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ICC confirms rejecting Katanga s request to suspend trial; Updates on Lubanga trial; Op-ed by Luis Moreno-Ocampo

12 July 2010

Dear All,

Please find below the latest press release issued by the International Criminal Court (ICC) on the latest Appeals Chamber decision in the Katanga/Ngudjolo case and related coverage (I), news coverage on the Lubanga trial, including the stay of proceedings (II), opinion pieces, including an op-ed by Luis Moreno-Ocampo on the situation in the Democratic Republic of Congo (DRC).

Please also take note of the Coalition's policy on situations before the ICC (below), which explicitly states that the CICC will not take a position on potential and current situations before the Court or situations under analysis. The Coalition, however, will continue to provide the most up-to-date information about the ICC.

Best regards,

CICC Secretariat
http://www.coalitionfortheicc.org/

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I. KATANGA/NGUDJOLO TRIAL

For previous summaries of the Katanga/Ngudjolo trial, please visit Aegis Trust’s website: http://www.aegistrust.org/Katanga-Trial/

A. ICC PRESS RELEASE

[This document has been produced by the ICC. The CICC Secretariat distributes it as part of its mandate to keep member organizations and individuals informed about developments related to the ICC. The document does not reflect the views of the CICC as a whole or its individual members.]

i. “Appeals Chamber confirms the decision rejecting the motion of Germain Katanga for stay of proceedings,” ICC Press release, ICC-CPI-20100712-PR556, 12 July 2010, http://www.icc-cpi.int/NR/exeres/3385EB2D-2477-416A-9801-6664C5029723.htm

“Today, the Appeals Chamber of the International Criminal Court, decided by majority, with Judge Kourula and Judge Trendafilova dissenting, to dismiss the appeal of Germain Katanga against the decision entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings” of Trial Chamber II of 20 November 2009. Judge Nsereko, presiding judge in this appeal, read a summary of the judgment in open session.

On 30 June 2009, Mr Katanga filed a motion requesting a declaration for unlawful detention and a stay of the proceedings against him for his alleged unlawful arrest and detention in the Democratic Republic of the Congo prior to his surrender to the Court. On 20 November 2009, Trial Chamber II rejected the Defence motion without considering its merits, finding that it was submitted too late, inter alia because the motion was filed seven months after the Trial Chamber’s invitation to the parties to submit any relevant issues on which they sought a ruling of the Chamber.

The Appeals Chamber observed that the Court’s legal instruments underscore the need for diligence and expeditiousness in the proceedings and agreed with the Trial Chamber’s determination that the parties must act “in a timely manner” or within a reasonable time, in keeping with considerations of efficiency and judicial economy. The Appeals Chamber found that the decision of the Trial Chamber did not infringe Mr Katanga’s right to a fair hearing and that he had been given adequate notice and opportunity to raise the issue of his alleged unlawful pre-surrender arrest and detention.

The dissent considered that the Trial Chamber erred when it decided that the Defence motion was inadmissible for having been filed at too advanced a stage in the proceedings. Accordingly, the dissent concluded that the Trial Chamber’s decision should be reversed and remitted to the Trial Chamber for a consideration on the merits.

In reaching this conclusion, Judge Erkki Kourula and Judge Ekaterina Trendafilova found that the Trial Chamber erred in establishing, for the first time in its decision, requirements applicable to the filing of the Defence motion and applying them retroactively to the detriment of Mr Katanga. They also found that the Trial Chamber erred in the exercise of its discretion when it failed to properly balance the factors in article 64 (2) of the Statute, placing too much emphasis on expeditiousness at the expense of the rights of Mr Katanga.

B. RELATED NEWS

i. “Court allows trial for Congo's Katanga to continue,” Reuters, 12 July 2010, http://af.reuters.com/article/topNews/idAFJOE66B0GD20100712

“The International Criminal Court ruled on Monday that the war crime trial of former Congo militia leader Germain Katanga must continue, rejecting his appeal to dismiss the case as unlawful.

Katanga, 32, went on trial last November on charges he directed an attack on a Congolese village in 2003 that killed more than 200 people. He has pleaded not guilty.

Katanga, in ICC custody since 2007, filed a motion in 2009 to stay the proceedings against him, arguing that he had been unlawfully detained in Congo prior to surrendering to the court.

The judges rejected it on procedural grounds, saying it was filed too late.

... It was the second major ruling in one of the ICC's Congo trials in less than a week.

Last Thursday, the judges hearing the case of accused warlord Thomas Lubanga called a halt to the trial, saying the prosecution was not cooperating with an order to turn over certain information.”

ii. “ICC rejects call to halt DRC militia chief trial,” AFP, 12 July 2010, http://www.google.com/hostednews/afp/article/ALeqM5gaZfuf0vDkak8GzKx5o7006PbyBQ

“The International Criminal Court rejected Monday an appeal by former Congolese militiaman Germain Katanga to have his detention declared unlawful and his war crimes trial stopped.

