Dec
17

Mbarushimana Case Dismissed at Confirmation of Charges Hearing

The pre-trial chamber of the International Criminal Court (ICC) hearing the case against Callixte Mbarushimana has dismissed the charges, finding the prosecution did not establish probable cause to hold Mbarushimana for trial. The case against Mbarushimana, previously detailed here, claimed that he, as the Executive Secretary of the Democratic Forces for the Liberation of Rwanda, (FDLR) directed, and had command responsibility for six counts of war crimes and five counts of crimes against humanity in the Democratic Republic of Congo (DRC). At the time of his arrest, the Office of the Prosecutor (OTP) detailed the charges this way:

[T}he OTP alleges that Mr. Callixte
MBARUSHIMANA is responsible for the war
crimes of (1) attacks against the civilian
population; (2) destruction of property; (3)
murders or willful killings; (4) rape; (5)
inhuman treatment; and (6) torture, and the
crimes against humanity of (1) murders; (2)
torture; (3) rape; (4) inhumane acts; and (5)
persecution.

The court offered the following explanation in its press release on the order, the 215 page order is available here:

Today, 16 December 2011, Pre-Trial Chamber I of the International Criminal Court (ICC) decided by Majority, the Presiding Judge Sanji M. Monageng dissenting, to decline to confirm the charges in the case of The Prosecutor v. Callixte Mbarushimana and to release Mr Mbarushimana from the custody of the Court, on the completion of the necessary arrangements.

The Majority of the Chamber, comprising Judge Sylvia Steiner and Judge Cuno Tarfusser, found that there was not sufficient evidence to establish substantial grounds to believe that Callixte Mbarushimana could be held criminally responsible, under article 25(3)(d) of the Rome Statute, for the eight counts of war crimes and five counts of crimes against humanity brought against him by the Prosecutor.

This decision does not preclude the Prosecutor from subsequently requesting the confirmation of the charges against Callixte Mbarushimana if such request is supported by additional evidence. Both the Prosecutor and the Defense may also appeal the decision declining to confirm the charges and the order for the release of Mr Mbarushimana.

Factual findings

On the basis of the evidence presented, the Chamber found that there are substantial grounds to believe that, from at least 20 January 2009 until at least 31 December 2009, an armed conflict not of an international character took place in the North and South Kivus, in the Democratic Republic of Congo (DRC), between the forces of the Government of the DRC, supported at times by Rwandese forces (RDF) or the forces of the United Nations Mission in the Democratic Republic of Congo, on the one side, and at least one organised armed group, the Forces Démocratiques pour la Libération du Rwanda – Forces Combattantes Abacunguzi (FDLR), on the other.

The Chamber found substantial grounds to believe that FDLR troops committed several war crimes in different locations and at different times, particularly in Busurungi and surrounding villages in March 2009 (murder) as well as on or about 9 to 12 May 2009 (attacking civilians, murder, mutilation, rape, cruel treatment, destruction of property and pillaging); in Manje on or about 20 July 2009 (attacking civilians, murder, cruel treatment and destruction of property); in Malembe on or about 11 to 16 August 2009 (attacking civilians and destruction of property), and in Mianga on or about 12 April 2009 (attacking civilians, murder and destruction of property).

Although the Chamber found substantial grounds to believe that acts amounting to war crimes were perpetrated in five out of the twenty-five occasions identified by the Prosecutor, the Majority found that the evidence submitted was insufficient to be convinced of the existence of substantial grounds to believe that such acts were part of a course of conduct amounting to “an attack directed against the civilian population” pursuant to or in furtherance of an organisational policy to commit such attack, within the meaning of article 7 of the Rome Statute which defines crimes against humanity. Accordingly, the Majority found that there were not substantial grounds to believe that crimes against humanity were committed by the FDLR troops.

The Majority of the Chamber, with the Presiding Judge dissenting, further found that Callixte Mbarushimana did not provide any contribution to the commission of the alleged crimes, even less a “significant” one.

