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International Criminal Court: Prosecutor v. Lubanga, Changing Characterization of Crimes After Commencement of Trials
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2010
Footnotes
*
Head of Chambers, International Criminal Tribunal for Rwanda; formerly, Senior Appeals Counsel, Special Court for Sierra Leone; formerly, Senior Prosecution Trial Counsel, International Criminal Tribunal for Rwanda; called to the Bar in Nigeria, Ontario (Canada), and British Columbia (Canada).
References
* This text was reproduced and reformatted from the text available at the International Criminal Court website (visited March 29, 2010) http://www.icc-cpi.int/iccdocs/doc/doc790147.pdf
1 The alternative term “information” may serve a similar purpose, especially as regards less serious offences.
2 See Statute of the International Criminal Tribunal for Rwanda arts. 17&18, Nov. 8, 1994, 33 I.L.M. 1602 (1994) [hereinafter ICTR Statute]; Statute of the International Criminal Tribunal for the former Yugoslavia arts. 18 & 19, May 25, 1993, 32 I.L.M. 1159 (1993) [hereinafter ICTY Statute]; Rules of Procedure and Evidence of the Special Court of Sierra Leone R. 47, 50, & 51, Jan. 16, 2002, available at http://www.scsl.org/LinkClick.aspx?fileticket=zXPrwoukovM%3D&tabid=176 [hereinafter SCSL Statute]; Charter of the International Military Tribunal arts. 9, 14(c) & (d), Aug. 8, 1945, 82 U.N.T.S. 279; Charter of the International Military Tribunal for the Far East arts. 9(a) & 15(a), Aug. 8, 1945, available at http://www.icwc.de/fileadmin/media/IMTFEC.pdf. The post World War II trials in Nuremberg and Tokyo also used the term “indictment” to describe the document containing the charges.
3 See Rome Statute of the International Criminal Court art. 61(3)(a), July 17, 1998, 2187 U.N.T.S. 90, 37 I.L.M. 1002 (1998); Regulations of the International Criminal Court reg. 52, May 26, 2004, available at http://www.icc-cpi.int/NR/rdonlyres/B920AD62-DF49-4010-8907-E0D8CC61EBA4/277527/Regulations_of_the_Court_170604EN.pdf.
4 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled “Decision Giving Notice to the Parties and Participants That the Legal Characterisation of the Facts May be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court” (Dec. 8, 2009), available at http://www.icc-cpi.int/iccdocs/doc/doc790147.pdf [hereinafter Lubanga Judgment].
5 See Chile Eboe-Osuji, ‘Vague’ Indictments and Justice at the International Criminal Tribunals: Learning from the World of Common Law, in British and Canadian Perspectives on International Law 105, 125 (Christopher P.M. Waters ed. 2006).
6 Id. See also Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, ¶¶ 23 & 24 (Sept. 2, 1998), available at http://www.unhcr.org/refworld/publisher,ICTR,,,40278fbb4,0.html.
7 Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts may be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court, ¶¶ 28-30 (July 14, 2009) [hereinafter Impugned Decision].
8 See International Criminal Court, Situation in Democratic Republic of the Congo, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/.
9 The judges of the ICTR, ICTY, and SCSL enjoy the power to formulate and adopt their own Rules of Procedure and Evidence, unfettered by any oversight by any external body. See, e.g., ICTR Statute art. 14; ICTY Statute art. 15; and SCSL Statute art. 14, all supra note 2. In contrast, the power to adopt Rules of Procedure and Evidence at the ICC is reposed in the Assembly of States Parties. However, Article 52(1) of the ICC Statute requires the judges to “adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning.” Even in respect of the adoption of the Regulations of the Court, the ICC judges do not enjoy unfettered discretion. Article 52(3) provides among other things that, although the Regulations shall enter into force immediately upon adoption by the judges, there is still a requirement to circulate the Regulations to States Parties immediately upon adoption. If no objection is received from the majority of States Parties within six months, the Regulations remain in force.
10 Lubanga Judgment, supra note 4, ¶ 57.
11 Id. ¶ 78.
12 Id. ¶ 77.
13 Id.
14 Id. ¶ 70.
15 Id. ¶ 71. Arguably, this reasoning by the Appeals Chamber is not persuasive. The significance of immediate circulation of the adopted Regulations and any resulting objection by the majority of the States Parties only relates to the issue of whether the Regulations may continue to operate. The fact that no objection was received within six months does not preclude a subsequent possibility that the States disagree with the adoption of the Regulations.
