documents prepared by a party in connection with the investigation or preparation of the case. The sub-rule is clearly based on ICTY and ICTR rule 70(A).
   In Prosecutor v. Bemba, ICC TC III, Public Redacted version of "Decision on the Defence Request for disclosure of pre-interview assessments and the consequences of non-disclosure" ICC-01/05-01/08-750-Conf), ICC-01/05-01/08-750-Red, 9 April 2010, para. 35, the Trial Chamber determined that question whether screening notes or pre-interview assessments depend on the content of the record and the matters that are addressed during the screening process. The Appeals Chamber found no grounds for impeaching the prosecution's approach to Rule 81(1) of the Rules as applied to the documents relevant to the instant application.
     In Prosecutor v. Lubanga, ICC TC I, Order issuing public redacted annexes to the Decisions on the applications by victims to participate in the proceedings of 15 and 18 December 2008, ICC-01/04-01/06-1861, 8 May 2009, para. 31 the Chamber indicated that the internal work product of the prosecution under Rule 81(1) "[...] includes, inter alia, the legal research undertaken by a party and its development of legal theories, the possible case strategies considered by a party, and its development of potential avenues of investigation". See Prosecutor v. Lubanga, ICC TC I, Redacted Decision on the prosecution's disclosure obligations arising out of an issue concerning witness DRC-OTP-WWWW-0031, ICC-01/04-01/06-2656-Red, 20 January 2011, paras. 13 and 17.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 540.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 417.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 307-316.

Author:
Mark Klamberg

Updated:
14 June 2018

[148] 2. Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex parte basis by the Chamber. However, without adequate prior disclosure to the accused.
Rule 81(2) is clearly based on ICTY and ICTR rule 66(C), allowing the prosecutor to obtain a ruling from the relevant Chamber, on an ex parte basis, as to whether the material or information must be disclosed to the defence in order to protect further or ongoing investigations. The sub-rules also ensures that if the Prosecutor seeks to introduce such material or information into evidence during the confirmation hearing or the trial, he or she must give adequate prior disclosure in order to prevent that the accused is "ambushed".
In Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the Defence Motion for leave to Appeal the First Decision on Redactions, ICC-01/04-01/07-116, 19 December 2007, page 5, Judge Sylva Steiner held that the purpose of rule 81(2) and (4) "is to prevent the Defence from accessing certain information".
     In Prosecutor v. Lubanga, A. Ch., Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled "Second Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81", ICC-01/04-01/06-773, 14 December 2006, the Appeals Chamber found that “1) A decision pursuant to rule 81 (2) of the Rules of Procedure and Evidence authorising disclosure prior to the confirmation hearing of witness statements or other documents to the defence with redactions must state how the Pre-Trial Chamber came to such a conclusion; the reasoning should also state which of the facts before it led the Pre-Trial Chamber to reach its conclusion. 2. At the confirmation hearing, the Prosecutor, in principle, may rely on the unredacted parts of witness statements and other documents even if they were disclosed to the defence prior to the hearing with redactions authorised pursuant to rule 81 (2) of the Rules of Procedure and Evidence.” and reversed PTC I’s decision to the extent that it authorises the Prosecutor to disclose to the appellant witness statements and documents with redactions and directed PTC I to decide anew upon the authorisation of disclosure of witness statements and documents with redactions.”
     In Prosecutor v. Katanga, ICC PT. Ch. I, First Decision on the Prosecution Request for Authorisation to Redact Witness Statements, ICC-01/04-01/07-90, 7 December 2007, the Single Judge considered the Prosecutor's request for the authorisation of the Single Judge for redactions, pursuant to rules 81(2) and (4) in the statements of certain witnesses who have already been included in the witness protection program of the Court. The Single Judge had "the view that the Prosecution's change of approach is for the most part unjustified." and "in order for any redaction in any given statement to be authorised, the Single Judge must, first and foremost, have reached the conclusion that there is a risk that the disclosure to the Defence - at least at this stage of the proceedings - of the information sought to be redacted could
      (i) prejudice further or ongoing investigations by the Prosecution (rule 81(2) of the Rules);
      (ii) affect the confidential character of the information under articles 54, 72 and 93 of the Statute (rule 81(4) of the Rules); or
      (iii) affect the safety of witnesses, victims or members of their families (rule 81(4) of the Rules).
        Moreover, after ascertaining the existence of such a risk, the Single Judge will analyse whether
      (i) the requested redactions are adequate to eliminate, or at least, reduce such a risk;
      (ii) there is no less intrusive alternative measure that can be taken to achieve the same goal at this stage; and
     (iii) the requested redactions are not prejudicial to or inconsistent with the rights of the arrested person and a fair and impartial trial.
        Only when these three additional questions have been answered in the affirmative will the Single Judge authorise the redactions requested by the Prosecution." (paras. 3-4). This was repeated in Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, 23 January 2008, para. 6.
     In Prosecutor v. Katanga, Decision on the Prosecution Request for authorisation for redactions in the formatted version of the Prosecution Application for Warrant of Arrest for Germain Katanga,  21 December 2007, page 5, single Judge Sylva Steiner considered that the disclosure of information would “likely prejudice the Prosecution further investigations; that the redaction of this information is an adequate measure to minimize such risk; that, at this stage, there is no less intrusive alternative measure that can be taken to achieve the same goal; and that, in the view of the Single Judge, the redaction of this information is not prejudicial to or inconsistent with the rights of the Defence and a fair and impartial trial because authori-sation has been sought to redact only information which merely gives notice of certain Prosecution investigative activities.”
     The single judge stated in Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the filing of a revised public redacted version of the First Decision on Redactions, annex, 22 February 2008, annex, para. 3 that "[o]nly in a few instances where the Single Judge has found compelling reasons to depart from the practice in the [Dyilo] case ... will the Single Judge authorise the requested redactions." Furthermore, the judge stated that "in order for any redaction in any given statement to be authorised, the Single Judge must, first and foremost, have reached the conclusion that there is a risk that the disclosure to the Defence - at least at this stage of the proceedings - of the information sought to be redacted could
    (i) prejudice further or ongoing investigations by the Prosecution (rule 81(2) of the Rules);
    (ii) affect the confidential character of the information under articles 54, 72 and 93 of the Statute (rule 81(4) of the Rules); or
    (iii) affect the safety of witnesses, victims or members of their families (rule 81(4) of the Rules).
            Moreover, after ascertaining the existence of such a risk, the Single Judge will analyse whether
    (i) the requested redactions are adequate to eliminate, or at least, reduce such a risk;
    (ii) there is no less intrusive alternative measure that can be taken to achieve the same goal at this stage; and
    (iii) the requested redactions are not prejudicial to or inconsistent with the rights of the arrested person and a fair and impartial trial.
     Only when these three additional questions have been answered in the affirmative will the Single Judge authorise the redactions requested by the Prosecution." (para. 4)
       In order to carry out her analysis, the Single Judge classified the redactions requested by the Prosecution into the following six categories:
        (a) whereabouts of Prosecution witnesses;
        (b) names and identifying information of family members of Prosecution witnesses;
        (c) current whereabouts of family members of Prosecution witnesses;
        (d) potential Prosecution witnesses;
        (e) innocent third parties; and
        (f) further and ongoing investigations pursuant to rule 81(2) of the Rules.
        The last category includes the following two sub-categories:
        (i) information relating to the place where the interviews were conducted, and the names, initials and signatures of the persons present when the witness statements were taken; and
        (ii) other locations and incidents. (para. 5)
            It was also held that "rule 81(4) of the Rules does not empower the competent Chamber to authorise redactions whose sole purpose is to protect individuals other than Prosecution witnesses, victims or members of their families." (para. 54)
        In Prosecutor v. Katanga and Chui, ICC A. Ch., Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled "First Decision on the Prosecution Request for Authorisation to Redact Witness Statements, ICC-01/04-01/07-476, 13 May 2008, p. 3, the Appeals Chamber ruled that the Prosecutor "may apply to the Pre-Trial Chamber, pursuant to rule 81 (2) of the Rules of Procedure and Evidence, for a ruling as to whether the identities and identifying information of 'potential prosecution witnesses' must be disclosed to the Defence."
      In Prosecutor v. Abu Garda, ICC PT. Ch. I, Public Redacted Version of the 'First Decision on the Prosecution's Requests for Redactions" issued on 14 August 2009, ICC-02/05-02/09-58, 20 August 2009, paras. 14-15, the Single Judge agreed with the Prosecution that, at the stage of proceedings, with investigation still ongoing in regions that are facing ongoing armed conflicts, it is reasonable to beheve that the presence of OTP investigators in the field, if their identities are disclosed to the Defence, can be easily traced and, therefore, bring risk to the OTP staff and to ongoing investigations. Accordingly, the Single Judge granted, inter alia, authorisation to redact the names and signatures of the OTP investigators present when the interview was conducted, and other OTP staff members otherwise mentioned in such statements.
      In Prosecutor v. Gbagbo, ICC PT. Ch.,  First decision on the Prosecutor's requests for redactions and other protective measures, ICC-02/11-01/11-74-Red, 27 March 2012, para. 91, the Single Judge granted authorisation, pursuant to Rule 81(2) of the Rules, for the redactions of the names, initials, identifying information and signatures of the investigators, analysts, psychosocial experts and other members of the Office of the Prosecutor who assisted in the preparation or process of taking the witness statements. The Single Judge stated that "[i]n light of the general security situation in Côte d'lvoire,  it is reasonable to believe that, regardless of the logistical reasons also brought forward by the Prosecutor, the presence of staff members of the Office of the Prosecutor involved in the field, if their identities are disclosed to the Defence, could become easily traced and, therefore, bring risk to the ongoing investigations of the Prosecutor. The Single Judge believed that, at the investigatory stage, such redaction, "is the least intrusive protective measure available". (para. 87)

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, pp. 543-544.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 418-419.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 307-308.

Author:
Mark Klamberg

Updated:
15 June 2018

[149] 3. Where steps have been taken to ensure the confidentiality of information, in accordance with articles 54, 57, 64, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, such information shall not be disclosed, except in accordance with those articles. When the disclosure of such information may create a risk to the safety of the witness, the Court shall take measures to inform the witness in advance.
Sub-rule 81(3); acknowledges provisions which are critical to preserving confidentiality concerning investigations; orders; warrants; evidence; protection of arrested and summoned persons, accused, witnesses, victims; protective measures for the purpose of forfeiture; and protection of national security information. When previously restricted information is to be disclosed and this may the disclosure create a risk to the safety of the witness, the Court must take measures to inform the witness in advance.
   In Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Prosecution practice to provide to the Defence redacted versions of evidence and materials without authorisation by the Chamber, ICC-01/04-01/06-355, 25 August 2006, PTC I decided that the Prosecution should cease to disclose redacted documents to the Defence without previous authorisation by the Chamber.

Doctrine:
1. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 418-419.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 308-309.

Author:
Mark Klamberg

Updated:
15 June 2018

[150] 4. The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles 54, 72 and 93, and, in accordance with article 68, to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial.

5. Where material or information is in the possession or control of the Prosecutor which is withheld under article 68, paragraph 5, such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused.

6. Where material or information is in the possession or control of the defence which is subject to disclosure, it may be withheld in circumstances similar to those which would allow the Prosecutor to rely on article 68, paragraph 5, and a summary thereof submitted instead. Such material and information may not be subsequently introduced into evidence during the confirmation hearing or the trial without adequate prior disclosure to the Prosecutor.
Rule 81(4) provides for non-disclosure where the disclosure of information would compromise the safety of victims, witnesses, their families, or any other "person at risk on account of activities of the Court", Prosecutor v. Ntaganda, ICC T. Ch. VI, Decision on the Protocol establishing a redaction regime, ICC-01/04-02/06-411, 12 december 2014, para. 14. The purpose of rule 81(2) and (4) "is to prevent the Defence from accessing certain information", Prosecutor v. Katanga, ICC Pt. Ch. I, Decision on the Defence Motion for leave to Appeal the First Decision on Redactions, ICC-01/04-01/07-116, 19 December 2007, page 19 December 2007, page 5. For this purpose summaries may be used for the purpose of witness protection.
   The Appeals Chamber stated in Lubanga that "the authorisation of non-disclosure of information is the exception to this general rule". It also stated that "the factors pursuant to rule 81 (2) of the Rules of Procedure and Evidence apply mutatis mutandis to the authorisation of redactions sought pursuant to mle 81 (4) of the Rules of Procedure and Evidence and have been summarised briefly as follows: [A] thorough consideration of the danger that the disclosure of the identity of the person may cause; the necessity of the protective measure, including whether it is the least intrusive measure necessary to protect the person concemed; and the fact that any protective measures taken shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial", Prosecutor v. Lubanga, ICC A. Ch. Reasons for the "Decision on the Prosecutor's request for redactions for the purposes of disclosure", ICC-01/04-01/06-3115-Red, 19 June 2014, paras. 5 and 7.

The applicability of general principles and procedure 
In Prosecutor v. Lubanga, PT. Ch. I, Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Statute, ICC-01/04-01/06-108, 19 May 2006, PTC I established general principles governing applications to restrict disclosure. The single judge considered that (para. 13) "insofar as ex parte proceedings in the absence of the Defence constitute a restriction on the rights of the Defence, ex parte proceedings under rule 81 (4) of the Rules shall only be permitted subject to the Prosecution showing in its application that:
       i. it serves a sufficiently important objective;
       ii. it is necessary in the sense that no lesser measure could suffice to achieve a similar result; and
       iii. the prejudice to the Defence interest in playing a more active role in the proceedings must be proportional to the benefit derived from such a measure."
        However, the decision of the Single Judge (pages 19-20) that all future Prosecution applications under rules 81(2) and (4) should be filed inter partes so as to notify the Defence of the existence of the application and its legal basis was reversed by the Appeals Chamber. In Prosecutor v. Lubanga, A. Ch., Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled "Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence", 13 October 2006,  the Appeals Chamber found that a Pre-Trial Chamber acts erroneously in deciding how it will exercise its discretion with respect to maintaining future applications pursuant to rule 81 (2) and (4) of the Rules of Procedure and Evidence ex parte if the Chamber does not provide for a degree of flexibility for deciding, on a case-by-case basis, whether and to what extent the application be maintained ex parte.   
   In Prosecutor v. Lubanga, TC I, Decision on the procedures to be adopted for ex parte proceedings, 6 December 2007, para 12, TC I considered it "appropriate to act on the following principles, which can be shortly stated. First, ex parte procedures are only to be used exceptionally when they are truly necessary and when no other, lesser, procedures are available, and the court must ensure that their use is proportionate given the potential prejudice to the accused. Second, even when an ex parte procedure is used, the other party should be notified of the procedure, and its legal basis should be explained, unless to do so is inappropriate. Accordingly, to this limited but important extent there should be a flexible approach. Complete secrecy would, for instance, be justified if providing information about the procedure would risk revealing the very thing that requires protection. Furthermore, the Chamber stresses that it should always be provided with a full explanation of the legal basis and a factual justification for the ex parte procedure. If the applicant has not notified the other party of the fact of the application or its legal basis, then the reason for not doing so should also be set out for the Chamber's consideration. To the extent that victims have been granted the right to participate on particular issues or as regards particular areas of evidence, consideration should be given to including them in any relevant notification procedure (in the sense outlined above), and if this is inappropriate, providing the Bench with an explanation in writing as to why they have not been informed." TC I also noted that ex parte proceedings are expressly provided for in five situations, in accordance with Article 72 of the Statute and Rules 74, 81, 83, and 88 of the Rules (para. 4)
   In Prosecutor v. Ntaganda, ICC PT. Ch. II, Decision Ordering the Parties to Provide Risk Assessment with Respect of Witnesses and the Victims and Witnesses Unit to Submit Observations Thereupon, ICC-01/04-02/06-88, 21 August 2013, the Single Judge noted that "when submitting justified requests for redactions or other protective measures, the Prosecutor is expected to provide a security risk assessment carried out by her with respect to each and every witness whom she intends to rely on for the purposes of the confirmation hearing and in respect of whom she will request redactions to be granted pursuant to rule 81(4) of the Rules."

Scope of the sub-rule
The Appeals Chamber in Katanga and Chui ruled that "Rule 81(4) of the Rules of Procedure and Evidence should be read to include the words 'persons at risk on account of the activities of the Court' so as to reflect the intention of the States that adopted the Rome Statute and the Rules of Procedure and Evidence, as expressed in article 54(3)(f) of the Statute and in other parts of the Statute and the Rules, to protect that category of persons", Prosecutor v. Katanga and Chui, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled "First Decision on the Prosecution Request for Authorisation to Redact Witness Statements, 13 May 2008, para 1. The scope of Rule 81(4) concerning restrictions on disclosure was thus extended beyond its textual meaning in order to protect individuals at risk but to the detriment of the defence. The Appeals Chamber also gave precise guidelines about the factors that the Single Judge must take into consideration in deciding on the Prosecution's request for authorisation for redactions pursuant to rule 81 (2) and (4) of the Rules. Non-disclosure pursuant to rule 81(4) may only be authorised if, first of all, disclosure of the information concerned would pose a danger to the particular person. The alleged danger must involve an "objectively justifiable" risk to the safety of the person concerned. (paras. 71 to 73, 98, 99 and 111.) See also Prosecutor v. Lubanga, TC I, Redacted "Decision on the prosecution's application for non-disclosure of information filed on 7 May 2008", ICC-01/04-01/06-1834, 5 May 2009, para. 15-16; Prosecutor v. Katanga and Chui, Decision on the Defence Request to Redact the Identity of the Source of Three Items of Documentary Evidence, para. 10; Gbagbo, Decision on the "Requête de la Défense aux fins d'expurgation de deux attestations" and the "Demande aux fins de mesures de protection", 26 July 2012, para. 10 and Prosecutor v. Lubanga, A. Ch. Public Redacted Version: Decision on the Prosecutor's second request for redactions for the purposes of disclosure, ICC-01/04-01/06-3118-Red2, 8 December 2014, paras. 7-10.
   In Prosecutor v. Katanga, ICC PT. Ch. I, Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9, ICC-01/04-01/07-160 23 January 2008, p. 12, 23-24, the Single Judge considered that "the notion of "victim" under rule 81(4) of the Rules would also cover alleged victims of sexual offences which are unrelated to the charges in the case at hand” and authorised certain redactions specified in an ennex to the decision. The Appeals Chamber in  Prosecutor v. Katanga, ICC A. Ch., Judgment on the appeal of Mr Mathieu Ngudjolo against the decision of Pre-Trial Chamber I entitled "Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses 4 and 9", 27 May 2008, para. 1, confirmed the decision of the single Judge and found that: "The Prosecutor may apply to the Pre-Trial Chamber, pursuant to rule 81(4) of the Rules of Procedure and Evidence, for a ruling as to whether the names, identifying information and whereabouts of alleged victims of sexual offences who are not connected to the charges in the relevant case and to whom reference is made in the statements of Prosecution witnesses must be disclosed to the Defence, so as to protect the safety of such alleged victims as "persons at risk on account of the activities of the Court".

Means to ensure confidentiality
In Prosecutor v. Lubanga, ICC PT. Ch. I, First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81, ICC-01/04-01/06-437, 15 September 2006, the PTC considered that articles 61 (5) and 68 (5) of the Statute and rule 81 (4) of the Rules allows the Prosecution to request the Chamber to authorise (i) the non-disclosure of the identity of certain witnesses on whom the Prosecution intends to rely at the confirmation hearing and (ii) the reliance on the summary evidence of their statements, the transcripts of their interviews and/or the investigators' notes and reports of their interviews.  
       In Prosecutor v. Lubanga, A. Ch., 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", ICC-01/04-01/06-773, 14 December 2006, the Appeals Chamber found that “1. A decision authorising the non-disclosure of the identities of witnesses of the Prosecutor to the defence has to state sufficiently the reasons upon which the Pre-Trial Chamber based its decision. 2. The presentation by the Prosecutor of summaries of witness statements and other documents at the confirmation hearing is permissible even if the identities of the relevant witnesses have not been disclosed to the defence prior to the hearing, provided that such summaries are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” It reversed PTC I’s decision and ordered it to to decide anew upon the applications of the Prosecutor. The Appeals Chamber stated in para. 21 that for an authorisation of non-disclosure of the identity of a witness pursuant to rule 81 (4) the following three considerations should be addressed: “the endangerment of the witness or of members of his or her family that the disclosure of the identity of the witness may cause; the necessity of the protective measure; and why […] the measure would not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” See also Bemba, Decision on the Prosecution's Request to Apply Redactions to Screening Notes (ICC-01/05-01/08-689-Conf-Exp), 9 July 2010, para. 8; Mbarushimana, Decision on the Prosecution's applications for redactions pursuant to Rule 81(2) and Rule 81(4), 20 May 2011, paras. 11-21.
   Within the two broad categories of redactions identified according to the legal basis under which they are sought by the Prosecutor, the Single Judge in Prosecutor v. Banda and Jerbo, PTC I, First Decision on the Prosecutor's Requests for Redactions, ICC-02/05-03/09-58, 29 July 2010, identified five sub-categories in which the authorised redactions can be grouped:
A. Names and other identifying information of OTP and other Court staff members, whether present when the interview was conducted or otherwise mentioned, when applicable, pursuant to rule 81(2);
B. Specific locations at which interviews with the witnesses were conducted, pursuant to rule 81(2);
C. Names and other identifying information of witnesses for whom anonymity was granted in the case The Prosecutor V. Bahar Idriss Abu Garda;
D. Names and other identifying information of family members and other information of a personal nature pertaining to the OTP witnesses, pursuant to rule 81(4);
 E. Names and identifying information of other persons who might be put at risk on account of the activities of the Court, pursuant to rule 81(4).   
   In Prosecutor v. Lubanga, PT. Ch. I, Decision on the prosecution Request for Access to the Registry Recommendations, ICC-01/04-01/06-225, 31 July 2006, PTC I decided to grant the Prosecutor access to recommendations of the Registrar on protective measures for Prosecution witnesses.

Doctrine:
1. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 418-419.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 308-309.

