In courtrooms everywhere, an impartial, independent, and competent bench is essential to conducting all trials, and especially those entailing complex legal issues, while maintaining scrupulous fidelity to the rights of the accused and while managing proceedings efficiently. At the International Criminal Court, the bench shares with other organs of the court responsibility for meeting unique challenges including shaping the practice and policy of an international treaty-based institution, making meaningful a new model of victims participation, protecting witnesses and victims in diverse, conflict-affected regions, and building support for the work of the court through representational activities, all while developing the nascent field of international criminal law.
These responsibilities are carried forward by the 18 judges of the courts Chambers, elected by the Assembly of States Parties (ASP)2 to staggered, non-renewable nine-year terms and split between an appeals, trial, and pre-trial division.3 In addition, the Presidency, comprised of a president, first vice-president, and second vice-president elected by the judges from among their ranks, forms a separate organ of the court and has responsibility for administration of the Chambers and for overseeing the Registry.4
Drawing from the experience of other tribunals, Human Rights Watch believes that it is vitally important for the court to have judges with prior experience in criminal proceedings whether as judges, prosecutors, or defense attorneys. Requiring criminal trial experience among the judges of the pre-trial division has already born evident fruit in the confirmation of charges hearing before Pre-Trial Chamber I for Thomas Lubanga, the courts first such hearing. The pre-trial chambers presiding judge, Judge Claude Jorda, a List A judge and past president of the International Criminal Tribunal for the former Yugoslavia (ICTY), balanced a determination to move the proceedings along with flexibility when the parties needed changes to the ordered schedule. Judge Jorda was also able to fairly and efficiently manage what was, at times, a combative defense.
It is premature, however, to make a conclusive assessment of the performance of the Presidency and Chambers. Although the judges of the court have already carried out many substantial tasks since the bench was first constituted in 2003,10 at this writing, pre-trial proceedings have been completed in only one case, and the court is on the eve of its second confirmation of charges hearing and first trial.11 This section is limited accordingly to the efforts of the Presidency to promote coordination among the courts organs and to the working-out by the pre-trial division of its innovative mandate.
The responsibilities of the Presidency under the courts statute, rules, and regulations are varied.
Chiefly responsible for court administration,12 the Presidency has varied duties including constituting pre-trial and trial chambers;13 replacing judges, designating alternative judges, and making temporary assignments to the three divisions of the Chambers;14 reviewing certain Registry decisions;15 concluding agreements on international cooperation;16 inspecting the courts detention center;17 and carrying out many of the courts functions in connection with the enforcement of sentences.18
The courts first president, Judge PhilippeKirsch of Canada, has additionally assumed a representational role. In numerous private meetings, conferences, seminars, and speeches, Judge Kirsch has effectively worked to promote broader ratification of the Rome Statute and pressed for increased international cooperation and support for the court, including through communications with the ASP focal point on cooperation19 and with the Committee on Budget and Finance (CBF). The presidents work to press for broader ratification of the Rome Statute has had an impact: for example, Mexico ratified the Rome Statute within one year of a personal visit by the president.20 Human Rights Watch welcomes the example set by the current president and encourages his successorto be elected early next yearto continue efforts to marshal support for the court through these and other activities.
Consistent with his administrative responsibilities, the president plays a role in improving the courts internal functioning. Early concerns were expressed about division and lack of coordination between the courts organs, including by the CBF in its March 2004 report.21 In response, the courts organs committed themselves to a One Court principle prioritizing coordination on administrative matters while respecting the independence of each organ. 22 Nonetheless, the CBF reiterated its same concerns in its August 2004 review of the courts 2005 draft budget. 23 As Human Rights Watch also observed at the time, the draft budget did not reflect any common approach toward the core functions of the court, and, in fact, the plans of the different organs seemed to duplicate rather than complement one anothers work.24
Such tensions and duplications may have been inevitable in a developing institution working out complicated issues of policy and practice. In response to these expressions of concern, the president asserted institutional unity of purpose25 and took concrete steps to improve coordination. These included increasing the frequency of meetings of the Coordination Council26a body composed of the president, prosecutor, and registrar which facilitates administrative coordination27and establishing inter-organ working groups.28 The working groups now include the Strategic Plan Project Groupwhich led to the courts 2006 Strategic Plan, discussed belowand the Victims Participation Working Group.
The presidents interventions have gone some way toward increasing dialogue and cooperation, but further efforts are required. In key areas including outreach and field operations where the organs of the court share overlapping responsibilities, a coordinated approach has not always been evident, limiting the courts ability to maximize its impact with affected communities.29 And a lack of communication between the organs is palpable to external actors who must interact with the court on issues including international cooperation.
While the independence of the prosecutor and the bench should not be compromised, the president should continue his leadership efforts to underscore the importance of internal coordination. Such coordination is essential to meeting the courts unique responsibilities and challenges as an international treaty-based institution of a fundamentally different character to national courts and prosecutions.
In addition, Human Rights Watch encourages the president to exercise continued leadership in the development of a shared vision among the courts organs. The courts 2006 Strategic Plan aims at identifying common institutional goals, guiding budgeting, and increasing states parties understanding of ICC operations.
Human Rights Watch placed great emphasis on the opportunity presented by the development of a strategic plan. This was, in our view, a chance for the courts organsdeeply immersed in their day-to-day challengesto step back and project a long-term vision for the court. Instead of reviving the spirit that animated the 1998 Rome conference and setting a course that would ensure the courts impact on those communities affected by crimes within the courts jurisdiction, the Strategic Plan focused primarily on in-court proceedings and court management, with a limited contribution to a shared sense of purpose among the organs.30
The court has continued to develop subsidiary strategic documents in key areas, including a prosecutorial strategy, outreach strategy, counsel strategy, and victims strategy.31 The development of these documents offers the court continued opportunities to develop and articulate a shared vision. The president can encourage this approach through the Coordination Council. In addition, we note that the Presidency has been provided with a budget to hire a Strategic Planning Coordinator, but this position remains vacant.32 We encourage the Presidency to make use of this position to consolidate progress on the Strategic Plan.
