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

OTP Situations and Cases
proven by the Prosecution at trial beyond a reasonable
doubt. However, the Defence indicated that, if the Trial
Chamber determines that these three issues have been
proven, ‘the Accused persons will plead guilty to the
charges preferred against them without prejudice to
their right to appeal the Chamber’s decision’. 755
Both parties also agreed not to submit any additional
evidence or make any additional submissions
regarding the guilt or innocence of the accused unless
the Chamber deemed it necessary. The parties claimed
that this approach would ‘significantly shorten the
trial proceedings by focusing the trial only on those
issues that are contested between the Parties’, and
would promote ‘an efficient and cost-effective trial’
while still preserving the right of victims to participate
and the right of the accused to a fair and expeditious
trial. 756 This is the first time at the ICC that a Defence
team has indicated its willingness to enter a guilty plea
if certain facts are proven. On 28 September 2011, Trial
Chamber IV issued a decision on the joint submission
on agreed facts in the case. 757 The Legal Representative
of Victims had objected to the Prosecution and
Defence submission on the grounds that the proposed
restriction of the facts and evidence would cause
serious prejudice to victims’ participation rights by
limiting the factual issues examined at trial and
thereby infringing on the victims’ right to know the full
facts of what occurred at the MGS Haskanita and the
full extent of the responsibility of the two accused. 758
However, the Chamber held that the procedures
proposed in the joint submission would ‘facilitate the
fair and expeditious conduct of the proceedings’ and
that ‘a more complete presentation of the alleged
facts in the case [was] not required in the interests
of justice’. 759 Therefore, without limiting its powers
to request additional evidence, the Chamber agreed
that the trial would proceed only on the basis of the
contentious issues outlined in the joint submission,
and that the parties would not present evidence or
make submissions on any other issues. 760
Translation issues
On 16 March 2011, Trial Chamber IV 761 was constituted
to hear the case against Banda & Jerbo. 762 This is
the second Trial Chamber composed exclusively of
female judges, along with Trial Chamber III, 763 which is
presiding over the Bemba trial. At the time of writing
this <strong>Report</strong>, a date for the start of trial has not been set
due to translation problems. Pursuant to Article 67(f)
of the Rome Statute, the accused has a right ‘to have
the assistance of a competent interpreter and such
translations as are necessary to meet the requirements
of fairness, if any of the proceedings or documents
presented to the Court are not in a language which
the accused fully understands and speaks’. Both Banda
and Jerbo speak Zaghawa, a local Sudanese (nonwritten)
language. However, the ICC currently does not
have interpreters competent to translate documents
and proceedings from Zaghawa into either French
or English, the two working languages of the Court.
Given the need to set a date for the commencement
of trial within a reasonable time, on 1 July 2011 the
Chamber ordered that preparations for provision
of interpretation for the accused ‘be undertaken
immediately’, and instructed the Registry to begin
any necessary training of Zaghawa interpreters. 764
The Chamber deferred its decision on whether the
interpretation used at trial should be simultaneous
or consecutive, but said it would rule on it in due
course. At the time of writing, no decision has yet been
issued on the matter. Language issues also arose in
the Mbarushimana case, discussed above, and in the
Katanga & Ngudjolo case, discussed further in Trial
Proceedings.
755 ICC-02/05-03/09-148, para 5.
756 ICC-02/05-03/09-148, para 8.
757 ICC-02/05-03/09-227.
758 ICC-02/05-03/09-190-tENG.
759 ICC-02/05-03/09-227, paras 44-45.
760 ICC-02/05-03/09-227, para 46.
761 Trial Chamber IV is composed of Presiding Judge Joyce
Aluoch (Kenya), Judge Fatoumata Dembele Diarra (Mali)
and Judge Silvia Fernández de Gurmendi (Argentina).
762 ICC-02/05-03/09-124 and ICC-02/05-03/09-126.
763 Trial Chamber III is composed of Presiding Judge Sylvia
Steiner (Brazil), Judge Joyce Aluoch (Kenya) and Judge
Kuniko Ozaki (Japan).
764 ICC-02/05-03/09-172.
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