16 Id. ¶ 88.
17 This indication appeals in paragraph 39 of the Appeals Chamber’s decision, where it quoted the Impugned Decision of the Trial Chamber, which had held that:
Regulation 55 sets out the powers of the Chamber in relation to two distinct stages. One stage is defined in Regulation 55(1) by referring expressly to Article 74 of the Statute which sets out the “Requirements for the decision”, that is, the requirements for the Trial Chamber’s final judgment. Pursuant to Article 74(2) of the Statute, that decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. In harmony with Article 74, Regulation 55(1) confers on the Chamber, in that final stage, the power to change the legal characterization of facts with one express limitation: “without exceeding the facts and circumstances described in the charges and any amendments to the charges.”
18 Rome Statute, supra note 3, art. 74(2) (emphasis added).
19 As the Appeals Chamber stated in paragraph 88:
Based on the consideration that Regulation 55 contains two distinct procedures that are applicable at different stages of the procedure, the Trial Chamber was of the view that the provision would allow it to change the legal characterisation “based on facts and circumstances that, although not contained in the charges and any amendments thereto, build a procedural unity with the latter and are established by the evidence at trial.” For the reasons stated below, the Appeals Chamber finds that this interpretation of the provision was erroneous because Regulation 55 (2) and (3) may not be used to exceed the facts and circumstances described in the charges or any amendment thereto.
20 Id. ¶ 90 (emphasis added).
21 See ¶ 27 Impugned Decision, supra note 7.
22 Lubanga Judgment, supra note 4, ¶ 94.
23 Id. ¶ 55.
24 Notable in this regard is Section 609 of the Canadian Criminal Code, requiring a judge to discharge an accused upon a plea of double jeopardy where it appears
(a) that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and (b) that on the former trial, if all proper amendments had been made that might then have been made, he might have been convicted of all the offences of which he may be convicted on the count to which the plea of autrefois acquit or autrefois convict is pleaded.
See also R v. Irwin, [1998] 38 O.R. (3d) 689, ¶¶ 10,11 [Court of Appeal for Ontario], available at http://www.canlii.org/en/on/onca/doc/1998/1998canlii2957/1998canlii2957.pdf.
1. ICC-01/04-01/06-356-Conf-Anxl; a public redacted version of this document was filed under the number ICC-01/04-01/06-356-Anx2. In the present judgment, references are to the public redacted version.
2. ICC-01-04/01/06-796-Conf-tENG; a pubHc redacted version of the decision was filed under the number ICC-01/04-01/06-803-tEN. In the present judgment, references are to the public redacted version.
3. Confirmation Decision, pp. 156-157.
4. ICC-01/04-01/06-1571-Conf-Anx; public redacted version of this document was filed on 23 December 2008 under the number ICC-01/04-01/06-1573-Anxl. In the present judgment, references are to the public redacted version.
5. “Order for the prosecution to file an amended document containing the charges”, ICC-01/04-01/06-1548, 9 December 2008.
6. “Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court”, ICC-01/04-01/06-1891-tENG.
7. Joint Application, para. 17.
8. “Prosecution’s Response to the Legal Representatives’ ‘Demand [sic] conjointe des représentants légaux des victims aux fins de mise en oeuvre de la procédure en vertu de la norme 55 du Règlement de la Cour”’, ICC-01/04-01/06-1918.
9. “Prosecution’s Further Observations Regarding the Legal Representatives’ Joint Request Made Pursuant to Regulation 55”, ICC-01/04-01/06-1966.
10. “Defence Response to the ‘Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court’ of 22 May 2009 and to the ‘Prosecution’s Response to the Legal Representatives’ “Demande conjointe des représentants légaux des victimes aux fins de mise en oeuvre de la procédure en vertu de la norme 55 du Règlement de la Cour”’ of 12 June 2009”.
11. “Observations of the Legal Representatives of the Victims on the Defence Response of 19 June 2009”, ICC-01/04-01/06-1998-tENG.
12. ICC-01/04-01/06-2049.
13. Impugned Decision, para. 35.
14. “Second Corrigendum to ‘Minority opinion on the “Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”“, ICC-01/04-01/06-2069-Anxl, 31 July 2009.
