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

Judiciary – Key Decisions Protection and Protective Measures
Host State argued that the right to non-refoulement
must be observed not only by States, but also by
international organisations, such as the ICC.
Specifically, the Netherlands contested the Trial
Chamber’s conclusion that its role was merely to
defer the asylum claim to the Netherlands as a ‘safety
net’. 2184 Challenging Trial Chamber II’s holding on
the issue, it asserted that the Chamber is required
to consider all potential human rights violations in
ruling whether to return a witness under Article 93(7),
not just those related to the witness’ contact with
the Court, under Article 68. It further argued that
the Court, especially the VWU, is uniquely positioned
to assess refoulement risks. For the purposes of
the appeal, the Netherlands argued that the issue
significantly affects the fairness of the proceedings
pursuant to Article 82(1)(d). Specifically, it asserted
that the Trial Chamber’s decision caused prejudice to
the Netherlands. It also argued that the accused must
be able to call witnesses, the appearance of which
necessitates protection in accordance with Article
21(3). At the time of writing this <strong>Report</strong>, no decision
has been issued on the Netherlands’ application to
appeal.
2184 ICC-01/04-01/06-2768, para 15.
Article 70 breach in the
Lubanga proceedings
As described in the Trial Proceedings section of
this <strong>Report</strong>, protection issues also surfaced in the
context of a potential breach of Article 70 of the
Rome Statute, which covers intentional offences
against the administration of justice, including
‘corruptly influencing a witness, obstructing or
interfering with the attendance or testimony of
a witness, retaliating against a witness for giving
testimony or destroying, tampering with or
interfering with the collection of evidence’. 2185
On 29 March 2011, Trial Chamber I requested
observations from the parties and participants on the
procedure to be adopted for initiating an investigation
pursuant to Article 70. 2186 The Chamber’s request
followed an inquiry by the VWU concerning the issue of
direct and indirect threats by victims against Defence
witnesses in the proceedings. The precise details of the
inquiry remain confidential.
At issue in the filings submitted by the parties and
participants was which organ of the Court had
competence over an Article 70 investigation in the event
there was a conflict of interest with the Office of the
Prosecutor. As the parties’ observations indicated, the
statutory framework assigns all investigatory functions
to the Office of the Prosecutor, including Article 70
investigations, while also permitting the Chamber to
request that the investigation be conducted by the
relevant State Party. The legal representatives of victims
underscored the security concerns for victims raised
by delegating an Article 70 investigation to the State
Party, in this case the DRC. 2187 Given the absence of any
statutory provision addressing a conflict of interest,
both the Defence and the legal representatives of
victims suggested that the Chamber adopt the practice
used by the ad hoc tribunals, which can request an
amicus curiae submission by the Registry as to whether
the rationale exists for opening an independent
investigation led by an entity unaffiliated with the
Court. 2188 As of the writing of this <strong>Report</strong>, the Court
has not publicly issued any findings about the future
investigation of the Article 70 breach.
2185 Article 70(1)(c) of the Statute. Article 70(1) provides an
exhaustive list of violations that fall within the scope of
the Court’s jurisdiction, with emphasis on violations that
were committed intentionally.
2186 ICC-01/04-01/06-2716, fn 1; the request for observations
was made by email.
2187 ICC-01/04-01/06-2714.
2188 ICC-01/04-01/06-2714, ICC-01/04-01/06-2715.
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