ICC situations33 are assigned by the Presidency to a three-judge pre-trial chamber following information received from the prosecutor that a situation has been referred either by a state party or the United Nations Security Council or that the prosecutor intends to request authorization for an investigation.34 Cases35 arising from situations remain with the pre-trial chamber through the confirmation of charges hearing which concludes pre-trial proceedings.36 There are currently three pre-trial chambers: Pre-Trial Chamber I is assigned to the Democratic Republic of Congo and Darfur situations and cases; Pre-Trial Chamber II is assigned to the northern Uganda situation and case; and Pre-Trial Chamber III is assigned to the Central African Republic situation.37
The pre-trial division at the ICC is the first for any international criminal justice mechanism; it represents one important innovation of the Rome Statute. At the tribunals for the former Yugoslavia and Rwanda, trial chamber judges have shouldered responsibility for pre-trial court proceedings and, apart from orders of the court required to aid investigation, there is little provision for judicial control during investigations until the prosecutors presentation of an indictment for confirmation.38 The Rome Statute, by contrast, establishes a pre-trial division with responsibility not only to carry cases forward to trial by issuing arrest warrants;39 presiding over a defendants initial appearance before the court and safeguarding his or her rights;40 and making rulings on early admissibility challenges;41 but also with substantial responsibilities even during investigations.
These include issuance of orders as requested by the prosecutor in aid of investigations,42 oversight of the prosecutor through authorization of investigations initiated by the prosecutor proprio motu,43 and review of decisions by the prosecutor not to pursue investigations or prosecutions.44 Such a review may be undertaken at the request of a state or the Security Council,45 and where a decision not to proceed is based on the prosecutors determination that it would not be in the interests of justice, the pre-trial chamber may also review the prosecutors determination on its own initiative.46
Cases brought by the prosecutor are not automatically committed to trial; instead, the pre-trial chamber must first conduct a confirmation of charges hearing to determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.47 Charges that are not confirmed by the pre-trial chamber are dropped.48
The pre-trial chamber is also responsible alongside the prosecutor for the protection and privacy of victims and witnesses and for the preservation of evidence.49 At the request of the prosecution, the pre-trial chamber may take measures to ensure the integrity and efficiency of any proceedings in connection with a unique investigative opportunity, that is, a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for purposes of a trial.50 But where the prosecutor fails to request such measures, the pre-trial chamberwhich must be informed by the prosecution of any such investigative opportunitycan also take measures on its own initiative if it concludes that the prosecutors failure to request measures is unjustified.51
Finally, under regulation 48 of the Regulations of the Court, the pre-trial chamber may request the Prosecutor to provide specific or additional information or documents in his or her possession, or summaries thereof, that the Pre-Trial Chamber considers necessary to carry out its functions under articles 53(3)(b), 56(3)(a), and 57(3)(c).52
The pre-trial chamber harnesses common and civil law traditions to provide oversight of the prosecutors investigations, set up cases for trial, and conserve judicial resources. Although it is still too early in the courts development to make a comprehensive assessment, the pre-trial chambers unique responsibilities may help to increase the efficiency of proceedings.
The utility of formalized judicial oversight provided by the pre-trial chambers at an early phase of proceedings is already apparent.
For example, the pre-trial chamber has acted to protect the interests of the defense on discrete issues, even prior to the issuance of arrest warrants or to the initial appearances of defendants before the court. In the DRC situation, pursuant to article 56 of the Rome Statute,53 Pre-Trial Chamber I appointed ad hoc counsel to represent defense interests with regard to forensic examinations requested by the prosecution.54 In the Darfur situation, Pre-Trial Chamber I appointed ad hoc counsel to represent the interests of the defense when, under rule 103, it invited expert observations on the protection of victims and on the preservation of evidence.55 Ad hoc counsel of the Office of Public Counsel for the Defence (OPCD), discussed in part III.B.1, below, have also been appointed by Chambers to review applications for victims participation during investigations56 and to represent any defense interests implicated by notice of proposed activities by the courts Trust Fund for Victims (TFV).57
In addition, the pre-trial division has acted to facilitate proceedings by requesting state cooperation pursuant to article 87 of the Rome Statute. Pre-Trial Chamber II, for example, sought information from the government of Uganda as to the impact of an agreement providing for national accountability measures, signed between the government of Uganda and the Lords Resistance Army (LRA), on the chambers outstanding arrest warrants against LRA commanders.58 At a time when Ugandas commitment to genuine accountability for crimes committed by the LRA was in question,59 the chambers request was a useful reminder of Ugandas obligations under the Rome Statute and prompted an official clarification by the government of the agreements provisions.60
Perhaps most significantly, early decisions by the pre-trial chambers have created a foundation for interpretation of the Rome Statute.
In the DRC situation, Pre-Trial Chamber I provided a first interpretation of certain of the statutes admissibility criteria in issuing its arrest warrant for Thomas Lubanga, the head of the Union of Congolese Patriots (UPC), a prominent militia group accused of committing atrocities during conflict in the northeastern Democratic Republic of Congo district of Ituri. The chamber held that national proceedings that can preempt the courts jurisdiction under article 17(1)(a)consistent with the Rome Statutes emphasis on the court as complementary to national criminal jurisdictions61must encompass both the person and the conduct which is the subject of the case before the Court.62 The chamber also gave content to article 17(1)(d), which requires that a case be of sufficient gravity to justify further action by the Court. The chamber indicated that only the most senior leaders suspected of being the most responsible for crimes within the jurisdiction of the ICC should be tried before the court.63 By providing one interpretation of the boundaries of the ICCs jurisdiction, this decision has shaped perceptions of what cases ought to be investigated by the prosecutor and to be heard by the court.