Judge Daniel Nsereko said the appeals chamber had found no error in a court decision in November that dismissed on procedural grounds an earlier bid by Katanga to halt the case....”

iii. “ICC's first case - DR Congo's Lubanga - is suspended,” AngolaPress , 12 July 2010, http://www.portalangop.co.ao/motix/en_us/noticias/africa/2010/6/28/ICC-first-case-Congo-Lubanga-suspended,84124ac8-844d-4a7c-99f8-a0f6061cfa31.html

“... The trial of a former rebel leader from the Democratic Republic of Congo, Thomas Lubanga, has been suspended.

Judges at the International Criminal Court in The Hague said the prosecutor had failed to follow proper procedure by refusing to identify a key witness.

Lorraine Smith of the International Bar Association at The Hague told the BBC the suspension created "a PR nightmare" as it was the ICC's first case.

Mr Lubanga has pleaded not guilty to charges of recruiting child soldiers....

The office of the prosecutor - Luis Moreno-Ocampo - said it would appeal the decision, AFP news agency reports.

Ms Smith said the trial of Mr Lubanga, which opened in 2009 after seven-month delay over disputed confidential evidence, has been ‘plagued by a number of challenges’....”

iv. “ICC suspends Lubanga's war crimes trial,” AFP/ RNW, 11 July 2010, http://www.rnw.nl/international-justice/article/icc-suspends-lubangas-war-crimes-trial

“The International Criminal Court has suspended Congolese militia chief Thomas Lubanga Dyilo's trial and rapped prosecutors for abusing court processes and ignoring judges' orders.

… Prosecutor Luis Moreno-Ocampo's office responded: ‘We will appeal in the coming days.’

… The judgment said the judges had ordered the prosecutor to disclose to Lubanga's defence team the name of an ‘intermediary’, but he had refused.

‘No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the prosecutor to elect whether or not to implement it,’ said the judgment.

… ‘We are satisfied with the chamber's decision that the prosecutor cannot hold himself above the judges,’ Lubanga's lawyer Catherine Mabille told AFP Thursday.

… Prosecutors allege that Lubanga's militia abducted children as young as 11 from their homes, schools and football fields and took them to military training camps where they were beaten and drugged. The girls among them were used as sex slaves.

The child soldiers were allegedly deployed in combat between September 2002 and August 2003….”

SEE ALSO:

v. “ICC: No stay of proceedings in Katanga Trial,”Hague Justice Portal, ý12 July 2010, http://www.haguejusticeportal.net/eCache/DEF/11/868.TGFuZz1FTg.html
vi. “Katanga Defence Question Witness Reliable,” 18 June 2010, By Ashleigh Gray
(IWPR) http://www.iwpr.net/report-news/katanga-defence-question-witness-reliable

II. LUBANGA TRIAL

For previous summaries of the Lubanga trial, please visit Aegis Trust’s website: http://www.aegistrust.org/Lubanga-Trial/ and Open Society Justice Intiative’s Lubangatrial.org: http://www.lubangatrial.org/

A. “Judges Issue Warning To Prosecutors As Lubanga’s ICC Trial Is Halted,” By Wairagala Wakabi (The Lubanga Trial blog), 12 July 2010, http://www.lubangatrial.org/2010/07/10/judges-issue-warning-to-prosecutors-as-lubanga’s-icc-trial-is-halted/

“This week saw judges at the war crimes trial of Thomas Lubanga suspending the proceedings and declaring that they would issue warnings to senior officials of the Office of The Prosecutor (OTP) for misconduct before the court.

Judges at the International Criminal Court (ICC) Thursday halted the proceedings in the trial of the former Congolese rebel leader, citing abuse of the court’s process. The judges also said they planned to send a formal warning to senior OTP officials ‘for a deliberate refusal to implement our unequivocal orders’.

When presiding judge Adrian Fulford asked Deputy Prosecutor Fatou Bensouda who the warning should be addressed to, she said it should be to herself and ICC Prosecutor Luis Moreno-Ocampo.

According to the judges, the immediate cause of the stay of proceedings was the prosecution’s ‘unequivocal refusal to implement the repeated orders’ made by judges for the disclosure of the identity of ‘intermediary 143’ to the defense.

The individual referred to as ‘intermediary 143’ worked as an agent of prosecution investigators in the Democratic Republic of Congo (DRC) in identifying persons who testified against Mr. Lubanga. In hesitating to comply with the judges’ orders, prosecution staff yesterday submitted that revealing the identity of ‘intermediary 143’ before protective measures were put in place for him would have put his life at risk.