Author:
Mark Klamberg

Updated:
15 June 2018

[151] Restrictions on disclosure of material and information protected under article 54, paragraph 3 (e)
1. Where material or information is in the possession or control of the Prosecutor which is protected under article 54, paragraph 3 (e), the Prosecutor may not subsequently introduce such material or information into evidence without the prior consent of the provider of the material or information and adequate prior disclosure to the accused.
2. If the Prosecutor introduces material or information protected under article 54, paragraph 3 (e), into evidence, a Chamber may not order the production of additional evidence received from the provider of the initial material or information, nor may a Chamber for the purpose of obtaining such additional evidence itself summon the provider or a representative of the provider as a witness or order their attendance.
3. If the Prosecutor calls a witness to introduce in evidence any material or information which has been protected under article 54, paragraph 3 (e), a Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality.
4. The right of the accused to challenge evidence which has been protected under article 54, paragraph 3 (e), shall remain unaffected subject only to the limitations contained in sub-rules 2 and 3.
5. A Chamber dealing with the matter may order, upon application by the defence, that, in the interests of justice, material or information in the possession of the accused, which has been provided to the accused under the same conditions as set forth in article 54, paragraph 3 (e), and which is to be introduced into evidence, shall be subject mutatis mutandis to sub-rules 1, 2 and 3. 
Rule 82 supplements Article 53(3)(e) ICC Statute and restricts disclosure of material and information obtained pursuant to that article. The first paragraph prevents the Prosecutor from subsequently introducing materials or information received under Article 54(3)(e) into evidence without the prior consent of the provider of the material or information and in the absence of adequate prior disclosure to the accused. In Lubanga, the Prosecution made broad use of Article 54(3)(e) to obtain a wide range of documents on a confidential basis, and to then identify from these materials evidence for use at trial. It defended this approach on the basis of Rule 82(1), which anticipates that information or materials obtained under Article 54(3)(e) may later be introduced as evidence after having obtained the information provider’s consent (Lubanga, ICC T. Ch. I, ICC-01/04-01/06-1401, 13 June 2008, par. 25, 73). Nevertheless, Trial Chamber I held that under Article 54(3)(e), the Prosecution “should receive documents or information on a confidential basis solely for the purpose of generating new evidence - in other words, the only purpose of receiving this material should be that it is to lead to other evidence (which, by implication, can be utilised), unless Rule 82(1) applies” (ibid., par. 71).
   The Prosecution appealed the decision, and argued that the Trial Chamber erroneously considered that Article 54(3)(e) only applies to a limited category of “lead or springboard material” (Lubanga, ICC A. Ch., ICC-01/04-01/06-1434, 14 July 2008). The Prosecution argued that the “Trial Chamber appeared to create two independent and mutually exclusive categories of material – “lead” or “springboard” materials on the one hand; and incriminatory or exculpatory evidence on the other – only one of which may be legitimately gathered under Article 54(3)(e)"  (ibid., par. 9). However, provided that Rule 82(1) allows the Prosecutor to introduce any “material or information [gathered under Article 54(3)(e)] into evidence”, with the consent of the information provider, it apparently allows for the use of material gathered under Article 54(3)(e) as direct evidence. Hence, there can be no distinction between “lead material” and material with evidentiary value (ibid., par. 8). However, the Appeals Chamber rejected this argument. It held that the Trial Chamber did not create a category of ‘springboard or lead material’ which it juxtaposed to evidence. Rather did the Trial Chamber acknowledge that under Rule 82(1) ICC RPE, material obtained under Article 54(3)(e) may later be used as evidence, if the information provider consents (Lubanga, ICC A. Ch., ICC-01/04-01/06-1486 (OA 13), 21 October 2008, par. 54).´
   The following paragraphs of Rule 82 seek to balance the interests of the information provider and the right of the Defence to challenge evidence which was obtained under Article 54(3)(e) ICC Statute.
   Paragraph 2 provides that in case the information provider agrees to the introduction of material or information in evidence, the Chamber may not subsequently ‘order the production of additional evidence received from the provider of the initial material or information’. Likewise, the Chamber may not ‘summon the provider or a representative of the provider as a witness or order their attendance’ in order to obtain such additional evidence.
   Paragraph 3 provides for the scenario where the Prosecutor calls a witness to introduce in evidence the material that was protected under Article 54(3)(e), but where the information provider subsequently consented to its introduction. In such a case, the ‘Chamber may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality’. The rationale of paragraphs 2 and 3 is to encourage the cooperation of information providers to assist the proceedings before the Court (Rastan, 2008, p. 447; Swoboda, 2008, p. 467). Pre-Trial Chamber I held in Lubanga that while Rule 82(3) allows the witness not to answer certain questions posed to him or her, this does not prevent the Chamber (i) to declare the testimony inadmissible in whole or in part or (ii) to assess the weight given to the witness in light of this factor (Lubanga, ICC PT. Ch. I, ICC-01/04-01/06-693-Anx1, 9 November 2006, p. 7). Paragraph 4 then seeks to clarify that the right of the accused to challenge evidence may not be curtailed further than the limitations in paragraphs 2 and 3 allow. Final paragraph 5 provides that the Defence may apply to the Chamber to order, in the interests of justice, that paragraphs 1 to  3 shall also apply mutatis mutandis to documents its seeks to introduce and which it received under the same conditions as set forth in Article 54(3)(e) ICC Statute.

Doctrine:
1. Rastan, Rod, Testing Co-operation: The International Criminal Court and National Authorities, Leiden Journal of International Law, vol. 21, 2008, p. 447.
2. Swoboda, Sabine, The ICC Disclosure Regime – A Defence Perspective, Criminal Law Forum, vol. 19, 2008, p. 467.

Author:
Karel De Meester

Updated: 
30 March 2016

[152] The Prosecutor may request as soon as practicable a hearing on an ex parte basis before the Chamber dealing with the matter for the purpose of obtaining a ruling under article 67, paragraph 2.
The second sentence of  Article 67(2) provides for a determination of the Court in cases where the Prosecutor seeks clarification whether evidence is of exculpatory nature.
   During the negotiations of the Rome Statute an early version described this as a hearing "ex parte" and "in camera", see Report of the Preparatory Committee on the Establishment of an International Criminal Court _Volume II Compilation of proposals, 14 September 1996, page 200. These words were omitted from article 67(2), rule 83 clarifies that matter by stating that the Prosecutor may request a hearing on an ex parte basis.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 524 and 534.
2. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 291.
3. William A. Schabas and Yvonne McDermott, "Article 67", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1677.

Author:
Mark Klamberg

Updated:
15 June 2018

[153] In order to enable the parties to prepare for trial and to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber shall, in accordance with article 64, paragraphs 3 (c) and 6 (d), and article 67, paragraph (2), and subject to article 68, paragraph 5, make any necessary orders for the disclosure of documents or information not previously disclosed and for the production of additional evidence. To avoid delay and to ensure that the trial commences on the set date, any such orders shall include strict time limits which shall be kept under review by the Trial Chamber.
Rule 84 acknowledge that disclosure is an ongoing obligation. It thus applies prior to the confirmation of charges proceedings, during subsequent preparations for trial and extends into the appeals stage. The Appeals Chamber in Lubanga stated that Rule 84 of apply to the appeals phase by virtue of article 83(1) of the Statute and rule 149(1), Prosecutor v. Lubanga, ICC A. Ch. Decision on Mr Thomas Lubanga's request for disclosure, ICC-01/04-01/06-3017, 11 April. 2013, para. 9; see also Ambos, p. 523.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 523-524 and 534.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 421-422.
3. William A. Schabas and Yvonne McDermott, "Article 67", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1677.

Author:
Mark Klamberg

Updated:
15 June 2018

[154] General remarks
The Rome Statute provides for the protection, participation, and reparation of victims. However, discussions on a definition of victims were only held during the elaboration of the Rules of Procedure and Evidence. The jurisprudence has subsequently clarified the resulting definition.

Single notion of “victims”
The Statute and the Rules do not embrace two different notions of “victims”, one for protection purposes pursuant to article 68(1) and rules 81, 87 and 88 of the Statute, and the other for the purpose of participation in situation and case proceedings. On the contrary, the notion of “victim” is the same both in respect of protection and participation in the proceedings [Katanga and Ngudjolo, ICC PT. Ch. I, 23 January 2008, para. 13]. In fact, the location of rule 85 in the Rules is indicative of a general provision relating to victims, applicable to various stages of proceedings [Lubanga, ICC App. Ch., 11 July 2008, para. 57], including reparations proceedings [Lubanga, ICC T. Ch. I, 29 August 2012, para. 217].

Compatibility of victim and witness status
The dual procedural status of victim and witness has been accepted by the Court [Lubanga, ICC T. Ch. I, 18 January 2008, para. 132-134] [Katanga and Ngudjolo, ICC PT. Ch. I, 23 June 2008, para. 18] [Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, para. 206]. Neither the Statute nor the Rules specify any restriction or limitation concerning the probative value that should be accorded to the evidence of a witness who is also a victim in the case, the dual status of witness and victim does not affect the probative value of witnesses’ statements and related documents [Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, paras. 208-209].

Victims already granted leave to participate
In circumstances in which victims have already been granted leave to participate in the proceedings before the Pre-Trial Chamber or the Trial Chamber, the Appeals Chamber will not enquire into their victim status pursuant to rule 85 [Lubanga, ICC App. Ch., 13 February 2007, para. 45] [Lubanga, ICC App. Ch., 16 May 2008, para. 37] [Darfur, ICC App. Ch., 18 June 2008, para. 53] [Democratic Republic of the Congo, ICC App. Ch., 30 June 2008, para. 92]. For interlocutory appeals, the Appeals Chamber will not itself make first hand determinations with respect to the status of victims since other factors are likely to inhibit the Appeals Chamber from taking the initiative to make such determinations, such as i) the fact that the applications for victim status and authorisation to participate in the trial proceedings are sub judice before other Chamber, or ii) the fact that maybe applications are not transmitted to the Appeals Chamber in terms of rule 89(1) of the Rules of Procedure and Evidence nor is the Appeals Chamber provided with any of the information required under regulation 86 of the Regulations of the Court [Lubanga, ICC App. Ch., 16 May 2008, para. 40]. In fact, it is the duty of a legal representative who applies for the participation of victims in an appeal to refer specifically to the relevant decisions granting victim status to each of the victims he or she represents in his application for participation [Bemba, ICC App. Ch., 1 February 2012, para. 12] [Banda and Jerbo, ICC App. Ch., 06 May 2013, para. 14]. If the legal representatives do not specify the victims they represent in an appeal referring to the decisions that granted the victims such status, the Appeals Chamber will reject the victims’ request to participate in the appeal at hand [Bemba, ICC App. Ch., 1 February 2012, para. 13]. By contrast, regarding appeals against decisions on acquittal or conviction or against sentence (article 81), the Appeals Chamber decides whether the criteria of rule 85 of the Rules of Procedure and Evidence are fulfilled with respect to new applicants [Lubanga, ICC App. Ch., 06 May 2013, para. 7].
   Along the same lines, the Trial Chambers will normally not inquire into the victim status of individuals authorized to participate in preceding phases of the proceedings, unless the parties raise concerns related to, for instance, the non-confirmation of some of the charges by the Pre-Trial Chamber [Katanga and Ngudjolo, ICC T. Ch. II, 26 February 2009, para. 13] [Bemba, ICC T. Ch. III, 22 February 2010, paras. 17-19].

Author
Enrique Carnero Rojo

Updated
7 June 2017

[155] (a) ‘Victims’ means natural persons(i)
Definition of natural person
The ordinary meaning of the term “natural person”, as it appears in rule 85 (a), is in French “[un] être humain tel qu’il est consideréré par le droit; la personne humaine prise comme sujet de droit, par opposition à la personne morale”, or, in English, “a human being”. A natural person is thus any person who is not a legal person [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 80]. Victims may also include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes [Ongwen, ICC PT. Ch. II, 4 March 2015, para. 17]

Deceased persons
Victims who are deceased can no longer be said to be participating and they must therefore be removed from the list of participating victims. However, this is not to say that the views and concerns expressed by the victims prior to their death are disregarded thereafter. The views and concerns expressed by victims prior to their death and considered by a Chamber remain part of the case record even if the deceased victim is no longer participating [Ngudjolo, ICC App. Ch., 23 September 2013, para. 25]. While deceased persons cannot be considered to be natural persons within the meaning of rule 85(a) [Darfur, ICC PT. Ch. I, 14 December 2007, para. 36], close relations of deceased persons may be considered to be victims under the Statute, the Rules, and the Regulations of the Court provided they fulfil the necessary criteria [Democratic Republic of the Congo, ICC PT. Ch. I, 31 January 2008, para. 24] [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 22].

Person’s identity
Proof of identity, kinship, guardianship and legal guardianship must be submitted with any application [Uganda, ICC PT. Ch. II, 10 August 2007, para. 16] [Democratic Republic of the Congo, ICC PT. Ch. I, 17 August 2007, para. 13]. Whether the identity of the applicant as a natural person appears duly established is an analysis of fact based on adequacy of the supporting evidence [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 12]. In principle, the identity of an applicant should be confirmed by a document i) issued by a recognised public authority, ii) stating the name and date of birth of the holder, and iii) showing a photograph of the holder. When the documents provided do not meet the above three criteria, the assessment on those applications is deferred until adequate proof of identities is submitted and/or a report on the identity documents available and administrative system is provided to the Court [Uganda, ICC PT. Ch. II, 10 August 2007, paras. 16 and 21] [Kony et al., ICC PT. Ch. II, 10 August 2007, paras. 16 and 20] [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 14] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 26] [Kony et al., ICC PT. Ch. II, 14 March 2008, para. 2]. Nonetheless, in areas of recent conflict where communication and travel may be difficult, it would be inappropriate to expect applicants to be able to provide proof of identity of the same type as would be required of individuals living in areas not experiencing the same types of difficulties [Democratic Republic of the Congo, ICC PT. Ch. I, 17 August 2007, para. 14] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 27] [Kony et al., ICC PT. Ch. II, 14 March 2008, para. 6]. Accordingly, the Court seeks to achieve a balance between the need to establish an applicant’s identity with certainty, on the one hand, and the applicant’s personal circumstances, on the other, taking into account the need of ensuring that victims are not unfairly deprived of an opportunity to participate for reasons beyond their control [Lubanga, ICC T. Ch. I, 18 January 2008, para. 87] [Lubanga, ICC App. Ch., 27 August 2013, para. 17]. As a result, where it is not possible for an applicant to acquire or produce documents of the kind set out above, the Court will consider a statement signed by two credible witnesses attesting to the identity of the applicant and including, where relevant, the relationship between the victim and the person acting on his or her behalf [Democratic Republic of the Congo, ICC PT. Ch. I, 17 August 2007, para. 15] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 88] [Ruto et al., ICC PT. Ch. II, 30 March 2011, para. 8] [Kenyatta et al., ICC PT. Ch. II, 30 March 2011, para. 8] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 25] [Lubanga, ICC App. Ch., 27 August 2013, para. 17]. This flexible approach to the establishment of the applicant’s identity extends to possible discrepancies between the application and identity document(s) submitted. Thus, minor discrepancies which do not call into question the overall credibility of the information provided by the applicant may be accepted [L. Gbagbo, ICC T. Ch. I, 6 March 2015, paras. 31-32] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, paras. 18-19].

Author: 
Enrique Carnero Rojo

Updated:
8 June 2017

[156] who have suffered harm(ii)
Definition of harm
The Rome Statute framework does not provide a definition of the concept of harm under Rule 85 of the Rules. In the absence of a definition, the Court has interpreted the term on a case-by-case basis in the light of article 21(3) of the Statute, noting that the determination of a single instance of harm suffered is sufficient to establish the status of victim at the situation stage [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, paras. 81-82] [Democratic Republic of the Congo, ICC PT. Ch. I, 31 January 2008, para. 3]. The Appeals Chamber has specified that the notion of “harm” in rule 85(a) of the Rules denotes injury, loss or damage suffered by a natural person, i.e. personal harm [Lubanga, ICC App. Ch., 11 July 2008, paras. 31-32] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 28] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 20]. Moreover, the notion of victim necessarily implies the existence of personal harm, but does not necessarily imply the existence of direct harm since the harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victim [Lubanga, ICC App. Ch., 11 July 2008, paras. 32 and 38].

Types of harm
 Pursuant to the 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the 2005 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, the harm suffered by victims may be individual/collective, material (such as economic harm), physical or psychological (including mental and emotional harm [Kony et al., ICC App. Ch., 23 February 2009, para. 34]), and/or may consist in a substantial impairment of their fundamental rights [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, paras. 116, 131, 145, 161, 172 and 182] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 92] [Lubanga, ICC App. Ch., 11 July 2008, para. 32] [Bemba, ICC PT. Ch. III, 15 December 2008, para. 70] [Ruto et al., ICC PT. Ch. II, 5 August 2011, para. 50] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 28] [L. Gbagbo, ICC T. Ch. I, 6 March 2015, para. 33] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 20]. Whether a victim applicant has suffered harm is an analysis of fact based on adequacy of the supporting evidence [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 12] and must be determined in light of the particular circumstances [Lubanga, ICC App. Ch., 11 July 2008, para. 32]. Moreover, the fact that harm is collective does not mandate either its inclusion or exclusion in the establishment of whether a person is a victim before the Court. The issue for determination is whether the harm is personal to the individual victim. The notion of harm suffered by a collective is not, as such, relevant or determinative [Lubanga, ICC App. Ch., 11 July 2008, para. 35].

Author:
Enrique Carnero Rojo

Updated:
16 June 2017

 [157] as a result of the commission of any crime(iii)
Assessment of sufficient causal link harm-crime
At the situation stage, it is necessary to establish that there are grounds to believe that the harm suffered is the result of the commission of crimes falling within the jurisdiction of the Court, but it is not necessary to determine in any great detail the precise nature of the causal link between the crime and the alleged harm [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 94] [Democratic Republic of the Congo, ICC PT. Ch. I, 21 January 2008, para. 3]. By contrast, at the case stage the victims must demonstrate that a sufficient causal link exists between the harm they have suffered and the crimes for which there are grounds to believe that the suspect/accused bears criminal responsibility and for which the Chamber has issued an arrest warrant/summons to appear, has confirmed the charges [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 100] [Lubanga, ICC PT. Ch. I, 29 June 2006, p. 6] [Democratic Republic of the Congo, ICC PT. Ch. I, 31 July 2006, p. 9] [Katanga and Ngudjolo, ICC PT. Ch. I, 23 January 2008, para. 14] or has rendered judgment [Lubanga, ICC App. Ch., 27 August 2013, paras. 18-19]. The causality between the commission of the crime and the harm suffered by the victim applicant cannot be established with precision in abstracto but must instead be assessed on a case-by-case basis, in light of the information available in the application form and the supporting material, when available [Ruto et al., ICC PT. Ch. II, 5 August 2011, para. 52] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, paras. 29 and 31]. In this regard, the identification of the perpetrators of the incidents alleged by the victim applicants constitutes a facet of the requisite link between the alleged harm and the alleged crimes against the suspect. However, it would be unfair, at the pre-trial stage of the proceedings, to place on victim applicants the onerous burden of identifying in a conclusive way or providing a considerable degree of precision with respect to the identification of those responsible for their victimisation [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 36]. Accordingly, whether the alleged harm appears to have arisen “as a result” of the event constituting a crime within the jurisdiction of the Court is assessed in light of the legal provisions of the Statute, using a pragmatic, strictly factual approach, whereby the alleged harm is held as ‘resulting from’ the alleged incident when the spatial and temporal circumstances surrounding the appearance of the harm and the occurrence of the incident seem to overlap, or at least to be compatible and not clearly inconsistent [Kony et al., ICC PT. Ch. II, 10 August 2007, paras. 12 and 14] [Lubanga, ICC App. Ch., 27 August 2013, para. 166] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 36]. Moreover, a victim applicant does not need to demonstrate that the alleged crimes charged by the Prosecutor are the only or substantial cause of the harm suffered; it is sufficient if the victim applicant demonstrates that the alleged crimes could have objectively contributed to the harm suffered [Bemba, ICC PT. Ch. III, 12 December 2008, paras. 76-77] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 31] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 22]. Nonetheless, when the harm alleged by the victim applicant is remote in relation to the alleged crimes, his or her application for participation will be rejected as it does not meet the requirement of rule 85 of the Rules [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 31].

Definition of indirect victims
Following the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, and the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, “indirect victims” are also recognised as victims before the Court, i.e. i) victims who have suffered harm as a result of the harm suffered by the direct victim, and ii) those persons that have suffered harm whilst intervening to help direct victims or to prevent the latter from becoming victims because of the commission of the crimes [Lubanga, ICC PT. Ch. I, 29 June 2006, pp. 7-8] [Katanga and Ngudjolo, ICC PT. Ch. I, 10 June 2008, para. 66] [Lubanga, ICC T. Ch. I, 08 April 2009, para. 51] [Abu Garda, ICC PT. Ch. I, 29 September 2009, para. 13] [Ruto et al., ICC PT. Ch. II, 5 August 2011, para. 54] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 30]. Rule 85(a) supports this conclusion because, by contrast with rule 85(b), it does not provide that natural persons must have “sustained direct harm” [Lubanga, ICC T. Ch. I, 18 January 2008, para. 91]. The relevant issue is whether the harm suffered is “personal” to the individual. If it is, it can attach to both direct and indirect victims [Lubanga, ICC App. Ch., 11 July 2008, para. 33].