When Pre-Trial Chamber I subsequently confirmed the charges against Lubanga, it again reached several issues of first impression. For example, under article 61(7), to confirm charges, the pre-trial chamber must, on the basis of a hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Navigating between competing interpretations set forward by the prosecutor, defense, and a victims legal representative, the chamber determined that the language substantial grounds to believe required the prosecutor to bring forward concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations, and for the chamber to assess that evidence as a whole in making its determination as to whether to send the suspect to trial.64 The pre-trial chamber also laid out the elements that must be met for a finding of co-perpetration, a basis of individual criminal liability provided for in article 25(3)(a) of the Rome Statute.65
As discussed elsewhere more extensively in this report,66 the Rome Statute provides victims with a novel right of participation in court proceedings that goes beyond the narrow role of prosecution witness.67 Victims have appeared only as witnesses before the ICTY and the International Criminal Tribunal for Rwanda (ICTR) (and also before the Special Court for Sierra Leone (SCSL), established subsequent to the Rome Statute in 2002, although the 2001 law establishing the Extraordinary Chambers in the Courts of Cambodia (ECCC) provides for victims participation more broadly). Working out the details of victims participation before the ICC, however, has proved to be among the most significant challenges confronted thus far. The pre-trial chambers have expended much effort in setting up and managing systems of victims participation. Although the Chambers have sometimes differed in their approaches, decisions by Pre-Trial Chambers I and II have granted victims procedural status during investigations, sketched out modalities of victims participation in situations and cases, enumerated criteria for establishing victim status, and made arrangements for legal assistance to victim participants and applicants (see Part VII.B.1, below).
Decisions of the pre-trial chamberssome of which are discussed in more detail in Human Rights Watchs March 2007 summary of the courts early jurisprudence68may come under review by the appellate division after a final judgment in the case, or, in certain circumstances, through interlocutory appeal.69 Indeed, the substantial efforts of the pre-trial chamber in working out the scope and modalities of victims participation have been revised by the trial chamber in one case and are now under review in a number of respects by the appeals division (see Part VII.B, below). Taken together, however, these early decisions provide an important starting point for the difficult task of working out the statutes many novel provisions, and from which subsequent interpretations may be drawn.70
The ICCs blend of common and civil law traditions creates a unique intersection between the roles of the pre-trial division and the prosecutor. While it stops short of creating a true investigative judge in the tradition of civil law, the Rome Statute confers on the pre-trial division powers and functions as described above at the investigation phase and during charging proceedings that would be out of place in a common law system. Efforts by the pre-trial chamber to work out the limits of its role in respect of the prosecutors mandate has at times led to obvious tension between the two organs, particularly where the pre-trial chamber has taken a proactive approach.
For example, across the situations, the pre-trial chambers use of various provisions of the courts statute, rules, and regulations to engage the Office of the Prosecutor on the progress and direction of his investigations has met with the prosecutors strong response.
In the first-ever decision rendered by the pre-trial division in February 2005, Pre-Trial Chamber I decided to convene a status conferencethat is, a hearing before the chamberin the DRC situation.71 The chamber was apparently concerned that action was required on its part to protect witnesses and to preserve evidence, and it relied on its responsibilities for these activities under article 57(3)(c) to convene the status conference.72
The OTP filed a submission in response, terming the pre-trial chambers intervention unwarranted under the circumstances and unauthorized as a general matter during the investigative stage.73 The OTP prefaced its submission by noting that the interplay between Pre-Trial Chamber and Prosecution is a sensitive matter that lies at the heart of the compromises reached in Rome between different legal traditions and values. The OTP described the relationship between the two organs as one in which investigation is entrusted to the Prosecution while the pre-trial chamber is permitted to engage in specific instances of judicial supervision over the Prosecutions investigative activities, and the OTP urged that this delicate balance between both organs must be preserved at all times in order to honour the Statute, and to enable the Court to function in a fair and efficient matter.74
Pre-trial chambers now routinely convene status conferences during investigations. For example, several months later, Pre-Trial Chamber II convened a conference on the status of investigations in the Uganda situation, apparently concerned that the prosecutor may have decided against prosecution of alleged crimes committed by Ugandan government forces on the basis of certain comments of the prosecutor to a meeting of legal advisors of foreign affairs ministries and of his statement at the fourth session of the ASP. The chamber cited its ability under article 53(3)(b) to review on its own initiative decisions of the prosecutor not to proceed with a prosecution under article 53 because it would not be in the interests of justice,75 as well as its specific request in an earlier decision to be informed promptly and in writing of any such decision.76 The OTPs public submission in advance of the status conference clarified that no decision had been reached under article 53(3) and that analysis of alleged crimes committed by the Ugandan national army was ongoing.77
Although it did not convene a status conference, Pre-Trial Chamber III also relied on its supervisory role under article 53(3) to seek an update from the OTP on its analysis of the situation in the Central African Republic. The situation was referred to the prosecutor by the CAR government on December 22, 2004; two years later no determination had been made by the OTP as to whether to initiate an investigation.78 Prompted by a request of the CAR government for an update, the pre-trial chamber directed the prosecutor to provide it and the CAR government with a report on the status of his offices analysis.79 The prosecutor objected, arguing that the pre-trial chambers reviewing powers under article 53 are not triggered in the absence of a decision by the prosecutor not to proceed with an investigation under article 53(1), but complied with the chambers request, reserv[ing] its position on the proper scope of the legal provisions cited by the Chamber in its 30 November 2006 Decision, the division of competences between the OTP and Pre-Trial Chambers and the rights of States who have referred situations to the Court.80 The prosecutor subsequently announced his decision to open an investigation in the CAR on May 22, 2007.81
In the Darfur situation, the prosecutor had adopted a policy of conducting his investigation wholly outside of Darfur, citing security conditions that prohibited the establishment of a system of victim and witness protection there.82 Pre-Trial Chamber I, again citing its responsibilities for protection under article 57(3)(c) and 68(1), as well as evidence preservation under article 57(3)(c), invited the UN High Commissioner for Human Rights, Louise Arbour, and the former chairperson of the UN International Commission of Inquiry on Darfur, Sudan, Antonio Cassese, to make rule 103 submissions on the protection of victims and on the preservation of evidence in Darfur.83