‘The evidence that has come out demonstrates that there is a risk in Bunia that you can be killed, or one can be killed if the Hema community considers you to be a traitor, and the persons who are witnesses against Lubanga or who assist witnesses against Lubanga are regarded as traitors,’ Sara Criscitelli, the prosecution coordinator, told judges on Wednesday.

However, on the same day the judges ruled twice that they did not have reason to believe that ‘intermediary 143’ would be in danger if his identity were revealed to the defense team, including their ‘resource person’ based in Congo, and to no one else.

Prosecutors said the intermediary needed to be relocated and for other protective measures to be offered to him before it was safe to reveal his name, even to the few people the judges had proscribed.

‘It is the duty of the Office of The Prosecutor, as well as the court, to protect persons who may be at risk because of interaction with the court, and that is a fundamental, absolute duty of

protection,’ argued Criscitelli. ‘It’s not flexible. It’s not one that can be weighed against other factors.’

While announcing the stay of proceedings on Thursday, judge Fulford said the prosecution had declined to obey the order issued by judges.

He said that the court would on July 15, 2010 hear submissions regarding the continued detention of Mr. Lubanga, who has been held in The Hague by the ICC since March 2006. He added that the judges were ready to receive an application from prosecutors for appeal of the stay of proceedings decision.

Otherwise, Judge Fulford stated, proceedings against Mr. Lubanga were being halted in their entirety. ‘There are to be no filings, no submissions, no applications on any issues other than those which I have just indicated,’ judge Fulford said, referring to the readiness of judges to receive application for leave of appeal and regarding Mr. Lubanga’s continued detention.

‘That means that the court officer currently in the DRC should return. We do not propose to hear any further evidence. Witness 38 should receive our apologies if he has been inconvenienced as should the other witnesses whose evidence we had intended to hear by way of a video link,’ Judge Fulford stated....

Mr. Lubanga’s defense has claimed that prosecution intermediaries bribed and coached witnesses to provide false testimony to court. This prompted judges to order prosecutors to produce two intermediaries to testify, and to disclose the identity of ‘intermediary 143’. Three prosecution investigators have also been ordered to take the witness stand although none has appeared yet.

Mr. Lubanga’s defense has indicated in recent days that it was on the verge of filing an application for judges to consider throwing out the case against Mr. Lubanga, on the grounds of the abuse of process perpetuated by the intermediaries. ...”

SEE ALSO:

i. “Lubanga Trial Stalls As Prosecutors Fight To Keep Their Man’s Identity Secret,” By Wairagala Wakabi (The Lubanga Trial blog), 7 July 2010, http://www.lubangatrial.org/2010/07/07/lubanga-trial-stalls-as-prosecutors-fight-to-keep-their-man’s-identity-secret/

ii. ICC suspends trial of Congolese warlord accused of recruiting child soldiers,” Accra Daily Mail,12 July 2010, http://accra-mail.com/index.php?option=com_content&view=article&id=19117:icc-suspends-trial-of-congolese-warlord-accused-of-recruiting-child-soldiers&catid=66:world&Itemid=215

iii. “ICC's first case - DR Congo's Lubanga - is suspended,” BBC News, 9 July 2010, http://news.bbc.co.uk/2/hi/world/africa/10571522.stm
iv. “ICC Trial Suspended Because Prosecutors Failed to Disclose Information,” Int’l Law Prof Blog, 9 July 2010, http://lawprofessors.typepad.com/international_law/2010/07/icc-trial-suspended-because-prosecutors-failed-to-disclose-information.html
v. “Judge suspends "unfair" trial of Congo warlord,” 8 July 2010, AP, http://www.google.com/hostednews/ap/article/ALeqM5hEHBZ-JfCxUm5NY_dGnY0ctHn1vgD9GR49VG1
vi. “Lubanga Trial is Stayed Again,” 8 July 2010, By William A. Schabas, PhD studies in human rights (blog), http://humanrightsdoctorate.blogspot.com/2010/07/lubanga-trial-is-stayed-again.html

B. “A Family Member Calls for Congo Militia Leader's Immediate Release,” 9 July 2010, By James Butty (VOA News), http://www1.voanews.com/english/news/africa/Butty-DR-Congo-Lubanga-Trial-React-Dzbo-09july10-98089734.html

“A family member of former Congolese militia leader Thomas Lubanga is calling for his immediate release from further detention.

This comes after the International Criminal Court (ICC) Thursday suspended Mr. Lubanga's trial, citing the prosecutor's refusal to turn over relevant information to the defense.

