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On January 6, 2006, the OTP sent a memorandum to Court President
Kirsch requesting that Bitti™s duties as senior adviser to the Pre-Trial divi-
sion be limited to prevent the appearance of judicial partiality, since Bitti
had been heavily involved in matters concerning the Congo and Uganda
situations that were likely to come before the judges of PTC I (Congo) and
PTC II (Uganda).42 A few days later, the OTP noti¬ed PTC I and PTC II
that it had sent a request to the Presidency regarding Bitti, but didn™t copy
the note™s text. The OTP also informed Judge Hans-Peter Kaul, President of
the Pre-Trial division43 and Bitti™s ultimate superior at the time, of the
request. In late January, Court President Kirsch informed the Prosecutor
that the Presidency had no standing to decide the matter nor to send it on to
the judges sitting together as a plenary of the judges.
In February, there was more back-and-forth between the OTP and the
Pre-Trial division, and in March Judge Kaul indicated to the OTP that the
pretrial judges had decided that their division could not act upon
the request. In May, Kaul declined to respond to the Prosecutor™s inquiry
whether the senior legal adviser was still rendering advice to the division.
Meanwhile, the Prosecutor informed Jean Flamme, defense counsel to
Congolese defendant Thomas Lubanga, of his concerns about the matter,
and Flamme added his voice to the Prosecutor™s request to the Pre-Trial
division president to keep Bitti away from the case.
In August, the Prosecutor submitted a formal ˜˜Application to Separate
the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal
Advice Regarding the Case™™ to both PTC I and PTC II.44 In October, the
pretrial judges decided temporarily to relieve Bitti of his functions in con-
nection with the Lubanga (Congo) and Kony et al. (Uganda) cases. The PTC
judges argued, however, that since the Prosecutor kept referring to possible
damage to the appearance of judicial impartiality, he was implicitly chal-
lenging their impartiality. Since this could imply a case for disquali¬cation
of the two PTCs™ judges, they asked President Kirsch to assemble the
uninvolved judges in plenary to decide whether indeed the Prosecutor™s
request amounted to a request for their disquali¬cation, and if so to decide
the matter.


42
ICC, Pre-Trial Chamber II, ˜˜Prosecutor™s Application to Separate the Senior Legal Advisor
to the Pre-Trial Division form Rendering Legal Advice Regarding the Case™™ (2006), 11ff.
43
Each division of the Chambers “ Pre-Trial, Trial, and Appeals “ has its own president, in
addition to the President of the Court as a whole.
44
ICC, Pre-Trial Chamber 1 ˜˜Prosecutor™s Application to Separate the Senior Legal Adviser to
the Pre-Trial Division from Rendering Legal Advice Regarding the Case™™ (2006).
127
Building the Court

Meanwhile, PTC I declared that it lacked jurisdiction to entertain the
Prosecutor™s request (to separate Bitti from work on the Congo),45 and PTC
II dismissed the request (to separate Bitti from work on Uganda).46 The
pretrial judges urged the Presidency to act with dispatch, since an important
hearing (con¬rmation of charges for Thomas Lubanga) was upcoming in
early November.
On November 7 (two days before the con¬rmation hearing for the case
against Lubanga), President Kirsch informed all concerned that he had
consulted with the eleven (uninvolved) judges. They determined that the
application by the OTP did not amount to a request for the disquali¬cation
of any judge; therefore, there were no grounds to call a meeting of judges
under the statutory process for considering judicial disquali¬cation.47 The
OTP™s challenge remained unanswered, Bitti remained adviser to the PTC,
and as the Congo and Uganda cases moved forward, the proscription
against his involvement became moot.


Leadership
Aside from the particulars of the Bitti matter, outside observers of the Court
were concerned that the Court suffered from a lack “ or a surplus “ of leader-
ship. Although the President is the formal head of the ICC, and although
President Kirsch was generally credited with outstanding service as the diplo-
matic emissary of the Court, critics argued that his quest to retain judicial
neutrality and his impulses as a diplomat led him to play more of a ˜˜facilitator™™
role than a decisive one in seeking to resolve clashes between the Prosecutor and
Registrar. Following the second round of judicial elections in 2006, the judges
again voted to elect a president (to a three-year, once-renewable term). The
election was contested, and Kirsch won by only a single vote, with almost half
of the judges favoring another candidate with greater judicial, courtroom, and
administrative experience.48 In 2009 a new president will be elected.
While Moreno Ocampo headed the engine of the Court, he was criticized
by some for seeking too political a role externally, preferring the bright