Background

The DRC ratified the Rome Statute, the founding instrument of the International Criminal Court, on 11 April 2002. On 3 March 2004, the Government of the DRC referred to the Court the situation (the events falling under the Court’s jurisdiction) in its territory since the entry into force of the Rome Statute on 1 July 2002. After a preliminary examination, the Prosecutor initiated an investigation on 21 June 2004.

On 28 September 2010, Pre-Trial Chamber I issued a warrant of arrest under seal for Mr Mbarushimana. The warrant was unsealed on 11 October 2010. On 25 January 2011, the French authorities surrendered Mr Mbarushumana to the Court. He was then transferred to the Court’s Detention Centre in The Hague. In the Document Containing the Charges, the Prosecutor charged Mr Mbarushimana with five counts of crimes against humanity (murder, inhumane acts, rape, torture, and persecution) and eight counts of war crimes (attacking civilians, murder, mutilation, cruel treatment, rape, torture, destruction of property and pillaging). The Confirmation of Charges hearing was held from 16 to21 September 2011.

Besides Callixte Mbarushimana, three persons have been transferred to the Court with respect to the situation in the DRC: Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui. A warrant of arrest has also been issued against a forth (sic) person, Bosco Ntaganda, but has yet to be executed.

Investigations are ongoing with respect to the situation in the DRC

This is the second time a pre-trial chamber has declined to confirm the charges against an accused, the first was the case against Bahar Idriss Abu Garda, who had his case dismissed in February 2010.  The prosecution may appeal the court’s determination to not confirm the charges, and is expected to do so. The appeals chamber confirmed the dismissal in Abu Garda’s case.

Dec
06

Vanuatu Ratifies ICC Treaty

Vanuatu has now ratified the International Criminal Court (ICC) Treaty, becoming the 120th nation to acceded to ICC jurisdiction. The ICC has jurisdiction to prosecute war crime, crimes against humanity and genocide which occurs within the territory of the nations which have ratified the treaty, or committed by nationals of those nations, or when referred to court by the United Nations Security Council.

The court has ongoing prosecutions in the Democratic Republic of Congo, the Central African Republic, the Darfur region of Sudan, Ivory Coast, and involving post election violence in Kenya.  There are also indictments from Uganda, though none of indictees, all members of the Lord’s Resistance Army have appeared before the court.  The court has also issued indictments from Libya, upon referral of the Security Council, though one of the indictees, Muammar Qadafi was killed, and the other two are currently in custody in Libya, and may not be transferred to the court.  The past president of Ivory Coast, Laurent Gbagbo has made his first appearance in the court this week, though Ivory Coast is not a signatory to the treaty, it has accepted ICC jurisdiction.

 

 

Sep
26

What is Left of the Victims Right to Select Counsel?

Trial Chamber IV of the International Criminal Court, ICC, recently ordered that in the Sudan case currently moving towards trial, two lawyers will be representing all victims at the court.  The case, against alleged rebel leaders Abdallah Banda Aadaker Nourain and Saleh Mohammed Jerbo Jamus, is proceeding to trial on the following charges:

  • violence to life, whether committed or attempted, within the meaning of article 8(2)(c)(i) of the Statute;
  • intentionally directing attacks against personnel, installations, material, units or vehicles involved in a peacekeeping mission within the meaning of article 8(2)(e)(iii) of the Statute; and
  • pillaging within the meaning of article 8(2)(e)(v) of the Statute.

The court had previously confirmed the charges, a proceeding roughly equivalent to a probable cause hearing.  The question now, is can two lawyers adequately represent the victims in the case?  A question previously pondered here.   The court in the Bemba case, which has by far the largest number of victims, over 1,600 so far, started the trend by ordering two lawyers from the Central African Republic should be appointed as counsel.

Article 75 of the Rome Statute gave victims a right to seek reparations:

Article 75
Reparations to victims
1. The Court shall establish principles relating to reparations to, or in respect of, victims,
including restitution, compensation and rehabilitation. On this basis, in its decision
the Court may, either upon request or on its own motion in exceptional circumstances,
determine the scope and extent of any damage, loss and injury to, or in respect of,
victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying
appropriate reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation.
Where appropriate, the Court may order that the award for reparations be made
through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and shall take account
of representations from or on behalf of the convicted person, victims, other interested
persons or interested States.
4. In exercising its power under this article, the Court may, after a person is convicted of
a crime within the jurisdiction of the Court, determine whether, in order to give effect
to an order which it may make under this article, it is necessary to seek measures
under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the provisions of
article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of victims under
national or international law.