Sylvia Dzbo, a cousin to Mr. Lubanga said the ICC has no evidence to justify Mr. Lubanga’s continued detention.

“The last time that Prosecutor Luis Moreno Ocampo was at Bunia he talked with one of my cousins. He was there to make sure all the proof against Thomas Lubanga was wrong. The last word to from him was that Thomas Lubanga will be released soon. Then we heard there will be a trial. But now they say no it’s suspended. But we don’t understand because they know everything that was said against him was wrong,” she said. …”

C. “Intermediary Denies Coaching Witnesses,” 7 July 2010, By Wairagala Wakabi (IWPR) http://www.iwpr.net/report-news/intermediary-denies-coaching-witnesses

“An intermediary of prosecution investigators at the International Criminal Court, ICC, has denied that he told children to give false testimony in the trial of alleged Congolese warlord Thomas Lubanga.

At the start of his testimony last week, intermediary 321 told the court that he never asked the children to lie about their ages, the villages they came from or their association with the armed wing of the Union of Congolese Patriots, UPC, which Lubanga is alleged to have led.

Intermediary 321 took the stand at the request of judges, after a number of defence witnesses implicated him in various acts of corrupting evidence.

Some witnesses claimed that this intermediary bribed individuals who were never child soldiers to lie to investigators that they were former members of the UPC.

Responding to a question from prosecuting lawyer Nicole Samson, intermediary 312 said, "I already knew that they were children who had been part of the war and I could not have any influence on them."

Samson then asked, "Did you encourage any of the children to say that they had been forcibly recruited by Thomas Lubanga?"

The intermediary replied that he had no reason to ask the children to tell lies about the way they became fighters for the UPC. …”

III. COMMENTARIES/OPINION PIECES

i. "Rome Statute – Already 8 Years ! " (« Statut de Rome de la CPI : 8 ans déjà ! »), By Luis Moreno Ocampo, ICC Prosecutor, 3 July 2010 http://www.afriqueredaction.com/article-statut-de-rome-de-la-cpi-8-ans-deja-53349368.html (French)

[Unofficial Translation into English provided by the CICC Secreteriat]

The DRC has paid a heavy price for war and crimes committed during the conflicts that have succeeded on its territory…. It started at the forefront of the fight against impunity by giving its citizens to the ICC when it knew it could not try them on its own. The country understood that the ICC was a court serving the Congolese victims, detached from issues of national, international, or political interests, a court that could help the courts of States parties in a difficult position…
There is still a long way to go and some obstacles to overcome: Two lawsuits are already pending before the ICC, those of Thomas Lubanga and Germain Katanga and Mathieu Ngudjolo, and the trial against Jean-Pierre Bemba should begin in the coming days.

Bosco Ntaganda, who is subject to a warrant of arrest issued by the ICC on 22 August 2006, is still at large. He must be stopped as soon as possible so that never again the capacity of harm, violence and committing crimes is regarded as a legitimate means of access to public, military or political office...

And finally, according to numerous sources of public information, the most serious crimes, including sexual violence and gender crimes, continue to be committed in the DRC, including by the Lord's Resistance Army, the FDLR, CNDP and some members of the FARDC.

But justice is in full motion and the DRC has all the cards to confirm its original commitment and its first positive steps in the fight against impunity and ensure justice for its people.
In the DRC, the rule of law is being established where the life of every Congolese citizen is protected. The ICC is contributing to these efforts so that, in future, the Congolese people will never again be terrorized by militia leaders or individuals thinking they can enjoy impunity due to their status. "

ii. “Taking a Stand Against Impunity in Congo,” By Makuba T. SEKOMBO (MJPC), 24 June 2010, http://mjpcongo.org/StandAgainstImpunity.aspx

“It is morally indefensible in the 21st century that people like General Laurent Nkunda, General Bosco Ntaganda and other military officers of the FARDC (Congolese army forces), and militia leaders accused of committing horrific war crimes and crimes against humanity walk freely and that national as well international communities accommodate this cruel reality that drags on justice in the name of making peace. Why believe that one can make peace without justice? Peace without justice is a joke as stated the former Prime Minister of Guinea-Konacry, Francois Lousény.

Without hypocrisy or complacency, it is time that the truth be told, everyone be challenged, even those who believe that the Congolese government is doing a very good job. Impunity as a sign of the absence of the judicial system or the ineffectiveness of existing judiciaries institutions in the country today, is obvious everywhere in the Congo and constitutes the source of the resurgence of armed conflicts, rape of women and girls, multiple murders of journalists and of human rights activists, such as the most recent horrific murder of Floribert Chibaya, the executive director of the ONG "Voix de sans Voix” (“voice of the Voiceless”), the typical example, the illustration of a country still in political turmoil. …”


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