Both Arbour and Cassese had made clear, public comments about the Darfur investigation, and their submissions disagreed on various grounds with the prosecutors decision not to conduct his investigations within Darfur.84 Cassese additionally made a number of specific suggestions about investigative and prosecutorial strategy, including the desirability of locating criminal responsibility up the chain of command in the Sudanese military.85 In his responses, the prosecutor rebuffed these comments as attempts to influence his strategy.86
In addition to these specific actions within individual situations, Pre-Trial Chambers I and II have taken a series of decisions on the modalities of victims participation during investigations. While these decisions primarily aim at making meaningful rights of victims participation guaranteed by the Rome Statute, arguably they also reflect an attempt to obtain other independent information in aid of the chambers substantial responsibilities during investigations. Pre-Trial Chambers I and II have rejected arguments by the OTP that victims participation in the situation phase jeopardizes the integrity of investigations.87
Finally, the pre-trial chambers have offered a restrictive interpretation of some aspects of the prosecutors authority. First, in issuing arrest warrants in the Uganda situation, Pre-Trial Chamber II rejected the prosecutors application to transmit requests for the arrest and surrender of the suspects to Uganda and other states. The OTP apparently considered itself to be the organ best situated to obtain cooperation with the requests.88 Characterizing the warrants and requests as requests for cooperation made by the Chambers, Pre-Trial Chamber II relied in its decision on rule 176(2), which provides that while the OTP is responsible for transmitting requests for cooperation made by the prosecutor, the registrar is responsible for transmitting requests of the Chambers. The Chamber also cited provisions in the court rules and regulations addressed to the registrars role in transmitting requests for arrest and surrender (regulation 111) and in making arrangements for surrender (rule 184) in support of its ruling.89 The pre-trial chamber denied the prosecutor leave to appeal its ruling.90
Second, on its own initiative, Pre-Trial Chamber I acted to amend before confirming the charges brought by the prosecutor against Thomas Lubanga. The chamber changed the legal characterization of the facts, replacing the prosecutors charges under article 8(2)(e)(vii) of the Rome Statute with crimes punishable under article 8(2)(b)(xxvi). Although both articles make punishable the conscription, enlistment, and use of child soldiers, the charges brought by the prosecutor require their conscription and enlistment into armed forces or groups in the context of an armed conflict not of an international character. By contrast, the charges substituted by the pre-trial chamber refer to conscription and enlistment into national armed forces in the context of an international armed conflict. The chamber also reduced the temporal scope of the charges.91
Human Rights Watch agrees with the chamber that the Ituri conflict should not have been classified by the prosecutor as a non-international (internal) armed conflict: Uganda was an occupying force in Ituri between August 1998 and May 2003.92 At the same time, however, the Rome Statute does not appear to grant the pre-trial chamber authority to amend charges. Instead, where the pre-trial chamber considers that the evidence submitted [during a confirmation of charges hearing] appears to establish a different crime within the jurisdiction of the Court, the statute provides for the chamber to adjourn the hearing and to request the prosecutor to consider amending a charge.93
The pre-trial chamber denied the prosecutor leave to appeal its decision but noted that the trial chamber may act under regulation 55 to recharacterize the facts.94 The prosecutor, in fact, sought review of the pre-trial chambers decision before Trial Chamber I, arguing that either the trial chamber could overturn the pre-trial chambers decision, or it could proceed to recharacterize the facts under regulation 55. The trial chamber declined the prosecutors invitation to review the decision of Pre-Trial Chamber I and found that it was premature to take any action under regulation 55. Consequently, the prosecution is faced with taking a case to trial on charges an element of which it has maintained it is not in a position to prove.95
This clear division between the prosecutors authority to bring charges and the pre-trial chambers authority to commit an individual to trial by confirming those charges is exceptional in a statute which often leaves ambiguous the precise boundaries between the Office of the Prosecutor and the pre-trial division. It is perhaps inevitable that there have been differences of opinion in the working out of these ambiguities. Maximizing the contribution of both bodies to achieving the shared goal of effective investigations conducted with integrity will require continued attention to their relationship and respective roles. The pre-trial division can assist in this process by articulating as fully and as clearly as possible the reasoning and legal basis for the role that it is shaping for itself out of the Rome Statute.
In the months and years ahead as trials go forward, the work of the courts Chambers will take on increasing importance within the framework of the ICC and in influencing perceptions of the courts success. With the anticipated start of the courts first trial in the case against Lubanga, the eyes of the international community as well as of those communities affected by crimes within the courts jurisdiction will be trained on the court. Whether its proceedings are fair and expeditious will be the first real test of whether a long-desired permanent, international criminal tribunal can deliver on the promise of justice.
Key benchmarks in assessing the courts future performance will include the Chambers ability to manage trials efficiently, to safeguard the rights of defendants, and to ensure the safety of court witnesses, as well as its continued working out of the many innovative aspects of the Rome Statute, including victims participation and the role of the pre-trial division. In meeting these challenges, Human Rights Watch encourages the judges of the court to draw on existing work in the development of court-wide strategies and to benefit from the considerable efforts of the courts organs during these initial years of institution building.
Given the Rome Statutes many innovations, and, in particular, its mix of common and civil law traditions with a bench of judges drawn from these different traditions to match, it is perhaps inevitable that there have been some delays in the courts first proceedings.96 Although charges were confirmed against Lubanga in January 2007, at this writing, his trial had been suspended, and the courts second confirmation of charges hearing in the case against Germain Katanga and Mathieu Ngudjolo, two other Ituri militia leaders, had been delayed until June 2008.97
In addition to delays, the difficult task of developing substantive and procedural law uniquely suited to the ICC is evident from a creeping discord in the interpretations and solutions offered by the courts Chambers to the issues before them. Differences in approach are evident from decisions (and dissents) on fundamental issues including victims participation,98 witness protection,99 and disclosure practices in connection with a defendants fair trial rights.100
To a certain extent, such differences are inevitable: the Rome Statute does not make the decisions of Chambers binding on one another.101 Persons from the Office of the Prosecutor, Registry units, and counsel (among others), who appear repeatedly before the different Chambers and divisions, will have an interest in litigating and relitigating issues. As the Chambers confront various country situations with unique requirements, different approaches in the application of the law to the facts may be both expected and necessary. Indeed, bringing many legal minds to bear on the novel issues that face the court may build a stronger jurisprudence over time.