45
ICC, Pre-Trial Chamber I, ˜˜Decision on the Prosecutor™s Application to Separate the
Senior Legal Advisor to the Pre-Trial Division from Rendering Legal Advice Regarding the
Case™™ (2006).
46
ICC, Pre-Trial Chamber II, ˜˜Decision on the Prosecutor™s Request to Separate the Senior Legal
Adviser to the Pre-Trial Division from Rendering Legal Advice Regarding the Case™™ (2006).
47
Ibid., Annex, ˜˜Internal Memorandum from the President to the President of the Pre-Trial
Division™™ (2006).
48
Interviews.
128 Building the International Criminal Court

lights of international exposure to the nitty-gritty of investigation and
prosecution, and also for micromanaging his division internally, sti¬‚ing
initiative and orderly procedure. The Registrar came in for criticism as an
empire builder. At the same time, all three men had strong defenders. They
argued that Kirsch was putting the Court on the map and managing a
fractious bureaucracy; Moreno Ocampo was making headway against the
huge dif¬culties of building and operating the OTP while under crushing
pressure to avoid political missteps but to stride boldly against a wide range
of crimes and criminals; and Cathala had an enormous span of responsi-
bilities “ from personnel security to information technology to arranging for
a suspects™ defense and victims™ representation “ and had to knit together an
intentionally diverse personnel complement.



NEW JUSTICE INNOVATIONS

While the old (retributive) justice mandate of the Rome Statute was clearly
being carried out as the OTP began investigations, the Court struggled to
implement its new (restorative) justice mandates as well. Four in¬‚uences
converged to produce ICC innovations in victim orientation. First, from the
mid-1980s, interest in victim welfare among legal scholars and practitioners
grew, and international efforts followed.49 Concern for victims and the
connection of trials to social healing became so accepted by the interna-
tional justice community that the question of whether to include victim-
oriented innovations into the Statute was not controversial: The question
was how these concerns should be included. The rather vague provisions in
the Statute remained to be worked out.50
Second, the dominance of common-law traditions, and their perpetrator
focus, in the ICTY and ICTR grated especially upon representatives of
European civil-law states, most notably France, in which the turn toward
victims was particularly strong.51 France generally wanted the Rome Stat-
ute to include more of its civil-law tradition than had the tribunals, ¬‚owing


49
Bassiouni, ˜˜International Recognition of Victims™ Rights™™ (2006), 203“79.
50
For example, how would the ICC handle the complexities of potentially mass claims for aid
and/or reparation; how would it include victims in the legal process without compromising
due process rights for defendants and without overwhelming the Court; how would it
identify victims for reparations purposes, as individuals and/or groups; and how could
victims™ interests be served without infringing on the independence of the prosecution? See
ibid., 245“6.
51
Interviews, French participants in Rome Statute negotiations and French ICC of¬cials.
129
Building the Court

from genuine conviction of the value of victim representation at court and
perhaps as well from national pride considerations.
Third, the experiences of the ICTY and ICTR showed that local popu-
lations in the areas where the crimes had taken place had very low opinions
(if any) of the tribunals because of their remoteness, their unfamiliar legal
processes, and the fact that they really had no role or potential offer of
reparations for the victims.52 The ICTR and ICTY belatedly developed
institutional capacities to improve witness protection and handling and
outreach programs to counteract the antitribunal propaganda that pre-
vented the tribunals from gaining local legitimacy.
Last, NGOs pressed hard for substantial provisions favoring victims,
¬‚owing from their long advocacy in domestic and international contexts of
human rights and humanitarian concern.


Implementing the Victim-Orientation Mandate
The Statute directs the Pre-Trial Chambers to evaluate OTP measures to
guarantee that witnesses and victims connected with investigations are
properly protected. Chambers are mandated as well to make it possible for
victims to be involved in proceedings,53 and the Registry is instructed to
implement Statute provisions to ˜˜protect the safety, physical and psycho-
logical well-being, dignity and privacy of victims and witnesses.™™54
Under the Statute, victims have the right to have ˜˜their views and con-
cerns to be presented and considered at stages of the proceedings deter-
mined to be appropriate by the Court and in a manner which is not
prejudicial to or inconsistent with the rights of the accused and a fair and
impartial trial.™™55 From the OTP™s standpoint, victims and witnesses are
primarily important as providers of information for the investigation, and
witness protection is vital in order that witnesses and victims feel safe
enough to come forward. Presenting victims™ ˜˜views,™™ in contrast, is a less
clear-cut objective, and one that may run at cross purposes to the OTP™s
independence in pursuing its investigations. Some observers of the OTP
argue that views could mean perceived inadequacies of an investigation,
and those are views the OTP might rather not valorize; therefore, the OTP