Article 68, Paragraph 3 gives the victims a right to participate and to counsel during the proceedings:

Where the personal interests of the victims are affected, the Court shall permit their
views and concerns to be presented and considered at stages of the proceedings
determined to be appropriate by the Court and in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial. Such views and
concerns may be presented by the legal representatives of the victims where the Court
considers it appropriate, in accordance with the Rules of Procedure and Evidence.

The ongoing question to be resolved will be, does the court’s practice of appointing very few lawyers prejudice that right?  Will the lawyers who undertake the responsibility be given the resources and opportunities to maintain proper contact with their clients?

The ICC, based in The Hague, Netherlands, has jurisdiction in the 118 nations that have signed on to the Treaty of Rome, or over their citizens, or in case referred to it by the U.N. Security Council, so far Libya and Darfur.  The court investigates charges of war crimes, crimes against humanity, and genocide occurring within its jurisdiction since the founding of the court which was in 2002.

Aug
31

Philippines Ratifies the Rome Statute

This week The Philippines became the 117th nation to ratify the Rome Statute and submit its citizens and politicians to the jurisdiction of the International Criminal Court (ICC). The nation offered the following official statement:

“The Philippines, a democracy that champions international law and the rule of law, views being party to the Rome Statute of the ICC as a vital part of the on-going global campaign to end impunity and violence against individuals and to further strengthen a rules-based international system, specifically in relation to international human rights law and humanitarian law,” Philippine Permanent Representative Ambassador Libran Cabactulan said.

“It is a clear signal of the importance with which the Philippines places to this treaty,” he added.

Ambassador Cabactulan further elaborated that, “The ICC also serves as a deterrent against genocide and other heinous crimes and ensures that all perpetrators of these serious crimes of concern are held accountable.

The ICC sits in The Hague, The Netherlands and has jurisdiction to investigate and prosecute war crimes, crimes against humanity and genocide within the territory of the 117 nations that have ratified the treaty, or by their citizens, or when the United Nations Security Council refers a situation to the ICC for investigation.  So far, the Security Council has referred the situation in Darfur, Sudan and in Libya.  In response the prosecutor has sought, and obtained, warrants for the arrest of two heads of state, Muammar Qadafi of Libya, and Omar Al Bashir, President of Sudan.

State’s Parties to the Rome Statute are, among other things charged with enforcing the court’s warrants.  Should those with outstanding warrants appear on their territory, those 117 nations are expected to effect the arrest.

Aug
29

Will Muammar Qadafi Appear at the ICC?

When the United Nations referred the situation in Libya to the International Criminal Court (ICC) in February, there seemed to be a theory that it would reduce the violence with which the regime responded, and that it would deter others from responding to uprisings with force.  Neither has quite happened, and now there seems to be a growing movement to ignore the ICC indictment and let Libya determine the appropriate resolution for Qadafi.  Since rebels took control of Tripoli, it has been reported that a bounty of $2 million has been placed on the “arrest or death” of Qadafi, along with amnesty for the claimant.

In July, the ICC issued arrest warrants for Qadafi, his son Saif, and the country’s intelligence chief.  British Prime Minister David Cameron recently appeared to voice support for a Libyan process rather than the ICC process.  This led to at least one commentator to argue to the contrary.  According to lawyer Geoffrey Robertson:

It is too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered “judicial” in any real sense). It must now be reconstructed from scratch, with new judges independent of the National Transitional Council. That gimcrack organisation’s UN spokesman said that it wants to organise Gaddafi’s trial, but it is plainly unable to secure an unbiased legal process when he does fall into its hands. The bounty on his head seems to confirm the NTC’s preference for Gaddafi’s summary execution.