15. “Defence Application for Leave to Appeal the Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court rendered on 14 July 2009”, ICC-01/04-01/06-2073-tENG, filed confidentially on 11 August 2009; the document was reclassified as public pursuant to an order of Trial Chamber I of 14 August 2009.
16. “Prosecution’s Application for Leave to Appeal the ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”’, ICC-01/04-01/06-2074.
17. ICC-01/04-01/06-2093.
18. ICC-01/04-01/06-2093, para. 11.
19. “Decision on the prosecution and the defence applications for leave to appeal the ‘Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”’, ICC-01/04-01/06-2107.
20. Decision Granting Leave to Appeal, para. 41.
21. “Defence Appeal against the Decision of 14 July 2009 entitled Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/06-2112-tENG.
22. ICC-Ol/04-01/06-2113-tENG.
23. “Prosecution’s Document in Support of Appeal against the ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’ and urgent request for suspensive effect”, ICC-01/04-01/06-2120.
24. “Application for Participation by the Legal Representatives in the Appeals Proceedings relating to the Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, ICC-01/04-01/06-2121-tENG; the document was registered on 15 September 2009.
25. “Application by the OPCV as the Legal Representative of Victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06 to participate in the Interlocutory Appeals Lodged by the Prosecution and the Defence Against the Decision of 14 July 2009”, ICC-01/04-01/06-2122-tENG.
26. “Application for Participation from the Legal Representative of Victims a/0051/06, a/0078/06, a/0232/06 et a/0246/08 in the Defence and Prosecution Appeals against the Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court rendered on 14 July 2009”, ICCOl/04-01/06-2134-tENG; the document was registered on 22 September 2009.
27. “Prosecution’s Response to the Defence Appeal against the ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court’ and request for suspensive effect”, ICC-01/04-01/06-2136.
28. “Prosecution’s response to victims’ application for participation in the Prosecution and the Defence appeals against the ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the regulations of the Court”’, ICC-01/04-01/06-2140.
29. “Réponse de la Défense relative à la « Demande de participation des représentants légaux à la procédure d’appel de la «Décision informant les parties et les participants que la qualification juridique des faits peut être modifiée conformément à la norme 55-2 du Règlement de la Cour » depose le 15 Septembre 2009”, ICC-01/04-01/06-2156.
30. “Order on the filing of a clarification in relation to the ‘Demande de participation du représentant légal des victimes a/0051/06, a/0078/06, a/0232/06 et a/0246/08 à la procédure d’appel interjetés par la Défense et l’Accusation à l’encontre de la “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with regulation 55 (2) of the Regulations of the Court” rendue le 14 juillet 2009”’, ICC-01/04-01/06-2159, p. 3.
31. “Soumission de clarification en relation avec l’ordre de la chambre d’appel du 14 octobre 2009 concernant la [Demande de participation du représentant légaux des victimes a/0051/06, a/0078/06, a/0253/06, a/0233/06 et a/0246/08 à la procédure d’appel interjetés par la Défense et l’Accusation à l’encontre de la ‘Décision giving notice to the parties that the legal characterisation of the facts may be subject to change in accordance with regulation 55 (2) of the Regulation of the Court’ rendue le 14 juillet 2009]”’, ICC-01/04-01/06-2167.
32. ICC-01/04-01/06-2168.
33. See below, at paragraphs 28 et seq.
34. “Observations from the Legal Representatives of the Victims in response to the documents filed by the Prosecution and the Defence in support of their appeals against the Decision of Trial Chamber I of 14 July 2009”, ICC-01/04-01/06-2173-tENG.
35. “Prosecution’s Response to the Observations of Victims on the Appeals by the Prosecution and the defence against the ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the regulations of the Court”’, ICC-01/04-01/06-2178.
36. Defence Response to the ‘Observations des Représentants légaux des victimes en réponse aux documents déposés par l’Accusation et la Défense à l’appui de leurs appels à l’encontre de la décision de la Chambre de première instance I du 14 juillet 2009’ dated 23 October 2009”, ICC-01/04-01/06-2180-tENG.