While judges should remain free to reach whatever they consider to be the correct legal resolution of the issues in the specific cases before them, it will aid the gradual convergence of the courts jurisprudence on agreed-to procedures and principles if the Chambers are more transparent in their legal reasoning, particularly where departing from that of their colleagues. Some of the courts decisions allude to an ongoing dialogue between them, to a willingness in some instances to follow one anothers interpretations,102 as well as to revisit and revise their interpretations in light of another chambers subsequent determination.103 In other decisions, however, Chambers have moved away from prior interpretations without an explanation as to why a different approach has been adopted.104
It is far preferable that decisions reflect relevant existing court decisions and, where there is disagreement, the basis for that disagreement. Such a practice would help to bring greater coherence to the courts jurisprudence with time, and, in the meantime, would make the work of the court more accessible to counsel, defendants, and victims.
2 The Assembly of States Parties was created by the Rome Statute to provide management oversight of the administration of the court. See further discussion of the ASP in Part VIII.B, below.
3 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 34(b), 35(1), 36(1), 36(6)(a), 36(9)(a) (Rome Statute).
4 Ibid., arts. 34, 38.
5Ibid., arts. 7, 36(4)(b).
6 Ibid., art. 36(8)(a).
7Ibid., art. 36(8)(b).
8 Ibid., art. 36(3)(b).
9 Ibid., art. 39(1).
10 These include preparing for the practical aspects of proceedings, promoting the court through travels, and finalizing important instruments for the functioning of the court such as the Regulations of the Court, the Code of Judicial Ethics, and standard forms for victims applying to participate in proceedings and to seek reparations.
11 For an overview of the courts pending investigations and arrest warrants, see Part II.A.2, below.
12 The Presidency is not responsible for the administration of the Office of the Prosecutor, and, on all issues of mutual concern, must coordinate and seek the concurrence of the prosecutor. Rome Statute, art. 38(4).
13 Ibid., art. 61(11); Regulations of the Court, International Criminal Court, ICC-BD/01-02-07, amended June 14 and November 14, 2007, http://www.icc-cpi.int/library/about/officialjournal/ICC-BD-01-02-07-ENG.pdf (accessed June 11, 2008), reg. 46 (Court Regulations).
14 Rome Statute, arts. 38, 39, 74; Court Regulations, regs. 12, 15.
16 Ibid., reg. 107.
17 Ibid., reg. 94.
18 Rome Statute, art. 10; Rules of Procedure and Evidence, International Criminal Court, ICC-ASP/1/3, http://www.icc-cpi.int/library/about/officialjournal/Rules_of_procedure_and_Evidence_English.pdf (accessed June 11, 2008), rule 199 (Rules of Procedure and Evidence); Court Regulations, reg. 113.
19 The ASP focal point on cooperation is discussed below in Part VIII.B.
20 ICC President Visits Mexico Judge Philippe Kirsch Meets with Key Mexican Officials, Insight on the ICC, Coalition for the ICC, December 2004, http://www.wfm.org/site/index.php?module=uploads&func=download&fileId=30 (accessed June 4, 2008), p. 3; Mexico Ratifies the Rome Statute, ICC press release, ICC-20051021-113-En, October 31, 2005, http://www.icc-cpi.int/press/pressreleases/117.html (accessed June 4, 2008).
21 The CBF expressed concern over a certain fragmentation between the three Organs and the apparent lack of unanimity on a strategy to centralize administrative duties in the Registry, which may result in the possible duplication of activities. ASP, Report of the Committee on Budget and Finance, ICC-ASP/3/22, August 19, 2004, http://www.icc-cpi.int/library/asp/ICC-ASP-3-22-_CBF_report_March_English.pdf (accessed June 26, 2008), para. 25.
22 For a description of the One Court principle, see, for example, Fourth Diplomatic Briefing of the International Criminal Court, Brussels, June 8, 2005, http://www.icc-cpi.int/library/organs/registry/DB200506_Info_Pack_En.pdf (accessed May 28, 2008) .
23 The CBF stated that it could not escape the impression that coherence among the different organs is still wanting. It also stressed that [a] common administrative strategy has not yet been fully achieved and duplication of functions still exists beyond those areas where it might be warranted by independence considerations. The Committee expects the Court, under the leadership of its President, to continue battling fragmentation and upholding the One Court principle. ASP, Report of the Committee on Budget and Finance, ICC-ASP/3/18, August 13, 2004, http://www.icc-cpi.int/library/asp/ICC-ASP-3-18-_CBF_report_English.pdf (accessed May 27, 2008), paras. 11-12.
24 Human Rights Watch, Memorandum to States Members of the Assembly of State Parties, September 2, 2004, pp. 4-8.
25 See Judge Philippe Kirsch, president of the ICC, address to the ASP Third Session, The Hague, September 6, 2004, http://www.icc-cpi.int/library/asp/PK_20040906_En_AD.pdf (accessed May 27, 2008), p. 3 (ASP Third Session Address); see also President Philippe Kirsch, Unity Essential for Effectiveness, ICC Newsletter, October 2004, http://www.icc-cpi.int/library/about/newsletter/files/ICC-NL2-200410_En.pdf (accessed May 28, 2008), p. 1.
26 President Kirsch, ASP Third Session Address, p. 3.
27 Court Regulations, reg. 3.
28 President Kirsch, Unity Essential for Effectiveness, ICC Newsletter.
29 See Part V.B.1, below.
30 See Human Rights Watch, Memorandum on the Strategic Plan of the International Criminal Court, July 2006, http://hrw.org/backgrounder/ij/memo0706/ij0706.pdf, pp. 1-3.
31 Some of these strategies are discussed in the relevant sections of this report below. See, for example, Part III.B.2 (counsel strategy) and Part V.B (outreach strategy).
32 Human Rights Watch, Memorandum for the Sixth Session of the International Criminal Court Assembly of States Parties, November 2007, http://www.hrw.org/backgrounder/ij/asp1107/6.htm#_Toc182808675, p. 13.
33 Situations are generally defined in terms of temporal, territorial and in some cases personal parameters, [they] entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, January 17, 2006 (Public Redacted Version), para. 65 (DRC January 2006 Decision on Victims Participation).