There is a more important reason of principle why the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity – the mass murder of civilians by perpetrating offences so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi.

This is a bit of overstatement, given that the mandate from the U.N. Security Council was only to investigate crimes against humanity, war crimes occurring since February, 2011.  Other commentators have questioned whether the ICC has the tools and credibility to carry out the investigation and prosecution, with all the cases going on, the lead prosecutor leaving at the end of his term next year.

Whatever the resolution of the Libya cases, whether or not they wind up in The Hague will be a key test of the credibility of the ICC.  Can the ICC truly be an institution of international justice or will it be a threat rarely fulfilled?

Jul
18

Are Victims Getting Short Shrift at the ICC?

Radio Netherlands reports that an NGO, REDRESS, believes the court is not focusing enough resources on the needs of victims. The REDRESS statement is available here. According to REDRESS:

Registry officials at the ICC have warned judges that they can’t
process the paperwork to enable victims to take part in crucial Court hearings, because they
simply have too few staff.

Earlier this month (4th July), Trial Chamber I ruled that hundreds of pending applications
from victims wanting to participate in the Callixte Mbarushimana confirmation of charges
hearing would be left out, because the Registry could not meet the deadline to process the
applications that had been set by the Court.

This decision will deny 470 victims who potentially qualify to participate in the case, a voice
during the confirmation of charges hearing, due to take place on 17 August 2011. This is
significant for victims who often perceive the Court as a remote institution and see the
confirmation of charges hearing as the first opportunity for their lawyers to make a
statement on their behalf.

The statement also offers the following comment:

“Victims are paying the price for the failure to properly resource the Registry. Victim participation is one of the most innovative features of the ICC, designed to involve in the justice process those most affected by crimes. Now, victims are finally coming forward to engage with the Court but the Court is not ready or capable to deal with them. If this resource issue is not resolved, victim participation will become a meaningless paper promise,” says Carla Ferstman, REDRESS’ Director.

The statement continued:

Mbarushimana is not the only case affected. In the Ruto case (Kenya) the Registry indicated
that it would only be able to process 400 out of 1800 applications. In the Muthaura case
(Kenya), the Registry also stressed that it would not be able to process all of the applications
from victims. So far, almost 2,000 victims are affected but the problem is likely to worsen in
the resource issue is not addressed.
The Court is finalising its Budget for 2012 which will soon be discussed with States that are
party to the Rome Statute, who are expected to pay. Despite the fact that the Court is now
working on many new investigations, including from Libya, Cote D’Ivoire and Kenya, some
States have been insisting on a ‘zero-growth’ budget from the previous year.
“States have recognised the importance of the Court by continuing to refer it new cases, but
have not matched this with adequate financial support. While recognising the financial
constraints on many States, why create a Court then prevent it from fulfilling its mandate?
Excluding victims from being involved in Court hearings is just another way to say they don’t
matter. This is the wrong signal to send to victims and affected communities.”

This is not the first time the court’s commitment to victim’s issues has been questioned.  Previously, in the Jean-Pierre Bemba Gombo case, the court ordered that all recognized victims were to be represented by two lawyers.  Bemba has the largest number of participating victims,  1620 so far.  It is not clear how the two lawyers have an opportunity to establish a relationship with, or adequately represent, all the victims. Recently the Victims section has similarly solicited counsel to apply to be common legal representatives for all the victims in forthcoming Sudan and Kenya cases.

Victim participation in the proceedings is described in Article 68 (3) of the Rome Statute:

Where the personal interests of the victims are affected, the Court shall permit their
views and concerns to be presented and considered at stages of the proceedings
determined to be appropriate by the Court and in a manner which is not prejudicial to or
inconsistent with the rights of the accused and a fair and impartial trial. Such views and
concerns may be presented by the legal representatives of the victims where the Court
considers it appropriate, in accordance with the Rules of Procedure and Evidence.

The question raised by both the Bemba order and the REDRESS statement is how the court will meet those obligations.  Do the current measures and increasing consolidation of representation adequately safeguard the victim’s interests?  What procedures and funds are in place to allow the counsel to adequately represent hundreds or thousands of victims?  Can any one or two lawyers adequately perform that function?