Need for link harm-charged crime
In any event, the harm suffered by the victims must be directly linked to the crimes contained in the arrest warrant, summons to appear or document containing the charges preferred against the suspect or accused, or must have been suffered by intervening to help direct victims in the case or to prevent the latter from becoming victims because of the commission of said crimes [Democratic Republic of the Congo, ICC PT. Ch. I, 26 September 2007, p. 4] [Lubanga, ICC App. Ch., 27 August 2013, paras. 19 and 165]. The position adopted by the Trial Chamber in the Lubanga case, pursuant to which rule 85 would not have the effect of restricting the participation of victims to the crimes contained in the charges confirmed by the Pre-Trial Chamber [Lubanga, ICC T. Ch. I, 18 January 2008, para. 93] was eventually corrected by the Appeals Chamber. The latter found that whilst the ordinary meaning of rule 85 does not per se, limit the notion of victims to the victims of the crimes charged, the effect of article 68(3) of the Statute is that the participation of victims in the trial proceedings, pursuant to the procedure set out in rule 89(1) of the Rules, is limited to those victims who are linked to the charges [Lubanga, ICC App. Ch., 11 July 2008, para. 58] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 22]. Accordingly, the Chambers must determine whether an applicant is a victim because he or she suffered harm in connection with the particular crimes charged, and if so, whether the personal interests of the applicant are affected. If the applicant is unable to demonstrate a link between the harm suffered and the particular crimes charged, then even if his or her personal interests are affected by an issue in the trial, it would not be appropriate under article 68(3) read with rule 85 and 89(1) of the Rules for his or her views and concerns to be presented [Lubanga, ICC App. Ch., 11 July 2008, para. 64] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 27]. Nevertheless, it must be noted that discrepancies between dates or locations mentioned in a victim’s application to participate and those in the charged crimes are not necessarily fatal in terms of the merits of the applications by victims to participate in a particular case. It all depends on the overall evidence presented [Bemba, ICC T. Ch. III, 12 July 2010, para. 96] [Bemba, ICC T. Ch. III, 18 November 2010, paras. 52-55].

Author:
Enrique Carnero Rojo

Updated:
16 June 2017

[158] within the jurisdiction of the Court(iv)
Definition of Court’s jurisdiction
Whether the events described by each victim applicant constitute a crime within the jurisdiction of the Court is assessed in light of the legal provisions of the Statute [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 12]. To fall within the Court’s jurisdiction, a crime must meet the following conditions: i) it must be one of the crimes mentioned in article 5 of the Statute (the crime of genocide, crimes against humanity and war crimes), ii) the crime must have been committed within the time period laid down in article 11 of the Statute, and iii) the crime must meet one of the two alternative conditions described in article 12 of the Statute [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, paras. 85 and 93] [Democratic Republic of the Congo, ICC PT. Ch. I, 28 July 2006, p. 14] [Ruto et al., ICC PT. Ch. II, 5 August 2011, paras. 44-45]. With regard to the latter condition, given that the criteria laid down in article 12(2) of the Statute are alternative, it is unnecessary to determine the nationality of the persons who are or may be charged if the crimes were committed on the territory of a State Party [Democratic Republic of the Congo, ICC PT. Ch. I, 31 January 2008, para. 37].

Cross-references
Articles 15(3), 19(3), 43(6), 53(1)(c) and 2(c), 54(1)(b), 54(3)(b), 57(3)(c), 57(3)(e), 64(2) and (6)(e), 65(4), 68, 75, 79, 82(4), 87(4), 93(1)(j), 110(4)(b)
Rules 16-19, 43, 50, 59, 69, 72, 81(3)-(4), 86-99, 112(4), 119(3), 121(10), 131(2), 132bis(5)(c)-(6), 143-144, 194(3), 218(3)-(4), 221, 224

Doctrine
1. Silvia A. Fernández de Gurmendi, "Definition of Victims and General Principle", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 427-433.
2. Claude Jorda, and Jérômede Hemptinne, "The Status and Role of the Victim", in Antonio Cassese, Paola Gaeta, and John R.W.D. (Eds.) Jones, The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1387-1419.
3. David Donat-Cattin, "Article 68: Protection of victims and witnesses and their participation in the proceedings", in Triffterer (Eds.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, pp. 2008, 1294-1295.
4. Massidda, Paolina and Walter, Caroline, "Article 68: Protection et participation au procès des victimes et des témoins", in Julian Fernandez, and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, p. 1559.
5. Héctor Olásolo, and Alejandro Kiss, "Victims' participation according to the jurisprudence of the International Criminal Court", in Héctor Olásolo, Essays on International Criminal Justice, Hart Publishing, Oxford, 2012, pp. 145-155.
6. Rina Randriamiarisoa, "Rome Statute of the International Criminal Court – Article 68: Protection of victims and witnesses and their participation in the proceedings", in De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier, Brussels, 2013, pp. 332-337.
7. Anne-Marie De Brouwer,  and Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 1300-1308.
8. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, pp. 171-174, p.183.

Author:
Enrique Carnero Rojo

Updated:
8 June 2017

[159] Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.
The Rome Statute framework does not provide a definition of the concept of harm under Rule 85(b) of the Rules. However, in Prosecutor v. Lubanga, Decision on victim's participation, 18 January 2008, para. 92, TC I stated that "in accordance with Principle 8 of the Basic Principles [UN General Assembly resolution 60/147, 16 December 2005], a victim may suffer, either individually or collectively, from harm in a variety of different ways such as physical or mental injury, emotional suffering, economic loss or substantial impairment of his or her fundamental rights. This principle provides appropriate guidance."
      In Situation in Democratic Republic of the Congo, Redacted version of the Decision on 13 applications for victims' participation in proceedings relating to the situation in the Democratic Republic of the Congo, 18 August 2011, para. 34, Pre-Trial Chamber I ruled that the applicant organisation suffered economic loss as a result of one or more crimes within the Court's jurisdiction, pursuant to article 5 of the Statute. The organisation therefore meet the criteria of rule 85(b) of the Rules.

Crossreference
Article 68(1)

Author:
Mark Klamberg

Updated:
8 June 2017

[160] A Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence.(i)

General remarks
Articles 68(1) and 54(1)(b) of the Rome Statute make explicit reference to particularly vulnerable groups of victims and witnesses that may specially require protection for reason of their gender, age or the sexual nature of the crime. Rule 86 contains a general principle in this regard.

General principle: consideration of victims and witnesses’ needs
Rule 86 of the Rules establishes as a general principle that the Pre-Trial Chamber in making any direction or order, as well as the other organs of the Court in performing their functions under the Statute and the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68 of the Statute [Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 May 2006, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 22 September 2006, p. 4] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 May 2007, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 July 2007, p. 2-3] [Darfur, ICC PT. Ch. I, 23 May 2007, p. 2] [Democratic Republic of the Congo, ICC PT. Ch. I, 21 June 2007, p. 3]. There are particular specials needs to be taken into account for child and elderly victims, victims with disabilities, and victims of sexual and gender violence when they are participating in the proceedings [Katanga and Ngudjolo, ICC PT. Ch. I, 23 January 2008, para. 18]. The age and gender of the victims are also taken into account when reparation decisions addressing the harm they suffered are issued [Lubanga, ICC T. Ch. I, 7 August 2012, paras. 210-216]. The needs and interests of victims or groups of victims may sometimes be different or in opposition [Lubanga, ICC T. Ch. I, 18 January 2008, para. 127].

Analysis
Rule 86 – Identification of the needs of victims and witnesses
Privacy and safety
The privacy and safety of victims and witness is a need of the latter balanced by the Court when transmitting to the parties copies of the victims’ applications for participation in the proceedings pursuant to rule 89(1). In order to protect the victims’ privacy and safety pursuant to rule 86, strictly necessary redactions are usually made to the applications transmitted to the parties [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, paras. 20-21]. The same type of considerations are made when deciding on requests by victim applicants to know the types of challenges directed by the parties at their applications for participation [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 14]. The privacy and safety of victims have also been relied upon as a ground not to provide the Defence with copies of the unredacted applications for participation [Lubanga, ICC PT. Ch. I, 29 September 2006, p. 2].

Cross-references
Article 68

Doctrine
Fernández de Gurmendi, Silvia A., "Definition of Victims and General Principle", in Lee, Roy S., et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 433-434.

Author:
Enrique Carnero Rojo

Updated:
13 June 2017

[161] 1. Upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may order measures to protect a victim, a witness or another person at risk on account of testimony given by a witness pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the protective measure is sought prior to ordering the protective measure.

2. A motion or request under sub-rule 1 shall be governed by rule 134, provided that:

(a) Such a motion or request shall not be submitted ex parte;

(b) A request by a witness or by a victim or his or her legal representative, if any, shall be served on both the Prosecutor and the defence, each of whom shall have the opportunity to respond;

(c) A motion or request affecting a particular witness or a particular victim shall be served on that witness or victim or his or her legal representative, if any, in addition to the other party, each of whom shall have the opportunity to respond;

(d) When the Chamber proceeds on its own motion, notice and opportunity to respond shall be given to the Prosecutor and the defence, and to any witness or any victim or his or her legal representative, if any, who would be affected by such protective measure; and

(e) A motion or request may be filed under seal, and, if so filed, shall remain sealed until otherwise ordered by a Chamber. Responses to motions or requests filed under seal shall also be filed under seal.

3. A Chamber may, on a motion or request under sub-rule 1, hold a hearing, which shall be conducted in camera, to determine whether to order measures to prevent the release to the public or press and information agencies, of the identity or the location of a victim, a witness or other person at risk on account of testimony given by a witness by ordering, inter alia:

(a) That the name of the victim, witness or other person at risk on account of testimony given by a witness or any information which could lead to his or her identification, be expunged from the public records of the Chamber;

(b) That the Prosecutor, the defence or any other participant in the proceedings be prohibited from disclosing such information to a third party;

(c) That testimony be presented by electronic or other special means, including the use of technical means enabling the alteration of pictures or voice, the use of audio-visual technology, in particular videoconferencing and closed-circuit television, and the exclusive use of the sound media;

(d) That a pseudonym be used for a victim, a witness or other person at risk on account of testimony given by a witness; or

(e) That a Chamber conduct part of its proceedings in camera.
General remarks
There are several provisions in the Rome Statute that are relevant for the the protection of victims and witnesses, including Articles 64(2), 64(7), 68(2) and 69(2). Article 69(2) provides that the Rules of Procedure and Evidence shall provide more specific regulation of the protective regime. Rule 87 on "protective measures" meets this aim.. The provision is supplemented by rule 88 on "special measures".
   The two rules serve quite distinct purposes: protective measures seeks to protect the identity or location of a victims or witnes (or another person at risk) from the public or media, while the special measures rule is more flexible allowing the Court to engineer measures to facilitate the testimony of certain vulnerable victims and witnesses (Brady, p. 440).

Analysis
Sub-rule 1 regulates who can request protective measures. The-sub-rule alows the Chamber to order protective measures on the upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion.
   Sub-rules 1 and 3 clarifies the subject of protective measures: a victim, a witness or another person at risk on account of testimony given by a witness. In Prosecutor v. Abu Garda, ICC PT. Ch. I, Public Redacted Version of ''Decision on the Prosecutor's application for protective measures dated 22 September 2009'', ICC-02/05-02/09-117-Red, 9 October 2009, p. 4, the Pre-Trial Chamber decided, inter alia, that the identity of the witness would be kept confidential towards the public and media through expunging the name and address of the witness from the public records.
   Sub-rule 2 sets out the procedure for making an application for protective measures. Motion or requests cannot be submitted ex parte. This from the nature of Rule 87, it concerns protective measures vis-à-vis the press and the public, not protective measures vis-à-vis the accused or his or her counsel (or vis-à-vis the Prosecutor). There was a proposal that a majority of judges should agree to the protective measures min order to safeguard the principle of public hearings. This proposal was rejected which means that a single jduge can decide on these measures (Brady, p. 445).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 494.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 440.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 443.
4. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 360-362.
5. Donald K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1714-1715.

Author:
Mark Klamberg

Updated: 
20 June 2018

[162] 1. Upon the motion of the Prosecutor or the defence, or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion, and after having consulted with the Victims and Witnesses Unit, as appropriate, a Chamber may, taking into account the views of the victim or witness, order special measures such as, but not limited to, measures to facilitate the testimony of a traumatized victim or witness, a child, an elderly person or a victim of sexual violence, pursuant to article 68, paragraphs 1 and 2. The Chamber shall seek to obtain, whenever possible, the consent of the person in respect of whom the special measure is sought prior to ordering that measure.

2. A Chamber may hold a hearing on a motion or a request under sub-rule 1, if necessary in camera or ex parte, to determine whether to order any such special measure, including but not limited to an order that a counsel, a legal representative, a psychologist or a family member be permitted to attend during the testimony of the victim or the witness.

3. For inter partes motions or requests filed under this rule, the provisions of rule 87, sub-rules 2 (b) to (d), shall apply mutatis mutandis.

4. A motion or request filed under this rule may be filed under seal, and if so filed shall remain sealed until otherwise ordered by a Chamber. Any responses to inter partes motions or requests filed under seal shall also be filed under seal.

5. Taking into consideration that violations of the privacy of a witness or victim may create risk to his or her security, a Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence.
General remarks
Rule 88 on the special measures rule is allows the Court to engineer measures to facilitate the testimony of certain vulnerable victims and witnesses, for example traumatised victims or witnesses, Children, victims of sexual violence and the elderly. The rule stems from Article 68(2).

Analysis
Sub-rule 1 regulates who can request special measures. The-sub-rule alows the Chamber to order protective measures on the upon the motion of the Prosecutor or the defence or upon the request of a witness or a victim or his or her legal representative, if any, or on its own motion. 
   Sub-rule 1 clarifies the subject of protective measures: a traumatized victim or witness, a child, an elderly person or a victim of sexual violence.
   Sub-rule 2 sets out the procedure for making an application for special measures. In contrast to Rule 87, rule 88(2) allows the Chamber to hold a hearing in camera or ex parte.
   There is nothing on anonymous witnesses in this rule as there was no agreement on the matter during the negotiations. However, thiose advocating a borader use of rule 88 - to allow anonymous witnesses during trial - point to the phrase "measures such as, but not limited to" and the fact that it allows order to be made ex parte (Brady, p. 453).

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, p. 494.
2. Helen Brady, “Disclosure of Evidence”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 447-453.
3. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, p. 443.
4. Claus Kreβ, "Witnesses in Proceedings Before the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 375-376.
5. Donald K. Piragoff and Paula Clarke, "Article 69", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1714-1715.

Author:
Mark Klamberg

Updated: 
20 June 2018

[163] Application for the participation of victims in the proceedings

General remarks
The Rome Statute grants victims an explicit right to make representations, to submit observations, and to have their views and concerns presented and considered before the Court. However, particular details of the model for victim participation before the Court, such as when and in what manner victims may exercise their right to participate, are addressed in the Rules of Procedure and Evidence.
 
Nature and purpose of process to decide on applications for participation
The process to decide upon applications for participation of victims in the proceedings is prior to, distinct and separate from, the proceedings for the determination and exercise of the modalities of participation by those authorised to participate as victims [Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para. 5] [Darfur, ICC PT. Ch. I, 3 December 2007, para. 5] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 January 2008, pp. 6-7] [Darfur, ICC PT. Ch. I, 23 January 2008, pp. 6-7] [Democratic Republic of the Congo, ICC PT. Ch. I, 6 February 2008, p. 12] [Katanga and Ngudjolo, ICC PT. Ch. I, 27 February 2008, p. 6]. The application process is not related either to questions pertaining to the guilt or innocence of the suspect or accused person or to questions pertaining to the award of reparations [Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para. 6] [Darfur, ICC PT. Ch. I, 3 December 2007, para. 6] [Katanga and Ngudjolo, ICC PT. Ch. I, 27 February 2008, p. 6]. The  sole  purpose  of  the process to decide upon applications for participation is to determine whether the applicants can be  granted  authorisation to  participate  as victims in  the  relevant  proceedings [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 8] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 8] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 8]. Likewise, applicants are not required to exhaust all domestic remedies and are not required to indicate that they have not simultaneously submitted a claim before another body or court [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 7]. The specific procedural features of the application process (rule 89 of and regulation 86) are the result of this distinct and specific nature, object and purpose [Darfur, ICC PT. Ch. I, 3 December 2007, para. 8] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 January 2008, p. 4] [Darfur, ICC PT. Ch. I, 23 January 2008, p. 4]. As a consequence, some of the procedural safeguards that apply in criminal proceedings before the Court may not be applicable during the application process [Democratic Republic of the Congo, ICC PT. Ch. I, 23 January 2008, pp. 6-7] [Darfur, ICC PT. Ch. I, 23 January 2008, pp. 6-7]. Similarly, the complementarity principle applicable during the investigation and the trial is inapplicable to the application process because the object and purpose of the application process is confined to the determination of whether the applicant(s) can be authorized to participate in the relevant proceedings [Darfur, ICC PT. Ch. I, 3 December 2007, para. 11].

Systematic and casuistic approaches to the application process
The application process has been applied systematically and casuistically, depending on whether every time a natural or legal person intends to participate in any specific procedural activity in situation or case proceedings, i) this person must make an application for participation, ii) the parties must be given the opportunity to submit their observations on the application, and iii) the Chamber must decide on such application prior to conducting the specific procedural activity [Democratic Republic of the Congo, ICC PT. Ch. I, 23 January 2008, p. 6] [Darfur, ICC PT. Ch. I, 23 January 2008, p. 6].

Role of victim applicants
The role of victim applicants in the application process can by no means be confused with that of witnesses in criminal proceedings. In the application process, victim applicants make requests to be authorised to participate as victims in the proceedings, whereas witnesses in criminal proceedings are a means or evidence to prove the factual allegations on which the requests for the conviction or acquittal of the defendant are based [Darfur, ICC PT. Ch. I, 3 December 2007, para. 20] [Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para 11]. In fact, victim’s applications are not evidence in the case [Katanga and Ngudjolo, ICC PT. Ch. I, 30 September 2008, paras. 231-232].

Role of the VPRS
During the application process, the Victims Participation and Reparations Section of the Registry submits a report to the Chamber within the meaning of regulation 86(5), containing inter alia i) summaries of the matters contained in the original applications for participation, set out on an applicant-by-applicant basis (these will take the form of narrative summaries, along with a grid or a series of boxes dealing with formal matters, for ease of reference but in each case based solely on the application forms), ii) a grouping of applications when there are links founded on such matters as time, circumstance or issue, iii) any other information which may be relevant to a decision on the applications (for instance, as supplied by States, the Prosecutor and intergovernmental or non-governmental organisations pursuant to regulation 86(4)), and iv) any other assistance the VPRS can give to assist the Chamber in its task of assessing the merits of the applications, without expressing any views on the overall merits of the applications but directing the attention of the Chamber in a neutral way to particular issues or facts that it considered are likely to be relevant to the Chamber’s decision [Lubanga, ICC T. Ch. I, 9 November 2007, paras. 18-20] [Kenyatta et al., ICC PT. Ch. II, 30 March 2011, para. 21] [Uganda, ICC PT. Ch. II, 12 March 2012, para. 27] [Lubanga, ICC App. Ch., 06 May 2013, para. 7]. The report may also include v) an ex parte annex with an assessment by the Victims and Witnesses Unit of the need for protection of applicants who requested protective measures and recommendations in this regard, and vi) information about the Registrar’s inquiry as to any agreement by the applicants on legal representation [Lubanga, ICC App. Ch., 06 May 2013, paras. 8-9].

Alternatively, the Chamber may instruct the Registry to assess all victim applications for participation collected or otherwise received against the factual parameters of the case. Such applications by applicants who, in the Registry’s assessment, qualify as victims shall be provided to the Chamber as annexes to the transmission report provided for by regulation 86(5) of the Regulations of the Court. The applications that, in the view of the Registry, are incomplete and/or fall outside the scope of the case are not to be transmitted to the Chamber. In case the Registry, for any reason, is unable to determine whether a particular applicant or group(s) of applicants qualify as victims in the case, the Registry shall consult the Single Judge in order to obtain guidance as to whether the concerned application(s) should be transmitted or not to the Chamber and the parties [Ongwen, ICC PT. Ch. II, 3 September 2015, paras. 4-5 and 9] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, paras. 10-12].

Victims of the situation v. victims of the case
As a result of the application process, victims may be recognised as “victims of the situation” or as “victims of the case”. Victim applicants who seem to meet the definition of victim set out in rule 85 during the stage of investigation of a situation are “victims of the situation”, whereas those who seem to meet the definition of victims set out in rule 85 in relation to the relevant case are “victims of the case” [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 66]. With respect to incidents not included in the warrants of arrest issued in a case, the Chamber has to be satisfied that the victim applicants have suffered harm as a result of a crime within the jurisdiction of the Court, such crime having allegedly been committed within the temporal, geographical and, as the case may be, personal parameters of the relevant situation [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 106] [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 4]. However, the Appeals Chamber has clarified that victims cannot be acknowledged a general participatory right in the investigation of crimes committed in a situation referred to the Court, but only within the context of judicial proceedings taking place during an investigation [Democratic Republic of the Congo, ICC App. Ch., 19 December 2008, paras. 45-46] [Darfur, ICC App. Ch., 2 February 2009, para. 7]. 

Need for subsequent applications to participate
There is no need for a subsequent application to participate in a case arising from the situation where a victim applicant requesting participation in respect of a situation also requests to be authorized to participate in any case ensuing from the investigation of such a situation. The Chamber automatically address the question of whether the victim applicant seem to meet the definition of victim set out in rule 85 in connection with said case [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, paras. 67-68]. By contrast, victims must apply to participate in any subsequent interlocutory appeal, showing to the Appeals Chamber that their personal interests are affected by the issues on appeal, that such participation is appropriate and that the victims’ participation may occur in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial [Democratic Republic of the Congo, ICC App. Ch., 30 June 2008, para. 88]. However, victims need not apply to participate in interlocutory appeals arising under article 82(1)(b) or (d) of the Statute [L. Gbagbo and Blé Goudé, ICC App. Ch., 31 July 2015, para. 19].