37. Request for Extension of the Page Limit, para. 5; see also Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 5-6,
38. Request for Extension of the Page Limit, para. 5.
39. Request for Extension of the Page Limit, Annex I, ICC-0l/04-01/06-2113-Anxl-tENG, paras 35-38.
40. Prosecutor’s Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 8; Victims’ Observations, paras 19-22.
41. See “Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted”, ICC-01/04-01/06-1084.
42. Victims’ Observations, paras 20-21.
43. Prosecutor’s Document in Support of the Appeal, para. 8; Victims’ Observations, para. 22.
44. Situation in the Democratic Republic of the Congo, “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal”, ICC-01/04-168, 13 July 2006, para.4; Prosecutor v. Thomas Lubanga Dyilo, “Decision on the re-filing of the document in support of the appeal”, ICC-01/04-01/06-1445, 22 July 2008, para. 8.
45. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 75-76.
46. Prosecutor’s Document in Support of the Appeal, paras 19-21.
47. ICC-01/04-01/06-2143.
48. Decision to Adjourn, para. 23.
49. Victims’ Observations, para. 16; the victims refer to the decision Prosecutor v. Thomas Lubanga Dyilo, “Decision on the request of Mr. Lubanga Dyilo for suspensive effect of his appeal against the oral decision of Trial Chamber I of 18 January 2008”, ICC-01/04-01/06-1290, 22 April 2008, para. 7.
50. Victims’ Observations, para. 17.
51. Prosecutor’s Response to the Victims’ Observations, para. 7.
52. See paragraph 15.
53. First Victims’ Filing, para. 12.
54. First Victims’ Filing, para. 13.
55. Second Victims’ Filing, para. 25.
56. Second Victims’ Filing, para. 25.
57. Second Victims’ Filing, para. 26.
58. Second Victims’ Filing, paras 28-38.
59. Third Victims’ Filing, paras 14-15.
60. Third Victims’ Filing, paras 16-17.
61. Third Victims’ Filing, paras 17-23.
62. Third Victims’ Filing, para. 13.
63. Prosecutor’s Response to Victims’ Filings, para. 4.
64. Prosecutor’s Response to Victims’ Filings, para. 5.
65. Mr Lubanga Dyilo’s Response to Victims’ Filings, para. 8.
66. Mr Lubanga Dyilo’s Response to Victims’ Filings, para. 8.
67. Mr Lubanga Dyilo’s Response to Victims’ Filings, paras 6-10.
68. ICC-01/04-01/06-1335.
69. Decision of 16 May 2008, para. 36.
70. Decision of 16 May 2008, para. 50.
71. Prosecutor v. Thomas Lubanga Dyilo, “Decision of the Appeals Chamber on the joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007”, ICC-01/04-01/06-925, 13 June 2007, para. 28.
72. Prosecutor v. Jean-Pierre Bemba Gombo, “Reasons for the ‘Decision on the Participation in the Appeal against the “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa”’, ICC-01/05-01/08-566, 20 October 2009.
73. See “Decision on the applications by victims to participate in the proceedings”, ICC-01/04-01/06-1556, 16 December 2008; “Decision on the applications by 3 victims to participate in the proceedings”,ICC-01/04-01/06-1562, 18 December 2008; “Corrigendum to ‘Decision on the applications by victims to participate in the proceedings”’, ICC-01/04-01/06-1556-Corr, 13 January 2009; “Decision on the applications by 7 victims to participate in the proceedings”, ICC-01/04-01/06-2035, 10 July 2009.
74. Decision Granting Leave to Appeal, para. 41.
75. Impugned Decision, para. 27.
76. Impugned Decision, para. 28.
77. Impugned Decision, para. 29.
78. Impugned Decision, para. 27.
79. Impugned Decision, para. 30.
80. Impugned Decision, para. 32.
81. Impugned Decision, para. 33.
82. Impugned Decision, para. 34.
83. Impugned Decision, para. 35.
84. Clarification, para. 7.
85. Clarification, para. 8.
86. Minority Opinion, para. 4.
87. Minority Opinion, para. 8.
88. Minority Opinion, paras 9-10.
89. Minority Opinion, paras 9-11.
90. Minority Opinion, para. 15; see also paras 16-17.
91. Minority Opinion, para. 17.
92. Minority Opinion, para. 18.
93. Minority Opinion, para. 19.
94. Minority Opinion, para. 20.
95. Minority Opinion, paras 26-27.
96. Minority Opinion, para. 34.
97. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 5-6.
98. Additional Submissions, para. 37.
99. Additional Submissions, para. 37.
100. Additional Submissions, para. 37.
101. Additional Submissions, para. 37.
102. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 8.
103. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 9 and 14-15.
104. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 9-12.
105. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 13.
106. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 16.
107. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 18-19.
108. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 22.
109. “Judgment”, IT-95-16-T.
110. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 20-22.
111. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 23-28.
112. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 31.
113. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 29.
114. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 30.
115. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 32-35.
116. Prosecutor’s Document in Support of the Appeal, para. 29.
117. Prosecutor’s Document in Support of the Appeal, paras 28, 31, 33-34 and 44.
118. Prosecutor’s Document in Support of the Appeal, paras 42-43.
119. Prosecutor’s Document in Support of the Appeal, para. 46.
120. Prosecutor’s Document in Support of the Appeal, para. 48; Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 10.
121. Prosecutor’s Document in Support of the Appeal, paras 39-40.
122. Prosecutor’s Document in Support of the Appeal, paras 36 and 39.
123. Prosecutor’s Document in Support of the Appeal, paras 39-41.
124. Prosecutor’s Document in Support of the Appeal, para. 49; Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 13.
125. Victims’ Observations, paras 24-25.
126. Victims’ Observations, para. 26.
127. Victims’ Observations, paras 27-28.
128. Victims’ Observations, para. 28.
129. Victims’ Observations, para. 28; Joint Application, para. 19.
130. Victims’ Observations, para. 45.
131. Victims’ Observations, para. 29.
132. Victims’ Observations, para. 30.
133. Victims’ Observations, paras 30 and 43-44.
134. Victims’ Observations, para. 31.
135. Victims’ Observations, para. 32.
136. Victims’ Observations, para. 33.
137. Victims’ Observations, para. 34.
138. Prosecutor’s Response to the Victims’ Observations, paras 8-11; Mr Lubanga Dyilo’s Response to the Victims’ Observations, para. 13.
139. Prosecutor’s Response to the Victims’ Observations, para. 3.
140. Prosecutor’s Response to the Victims’ Observations, para. 3, see also paras 12-15.
141. Mr Lubanga Dyilo’s Response to the Victims’ Observations, paras 15-26.
142. Additional Submissions, para. 37.
143. H.-J. Behrens, C. Staker, ‘Article 52 - Regulations of the Court,’ in: O. Triffterer (ed.). Commentary on the Rome Statute of the International Criminal Court (2nd edition, 2008), pp. 1053 et seq., at margin number 11.
144. Ibid., at margin number 13.
145. See also C. Kreß, ‘The Procedural Texts of the International Criminal Court,’ 5 Journal of International Criminal Justice (2007), pp. 537-543, at p. 540.
146. See G. Bitti, ‘Two Bones of Contention Between Civil and Common Law: The Record of the Proceedings and the Treatment of a Concursus Delictorum,’ in: H. Fischer, C. Kreß, S. R. Lüder (eds.). International and National Prosecution of Crimes Under International Law (2004), pp. 279-288, at p. 286; H. Friman, ‘The Rules of Procedure and Evidence in the Investigative Stage,’ in: H. Fischer, C. Kreß, S. R. Lüder (eds.). International and National Prosecution of Crimes Under International Law (2004), pp. 191-217, at pp. 208-210.
147. Article 52 (3) of the Statute reads as follows: “The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force”.
148. Additional Submissions, para. 37.
149. Additional Submissions, para. 37.
150. Article 61 (5) of the Statute.
151. Article 66 (2) and (3) of the Statute.
152. On the purpose of Regulation 55 see also H.P. Kaul, ‘Developments at the International Criminal Court/Construction Site for More Justice: The International Criminal Court after Two Years,’ 99 American Journal of International Law (2005), pp. 370-384, at pp. 375-378; C. Stahn, ‘Modification of the Legal Characterization of Facts in the ICC System:APortrayal of Regulation 55,’ 16 Criminal Law Forum (2005), pp. 1-31.
153. See paras 94 et seq.
154. Kupreškić Trial Judgment, para. 738.
155. See article 14 (3) (a) of the International Covenant on Civil and Political Rights, signed 16 December 1966, entered into force 23 March 1976, 999 United Nations Treaty Series 14668; article 7 (1) of the African (Banjul) Charter on Human and Peoples’ Rights, signed 27 June 1981, entered into force 21 October 1986, 1520 United Nations Treaty Series 26363; article 8 (2) (b) of the American Convention on Human Rights ‘Pact of San Jose, Costa Rica,’ signed on 22 November 1969, entered into force on 18 July 1978, 1144 United Nations Treaty Series 17955; article 6 (3) (a) of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), signed 4 November 1950, as amended by Protocol 11, entered into force 3 September 1953, 213 United Nations Treaty Series 2889.