52
Bassiouni, op cit., footnote 335, points out that drafters of the Statutes of the two ad hoc
tribunals deliberately minimized (ICTY) or rejected (ICTR) provisions regarding victim
reparations.
53
Statute Article 68.3.
54
Statute Article 68.1.
55
Statute Article 68.3.
130 Building the International Criminal Court

objective in investigations and the PTC objective of gaining appropriate
victim participation may be in con¬‚ict.56
According to Judge Jorda, the PTC is the earliest appropriate recipient of
communications from victims concerning Court proceedings, the earliest
stage of ˜˜proceedings™™ being OTP investigations;57 the OTP didn™t consider
its investigations to be proceedings, and the matter ultimately had to be
tested in Court (see discussion on Congo in Chapter 7). In the Darfur
situation, PTC I used its responsibilities toward victims to bring into Court
the criticism that the Prosecutor was proceeding too gingerly (see discussion
on Sudan in Chapter 7).
The Registry™s Victims and Witnesses Unit (VWU) and Victims Partici-
pation and Reparations Section (VPRS) are deeply, though separately,
involved in the Court™s responsibilities toward victims. In these capacities, the
Registry comes into direct contact with the OTP because investigators need
to carry out ¬eld operations to gain information from witnesses and collect
documents and other information in the areas where crimes have taken
place; the OTP and the Registry jointly pursue ˜˜outreach™™ programs to
inform local communities about the Court and the opportunities it presents
for people to report on crimes and to seek reparations or representation in
ongoing judicial processes.

Witness Protection
Civil-law systems include victims of crimes in the legal processes much more
centrally than do common-law systems. Bruno Cathala, Registrar of the
ICC, argues that from his (French, civil-law) perspective there is no tension
between a victim orientation and prosecution objectives; rather, he attri-
butes the belief in an opposition between retributive justice and victims™
interests to be the product of a common-law paradigm.58



56
Victims can communicate to the Pre-Trial Chamber when the Prosecutor initiates criminal
proceedings proprio motu (Rome Statute Article 15), the PTC can decide to ask for more
information from the Prosecutor and from victims (Statute Article 15), and victims may
make submissions when the PTC considers jurisdiction and admissibility (Article 19(3)).
Moreover, the PTC must authorize warrants upon application by the Prosecutor, and
therefore has a role in how and when those warrants become public, one criterion of which
in the Uganda case was measures taken by the OTP and Victims and Witnesses Unit for
protection of witnesses and victims prior to public unveiling of the warrants (discussed in
Chapter 7).
57
Jorda and Saracco, ˜˜The raisons d™etre of the Pre-Trial Chambers of the International
Criminal Court™™ (2005), 10.
58
Interviews.
131
Building the Court

The ICTY™s Statute Article 22, ˜˜Protection of Victims and Witnesses,™™
rather vaguely says, ˜˜Protection measures shall include, but shall not be
limited to, the conduct of in camera proceedings and the protection of the
victim™s identity.™™ The tribunal™s judges, in their Rules of Procedure and
Evidence, expanded upon the article, instructing the Registry to establish a
victims and witnesses section to recommend protective measures and to
provide counseling and support for them.59 This was the precedent for
development of the ICC Registry™s VWU, but it has developed much fur-
ther. It seeks to coordinate with the Prosecutor to enable witnesses to be
available to the Court without fear of retribution and, if needed, to support
potential witnesses with counseling and psychological assistance, travel aid
to come to The Hague, and so on.
The ICC™s VWU is mandated to be active as early as the investigation
stage (not just at the trial phase as in the tribunals) and is conceived by its
staff as a ˜˜service provider™™ to make participation possible; to provide
support, assistance, and protection; and to provide advice to the OTP when
needed. The VWU™s services can be requested by prosecutors or defense
counsel, or ordered by Chambers. OTP investigators can make known the
availability of the unit but cannot promise any services; thus, the Court
seeks to avoid creating any incentive for people to make up stories of vic-
timization in order to gain aid.
The VWU has held training sessions for OTP investigation teams to
instruct them in best practices for dealing with victims and witnesses and to
impress upon them that the well-being of witnesses is key to their (prose-
cution) interests, since if witnesses ¬nd that it is too dangerous to cooperate
with the Court, the OTP will have an impossible task of investigation and
trial. The ability of investigators to ¬nd witnesses will depend upon witnesses™
con¬dence that they™ll be relatively safe even as they are in contact with the
ICC. Each person served by the VWU needs to have a ˜˜protection plan,™™ and

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