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

Trial Proceedings
Witness issues
Withdrawal of dual-status
victim-witnesses
As explained in greater detail in the Victim
Participation section of this <strong>Report</strong>, on 31
January and 21 February, Trial Chamber II issued
two decisions, granting the withdrawal of three
victims it had previously authorised to testify as
witnesses in the case upon the request of their
Legal Representative due to concerns regarding
their veracity. 1352 The Chamber had authorised
their appearance and granted protective
measures to all four victims, 1353 Hema women
who lived in Bogoro at the time of the attack.
Public filings do not explicitly indicate whether
the withdrawn witnesses retained their victim
status in the proceedings, but the Chamber
issued no decision revoking the acceptance of
their applications to participate as victims, and
no party requested that such a decision be made.
Defence witnesses request asylum
from Dutch authorities
As explained in greater detail in the Protection
section of this <strong>Report</strong>, three witnesses called
by the Katanga Defence submitted asylum
applications to the Dutch authorities, which
were still pending at the time of writing this
<strong>Report</strong>. On 9 June 2011, Trial Chamber II issued
the first in a series of decisions, suspending
their immediate return to the DRC, pending
their political asylum applications. 1354 All three
had been detained in the Makala prison in
Kinshasa and were transferred to The Hague
to testify pursuant to Article 93 of the Rome
1352 ICC-01/04-01/07-2674-tENG; ICC-01/04-01/07-2699-Red.
As explained in the section on Victim Participation, the
Chamber withdrew victims a/0381/09 and a/0363/09,
as well as a/0363/09’s representative pan/0363/09.
The two remaining victims a/0081/09 and a/0191/08
testified in February 2011.
1353 ICC-01/04-01/07-2517.
1354 ICC-01/04-01/07-3003.
Statute, Rule 192 of the Rules of Procedure and
Evidence and a cooperation agreement between
the Registry and Congolese authorities. 1355 This
was the first time a witness before the ICC has
applied for asylum.
Renunciation of witness testimony
On 24 December 2010, the Prosecution informed
Trial Chamber II that it would no longer rely on
testimony given by witness P-159. Following
this notice, which was not opposed by either
Defence team, the Katanga Defence requested
that the Chamber confirm that it would not
rely on the witness or related evidence in its
final judgement. 1356 On 24 February 2011, the
Chamber informed the parties that it would
not give evidentiary weight to the testimony of
the witness, nor to exhibits introduced during
his testimony, despite a finding that ‘there
are no legal provisions in the Statute, Rules
or Regulations of the Court, which provide
a procedure for dealing with the present
situation’. 1357 The witness testified before the
Chamber between 17 and 29 March 2010.
The issue of the witness’ credibility was the
result of conflicting testimony provided by
his alleged father and sister regarding his
participation during the attack on Bogoro. 1358
While the Prosecution ‘took no position on
P-159’s alleged mendacity’, 1359 both Defence
teams asserted that the family relationships
were suspect as well as the witness’ claim that
1355 These regulations create a procedural framework
that directs the Registrar to manage the transfer and
custody of detained witnesses and to return them
following their testimony. Article 93(7) requires that
the transferred person shall remain in custody until the
purposes of the transfer have been fulfilled, at which
time the Court shall return the person without delay to
the requested State; Rule 192 delegates responsibilities
under the Article to the Registrar.
1356 ICC-01/04-01/07-2731, paras 2, 4.
1357 ICC-01/04-01/07-2731, para 11.
1358 ICC-01/04-01/07-2731, para 4.
1359 ICC-01/04-01/07-2731, para 17.
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