Victims have a right to offer their observations and arguments on motions before the court, offer some evidence and question witnesses.  Victims may also seek reparations from the court if a conviction is entered.  The exact form of those reparations is not yet known.  The first case, against Thomas Lubanga began in 2009 and is not yet completed.

The International Criminal Court sits in The Hague, The Netherlands.  It is a permanent court intended to punish War Crimes, Crimes Against Humanity or Genocide occurring within the 115 nations that have ratified the Rome Statute, or situations referred to the court by the United Nations Security Council, as has happened in Darfur, Sudan, and Libya.  Ivory Coast has also accepted the jurisdiction of the court for crimes occurring in Post-Election violence, even though it is not a signatory to the treaty.

Jun
06

Katanga Witnesses Testify, then Seek Asylum

Three witnesses who testified for the defense in the International Criminal Court (ICC) cases against Germain Katanga and Matthieu Ngdolo Chui sought asylum in The Netherlands after their testimony.

According to the Katanga trial website,  the witnesses testified that the government of the Democratic Republic of Congo (DRC) was responsible for the Bogoro attack, one of the allegations against the accused.  The case raises difficult questions for the ICC and its obligations to protect witnesses.   The three claim that by testifying against the government of the DRC they have put themselves at risk, and cannot safely return to the DRC.  They have asked the court to keep them in The Netherlands until Dutch authorities rule on the asylum requests.

The court has an obligation to protect witnesses, but cannot provide asylum.  Returning the witnesses to the DRC if they would be harmed would clearly not be in keeping with the court’s obligation to protect witnesses, but there is a limit to how long the court could hold them in custody, and it has no place to put them that is not custody.

The registry and its Victim and Witnesses Unit is trying to determine whether the safety of the witnesses can be adequately guaranteed with a return to the DRC.  The witnesses were in DRC custody when brought to The Hague.  The question to be resolved is whether or not returning them to DRC custody puts them at greater risk.

The case against Katanga and Chui is the second ICC case to go to trial.  Katanga and Chui are accused of war crimes and crimes against humanity. Katanga is alleged to have been the commander of the Patriotic Resistance Force of Ituri, (FRPI) and Chui is alleged to have been the leader of the Nationalist Front of Integrationists (FNI) both fighting against the government of the DRC.

The indictment alleges that Germain Katanga and Mathieu Ngudjolo Chui allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

The trial began in November, 2009. The defense began presenting its case in April of 2011.

 

May
27

ICC Opens Ivory Coast Probe

The International Criminal Court (ICC) announced this week that the prosecutor has opened an investigation into the recent post election violence in Ivory Coast.  Pre-Trial Chamber II has been assigned to oversee the investigation.  Although Ivory Coast has not ratified the Rome Statute and is not a state party, it  accepted the court’s jurisdiction in April of 2003, and again this year.

According to the press release, the prosecutor has determined that crimes within the jurisdiction of the court, meaning war crimes, crimes against humanity or acts of genocide, have occurred in Ivory Coast since November of 2010.  The decision is available here. The prosecution’s request to open a case is available here.

Apr
21

Lubanga Trial Closes Evidence Phase

Trial Chamber I of the International Criminal Court (ICC) in The Hague, Netherlands, has declared a closed the evidentiary phase of the trial of Thomas Lubanga Dyilo. The court had previously announced the schedule for closing arguments, previously discussed here, which Judge Adrian Fulford announced will not be changed. “The clock has started ticking and nothing save an earthquake will stop it,” The Lubangatrial.org blog reports him as saying.

Thomas Lubanga Dyilo is the first person to face the International Criminal Court. He is accused of the war crimes of recruiting, using and conscripting child soldiers.  He was brought to the court in 2006, and his trial began in January of 2009.  The defense began presenting it’s case in January 2010.  The case stopped several times because of the prosecution cross examining witnesses with information that had not been disclosed to the defense.  At one point, the trial chamber issued a stay, finding that Lubanga could not get a fair trial, the appeals chamber reversed, but disclosure of evidence has continued to be an issue. The trial chamber again recently ruled on the disclosure problems and denied another defense request to end the trial because of the disclosure issues.