Victims as “participants” v. victims as “parties”
Victims whose applications for participation with the Court are granted or, in some cases, who transmit their interest in participating to the Common Legal Representative of victims, become “participants” in the triggering and/or criminal proceedings of the Court. The term “participant” is used to distinguish the narrower legal status of the victims vis-à-vis that of the traditional participants in criminal proceedings, namely the Prosecution and the Defence. By contrast, victims participating in reparation proceedings after the conviction of an accused are not “participants” because their participatory rights are no more limited than those of the parties to the proceedings. Since the victims are expressly afforded the right to appeal an order for reparations rendered by a Trial Chamber as a result of the reparations proceedings, they become “parties” to the reparations proceedings and not, as is the case at other stages of the proceedings, participants who, under article 68(3) of the Statute, may present their views and concerns where their personal interests are affected [Lubanga, ICC App. Ch., 14 December 2012, para. 67]. The victims’ status as “parties” in reparations proceedings involves inter alia the possibility to question witnesses and introduce evidence without the limitations imposed on “victim participants” [Lubanga, ICC App. Ch., 14 December 2012, para. 69].

Burden of proof and indirect proof
Victims and their legal representatives must furnish the Court with the requisite information to demonstrate that they have suffered harm as a result of a crime within the jurisdiction of the Court, such crime having allegedly been committed within the temporal and territorial limits of the relevant situation or case [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, paras. 100 and 101]. For instance, when a Chamber is considering whether an applicant fulfils the criteria of rule 85 because he or she suffered emotional harm as the result of the loss of a family member, it must require proof of the identity of the family member and of his or her relationship with the applicant [Kony et al., ICC App. Ch., 23 February 2009, paras. 1 and 36] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 30]. In general, assessing the soundness of a given statement or other piece of evidence for this purpose has to comply with the general principle of law that the burden of proof of elements supporting a claim lies on the party making the claim [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 13] [Bemba, ICC PT. Ch. III, 12 December 2008, para. 31]. It is also accepted as a general principle of law that “indirect proof” (i.e. inferences of fact and circumstantial evidence) is admissible if it can be shown that the party bearing the burden of proof is hampered by objective obstacles from gathering direct proof of a relevant element supporting his or her claim; the more so when such indirect evidence appears to be based on a series of facts linked together and leading logically to a single conclusion [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 15].

Standard of proof
There is no statutory or regulatory provision addressing the standard of proof to be applied in order for victims to participate in the criminal proceedings before the Court [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 97] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 99]. At the investigation of the situation stage, victim applicants are recognised as victims only if they provide sufficient evidence to meet the criteria set forth in rule 85(a) at a relatively low standard of proof such as showing “grounds to believe” [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 99] [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, paras. 38 and 141]. Corroboration from the applicant or the parties is not a requirement for granting procedural status at this stage of the proceedings [Democratic Republic of the Congo, ICC PT. Ch. I, 04 November 2008, para. 27]. This standard, borrowed from article 55(2), is the least demanding one, since in articles 58 and 61 the tests become stricter as one moves from one stage of the proceedings to the next one [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 97] [Democratic Republic of the Congo, ICC PT. Ch. I, 20 April 2006, para. 58]. At the case stage, victim applicants are recognised as victims upon providing sufficient evidence to show that there are “reasonable grounds to believe” that they meet the criteria set forth in rule 85 [Lubanga, ICC PT. Ch. I, 20 October 2006, p. 9] [Democratic Republic of the Congo, ICC PT. Ch. I, 26 September 2007, p. 4]. Both standards only require that victim applicants demonstrate that the elements established by rule 85 are met prima facie, a standard also adopted on appeal [Darfur, ICC PT. Ch. I, 3 December 2007, para. 8] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 5] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 99] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 19] [Lubanga, ICC App. Ch., 27 August 2013, para. 16] [Lubanga, ICC App. Ch., 03 October 2013, para. 8] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 8]. During the investigation of the situation victim applicants are not required to determine in any great detail the precise nature of the causal link and the identity of the person(s) responsible for the crimes [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 27] [Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para. 8] because there are additional opportunities to further scrutinize the credibility and authenticity of the victim applicants’ identities and allegations within their applications throughout the subsequent proceedings [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 21]. In this regard, at the case stage the Chambers must be merely ensured that the necessary link is established between the harm alleged by the victim applicants and the charges brought against the accused [Lubanga, ICC T. Ch. I, 18 January 2008, para. 99]. All in all, applicants must only provide credible grounds for suggesting that they have suffered harm as a result of a crime committed within the jurisdiction of the Court [Lubanga, ICC App. Ch., 27 August 2013, para. 16]. For the participation of victims in reparations proceedings after a conviction, the Court has taken into account the non-criminal nature of said proceedings and has ruled that victim applicants must only meet the “balance of probabilities” standard to become participants in the reparations proceedings [Lubanga, ICC T. Ch. I, 07 August 2012, para. 253].

Application of standard of proof
The Chamber is in the best position to determine the nature and the quantum of evidence it deems necessary and adequate at each stage of the proceedings to establish the elements of rule 85 of the Rules of Procedure and Evidence. What evidence may be sufficient to establish the elements of rule 85 of the cannot be determined in the abstract, but must be assessed on a case-by-case basis taking into account all relevant circumstances, including the context in which the Court operates [Kony et al., ICC App. Ch., 23 February 2009, paras. 2 and 38] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 21].

Corroboration from the victim applicant or the parties is not required [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 27]. The Statute does not set forth general rules on the basis of which the reliability of relevant elements is to be assessed and victim applicants will not necessarily or always be in a position to fully substantiate their claim. Consequently, in order to determine whether the elements established by rule 85 are met prima facie, it is not necessary to assess the credibility of the victim’s statement or to engage in a process of corroboration stricto sensu of the victim’s application but rather to check the victim’s account of the events on the merits of its intrinsic coherence, as well as on the basis of information otherwise available to the Chamber, such as official reports [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 101] [Kony et al., ICC PT. Ch. II, 10 August 2007, paras. 13 and 15] [Democratic Republic of the Congo, ICC PT. Ch. I, 7 December 2007, para. 8] [Darfur, ICC PT. Ch. I, 14 December 2007, paras. 1-5] [Katanga and Ngudjolo, ICC PT. Ch. I, 10 June 2008, para. 67] [Bemba, ICC PT. Ch. III, 15 December 2008, para. 31] [Abu Garda, ICC PT. Ch. I, 29 September 2009, para. 14].

Regarding the contextual elements of the crimes within the jurisdiction of the Court, explicit factual references to them are often not present in the victims’ applications, but the Chambers analyse the applications themselves, the observations submitted by the Defence and the Prosecutor, any additional information that they may receive pursuant to regulation 86(7) of the Regulations, and any information in the application itself from which the Chambers may directly infer said contextual elements [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, paras. 28-29]. Taking into account that any prima facie inference from the facts alleged by a victim applicant about the existence of the contextual elements of a crime within the jurisdiction of the Court is merely based on the aforementioned preliminary analysis, a decision to grant an application for participation in no way predetermines any factual findings that could be made by a Chamber in any judgment on the merits [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 30] [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 29].

With regard to the identity of the alleged perpetrators, the ruling of the Chamber hinges upon an overall assessment of the account of events as described by the victim applicants, the intrinsic coherence of their applications, the parameters and the circumstances surrounding the alleged events alongside the Chamber’s findings regarding the material time and place of the crimes charged [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 39].

Deadline for applications
Although there is no deadline in the legal texts of the Court for the filing of applications (see regulation 86(3) of the Regulations of the Court), deadlines have usually been set prior to the start of the confirmation hearing [Lubanga, ICC PT. Ch. I, 20 October 2006, pp. 12-13] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 188-189], the submission of closing arguments [Bemba, ICC T. Ch. III, 21 July 2011, para. 25], and the start of the sentencing and reparations proceedings [Lubanga, ICC T. Ch. I, 27 January 2012, para. 5], on the grounds inter alia that it will be more difficult for the Chambers to be able to consider and decide on new applications during said hearings. Nonetheless, the Appeals Chamber has on occasion found it to be in the interests of the proper administration of justice to consider applications submitted during the trial proceedings, where the Trial Chamber stated that it would rule on the applications for the purposes of the sentencing proceedings, but the Registrar did not re-submit the applications nor did the Trial Chamber rule on the applications during said proceedings [Lubanga, ICC App. Ch., 06 May 2013, para. 5].

Withdrawal of applications
Similarly, the legal texts of the Court do not expressly provide the victims with the possibility to withdraw the applications that they may have submitted to the Court. However, the Court has reiterated that participation is not a once-and-for-all event, but rather should be decided on the basis of the evidence or issue under consideration at any particular point in time [Lubanga, ICC T. Ch. I, 18 January 2008, para. 101] [Ruto and Sang, ICC T. Ch. V, 03 October 2012, para. 13] [Kenyatta and Muthaura, ICC T. Ch. V, 03 October 2012, para. 12] [Ruto and Sang, ICC T. Ch. V(A), 14 November 2013, para. 15]. Accordingly, victims may register, withdraw or re-register their desire to participate in the proceedings at any time provided that such desire is free and is communicated to the Court in a clear and reliable manner [Ruto and Sang, ICC T. Ch. V(A), 14 November 2013, paras. 16-18].

Author:
Enrique Carnero Rojo

Updated:
28 August 2017

[164] 1. In order to present their views and concerns, victims shall make written application to the Registrar
Purpose of the rule
Rule 89 of the Rules is specifically fashioned to the provisions of article 68 of the Statute and aims to regulate the steps that must be taken in order for a victim to participate in judicial proceedings [Democratic Republic of the Congo, ICC App. Ch., 19 December 2008, para. 46].

Required content of an application
An application for participation is considered complete if it contains i) the identity of the applicant, ii) the date of the crime(s), iii) the location of the crime(s), iv) a description of the harm suffered as a result of the commission of any crime within the jurisdiction of the Court, v) proof of identity, vi) the express consent of the victim if the application is made by a person acting with the consent of said victim, vii) proof of kinship or legal guardianship if the application is made by a person acting on behalf of a victim who is a child or proof of legal guardianship if the victim is disabled, and viii) a signature or thumb-print of the victim applicant on the document, at the very least, on the last page of the application [Democratic Republic of the Congo, ICC PT. Ch. I, 17 August 2007, para. 12] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 26] [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 16] [Bemba, ICC T. Ch. III, 22 February 2010, para. 35] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 22]. It is not required that the applications are filed using only standardised translations and qualified interpreters to be found to be complete [Darfur, ICC PT. Ch. I, 14 December 2007, para. 24]. Moreover, it is not per se erroneous for a Chamber to require specific evidence in respect of one of the elements of rule 85 of the Rules of Procedure and Evidence, but not to require the same specific evidence in respect of the other elements of that rule, in certain circumstances [Kony et al., ICC App. Ch., 23 February 2009, para. 38].

Possible additional information requested by Court
Moreover, the Chamber has the power, pursuant to regulation 86(7) of the Regulations, to request, whenever necessary, additional information from applicants before deciding on their application [Darfur, ICC PT. Ch. I, 3 December 2007, paras. 16] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 20] [Democratic Republic of the Congo, ICC PT. Ch. I, 31 January 2008, para. 7]. Nonetheless, further information is requested by the Chamber pursuant to regulation 86(7) only when there are indications that there might have been a misunderstanding or a misrepresentation of the victim applicants’ statements [Darfur, ICC PT. Ch. I, 14 December 2007, para. 40]. For instance, information concerning i) the conditions under which certain victim applicants had been granted asylum in a third country, ii) the qualification of the interpreters who were mentioned in their application forms, iii) the applicants’ prior statements, if any, to other international institutions, iv) the identity and role of persons listed as witnesses during the application process, and v) the resubmission of an application if a witness has a conflict of interest were found to be unnecessary for a Chamber’s decision on the applications [Darfur, ICC PT. Ch. I, 3 December 2007, para. 17].

No need to file application in person
No provisions of the Statute, the Rules or the Regulations require that the application for participation be filled in by the applicants themselves or that, in case the applicants received the assistance of a person in filling in their forms, the application contains the name and signature of this person who had assisted the applicant. However, when there are indications that the applicant might have been misunderstood or when there is a doubt as to the extent of the person’s assistance in the filling in of the applications for participation, the Chamber will either reject the application for participation or defer its decision until further information pursuant to Regulation 86(7) of the Regulations is received [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 23].

Need to express intention to participate
The application must contain an explicit intention to participate in the proceedings. Faced with the lack thereof, the Chamber cannot consider the applications [Lubanga, ICC PT. Ch. I, 20 October 2006, p. 8]. By contrast, victim applicants are not required, unlike applicants before the European Court of Human Rights and the Inter-American Court on Human Rights, to exhaust all domestic remedies and to indicate that they have not simultaneously submitted a claim before another body or court [Darfur, ICC PT. Ch. I, 3 December 2007, para. 12] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 23] [Democratic Republic of the Congo, ICC PT. Ch. I, 31 Janury 2008, para. 8].

Need for application to participate in appeal
In order for victims to participate in interlocutory appeals (articles 82(1)(b) and (d)), the Court initially found that pursuant to article 68(3), victim applicants must file an application for participation in the appeal at hand in order for the Appeals Chamber to determine the appropriateness of the victims’ participation because the reference to a “participant” or to the filing of a “response” within regulations 64 and 65 does not mean that victims have an automatic right to participate in an interlocutory appeal under articles 82(1)(b) or (d) of the Statute [Lubanga, ICC App. Ch., 13 February 2007, paras. 43 and 46] [Lubanga, ICC App. Ch., 16 May 2008, paras. 12-13] [Darfur, ICC App. Ch., 18 June 2008, para. 23] [Democratic Republic of the Congo, ICC App. Ch., 30 June 2008, paras. 32, 34 and 36]. However, s the Appeals Chamber interpreted the term “participant” in regulations 64(4) and 65 (5) of the Regulations of the Court to include victims. The Appeals Chamber considers that this interpretation of these regulations obviates the need for a “specific determination” by the Appeals Chamber, pursuant to article 68(3) of the Statute, on the appropriateness or otherwise of victim participation in a particular interlocutory appeal [L. Gbagbo and Blé Goudé, ICC App. Ch., 31 July 2015, para. 16]. Consequently, for appeals arising under article 82(1)(b) and (d) of the Statute, victims who have participated in the proceedings that gave rise to the particular appeal need not seek the prior authorisation of the Appeals Chamber to file a response to the document in support of the appeal [L. Gbagbo and Blé Goudé, ICC App. Ch., 31 July 2015, para. 19]. Applications for participation in any other interlocutory appeals should in principle be made as soon as possible after the appeal is filed [Lubanga, ICC App. Ch., 13 February 2007, para. 46] [Lubanga, ICC App. Ch., 16 May 2008, para. 12] [Darfur, ICC App. Ch., 18 June 2008, para. 23] [Democratic Republic of the Congo, ICC App. Ch., 30 June 2008, para. 36] [Bemba, ICC App. Ch., 06 March 2012, para. 10] and in any event before the date of filing of the response to the document in support of the appeal [Lubanga, ICC App. Ch., 16 May 2008, para. 15] [Darfur, ICC App. Ch., 18 June 2008, para. 26] [Democratic Republic of the Congo, ICC App. Ch., 30 June 2008, para. 39] [Bemba, ICC App. Ch., 06 March 2012, para. 10]. The Appeals Chamber will not ordinarily accept requests for participation filed late and the legal representatives must exercise due diligence regarding applicable timelines and file their applications on or before the day the response to the document in support of the appeal is due [Bemba, ICC App. Ch., 06 March 2012, para. 10].

No need for application to participate in some proceedings
It must however be noted that in respect of particular stages, such as the Prosecutor’s opening of a an investigation proprio motu, proceedings under article 53 of the Statute, challenges to the jurisdiction or the admissibility of a case, the confirmation of the charges, conditional release, etc. an application to participate and a decision pursuant to rule 89 of the Rules is not a pre-condition to participate for victims having communicated with the Court [Uganda, ICC PT. Ch. II, 10 August 2007, paras. 92-94] [Kony et al., ICC PT. Ch. II, 10 August 2007, paras. 92-94] [Kony et al., ICC PT. Ch. II, 21 October 2008, p. 7] [Kenya, ICC PT. Ch. II, 10 December 2009, paras. 5-7] [Côte d’Ivoire, ICC PT. Ch. III, 06 July 2011, para. 8]. The Chambers always retain the power under rule 93 to request the views of victims who may not have applied to participate in the proceedings [Uganda, ICC PT. Ch. II, 10 August 2007, para. 102] [Lubanga, ICC T. Ch. I, 25 October 2007, para. 2]. Moreover, in the Ruto and Sang case and in the Kenyatta case, the Court read article 68(3) and rule 89 as applicable only to victim applicants willing to present their views and concerns in person before the Court. Consequently, except for the said category of victims, in the Ruto and Sang case and in the Kenyatta case victim applicants seeking to participate through a common legal representative are no longer required to complete the standard application form. Instead, they must contact the common legal representative, who decides whether there is reason to believe that victim applicants qualify as victims in the case and can therefore be represented during the trial phase [Ruto and Sang, ICC T. Ch. V, 03 October 2012, para. 53] [Kenyatta and Muthaura, ICC T. Ch. V, 03 October 2012, para. 52].

Author:
Enrique Carnero Rojo

Updated:
28 August 2017

 [165] Compulsory transmission of copies of applications
The Court’s only obligation under rule 89(1) is to order the Registrar to provide the Prosecution and the Defence with copies of the applications, such that they may make observations on the applications within a time limit set by the Chamber [Darfur, ICC PT. Ch. I, 21 August 2007, pp. 3-4] [Darfur, ICC PT. Ch. I, 3 December 2007, para. 14] [Democratic Republic of the Congo, ICC PT. Ch. I, 31 January 2008, para. 7] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 2] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 13]. This rule does not require the Chamber to provide, or to order the applicants to provide, to the Prosecution or the Defence, for the purpose of submitting their observations, information extrinsic to the applications themselves [Darfur, ICC PT. Ch. I, 3 December 2007, para. 15] [Darfur, ICC PT. Ch. I, 14 December 2007, para. 20] [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 7].

Discretionary transmission of VPRS report
Along these lines, the reports on victims’ applications prepared by the VPRS, which are meant to assist the Chamber in issuing only one decision on a number of victim applications, are not, in principle, disclosed to the parties or the participants because i) rule 89 does not direct the Court to transmit said reports to the participants, [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 38] [Darfur, ICC PT. Ch. I, 21 August 2007, pp. 3-4] [Lubanga, ICC T. Ch. I, 9 November 2007, paras. 22, 24-25], ii) the reports may influence the participants in their assessment of the applications, and iii) the reports are likely to contain information not set out in the applications which should be treated as confidential or which may require protection for some other reasons [Lubanga, ICC T. Ch. I, 9 November 2007, paras. 25-26]. Nonetheless, should any particular fact or matter emerge relevant to the reports that a Chamber considers justifies disclosure, that will occur, subject always to the Chamber having secured an appropriate level of protection for confidential information, the disclosure of which could be harmful to the welfare of individual victims [Lubanga, ICC T. Ch. I, 9 November 2007, para. 26]. On occasion, the Court has transmitted to the Prosecution and the Defence a redacted version of the report [Lubanga, ICC App. Ch., 06 May 2013, para. 10] and an unredacted version thereof to the legal representative of the relevant victims [Lubanga, ICC App. Ch., 27 August 2013, paras. 167 and 169].

Right to respond to applications
Under rule 89(1) of the Rules, the Prosecutor and the Defence have a right to reply to any application for participation within a time limit to be set by the Pre-Trial Chamber [Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 2-3] [Darfur, ICC PT. Ch. I, 23 May 2007, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 May 2007, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 23 July 2007, p. 3] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 2]. The Prosecution and the Defence normally have a period between 30 days or 7 days from the notification of the applications to submit their observations [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 52] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 13]. In order to represent and protect the interests of the Defence during the application proceedings at the initial stage of an investigation, it may be necessary to appoint an ad hoc counsel for the Defence under regulation 76(1) [Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 4; Kony et al., ICC PT. Ch. II, 1 February 2007, para. 16] or to grant the Office of Public Counsel for the Defence the opportunity to reply to applications for participation [Democratic Republic of the Congo, ICC PT. Ch. I, 23 May 2007, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 26]. Dealing with requests to participate in interlocutory appeals, the Prosecutor and the Defence are entitled to reply to the application pursuant to rule 89(1) once the application is received [Lubanga, ICC App. Ch., 13 February 2007, para. 47].

Transmission of redacted/unredacted applications
In order to balance the competing obligations to, on the one hand, transmit copies of the applications to the Prosecution and the Defence for them to reply and, on the other hand, to protect the privacy of victims and witnesses and take into account their needs, proportionate redactions to the applications for participation are sometimes made before transmitting them to the parties [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, paras. 20-21]. However, the scope of the redactions cannot exceed what is strictly necessary in light of the applicant's security situation and must allow for a meaningful exercise by the Prosecution and the Defence of their right to reply to the application for participation [Democratic Republic of the Congo, ICC PT. Ch. I, 22 July 2005, p. 4] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 May 2006, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 22 September 2006, p. 5]. It is also necessary to distinguish between (i) the non-disclosure of the identity of the applicants during the application for participation procedure, in accordance with article 68(1) of the Statute and rule 89(1) of the Rules, and (ii) the non-disclosure of the identity of the applicants in accordance with rules 87 and 88 of the Rules, once a) they have been granted the status of victim in the case and b) that the manner in which they will participate has been defined [Lubanga, ICC PT. Ch. I, 9 November 2006, p. 6].
   In respect of applications to participate during the investigation of a situation, un-redacted copies of the applications are usually provided to both the Prosecution and the Defence [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, paras. 20 and 29] [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 22]. In respect of applications to participate in case proceedings, sometimes applications are transmitted at the same time to the Prosecution and the Defence with redactions on any information suitable to lead to the applicants’ identification because of the need to preserve the equality of arms between the parties [Kony et al., ICC PT. Ch. II, 1 February 2007, paras. 21-22 and 25]. By contrast, in other cases a differentiated regime is applied, providing un-redacted copies of the applications to the Prosecution and ordering the transmission of redacted applications only to the Defence, especially so if an applicant has expressed security concerns in case his identity and involvement with the Court were to be known to the Defence [Lubanga, ICC PT. Ch. I, 29 September 2006, p. 3] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 6] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 13]. The Defence is usually provided with an un-redacted version of the applications when it is represented by the OPCD [Darfur, ICC PT. Ch. I, 23 May 2007, p. 3].