34 Court Regulations, regs. 45, 46(2). With certain exceptions as provided in the Rome Statute and the courts Rules of Procedure and Evidence, a single judge of the pre-trial chamber may exercise the functions of that chamber. Rome Statute, art. 57(2).
35 A case is defined to include specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects and as entailing proceedings that take place after the issuance of a warrant of arrest or a summons to appear. DRC January 2006 Decision on Victims Participation, para. 65.
36 See Rome Statute, arts. 60 (initial proceedings), 61 (confirmation of charges before trial); Rules of Procedure and Evidence, rules 127-130 (closure of the pre-trial phase and constitution of the trial chamber).
37Situation in the CAR, ICC, Case No. ICC-01/05, Decision assigning the situation in the Central African Republic to Pre-Trial Chamber III, January 19, 2005, Situation in the DRC,ICC, Case No. ICC-01/04, Decision assigning the situation in the Democratic Republic of Congoto Pre-Trial Chamber I, July 5, 2004; Situation in Uganda, ICC, Case No. ICC-02/04 Decision assigning the situation in Uganda to Pre-Trial Chamber II, July 5, 2004, Situation in Darfur, ICC, Case No. ICC-02/05, Decision assigning the Situation in Darfur, Sudan to Pre-trial Chamber I, April 21, 2004.
38 See generally Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY Statute), S.C. Res. 827, U.N. Doc. S/RES/827 (1993), as amended, http://www.un.org/icty/legaldoc-e/index.htm (accessed June 3, 2008); Statute of the International Criminal Tribunal for Rwanda (ICTR Statute), S.C. Res. 955, U.N. Doc. S/RES/955 (1994), as amended, http://18.104.22.168/ENGLISH/basicdocs/statute.html (accessed June 3, 2008). The international-national hybrid Special Court for Sierra Leone adopted the ICTRs rules of procedure and evidence in force at the time of the courts establishment. See Statute of the Special Court for Sierra Leone (SCSL Statute), January 16, 2002, http://www.sc-sl.org/scsl-statute.html (accessed June 3, 2008), art. 14 . The Extraordinary Chambers in the Courts of Cambodia (ECCC), an international-national hybrid court mandated to prosecute crimes committed during the 1975-79 Khmer Rouge regime, established in 2001 after the 1998 adoption of the Rome Statute, has a pre-trial chamber with jurisdiction to hear certain appeals stemming from pre-trial proceedings, but delegates the conduct of investigations to co-investigating judges. The pre-trial chamber also settles disagreements between the co-investigating judges or between the co-prosecutors. See Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, June 6, 2003, http://www.cambodia.gov.kh/krt/pdfs/Agreement%20between%20UN%20and%20RGC.pdf (accessed June 13, 2008), art. 5 (role of investigating judges); and Internal Rules, ECCC, as revised February 1, 2008, http://www.eccc.gov.kh/english/cabinet/fileUpload/27/Internal_Rules_Revision1_01-02-08_eng.pdf (accessed June 10, 2008), art. 73 (jurisdiction of pre-trial chamber).
39 Rome Statute, art. 58.
40 Ibid., art. 60.
41 Ibid., arts. 18(2), 19(6).
42 Ibid., art. 57(3)(a).
43 Ibid., art. 15(3)-(5).
44 Ibid., art. 53(3)(a)-(b).
45 Ibid., art. 53(3)(a). The Security Council and states may only request reviews of decisions not to proceed in situations where they have referred the situation to the prosecutor under article 13 or article 14, respectively.
46 Ibid., art. 53(3)(b). If the pre-trial chamber initiates a review, the prosecutors decision is not effective unless confirmed by the pre-trial chamber. In all cases, the pre-trial chamber must be informed of the prosecutors decision not to proceed with an investigation or prosecution. Ibid., art. 53(1)-(2). The different avenues through which ICC jurisdiction may be triggered are discussed in Part II.B.1, below.
47 Rome Statute, art. 61(7).
48 Ibid., art. 61(10).
49 Ibid., arts. 57(3)(c) (pre-trial chamber), 54(3)(f) (Office of the Prosecutor).
50 Ibid., art. 56(1).
51 Ibid., art. 56(3)(a).
52 See also Jérôme de Hemptinne and Francesco Rindi, ICC Pre-Trial Chamber Allows Victims to Participate in the Investigation Phase of Proceedings, Journal of International Criminal Justice, vol. 4 (2006), pp. 349-50.
53 Under article 56(1) of the Rome Statute, where the prosecutor seeks to preserve or collect evidence that may not be available subsequently at trial, the pre-trial chamber may take various measures to ensure the integrity of proceedings and to protect the rights of the defense, including appointing defense counsel. See also Court Regulations, reg. 76. Subject to appeal, the chamber may appoint counsel even where it overrides the prosecutors determination that any such measure is necessary. Rome Statute, art. 56(3)(a)-(b).
54 Situation in the DRC, ICC, Case No. ICC-02/05, Decision on the Prosecutors Request for Measures under Article 56, April 26, 2005, pp. 4-5.
55 Situation in Darfur, ICC, Case No. ICC-02/05, Decision Inviting Observations in Application of Rule 103 of the Rules of Procedure and Evidence, July 24, 2006, pp. 5-6 (Darfur Decision Inviting Rule 103 Observations). The pre-trial chamber apparently considered the appointment of defense counsel necessary given that Rule 103(2) provides both the prosecution and the defense with the right of reply. The pre-trial chamber, however, subsequently denied ad hoc counsels attempts to be involved in other aspects of litigation, including making admissibility and jurisdiction challenges and his request to attend all proceedings related to the Darfur situation. The pre-trial chamber found no basis in the Rome Statute for ad hoc counsels admissibility and jurisdiction challenges, and considered his attempts to be involved in all proceedings as falling outside the narrow mandate to which he was initially appointed. Situation in Darfur, Case No. ICC-02/05, Decision on the Submissions Challenging Jurisdiction and Admissibility, November 22, 2006, p.3; Situation in Darfur, No. ICC-02/05, Decision on the Ad hoc Counsel for Defence Request of 18 December 2006, February 2, 2007, pp.5-6. For further discussion of the pre-trial divisions role in the protection of victims and witnesses, see Part VI.B.3, below.