The questions raised by the ongoing disclosure issues were discussed in part, here.  Ultimately, the attitude and actions of the prosecutor in timely and properly disclosing evidence will determine whether or not an accused may get a fair trial at the court.  That, and the court’s reaction to the prosecution’s failure to comply with rules and court orders will determine the credibility of the court.  The court has been much in the news lately, which has added to American awareness of its existence.  It’s continued existence will require credibility in fair trials for the accused followed fair treatment of the victims in the reparations process when there is a conviction.

 

Apr
13

Lubanga Closing Scheduled

Although testimony is still being taken, Trial Chamber I of the International Criminal Court (ICC) has set out a timetable for the closing arguments in the trial of Thomas Lubanga Dyilo.  The order states that the prosecution and the victims should go first and must make their submissions by June 1, 2011. Although it is common to have simultaneous submissions, the court ordered the prosecution to submit its argument first:

In light of the legal and factual developments since the commencement of the trial, which led, inter alia, to the most recent defence application for a stay of the proceedings based on an abuse of the process by the prosecution, the Chamber is of the view that it is necessary for the Prosecutor to file his written closing statement first. The accused is entitled to know, once the evidence has closed, the legal and factual basis on which the Prosecutor maintains he is guilty. In this particular case, the lack of clearly identified bases could, potentially, result in the defence responding to evidence that is no longer relied on. In the circumstances, the logic underlying Rule 141(2) of the Rules that  establishes the right of the defence to examine witnesses last also applies to these final written submissions. The defence is therefore entitled to file
its closing submissions once the arguments of the prosecution and the legal representatives have been submitted.

The prosecution’s closing argument is to be no more than 250 pages long and the victim’s submissions to be no more than 50 pages long for each team.  The defense has until July 15, 2011 to file a response of up to 300 pages.  The prosecution than can file a response on August 1, the defense has until August 15 to file a rebuttal to the prosecutor argument.  On August 25 and 26 the court will hear oral arguments about the case from the prosecution and defense as well as the victim’s legal teams and the Office of Public Counsel for Victims.

The chamber directed the parties to address the following issues in their closings:

i) Whether there was an armed conflict in Ituri, Democratic Republic of
Congo, between 1 September 2002 and 13 August 2003?
ii) If there was an armed conflict for the purposes of i) above, is there a
nexus between the armed conflict and the alleged crimes?
iii) Was the armed conflict of an international character or not of an
international character, for the purposes of Article 8 of the Statute?

iv) If the Chamber concludes that it was not of an international character,
what factors should be taken into account if the Chamber considers
modifying the legal characterisation of the facts (under Regulation 55)
for the period of early September 2002 to 2 June 2003?
v) What does the prosecution need to establish in this case under Article
25(3)(a) of the Statute?
vi) What is the meaning of the terms “conscripting” or “enlisting”
children under the age of fifteen years into the national armed forces,
into armed forces or armed groups or “using them to actively
participate in hostilities”, for the purposes of Articles 8(2)(b)(xxvi) and
8(2)(e)(vii) and the corresponding Elements of the Crimes?
vii) What does the prosecution need to establish under Article 30 of the
Statute, bearing in mind Article 8(2)(b)(xxvi)(3) and Article
8(2)(e)(vii)(3) of the Elements of Crimes?

Apparent in the order is the concern that the court has not resolved for itself whether the discovery violations which were complained about recently, stopped the trial last summer, and have been at issue a number of times in the case, have deprived Lubanga of a fair trial.

Lubanga is the first person to face trial in the ICC.  He was brought to The Hague in 2006, his trial began in January 2009, the defense case began in January 2010.  He is accused of war crimes including conscripting and using child soldiers as leader of the Union of Congolese Patriots in the Democratic Republic of Congo.

At the ICC, victims are allowed to participate to a limited extent in the trial, including motions and commenting on evidence.  The victims may also seek an order for reparations from the court if there is a conviction.

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