Transmission of complete applications
In any event, with a view to ensure that the Prosecution and the Defence are able to exercise their right to make observations, only complete applications are transmitted to them, subject to the Registry being able to gather the required information [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 37].

No transmission to victim applicants nor right to respond
Victim applicants are normally not provided with the observations made by the Prosecution and the Defence on their applications because when confidential information concerns all applicants, this information cannot be notified to persons who are not connected to all applicants [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, paras. 12-13] and because providing each applicant with redacted observations on their respective application affects the expeditiousness and effectiveness of the proceedings and is extremely impractical with a high number of victim applicants [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 15]. Moreover, victim applicants are not entitled to respond to the observations of the Prosecution and the Defence on their applications because as applicants they are still not permitted to participate in the proceedings [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 16] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, p. 3] [Kenyatta et al., ICC PT. Ch. II, 01 July 2011, paras. 6-8].

Author:
Enrique Carnero Rojo

Updated:
28 August 2017

[166] Rights of victim participants
Once a victim applicant is found to meet the requirements in rule 85 (rule 89(2)), the Court must determine the proceedings and the manner in which victims are authorized to participate [Lubanga, ICC App. Ch., 06 May 2013, para. 6]. Victims authorized to participate may present their views and concerns [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 71] [Uganda, ICC PT. Ch. II, 19 December 2007, para. 44], file documents [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 71*] and request the Chamber to order specific proceedings or measures in the framework of an investigation [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 75*] or a case whenever an issue arises that affects their interests individually or collectively [Lubanga, ICC T. Ch. I, 18 January 2008, para. 117]; and for that purposes should, in essence, receive information in the same way as the Chamber and the prosecution to the extent that their interests are affected at a particular stage in the proceedings [Lubanga, ICC T. Ch. I, 20 March 2008, para. 39].
   In particular, victims authorised to participate may i) have access only to public documents and filings in the proceedings, irrespective of whether the victims are represented by the OPCV or not [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 6] [Uganda, ICC PT. Ch. II, 19 December 2007, para. 38] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 105] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 February 2008, paras. 3-4] [Lubanga, ICC T. Ch. I, 6 March 2008, para. 40] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 42] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 55], although victims may request and be granted access to confidential filings which are of material relevance to their personal interests [Uganda, ICC PT. Ch. II, 19 December 2007, para. 38] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 106] [L. Gbagbo, ICC PT. Ch. I, 15 August 2012, para. 11], and sometimes victims have directly been granted access to confidential and ex parte filings [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 128-131 and 149-151] [Ngudjolo, ICC App. Ch., 06 March 2013, para. 7]; ii) have access to the public evidence and access to precisely identified evidence in the possession of the Prosecution when the latter is requested by participating victims as relevant to their personal interests which the Court has permitted to be investigated during the proceedings [Lubanga, ICC T. Ch. I, 18 January 2008, para. 111] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 127] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 42] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 55]; iii) attend the hearings, including, depending on the circumstances and upon consultation with the Prosecution and the Defence, closed and ex parte hearings [Lubanga, ICC T. Ch. I, 18 January 2008, para. 113] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 140 and 149] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 42] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 48]; iv) make written and oral submissions to the Chambers, even of a confidential or ex parte character, by way of an application to that effect [Lubanga, ICC T. Ch. I, 18 January 2008, para. 114] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 134, 141-143] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, paras. 52 and 60] [Lubanga, ICC App. Ch., 13 December 2012, para. 5] [Ngudjolo, ICC App. Ch., 06 March 2013, para. 5] [L. Gbagbo, ICC PT. Ch. I, 15 August 2012, para. 12] [L. Gbagbo, ICC App. Ch., 29 August 2013, para. 11] including in relation to observations filed by amici curiae pursuant to rule 103 of the Rules [Gaddafi and Al-Senussi, ICC App. Ch., 23 August 2013, para. 9] [L. Gbagbo, ICC App. Ch., 10 October 2013, para. 11] and to trigger the legal recharacterisation of the facts and circumstances described in the charges [Lubanga, ICC T. Ch. I, 14 July 2009, para. 33] [Lubanga, ICC App. Ch., 08 December 2009] [Lubanga, ICC T. Ch. I, 08 January 2010, para. 27] or the exercise of the Chamber’s powers under article 61(7)(c) [Ruto et al., ICC PT. Ch. II, 19 August 2011, paras. 9-10]; v) make opening and closing statements at the confirmation of charges hearing [Lubanga, ICC PT. Ch. I, 7 November 2006, pp. 4 and 7] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 142] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 42] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 51] and during the trial [Lubanga, ICC T. Ch. I, 18 January 2008, para. 117]; vi) tender and examine evidence if in the view of the Chamber it will assist it in the determination of the truth, and if in this sense the Court has “requested” the evidence during the trial [Lubanga, ICC T. Ch. I, 18 January 2008, para. 108] [Lubanga, ICC App. Ch., 11 July 2008, para. 94] [Katanga and Ngudjolo, ICC App. Ch., 16 July 2010, para. 40] but not during the confirmation hearing [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 101-103], following a) a discrete application, b) notice to the parties, c) demonstration of personal interests that are affected by the specific proceedings, d) compliance with disclosure obligations and protection orders, e) determination of appropriateness, and f) consistency with the rights of the accused and a fair trial [Lubanga, ICC App. Ch., 11 July 2008, para. 104]; vii) examine the evidence before the Chambers without being limited to making questions on reparations issues and being allowed to make questions whenever their personal interests are engaged by the evidence under consideration [Lubanga, ICC T. Ch. I, 18 January 2008, para. 108] [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 135-139] [Bemba, ICC T. Ch. III, 09 September 2011, para. 15]; viii) challenge the admissibility or relevance of evidence when their interests are engaged, in accordance with articles 68(3) and 69(4) of the Statute [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 134] [Lubanga, ICC App. Ch., 11 July 2008, para. 94], following a successful application for this purpose when the Chamber considers it appropriate [Lubanga, ICC T. Ch. I, 18 January 2008, para. 109]; and xi) provide testimony as witness under oath [Lubanga, ICC T. Ch. I, 18 January 2008, para. 108] [Lubanga, ICC App. Ch., 11 July 2008, paras. 4 and 104], either on their own initiative after showing that the evidence they seek to present affects their personal interests and is directly related to the charges brought against the accused [Lubanga, ICC T. Ch. I, 09 July 2009, para. 39], or upon being called to testify with the eventual assistance of their legal representatives [Lubanga, ICC T. Ch. I, 09 July 2009, para. 25] [Ruto and Sang, ICC T. Ch. V, 09 November 2012, para. 8] [Kenyatta and Muthaura, ICC T. Ch. V, 09 November 2012, para. 8]. All these procedural rights are without prejudice to any other right that the Chamber may grant to them in the course of the proceedings either proprio motu or upon specific and motivated request submitted by the legal representative [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 47].
   Nonetheless, victims authorised to participate do not have investigative powers, independent from those of the Prosecution. Consequently, if victims find it necessary to undertake certain investigative steps, they must request the Prosecution to undertake such steps [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 83]. Moreover, the rights of victims participating in confirmation hearings can be subject to limitations under certain conditions, provided such limitations are carefully delimited on the basis of proportionality [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, paras. 146 and 148]. Moreover, the participatory rights of anonymous victims may be more limited in order not to prejudice the rights of the parties and other participants [Lubanga, ICC T. Ch. I, 18 January 2008, para. 131] [Katanga and Ngudjolo, ICC T. Ch. II, 22 January 2010, paras. 92-93] [Lubanga, ICC App. Ch., 27 August 2013, para. 23] [Ngudjolo, ICC App. Ch., 23 September 2013, para. 19]. Another relevant example is the impossibility for victims authorized to participate I the proceedings to request the disqualification of a judge because of an appearance of bias or conflict of interests [Katanga, Presidency, 22 July 2014, paras. 44-45]

Author:
Enrique Carnero Rojo

Updated:
29 August 2017

[167] 2. The Chamber, on its own initiative or on the application of the Prosecutor or the defence, may reject the application if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled. A victim whose application has been rejected may file a new application later in the proceedings.
The Prosecutor and the Defence, in accordance with rule 89(2) of the Rules, are entitled to provide observations on the applications transmitted to them and to the Chamber, and may, as provided for by rule 89(4), request that one or more individual applications be rejected. The Chamber, proprio motu or upon request of the Prosecutor or the Defence, may reject the application inter alia if the person does not qualify as a victim [Ongwen, ICC PT. Ch. II, 3 September 2015, paras. 2 and 7].

Rejection of incomplete applications
Applications determined by the Chamber to be incomplete are to be denied, although the victim applicants involved may file a new application containing the required information later in the proceedings [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 21]. However, pursuant to rule 89(2) of the Rules and regulation 86(7) of the Regulations of the Court, the Chamber may request additional information from the applicants before deciding on their applications [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 7].

Rejection of complete applications
Similarly, when the applications are rejected on their merits, victim applicants may file a new application [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, paras. 16-17] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, p. 3]. For instance, applicants whose applications were rejected because their applications were deemed not to be causally connected with the case at hand are reminded of their possibility to file a new application later in the proceedings under rule 89(2) [Lubanga, ICC PT. Ch. I, 29 June 2006, p. 9].

Revision of granted applications
Moreover, applications can be revised after being granted, and eventually the decisions granting said applications may be reversed on the basis inter alia of the lack of accuracy and reliability of the victims’ statements as witnesses during the trial [Lubanga, ICC T. Ch. I, 14 March 2012, para. 484].

Remedies to rejection of application
Victims are not entitled to seek leave to appeal a decision of the Chamber rejecting their applications on the merits [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, para. 16] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, p. 3] and even less to seek leave to appeal interlocutory decisions of the Chamber addressing potential procedural matters relating to the application process prior to a decision on the merits of their applications [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, pp. 3-4]. Should their applications be rejected under rule 89(2), victim applicants are only entitled to submit new applications to correct any deficiencies in light of the Chamber’s decision on their applications, which will indicate any further information required or the reasons for which the applications have been rejected [Lubanga, ICC PT. Ch. I, 29 June 2006, p. 9] [Democratic Republic of the Congo, ICC PT. Ch. I, 10 December 2007, paras. 16-17] [Democratic Republic of the Congo, ICC PT. Ch. I, 18 January 2008, p. 3] [Democratic Republic of the Congo, ICC PT. Ch. I, 04 November 2008, para. 21].

Author:
Enrique Carnero Rojo

Updated:
29 August 2017

[168] 3. An application referred to in this rule may also be made by a person acting with the consent of the victim, or a person acting on behalf of a victim, in the case of a victim who is a child or, when necessary, a victim who is disabled
Application by legal persons
It is possible for NGOs to file applications on behalf of victims because the term “person” in the context of rule 89 does not seem to rule out “legal persons”. When the Statute and the Rules make a distinction between natural and legal persons, they generally mention this distinction explicitly [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 104].

Application with victim’s consent
Rule 89(3) refers to two circumstances, namely i) the circumstance in which a victim’s application may be made by another person who has obtained the victim’s consent (“contact person”), and ii) the circumstance in which a legally authorised person is allowed to act on behalf of a victim without having first obtained his or her consent, where the victim is a child or a disabled person and obtaining consent is impossible [Democratic Republic of the Congo, ICC PT. Ch. I, 17 January 2006, para. 105] [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 26]. When the victim applicant is a minor, his or her application must be submitted on his or her behalf by a person who has attained the age of majority [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 33].

Content of applications made on a victim’s behalf
Where  an  application  on behalf of the victim is  submitted  by  a  person, the application  must  contain i) the express consent of the victim, ii) proof of  identity of the victim, iii) proof of identity of the person acting on the victim’s behalf [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 19] [Kony et al., ICC PT. Ch. II, 14 March 2008, para. 7].  In  the  case  of  a  victim  who  is  a  child,  the application must contain, in addition to a proof of identity of the person acting on the victim’s behalf, i) proof of kinship, or ii) proof of guardianship or legal guardianship [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 31] [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, paras. 17 and 31]. If the application is submitted by a person who is not the next-of-kin or legal guardian of the victim applicant, the minor’s consent to have a third-party submit an application on his or her behalf is insufficient because the application must contain the consent of the next-of-kin or legal guardian that an application has been made on the minor’s behalf [Democratic Republic of the Congo, ICC PT. Ch. I, 3 July 2008, para. 31]. Pursuant to a narrow interpretation of rule 89(3), proof of kinship or guardianship between the minor and the person acting on his or her behalf is always required [Bemba, ICC T. Ch. III, 22 February 2010, para. 36] [Ruto and Sang, ICC T. Ch. V, 24 August 2012, para. 33]. By contrast, pursuant to a broader interpretation of the same provision, applications made on behalf of minors by adults who are neither relatives nor legal guardians of the victims have been admitted [Lubanga, ICC T. Ch. I, 8 May 2009, pp. 59-60] [Lubanga, ICC T. Ch. I, 23 July 2009, p. 15], and on a case by case basis even applications directly submitted by individuals under the age of 18 have been accepted, taking into consideration the minor’s maturity and capacity to make decisions [Katanga and Ngudjolo, ICC T. Ch. II, 23 September 2009, para. 98]. In any event, the link existing between a child applying for participation and the person acting on his or her behalf (kinship, guardianship, or legal guardianship) as well as the link existing between a disabled applicant and the person acting on his or her behalf (legal guardianship) should be confirmed by a document attached to the application as supporting documentation within the meaning of regulation 86(2)(e) of the Regulations [Kony et al., ICC PT. Ch. II, 14 March 2008, para. 7].

Application on behalf of deceased persons
No provision  permits  the  submission  of  an  application  for  participation on behalf of a deceased victim because rule 89(3) authorises the submission of  an  application  for  participation  on  a  person’s  behalf  provided  the  person  consents, and consent cannot be given by a deceased person  [Darfur, ICC PT. Ch. I, 14 December 2007, para. 36] [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 24] [Kenyatta et al., ICC PT. Ch. II, 26 August 2011, para. 49]. However,  close  relations  of  deceased  and  disappeared  persons  may  be  considered  to  be  indirect victims [Democratic Republic of the Congo, ICC PT. Ch. I, 19 March 2008, para. 24] [Democratic Republic of the Congo, ICC PT. Ch. I, 4 November 2008, para. 68] [Katanga and Ngudjolo, ICC T. Ch. II, 23 September 2009, para. 52] [Kenyatta et al., ICC PT. Ch. II, 26 August 2011, para. 47]. However, some Chambers have determined that a victim does not cease to be a victim because of his or her death, and have recognised deceased persons as victims provided that i) the deceased was a natural person, ii) the death of the person appears to have been caused by a crime within the jurisdiction of the Court, and iii) a written application on behalf of the deceased person has been submitted by his or her successor [Bemba, ICC PT. Ch. III, 15 December 2008, paras. 39-40] [Bemba, ICC T. Ch. III, 12 July 2010, para. 80]. This situation must be distinguished from that where a victim participant dies in the course of the proceedings. In this circumstance, the close relatives of a victim authorised to participate in the proceedings who is now deceased may decide to continue the action initiated by the victim before the Court, but that they may do so only on behalf of the deceased victim and within the limits of the views and concerns expressed by the victim in his or her initial application [Katanga and Ngudjolo, ICC T. Ch. II, 22 December 2009, para. 30] [Katanga and Ngudjolo, ICC T. Ch. II, 14 June 2011, para. 20] [Katanga, ICC T. Ch. II, 27 August 2013, para. 6]

Application on behalf of groups of people
Under the existing legal framework, collective victims’ applications cannot be imposed but individual victims may be encouraged to join with others so that a single application is made by a person acting on their behalf, with their consent, in accordance with Rule 89(3) of the Rules of Procedure and Evidence. In this respect, the Registry has on occasion been ordered to produce an initial mapping report in order to serve as the foundation for a more collective approach to victims’ application, i) identifying the main communities or groups of victims; ii) identifying potential persons that could act on behalf of multiple individual victims, with their consent, in accordance with Rule 89(3) of the Rules; and iii) encouraging potential individual applicants to join with others and to that effect consent to a single application to be made on their behalf in accordance with Rule 89(3) of the Rules [L. Gbagbo, ICC PT. Ch. III, 06 February 2012, paras. 8-10].

Author:
Enrique Carnero Rojo

Updated:
29 August 2017

[169] 4. Where there are a number of applications, the Chamber may consider the applications in such a manner as to ensure the effectiveness of the proceedings and may issue one decision.
Consideration of complete applications
Where there are a number of applications, the Court is able to deal more efficiently with applications submitted with all relevant information and documentation, ensuring that the Prosecution and the Defence receive all the information required for them to exercise their right to make observations, and therefore usually instructs the Registry that only complete applications be transmitted pursuant to rule 89(4) [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 9] [Darfur, ICC PT. Ch. I, 21 August 2007, pp. 3-4] [Ongwen, ICC PT. Ch. II, 3 September 2015, para. 4]. For the same purpose, the Chamber may provide only the essential information on each applicant in its decision [Darfur, ICC PT. Ch. I, 14 December 2007, para. 9]. In fact, those victims whose participation in the proceedings is not objected by either party within the relevant timeframe are admitted to participate in the proceedings. Indeed, the Rules do not require that an explicit, positive determination on each application be made by the Chamber – which may, rather, “reject” applications – and, in the Single Judge’s view, the positive assessment conducted by the Registry and the absence of objections from either party provide sufficient guarantees [Ongwen, ICC PT. Ch. II, 3 September 2015, paras. 7-8] [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 14].

Consideration of VPRS report
The consideration of a number of victims’ applications is not always accompanied by the transmission to the Prosecution and the Defence of the reports prepared by the VPRS on the applications. These reports are meant to assist the Chamber in issuing only one decision on a number of victim applications [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 36] [Darfur, ICC PT. Ch. I, 21 August 2007, p. 4]. Said reports are not, in principle, disclosed to the parties or the participants because i) rule 89 does not direct the Court to transmit said reports to the participants, [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, para. 38] [Darfur, ICC PT. Ch. I, 21 August 2007, pp. 3-4] [Lubanga, ICC T. Ch. I, 9 November 2007, paras. 22, 24-25], ii) the reports may influence the participants in their assessment of the applications, and iii) the reports are likely to contain information not set out in the applications which should be treated as confidential or which may require protection for some other reasons [Lubanga, ICC T. Ch. I, 9 November 2007, paras. 25-26]. Nonetheless, should any particular fact or matter emerge relevant to the reports that a Chamber considers justifies disclosure, that will occur, subject always to the Chamber having secured an appropriate level of protection for confidential information, the disclosure of which could be harmful to the welfare of individual victims [Lubanga, ICC T. Ch. I, 9 November 2007, para. 26]. On occasion, the Court has transmitted to the Prosecution and the Defence a redacted version of the report [Lubanga, ICC App. Ch., 06 May 2013, para. 10]. In some other occasions, the Chamber has transmitted the ex parte report to the Prosecution and the Legal Representative of Victims [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 10].

Cross-references
Articles 68, 69(4)
Rules 64, 77, 78
Regulation 86

Doctrine
1. Gilbert Bitti and Håkan Friman, "Participation of Victims in the Proceedings", Roy S. Lee et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 460-462.
2. Carsten Stahn et al., Participation of Victims in the Pre-Trial Proceedings of the ICC, Journal of International Criminal Justice, vol 4, 2 (2006), pp. 232-233.
3. Paolina Massidda and Caroline Walter, "Article 68: Protection et participation au process des victimes et des témoins", in Julian Fernandez, and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, pp. 1545-1576.
4. Anne-Marie De Brouwer and Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance" in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 1308-1312.
5. Kai Ambos, Treatise on International Criminal Law – Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, pp. 181-186.
6. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2nd edition, 2016, pp. 1065-1066.

Author:
Enrique Carnero Rojo

Updated:
29 August 2017

[170] Legal representatives of victims
General remarks
Victims may present their views and concerns through their appointed legal representatives, as foreseen in article 68(3) of the Rome Statute. However, the legal regime of the representation of victims is regulated in the Rules of Procedure and Evidence. Rule 90 regulates the required qualifications to be appointed legal representative of victims, the selection and appointment of said representatives, as well as the possibility to obtain financial assistance from the Court to pay for legal assistance.

Legal representation of victim applicants
The statutory instruments of the Court fail to address specifically the issue of whether victim applicants are entitled to rely on a legal representative at the time between the filing of their application and the Chamber’s assessment of its merits. In these circumstances, although victim applicants cannot claim to have an absolute and unconditional right to be provided with the assistance of a legal representative in respect of the phase preceding the Chamber’s decision on the merits of their applications, the Court may appoint a legal representative of victims during this phase where the interests of justice so require, pursuant to regulation 80(1) [Kony et al., ICC PT. Ch. II, 1 February 2007, paras. 2 and 11-12].

Evolution of legal representation of victims
In the beginning of the activities of the Court, victims’ applications for participation were transmitted to the OPCV, not to represent the applicants, but to provide the latter with any support and assistance which could be necessary or appropriate before the Chamber’s decision on the merits of their applications, where necessary upon consultation with the VPRS and the VWU [Kony et al., ICC PT. Ch. II, 1 February 2007, para. 13] [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 164] [Kony et al., ICC PT. Ch. II, 04 April 2008, p. 5]. Subsequently, Counsels from the OPCV have been appointed to represent victim applicants and/or victims authorised to participate in the proceedings [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 44] [L. Gbagbo, ICC PT. Ch. I, 08 February 2013, para. 46] [Blé Goudé, ICC PT. Ch. I, 11 June 2014, para. 25] [Blé Goudé, ICC PT. Ch. I, 01 August 2014, para. 15] [Ntaganda, ICC PT. Ch. II, 02 December 2013, para. 25] or to represent the common legal representative of victims during the hearings [Ruto and Sang, ICC T. Ch. V, 03 October 2012, para. 41] [Kenyatta and Muthaura, ICC T. Ch. V, 03 October 2012, para. 40].