156. See Pélissier and Sassi v. France, “Judgment”, 25 March 1999, Application no. 25444/94; Dallos v. Hungary, “Judgment,” 1 March 2001, Application no. 29082/95; Sadak and others v. Turkey, “Judgment,” 17 July 2001, Application nos 29900/96, 29901/96, 29902/96 and 29903/96; I. H. and others v. Austria, “Judgment,” 20 April 2006, Application no. 42780/98; Miraux v. France, “Arrêt”, 26 September 2006, Application no. 73529/01; Mattei v. France, “Arrêt,” 19 December 2006, Application no. 34043/02; Abramyan v. Russia, “Judgment,” 9 October 2008, Application no. 10709/02.
157. Article 6 (3) (a) of the Convention for the Protection of Human Rights and Fundamental Freedoms reads: “Everyone charged with a criminal offence has the following minimum rights: [...] to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”.
158. See Fermín Ramírez v. Guatemala, “Judgment,” 20 June 2005.
159. Article 8 (2) of the American Convention on Human Rights reads, in relevant part, as follows: “2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: [...] b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense”.
160. For instance, the ECtHR found in Pélissier and Sassi v. France that a breach of article 6 of the European Convention on Human Rights occurred in circumstances where the accused were not properly informed that the legal characterisation of the facts against them could be modified from co-perpetration to aiding and abetting bankruptcy, paras 55-63. See also Sadak and others v. Turkey, “Judgment,” 17 July 2001, Application nos. 29900/96, 29901/96, 29902/96, and 29903/96, para. 57; Miraux v. France, “Arrêt”, 26 September 2006, Application no. 73529/01, para. 32; Mattei v. France, “Arrêt”, 19 December 2006, Application no. 34043/02, para. 34.
161. Impugned Decision, para. 27.
162. Decision Granting Leave to Appeal, para. 41
163. In the view of the Appeals Chamber, the term ‘facts’ refers to the factual allegations which support each of the legal elements of the crime charged. These factual allegations must be distinguished from the evidence put forward by the Prosecutor at the confirmation hearing to support a charge (article 61 (5) of the Statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. The Appeals Chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (I) (a) of the Statute.
164. Working paper submitted by Argentina to the Preparatory Committee on the ablishment of an International Criminal Court (12-30 August 1996), A/AC.249/L.6.
165. Working paper submitted by Argentina to the Preparatory Committee on the Establishment of an International Criminal Court (12-30 August 1996), A/AC.249/L.6, p. 12.
166. Clarification, para. 8.
167. Prosecutor’s Document in Support of the Appeal, para. 35.
168. See paragraphs 83 et seq.
169. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 21.
170. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 22.
171. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 22.
172. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 20.
173. Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 21.
174. Decision Granting Leave to Appeal, para. 41.
175. Impugned Decision, para. 33.
176. Clarification, para. 8.
177. Clarification, para. 11 b).
178. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 38-57.
179. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 36-38.
180. Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 58-74.
181. Prosecutor’s Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 19-21.
182. Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, footnote 38.
183. Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, para. 21.
184. Response to Mr Lubanga Dyilo’s Document in Support of the Appeal, paras 17 and 22-26.
185. Victims’ Observations, para. 36.
186. Victims’ Observations, paras 37-38.
187. Victims’ Observations, para. 39.
188. Victims’ Observations, paras 35, 39 and 42; Prosecutor’s Response to the Victims’ Observations, para. 14.
189. Prosecutor’s Response to the Victims’ Observations, paras 14-15.
190. Mr Lubanga Dyilo’s Response to the Victims’ Observations, paras 28-31.
191. Mr Lubanga Dyilo’s Response to the Victims’ Observations, paras 32-40.
192. ICC-01/04-01/06-824, pp. 54-57. That dissenting opinion related to an appeal brought under article 82 (1) (b) of the Statute; however, the same considerations apply to appeals brought under article 82 (1) (d) of the Statute; see Judge Song’s separate and partly dissenting opinion of 16 May 2008, ICC-01/04-01/06-1335, pp. 18-22, para. 3.