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

Judiciary – Key Decisions Protection and Protective Measures
agreement with the Registry. The Congolese authorities
expressed assurances regarding the security of
the witnesses pursuant to the measures proposed
by the Registry. They noted that after continued,
protracted negotiations for their return and under
the proposed ongoing monitoring, it was unlikely that
the DRC authorities would pose threats or risks to the
witnesses, as the witnesses and their counsel have
argued.
In its application to appeal, the Prosecution argued
that refusing to return the witnesses as required under
Article 93 of the Rome Statute could affect this trial as
well as future cases in that it could impact upon the
DRC’s willingness to cooperate with the Court given
the lack of legal certainty. 2156 The Dutch authorities
requested authorisation to appeal the 9 June decision
on the issues of whether Article 68 of the Rome Statute
prevents only the risks witnesses incur on account of
their cooperation with the Court, and whether the
Chamber is required to evaluate risks of violations of
their human rights, including violation of the principle
of non-refoulement. 2157 In this regard, they noted that
the Chamber’s position on these issues ran ‘contrary
to said expectations of the Netherlands’. They argued
that the Netherlands honoured the principle of nonrefoulement.
Thus, a conflict between the Court’s and
the Netherlands’ positions could be problematic in
cases in which the Dutch authorities would refuse
to return a refugee, although the Chamber could
require it to do so under Article 44 of the Headquarters
Agreement, which obliges a Host State to transport a
detained witness to the point of departure. 2158
On 14 July, Trial Chamber II held that it did not have the
authority to grant the requests to appeal submitted by
the parties and the Host State. 2159 The Chamber based
its holding on a strict reading of Article 82(1)(d) of the
Rome Statute, pursuant to which the Chamber can
only authorise interlocutory or intermediary appeals,
whose immediate determination is necessary for the
continuation of the proceedings. It found that the
present applications to appeal were not necessary for
the continuance of trial proceedings, particularly as
they involved the asylum applications of witnesses, an
issue external to the parties to the case. Trial Chamber
II noted that the parties can appeal the issue directly
to the Appeals Chamber at the time of the final
judgement in the case.
Immediately following the Chamber’s decision, the
Netherlands filed an urgent request for directions
to the Appeals Chamber, in which it noted ‘the
2156 ICC-01/04-01/07-3021, para 14.
2157 ICC-01/04-01/07-3020, para 18.
2158 ICC-01/04-01/07-3020, paras 10, 12.
2159 ICC-01/04-01/07-3073.
unprecedented nature’ of the decision, ‘the lack of
relevant provisions in the legal framework’, and the
upcoming judicial recess. 2160 The Dutch authorities
sought urgent directions regarding the procedure
to be followed by the Appeals Chamber concerning
an appeal against the Trial Chamber’s decision. The
Prosecution supported the Netherlands’ request. 2161
On 26 August, 2011, the Appeals Chamber rejected
the Dutch authorities’ urgent request in limine. 2162 It
determined that the request for directions fell outside
of its jurisdiction, 2163 ‘clearly and exhaustively defined’
in the Rome Statute and in the Rules of Procedure
and Evidence. The Appeals Chamber noted that it had
previously rejected similar requests ‘on the grounds
that such requests had no foundation in the Court’s
legal instruments’. 2164
The appearance of the detained witnesses first arose
as an issue in the Katanga & Ngudjolo case when the
Katanga Defence sought to meet with them at the
ICC penitentiary facility prior to their testimony. This
request was rejected by the Trial Chamber, which held
that the Protocol on Witness Familiarisation prohibited
such contact. Rather, the Chamber authorised counsel
for Katanga to hold urgent meetings with witnesses
in an administrative area of the penitentiary facility
in the DRC. 2165 Defence counsel then requested that
the witnesses visit the accused in prison following
their testimony at the ICC. 2166 As of the writing of this
<strong>Report</strong>, the Trial Chamber has not yet ruled on this
request. However, as described in more detail, below,
it has tacitly ruled on the issue by prohibiting their
contact with the accused in the detention facility.
Framed as an issue of the conditions of the detention,
on 7 June, Katanga Defence counsel requested that
the Chamber vary from the principle of non-contact
to allow the three witnesses to communicate with the
accused. 2167 The Katanga Defence observed that as
a result of the detained witnesses and both accused
being housed in the same unit and their restriction
on contact, all are kept to their cells for as long as
2160 ICC-01/04-01/07-3077.
2161 ICC-01/04-01/07-3080.
2162 ICC-01/04-01/07-3132.
2163 The Appeals Chamber maintains jurisdiction to rule
upon: (1) appeals under Articles 81 and 82; (2) the
revision of a conviction or sentence under Article 84;
(3) the disqualification of the Prosecutor or a Deputy
Prosecutor under Article 42(8); and (4) review concerning
reduction of sentence under Article 110. ICC-01/04-
01/07-3132, para 6.
2164 ICC-01/04-01/07-3132, para 7.
2165 ICC-01/04-01/07-2755.
2166 ICC-01/04-01/07-2773.
2167 ICC-01/04-01/07-2988.
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