Author:
Enrique Carnero Rojo

Updated:
4 August 2017

[171] 1. A victim shall be free to choose a legal representative
Freedom of victims to choose legal representation
Victims’ right to not choose legal representative
While rule 90(1) seems to imply a right of every victim to choose his or her own legal representative, it does not go so far as to make it compulsory for the victim to make such a choice. A victim’s “freedom” to choose a legal representative includes the right not to proceed to such a choice and to exercise his or her right to participate on his or her own [Kony et al., ICC PT. Ch. II, 1 February 2007, para. 5].

Victims’ right to choose same legal representative
Conversely, pursuant to rule 90(1) of the Rules, a victim shall be free to choose his or her legal representative and there is no provision in the Rules that, in principle, prohibits a victim from choosing the legal representative of a victim in another case [Katanga and Ngudjolo, ICC PT. Ch. I, 13 May 2008, para. 7]. Nonetheless, although pursuant to rule 90(1) of the Rules, “victims shall be free to choose a legal representative”, such right is not absolute but qualified in accordance with rule 90 of the Rules, sub-rules 2 to 4 [L. Gbagbo, ICC PT. Ch. I, 04 June 2012, para. 35].

Author:
Enrique Carnero Rojo

Updated:
7 August 2017

[172] 2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings,(ii) request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives.(iii) In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives.
Circumstances allowing victims to choose a common legal representative
Judicial discretion on common legal representation
Chambers retain the option (and are not under an obligation) to request victims or particular groups of victims to choose a common legal representative or representatives, “where there are a number of victims” and “for the purposes of ensuring the effectiveness of the proceedings” [Kony et al., ICC PT. Ch. II, 1 February 2007, para. 5].

Appropriateness of common legal representation
It is necessary to apply a flexible approach to the question of the appropriateness of common legal representation and, consequently, detailed criteria cannot be laid down in advance of a particular scenario [Lubanga, ICC T. Ch. I, 18 January 2008, para. 124]. Nonetheless, the appointment of a legal representative for the victims allowed to participate, albeit not compulsory, may be appropriate in view of a large number of victims i) for representing victims who claim to have suffered from the same attack [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 80] [Kony et al., ICC PT. Ch. II, 14 March 2008, para. 192], ii) for preventing any adverse impact on the fairness and expeditiousness of the proceedings [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 80] [Lubanga, ICC T. Ch. I, 18 January 2008, para. 116] [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 45], iii) for ensuring the provision of a meaningful participation of victims [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 46], or iv) for reasons of language or security [Lubanga, ICC T. Ch. I, 18 January 2008, para. 116].
 
Determination of need for common legal representation
The Chamber must make the determination of when common legal representation is necessary in order to ensure the effectiveness of the proceedings, and in so doing, the victims will receive the assistance of the Registry if necessary [Lubanga, ICC T. Ch. I, 18 January 2008, para. 123]. In this regard, a mapping process conducted by the Registry to identify the main groups of victims and potential persons that could act on their behalf may also be used by the Pre-Trial Chamber to assess whether victim applicants could be further grouped for the purposes of common legal representation in accordance with Rule 90 of the Rules and to start identifying potential common legal representatives [L. Gbagbo, ICC PT. Ch. III, 06 February 2012, para. 11].

Common legal representative chosen by the victims
Pursuant to Rule 90(1) of the Rules, “[a] victim shall be free to choose a legal representative”. However, the Chamber is of the view that the remainder of Rule 90 of the Rules makes it clear that this right is not absolute and that, “where there are a number of victims” and “for the purposes of ensuring the effectiveness of the proceedings”, a legal representative can be chosen by the Court, taking into consideration the distinct interests of the victims and avoiding any conflict of interest [Al Mahdi, ICC T. Ch. VIII, 8 June 2016, para. 36].

Author:
Enrique Carnero Rojo

Updated:
7 August 2017

[173] 3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide,(iv) the Chamber may request the Registrar to choose one or more common legal representatives.(v)
Circumstances allowing Chambers to request a common legal representative
Condition for imposition of common legal representative
Rule 90(3) clarifies that a power to impose legal representation, whenever the victims are unable to make the choice, is bestowed on the Chamber in respect of a common legal representative [Kony et al., ICC PT. Ch. II, 1 February 2007, para. 5]. On occasion, the Chambers have directly instructed the Registrar under rule 90(3) to choose a common legal representative among the legal representatives of participating victims [Lubanga, ICC App. Ch., 27 August 2013, para. 170], by reason of the practical difficulties to consult the victims and the proximity of the proceedings where the presence of the common legal representative is required [Mbarushimana, ICC PT. Ch. I, 11 August 2011, para. 48].

Common legal representative chosen by the Registrar
Criteria to select common legal representative
It is necessary to apply a flexible approach to the appointment of any particular common legal representative in order to protect the individual interests of the victims. As a result, detailed criteria to select a common legal representative cannot be laid down in advance, but some considerations are potentially of relevance, such as i) the language spoken by the victims (and any proposed representative), ii) links between the victims provided by time, place and circumstance, and iii) the specific crimes of which they are alleged to be victims. In order to assist it in the consideration of this issue, the Victims Participation and Representation Section is usually directed to make recommendations on common legal representation in its reports to the Chamber [Lubanga, ICC T. Ch. I, 18 January 2008, para. 124]

Author:
Enrique Carnero Rojo

Updated:
7 August 2017

[174] 4. The Chamber and the Registry shall take all reasonable steps to ensure that in the selection of common legal representatives, the distinct interests of the victims, particularly as provided in article 68, paragraph 1, are represented(vi) and that any conflict of interest is avoided.
Representation of victims’ interests in the selection of common legal representative
Consideration of common interests for joint representation
The approach to decisions under rule 90 should not be rigid, and instead will depend on whether at a certain phase in the proceedings or throughout the case a group or groups of victims have common interests which necessitate joint representation, considering the views of victims under article 68(3), along with the need to ensure that the accused’s right to a fair and expeditious trial under article 67 [Lubanga, ICC T. Ch. I, 18 January 2008, paras. 125-126].

Rule 90(4) – Avoidance of conflicts in interests in the selection of common legal representative
No anonymity of common legal representatives
Anonymity is incompatible with the functions to be performed by a legal representative because a request for confidentiality by a legal representative of victims not only affects the expeditiousness of the proceedings, but may also create a conflict of interests in which the legal representative must choose, for example, between effectively representing the victims in a public hearing and keeping his identity confidential [Democratic Republic of the Congo, ICC PT. Ch. I, 20 August 2007, paras. 47-48].

Author:
Enrique Carnero Rojo

Updated:
7 August 2017

[175] 5. A victim or group of victims who lack the necessary means to pay for a common legal representative chosen by the Court may receive assistance from the Registry, including, as appropriate, financial assistance.
Legal aid for victims
The legal representation provided by the Legal Representatives of Victims is not eligible for being covered by legal aid funds where (i) as a matter of fact, the Legal Representatives are individually chosen by the victims concerned in the exercise of their rights under Rule 90(1) to choose their legal representative, and are not common legal representatives chosen by the Court within the meaning of Rule 90(5) of the Rules; (ii) as a matter of law, the plain contextual and teleological interpretation of Rule 90(5) makes it clear that victims who individually choose their own legal representatives do not qualify for financial assistance as a matter of right from the Court; and (iii) to accept that all Rule 90(1) legal representatives be given legal assistance would result in “an inevitably unwieldy system” whereby the Court, when upholding the right of victims to appoint counsel of their own choice, would also be obligated to provide financial assistance to any legal representative appointed by any victims’ group, even if this results in dozens of such representatives being part of the legal aid scheme for a single case [Ongwen, ICC PT. Ch. II, 27 November 2015, para. 18] [Ongwen, ICC PT. Ch. II, 15 December 2015, para. 10] [Ongwen, ICC PT. Ch. II, 24 December 2015, para. 22] [Ongwen, ICC T. Ch. IX, 24 May 2016, paras. 7-12] [Ongwen, ICC T. Ch. IX, 14 November 2016, para. 2].

Doctrine
1. Gilbert Bitti and Håkan Friman, "Participation of Victims in the Proceedings", in Lee, Roy S., et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 462-465.
2. David Donat-Cattin, "Article 68: Protection of victims and witnesses and their participation in the proceedings", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008, pp. 1290-1292.
3. Paolina Massidda and Caroline Walter, "Article 68: Protection et participation au procès des victimes et des témoins", in Julian Fernandez and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, pp. 1570-1571.
4. Anne-Marie De Brouwer and Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 1308-1310.

Author:
Enrique Carnero Rojo

Updated:
7 August 2017

[176] General remarks
Article 68(3) provides for a role for legal representatives of victims by stating that the views and concerns of victims "may be presented by the legal representatives of the victims where the Court considers it appropriate". Rule 91 elaborates on the matter.
   Since victims may be grouped together there will be a need to be represented by a legal representative. This raises several additional questions, inclduing such relating to the victims' ability to choose representative (Bitti and Friman, p. 462). In Kony et al., ICC PT. Ch. II,
Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-01/05-134, 1 February 2007, para. 10, the Pre-Trial Chambet noted that "a victim's participation in the proceedings is not conditional upon him or her being assisted by a legal representative".
   Rule 91 describes the special participatory rights that victim enjoy when represented by counsel to attend hearings, question witnesses, etc. Victims will not enjoy such rights when unrepresented (Ambos, p. 188).

Author:
Mark Klamberg

Updated: 
20 June 2018

[177] 1. A Chamber may modify a previous ruling under rule 89.
Sub-rule 1 clarifies that a ruling under rule 98 m,ay be modified. The rationale of this sub-rule is the need for a modified ruling extending the participation of a victim, who had previously been granted a limited participation (Bitti and Friman p. 466).

Author:
Mark Klamberg

Updated: 
20 June 2018

[178] 2. A legal representative of a victim shall be entitled to attend and participate in the proceedings in accordance with the terms of the ruling of the Chamber and any modification thereof given under rules 89 and 90. This shall include participation in hearings unless, in the circumstances of the case, the Chamber concerned is of the view that the representative’s intervention should be confined to written observations or submissions. The Prosecutor and the defence shall be allowed to reply to any oral or written observation by the legal representative for victims.
Sub-rule 2 provides that the participation of a legal representative is subject to the ruling of the Chamber and any modification thereof given under rules 89 and 90. The Prosecutor and the defence shall be allowed to reply to any oral or written observation by the legal representative for victims. This does not apply to all submissions, since some submissions may be dealt ex parte for example under rule 88 (Bitti and Friman, p. 467).

Author:
Mark Klamberg

Updated: 
20 June 2018

[179]  3. (a) When a legal representative attends and participates in accordance with this rule, and wishes to question a witness, including questioning under rules 67 and 68, an expert or the accused, the legal representative must make application to the Chamber. The Chamber may require the legal representative to provide a written note of the questions and in that case the questions shall be communicated to the Prosecutor and, if appropriate, the defence, who shall be allowed to make observations within a time limit set by the Chamber.
Sub-rule 3 concerns a controversial form of participation, namely the questioning of a witness, an expert or the accused.
   In Prosecutor v. Lubanga, ICC T. Ch. I, Decision on victim's participation, ICC-01/04-01/06-1119, 18 January 2008, para. 108, TC I considered that "Rule 91(3) of the Rules enables participating victims to question witnesses with the leave of the Chamber (including experts and the defendant). The Rule does not limit this opportunity to the witnesses called by the parties. It follows that victims participating in the proceedings may be permitted to tender and examine evidence if in the view of the Chamber it will assist it in the determination of the truth, and if in this sense the Court has "requested" the evidence. Furthermore, for the reasons set out above, the Chamber will not restrict questioning by victims to reparations issues, but instead will allow appropriate questions to be put by victims whenever their personal interests are engaged by the evidence under consideration." See also Prosecutor v. Bemba, ICC T. Ch. III, Decision (i) ruling on legal representatives' applications to question Witness 33 and (ii) setting a schedule for the filing of submissions in relation to future applications to question witnesses,  ICC-01/05-01/08-1729, 9 September 2011, para. 15.

Author:
Mark Klamberg

Updated: 
20 June 2018

[180] (b) The Chamber shall then issue a ruling on the request, taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial and in order to give effect to article 68, paragraph 3. The ruling may include directions on the manner and order of the questions and the production of documents in accordance with the powers of the Chamber under article 64. The Chamber may, if it considers it appropriate, put the question to the witness, expert or accused on behalf of the victim’s legal representative.
The Chamber shall pursuant to sub-rule 3(b) issue a ruling on the request of alegal reprsentative to attend and participate, taking into account the stage of the proceedings, the rights of the accused, the interests of witnesses, the need for a fair, impartial and expeditious trial. These factors shall not only have an impact on whether questioning should be allowed or not, but also the kind of questions to be allowed and the conduct of the questioning (Bitti and Friman, p. 468).
   In Prosecutor v. Lubanga, PT. Ch. I, Decision on the Arrangements for Participation of Victims a/0001/06, a/0002/06 and a/0003/06 at the Confirmation Hearing, ICC-01/04-01/06-462-tEN, 22 September 2006, rendered by PTC I, the aforesaid victims where authorized to participate in the confirmation hearing of the case of the Prosecutor v Thomas Lubanga Dyilo upon the terms set forth in that decision, inter alia, the Victims’ Representative will not be able to add any point of fact or any evidence, the Victims’ Representative will not be able to question the witnesses according to the procedure set out in rule 91(3) of the rules. PTC I considered that the victims requessted that their identities remain confidential.
   In Prosecutor v. Lubanga, PT. Ch. I, Decision on the applications for participation in the proceedings a/0004/06 to a/0009/06, a/0016/06 to a/0063/06, a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-601-tEN, 20 October 2006, PTC I decided that victim status is granted to Applicant a/0105/06 at the stage of the case of The Prosecutor v. Thomas Lubanga Dyilo; on the same terms as those granted to victims a/0001/06 to a/0003/06.
     In Prosecutor v. Lubanga, T. Ch. I, Decision on the Manner of Questioning Witnesses by the Legal Representatives of Victims, ICC-01/04-01/06-2127, 16 September 2009, para. 29, the Trial Chamber concluded that "it follows from the object and purpose of questioning by the victims' legal representatives that there is a presumption in favour of a neutral form of questioning, which may be displaced in favour of a more closed form of questioning, along with the use of leading or challenging questions, depending on the issues raised and the interests affected.

Doctrine:
1. Kai Ambos, Treatise on International criminal Law, Volume III: International Criminal Procedure, Oxford Univeristy Press, Oxford, 2016, pp. 188, 191-192 and 197.
2. Gilbert Bitti and Håkan Friman, “Victims and Witnesses”, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, 2001, p. 462-465.
3. David Donat-Cattin, "Article 68", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1699-1701.
4. Bitte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 298-301.

Author:
Mark Klamberg

Updated: 
20 June 2018

[181] 1. This rule on notification to victims and their legal representatives shall apply to all proceedings before the Court, except in proceedings provided for in Part 2.

2. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims concerning the decision of the Prosecutor not to initiate an investigation or not to prosecute pursuant to article 53. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the situation or case in question. The Chamber may order the measures outlined in sub-rule 8 if it considers it appropriate in the particular circumstances.

3. In order to allow victims to apply for participation in the proceedings in accordance with rule 89, the Court shall notify victims regarding its decision to hold a hearing to confirm charges pursuant to article 61. Such a notification shall be given to victims or their legal representatives who have already participated in the proceedings or, as far as possible, to those who have communicated with the Court in respect of the case in question.

4. When a notification for participation as provided for in sub-rules 2 and 3 has been given, any subsequent notification as referred to in sub-rules 5 and 6 shall only be provided to victims or their legal representatives who may participate in the proceedings in accordance with a ruling of the Chamber pursuant to rule 89 and any modification thereof.

5. In a manner consistent with the ruling made under rules 89 to 91, victims or their legal representatives participating in proceedings shall, in respect of those proceedings, be notified by the Registrar in a timely manner of:

(a) Proceedings before the Court, including the date of hearings and any postponements thereof, and the date of delivery of the decision;

(b) Requests, submissions, motions and other documents relating to such requests, submissions or motions.

6. Where victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings.

7. Notifications as referred to in sub-rules 5 and 6 shall be in writing or, where written notification is not possible, in any other form as appropriate. The Registry shall keep a record of all notifications. Where necessary, the Registrar may seek the cooperation of States Parties in accordance with article 93, paragraph 1 (d) and (l).

8. For notification as referred to in sub-rule 3 and otherwise at the request of a Chamber, the Registrar shall take necessary measures to give adequate publicity to the proceedings. In doing so, the Registrar may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations.
Rule 92 deals with the notification to the victims of the Prosecutor’s decision not to investigate or to prosecute under Article 53. This notification is important because proceedings regarding a review by the Pre-Trial Chamber of a decision by the Prosecutor not to proceed pursuant to Article 53 of the Statute constitute a judicial proceeding at the investigation stage during which the victims can participate.
   The Rule indicates three classes of victims which should be notified: (i) victims or their legal representatives who have already participated in the proceedings; (ii) victims who have communicated with the Court in respect of the relevant situation; and (iii) victims who have communicated with the Court in respect of the relevant case (Kony, Otti, Odhiambo and Ongwen, ICC PT. Ch. II, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 ICC-02/04-01/05-252, ICC-02/04-01/05-252, 10 August 2007, par. 95). According to Regulation 87(2) of the Regulations of the Court, it is for the Prosecutor to inform the Registry of his or her decision not to proceed and ‘to provide all relevant information for notification by the Registry to victims in accordance with Rule 92, sub-rule 2’.
   In the situation in the DRC, Pre-Trial Chamber I underlined that like Rule 92(3), Rule 92(2) only contains a notification rule and is limited to that. Hence, it cannot be argued (as the Prosecutor has done) that it seeks to limit the participation of victims at the investigation stage to the proceedings mentioned therein (Situation in the DRC, ICC PT. Ch. I, ICC-01/04-101, 17 January 2006, par. 49). Moreover, the Appeals Chamber held that Rule 92 does not support the position that victims have a general participatory right at the investigation stage of a situation, outside the framework of judicial proceedings (see Situation in the DRC, ICC A. Ch., ICC-01/04-556 (OA4 OA5 OA6), 19 December 2008, par. 46; Situation in Darfur, Sudan, ICC A. Ch., ICC-02/05-177 (OA OA2 OA3), 2 February 2009, par. 46).

Cross-references
Rule 68(3)

Author:
Karel De Meester

Updated:
30 June 2016

[182] A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue, inter alia, in relation to issues referred to in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate.
General remarks
In contrast to the general field of application of rules 89-91 regarding the procedure for the participation of victims in proceedings before the Court, a Chamber may resort to rule 93 on an exceptional basis only, when confronted with a specific “issue” requiring a judicial determination within or in the course of a stage of the proceedings.
    However, rule 93 is not intended to limit the power of a Chamber to seek the views of any victim on any issue when the Chamber finds it appropriate. In fact, rule 93 refers also to victims who are not participating in the proceedings within which the “issue” in question arose. In this regard, several Chambers have clarified that they always retain the power under rule 93 to request the views of victims who may not have applied to participate in the proceedings [Uganda, ICC PT. Ch. II, 10 August 2007, para. 102] [Lubanga, ICC T. Ch. I, 25 October 2007, para. 2].

Analysis
A Chamber may seek the views of victims or their legal representatives participating pursuant to rules 89 to 91 on any issue, inter alia, in relation to issues referred to in rules 107, 109, 125, 128, 136, 139 and 191. In addition, a Chamber may seek the views of other victims, as appropriate.

Full discretion by the Chamber
Rule 93 confers power upon a Chamber to seek the views of victims or their legal representatives on any matter arising in the course of proceedings before it, including issues referred to it pursuant to rules 107, 109, 125, 128, 136, 139, and 199 of the Rules. Initiative for soliciting the views of victims under this rule rests entirely with a Chamber [Democratic Republic of the Congo, ICC App. Ch., 19 December 2008, para. 48].

Independent provision of views
The views of victims may be solicited independently of whether they participate or not in any given proceedings before the Court. This process is distinguished from victim participation under article 68(3), and from the provision of victims’ representations under article 15(3) and the submission of victims’ observation under article 19(3) [Democratic Republic of the Congo, ICC App. Ch., 19 December 2008, para. 48]. However, for some issues, such as the amendment of the charges (rule 128), the Chamber may seek only the views of victims or their legal representatives participating pursuant to rules 89 to 91 [Kenyatta and Muthaura, ICC PT. Ch. II, 29 January 2013, para. 11].

Issues in relation to which the views of victims may be sought

Free choice of issue by Chambers
Victims may express their views on any given subject identified by the Chamber [Democratic Republic of the Congo, ICC App. Ch., 19 December 2008, para. 48].

Issues and timing of views of victims
In light of the broad wording of rule 93, any victim may be invited by a Chamber to express his or her views on one or more issues at any stage of the proceedings provided that the Chamber considers it appropriate [Kony et al., ICC PT. Ch. II, 10 August 2007, para. 102]. As a consequence, victims may participate in judicial proceedings by presenting their views pursuant to rule 93 also at the stage of the investigation of a situation [Democratic Republic of the Congo, ICC PT. Ch. I, 11 April 2011, para. 10].

Cross-references
Rules 68(3), 89-91, 107, 109, 125, 128, 136, 139, 191

Doctrine
1. Gilbert Bitti, and Håkan Friman, "Participation of Victims in the Proceedings", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 473-474.
2. Claude Jorda, and Jérôme de Hemptinne, "The Status and Role of the Victim", in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1387-1419.
3. Carsten Stahn, et al., Participation of Victims in the Pre-Trial Proceedings of the ICC, Journal of International Criminal Justice, vol 4, 2 (2006): 237
4. Paolina Massidda and Caroline Walter, "Article 68: Protection et participation au process des victimes et des témoins", in Julian Fernandez and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. II, pp. 1568-1569.
5. Sergey Vasiliev, "Article 68(3) and personal interests of victims in the emerging practice of the ICC", in Carsten Stahn and Goran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 639-640, 686.