56 See, for example, Situation in Darfur, ICC, Case No. ICC-02/05, Decision authorising the filing of observations on applications a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07 for participation in the proceedings, July 23, 2007, p. 4; Situation in the DRC, ICC, Case No. ICC-01/04, Decision Appointing Ad Hoc Counsel and Establishing a Deadline for the Prosecution and the Ad Hoc Counsel to Submit Observations on the Applications of Applicants a/0001/06 to a/0003/06, May 18, 2006, p. 4; Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, 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, February 1, 2007, p. 19.
57 See Situation in Uganda, ICC, Case No. ICC-02/05, Decision on Observations on the Notification under Regulation 50 of the Regulations of the Trust Fund for Victims, March 5, 2008, p. 5; Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the time limit for the filing of observations on the Notification by the Board of Directors of the Trust Fund for Victims, February 5, 2008, p. 4. For further discussion of the Trust Fund for Victims, see Part VII.E, below. Other efforts of the Chambers to respect a defendants fair trial rights are discussed in Part III.A, below.
58 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Request for Information from the Republic of Uganda on the Status of Execution of the Warrants of Arrest, February 29, 2008.
59 The Ugandan president, Yoweri Museveni, appeared to contradict the agreements provisions when he indicated in widely reported statements that LRA leaders, including Joseph Kony, would be subject to customary reconciliation practices instead of formal trials. Museveni refuses to hand over rebel leaders to war crimes court: Plan for local 'traditional' trials as part of peace deal: Move 'fatally damaging' to credibility of ICC, The Guardian (London), March 13, 2008.
60 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Report by the Registrar on the Execution of the Request for Information from the Republic of Uganda on the Status of Execution of the Warrants of Arrest, March 28, 2008 (annexing the government of Ugandas reply to the chambers request for information). Toward the beginning of the peace talks, in September 2006, the chamber requested reports from the prosecutor and the registry as to the status of Ugandas cooperation with the court. See Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Order to the Registrar and the Prosecutor for the Submission of Information on the Status of the Execution of the Warrants of Arrest in the Situation in Uganda, September 15, 2006.
61 Rome Statute, preamble. This is known as the principle of complementarity.
62 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06,Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, February 24, 2006, para. 31 (emphasis added).
63 Ibid., paras. 62-63. We discuss below the prosecutors approach to the selection of perpetrators. See Part II.C.2.a, below.
64 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the confirmation of charges (Public Redacted Version), January 29, 2007, para. 39 (Lubanga Confirmation of Charges Decision).
65 Ibid., paras. 342-67. The chambers decision to amend the charges against Lubanga is discussed below.
66 See generally Part VII, below.
67 Rome Statute, art. 68(3).
68 Human Rights Watch, A Summary of Case Law of the International Criminal Court, March 2007, http://hrw.org/backgrounder/ij/icc0307/icc0307web.pdf.
69 Rome Statute, art. 82.
70 Although Chambers decisions do not bind one another, under article 21(2) of the Rome Statute, [t]he Court may apply principles and rules of law as interpreted in its previous decisions.
71 Situation in the DRC, ICC, Case No. ICC-01/04, Decision to Convene a Status Conference, February 17, 2005.
72 Ibid., p. 2.
73 Situation in the DRC, ICC, Case No. ICC-01/04, Prosecutors Position on Pre-Trial Chamber Is 17 February 2005 Decision to Convene a Status Conference (Public Redacted Version), March 8, 2005, paras. 12-19.
74 Ibid., para. 3. In a second decision, the chamber rejected the OTPs submission on procedural grounds. Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Prosecutor's Position on Pre-Trial Chamber I's 17 February 2005 Decision to Convene a Status Conference, March 9, 2005. It subsequently denied leave to appeal. Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Prosecutor's Application for Leave to Appeal, March 14, 2005.
75 For discussion of the prosecutors approach to interests of justice under article 53 of the Rome Statute, see Part II.A.3, below.
76 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, December 2, 2005, paras. 8, 9, 11, 12, 13, 17.
77 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, OTP Submission Providing Information on Status of the Investigation in Anticipation of the Status Conference To Be Held on 13 January 2006, January 11, 2006, paras. 7-8.
78 This may in part have been due to pending cases in the CAR national justice system. See Part II.B.1.a, below.
79 Situation in the CAR, ICC, Case No. ICC-01/05, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, November 30, 2006.
80 Situation in the CAR, ICC, Case No. ICC-01/05, Prosecutors Report Pursuant to the Pre-Trial Chamber IIIs 30 November 2006 Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, December 15, 2006, paras. 10-11.
81 Prosecutor opens investigations in the Central African Republic, OTP press release, ICC-OTP-PR-20070522-220_EN, May 22, 2007, http://www.icc-cpi.int/pressrelease_details&id=248&l=en.html (accessed May 28, 2008).
82 See OTP, Third Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005), June 14, 2006, http://www.icc-cpi.int/library/cases/OTP_ReportUNSC_3-Darfur_English.pdf (accessed May 28, 2008).
83 Darfur Decision Inviting Rule 103 Observations, p. 5.
84 Situation in Darfur, ICC, Case No. ICC-02/05, Observations of the United Nations High Commissioner for Human Rights invited in Application of Rule 103 of the Rules of Procedure and Evidence, October 10, 2006, paras. 64-80; Situation in Darfur, ICC, Case No. ICC-02/05, Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending Before the ICC, August 31, 2006, pp. 5-6, 10-11 (Cassese Observations).
85 Cassese Observations, pp. 3-4.
86 Situation in Darfur, ICC, Case No. ICC-02/05, Prosecutors response to Arbours observations of the United Nations High Commission for Human Rights invited in Application of Rule 103 of the Rules of Procedure and Evidence, October 19, 2006; Situation in Darfur, ICC, Case No. ICC-02/05, Prosecutors Response to Casseses Observation on Issues Concerning the Protection of Victims and the Preservation of Evidence into the Proceedings on Darfur Pending before the ICC, September 11, 2006.
