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

Judiciary – Key Decisions Protection and Protective Measures
Out-of-court protective
measures
Kenya Situation
Decisions on location of confirmation of charges
hearings
The inability to ensure adequate protective measures
was the basis for Pre-Trial Chamber II’s decision not
to hold the confirmation of charges hearings in
situ in Kenya in both the Ruto, Kosgey and Sang, 2092
and Muthaura, Kenyatta and Ali 2093 cases. In both
proceedings, the Chamber requested observations
from all parties and participants on the possibility
and feasibility of conducting the confirmation of
charges hearing in Kenya, rather than at the seat
of the Court in The Hague. 2094 Pursuant to Article
3(3) of the Statute 2095 and Regulation 100(1) of the
Regulations of the Court, 2096 a Chamber may decide to
sit elsewhere if it considers this to be in the interests of
justice. This is the second time that the ICC has openly
considered conducting proceedings in a State other
than the Host State. 2097 In the Ruto, Kosgey and Sang
proceedings, the Defence 2098 (with the exception of
Kosgey 2099 ), the Prosecution 2100 and the OPCV 2101 on
behalf of the victim applicants all opposed the holding
of confirmation hearings in Kenya, expressing concern
about the security situation of victims and witnesses,
and citing the inability of the Kenyan authorities to
provide adequate assistance to conduct the hearings
in Kenya. Similarly, in the Muthaura, Kenyatta and
2092 ICC-01/09-01/11-153.
2093 ICC-01/09-02/11-181.
2094 ICC-01/09-01/11-106 and ICC-01/09-02/11-102.
2095 Article 3 provides that the seat of the Court shall be in
The Hague, the Netherlands. Subparagraph (3) provides
that ‘the Court may sit elsewhere, whenever it considers
it desirable, as provided for in this Statute’.
2096 Rule 100(1) provides that ‘in a particular case, where
the Court considers that it would be in the interests of
justice, it may decide to sit in a State other than the host
State’.
2097 In 2007, the Judges of Trial Chamber I examined
the possibility of holding the trial against
Lubanga in the DRC. See ‘The ICC considers
holding Lubanga trial hearing in DRC’, CICC, 6
September 2007, available at , last visited on 31
October 2011.
2098 ICC-01/09-01/11-122.
2099 ICC-01/09-01/11-121.
2100 ICC-01/09-01/11-127.
2101 ICC-01/09-01/11-126.
Ali proceedings, the Defence, 2102 the Prosecution 2103
and the OPCV, 2104 on behalf of the victim applicants,
opposed the holding of confirmation hearings in
Kenya, expressing the same security concerns. The
Muthaura Defence suggested that the Court instead
look into holding the confirmation hearing in other
venues within the region, in particular on the premises
of the International Criminal Tribunal for Rwanda
(ICTR) in Tanzania, a neighbouring country. 2105 In a
decision on 29 June 2011 in the Ruto et al case, and in a
decision on 19 July 2011 in the Muthaura et al case, in
preparation for the confirmation hearings, the Single
Judge indicated that the Chamber will not consider
further the option of holding confirmation hearings in
Kenya. 2106
The Prosecutor v. Germain Katanga
and Mathieu Ngudjolo Chui
Protocol for entering into contact with victims
and potential witnesses
In light of the parties’ and participants’ inability
to come to an agreement on a proposed Protocol
for entering into contact with victims with legal
representation, on 23 November 2010, Trial Chamber
II set forth several modalities for contacting and
questioning victims, and the disclosure of related
documents. 2107 On 17 December 2009, Trial Chamber
II had instructed the parties and participants to come
to an agreement on the modalities of entering into
contact with represented victims. However, the parties
were unable to come to an agreement.
The proposed Protocol 2108 was based on Articles 15(1)
and 28 of the Code of Professional Conduct for Counsel.
Effectively, the Chamber’s Decision on the modalities
of entering into contact with victims contains all of
the provisions of the proposed Protocol, except one.
The Chamber apparently rejected paragraph 16 of
the proposed Protocol, requiring the party meeting
with the represented victim to furnish the legal
representative with the victim’s statement, transcripts
of the interview and all documents obtained from the
victim as a matter of course, except in cases where a
refusal is based on prima facie just motives, such as
prejudice to the investigation. 2109
2102 ICC-01/09-02/11-119; ICC-01/09-02/11-120; and ICC-
01/09-02/11-121.
2103 ICC-01/09-02/11-122.
2104 ICC-01/09-02/11-123.
2105 ICC-01/09-02/11-120, para 14.
2106 ICC-01/09-01/11-153, para 14; ICC-01/09-02/11-181.
2107 ICC-01/04-01/07-2571.
2108 ICC-01/04-01/07-2202-Anx1.
2109 ICC-01/04-01/07-2202-Anx1, para 16.
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