Author:
Enrique Carnero Rojo

Updated:
4 August 2017

[183] 1. A victim’s request for reparations under article 75 shall be made in writing and filed with the Registrar. It shall contain the following particulars:

(a) The identity and address of the claimant;

(b) A description of the injury, loss or harm;

(c) The location and date of the incident and, to the extent possible, the identity of the person or persons the victim believes to be responsible for the injury, loss or harm;

(d) Where restitution of assets, property or other tangible items is sought, a description of them;

(e) Claims for compensation;

(f) Claims for rehabilitation and other forms of remedy;

(g) To the extent possible, any relevant supporting documentation, including names and addresses of witnesses.

2. At commencement of the trial and subject to any protective measures, the Court shall ask the Registrar to provide notification of the request to the person or persons named in the request or identified in the charges and, to the extent possible, to any interested persons or any interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3.
Rules 94-99 supplement article 75 of the Rome Statute on reparations. Reparations proceedings may be initiated by the Chamber upon the request by a victim under rule 94 or on its own motion pursuant to rule 95.
   Sub-rule 1 provides a list of items that should be included in a request for reparations. Two of the items attracted particular attention during the negotiations of the rule. The original draft of sub-rule 1(c) would have required the claimant to identify the person or persons responsible for the injury, loss or harm. Since victims may be unable to identify the prepetrator of the attack, the caveat "to the extent possible" was added. Sub-rule 1(g) requires the claimant to provide relevant supporting documentation, including names and addresses of witnesses. since this may be difficult for some victims, for example refugees, the caveat "to the extent possible" was also added here (Friman and Lewis, 2001, pp. 479-480).
   Sub-rule 2 requires notification of the request for reparations to the person or persons named in the request or identified in the charges. Sub-rule 2 is drafted to encourage early claims by the requirement that notification should occur at the commencement of the trial (Friman and Lewis, 2001, p. 480).

Cross-references
Article 75, Rules 94-99

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 198.
2. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 479-480.
3. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 302-303.

Author:
Mark Klamberg

Updated:
20 August 2017

[184] 1. In cases where the Court intends to proceed on its own motion pursuant to article 75, paragraph 1, it shall ask the Registrar to provide notification of its intention to the person or persons against whom the Court is considering making a determination, and, to the extent possible, to victims, interested persons and interested States. Those notified shall file with the Registry any representation made under article 75, paragraph 3.

2. If, as a result of notification under sub-rule 1:

(a) A victim makes a request for reparations, that request will be determined as if it had been brought under rule 94;

(b) A victim requests that the Court does not make an order for reparations, the Court shall not proceed to make an individual order in respect of that victim.
Rule 95 concerns reparations proceedings  initiated by the Chamber on its own motion. According to article 75(1) the Court should only act in its own motiuon in exceptional circumstances. 
   Sub-rule 1 requires notification to the person or persons against whom the Court is considering making a determination on reparations.
   Sub-rule 2 provides that when the Court decides to proceed on its own motion, the victim can either: a) step in as if he or she had brought the complaint under rule 94 or b) object, with the result that Court shall not proceed to make an individual order in respect of that victim. However, the invidual victim cannot stop a collective Award (Timm, 2004, p. 302). The rationale for giving victims the possibility to object is that some victims, as a matter of conscience, would not wish reparations since it could be perceived that they benefit from "blood money" (Friman and Lewis, 2001, p. 481).

Cross-references
Article 75, Rules 94-99

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 198.
2. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, p. 481.
3. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 302.

Author:
Mark Klamberg

Updated:
20 August 2017

[185] 1. Without prejudice to any other rules on notification of proceedings, the Registrar shall, insofar as practicable, notify the victims or their legal representatives and the person or persons concerned. The Registrar shall also, having regard to any information provided by the Prosecutor, take all the necessary measures to give adequate publicity of the reparation proceedings before the Court, to the extent possible, to other victims, interested persons and interested States.

2. In taking the measures described in sub-rule 1, the Court may seek, in accordance with Part 9, the cooperation of relevant States Parties, and seek the assistance of intergovernmental organizations in order to give publicity, as widely as possible and by all possible means, to the reparation proceedings before the Court. 
Rule 96 provides that the Registrar shall seek to give adequate publicity of the reparation proceedings. The purpose of the rule is to ensure that victims are encouraged to make applications for reparations and this is only possible of they are aware of the proceedings (Friman and Lewis, p. 482).
   For the purpose of spreading awareness of the proceedings, sub-rule 2 provides that publicity may be achieved by cooperation with relevant States Parties and assistance of intergovernmental organizations under Part 9 of the Statute.  

Cross-references
Article 75, Rules 94-99

Doctrine
1. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, p. 482.
2. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 302.

Author:
Mark Klamberg

Updated:
20 August 2017

[186] 1. Taking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.

2. At the request of victims or their legal representatives, or at the request of the convicted person, or on its own motion, the Court may appoint appropriate experts to assist it in determining the scope, extent of any damage, loss and injury to, or in respect of victims and to suggest various options concerning the appropriate types and modalities of reparations. The Court shall invite, as appropriate, victims or their legal representatives, the convicted person as well as interested persons and interested States to make observations on the reports of the experts.

3. In all cases, the Court shall respect the rights of victims and the convicted person.
Rule 97 introduces a distinction between individual and collective reparations that is not contained in the Rome Statute. The rationale behind the concept of "collective victims" is that some crimes are directed against a Group and that victimization of the individual is mainly a victimization of a group. An obvious example would be the crime of apartheid. Collective Awards will in many cases serve a symbolic purpose (Timm, 2004, pp. 303-304).
   During the negotiations, some delegations perceived reparations proceedings as a means for victims to enforce their civil claims through the Court. For these delegations it was difficult to adopt the concept of collective Awards. Other delegations perceived reparations as a form of sanctions imposed by the Court to meet the needs of the victims and not a means of satisfying civil claims Rule 97 is a compromise (Friman and Lewis, 2001, p. 483). Sub-rule 1 provides that awards should normally be on an individual basis, and where the Courtst deems it appropriate, on a collective basis or both. Sub-rule 2 allows the Court to appoint appropriate experts to assist it in making awards. Sub-rule 3 was added to ensure that the Court shall respect the rights of victims and the convicted person. This was important for delegations that did not want the Court to Award reparations against the will of victims (Friman and Lewis, 2001, p. 484).

Cross-references
Article 75, Rules 94-99

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 198.
2. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 482-484.
3. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 303-304.

Author:
Mark Klamberg

Updated:
20 August 2017

[187] 1. Individual awards for reparations shall be made directly against a convicted person.

2. The Court may order that an award for reparations against a convicted person be deposited with the Trust Fund where at the time of making the order it is impossible or impracticable to make individual awards directly to each victim. The award for reparations thus deposited in the Trust Fund shall be separated from other resources of the Trust Fund and shall be forwarded to each victim as soon as possible.

3. The Court may order that an award for reparations against a convicted person be made through the Trust Fund where the number of the victims and the scope, forms and modalities of reparations makes a collective award more appropriate.

4. Following consultations with interested States and the Trust Fund, the Court may order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund.

5. Other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79.
Rule 98 supplements article 79 which provides that a Trust Fund shall be established by decision of the Assembly of States Parties. 
   Sub-rule 1 indicates that the Trust Fund need not be involved in awards to individuals, these shall be made directly against a convicted person.
   Pursuant to sub-rule 2, the trust Fund shall assist the Court in implementing reparations awards.
   Since collective awards may be made for the benefit of a Group without legal personality, awards may be deposited with the Trust Fund pursuant to sub-rule 3 (Timm, 2004, p. 305).  Many of the arguments concerning collective awards that surrounded the discussion on rule 97 were also relevant for rule 98 since the Trust Fund is the obvious body to administer such awards (Friman and Lewis, 2001, p. 487). In Lubanga, ICC A. Ch., Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012, ICC-01/04-01/06-3129, 3 March 2015, para. 7, the Appeals Chamber determined that "[w]hen only collective reparations are awarded pursuant to rule 98 (3) of the Rules of Procedure and Evidence, a Trial Chamber is not required to rule on the merits of the individual requests for reparations."
   Sub-rule 4 provides that the Court may also order that an award for reparations be made through the Trust Fund to an intergovernmental, international or national organization approved by the Trust Fund.
   Sub-rule 5 concerns "Other resources of the Trust Fund". “Other resources” are defined in regulation 47 of the Regulations of the Trust Fund as “resources other than those collected from awards for reparations, fines and forfeitures.” In Lubanga, ICC A. Ch., Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012, ICC-01/04-01/06-3129, 3 March 2015, para. 11, the Appeals Chamber noted that  the word “may” in rule 98 (5) means that a decision to use “other resources” is a discretionary decision and not mandatory.

Cross-references
Article 79, Rules 94-99

Doctrine
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 199-200.
2. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 487-488.
3. Karim A.A. Khan, "Article 79", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1901-1908.
4. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 304-306.

Author:
Mark Klamberg

Updated:
20 August 2017

[188] 1. The Pre-Trial Chamber, pursuant to article 57, paragraph 3 (e), or the Trial Chamber, pursuant to article 75, paragraph 4, may, on its own motion or on the application of the Prosecutor or at the request of the victims or their legal representatives who have made a request for reparations or who have given a written undertaking to do so, determine whether measures should be requested.

2. Notice is not required unless the Court determines, in the particular circumstances of the case, that notification could not jeopardize the effectiveness of the measures requested. In the latter case, the Registrar shall provide notification of the proceedings to the person against whom a request is made and so far as is possible to any interested persons or interested States.

3. If an order is made without prior notification, the relevant Chamber shall request the Registrar, as soon as is consistent with the effectiveness of the measures requested, to notify those against whom a request is made and, to the extent possible, to any interested persons or any interested States and invite them to make observations as to whether the order should be revoked or otherwise modified.

4. The Court may make orders as to the timing and conduct of any proceedings necessary to determine these issues.
Rule 99 concerns enforcement of reparations orders, which involves cooperation with states as well as protection of victims.
   In relation to cooperation, Article 75(5) provides that reparations orders are subject to the same rules as fines and forfeitures, that is rule 218.
   In relation to protection, the relevant provisions in the Rome Statute are Articles 57(3)(e), 79(4), 93(1)(k).
   Sub-rule 1 of rule 99 claries that not only victims "who have made a request for reparations" but also victims "who have given a written undertaking to do so" make a request for cooperation and protective measures. This is to protect the interests of victims who are preoparing a request for reparations (Friman and Lewis, 2001, p. 489).
   Sub-rules 2 and 3 concerns notification regarding proceedings for measures under rule 99.

Cross-references
Articles 57(3)(e), 75(5), 79(4), 93(1)(k) and 109, Rules 94-99, 218

Doctrine
1. Daniel Donat-Cattin, "Article 75", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1867-1868.
2. Håkan Friman and Peter Lewis, "Reparation to victims", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, , Transnational Publishers, Ardsley, 2001, pp. 489-490.
3. Birte Timm, "The Legal Position of Victims in the Rules of Procedure and Evidence", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 306.

Author:
Mark Klamberg

Updated:
20 August 2017

[189] 1. In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State, for such period or periods as may be required, to hear the case in whole or in part.

2. The Chamber, at any time after the initiation of an investigation, may proprio motu or at the request of the Prosecutor or the defence, decide to make a recommendation changing the place where the Chamber sits. The judges of the Chamber shall attempt to achieve unanimity in their recommendation, failing which the recommendation shall be made by a majority of the judges. Such a recommendation shall take account of the views of the parties, of the victims and an assessment prepared by the Registry and shall be addressed to the Presidency. It shall be made in writing and specify in which State the Chamber would sit. The assessment prepared by the Registry shall be annexed to the recommendation.

3. The Presidency shall consult the State where the Chamber intends to sit. If that State agrees that the Chamber can sit in that State, then the decision to sit in a State other than the host State shall be taken by the Presidency in consultation with the Chamber. Thereafter, the Chamber or any designated Judge shall sit at the location decided upon.

Place of the proceedings
Article 3(1) of the ICC Statute lays down that the “seat of the Court shall be established at The Hague in the Netherlands”. Additionally, Article 3(3) provides for that the ICC “may sit elsewhere, whenever it considers it desirable, as provided in this Statute”. The original text of Rule 100(1) read as follows: “in a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State”. With regard to the Republic of Kenya, Pre-Trial Chamber II assessed the desirability and feasibility of conducting the confirmation of charges hearing in Kenya [Prosecutor v. Muthaura et al, ICC PT. Ch. II, Decision Requesting Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, ICC-01/09-02/11-102, 3 June 2011, para. 3]. Since the Kenyan cases at the ICC involved President Uhuru Kenyatta and Vice-President William Samoei Arap Ruto, Rules 134bis (‘Presence through the use of video technology’), 134ter (‘Excusal from presence at trial’) and 134quarter (‘Excusal from presence at trial due to extraordinary public duties’) were introduced to accommodate the ICC proceedings to the circumstances of the said cases. In Lubanga, the Registry undertook reconnaissance missions to identify a suitable location in the Democratic Republic of Congo (DRC) and developed a protocol to conduct court proceedings in situ. Nevertheless, this possibility was foreclosed when the Minister of Justice of the DRC informed the ICC that the proceedings could not be held in the proposed location as this could cause ethnic tensions in an area regarded as potentially unstable [Human Rights Watch, 2008, pp. 113-114].
   According to the original Rule 100 of the Rules of Procedure and Evidence, the prosecutor, defence or a majority of the judges first needed to file an application or recommendation to the ICC President who had to consult with the state at which the ICC would sit. Should the State accept, a decision to hold proceedings in situ needs to be made by two-thirds of the ICC judges.  Current Rule 100(2) of the Rules of Procedure and Evidence provides for provides for that: by unanimity (or failing this, by majority), the Chamber may proprio motu or at the prosecutor/defence request recommend in writing the place (state) where the Chamber sits, taking into account the views of the parties, victims, and a Registry’s assessment. In turn, current Rule 100(3) establishes that the ICC Presidency ‘shall consult the State where the Chamber intends to sit’ and, if the answer is in the affirmative, the Presidency (in consultation with the Chamber) takes the decision to sit outside the host state (the Netherlands). Then, the Chamber/judge shall sit at the selected location.
   Whereas the original Rule 100(1) read as follows: “In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State”, the current Rule 100(1) reads as follows: “In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State, for such period or periods as may be required, to hear the case in whole or in part [emphasis added]”.
   The original Rule 100 was amended by the Assembly of States Parties to ease the decision-making for the ICC to sit outside. A more unambiguous and expeditious process has been introduced for designating an alternate seat by giving the Trial Chamber the authority to decide the issue to the Court’s President, considering the ICC Registry’s assessment and an absolute majority recommendation of the competent ICC Chamber judges [Assembly of States Parties, Report of the Working Group on Amendments, ICC-ASP/12/44, 24 October 2013, para. 5].
   In Ongwen, the Chamber explicitly acknowledged the importance of bringing justice closer to the affected community; however, it found that holding the trial opening statements in Uganda was undesirable under article 3 of the ICC Statute. Two main factors explain this decision: first, security concerns relating to Ongwen’s prospective presence in Uganda and the victims’ ensuing fear of possible episodes of violence, and, second, logistical difficulties, including the judicial workload of the Chamber’s individual judges in other ICC situations and cases. Based on these considerations, Pre-Trial Chamber II decided not to make a recommendation to change the place of the proceedings and, thus, the trial was decided to take place at the ICC’s seat. Additionally, Pre-Trial Chamber II found that the determination of whether a judicial site-visit in Northern Uganda would provide judicial assistance to its evaluation of the evidence should be conducted at a later procedural stage [Prosecutor v. Ongwen, ICC T. Ch. IX, Decision Concerning the Requests to Recommend Holding Proceedings In Situ and to Conduct a Judicial Site Visit in Northern Uganda, ICC-02/04-01/15-499, 18 July 2016, para. 3].

Cross-references:
ICC Statute, Articles 3(1), 3(3) and 62.
 
Doctrine: 
Human Rights Watch, Courting History. The Landmark International Criminal Court’s First Years, Human Rights Watch, New York, 2008. 

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
19 April 2018

[190] Time limits
1. In making any order setting time limits regarding the conduct of any proceedings, the Court shall have regard to the need to facilitate fair and expeditious proceedings, bearing in mind in particular the rights of the defence and the victims.

2. Taking into account the rights of the accused, in particular under article 67, paragraph (1) (c), all those participating in the proceedings to whom any order is directed shall endeavour to act as expeditiously as possible, within the time limit ordered by the Court.
The original version of Rule 101 consisted of two paragraphs. The third paragraph of the current version of Rule 101 was added via Resolution adopted by the Assembly of State Parties at its 10th plenary meeting, on 24 November 2016 [Assembly of States Parties, Resolution on amendments to rule 101 and rule 144 (2)(b) of the Rules of Procedure and Evidence, Resolution ICC-ASP/15/Res.4, 24 November 2016]. This third paragraph reads as follows:

The Court may order in relation to certain decisions, such as those referred to in rule 144 [Delivery of the decisions of the Trial Chamber], that they are considered notified on the day of their translation, or parts thereof, as are necessary to meet the requirements of fairness, and, accordingly, any time limits shall begin to run from this date.

In applying Rule 101, i.e.., setting a deadline as to for example commencement of the trial, the ICC’s case-law has sought to ensure that the parties have a reasonable opportunity to obtain witness testimony and pay attention to the impact of recesses and holidays on postponing the commencement date of the trial [Prosecutor v. Al Mahdi, ICC T. Ch., ICC-01/12-01/15-93, Decision Setting the Commencement Date of the Trial, 1 June 2016, paras. 10-11].
   As part of the language cluster amendments, Rule 101 was amended. This received strong support as it was sought to save considerable amount of cost and time. Arguments included the lack of a written form of some languages and the considerable time required to train translators in Lubanga and the need to balance expeditiousness with fair trial standards. Amendments were said to be consistent with relevant practice of regional human rights courts and other international or regional organizations and bodies as well as Article 67 of the ICC Statute. Full translations of witness statements led to considerable delays in the proceedings, up to three years, and legal uncertainty concerning whether partial translations of judicial decisions were authorized. Overall speaking, there was a strong support for the speedy adoption of the proposed amendments since these sought to safeguard the accused’s rights [Assembly of States Parties, Report of the Working Group on Amendments, ICC-ASP/15/24, 8 November 2016, paras. 22, 25-27].     

Cross-references:
ICC Statute, Article 67.

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
19 April 2018

[191] Communications other than in writing
Where a person is unable, due to a disability or illiteracy, to make a written request, application, observation or other communication to the Court, the person may make such request, application, observation or communication in audio, video or other electronic form
Rule 102 provides for that if a person is unable because of disability or illiteracy to complete a written application, (s)he may apply in audio, video or other electronic form. For example, the use of standard application forms for victim participation: “is not compulsory as long as the applicant provides the information referred to in regulation 86(2) of the Regulations of the Court” [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS 2, VPRS 3, VPRS 4, VPRS5 and VPRS6, ICC-01/04-101-tEN-Corr, 17 January 2006, para 102]. Rule 94(1) provides with another instance of specific application of the general provisions under Rule 102. Rule 94(1) states that the victims’ request for reparations has to be made “in writing”. This departs from the original draft rule that also considered requests being made “in electronic form” [Lewis and Friman, 2001, p. 480]. However, under Rule 102 general provisions, alternative forms of communications to the ICC such as audio, video or other electronic forms are covered and allowed under certain conditions, which are indeed necessary when, for example, the victim is disabled or illiterate [Perez-Leon-Acevedo, 2014, p. 668].
   Regulation 25 of the Regulations of the Court fleshes out Rule 102 by providing the contents of communications other than in writing: “A person making a communication to the Court under rule 102 shall indicate at the start of the communication: (a) His or her identity; (b) The situation or case number, if known; (c) The Chamber seized of the matter, if known; (d) The name of the person to whom article 55, paragraph 2, or article 58 applies, the accused, convicted or acquitted person, if known; (e) The purpose of the communication; (f) When referring to a specific event, to the extent possible, the location, date and individuals involved”.

Cross-references:
Rules of Procedure and Evidence, Rule 94(1); Regulations of the Court, Regulations 25 and 86(2).
 
Doctrine: 
1. Peter Lewis and Håkan Friman, “Reparations to Victims” in Roy Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, pp. 474-491.

2. Juan-Pablo Perez-Leon-Acevedo, Victims' Status at International and Hybrid Criminal Courts: Victims’ Status as Witness, Victim Participants/Civil Parties and Reparations Claimants, Åbo Akademi University Press, Åbo/Turku, 2014.

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
19 April 2018

[192] Amicus curiae and other forms of submission
1. At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate[194].

2. The Prosecutor and the defence shall have the opportunity to respond to the observations submitted under sub-rule 1.

3. A written observation submitted under sub-rule 1 shall be filed with the Registrar, who shall provide copies to the Prosecutor and the defence. The Chamber shall determine what time limits shall apply to the filing of such observations.

General remarks
Rule 103 deals with the principles and procedure concerning submission of amicus curiae. An amicus curiae, or a friend of the court, is an established institution of domestic courts and, its traditional role has been understood as: “A friend of the court. A term applied to a bystander, who without having an interest in the cause, of his own knowledge makes suggestion on a point of law or of fact for the information of the presiding judge” [Krislov, 1963, p. 694]. However, this role has changed throughout time and now is accepted as a partisan advocate rather than a neutral informer in some countries [Williams and Woolaver, 2006, p. 152]. Before examining the ICC’s case-law on amicus curiae, attention is paid to relevant case-law on this matter at other international and hybrid criminal courts and, to some extent, national criminal courts.

