On 22 July 2009, Trial Chamber II defined the modalities of the common legal representation of victims in the Katanga/Ngudjolo case. The Chamber has divided victims into two groups: the first group includes all victims except for child soldiers, and the second group includes the latter. Judges have decided that the victims will be represented by one common legal representative (who will choose an assistant) except for the child soldiers who will appoint a separate counsel.

In addition, Judges have explained that if any disagreements should arise between victims during the proceedings, the counsel would have to represent the divergent positions in an equitable fashion, but in the case where a conflict of interest develops, the Chamber shall take appropriate measures. Specifically, the Chamber could appoint the Office of Public Counsel for Victims (OPCV) to represent one of the conflicting groups of victims. Finally, the Registrar has received the order to propose a structure of assistance, in coordination with the common legal representation, so that he can effectively accomplish his duties.

This type of common legal representation is different from the one set out in the Thomas Lubanga case. The facts and the situations of the victims in both cases are different; it is thus understandable that the Judges have not reproduced the same legal representation system as in the Lubanga case. However the system adopted by the Judges is very restrictive and practical problems could arise during its implementation. One can only hope that certain aspects of the chosen solution - which is adapted to the specific characteristics of this case and could generate certain concerns - will not be interpreted as being a general precedent.

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Credit: ICC-CPI

On 31 July 2009, ICC Trial chamber II rendered a decision on 345 applications for victim status to the proceedings in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The Chamber decided that 288 persons are granted victim status in the case. The Chamber rejected 5 applications. One person had filled 4 applications and is granted the status of victim participating in the proceedings. For the remaining 40 applications the Chamber requires a number of additional clarifications to make a decision; applicants have until 24 August 2009 to file these clarifications.

The Chamber applied rule 85 a) and b) of the Rules of Procedure and Evidence and the criteria defined by the Appeals Chamber (ICC-01/04-01/06-1432, para. 61 to 65), namely: i) the applicant must be a natural or legal person; ii) that the person suffered a harm; iii) that the crime causing the harm falls within the jurisdiction of the Court and that the crime appears in the confirmation of charges; and iv) that there is a causal link between the crime and the harm.

The grounds for the decision were not disclosed in the document. These grounds will be communicated subsequently with an annex including the Chamber’s analysis of each application.

The trial in the Katanga-Ngudjolo case is scheduled to open on 24 September 2009.

The decision is available in French.

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Since 2003, Darfur has been the scene of horrors committed by Sudanese President Al-Bashir, the Janjaweed militia and military forces. These massacres have been qualified as “intertribal collisions” or “actions led by autonomous criminal militia” with the pretext that this was part of a “conflict strategy against insurgence”: this is how Al-Bashir has been legitimizing the actions of his militia against civil populations.

On 4 March 2009, the ICC issued an arrest warrant for Al Bashir for war crimes and crimes against humanity in Darfur–a decision welcomed by all human rights defenders as a step forward in the fight against impunity.

Meanwhile, the uproar over this decision from the African Union and those heads of state who refuse to cooperate with the Court is scandalous. The African Union supports Sudan in its challenge to the legality of the arrest warrant, arguing that a head of state has immunity according to article 27 of the Rome Statute, which has been ratified by 30 member states of the AU. The decision not to cooperate with the ICC which was made in Sirte was guided by political considerations and is incompatible with the Rome Statute’s obligation to cooperate. The African Union and its members states should have been the first ones to intervene and cooperate in order to deliver justice, all the more that these tragic events are happening on our continent. Furthermore, Botswana and South Africa have led the way by reaffirming their engagement to cooperate with the Court. The deafening silence of other member states is no longer tolerable. Justice and human rights have to take precedence over any solidarity with Bashir and his co-accused.

In addition, the fact that Sudan is not a State Party to the Rome Statute does not exclude the Court’s jurisdiction when a case is referred by the UN Security Council. As a result, all UN member states have a duty to cooperate with the Court. The argument that the arrest warrant for Al-Bashir is going to destabilize the country and worsen the situation in Darfur is baseless when you examine realities on the ground. All reports show that assassinations, rapes and the destruction of villages have decreased in Darfur since March 2009. Justice and the search for peace can go hand in hand and reinforce each other.

Although it is true that most situations before the ICC have a connection with Africa (with the exception of Darfur), these situations have been referred to the ICC by African states themselves: Central African Republic, Democratic Republic of Congo and Uganda. In fact, in the last two decades, Africa has witnessed the worst conflicts characterized by massive violations of human rights and international humanitarian laws.

Most African States have ratified the Rome Statute, vowing to punish crimes of concern to humanity and to lend support to the ICC in its fight against impunity. In order to be credible, they have to show their people and the rest of the world that their fight against impunity is not selective and that any individual who is accused of crimes under international law should face justice irrespective of their position.

Ndiémé DIENG is a law student at the Lille 2 University, France and an intern with the Senegalese Section of Amnesty International.

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