Gender Report Card on the International Criminal ... - YWCA Canada

OTP Situations and Cases
accompanying audio files, while 2,681 pages of witness
interviews had been provided as audio files, but with
the accompanying translation only in English. 615
On 16 August 2011, Pre-Trial Chamber I issued a
decision postponing the confirmation of charges
hearing until 16 September 2011 on its own motion. 616
The Chamber expressed its ‘profound dissatisfaction
with the way both parties have behaved regarding
these disclosure issues’, finding that it was inexcusable
that the disclosure issue had not been brought
to the Chamber’s attention in sufficient time for
it to be handled properly before the confirmation
hearing, despite the fact that the Chamber had
been ‘bombarded’ with filings by the Defence on
comparatively minor issues during the relevant
period. 617 The Chamber held that it was compelled
to postpone the confirmation hearing ‘in the wake
of both parties’ failure to handle their pre-trial
obligations in a manner befitting the professionalism
demanded when litigating before the International
Criminal Court’. 618
The Chamber noted that the insufficient disclosure
by the Prosecution was known to the Defence as early
as 28 June (if not 1 June when the initial disclosure
was made), but the Defence request to exclude the
documents was not filed until nine days before the
confirmation hearing - two months after the initial
disclosure, and more than a month after it became
‘abundantly clear’ that the Prosecutor was unlikely to
provide the documents in the requested format and
language in sufficient time to adequately prepare
for the confirmation hearing. 619 The Chamber held
that this prolonged lack of reaction from the Defence
could legitimately be interpreted by the Prosecution
as tacit approval of the form of disclosure, and made it
impossible for the Chamber to intervene in a manner
that would have enabled the Prosecution to provide
the required transcripts or translations before the
confirmation hearing. The Chamber thus held that
the Defence had failed to exercise due diligence in
asserting its rights, and that its request for disclosure
had not been filed in a timely manner. 620
However, the Chamber also held that the Prosecution
could not ‘satisfy its disclosure obligations by turning
over significant portions of the evidence in a way
which is unmanageable for the Defence’. 621 By not
providing the full French or Kinyarwanda transcripts,
615 ICC-01/04-01/10-378, para 13.
616 ICC-01/04-01/10-374 and ICC-01/04-01/10-378.
617 ICC-01/04-01/10-378, para 15.
618 ICC-01/04-01/10-378, para 15.
619 ICC-01/04-01/10-378, para 17.
620 ICC-01/04-01/10-378, paras 18-19.
621 ICC-01/04-01/10-378, para 20.
the Prosecutor forced the Defence to work within
a situation where Mbarushimana and his counsel
could not meaningfully discuss the content of over
60 hours of recorded witness interviews, which were
allegedly important to the case. The Chamber found
that, given the length of the interviews, their alleged
importance to the Prosecution case, the purpose of
the confirmation hearing, the difficulty in processing
audio recordings rather than written transcripts,
and the Chamber’s decision of 12 May on language
proficiency, 622 the Prosecution had an obligation to
provide Kinyarwanda or French transcripts for all
interviews. The Chamber did not find that it was
necessary for the Prosecution to provide the audio files
for interviews for which the French or Kinyarwanda
transcripts had already been disclosed. 623 Language
issues also arose in the Banda & Jerbo case, discussed
below, and in the Katanga & Ngudjolo case, discussed
further in Trial Proceedings.
Defence challenge to jurisdiction
Along with the challenge to the validity of the Arrest
Warrant against Mbarushimana, discussed in more
detail in the Admissibility section of this <strong>Report</strong>, the
Defence filed a motion on 19 July 2011 challenging
the jurisdiction of the Court. 624 The Defence challenge
centred on three main arguments: (i) that the
‘situation of crisis’ which triggered the referral of
the Situation in the DRC to the Court in 2004 did
not envisage the events in North and South Kivu but
was intended to encompass only the events in Ituri;
(ii) that, even if the Chamber were to find that the
referral of the Situation did encompass the Kivus,
the Prosecution had not shown that the FDLR had
committed crimes prior to 3 March 2004 which could
have contributed to the ‘situation of crisis’ triggering
the referral; and (iii) that, given the above arguments,
an insufficient nexus existed between the charges
against Mbarushimana and the scope of the Situation
in the DRC. 625 The Prosecution dismissed the challenge
to jurisdiction as baseless, and argued that the DRC
had not limited the temporal or geographic scope of
the referral and was in fact cooperating with ongoing
Prosecution investigations in the Kivus, and that
the case fell ‘squarely within the jurisdiction of the
Court’. 626 In confidential observations on the Defence
challenge submitted to the Chamber, representatives
of the Government of the DRC confirmed that the
referral gave the ICC jurisdiction ‘over any and all
crimes committed in the territory of the DRC, including
622 ICC-01/04-01/10-145.
623 ICC-01/04-01/10-378, paras 20-22.
624 ICC-01/04-01/10-290.
625 ICC-01/04-01/10-451, para 6.
626 ICC-01/04-01/10-320, paras 1-4.
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