Amicus curiae practice at international, hybrid and national criminal courts
Rule 74 (“Amicus Curiae”) common to the Rules of Procedure and Evidence of the ICTY, the ICTR and the SCSL reads as follows: “A Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to any State, organization or person to appear before it and make submissions on an issue specified by the Chamber”. Accordingly, amicus curiae submissions, to some extent, constitute some manner of victim’s “participation” due to the fact that victims and their representatives may appear as amici at the respective tribunals [Brouwer, 2005, p. 291; Perez-Leon-Acevedo, 2014, p. 422]. However, the victim participant status as such during trial is/was inexistent at the ICTY, the ICTR and the SCSL. In any event, Rule 74 provided broad discretion to a Chamber to permit any individual or group to appear as an amici and worked under either invitation or spontaneous application [Williams and Woolaver, 2006, p. 155].
   With regard to the ICTY’s practice on rule 74, the admissibility of amicus curiae submissions involves the following: i) discretion of the Chamber; ii) the primary criterion is whether the Chamber would be assisted in its consideration of the questions at issue; iii) submissions must be limited to questions of law and cannot include factual evidence relating to elements of a crime charged; and iv) amicus curiae submissions concerning legal questions have been generally allowed [Prosecutor v. Gotovina and Markac, ICTY T. Ch., Decision on Application and Proposed Amicus Curiae Brief, IT-06-90-A, 14 February 2012, para. 3. See also inter alia Prosecutor v. Sainovic et al., Decision on David J. Scheffer's Application to File an Amicus Curiae Brief, IT-05-87-A, 7 September 2010, p. 2]. Taking into consideration the ICTR’s case-law, four rules on the admissibility of amicus curiae can be identified: i) the relief sought must fall within the tribunal’s jurisdiction, and not within that of the Prosecution or the defence; ii) the brief must deal with an issue that is relevant to the case at hand; iii) when the amicus curiae deals with legal and non-factual arguments, the amicus curiae applications are granted much more readily; and iv) amicus curiae briefs must not be employed simply to advertise the views or causes of the applicants [Williams and Woolaver, 2006, pp. 170-172 (referring to the ICTR’s jurisprudence)].
   Amicus curiae briefs have been filed, for example, by women’s organizations and individuals to back up sexual violence victims. At the ICTR, amicus curiae briefs were filed on a similar matter but with different outcomes in Akayesu and Ntagerura et al. In Ntagerura et al., the brief was rejected as this would equal “to transgressing upon the independence of the Prosecutor and impugning the integrity of the Tribunal as an arbiter of international law” [Prosecutor v. Ntagerura et al., ICTR T. Ch., Decision on the Application to File an Amicus Curiae Brief According to Rule 74 of the Rules of Procedure and Evidence Filed on Behalf of the NGO Coalition for Women’s Human Rights in Conflict Situations, ICTR-99-46-T, 24 May 2001]. In Akayesu, the Chamber never decided on the amicus curiae brief submitted; however it contributed to the Chamber’s decision on the need for the Prosecutor’s subsequent investigations into sexual violence [De Brouwer, 2005, p. 295]. This led to the Prosecutor’s finding of additional evidence of sexual violence and inclusion of sexual crimes charges in the indictment [Prosecutor v. Akayesu, ICTR T. Ch., Judgment, ICTR-96-4-T, 2 September 1998, para. 417]. At the ICTY, in Furundžija, the Chamber did not consider two amicus curiae briefs that challenged the re-opening of a case and cross-examination of a rape witnesses as these briefs were filed too late and, thus, the Chamber set a controversial precedent in detriment of sexual violence victims’ rights and interests on privacy, equality, security and protection [De Brouwer, 2005, p. 298]. Nevertheless, the briefs produced effects as the Prosecution and defence responded them, particularly, the Prosecution filed motions seeking to protect the rights of the rape witness [Prosecutor v. Furundžija, Judgment, IT-95-17/1-T, 10 December 1998, para. 37].
   In Bagosora et al., the amicus curiae brief filed by Belgium on behalf of the Belgians affected by the massacres in Rwanda to argue their right as plaintiffs and not mere witnesses was found inadmissible by the ICTR as the determination of penalties only follows after conviction, and the defence and Prosecution are the only parties [Prosecutor v. Bagosora, ICTR T. Ch., Decision on the Amicus Curiae Application by the Government of the Kingdom of Belgium, Trial Chamber, ICTR-96-7-T, 6 June 1998, pp. 2-4]. In turn, Rwanda applied to appear as amicus curiae at the ICTR to argue, inter alia, for the restitution of stolen property to their rightful owners and call additional witnesses, which the ICTR rejected as this found that: i) there was no allegation of unlawfully taken property in the indictment; and ii) restitution claims were premature before determination of guilt [Prosecutor v. Bagosora et al., ICTR T. Ch., Decision on Amicus Curiae Request by the Rwandan Government, Trial Chamber, ICTR-98-41-T, 13 October 2004].
   The SCSL was more active than the ICTY and the ICTR in inviting amicus curiae submissions from international organizations and leading academics rather than just accepting unsolicited briefs [Williams and Woolaver, 2006, p. 175]. When there was such invitation, there was no need to apply for leave and the court neither gave reasons for its request nor demonstrated how the briefs could assist the determination of the case [SCSL, Practice Direction on Filing Amicus Curiae Applications Pursuant to Rule 74 of the Rules of Procedure and Evidence of the Special Court for Sierra Leone, 20 October 2004, article 1 (2)]. Moreover, whereas the finding of references to amicus curiae submissions in the ICTY and ICTR judgments seems to be difficult, the SCSL normally summarized these submissions (in addition to those of the Prosecution and the defence) at the beginning of the judgments [Williams and Woolaver, 2006, p. 179]. For example, in Norman the majority relied on a conclusion in the amicus curiae submitted by the University of Toronto International Human Rights Clinic to conclude that “citizens of Sierra Leone, and even less, persons in leadership roles, cannot possibly argue that they did not know that recruiting children was a criminal act in violation of international humanitarian law” [Prosecutor v. Norman, SCSL A. Ch., Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72(E), 31 May 2004, para. 52 (citing Toronto International Human Rights Clinic brief, para. 69)].
   At international and hybrid criminal courts, where victims can intervene not only as witnesses but also as victim participants (ICC, Special Tribunal for Lebanon (STL)) or civil parties (Extraordinary Chambers in the Courts of Cambodia (ECCC) and at which they can additionally claim and be granted reparations (ICC, ECCC), amicus curiae briefs are also admitted as provided in their respective rules of procedure and evidence [ICC RPE, Rule 103; ECCC Internal Rules, Rule 33 (“Amicus Curiae Briefs. 1. At any stage of the proceedings, the Co-Investigating Judges or the Chambers may, if they consider it desirable for the proper adjudication of the case, invite or grant leave to an organization or a person to submit an amicus curiae brief in writing concerning any issue. The Co-Investigating Judges, and the Chambers concerned shall determine what time limits, if any, shall apply to the filing of such briefs […]”); STL RPE, Rule 131 (“Third Parties and Amicus Curiae. (A) The Trial Chamber may decide, after hearing the Parties, that it would assist the proper determination of the case to invite or grant leave to a State, organization, or person to make written submissions on any issue, or to allow a State, organization, or person to appear before it as amicus curiae […]”.)].
    Submission of amici curiae may be also important in cases of serious human rights violations and/or international crimes at national criminal proceedings. This is for example illustrated by the case against the former Peruvian President Alberto Fujimori, who was convicted by the Supreme Court of Peru as a mediate or indirect perpetrator in control of an apparatus of power for the Barrios Altos and La Cantuta massacres-qualified as crimes against humanity [Barrios Altos, La Cantuta and SIE Basement Case, Supreme Court of Peru-Special Criminal Chamber, Judgment, File No. AV-19-2001, 7 April 2009, para. 717]. As acknowledged by the Supreme Court, alongside the written arguments brought by the parties to the proceedings, i.e., Prosecutor, accused and civil parties, six amicus curiae briefs were admitted, namely four submitted by legal clinics/law schools and the other two by NGOs [Barrios Altos, La Cantuta and SIE Basement Case, Supreme Court of Peru-Special Criminal Chamber, Judgment, File No. AV-19-2001, 7 April 2009, para. 29.2]. These amicus curiae briefs found admissible by the Supreme Court of Peru helped it have access to a painstaking analysis of a wide array of international law sources such as jurisprudence of international criminal courts and tribunals and relevant legal literature on definitions of international crimes and modes of criminal liability. All of this legal information was exhaustively systematized and examined in the briefs of international human rights and/or public legal clinics participating in Fujimori’s trial.

Overview of the ICC’s practice on amicus curiae briefs 
In general, the ICC Chambers have followed a mixed practice on acceptance of application to file amici curiae. Whereas some case-law has suggested that the application would only be accepted provided that indispensable assistance to the ICC is given, other cases have applied a lower threshold. As of December 2015, approximately only one-third of the applications files were accepted, the ICC Judges have mentioned that NGO amicus curiae briefs have been only sparely accepted and have been overall speaking reluctant to embrace amicus curiae briefs to avoid complication of the proceedings [Brimelow et al, 2016, pp. 2-3]. Taking into account the available case-law, the following conditions are required to successfully apply: i) the submission has to assist the ICC, which involves that the issues of concern are relevant and live before a particular chamber; ii) timely submission and not likely to delay the proceedings substantially; iii) the organization must possess expertise on the respective issue and this expertise would not otherwise be available to the Court; and iv) the organization must not intrude on the ICC’s inherent functions of applying law and examining evidence. Generally speaking, most successful applications have focused on legal issues [Brimelow et al, 2016, p. 3].  
   As ICC practice shows, a diverse range of actors have filed amicus curiae briefs at different procedural stages in cases and situations at the ICC. These actors have mainly included: i) academic institutions such as universities, particularly law faculties and/or university centres or institutes; ii) civil society organizations, especially, human rights NGOs; and iii) international bodies and/or international experts.           

ICC’s case-law on amicus curiae briefs
The rationale for admission of amicus curiae at the ICC is to have: “the opportunity to get experts’ information on relevant issues of legal interest for the proceedings” [Prosecutor v. Lubanga, ICC A. Ch., 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, ICC-01/04-01/06-3129, 3 March 2015, para. 248; Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Request submitted pursuant to rule 103(1) of the Rules of Procedure and Evidence, 17 August 2007, para. 4]. Under Rule 103, states, organisations or individuals willing to participate in the ICC proceedings can submit amicus curiae. According to Rule 103, the decision of granting the leave to an applicant to submit observations as amicus curiae involves an evaluation of whether these observations both are “desirable for the proper determination of the case” and relate to an issue that the Chamber deems appropriate as determined on a case-by-case basis at a specific procedural stage [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Request submitted pursuant to rule 103(1) of the Rules of Procedure and Evidence, 17 August 2007, paras. 2-3 and 5].
   At the discretion of the Chamber, to rule on an application for leave to participate as amicus curiae, it must determine whether the applicant’s proposed observations are useful to properly determine the case and, thus, be satisfied that the applicant’s proposals may assist it in ruling on the case [Prosecutor v. Katanga and Ngudjolo Chui, ICC. T. Ch. II, Decision on Amicus Curiae an application and on the “Requête tendant à obtenir présentations des témoins DRC‐D02‐P‐0350, DRC‐D02‐P‐0236, DRC‐D02‐P‐0228 aux autorités néerlandaises aux fins dʹasile” (articles 68 and 93(7) of the Statute), 9 June 2011, para. 53; Prosecutor v. Lubanga, ICC. T. Ch. I, Decision Inviting Observations from the Special Representative of the Secretary General of the United Nations for Children and Armed Conflict, ICC‐01/04‐01/06‐ 1175, 18 February 2008, para. 7; Prosecutor v. Lubanga, ICC. A. Ch., Decision on “Motion for Leave to File Proposed Amicus Curiae Submission of the International Criminal Bar Pursuant to Rule 103 of the Rules of Procedure and Evidence”, ICC‐01/04‐01/06‐1289, 22 April 2008, para. 8; Prosecutor v. Bemba, Appeals Chamber, Decision on the application of 14 September 2009 for participation as an amicus curiae, ICC‐01/05‐01/08‐602, 9 November 2009, para. 11]. 54. To establish whether the amicus curiae submissions are relevant for the proper determination of the case and, thus, grant the respective application to intervene, the competent Chamber must consider: i) whether the submissions ‘would be of indispensable assistance, or would provide information that it could not procure by other means’; and ii) the respective stage of the proceedings in the light of the filings received [Prosecutor v. Katanga and Ngudjolo Chui, ICC. T. Ch. II, Decision on Amicus Curiae an application and on the “Requête tendant à obtenir présentations des témoins DRC‐D02‐P‐0350, DRC‐D02‐P‐0236, DRC‐D02‐P‐0228 aux autorités néerlandaises aux fins dʹasile” (articles 68 and 93(7) of the Statute), 9 June 2011, para. 54].
   In Prosecutor v Bemba, Decision on Application for Leave to Submit Amicus Curiae Observations Pursuant to Rule 103 of the Rules of Procedure and Evidence , 9 April 2009, the Single Judge granted Amnesty International leave to ‘submit observations under rule 103(1) of the Rules on the following issues: i) The requisite mental element for military commanders; ii) Liability for the failure to punish as applied to non-state actors and; iii) Whether causation is an element of superior responsibility’. In Prosecutor v Lubanga, Order on application of the Ordre des avocats de Paris filed on 30 May 2007, 18 October 2007, Trial Chamber I considered that the issue of the resources allocated to the defence for Mr Thomas Lubanga Dyilo had been resolved by the Registrar. Thus, the Trial Chamber found the application for intervention in the proceedings as amicus curiae by the Ordre des avocats de Paris under rule 103 of the Rules of Procedure and Evidence was moot and dismissed the application. In Prosecutor v Katanga and Chui, Decision on the motion filed by the Queen’s University Belfast Human Rights Centre for leave to submit an amicus curiae brief on the definition of crimes of sexual slavery, 07 April 2011, the Trial Chamber rejected a leave to submit, as amicus curiae, written observations on the definition of crimes of sexual slavery. 
   A decision under Rule 103(1) is discretionary and ‘may be made after a request for leave to address the Chamber as an amicus curiae by an organisation, person or State, or the Chamber may, proprio motu, invite an organisation, person or State to participate as an amicus curiae if the Chamber considers it desirable to do so’ [Prosecutor v. Bemba, Appeals Chamber, Decision on the application of 14 September 2009 for participation as an amicus curiae, ICC‐01/05‐01/08‐602, 9 November 2009, para. 10]. If the observations that the applicant wish to make would merely repeat submissions already provided by the parties and participants, it is not desirable to admit them [Prosecutor v. Bemba, Appeals Chamber, Decision on the application of 14 September 2009 for participation as an amicus curiae, ICC‐01/05‐01/08‐602, 9 November 2009, para. 11]. In Prosecutor v. Lubanga, Decision on "Demande de déposition du représentant légal des demandeurs des victimes", 25 October 2007, Trial Chamber I considered the requests of the legal representative of a number of victims to be allowed to make submissions regarding victims' participation issues which have not been covered in the submissions of the current victims' representatives, pursuant to Rules 103 and 93. T. Ch. I stated ‘that Rule 103 is not intended to encompass the views of victims under its framework and instead allows for other forms of participation such as, inter alia, an independent amicus curiae or government submission’ and rejected the application. In any event, in Situation in Darfur, Decision of the Registrar Appointing Mr. Hadi Shalluf as ad hoc Counsel for the Defence, 25 August 2006, Pre-Trial Chamber I seemingly made a sort of a cross between a typical ‘friend of the court’ and a standby counsel. In Situation in Kenya, Decision on Application for Leave to Submit Amicus Curiae Observations, 18 January 2011, one of the persons who were subject to the Court's investigation applied to submit amicus curiae observations. The Pre-Trial Chamber stated that there is no legal basis for a person under the Prosecutor's investigation to submit observations at the current stage of proceedings. (para. 10). 
   The fact that an organisation filed its substantive observations on the appeals under Rule 103 without having obtained leave to do so does not necessarily result in rejection of the requests on this basis. Nevertheless, requests for leave under Rule 103 “should not include the substance of the proposed observations and […] the submission of observations is only permissible after a Chamber has either invited or granted leave to an individual, organisation, or state to make such a submission” [Prosecutor v. Lubanga, ICC A. Ch., Decision on the application by Child Soldiers International for leave to submit observations pursuant to rule 103 of the Rules of Procedure and Evidence, ICC-01/04-01/06-3044, 16 August 2013, para. 9]. The Appeals Chamber has the discretion to decide on granting leave to submit observations under Rule 103. The Appeals Chamber in the Decision on Child Soldiers International’s Requests to Intervene as Amici Curiae rejected a request to submit observations on three issues as these were “of an essentially legal nature, whereas Child Soldiers International is ‘a research and advocacy organization’” [Prosecutor v. Lubanga, ICC A. Ch., Decision on the application by Child Soldiers International for leave to submit observations pursuant to rule 103 of the Rules of Procedure and Evidence, ICC-01/04-01/06-3044, 16 August 2013, para. 11]. Pursuant to Rule 103(2), parties to a case must be given time to respond to amicus curiae observations brought by an organisation [Prosecutor v. Lubanga, ICC A. Ch., Decision on ‘Motion for Leave to File Proposed Amicus Curiae Submission of the International Criminal Bar Pursuant to Rule 103 of the Rules of Procedure and Evidence’, ICC-01/04-01/06-1289 (OA 11), 22 April 2008, para. 8]. ICC Chambers have issued orders inviting responses on applications for leave to submit observations as amici curiae [Prosecutor v. Lubanga, ICC A. Ch., Order inviting responses on two applications for leave to submit observations as amici curiae, ICC-01/04-01/06-3000, 26 March 2013, p. 3].     
   In its first decision setting the principles and procedures applicable to reparations, the ICC Trial Chamber I in Lubanga considered the written observations submitted by diverse civil society organizations [See Prosecutor v. Lubanga, ICC T. Ch. I, Decision Establishing the Principles and Procedures to be Applied to Reparations, ICC-01/04-01/06-2904, 7 August 2012, para. 14; Prosecutor v. Lubanga, ICC T. Ch. I, Decision Granting Leave to Make Representations in the Reparations Proceedings, ICC-01/04-01/06-2870, 20 April 2012]. Similar than in other procedural stages, victim participants were able to voice their own views and concerns via their own submissions. These submissions were considered by Trial Chamber I when drafting principles and procedures for reparations. This fact may arguably lead to consider amicus curiae advocating for victims’ interests as not as necessary as at the international and hybrid criminal tribunals where victims’ role is limited to that of being witnesses [Perez-Leon-Acevedo, 2014, p. 426].  
   Concerning the request of the Women’s Initiatives for Gender Justice to file an amicus curiae in the reparation proceedings in Lubanga, the Appeals Chamber noted that this organisation pointed out its expertise in gender justice and long experience with the ICC. Nevertheless, the ICC Appeals Chamber found that even if the said organisation “may offer a relevant contribution to the issue of whether victims of sexual and gender-based crimes are eligible for reparations, it has become clear that this aspect is not relevant for the determination of the appeals regarding these matters” [Prosecutor v. Lubanga, ICC A. Ch., 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, ICC-01/04-01/06-3129, 3 March 2015, para. 249]. Concerning the joint request filed by other organisations (Justice Plus, Terres des Enfants, Fédération des Jeunes pour la Paix Mondiale and Avocats Sans Frontières) in the same reparations proceedings, the Appeals Chamber noted that although these organisations filed their requests “for the purpose of contributing to the proper administration of justice”, they provided no further details as to how their observations would assist the proper determination of the specific issues and, therefore, the Chamber did not consider desirable for the proper determination of the case to grant leave to the said organisations under Rule 103(1) [Prosecutor v. Lubanga, ICC A. Ch., 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, ICC-01/04-01/06-3129, 3 March 2015, paras. 250-251].
   When inviting representatives of specific organisations (for example Louise Arbour, then High Commissioner of the Office of the United Nations High Commissioner for Human Rights and Antonio Cassese, Chairperson of the International Commission of Inquiry on Darfur, Sudan) to submit observations, the Chambers have considered the importance of these observations for clarifying current and specific issues and preserving evidence and, in general, to achieve certain objectives such as the protection of victims [Situation in Darfur, ICC PT. Ch. I, Decision inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, ICC-02/05-10, 24 July 2006, pp. 4-6]. The fact that an organisation’s request for leave to submit observations was rejected once does not preclude it from re-filing a new request for leave to submit observations in the same situation or case [Situation in the Democratic Republic of the Congo, ICC PT. Ch. I, Decision on the Request submitted pursuant to rule 103(1) of the Rules of Procedure and Evidence, ICC-01/04-373, 17 August 2007, p. 4].
   When inviting Rule 103 submissions in writing and, where applicable, at the public hearing organised by a Chamber, the competent Chamber has considered inter alia the global expertise or the presence in the field of the invited organisations and entities that have included states, regional authorities, the UN (including its specialized agencies), and non-governmental organisations [Prosecutor v. Lubanga, T. Ch. II, Order pursuant to rule 103 of the Rules of Procedure and Evidence, ICC-01-04-01/06-3217, 15 July 2016, para. 8]. As indicated in Rule 103(2), the parties to the proceedings have been invited to respond orally, at the end of the hearing, to the written and oral observations [Prosecutor v. Lubanga, T. Ch. II, Order pursuant to rule 103 of the Rules of Procedure and Evidence, ICC-01-04-01/06-3217, 15 July 2016, para. 11].
 
Doctrine: 
Kirsty Brimelow et al., Shaping the Law: Civil Society Influence at International Criminal Courts-International Law Programme Meeting Summary, Chatam House/The Royal Institute of International Affairs, London, 25 January 2016.    

Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence. The ICC and the Practice of the ICTY and the ICTR, Intersentia, Oxford/Antwerp, 2005.

Samuel Krislov, “The Amicus Curiae Brief: From Friendship to Advocacy”, Yale Law Journal, vol. 72, no. 4, 1963, pp. 694-721.

Juan-Pablo Perez-Leon-Acevedo, Victims' Status at International and Hybrid Criminal Courts: Victims’ Status as Witness, Victim Participants/Civil Parties and Reparations Claimants, Åbo Akademi University Press, Åbo/Turku, 2014.

Sarah Williams and Hannah Woolaver, “The Role of the Amicus curiae before International
Criminal Tribunals”, International Criminal Law Review, vol. 6, no. 2, 2006, pp. 151-189.

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
20 April 2018