87 See, for example, Situation in Uganda, ICC, Case No. ICC-02/04, 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 (Public Redacted Version), August 10, 2007, para. 88 (Uganda August 2007 Decision on Victims Participation); Situation in the DRC, ICC, Case No. ICC-01/04, Decision on the Prosecutions Application for Leave to Appeal the Chambers Decision of 17 January 2006 on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, March 31, 2006, paras. 45-46.
88 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Decision on Prosecutors Application for Leave to Appeal in Part Pre-Trial Chamber IIs Decision on the Prosecutors Applications for Warrants of Arrest under Article 58, August 19, 2005, para. 10.
89 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Decision on the Prosecutors Application for Warrants of Arrest under Article 58, July 8, 2005, pp. 4-7.
90 Prosecutor v. Kony et al., ICC, Case No. ICC-02/04-01/05, Decision on Prosecutors Application for Leave to Appeal in Part Pre-Trial Chamber IIs Decision on the Prosecutors Applications for Warrants of Arrest under Article 58, August 19, 2005.
91 Lubanga Confirmation of Charges Decision, para. 370.
92 Human Rights Watch, Ituri Covered in Blood: Ethnically Targeted Violence in Northeastern DR Congo, vol. 15, no. 11(A), July 2003, http://hrw.org/reports/2003/ituri0703, pp. 6-8.
93 Rome Statute, art. 61(7)(c)(ii). In the Lubanga case, however, the pre-trial chamber considered that no adjournment or opportunity for the parties to be heard was required because it found that both articles criminalized the same behavior, and that Lubangas armed group, while nongovernmental, could be considered a national armed force within the meaning of the substituted charge.Lubanga Confirmation of Charges Decision, paras. 204, 268-85.
94 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecution and Defence applications for leave to appeal the Decision on the confirmation of charges, May 24, 2007, para. 44.
95 Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, December 13, 2007, paras. 47-50 (Decision on Status of Pre-Trial Chamber Decisions).
96 See, for example, Judge Adrian Fulford, Reflections from the Bench, speech to the Friends of the ICC, The Hague, February 20, 2008, http://www.britishembassy.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/
ShowPage&c=Page&cid=1025627657266&a=KArticle&aid=1199215379245 (accessed June 3, 2008): ([One reason for delay in the start of the Lubanga trial] is that this, of course, is a Brave New Courtevery step we take is on untrodden ground. We have no internal precedents; we are constructing our jurisprudence from scratch ).
97 Suspension of the Lubanga trial is discussed in Part II.C.1, below.
98 Compare, for example, Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on the Applications for Participation in the Proceedings Submitted by VPRS 1 to VPRS 6 in the Case the Prosecutor v. Thomas Lubanga Dyilo (Public Redacted Version), June 29, 2006, p. 6 (Pre-Trial Chamber I decision holding [a]t the case stage, the Applicants must demonstrate that a sufficient causal link exists between the harm they have suffered and the crimes for which there are reasonable grounds to believe that Thomas Lubanga Dyilo bears criminal responsibility and for which the Chamber has issued an arrest warrant.) with Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/05, Decision on Victims Participation, January 18, 2008, para. 93 (Lubanga January 18, 2008 Victims Participation Decision) (Trial Chamber I decision holding that the participation of victims [is not restricted] to the crimes contained in the charges confirmed by Pre-Trial Chamber I Rule 85(a) of the Rules simply refers to the harm having resulted from the commission of a crime within the jurisdiction of the Court and to add the proposed additional elementthat they must be the crimes alleged against the accusedtherefore would be to introduce a limitation not found anywhere in the regulatory framework of the Court.). The courts jurisprudence on victims participation and the varying approaches taken by the Chambers is discussed in more detail below in Part VII.B.
99 Compare: Prosecutor v. Katanga and Ngudjolo, ICC, Case No. ICC-01/04-01/07, Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventative Relocation, and Disclosure under Article 67(2) of the Statute and rule 77 of the Rules (Public Redacted Version), April 25, 2008, paras. 22-34; and Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Separate and Dissenting Opinion of Judge Blattmann attached to Decision on Disclosure Issues, Responsibilities for Protective Measures and other Procedural Matters, April 28, 2008, paras. 4-6 (Blattman Dissent to Decision Disclosure Issues), annex 3 to Decision issuing a confidential and a public redacted version of Decision on disclosure issues, responsibilities for protective measures and other procedural matters, May 8, 2008 (responsibility for courts protection programs belongs exclusively to the Registry); with Prosecutor v. Lubanga, ICC, Case No. ICC-01/04-01/06, Decision on disclosure issues, responsibilities for protective measures and other procedural matters, April 24, 2008, para. 80 (Decision on Disclosure Issues), annex 2 to Decision issuing a confidential and a public redacted version of Decision on disclosure issues, responsibilities for protective measures and other procedural matters, May 8, 2008 (where the Registry does not take protective measures requested by a party, it is that partys responsibility to provide). These decisions are discussed below in Part VI.C.2.
100 See, for example, Blattman Dissent to Decision on Disclosure Issues, paras. 11-18 (disagreeing with the majority on various issues including whether alternatives to full disclosure of exculpatory materials are permissible).
101 Rome Statute, art. 21(2).
102 See, for example, Decision on Status of Pre-Trial Chamber Decisions, para. 6 (Not least for reasons of judicial comity, this Chamber should follow the Pre-Trial Chamber unless that would be an inappropriate approach.); Uganda August 2007 Victims Participation Decision, para. 5 ([T]he Single Judge will, whenever appropriate, take into account the principles established and the practice followed so far by the Court in the area of victims participation, with particular focus on the jurisprudence of Pre-Trial Chamber I in the situation in the Democratic Republic of the Congo.).
103 For example, Pre-Trial Chamber Is decision lowering its identity requirements for victim applicants brought a more consistent approach to proof of identity at the court. See Situation in Uganda, ICC, Case No. ICC-02/04, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06, a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06, a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0123/06 to a/0127/06 (Public Redacted Version), March 14, 2008, paras. 6-7.
104 See, for example, Lubanga January 18, 2008 Victims Participation Decision, paras. 93-95.